Opinion
E066565
02-13-2018
JUAN CARLOS GUTIERREZ, Plaintiff and Respondent, v. ELVA ANAYA, Defendant and Appellant.
Law Offices of Gary Brown and Gary Brown for Defendant and Appellant. Pope & Gentile, Daniel K. Gentile for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1505955) OPINION APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed as modified. Law Offices of Gary Brown and Gary Brown for Defendant and Appellant. Pope & Gentile, Daniel K. Gentile for Plaintiff and Respondent.
I. INTRODUCTION
This civil matter is a dispute between family members related to real property in Victorville, California. When defendant and appellant Elva Anaya, the sister-in-law of plaintiff and respondent Juan Carlos Gutierrez, failed to appear for a trial readiness conference, the trial court ordered her answer stricken and default entered against her. After a prove-up hearing, the trial court entered default judgment in favor of Gutierrez. Anaya subsequently sought relief from the default and default judgment pursuant to Code of Civil Procedure section 473. When her motion was called for hearing, however, neither she nor her counsel was present, and the applicable filing fee had not been paid, so the trial court denied the motion. When Anaya's counsel arrived late, the trial court denied his request to be heard because Gutierrez's counsel, who had timely appeared telephonically, was no longer present.
Further undesignated statutory references are to the Code of Civil Procedure. --------
In this appeal, Anaya contends that default should not have been entered against her; that she is entitled to relief from the default and subsequent judgment; and that the judgment entered against her is excessive and should be modified.
We agree that the judgment is excessive and should be modified, although our analysis differs from Anaya's. In all other respects, we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of the complaint, in 2011 Gutierrez wished to refinance the property at issue, his residence, but he was unable to do so because of bad credit. To circumvent this problem, Gutierrez entered into an oral agreement with Anaya; he would pay her $5,000, and in exchange she would take title to the property and obtain the new financing. Anaya was to hold the title in her name, but was to have no other interest in the property. Gutierrez would pay the mortgage and the fees for the Homeowner's Association, and would continue to live at and maintain the property. After a few years, when Gutierrez's credit had rebounded and he could obtain financing under his own name, Anaya would transfer title to the property back to him.
Gutierrez alleges that in 2014, Anaya "demanded further payment and threatened to sell, dispose of, or otherwise interfere with [Gutierrez's] Property if [he] did not make further payments to her." In September 2014, Gutierrez and Anaya entered into a written agreement, whereby he would pay her an additional $4,000, and he would have a year "to negotiate this property to his best interest by either taking over the title or transferring it to someone's name that he chooses." Anaya acknowledged that "[w]ith this [she] would have nothing further to do with the mentioned property," and that during the year she "will not ask for any additional money or make any decisions pertaining to the above mention[ed] property."
Gutierrez further alleges that in 2015, Anaya demanded additional monetary payments, and refused his demand that she return title to the property to him. She "attempted to wrest control of the Property away from [him] by interfering with the mortgage payment and demanding that [he] turn over control of the Property to her." She also "continued her attempt to gain control of the Property by making a partial payment to the Homeowner's Association in an effort to assert herself as an individual with a legitimate interest in the Property." Moreover, she began "sending threatening text messages to [Gutierrez], insisting that she will take control of and dispose of the Property . . . ."
The complaint asserts five causes of action: (1) breach of contract; (2) fraud; (3) quiet title; (4) extortion; and (5) promissory estoppel. The prayer for relief seeks a judgment quieting title to the property in favor of Gutierrez, "special and general damages in an amount according to proof at time of trial," "punitive and exemplary damages," costs of suit, attorney fees, and "such other and further relief as the court "may deem just and proper."
Anaya answered the complaint, representing herself in propria persona. She failed to appear, however, at a trial setting conference on October 26, 2015, so the trial court set an order to show cause (OSC) hearing to consider striking her answer and entering her default.
Anaya personally appeared at the OSC hearing, held on November 24, 2015. During the hearing, the trial court set a trial readiness/assignment calendar for February 18, 2016, and scheduled trial for February 22, 2016. In addition to the personal notice of these dates that Anaya received during her attendance at the hearing on November 24, 2015, Gutierrez served and filed a written notice of trial conveying the same information.
