Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. SFLSS18051. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Ralph E. Harrison II for Appellant.
E. Toby Bowler for Respondent.
OPINION
Gaut, J.
1. Introduction
Dr. Samuel Sepuya was represented by Mark Blankenship, a lawyer who later resigned from the bar. Sepuya became liable for temporary spousal support obligations for 15 months from October 2000 until December 2001. The court struck Sepuya’s pleadings when he disregarded for almost five years the court’s order to pay $6,000 in attorney’s fees. In October 2003, the court entered a default judgment against him. Sepuya did not seek relief from the judgment until March 2007.
Sepuya now appeals from a postjudgment order denying his belated motion to set aside the default judgment. We affirm the judgment.
2. Factual and Procedural Background
In his statement of the case, Sepuya has failed to comply with the court rule requiring citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We summarize the factual and procedural background based on the record submitted to us.
a. 1995-1997
Sepuya and Vaidehi Ganeson were married in June 1993. In June 1995, Sepuya filed a petition for dissolution of marriage. On August 16, 1995, the court ordered Sepuya to pay temporary spousal support of $4,000 per month to Ganeson. A judgment of dissolution was filed in July 1997. After Sepuya filed a motion to terminate spousal support, the court denied his motion on September 30, 1997, until further information was provided.
b. 1999-2001
Mark Blankenship began to represent Sepuya in March or April 1999.
On July 26, 1999, the court ordered Sepuya to pay Ganeson’s attorney’s fees of $12,000 pursuant to an earlier order of November 18, 1998. On August 20, 1999, Sepuya attended a trial-setting conference at which the court ordered Sepuya to pay $6,000 by October 29,1999. The court also ordered no trial date would be set until all fees were paid in full. Sepuya finally paid $6,000 of the $12,000 on October 19, 1999.
The minute order incorrectly refers to 1998 instead of 1999.
As of June 2000, Sepuya had not made spousal support payments of $160,000. In November 2000, the court issued a writ of execution for $202,831. On February 28, 2001, Judge Brian McCarville ordered Morgan Stanley Dean Witter to satisfy a levy upon the writ of execution. Sepuya was present at that hearing and did not challenge Judge McCarville. On June 15, 2001, the sheriff of Alameda County filed a return on the writ of execution, reporting payment of $204,266 and leaving a deficit of $5,072.63. The case was then in hiatus until 2003.
c. 2003
In January 2003, Ganeson filed an at-issue memorandum.
On May 6, 2003, Judge McCarville ordered Sepuya to pay before June 3 the outstanding attorney’s fees of $6,000 from November 1998. On June 3, the court ordered Sepuya to pay the fees by June 17, 2003. The minute order reports: “If matters are not resolved, pleadings will be ordered stricken and default can be entered. Aty Blankenship states his objections to this order.” The court order stated: “IT IS HEREBY ORDERED that Petitioner shall pay to Respondent the attorney’s fees previously ordered in the sum of $6,000.00 on or before June 17, 2003. In the event Petitioner fails to pay said fees as set forth herein, Petitioner’s pleadings shall be stricken and this matter shall proceed as a default proceeding.” The hearing was continued to June 20, 2003.
On June 20, 2003, neither Sepuya nor his counsel, Blankenship, appeared at the continued hearing at 8:30 a.m. before Judge McCarville. Sepuya had not paid the attorney’s fees. He had also not supplied documents or paid fees for an Evidence Code section 730 expert evaluation. Those fees had also been owing since 1999. In consequence, the court struck Sepuya’s pleadings and ordered “the matter proceed as a default.” At 11:20 a.m., Blankenship made a tardy appearance that was noted for the record.
A default hearing was conducted on October 20, 2003, before Judge McCarville, who entered a default judgment on reserved issues. Ganeson testified that Sepuya earned more than $300,000 annually as a physician. The right to receive spousal support had terminated by Ganeson’s remarriage in January 2002, making spousal support owing for the 15 months ending December 2001. The court found Sepuya owed spousal support of $74,499.73—$60,000 in principal and $14,499.73 in interest. Additionally, the court ordered Sepuya to make an equalization payment of $73,258.05 to Ganeson. Sepuya was also ordered to pay fees and costs of $48,192.25. Notice of entry of judgment was served on Sepuya and Blankenship by mail on October 27, 2003. A clerical error in the judgment was corrected in November 2003 and the amended judgment was served on Sepuya and Blankenship in December 2003.
Blankenship took no action in the case after June 3, 2003.
d. 2006
On February 24, 2006, Blankenship became ineligible to practice law. He resigned on September 24, 2006.
In the meantime, on June 6, 2006, the court issued a writ of execution in the amount of $244,040. On December 20, 2006, the court issued a writ of execution in the amount of $254,643.03.
e. 2007
On February 26, 2007, Ganeson filed an application for an order to show cause for sale of a dwelling, a residence owned by Sepuya in Highland, California. Sepuya was served by mail at the Highland address and a lawyer, Richard Bawden, was also served by mail.
