Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. SBFSS86140. John M. Pacheco, Judge.
Law Offices of Ricky W. Poon and Ricky W. Poon for Appellant.
Law Offices of Brian John Holohan and Brian John Holohan for Respondent.
OPINION
Gaut, J.
Ginn Hseng Deng (Ginn) appeals an order denying his motion to vacate a default judgment of nullity of marriage, entered upon the petition of Vanneza Deng (Vanneza). Ginn contends that the judgment of nullity was void because the petition did not explain the grounds on which the nullity was sought, that his due process rights were violated by the entry of a judgment on a ground not specified in the petition, and that the trial court abused its discretion in denying his motion to vacate the judgment. We disagree and affirm.
We will refer to the parties by their first names for purposes of clarity and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1, and cases there cited.)
1. Background
Vanneza filed a petition for nullity, or in the alternative, for dissolution of her marriage to Ginn, following a two-year five-month relationship. Ginn was served with the petition, but did not file a response or demurrer; a proposed default judgment was submitted on November 22, 2005. The following day, Ginn appeared at a case management conference, seven months after the petition had been filed, and informed the court he wished to respond. However, he did not do so, and his default was entered on December 8, 2005.
On January 12, 2006, a judgment of nullity was ordered following the default prove-up. At the prove-up hearing, which Ginn did not attend, Vanneza testified that Ginn was a Chinese citizen who married her just to obtain a green card, that they did not live together after they were married, and that after he obtained his green card he committed acts of domestic violence, and he was “done with [her].” The trial court found there was good cause to nullify the marriage on the ground of fraud. The judgment was signed on March 10, 2006, and entered a few days later. Notice of entry of the judgment, showing that it was a judgment of nullity, was served promptly on Ginn.
On July 14, 2006, Ginn filed a motion to set aside the judgment for nullity and to enter a judgment of dissolution of marriage, on the ground Vanneza did not check box “d” in item 6, on page two of the Judicial Council form petition, setting forth the basis for claiming fraud as a ground for nullity of marriage. The trial court denied the motion. Ginn appeals. We affirm.
2. Discussion
Although Ginn raises three issues, they are all interdependent. The crux of this appeal is whether the trial court erred in refusing to set aside the judgment of nullity and to enter a judgment for dissolution of marriage instead. We will address his specific contentions below; however, we agree with the trial court’s finding that Ginn was not entitled to relief because he did not establish either a meritorious defense or that a different result would follow if the case were reopened.
In considering Ginn’s contentions, we follow certain principles. First, the granting or denying of a motion to vacate a default rests in the sound discretion of the trial court, and that order will not be disturbed unless an abuse of discretion clearly appears. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.) Second, a judgment will not ordinarily be vacated at the demand of a defendant who was either grossly negligent or changed his mind after the judgment. (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 657.) Third, when a party seeks to vacate a default judgment, pursuant to Code of Civil Procedure, section 473, he or she is required to accompany the application for relief with a copy of the proposed answer or other pleading, “otherwise the application shall not be granted.” (Code Civ. Proc., § 473, subd. (b); see, Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228 [the requirement that a pleading accompany the application for relief is mandatory, and failure to comply necessarily results in denial of relief].) Considering all of these principles, the trial court properly exercised its discretion.
The trial court denied the motion after determining that Vanneza’s testimony would be the same as it was at the initial prove-up, and that there were no different facts. The court found the real motivation behind Ginn’s actions was concern over his immigration status. The trial court focused on the fact that a more favorable result would not follow a vacation of the judgment based on Vanneza’s prior testimony that the marriage was contrived so that Ginn could acquire a “green card.” Ginn failed to show he had a meritorious defense or that a different result would follow. The trial court was correct.
Before relief may be granted under Code of Civil Procedure section 473, it must be shown that he has a meritorious defense to the action (Beard v. Beard (1940) 16 Cal.2d 645, 648), and that if the judgment were set aside and the proceeding reopened a different result would probably follow. (Bethlahmy v. Customcraft Industries, Inc. (1961) 192 Cal.App.2d 308, 310.) The trial court found that Vanneza’s testimony at the default prove-up supported a judgment of nullity, and that Ginn had not presented any different facts that would result in a different judgment. An inducement to marry in order to become eligible for a “green card” has been held to be grounds for an annulment based on fraud. (In re Marriage of Rabie (1974) 40 Cal.App.3d 917, 922.) Ginn did not demonstrate that if the default judgment were vacated, a different result would follow; his position was only that he would not have opposed a dissolution of marriage. Thus, he has not established that he had a meritorious defense or that a different result would occur if the proceedings were reopened.
On this ground alone, the judgment may be affirmed. However, because the court did not expressly state the grounds for denying the motion, we will address the alternative theories on which the judgment must be affirmed, since the decision must be upheld on appeal if any reasonable justification for it can be found. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
a) Because Ginn Did Not Comply with Code of Civil Procedure Section 473’s Requirement of Accompanying the Motion With a Proposed Response, and Did Not Establish Excusable Neglect, The Trial Court’s Ruling Must Be Affirmed.
