Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Commissioner, Super. Ct. No. S-1500-PB-52884
Law Offices of Eugene S. Alkana and Eugene S. Alkana for Objector and Appellant.
B. C. Barmann, Sr., County Counsel, and Susan M. Gill, Deputy County Counsel, for Petitioner and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In order to gain a better understanding of the sequence of events leading to this appeal and motion for dismissal, we have obtained, examined, and referred to the superior court file from the County of Kern. Judicial notice may be taken from the records of any court of this state. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
On February 2, 1981, the California Department of Veterans Affairs conveyed the real property commonly known as 328 West Andrix Street in Monterey Park to Arthur S. and Christina Valenzuela (Christina), the conservatee in the instant appeal. On May 24, 2001, the Valenzuelas recorded a grant deed conveying that real property to themselves and to Arturo’s nephew, appellant Hector J. Holguin, and to one Adeline Salinas (presumably Christina’s niece), all as joint tenants. Arturo Valenzuela, husband of conservatee Christina Valenzuela, passed away on April 27, 2003. In his last will and testament dated May 24, 2001, Arturo appointed his nephew, Hector Holguin, as his personal representative. Pursuant to his will, Arturo devised half of his real property to Holguin and instructed: “My wife to remain in the property for as long as she is able to.”
For the convenience of the reader, we use the conservatee’s given name throughout this opinion and do not intend to imply any disrespect by way of this more informal reference to the individual in question.
In July 2003, appellant Hector Holguin used Christina’s funds to open two Wells Fargo Bank Accounts in her name. He opened a checking account with a $1,777.14 deposit and arranged for direct deposit of her $984 monthly Social Security check into the account. He also opened a market rate savings account with a deposit of $5,096.28. Appellant had access to the checking account via an automatic teller machine (ATM) card. Beginning in July 2003, appellant made multiple withdrawals from the checking account.
On August 21, 2003, Christina executed a will that provided in relevant part:
“THIRD: I give all of my property of every name and nature and wherever situated to my nephew Hector J. Holguin, if he then is living. If my nephew Hector J. Holguin is not living at the time of my death, I give all of my property of every name and nature and wherever situated to Maria D. Holguin, the wife of my nephew Hector J. Holguin. If neither my nephew Hector J. Holguin nor his wife Maria D. Holguin is living at the time of my death, I give all of my property of every name and nature and wherever situated to the then living issue of my nephew Hector J. Holguin by right of representation.”
On the same date, Christina also executed a durable power of attorney—general and a durable power of attorney for health care. She appointed appellant as her attorney-in-fact in the general durable power of attorney and Maria Holguin as her successor attorney-in-fact.
On August 26, 2003, Christina recorded an affidavit by surviving spouse succeeding to title to community property (Prob. Code, § 13500). According to pleadings filed by the Public Guardian, in September 2003, appellant signed an “offer of acceptance” to sell Christina’s Monterey Park home for the sum of $285,000. The signature bore the initials “P.O.A.,” presumably “power of attorney.” On November 24, 2003, Christina received a check in the amount of $264,347.17 for the sale of her home. The check was in her name alone. In January 2004, appellant signed escrow instructions for the purchase of a home at 43980 Reclinata Way in Indio, California. The purchase price of the property was $286,600, the deposit amount was $3,000, and the instructions listed the buyers’ names as “Hector Holguin and Christina Valenzuela.” The buyers’ escrow information sheet requested that title to the property be vested in appellant and Christina as joint tenants. However, the buyers’ final closing statement listed the name of a single buyer, that of Hector Holguin. The closing statement indicated that appellant had deposited $164,836.37 to purchase the real property.
On July 22, 2002, appellant and one Adeline Salinas recorded separate deeds each granting an undivided one-quarter interest in the property commonly known as 328 West Andrix Street, Monterey Park, to Arthur and Christina Valenzuela, husband and wife, as community property with right of survivorship. On the same date, Arthur and Christina Valenzuela recorded a grant deed conveying their interest in that same parcel to themselves as community property with right of survivorship.
Christina suffered from dementia and in 2004 exhibited major impairment in her ability to concentrate, to reason using abstract concepts, to carry out actions in her own rational self-interest, and to reason logically. At some point, appellant promised to care for Christina and provide a place for her to live. Instead, he purchased one-way bus tickets to Bakersfield for Christina and her caregiver.
On May 27, 2004, the Kern County Public Guardian filed petitions in superior court for temporary conservatorship and probate conservatorship over the person and estate of Christina P. Valenzuela. On June 1, 2004, the court conducted an ex parte hearing and granted the petition for temporary conservatorship. On June 11, 2004, the superior court filed an order prescribing notice of the probate conservatorship proceedings, calendared for July 19, 2004, and directed the pleadings be served upon Christina and mailed to appellant (Prob. Code, § 1215). On the same date, the Kern County Public Guardian obtained a temporary conservatorship over Christina’s person and estate.