On March 1, 2007, Sepuya filed an order to show cause for modification of spousal support. In his supporting declaration, Sepuya avers that, after the writ of execution was satisfied in June 2001 by a levy upon his Dean Witter account, Sepuya was informed by an employee of Blankenship that the spousal support obligation had ended. Sepuya did not know about the issuance of the third writ of execution until February 9, 2007, when he found a notice of levy pinned to the front gate of his residence. He contacted Bawden, who informed him about the court striking his pleadings on June 20, 2003, and entering the default judgment on October 20, 2003.
Sepuya expressed his view that Judge McCarville was prejudiced against him because of their mutual involvement in a lawsuit involving Catholic Health Care West and an election dispute. That lawsuit was dismissed in 1997.
In his opening brief, Sepuya mentions a lawsuit involving Community Hospital of San Bernardino.
Sepuya asked the court to set aside the default judgment for fraud, to rule on his September 1997 motion to terminate spousal support, and for a stay of execution on the December 2006 writ.
Sepuya also asserted to the court there was no equity in his residence available for execution because of a mortgage, tax liens, and a homestead exemption.
f. 2008
After multiple continuances from April 12, 2007, until March 11, 2008, Judge Duke Rouse conducted a hearing and denied Sepuya’s motion to set aside the default judgment. At a subsequent hearing, the court granted Ganeson’s motion to sell the Highland residence. Sepuya filed a notice of appeal concerning the order on the default motion but not the order on the motion for sale.
3. Discussion
Sepuya identifies three possible grounds for relief: the equitable power of the court to set aside a judgment; Code of Civil Procedure section 473, subdivision (d), for setting aside a void judgment; and Family Code section 2120 et seq.
a. Equitable relief
“A challenge to a trial court’s order on a motion to vacate a default on equitable grounds is reviewed for an abuse of discretion.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.) Sepuya cannot easily obtain equitable relief from a default judgment: “When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ [Citations.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982.)
The parties agree that to set aside a family law judgment, “‘... the defaulted party must demonstrate that it has a meritorious case. Second[], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[], the moving party must demonstrate diligence in seeking to set aside the default once... discovered.’ (Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147-1148.) The stringent three-part formula of Stiles was followed by In re Marriage of Stevenot [(1984) 154 Cal.App.3d 1051,] 1071, an extrinsic fraud case.” (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982.) In the present case, Sepuya cannot meet any of the three-part test.
Regarding the requirement of a meritorious case, Sepuya asserts his case has merit based on eight years of proceedings between 1995 and 2003 and his claims “opposing [Ganeson’s] requests for spousal support, attorney’s fees, and equalization of retirement contributions,...” But Sepuya does not articulate in a meaningful way how his case possesses any merit whatsoever. Instead, the record is replete with examples of many years of uncooperative and obstreperous behavior by him as well as ongoing disregard for court orders to pay temporary spousal support and attorney’s fees.
He also sued Ganeson in a separate civil proceeding that he dismissed in 1997 after the court sustained a demurrer without leave to amend. Litigation of this stripe is highly discouraged: “A recurrent theme in the family law opinions of this court is the disfavoring of civil actions which are really nothing more than reruns of a family law case.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.) We have no difficulty in finding little or no merit in Sepuya’s case.
As for the second requirement of offering an excuse as a basis for relief, Sepuya’s reliance on Blankenship is not satisfactory. The record shows that the court ordered temporary spousal support of $4,000 a month in August 1995 and the support obligation was not modified, suspended, or terminated until Ganeson remarried in January 2002. It was also never paid voluntarily by Sepuya. Therefore, even after the levy by writ upon his Dean Witter account in 2001, Sepuya could not claim ignorance of his continuing obligation to pay temporary support. He cannot blame Blankenship or his employees for misleading him about an obligation that was never resolved: “Reliance on a third party constitutes a satisfactory excuse only if it is reasonable.” (Cruz v. Fagor America, Inc., supra, 146 Cal.App.4th at p. 507.)
Finally, Sepuya did not exercise proper diligence. After the 2001 levy on his Dean Witter account, he did nothing with respect to the ongoing spousal support obligation or payment of the still-outstanding attorney’s fees of $6,000. Instead, he apparently accepted at face value verbal representations made by a Blankenship employee. If Sepuya is believed, he made no further inquiries or investigation about the status of the family law case for almost six years between June 2001 and February 2007. After June 20, 2003, his lawyer, and Sepuya by extension, ignored the case until February 2007. Under these circumstances, Sepuya’s wilful ignorance of a default judgment obtained in October 2003 cannot be countenanced even if he did not discover it until February 2007.