Anaya failed to appear at the trial readiness/assignment calendar on February 18, 2016, so the trial court struck her answer and entered default against her. A prove-up hearing pursuant to section 764.010 was held on April 1, 2016, and the judgment was entered on April 12, 2016. The judgment quiets title to the property in favor of Gutierrez, and bars Anaya from asserting any interest in it; orders Anaya to continue payments on a second mortgage that she had taken out on the property in the amount of approximately $35,000 until paid in full; awards Gutierrez $10,000, representing the amount paid to Anaya pursuant to the 2011 and 2014 agreements; awards Gutierrez an additional $15,000, representing "the value of other things given to [Anaya] pursuant to the parties' 2011 and 2014 agreements"; and orders Anaya to "take all necessary steps to facilitate the transfer of title" to the property to Gutierrez. The judgment does not include any award of punitive damages.
On May 2, 2016, Anaya—now represented by counsel—filed a motion to set aside the default and the ensuing judgment pursuant to section 473. The motion, supported by the declarations of Anaya and her new counsel, asserts that Anaya did not in fact receive notice of the February 18, 2016, hearing, and attributes blame for her failure to appear on an attorney who has never appeared on her behalf, but who was advising her on the matter. The motion also argues that the judgment awards Gutierrez monetary damages in excess of that sought by the complaint, and that the judgment is therefore void.
Anaya's motion to set aside the default and ensuing judgment was set for hearing on June 6, 2016. Her new counsel, however, failed to appear timely for the hearing, so the trial court denied the motion. The trial court also noted that the required filing fee of $30 had not been paid.
Anaya's counsel subsequently did appear on June 6, 2016. In briefing on appeal, counsel represents that he was "less than five minutes late to the hearing," after having been delayed by "long lines in the lobby of the courthouse for about 45 minutes waiting to enter." Counsel requested to be heard, but the trial court declined, because counsel for Gutierrez, who had timely appeared for the hearing telephonically, was no longer present. The trial court advised counsel to "refile" the motion.
Anaya did not make any further attempts to obtain relief in the trial court, instead pursuing the present appeal.
III. DISCUSSION
A. The Trial Court Did Not Err by Denying Anaya's Motion for Relief Under Section 473.
On appeal, Anaya focuses on the merits of her section 473 motion, arguing that she was entitled to relief based on her showing that she did not receive adequate notice of the February 18, 2016, hearing, and that to the extent there is any blame to be distributed regarding her failure to appear, it belongs to her attorney advisor. She contends the default and ensuing judgment should be vacated, and the case should proceed to trial.
The trial court, however, did not deny the motion on the merits. It denied the motion because when the matter was called, no one was present on behalf of the moving party, and the filing fee for the motion had not been paid. When Anaya's counsel appeared late, the trial court declined to hear him, but suggested that he "refile" the motion. Anaya has made no argument on appeal that the trial court's procedural findings were incorrect, and there is nothing in the record that would support such an argument. She therefore fails to demonstrate any error in the trial court's ruling denying the motion on these procedural bases. To obtain a ruling on the merits, Anaya could have "refiled" her motion, as the trial court suggested, and apparently could have supported it by an attorney declaration of fault for having failed to appear timely in support of the original motion. (See § 473, subd. (b).) But she did not do so.
To the extent the trial court's ruling may be construed as a ruling on the merits, moreover, Anaya fails to demonstrate the trial court erred by rejecting her claim that her failure to appear at the February 18, 2016, hearing was excusable. Her motion was not accompanied by "an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect" (§ 473, subd. (b)), but only a declaration from new counsel opining that a previous attorney advisor had failed in various respects. The mandatory relief provision of section 473, subdivision (b) therefore does not apply. Instead, the question of whether to grant relief was "'"addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse . . . the exercise of that discretion will not be disturbed on appeal." [Citations.] . . . .'" (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200 (Hearn).) It is "generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
On the present record, the trial court could reasonably have rejected Anaya's claim of mistake, inadvertence, surprise, or excusable neglect. At least arguably, Anaya was well aware that she was required to attend the February 18, 2016, hearing; the trial court could reasonably discount her self-serving claim to the contrary. It could reasonably disbelieve her claim that she never received the written notice served and filed by Gutierrez, and she received notice directly from the trial court, as she was personally present when the date was set. Moreover, regardless of what legal advice she may or may not have been receiving, she knew or should have known the potential consequences of failure to attend the February 18, 2016, hearing. That date was set at an OSC hearing held to consider striking her answer because of a previous failure to appear at a trial setting conference. The record includes ample evidence in support of the conclusion Anaya failed to exercise "'such reasonable diligence as a [person] of ordinary prudence usually bestows upon important business,'" precluding the application of section 473 to relieve her of the default and ensuing judgment. (Hearn, supra, 177 Cal.App.4th at p. 1206.)
