Opinion
F081213
03-10-2022
In re the Marriage of LUCIANO M. and SHELLY JANE SILVEIRA. v. SHELLY JANE SILVEIRA, Respondent. LUCIANO M. SILVEIRA, Appellant,
Luciano M. Silveira, in pro. per., for Appellant. No appearance for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. FL-18-002482 Jack M. Jacobson, Judge.
Luciano M. Silveira, in pro. per., for Appellant.
No appearance for Respondent.
OPINION
SNAUFFER, J.
Appellant Luciano M. Silveira (husband) appeals a default judgment of marital dissolution (Judgment) terminating his marriage to Shelly J. Silveira (wife) and ordering a division of marital assets. Husband contends he was denied due process when the trial court dismissed his petition for dissolution of marriage (Petition), allowed his wife's response to the Petition (Response) to become the petition, and entered his default in the litigation. Husband further contends the court erred in denying his motions to set aside the default and a related motion for reconsideration. We reverse the Judgment and reinstate husband's Petition.
FACTUAL AND PROCEDURAL BACKGROUND
On November 29, 2018, husband, acting in propria persona, filed the Petition to dissolve his marriage to wife on grounds of irreconcilable differences. The Petition did not request a division of marital assets and debts or the confirmation of assets and debts as separate property.
A notice of case management conference (CMC) setting the CMC for May 3, 2019, was issued that same day. The notice directed husband to effectuate service of the notice and Petition on wife and contained the following warning: "WARNING TO BOTH PARTIES: [¶] The Court can impose monetary sanctions and/or dismiss the case if the parties do not appear, if the parties do not timely file their [CMC] Statements, or if the parties fail to follow the rules set forth [in the notice]." (Bold type omitted.)
The CMC notice contained an additional warning: "Order to Show Cause [OSC]. The court may issue an [OSC] to any party violating any provision of this rule. Responsive papers to the [OSC] may be filed and served no later than five (5) court days before the hearing. The court may issue monetary sanctions up to $300 and/or dismiss the [P]etition and/or strike the [R]esponse." (Bold type omitted.)
On January 3, 2019, wife, acting in propria persona, filed her Response which also affirmatively requested dissolution of the parties' marriage on grounds of irreconcilable differences. In her Response, wife did not seek a determination of rights to community or quasi-community assets and debts and did not seek confirmation of separate property rights in any assets or debts.
On May 3, 2019, the initial CMC was held. Wife appeared but husband did not. The trial court issued an order (CMC/OSC Order) setting a further CMC and an OSC for August 23, 2019, and directing husband to show cause why he should not be sanctioned, or the case dismissed, for his failure to appear. The CMC/OSC Order contained a checkbox to indicate whether the court might also "strike [husband's] Response/Petition, allow the Response to become the Petition, and enter [husband's] Default .…" for failure to appear, but the box was not checked. The CMC/OSC Order was served on husband by mail that same day (May 3, 2019).
On August 22, 2019, wife, having retained counsel, filed a CMC statement for the CMC to follow the next day and served a copy on husband, by mail.
On August 23, 2019, the CMC/OSC hearing was held but husband again failed to appear. A second order (Sanctions Order) was issued. A checkbox in the Sanctions Order indicating whether the case was dismissed was left unchecked. Instead, the following notation was written: "Court sanctions petitioner for failing to appear today, Petition is stricken and court enters default against petitioner. Respondent to submit judgment."
The Sanctions Order also set a further CMC for October 18, 2019, which was subsequently continued to October 29, 2019. Additional CMCs were set and/or continued by the trial court during the pendency of the proceedings below. We do not discuss them unless relevant to this opinion.
On September 12, 2019, husband filed a Request for Order [to] Set Aside Default (First Motion to Set Aside Default) requesting that the default be set aside and that his Petition be reinstated. A hearing on the motion was set for October 29, 2019. As factual support for the motion, husband wrote: "I received the letter/notice of conference and/or hearing on August 25, 2019. Said letter received from [wife's] attorney was postmarked August 22nd, 2019, while the conference/hearing was set for August 23rd, 2019 @ 8:30 a[.]m[.], thus resulting in a no chance, not possible or realistic and[/]or not reasonable notice time."
Husband failed to appear at the October 29, 2019, hearing. That same day, the trial court issued a minute order bearing the notation: "The Request to set aside the default is dropped as the moving party did not appear. Judgment to be submitted prior to the continued CMC hearing."
