Opinion
D071637
11-29-2018
RICHARD V. HYATT, Plaintiff and Respondent, v. PAULE STERN, Defendant and Appellant.
Brent Law Offices and Karen K. Brent for Defendant and Appellant. Henderson, Caverly & Pum, and Robert C. Mardian III 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2016-00013619-CU-PA-CTL APPEAL from a postjudgment order of the Superior Court of San Diego County, Tamila E. Ipema, Judge. Affirmed. Brent Law Offices and Karen K. Brent for Defendant and Appellant. Henderson, Caverly & Pum, and Robert C. Mardian III for Plaintiff and Respondent.
Defendant and appellant Paule Stern appeals a postjudgment order denying her motion to set aside an order and judgment confirming an arbitration award. (Code Civ. Proc., §§ 473, subd. (b), 1294.) The award was issued in a bar association fee arbitration program, in favor of plaintiff and respondent Richard V. Hyatt. Stern contends the trial court abused its discretion in denying her motion to set aside or quash the order confirming the arbitration award, on the grounds that her underlying petition to vacate the award should have been deemed timely, due to alleged defects in service of the award. (§ 1286.2, subd. (a) [award can be vacated due to arbitrator misconduct or excess of powers, etc.].) Alternatively, she claims that if her earlier petition to vacate was not timely filed, it was delayed as a result of her excusable neglect and she sufficiently requested the court to allow her a hearing on it. We find no abuse of discretion or legal error in the trial court's evaluation of her claims and affirm the postjudgment order.
Undesignated statutory references are to the Code of Civil Procedure. In the context of arbitration, a special order after final judgment is appealable. (§ 1294, subd. (e).)
I
BACKGROUND
Hyatt formerly represented Stern in her divorce proceedings. Stern and Hyatt submitted their attorney-client fee dispute to arbitration before the fee arbitration committee of the San Diego County Bar Association (the "Bar Association"), and a hearing was held on March 22, 2016. Stern was then represented by counsel. After a hearing before a panel of three arbitrators, Stern's claim was denied and Hyatt was awarded the sum of $102,739.94 (the "award").
A. Petition to Confirm is Served; Stern Files Motion to Vacate; Hearing
On April 26, 2016, Hyatt filed a petition to confirm the attorney-client fee arbitration award, attaching a copy of the award ("petition to confirm"). The award included the Bar Association's arbitration committee's proof of service dated April 15, 2016, sent to Stern's and Hyatt's respective post office boxes, listing the award, the arbitration agreement, a "Notice of Your Rights after Arbitration," and relevant excerpts from the Business and Professions Code and the Code of Civil Procedure. On May 7, 2016, Hyatt had a process server serve Stern a copy of the petition to confirm. She found the petition outside of her fenced yard on May 8, 2016.
On May 11, 2016, Stern, acting in propria persona, filed with the trial court a peremptory challenge under section 170.6 on the grounds she believed she could not obtain a fair and impartial trial before the assigned judge, and the case was sent to another department of the superior court.
On June 15, 2016, Stern attempted to file some kind of motion and answer, but the clerk rejected them due to Stern's failure to pay her first appearance fee. On June 27, 2016, Stern attempted to file a response to the petition to confirm, but her response was rejected by the court for failure to pay the required fees.
On June 28, 2016, Hyatt filed and served his notice of motion and motion to confirm the arbitration award, with supporting papers ("motion to confirm").
Stern responded with a fee waiver request and a petition to vacate the attorney-client fee arbitration award ("petition to vacate") on June 29, 2016, which received a file stamp. The request for a fee waiver was denied July 1, 2016, and an attorney service submitted a filing fee check that date on her behalf. However, the court clerk lost the check after depositing it. On July 22, a second such check was submitted, the clerk refunded the amount taken as a duplicate payment, and Stern was allowed to file her answer to the petition to confirm.
There is still some doubt on the face of the record about whether the clerk "processed" the petition to vacate before Stern's fee was paid and her answer was filed July 22, but it does not appear that the June 29 file stamp was ever stricken.