Anaya has demonstrated no error in the trial court's ruling declining to vacate the default and ensuing judgment against her. Her section 473 motion was properly denied on procedural grounds, specifically, her counsel's failure to appear, and failure to pay the required filing fee. She also fails to demonstrate that rejecting her claim of mistake, inadvertence, surprise, or excusable neglect would have been an abuse of discretion.
B. The Judgment Is Partially Void for Being Excessive, and Must Be Modified.
Anaya argues in the alternative that the judgment against her must be modified. She contends that we must strike the provisions requiring her to continue payments on the $35,000 second mortgage on the property, and those requiring any direct monetary payments to Gutierrez. We find that the judgment should be modified to reduce the monetary damages payable to Gutierrez to $9,000, but affirm the judgment in all other respects.
"The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint . . . ." (§ 580.) "The policy behind this statute is that a defendant is entitled to be informed of the maximum liability which he will face if he chooses to default." (National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 417 (National Diversified).) "Except for personal injury or wrongful death cases, a defendant must be notified by the prayer [citation] or allegations in the body of the complaint of the damages sought." (Id. at pp. 417-418, fn. omitted).)
As discussed above, Anaya's section 473 motion was properly denied on procedural grounds, and she did not seek to refile it or seek other relief in the trial court. Nevertheless, "[b]ecause of its jurisdictional nature, the claim that a judgment exceeds the relief demanded in the complaint can even be raised for the first time on appeal." (People ex rel. Lockyer v. Brar (2005) 134 Cal.App.4th 659, 666.) Our consideration of the issue here is therefore appropriate.
The prayer for damages in Gutierrez's complaint identifies no specific amount of damages, seeking only "an amount according to proof at time of trial." The body of the complaint includes allegations that Gutierrez paid Anaya "at least $9,000," consisting of one payment of $5,000 in 2011, and another of $4,000 in 2014. But there are no allegations identifying any other specific amount of damages, so as to justify the judgment's award of $25,000, representing $10,000 paid to Anaya, and an additional $15,000 "representing the value of other things given to [Anaya]" pursuant to their agreements. As such, the body of the complaint gave fair warning of exposure to $9,000 in monetary damages, but not anything more than that amount. (See National Diversified, supra, 168 Cal.App.3d at p. 418 [improper to grant default judgment in excess of $10,000 based only on allegation of "damages in excess of $10,000"].)
The complaint also includes, in connection with the cause of action for fraud, the allegation that Gutierrez was damaged "in at least the sum in excess of the jurisdictional amount of this Court . . . ." It is not apparent, however, what this phrase might mean, since there is no minimum limit on the superior court's jurisdiction. And Gutierrez's assertion of his quiet title claim would render this action an unlimited civil case, regardless of the amount of monetary damages he sought. (See §§ 85-86.1, 88 [defining limited civil cases].) Because "neither a layperson nor an experienced attorney could be presumed to know the amount of general damages [Gutierrez was] seeking in this case," from such an allegation, it is inadequate to support a default judgment in any amount greater than that justified by the more specific allegations, discussed above. (Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 434, superseded by statute on other grounds as stated in Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1322, fn. 10.)
Anaya argues that the judgment should be modified to reflect "zero money due to [Gutierrez] either by way of direct payments to [Gutierrez] or by way of payments on the second trust deed of $35,000." This conclusion is apparently based at least in part on the notion that the value of the property awarded to Gutierrez exceeds that of the monetary awards. The complaint gives fair warning, however, that Gutierrez sought return of the property and monetary damages, not one or the other. Moreover, Gutierrez's quiet title claim fairly put Anaya on notice that he sought a judgment returning the property to him free and clear of any encumbrances Anaya may have placed on it during the period when title was in her name. The judgment appropriately allocates to Anaya responsibility for continued payment of the second mortgage that she took out on the property for her own benefit.
"When a default judgment is partially void for being excessive, an appellate court will strike the excess and affirm the valid portion." (National Diversified, supra, 168 Cal.App.3d at p. 419.) We therefore will modify the judgment to reduce the monetary damages payable to Gutierrez to $9,000, but will affirm the judgment in all other respects.
IV. DISPOSITION
The judgment is modified to reflect an award of damages to Gutierrez in the amount of $9,000; the portions of the judgment originally awarding him amounts in excess of $9,000 are stricken. The judgment is affirmed in all other respects. The parties shall each bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.