On December 20, 2019, husband filed a second Request for Order [to] Set Aside Default (Second Motion to Set Aside Default) seeking the same relief as the First Motion to Set Aside Default. As factual support for the Second Motion to Set Aside Default, husband gave a nearly identical explanation as he did for the first motion: "I received the letter/notice of conference and/or hearing on August 25, 2019. Said letter from [wife's] attorney was postmarked August 22, 2019, while the conference/hearing was set for August 23, 2019 @ 8:30 a[.]m. Thus resulting in myself having no chance of attending said hearing. Not possible, realistic, not reasonable[.]"
On January 23, 2020, wife filed a Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration. The declaration indicated that, on said date, wife served husband with, among other things, her Preliminary Declaration of Disclosure, a current Income and Expense Declaration, and a completed Schedule of Assets and Debts or Community and Separate Property Declarations.
On February 4, 2020, the hearing on husband's Second Motion to Set Aside Default went forward. Husband, wife, and wife's attorney appeared. That same day, the trial court issued its Findings and Order After Hearing in which it denied the Second Motion to Set Aside Default, indicating "[Husband] did not meet his burden regarding his request to set-aside of [sic] the default."
On February 19, 2020, husband, having now retained counsel to represent him in the matter, filed a Request for Order [for] Reconsideration of Motion to Set Aside Default[, ] Set Aside Default Under CCP Section 473[, and] Vacate Default on Court's Own Motion (Motion for Reconsideration) seeking the same relief as the First and Second Motion(s) to Set Aside Default. A hearing on the Motion for Reconsideration was scheduled for April 6, 2020, and subsequently rescheduled to May 20, 2020.
In his written Motion for Reconsideration, husband provided a more thorough factual basis for the relief he was requesting. As background, he indicated he had developed significant psychological disorders four years prior, had suffered a complete breakdown around the time he and his wife separated, and was eventually hospitalized on three occasions (September 12, 2017, December 19, 2017, and January 18, 2018) for mental issues and attempted suicide. Upon his release, husband found he was "unable to work and unable to cope." Under the care of a physician, he was prescribed various medications, but most were ineffective. He indicated he "still ha[d] major depression, anxiety, mood swings and major memory issues." He included a letter from his doctor indicating past treatment for "Bipolar, panic attacks and Depression."
Husband stated he did not realize there was a CMC on May 3, 2019. He also stated he did not recall receiving the CMC/OSC Order. He claims he first became aware of the CMC/OSC hearing scheduled for August 23, 2019, two days after the hearing when he received wife's related CMC statement.
Husband claimed he had no recollection of filing the First Motion to Set Aside Default which was ultimately "dropped" by the trial court due to his failure to appear at the hearing. He stated that, at the time of the hearing, he was experiencing "severe anxiety issues," and that his memory problems were "exacerbated" by his medications. He was not sure whether he was "too fearful to go" to the hearing or if he "had just forgotten."
Husband noted that "The [check]box [in the CMC/OSC Order] threatening to strike the Petition and to allow the Response to become the [p]etition and enter [his d]efault was not checked." He also stated that "no Schedules of Assets and Debts or Income and Expense Declaration had been served by [wife] until January 20, 2020, five months after [his] Default was entered." He contended that, without such declaration and disclosure, the "matter could not proceed anyway."
On March 27, 2020, wife filed a Declaration for Default or Uncontested Dissolution (Default Declaration) and a Community and Quasi-Community Property Declaration which included value estimates for assets and debts to be divided amongst, and distributed to, the parties. The Default Declaration indicated husband and wife had not reached a written agreement or stipulated judgment and that wife was not requesting relief not demanded in her Response.
The Judgment was entered on March 27, 2020. It effectuated a division of the parties' assets and directed the parties to prepare a Qualified Domestic Relations Order (QDRO) to divide wife's retirement. Notice of entry of the Judgment was served on March 27, 2020.
On May 13, 2020, wife filed a Responsive Declaration to [the Motion for Reconsideration] (Responsive Declaration) objecting to the relief requested. Wife argued, among other things, that the Motion for Reconsideration was untimely, that husband had knowledge of the first CMC by virtue of the fact he caused notice of the CMC to be served upon her, and that the record reflects he was served with the CMC/OSC Order which, due to husband's subsequent failure to appear, resulted in the Sanctions Order. Wife noted husband's repeated failure to appear at hearings and contended husband took "no action[ ] to move the case forward until almost one year after the initial Petition was served."