Whether or not the neglect, which led to the default, is excusable is a question to be decided in the trial court’s discretion, and courts will not relieve litigants from the effects of their carelessness. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 529.) Additionally, Ginn did not comply with the provisions of Code of Civil Procedure section 473, subdivision (b), by failing to submit a proposed response, despite the fact his motion was heard more than three months after the moving papers were filed. These omissions support the trial court’s judgment.
The objectives of the “accompanied by” requirement, which is intended to screen cases where relief is sought simply to delay proceedings, may be satisfied by filing the proposed response at any time before the hearing. (Hu v. Fang (2002) 104 Cal.App.4th 61, 65.) Where a motion for relief under Code of Civil Procedure section 473 is not accompanied by an answer or other pleading, the application shall not be granted. (Boris v. Boris (1959) 167 Cal.App.2d 722, 727.)
Ginn’s carelessness in allowing the judgment by default to be entered weighs against him because it was not of the “excusable” variety. He argues that he thought a judgment of dissolution would be entered based on a minute order reflecting that fact. However, in his moving papers, he acknowledged that his attorney reviewed the court file before February 16, 2006, the date Ginn was to appear on an order to show cause re dismissal, and advised Ginn he did not need to appear because a dissolution judgment would be entered. However, the court’s dockets clearly showed the case category was entered as a nullity proceeding, and, if counsel viewed the entire court file, he had to have noticed that the top of each minute order reflected the category of the case as a nullity proceeding. This was neglect, but not excusable neglect, such as would justify vacating a valid judgment. Thus, there was no error in denying the motion.
b) Because Ginn’s Motion Was Not Brought Within a Reasonable Time, and Was Not Accompanied By His Response, He Was Not Entitled to Relief.
Ginn asserted his motion was timely, because it was within six months of the judgment, but we find his motion was not filed within a reasonable time. While a motion for relief from a judgment may have been brought within the six-month time limit of Code of Civil Procedure section 473, the party may be denied relief if there is an unexplained delay of “anything approaching three months after full knowledge of the entry of the default.” (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d at p. 529.)
In other words, the six-month limitation is a limitation upon the court’s power to grant any relief, regardless of the merits of the motion; in addition to being made within six months, the application must be made within a “reasonable time,” and what constitutes a “reasonable time” depends upon the circumstances of the case. (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d at p. 528.) Ginn delayed four months in bringing his motion to vacate, although he had notice of the proceedings and was served with the judgment. While he filed within six months, he did not file within a reasonable time.
c) Ginn’s Other Contentions Do Not Compel a Different Result.
Ginn claims he was deprived of notice that the petition sought a judgment of nullity, but he admitted being served with the petition, and acknowledged that the box for “nullity” was checked off on the first page. He claims that because the grounds for seeking a nullity were not explicated in the body of the petition, he thought a dissolution of the marriage would be entered, and he had no objection to that. However, his claim that he was surprised to learn that a judgment of nullity had been entered, and his explanation that he was seeking to vacate the judgment because it reflected badly on his reputation and character, do not ring true, and do not compel a reversal of the trial court’s judgment. In other words, other than the effect the finding of fraud had on his reputation or pride, the failure to check off the proper box and explain the ground for which the nullity was sought, did not deprive him of notice.
Ginn was not deprived of notice of the proceedings. He was served with the petition and had an opportunity to file a response before the default was entered, but chose not to do so. He had additional opportunity to prepare a response in connection with the motion to vacate the default, and chose not to do so, although several months passed. Ginn acknowledged that the petition stated nullity as a ground on the face page, but relied on incorrect advice that a dissolution had been entered in the minutes in deciding to take no action. This is not the type of excusable neglect that will justify vacating a judgment. The fact Ginn acknowledged being served with process, and noted the boxes checked on the caption of the case, as well as the fact his attorney reviewed the court’s file before the default judgment was entered, and could observe the category of the action as it was reflected in each minute order, his due process rights were not violated by the entry of a judgment of nullity of marriage.
Ginn also argues that Vanneza’s failure to check the appropriate box under item 6 on the second page of the petition, to spell out the ground of fraud to support the nullity, rendered the judgment void. However, this only shows that the petition may have been defective. Nevertheless, Ginn acknowledged being served with the petition, and, when given the opportunity to respond to the petition—prior to the entry of the default judgment—Ginn failed to demur to the petition or file any response. While the petition may have been defective in not fully explaining the grounds for which the annulment was sought, this was a pleading defect which could have been corrected. Ginn’s failure to respond or demur waives the defect. (Central Surety & Ins. Corp. v. Foley (1962) 204 Cal.App.2d 738, 743.) The judgment was not void.
The policy underlying Code of Civil Procedure section 473 is one that favors trial on the merits. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855.) However, vacating a valid judgment, without showing the existence a meritorious defense, and after an unreasonable delay, is not required simply to satisfy a party’s pride. The judgment is therefore correct under any rationale; the trial court properly exercised its discretion in denying the motion to vacate the judgment of nullity.
3. Disposition
The judgment is affirmed. Ginn is directed to pay the costs on appeal.
We concur: Hollenhorst, Acting P. J., McKinster, J.