On July 15, 2004, appellant Hector Holquin, the conservatee’s nephew, filed written objections to the Public Guardian’s petition for appointment of conservator and requested that he be appointed as the conservator of Christina’s person and estate. On September 9, 2004, the Public Guardian filed written objections to appellant’s July 15 pleading. Among other things, the Public Guardian alleged appellant (1) misappropriated funds from Christina’s bank accounts for his own personal use (including for casino gambling purposes); (2) misappropriated funds from the sale of her Monterey Park home and contributed those funds to the purchase of the Indio real property with title vested in his name alone; and (3) failed to fulfill his promise to provide a place for Christina and to provide for her care.
On September 13, 2004, appellant filed a written response to the Public Guardian’s objections and asserted, among other things: (1) appellant never misappropriated any funds belonging to Christina; (2) the Indio property was purchased to allow Christina to have larger quarters and a separate bedroom that she did not need to share with a caregiver; (3) the intent of the Indio purchase was that appellant, his wife, and Christina would move there together after appellant and his wife sold their home in Bermuda Dunes; (4) one-half of the proceeds from the sale of the Monterey Park home belonged to appellant under Arturo’s last will and testament; (5) appellant applied his entire inheritance from his uncle toward the purchase of the Indio home; and (6) appellant and his wife were willing and able to care for Christina at the new residence in Indio.
On the same date, September 13, 2004, appellant filed a separate petition for appointment of probate conservator of the person and estate of Christina. On September 27, 2004, the court conducted a hearing, took the cause under submission on the pleadings, granted the petition of the public guardian and denied that of appellant.
On November 5, 2004, the court filed a formal order appointing the Public Guardian as Christina’s probate conservator. As part of that order, the court ordered appellant to prepare a full accounting of Christina’s funds for the period July 2003 to April 2004 and to provide such accounting to the Kern County Counsel on or before November 15, 2004.
On January 25, 2005, the court issued letters of conservatorship for the person and estate of Christina P. Valenzuela to the public guardian.
On May 5, 2005, the Public Guardian filed a partial inventory and appraisal, reflecting $64,708.22 in assets. The assets consisted of funds in a Washington Mutual Bank checking account.
On November 7, 2005, the Public Guardian filed a first account and report for the period June 11, 2004 to November 2, 2005. The summary of account showed balanced charges and credits of $81,699.92.
On the same date, the Public Guardian filed a petition for examination of appellant Holguin about the estate and to compel him to produce documents. The Public Guardian alleged appellant wrongfully took money from Christina’s accounts at Wells Fargo and Washington Mutual.
On December 21, 2005, County Counsel Susan M. Gill filed a declaration regarding the Public Guardian’s failure to serve counsel for appellant. Gill noted that appellant’s counsel had resigned from the State Bar of California, that she had corresponded with another attorney Eugene S. Alkana of Pasadena regarding appellant’s petition, that she had sent Alkana a copy of the citation and petition for examination, and that she had not heard anything further from Alkana since that correspondence. She further declared that American Legal Support Service, Inc. of Colton had made several unsuccessful attempts to directly serve appellant.
On January 5, February 10, March 6, and May 12, 2006, the Public Guardian filed citations requiring appellant to appear in superior court to be examined and answer interrogatories regarding the real property at Reclinata Way in Indio.
On June 14, 2006, the court approved the first accounting and awarded attorney and conservator fees. The Public Guardian filed a formal order settling the first account on July 10, 2006.
On June 15, 2006, the Public Guardian filed a petition for order determining the conservatee’s ownership interest in the Reclinata Way property. On the same date, the Public Guardian filed a new citation for appellant’s appearance in superior court.
On September 8, 2006, the Public Guardian filed yet another citation for appellant’s appearance in superior court. The proof of service indicated that the citation, petition for examination, and petition for order regarding real property were personally delivered to appellant at 4:40 p.m. on August 10, 2006, at an address on Glass Drive in Bermuda Dunes, California.
On September 13, 2006, appellant failed to appear for his noticed examination and the court issued a bench warrant in the amount of $100,000.
On the same date, the court conducted a hearing on the petition for order determining interest in real property, granted the petition as prayed, and filed a minute order granting judgment against appellant in the sum of $305,519.48.