Additionally, we discern no fault in the manner in which the default and default judgment were obtained. Blankenship was present at three hearings in which the consequence of Sepuya’s failure to pay the $6,000 fees was discussed. Blankenship appeared late on the day of the hearing when the court struck Sepuya’s pleadings but he received notice of the court’s findings and orders. The record does not offer any support for Sepuya’s contention that he was not afforded notice of the default proceedings. (In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1069.) Furthermore, we deplore the insinuating comments made by appellate counsel about bias or unethical conduct by Ganeson’s lawyer or Judge McCarville. Nothing in the record supports the accusation that Judge McCarville “acquiesce[d] in the seemingly covert efforts” of Ganeson’s counsel.
b. Void or Voidable Judgment
Sepuya argues the judgment was void because Judge McCarville should have been disqualified and did not have jurisdiction. The judgment, however, is not void on its face and is not subject to challenge beyond the time limits of section 473. (Thompson v. Cook (1942) 20 Cal.2d 564, 569.)
Furthermore, Sepuya did not raise the issue of bias in 2001, when McCarville first presided over the case, or subsequently in 2003. Sepuya made no objection to Judge McCarville at the 2001 hearings which Sepuya personally attended. Sepuya waived the issue of disqualification then and cannot raise it after judgment. (Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12 Cal.App.3d 143, 150; North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 771.)
Even if Judge McCarville had some independent duty of disclosure, nothing in the record supports Sepuya’s claim of bias. The only information about the lawsuit involving Judge McCarville is Sepuya’s declaration in which he asserts that he sued Judge McCarville “as one of the Defendants in a litigation involving Catholic Health Care West and the counting of votes by the Board of Trustees.” The lawsuit was dismissed in 1997, several years before Judge McCarville presided over the instant matter.
Sepuya’s express reliance on Giometti v. Etienne (1934) 219 Cal. 687, 688-689, and his adoption, without proper attribution, of the analysis in Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776-780, do not assist him. In both those cases, and others cited by them, the grounds for disqualification were readily apparent from the record. Here Judge McCarville did not disqualify himself and the reasons for disqualification are not part of the record.
Nor was the amended judgment void because it corrected a clerical error by removing the language, “‘pursuant to the stipulation of the parties.’” Otherwise, the amended judgment was the same as the original judgment. Both contained language, authorized by statute, about the judgment being a lien on Sepuya’s assets. (Fam. Code, § 290.)
We also reject Sepuya’s alternative contention that the judgment was voidable because the court lacked jurisdiction to strike his pleadings for failing to pay the $6,000 in attorney’s fees. The court first made an order that the fees be paid in November 1998. There is no indication in the record that the order for fees was a sanction under Family Code section 271 instead of an order under Family Code section 2030 and we decline Sepuya’s invitation to treat the fee order as a sanction.
In August 1999, the court warned there would be no trial date until all the fees were paid. For almost five years, Sepuya flouted the court’s orders to pay fees. He also strenuously resisted paying temporary spousal support awarded in August 1995. He refused to cooperate with the expert evaluation of his financial circumstances. In May and June 2003, the court again ordered payment of the fees subject to the case being dismissed.
Sepuya protests the court lacks inherent power to dismiss a case for litigation misconduct, citing Bauguess v. Paine (1978) 22 Cal.3d 626 and similar cases. His position has been rejected in Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 757-765, the case involving extreme discovery abuses in a dispute over licensing rights to Winnie the Pooh. In Slesinger, the court emphatically recognized that “the trial court had the inherent power to control the litigation before it and the discretion to dismiss the action for deliberate and egregious misconduct if no other remedy could ensure a fair trial. [Citation.] The Court of Appeal stated that the authority to impose sanctions under the discovery statutes supplemented, but did not supplant, a court’s inherent power to fashion a remedy for litigation abuse. [Citation.] Stephen Slesinger stated that a dismissal need not be preceded by the violation of a court order, but that misconduct must be deliberate and egregious to justify a dismissal and that the trial court must consider other potential sanctions and all of the relevant circumstances before imposing such a sanction. [Citation.]” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1432-1433.)
In the present case, in which Sepuya did not heed court orders for eight years and Sepuya refused to pay fees and spousal support and to cooperate in other aspects of litigation, the dismissal of his case was completely justified and appropriate.
c. Family Code Section 2120 et seq.
Family Code section 2122 allows relief from judgment based on actual fraud, perjury, duress, mental incapacity or mistake. As discussed at length above, none of those grounds are shown here. Sepuya’s effort to characterize Ganeson or her attorney as engaging in fraud offends this court. Sepuya’s misconduct and his lawyer’s negligence, about which Sepuya knew or should have known (Fam. Code, § 2124), are what caused him to suffer the default judgment, not any conduct by Ganeson or her lawyer.
4. Disposition
Sepuya’s two remaining arguments are about striking his pleadings being the equivalent of a dismissal and the trial court’s purported error in not issuing a statement of decision. The former argument is entirely unsupported. The latter argument was waived. Although Sepuya may have asked for a statement of decision in March 2007, he did not renew his request at the hearing a year later in March 2008: “[W]here a party remains silent at the hearing and fails to bring the issue to the trial court’s attention, he or she waives the right to a statement.” (In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, 1109, citing In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1011.)
We affirm the judgment and order Ganeson to recover her costs on appeal.
We concur: Richli, Acting P. J., Miller, J.