In her Responsive Declaration, wife further noted she served her "disclosure documents" on husband prior to the hearing on the Second Motion to Set Aside. She expressed frustration over husband's refusal to discuss a division of the parties' property and his continued attempts at reconciliation noting she is "entitled to have [her] divorce final and move forward." Wife also requested sanctions pursuant to subdivision (d) of Code of Civil Procedure section 1008.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
On May 20, 2020, the hearing on husband's Motion for Reconsideration went forward. All parties and their counsel were present. The trial court denied the Motion for Reconsideration and denied wife's request for sanctions.
On May 26, 2020, husband timely appealed the Judgment. Husband elected to proceed on appeal without a reporter's transcript.
On March 8, 2021, this court notified wife of her failure to timely file a respondent's brief and indicated that, unless such a brief was filed or good cause for relief shown in 15 days, the matter may be decided upon the record and appellant's opening brief. No respondent's brief was filed.
DISCUSSION
As a preliminary matter, we note that wife's failure to file a respondent's brief is not considered a default or an admission of error. (In re Marriage of Riddle (2005) 125 CalApp.4th 1075, 1078, fn. 1) Under such circumstances, we "decide the appeal on the record, the opening brief, and any oral argument by [husband]" to determine if prejudicial error occurred. (Cal. Rules of Court, Rule 8.220(a)(2); In re Bryce C. (1995) 12 Cal.4th 226, 232-233.)
I. Standard of Review
"This court applies the substantial evidence test to the trial court's resolution of pure questions of fact and independently reviews questions of law .… With respect to mixed questions of law and fact, this court reviews the trial court's application of law to fact under a deferential clearly erroneous standard if the inquiry is predominantly factual." (In re Collins (2001) 86 Cal.App.4th 1176, 1181.) "But when the application of law to fact is predominantly legal, such as when it implicates constitutional rights and the exercise of judgment about the values underlying legal principles, this court's review is de novo." (Ibid.)
Husband raises due process concerns. On this issue, the facts are not disputed. The content of the CMC/OSC Order, Sanctions Order, and Judgment are matters of record. Service upon husband is undisputed. Thus, the only question is whether husband's due process rights were violated as a matter of law. (See, e.g., In re Marriage of Heikes (1995) 10 Cal.4th 1211, 1217, 1225 [division of marital property requires due process of law].) Accordingly, our review is de novo.
Husband has never challenged-either before the trial court or on appeal-the validity of service of any of the relevant orders and Judgment in this matter. Although he did contend in his First and Second Motion(s) to Set Aside Default that he did not receive wife's August 22, 2019 CMC statement until August 25, 2019-two days post-hearing, and in his Motion for Reconsideration that he did not remember receiving the CMC/OSC Order, the record on appeal reveals the CMC/OSC Order was mailed by the clerk of court to husband's address of record on May 3, 2019. "[D]ue process 'does not require actual receipt or actual knowledge; notice by mail or other means reasonably calculated to provide actual notice is sufficient.'" (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 212.) "Moreover, … proof that a letter was properly mailed 'creates a presumption that it reached its destination in usual time and was actually received by the person to whom it was addressed.'" (Id. at p. 212; Evid. Code § 641.) Husband has not attempted to rebut the presumption.
II. Husband's Due Process Rights Were Violated by the Sanctions Order
Husband claims his due process rights were violated because the CMC/OSC Order did not adequately apprise him of the potential sanctions he faced if he failed to appear at the CMC/OSC hearing. We agree.
A. Scope and Timeliness of Appeal
We begin our analysis by noting that husband's appeal fairly challenges not only the Judgment, but also the Sanctions Order that led to the Judgment and the orders denying relief from the default. "[A] notice of appeal must be construed liberally to encompass an order not expressly mentioned only when it is' "reasonably clear"' the appellant intended to appeal from the unmentioned order." (In re J.F. (2019) 39 Cal.App.5th 70, 78, citing In re Joshua S. (2007) 41 Cal.4th 261, 272.)