On September 26, 2006, the court filed a formal judgment and order determining the conservatee’s interest in the real property. The court specifically found that (1) appellant used $163,936.37 of conservatee’s money as a down payment to purchase the Reclinata Way property in Indio; (2) that real property had been sold and net sales proceeds of $153,259.74 were sent to the Public Guardian pursuant to a lis pendens; and (3) appellant acted in bad faith by wrongfully taking and disposing of conservatee’s property. The court ordered appellant to pay the conservatee the sum of $306,519.48 (twice the amount recovered in the sale of the Reclinata Way property).
On October 3, 2006, the Public Guardian filed a notice of entry of judgment and order determining interest in real property.
On March 1, 2007, appellant filed a motion to vacate the judgment because the petition was not personally served upon appellant (Code Civ. Proc, § 473). Appellant attached a declaration to the motion stating he had not been personally served with any petition or citation or order to appear in the instant case. Appellant’s wife attached a similar declaration to the motion.
On March 29, 2007, the court conducted a proceeding and ordered attorney Eugene S. Alkana would be attorney of record for appellant.
On April 5, 2007, the Public Guardian filed a written response and opposition to the motion to vacate. In a declaration attached to that responsive pleading, William Talley, president of Talley’s Legal Service, Inc. in Bermuda Dunes, California averred:
“On the afternoon of August 10, 2006 I went to 42840 Glass Drive, Bermuda Dunes, CA 92203-1455. As I approached the property, I noticed two vehicles in the driveway. The license numbers for the vehicles were 5JAM730 (California), and 631MMH (Texas). As I approached the residence, I looked through a window to the right of the front door of the residence, and I saw a man sitting in a chair, watching television. I also saw that the garage door was open. Because no one had answered the front door during all prior attempts to serve Mr. Holguin at this address, instead of knocking on the front door, I walked into the open garage and I knocked on the interior door of the garage, which led to the house. The man I had seen watching television came through the door. This man was a hispanic male who appeared to be in his late 60’s to early 70’s. He had black hair, appeared to be approximately 6 feet tall, and he appeared to weigh between 185 to 195 pounds. I asked him, ‘Are you Hector Holguin?’ He responded, ‘Yes.’ I told him that I had some legal documents for him, and I handed him the two Petitions and the two Citations. He received the documents into his hands and looked at them. He made no other comment, but he did shake his head. I then exited the garage and left the premises, firm in my belief that I had just accomplished the service of the Citation and Petitions on Hector Holguin. I executed a proof of service accordingly.”
On April 18, 2007, appellant filed a reply memorandum asserting he stood approximately 5 feet 8 inches tall, weighed approximately 140 pounds, and had white hair. In an attached declaration, appellant maintained he did not match William Talley’s description of the man served on August 10 and that Talley’s description of the house did not match the layout of appellant’s home. He also maintained the only television in the house is located in the den, a room that cannot be seen from the front windows of the home. On April 20, 2007, the Public Guardian filed a supplemental declaration by William Talley noting that the man he served had black hair with some gray in the hair. As to the estimation of height, Talley clarified that he stood on the garage subfloor, which was several inches below the level of the residence floor, when he spoke to the man he served on August 10. As to the location of the television room, Talley attached a photograph he took on April 19, 2007. According to Talley, that photograph depicted “the chair in which the man I served can be seen through the right side of the window.”
On April 26, 2007, the court conducted a contested hearing on the motion to vacate and denied the motion by minute order. On May 17, 2007, the court filed a formal order denying motion to vacate judgment finding appellant “has not met his burden in establishing a basis to vacate the judgment pursuant to Code of Civil Procedure section 473.”
On June 6, 2007, appellant filed a notice of appeal from the “Order Denying Motion to Vacate Judgment entered on May 17, 2007, and the Judgment entered on September 26, 2006.” On July 26, 2007, the Public Guardian filed a motion to dismiss appeal in this court, alleging appellant did not file a timely notice of appeal from the judgment entered on September 26, 2006 (Cal. Rules of Court, rules 8.104, 8.108(b)).
Respondent concedes an order denying a motion to vacate a default judgment is an appealable order and therefore does not contest the appealability of the May 17, 2007 order denying motion to vacate judgment.
On August 8, 2007, appellant filed written opposition to the motion to dismiss appeal, claiming the appeal came within an exception to the rule of nonappealability.
On August 14, 2007, the Public Guardian filed a written reply to appellant’s opposition, noting “THE MOTION TO DISMISS THE APPEAL ASSERTS THE UNTIMELINESS OF THE APPEAL FROM THE JUDGMENT ENTERED ON SEPTEMBER 26, 2006, NOT THE LACK OF APPEALABILITY OF THE ORDER MADE MAY 17, 2007.”