On July 27, 2016, the trial court conducted an unreported hearing on Hyatt's petition to confirm and Stern's petition to vacate. Stern represented herself and arguments were heard. Stern's lodged documents were found to be untimely submitted and they were returned. The trial court granted Hyatt's petition to confirm, and allowed him to prepare the judgment. The court expressly denied and dismissed Stern's motion to vacate, with the attached written order noting that the statutory criteria of section 1286.2 were not met. On July 28, 2016, the court clerk served a notice of entry of the July 27, 2016 order on Stern and on counsel for Hyatt. Hyatt also served Stern a notice of entry of the order, along with a copy of the proposed judgment.
On August 18, 2016, the trial court signed and filed the judgment confirming the arbitration award, which also contained a ruling that Stern's petition to vacate was deemed untimely and was denied. On October 4, 2016, Hyatt served on Stern and filed with the trial court his notice of entry of judgment confirming the arbitration award.
B. Stern's Motion to Set Aside
On September 2, 2016, Stern filed her motion to set aside the order confirming Hyatt's arbitration award, or alternatively to "quash the service of process of [Hyatt] and dismiss the order confirming the award" (the "motion to set aside"). (§ 473, subd. (b).) Among the relief requested, she sought an opportunity to file her petition to vacate.
On October 3, 2016, Hyatt filed his opposition to the motion to set aside, followed by the notice of entry of the judgment confirming the award. On October 12, 2016, Stern filed her reply brief in support of her motion to set aside.
On October 17, 2016, the trial court conducted a hearing on Stern's motion to set aside. The minute order prepared by the clerk incorrectly describes the subject motion as one to set aside the arbitration award, as opposed to a motion to set aside the order confirming the award, but a lengthy written order dated November 4, 2016 is incorporated into the minute order, and it characterizes the relief Stern sought as setting aside the order confirming the award, or quashing and dismissing it. The motion to set aside was treated as timely, as brought within the six-month period allowed by section 473, but on the merits, it was denied for various reasons to be described at some length in parts III and IV, post. The written order includes preliminary findings that the 10-day deadline of section 1290.6 applied, such that Stern's belief that she had 100 days to file a response to the petition to confirm was not an excusable error. The court expressly noted that even in light of Stern's problems in responding to the petition to confirm, she "fails to show that she would prevail on the merits of her Petition to Vacate," and could not show there were serious problems with the fairness of the arbitral process. The court clerk served both parties with a copy of the minute order and attached written decision on November 7, 2016.
The discretionary relief provision of section 473, subdivision (b), states that "[t]he 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." Such an application must be made within a "reasonable time," but no more than six months after the dismissal or other action. (§ 473, subd. (b).) The "[a]pplication 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." (Ibid.)
In relevant part, section 1290.6 provides, "A response shall be served and filed within 10 days after service of the petition [except 30 days is allowed for out-of-state service]. The time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court."
On November 21, 2016, Hyatt served Stern a notice of entry of order, including a copy of the written decision denying the motion to set aside. Stern filed a notice of appeal on January 3, 2017, challenging the denial of the motion to set aside or to dismiss.
II
TIMELINESS OF APPEAL
Hyatt contends Stern's notice of appeal of the postjudgment order is untimely. We disagree that dismissal is required. California Rules of Court, rule 8.104(a), provides: "Unless a statute or [rule] 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1) (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment, showing the date either was served; [¶] (B) 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-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment."
All rule references are to California Rules of Court unless noted.
The time under rule 8.104 to appeal the postjudgment order was effectively extended in the present case by rule 8.108(c), which provides: "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." Rule 8.108(a) specifies: "This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs."
With these guidelines in mind, we note the minute order dated October 17, 2016 confirmed the tentative ruling, which was to deny the motion to set aside or dismiss the order confirming the award (or effectively have it vacated). However, the court's written decision was dated November 4, 2016, and it is incorporated into the minute order. The record reflects the clerk mailed Stern a file-stamped copy of the minute order on November 7, 2016. Hyatt served notice of entry of the order on November 21, 2016. Stern appealed on January 3, 2017. Thus, the time to appeal the postjudgment order ended 60 days after the file-stamped copy of the postjudgment order was mailed by the clerk. (Rule 8.104(a)(1).) Stern filed her notice of appeal 57 days after the clerk mailed the postjudgment order. Accordingly, this appeal was timely brought.
