Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. KD037829. Clifford Anderson, Judge. Reversed and remanded for further proceedings.
Glenn A. Williams for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant Jerrold E. Coleman challenges a trial court order denying his motion for relief from default. Relying upon Code of Civil Procedure section 473, subdivision (b), appellant contends that the trial court should have set aside the “default judgment” entered against him.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
We note that no default judgment has been entered against appellant. Appellant incorrectly labels the order determining arrearages as a “default judgment.” His mischaracterization of the underlying order does not preclude the relief sought.
We agree. Based upon the uncontroverted evidence that appellant’s failure to attend a hearing was the result of a calendaring error, the trial court should have set aside the order setting arrearages entered against him. Thus, the trial court’s order denying appellant’s motion for relief is reversed, and the matter is remanded for a new hearing on the matter of arrearages.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married, but on January 11, 2001, a judgment of dissolution of marriage was entered.
On March 20, 2007, respondent Jo Anne Coleman filed an order to show cause (OSC), seeking an arrearage determination and payment schedule; an order for wage assignment; and attorney fees and costs. A hearing was scheduled for April 25, 2007.
At the parties’ request, the hearing was continued to July 18, 2007. Respondent gave notice of the continued hearing date.
On July 18, 2007, the trial court heard respondent’s OSC. Appellant did not appear at the hearing. Nor did he file any declaration in response to the OSC.
Respondent did appear, and testified.
Following the hearing, the trial court granted respondent’s OSC and ordered appellant to pay spousal support arrears in the amount of $17,810.48 as well as attorney fees in the amount of $3,750.
On November 8, 2007, appellant filed a motion to set aside the default judgment entered against him. He claimed that “through an honest mistake,” he failed to appear at the July 18, 2007, hearing. Specifically, he mistakenly calendared the hearing for July 19, 2007, and appeared on that date instead. Thus, pursuant to section 473, subdivision (b), he requested that the default judgment be set aside.
Respondent opposed appellant’s motion.
The trial court heard appellant’s motion on December 14, 2007. At the onset of the hearing, the trial court inquired of appellant: “Other than your technical basis, why do you wish to have the judgment set aside?” Appellant explained that while he agreed that there was an arrearage, the amount sought by respondent was “off”; there was a “discrepancy” in the accounting submitted by respondent. In support thereof, appellant submitted an accounting that his accountant prepared.
Respondent disputed appellant’s position, addressing the parties’ respective calculations.
Following this dialogue regarding the merits of respondent’s OSC, the trial court denied appellant’s motion. In so ruling, the trial court commented: “See, this is the problem when you represent yourself, sir. You have got to meet the standards, which means make court appearances when you are given due notice and so forth. And so I’m going to deny the motion to set aside.” The trial court also awarded respondent attorney fees against appellant.
Appellant’s timely appeal from the order denying his motion to set aside the trial court’s order regarding arrearages ensued.
DISCUSSION
On appeal, appellant challenges the trial court’s order denying his motion to set aside the default judgment against him. As set forth above, appellant mischaracterizes the underlying order entered against him. It is not a default judgment; it is an order setting arrearages and awarding attorney fees. Nevertheless, because that order is appealable (see, e.g., In re Marriage of Skelley (1976) 18 Cal.3d 365, 368), so too is the order denying appellant’s request for relief. (§ 904.1, subd. (a)(2).) We thus turn to the question of whether the trial court erred in denying appellant relief pursuant to section 473.
Section 473, subdivision (b), provides, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Because the law favors a trial on the merits, section 473 is liberally construed; any doubts in applying section 473 are resolved in favor of the party seeking relief. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478–1479.)
Here, the uncontroverted evidence established that appellant’s failure to appear at the July 18, 2007, hearing was the result of a calendaring error. Yet, in considering appellant’s motion for relief, the trial court did not consider this evidence. Instead, it jumped right into the merits of respondent’s OSC, engaging the parties in a discussion regarding the amount of arrearages actually owed and how the parties arrived at their respective calculations. Then, apparently frustrated by the discrepancy between the parties’ accountings, the trial court denied appellant’s motion for relief. The trial court never evaluated appellant’s reason for his failure to appear at the July 18, 2007, hearing.
Under these circumstances, we conclude that the trial court abused its discretion in denying appellant relief. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897–898.) Accordingly, we reverse the trial court’s order denying appellant’s motion for relief and remand the matter to the trial court with instructions to set aside the OSC and set the matter for a new hearing on respondent’s OSC.
DISPOSITION
The order denying the motion for relief is reversed. The matter is remanded with instructions to set aside the July 18, 2007, OSC and set a new hearing on respondent’s OSC. Appellant is entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.