On August 23, 2007, this court deferred ruling on the motion to dismiss appeal “until the time the appeal will be calendared for oral argument, or the appeal is considered on the merits.”
DISCUSSION
I.
DISMISSAL OF APPEAL
The Public Guardian contends the appeal from the judgment entered September 26, 2006 should be dismissed as untimely.
California Rules of Court, rule 8.104 states in relevant part:
“(a) Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
“(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
“(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or
“(3) 180 days after entry of judgment.
“(b) Except as provided in rule 8.66 [extending time because of public emergency], no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”
California Rules of Court, rule 8.108 provides in relevant party:
“(b) If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move—or a valid motion—to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:
“(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
“(2) 90 days after the first notice of intention to move—or motion—is filed; or
“(3) 180 days after entry of judgment. [¶] ... [¶]
“(f) An order or notice mailed by the clerk under this rule must show the date it was mailed. An order or notice served by a party must be accompanied by proof of service.”
On October 3, 2006, in the instant case, the Public Guardian filed a notice of entry of the September 26, 2006 judgment and order determining interest in real property. The notice, accompanied by a copy of the judgment, was served upon appellant and attorney Alkana by United States Mail on October 3, 2006. The Public Guardian correctly observes on appeal:
“In this case, the time to appeal from the judgment filed on September 26, 2006 expired on December 4, 2006, 62 days after Notice of Entry of Judgment was served upon Hector Holguin by mail, as the 60th day fell on a Saturday. (California Rules of Court, rules 8.60, subdivision (a), 8.104.) Because the Motion to Vacate the Judgment was not filed on or before December 4, 2006, its filing did not result in an extension of time to appeal from the underlying judgment filed on September 26, 2006. (California Rules of Court, rule 8.108.) The Notice of Appeal was filed on June 6, 2007, which was 253 days after the judgment was entered, 246 days after Notice of Entry of Judgment was served by mail on Hector Holguin and his attorney Eugene S. Alkana, and 184 days after the time to appeal ended on December 4, 2006.…”
In response, appellant contends the motion should be denied because the appeal comes within an exception to the nonappealability rule. He specifically argues, that courts have made various exceptions to the general rule of nonappealability of an order denying a motion to vacate judgment. Appellant is mistaken. The Public Guardian does not challenge the appealability of an order denying motion to vacate a judgment. Rather, the Public Guardian seeks only the dismissal of the appeal from the September 26, 2006 judgment on the ground of untimeliness.
To the extent the June 6, 2007 notice of appeal seeks to challenge the September 26, 2006 judgment, the notice of appeal is untimely and that portion of appellant’s appeal must be dismissed pursuant to the mandatory provision of California Rules of Court, rule 8.104(b).
II.
DENIAL OF MOTION TO VACATE JUDGMENT
Appellant contends the denial of the motion to vacate constituted an abuse of discretion and reversal is required.
He argues:
“In the instant case the two declarations [of appellant and William Talley] are not really in conflict, but rather a review of both leads to but one conclusion—that the person served with the documents was not Mr. HOLGUIN. The man Mr. Talley served was at least 185 pounds with black hair. Appellant is 140 pounds with white hair. Although the process server believed he was serving Appellant he served someone else. And no one knows who this man was. The process server did not get his name or determine why he was at Appellant’s residence. Pursuant to Code of Civil Procedure section 417.10 when substituted service is used the process server must execute an affidavit reciting the name of the person to whom a copy of the summons was delivered and, if appropriate, his or her title or the capacity in which he or she is served.... Because the process server did not provide the name and capacity of the person served this should not be considered appropriate substitute service. [¶] ... [¶]
“... Appellant was not personally served with the Petition. Because Appellant is retired he no longer has a place of business at which he could be served. The only adult person at his place of residence is Mrs. Holguin. Pursuant to her declaration, Mrs. Holguin was never served with the Petition. Finally, although Mr. HOLGUIN received a copy of the Petition in the mail, he never signed any acknowledgment or returned it to Respondent.
“... Because Appellant was not properly served with the Petition, the court had no jurisdiction over him and the resulting default and judgment are void. Accordingly, the trial court abused its discretion in denying the motion to vacate.”
A motion under Code of Civil Procedure section 473 lies within the discretion of the trial court. That discretion is not unlimited and must be exercised in conformity with the spirit of the law and in a manner to subserve the ends of substantial justice. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 819.) “We review an order denying relief under section 473 under the abuse of discretion standard.” (Hu v. Fang (2002) 104 Cal.App.4th 61, 64.) “An exercise of discretion is subject to reversal on appeal where no reasonable basis for the action is shown.” (Moran v. Oso Valley Greenbelt Assn. (2001) 92 Cal.App.4th 156, 160.)