III
SCOPE OF ISSUES PRESENTED IN MOTION TO SET ASIDE
A. Legal Principles
A motion to vacate under section 473, subdivision (b) " 'is 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.] The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) "Because the law favors disposing of cases on their merits, 'any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.' " (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)
Within the context of section 473, subdivision (b), neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419; Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1132 ["[t]he test for discretionary relief under . . . section 473 requires the party seeking relief to show excusable error"].) Before relief may be granted under section 473, it must be made to appear that if the judgment were set aside and the proceeding reopened, a different result would probably follow. (Zancaner v. Louisville & N.R. Co. (1963) 220 Cal.App.2d 836, 839.)
We are mindful that Stern was acting as a litigant in propria persona. "[T]he rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation." (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 984-985; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) The abuse of discretion standard gives the trial court substantial latitude, but " '[t]he scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." ' " (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119, quoting City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)
To the extent the record provided is incomplete, we construe the incomplete record against the appellant. (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498; Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178 ["A fundamental principle of appellate law is the judgment or order of the lower court is presumed correct and the appellant must affirmatively show error by an adequate record."]). Further, we do not rely on the reasoning of the trial court, but consider if the order itself comports with the record underlying the ruling. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [" '[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' "].)
B. Statutory Deadlines and Analysis
We first observe that the record shows there was some degree of procedural confusion before the hearing on the original petition to confirm took place, in terms of whether Stern had timely paid her appearance fees. In connection with her motion to quash or dismiss, Stern claimed Hyatt's personal service of summons was ineffective as of May 8, May 17, May 25, or May 29. She nevertheless was able to make various efforts to respond to Hyatt's service of the underlying petition to confirm, but was not able to file her answer until July 22, 2016. That answer does not address any arbitration issues, instead setting forth standard affirmative defenses.
Although Stern claims complete personal service of the award was not achieved, she admits to having actual notice of the award by May 8, 2016, and to receiving it at her post office box May 17, 2016. Hyatt's original points and authorities in support of his motion to confirm the arbitration award stated that Stern was served with the petition on May 18, 2016.
On appeal, Stern's reply brief frames her claims of entitlement to relief for mistake or excusable neglect as follows: "(i) [S]he did not have to respond to the Petition to Confirm within 10 days of May 8th because the Superior Court had not acquired jurisdiction over her during that time; and (ii) the Superior Court acquired jurisdiction over her when she voluntarily submitted thereto by entering her first general appearance in the trial court action concurrent with (and thus necessarily within ten days of) the filing of a response to the Petition to Confirm." That is, Hyatt served the notice of hearing of the petition to confirm June 28, and the next day, Stern filed her petition to vacate the award. She continues to contend her petition to vacate was timely. (§ 1288.2.) That argument seems to conflate her requests to quash the service of summons or dismiss the order confirming the petition, with the section 473 relief that is sought, such as allowing her petition to vacate to be formally heard.
Section 1288.2 provides in relevant part, "[a] response requesting that an award be vacated or that an award be corrected shall be served and filed not later than 100 days after the date of service of a signed copy of the award."
Stern's motion to set aside the order confirming the award was addressed to the trial court's sound discretion. Her motion also seemed to renew her request to vacate the award. (§ 473, subd. (b).) In view of the wide ranging relief sought in Stern's motion, the trial court was required to consider her arguments in light of statutory standards for challenges to arbitration awards. (§§ 1288, 1288.2, 1290.6; City of Sacramento v. Drew, supra, 207 Cal.App.3d 1287, 1298.)
For purposes of applying the statutory deadlines for responding to petitions to confirm arbitration awards, or the associated notices of hearing, case law has addressed the difficulty of "squaring" the 10-day deadline for filing a response to a petition (§§ 1290.4, 1290.6) with the 100-day deadline for filing a petition to vacate (§§ 1288, 1288.2). (Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 67 (Oaktree Capital Management).) Some cases hold "the proper interpretation of section 1288.2 is that the 100-day limit applies only when the other party to the arbitration does not file a petition to confirm the award." (Coordinated Construction, Inc. v. Canoga Big "A," Inc. (1965) 238 Cal.App.2d 313, 317.) "If a party requests confirmation, within the 100 days specified in section 1288, a response may be filed seeking vacation of the award. Any such response, must, however, be filed within 10 days of the date the petition to confirm is served. ([§] 1290.6.)" (Elden v. Superior Court (1997) 53 Cal.App.4th 1497, 1511; italics added.)
