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Corzano v. Salazar

California Court of Appeals, Second District, Second Division
Mar 27, 2008
No. B194905 (Cal. Ct. App. Mar. 27, 2008)

Opinion


NESTOR CORZANO, Plaintiff and Appellant, v. MANUEL SALAZAR, as Trustee, etc., et al., Defendants and Respondents. B194905 California Court of Appeal, Second District, Second Division March 27, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BP089161. Aviva K. Bobb, Judge.

Law Office of Michael J. La Cilento and Michael J. La Cilento for Plaintiff and Appellant.

Sybil Yvonne Burrell for Defendant and Respondent Manuel Salazar.

Law Offices of David A. Xavier and David A. Xavier for Defendant and Respondent Elma Mladosich.

CHAVEZ, J.

Appellant Nestor Corzano (appellant) appeals from a judgment establishing title to certain real property and directing the transfer of that property to the Bertha B. Lucero Inter Vivos Trust dated September 14, 2000 (the September 14, 2000 Trust). He contends the trial court abused its discretion by denying his motion to set aside the judgment pursuant to Code of Civil Procedure section 473. We affirm the judgment.

All further statutory references are to the Code of Civil Procedure.

BACKGROUND

Appellant is the beneficiary of the Bertha B. Lucero Living Trust dated June 1, 2000. Respondent Manuel Salazar (Salazar) is the beneficiary of the September 14, 2000 Trust. Respondent Elma Mladosich (Mladosich) is the niece of a predeceased sister of Bertha Lucero (decedent) and the attorney-in-fact for approximately 10 other nephews and nieces of the decedent.

Before her death on August 10, 2004, decedent executed two inter vivos trusts. The first trust, dated June 1, 2000, left the bulk of her estate to appellant. Three months later, decedent revoked the first trust and executed the September 14, 2000 Trust, leaving the bulk of her estate to Salazar.

In November 2004, certain relatives of the decedent, represented by Mladosich as attorney-in-fact, filed a petition under Probate Code sections 850 and 17200, seeking a determination concerning the validity of both trusts. Appellant opposed the petition. Trial was set to commence on December 12, 2005, and was subsequently continued to March 6, 2006.

On March 6, 2006, all parties except appellant appeared for trial. Appellant’s counsel appeared but could not explain why appellant was absent. Mladosich and Salazar advised the trial court that they had reached a settlement. When the case was called for trial, appellant’s counsel stated that he was unable to proceed without his client. Appellant’s counsel further stated that he had informed appellant of the trial date and advised him of the need to be present. Mladosich and Salazar moved to strike appellant’s objections to the petition, and the trial court granted the motion.

On March 21, 2006, Salazar filed a petition to determine title to certain real property and for an order transferring that property to the September 14, 2000 Trust. At the same time, Mladosich filed a motion to determine the good faith of the settlement entered into on March 6, 2006. At a hearing on June 5, 2006, the trial court granted the motion for good faith settlement and took Salazar’s petition under submission. Neither appellant nor his counsel appeared at the June 5, 2006 hearing. On June 21, 2006, the trial court granted Salazar’s petition to determine title to certain real property and for an order directing its transfer to the September 14, 2000 Trust. Judgment was entered on August 11, 2006.

On September 14, 2006, appellant filed a motion to set aside the judgment pursuant to sections 473 and 473.5. Appellant’s motion was supported by his own declaration stating that neither he nor his attorney of record were present at the time of the trial “due to an immediate and irremediable breakdown of the attorney/client relationship.” Appellant’s declaration further stated: “[A]t the time of the Trial, Mr. Mario Vega was still attorney of record and did not attend Trial on my behalf to inform the Court that I was unavailable for Trial because I had a personal matter in San Francisco. Through mistake, inadvertence and excusable neglect, I was unable to make it to the hearing.”

Mladosich opposed appellant’s motion. Her opposition was supported by the declaration of her attorney, who stated that appellant’s attorney had appeared at the March 6, 2006 trial, but that appellant had not, and that appellant’s counsel could not explain his client’s absence. In his declaration, Mladosich’s counsel also stated that appellant’s counsel was given notice of the June 5, 2006 hearing on Mladosich’s motion to determine good faith settlement and on Salazar’s petition to transfer certain property to the September 14, 2000 Trust.

On October 31, 2006, the trial court heard argument from the parties and denied appellant’s motion to set aside the judgment.

DISCUSSION

I. Standard of Review

The standard for appellate review of an order denying a motion to set aside a judgment pursuant to section 473 is limited. “A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.]” (In re Marriage of King (2000) 80 Cal.App.4th 92, 118, fn. omitted.) “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)

II. Motion to Set Aside the Judgment

Section 473, subdivision (b) provides in part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment . . . 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 . . . .” When relief from a judgment is sought under section 473, the moving party bears the burden of proof. (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 80.) When relief is sought on the grounds of excusable neglect, the moving party must demonstrate that the neglect was excusable. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) “The test of whether neglect was excusable is whether ‘“a reasonably prudent person under the same or similar circumstances” might have made the same error. [Citations.]’ [Citation.]” (Ibid.)

Appellant contends the trial court abused its discretion by summarily denying the motion to set aside the judgment without considering appellant’s moving papers or declaration. The record shows that the trial court reviewed and considered appellant’s moving papers and found them to be deficient. The trial court observed that appellant’s moving papers did not meet the requirements of section 473, subdivision (b) because they did not include a copy of the objections that had been stricken as the result of appellant’s failure to appear at the March 6, 2006 trial. The record also shows that the trial court heard and considered argument from appellant’s counsel. The trial court did not summarily deny appellant’s motion.

The record discloses no abuse of discretion by the trial court. Appellant failed to appear at the March 6, 2006 trial. His counsel, who did appear, could not explain appellant’s absence. Appellant’s counsel stated that he had informed appellant of the trial date and advised him of the need to be present. Neither appellant nor his counsel appeared at the June 5, 2006 hearing on Salazar’s petition. Appellant’s motion to set aside the judgment failed to establish excusable neglect for his failure to appear at either the March 6, 2006 trial or the June 5, 2006 hearing.

DISPOSITION

The judgment is affirmed. Respondents Salazar and Mladosich are awarded their costs on appeal.

We concur:

BOREN, P. J., DOI TODD, J.


Summaries of

Corzano v. Salazar

California Court of Appeals, Second District, Second Division
Mar 27, 2008
No. B194905 (Cal. Ct. App. Mar. 27, 2008)
Case details for

Corzano v. Salazar

Case Details

Full title:NESTOR CORZANO, Plaintiff and Appellant, v. MANUEL SALAZAR, as Trustee…

Court:California Court of Appeals, Second District, Second Division

Date published: Mar 27, 2008

Citations

No. B194905 (Cal. Ct. App. Mar. 27, 2008)