In the instant case, William Talley signed two separate declarations in which he averred that (1) he went to 42840 Glass Drive in Bermuda Dunes on August 10, 2006; (2) he approached the property and noticed two vehicles in the driveway; (3) as he approached the residence, he looked through a window to the right of the front door and saw a man watching television while sitting in a chair; (4) he entered an open garage and knocked on the interior door leading into the house; (5) the man who was watching television responded to the knock and opened the door; (6) Talley asked the man whether he was Hector Holguin; (7) the man responded in the affirmative; (8) he told the man he had some legal documents for him and handed him two petitions and two citations; and (9) the man had black and gray hair, appeared to be six feet tall from Talley’s lower vantage point in the subfloor garage, and appeared to weigh between 185 and 195 pounds. Although appellant maintained that Talley’s initial description of the person served and the residence visited were inaccurate, Talley submitted a supplemental declaration with photographs to clarify any ambiguities.
The direct evidence of one witness entitled to full credit is sufficient for proof of any fact except where additional evidence is required by statute. (Evid. Code, § 411.) An appellate court has no power to judge the credibility of witnesses or reweigh the evidence. (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427.) In view of Talley’s detailed declarations and photographic exhibits, we cannot say the trial court abused its discretion by denying the motion to vacate the judgment determining the conservatee’s interest in the Reclinata Way real property.
III.
MISTAKE, INADVERTENCE, SURPRISE OR EXCUSABLE NEGLECT
Assuming arguendo proper service, appellant lastly contends he is entitled to relief based upon his excusable neglect as well as the neglect and inadvertence of his attorney.
He specifically argues:
“In the instant case, if in fact service was proper, default and judgment were entered as a result of the combination of attorney and client mistake. Appellant’s description of what happened and his repeated statements that he was never personally served led Mr. Alkana to believe that proper service had not been executed. In addition, Mr. Alkana did not check the court file to see if there was proof of service but instead relied upon Mr. Holguin’s statements as well as Ms. Gills [deputy county counsel’s] request that Mr. Holguin voluntarily submit to the jurisdiction of the court to conclude that service had not been proper and, therefore, advised his client not to respond to the Petition.”
Code of Civil Procedure section 473, subdivision (b) states 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.…”
A “reasonable time” depends primarily on the facts and circumstances of each individual case, but definitively requires a showing of diligence in making the motion after the discovery of the default. In other words, the moving party must not only make a sufficient showing of mistake, inadvertence, surprise, or neglect to excuse the original default, but must also show diligence in filing its application under Code of Civil Procedure section 473 after learning about the default. If there is a delay in filing for relief under section 473, the reason for the delay must be substantial and must justify or excuse the delay. Where a party has filed a motion for relief after an extended delay without any adequate excuse therefore, it is an abuse of discretion for a trial court to grant relief under section 473. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181, 1183.)
In the instant case, appellant filed his motion to vacate almost six calendar months after the filing of the notice of entry of judgment and order determining interest in real property. However, he did not provide an adequate excuse for moving for relief after the extended delay. Under the rule of Stafford v. Mach, supra, 64 Cal.App.4th 1174, it would have been an abuse of discretion for the trial court to grant him relief under Code of Civil Procedure section 473. (Stafford v. Mach, supra, at p. 1183.) Appellant nevertheless contends relief is mandatory if an attorney’s mistake was a cause of the entry of default and judgment. Attorney Alkana stated in a declaration attached to the motion to vacate judgment:
“I do not believe Mr. Holguin was ever served. However, if the Judgment was obtained against Mr. Holguin and he had been properly served, then the Default was caused by my mistake by not responding to the Citation. Based upon attorney’s mistake, the Court must vacate the Judgment.”
The mandatory provision of Code of Civil Procedure section 473, subdivision (b) states:
“… Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect....”
A party can rely on the foregoing mandatory provision of Code of Civil Procedure section 473 only if the party is totally innocent of any wrongdoing and the attorney was the sole cause of the default or dismissal. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248.) In the instant case, attorney Alkana was not the sole cause of the entry of judgment determining interest in real property as appellant’s failure to advise Alkana of the personal service of documents clearly played a role in counsel’s “mistake by not responding to the Citation.”
The trial court did not err in denying appellant relief under Code of Civil Procedure section 473.
DISPOSITION
The appeal from the judgment entered on September 26, 2006, is dismissed. The judgment (the “Order Denying Motion to Vacate Judgment” entered on May 17, 2007) is affirmed. Costs on appeal to respondent.
WE CONCUR: LEVY, J., DAWSON, J.