In Oaktree Capital Management, supra, 182 Cal.App.4th 60, the court explained these "time deadlines are not inherently inconsistent. The 100 days is measured from service of the arbitration award. The 10 days is measured from service of the petition to confirm. Nevertheless, commentators have expressed that the various deadlines, overlapping as they are, create confusion and, in some scenarios, mischief." (Id. at p. 67, italics omitted; e.g., Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 856 [noting that "where a petition for confirmation has been served and filed and the requisite notice of hearing served and filed, the time for filing a response is governed by section 1290.6 and not section 1288.2"]; italics added.) Further, section 1290.4, subdivision (a) seems to include within its requirements, for service of a copy of the petition, also service of a notice of hearing, as follows: "A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice." (§ 1290.4, subd. (a).)
We need not resolve such fine statutory distinctions between petitions and notices of hearing. (See Oaktree Capital Management, supra, 182 Cal.App.4th 60, 67-68 [overlapping time deadlines for responsive filings by party seeking to vacate award can create confusion].) Relief can be sought under section 473, subdivision (b), for failure to comply with the 10-day limitation period of section 1290.6. (See Coordinated Construction, Inc. v. Canoga Big "A," Inc., supra, 238 Cal.App.2d 313, 319-320.) Section 1290.6 contains a provision stating that " '[t]he time provided in this section for serving and filing a response may be extended . . . for good cause, by order of the court.' " (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847.) Trial courts may consider untimely filed and served response papers, even without any express "good cause" order extending the 10-day time period of section 1290.6, when no prejudice to the petitioner is shown. (MJM, Inc. v. Tootoo (1985) 173 Cal.App.3d 598, 603.)
With regard to Stern's procedural arguments that she timely responded to the petition to confirm, the trial court determined that her motion to set aside under section 473, subdivision (b) failed to explain "what, if any, 'mistake, inadvertence, surprise, or excusable neglect' caused her to fail to attempt to file anything" more than 10 days after she was served with the petition to confirm. Moreover, the trial court noted that even if Stern's statement that she " 'believed she derived a window of 100 days from Code of Civil Procedure section 1288,' was interpreted to mean that she mistakenly believed she had 100 days to file a petition to vacate and that she acted under that mistaken belief, [Stern] does not provide any evidence or argument that such a belief would have been reasonable." This finding was supported by reference to the public policies for promoting alternative dispute resolution, including arbitration, as well as ensuring finality of judgments and judicial efficiency.
Even though the trial court made a finding under section 473 that Stern's underlying petition to vacate was not timely filed pursuant to section 1290.6, the court went on to analyze the basic allegations of that petition, as Stern was essentially rearguing them in her motion to set aside. This was an appropriate approach for considering the section 473 set-aside relief being requested, at a time when judgment had already been entered to confirm the award, based on Stern's general appearances in court.
IV
ANALYSIS OF RULING
Stern claims the trial court abused its discretion in denying her motion to set aside the order and judgment confirming the award. To the extent Stern now claims there were legal or procedural errors during the arbitration hearing, it is well accepted that awards reached during contractual arbitration are not subject to judicial review, except on the grounds set forth in sections 1286.2 (to vacate) and 1286.6 (for correction). (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33.) Correction of the award is not sought, but Stern relies on the terms of section 1286.2, subdivision (a), to argue the award could be vacated because: "(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. [¶] (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to . . . hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title." (§ 1286.2, subd. (a).)
We reiterate that the validity of the arbitration award is not directly before us at this time, except to the extent that the trial court considered whether section 473 criteria could somehow be shown to undermine the order and judgment, such that any discretionary relief from Stern's mistake or excusable neglect would be appropriate. Quite apart from her ability to contest the original petition to confirm the award, Stern claimed various forms of bias tainted the arbitration proceedings. These were raised in her petition to vacate filed June 29, and reiterated to some extent at the July 27 hearing on the petition to confirm the award, where Stern also argued her motion to vacate. That hearing was not reported, and the minute order observed that Stern's lodged documents were untimely submitted and returned. That order denied and dismissed Stern's motion to vacate, stating that the statutory criteria were not met.
Stern appears to claim on appeal that it was due to her mistake and inadvertence that she did not lodge documents in a timely manner at the July 27 hearing, and that they would have shown several things. She apparently re-argued those points at the October 17 motion to set aside, although the hearing was not reported. For example, she contends her rights at the arbitration hearing were substantially prejudiced by the conduct of one of the three arbitrators (Daniel J. Horowitz), who allegedly showed a "profoundly disrespectful demeanor" toward her throughout the proceeding, and to her then-attorney. Stern's reply in support of her motion to set aside referred to a declaration from her arbitration attorney, DeAnn M. Salcido, which Stern asserts shows Horowitz's "clear bias." However, the trial court's ruling states that no such declaration was attached to the motion or available as of the time of the hearing.
To argue that section 473 relief was warranted, Stern claims that Horowitz showed irritation about Stern's disorganization at the hearing, and he questioned Salcido's legal theories, and that these must have qualified as misconduct that substantially prejudiced her during arbitration. Such behaviors have been viewed as a reflection of the "arbitrator's decision regarding the prevailing party[, which] is at most an unreviewable error of law, not misconduct mandating vacation of the award." (Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal.App.4th 956, 963.) There were three voting arbitration panel members, and Stern cannot explain how Horowitz's demeanor caused her prejudice. She has not cited to authority that supports such an assertion, within the meaning of section 1286.2, subdivision (a)(3).
Next, Stern alleges that the award transmittal papers contained the name of her former lawyer, the vice-chair of the fee arbitration committee of the Bar Association (Peggy Moore), and that Stern is now suing Moore for legal malpractice. Without support, Stern claims that Moore must have supervised the individual arbitrators who issued the award against her. Stern does not show that Moore's administrative position posed a conflict of interest sufficient to vacate the award under section 1286.2, subdivision (a)(3), (4) or (5).
Stern also contends the arbitrators exceeded their powers by not reading her briefs in advance of the hearing or receiving her documents and exhibits into evidence. (§ 1286.2, subd. (a)(4).) In the Bar Association's Local Rules of Operation ("Local Rules"), rule 34.1 specifies that arbitrators "may, in [their] discretion, decline to admit into evidence documents that were required to be exchanged in advance but were not." There is no transcript of the arbitration hearing, and Stern cannot affirmatively show whether or how the arbitrators committed misconduct in that respect. The trial judge's ruling does not resolve whether Stern's arbitration documents were untimely or unavailable to opposing counsel.
We grant Stern's unopposed request for judicial notice of California State Bar Rule 3.513 and the Bar Association's Local Rules, for fee arbitrations. --------
Stern may be arguing that she had a defense to payment of Hyatt's requested attorney fees, because her motion to set aside included an October 31, 2015 declaration from her assistant Mia Weitman Neustein. Stern asserts the declaration described "deficiencies in Hyatt's performance as an attorney from a third person, percipient witness perspective," during the 2012 divorce proceedings. Stern could not show that the arbitration properly included such legal malpractice allegations. (See D.A. Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 976 [in a legal malpractice case, expert testimony as to standard of care was required].) No determinations about credibility or expertise of such a witness are apparent in the record, nor any evident grounds for section 473 relief from the order.
Under section 1286.2, subdivision (a)(5), an award is subject to being vacated if the "rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title." Where a party claims prejudice from an arbitrator's refusal to hear evidence, "the reviewing court should generally focus first on prejudice, not materiality. To find substantial prejudice, the court must accept, for purposes of analysis, the arbitrator's legal theory and conclude that the arbitrator might well have made a different award had the evidence been allowed." (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439.) Stern cannot show she would meet these requirements.
The trial court's order denying Stern's motion to set aside includes factual determinations on the lack of any excusable mistake or neglect on her part, and they are supported by substantial evidence in the record. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 24.) Stern has not shown that it was an abuse of discretion for the trial court to determine that she failed to show entitlement to relief under section 473, subdivision (b).
DISPOSITION
The postjudgment order is affirmed. Costs are awarded to Respondent.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. AARON, J.