It also bears noting that, except for entry of the Judgment, none of the actions and orders of the trial court now at issue were separately appealable. "An order granting terminating sanctions is not appealable, and the losing party must await the entry of the order of dismissal or judgment unless the terminating order is inextricably intertwined with another, appealable order." (Nickell v. Matlock (2012) 206 Cal.App.4th 934, 940.) Consequently, husband could not have challenged the Sanctions Order prior to entry of the Judgment. Similarly, no appeal lies from mere entry of a default, from the denial of a motion to set aside a default, or from the denial of a related motion for reconsideration. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960 [no appeal from default or denial of motion to set aside default]; Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 43-44 [no appeal from denial of motion for reconsideration of non-appealable order]; § 1008, subd. (g).) Accordingly, husband was required to await the Judgment before raising these issues on appeal. Because his notice of appeal of the Judgment was timely, husband preserved his right to appeal the Sanctions Order and the trial court's denial of his various motions seeking to set aside the default.
Husband filed his notice of appeal within 60 days after the clerk of court served notice of entry of the Judgment. His appeal is timely. (Cal. Rules of Court, Rule 8.104(a)(1)(A).)
B. Due Process
The Fourteenth Amendment to the U.S. Constitution provides, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law." (U.S. Const., 14th Amend., § 1.) The California Constitution provides, in relevant part: "A person may not be deprived of life, liberty, or property without due process of law." (Cal. Const., art. I, § 7; id. art. I, § 15 [same].) Due process protections are required "in any situation where the state would deprive an individual of property .…" (Annex British Cars, Inc. v. Parker-Rhodes (1988) 198 Cal.App.3d 788, 792.)
"Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act." (Lambert v. People of the State of California (1957) 355 U.S. 225, 228.)
"Adequate notice prior to imposition of sanctions is mandated … by the due process clauses of both the state and federal Constitutions." (O'Brien v. Cseh (1983) 148 Cal.App.3d 957, 961; Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 976.)" '[The] adequacy of notice should be determined on a case-by-case basis to satisfy basic due process requirements.'" (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.) "Elementary notions of fairness … dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." (BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 574, italics added; De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912.)
The CMC/OSC Order was contained in a form of order used regularly by the trial court in documenting the results of a CMC, OSC, or other judicial proceeding. Much of the verbiage is pre-printed and whether specific verbiage applies in any given situation is indicated by checking the box preceding it. The CMC/OSC Order thus stated:
"Order to Show Cause is issued to Petitioner to show cause on: 08/23/2019 at 8:30 AM in department 14 as to why the Court should not impose monetary sanctions against you and/or dismiss the case … for Failure to Attend Case Management Conference/OSC hearing."
The ellipsis in the above quote is used in place of an unmarked checkbox followed by the verbiage "Or strike your Response/Petition, allow the Response to become the Petition, and enter your Default[.]" Thus, although husband was notified that he might be fined or the case dismissed, he was not notified that a default might be entered as to the Response which would then operate as a petition. In fact, the omission of a mark in that checkbox could reasonably be viewed as an indication that the trial court would not issue such a sanction.
Had the trial court limited its choice of sanctions to those identified in the CMC/OSC order, we would have little difficulty in affirming the court's Sanctions Order. However, it did not. As a result, the notice was constitutionally inadequate.
We recognize that the trial court indicated it was imposing sanctions for husband's failure to appear at the August 23, 2019, CMC/OSC hearing rather than for failing to appear at the first CMC hearing. The distinction does not make a difference. Husband was not given notice of this potential sanction. The possibility of this sanction being imposed was not contained in the boilerplate warnings included in the form order used by the court to draft its orders nor in the specific warnings contained in the CMC/OSC Order.
The August 23, 2019, Sanctions Order reads, in part: "Court sanctions petitioner for failing to appear today, Petition is stricken and court enters default against petitioner. Respondent to submit judgment."
III. Husband's Due Process Rights Were Violated Upon Entry of the Default Judgment
There is an additional reason why husband's due process rights were violated." 'It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. [Citations.] California satisfies these due process requirements in default cases through section 580.'" (In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1302 (Eustice).) Section 580 reads, in relevant part:
"(a) The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles." (§ 580, subd. (a).)
"The limitation on default judgments under section 580 applies to marital dissolution proceedings. That section 'requires that a default judgment in a dissolution action which is greater than the amount specifically demanded in the petition be considered void as beyond the court's jurisdiction….'" (Eustice, supra, 242 Cal.App.4th at p. 1303.) "Reasoning that a default judgment that exceeds the demand would effectively deny a fair hearing to the defaulting party, the Courts of Appeal have consistently read the code to mean that a default judgment greater than the amount specifically demanded is void .…" (Greenup v. Rodman (1986) 42 Cal.3d 822, 826 (Greenup) [endorsing the reading of section 580 by Courts of Appeal].) The limitation on relief that may be awarded in a default of judgment under section 580 applies whether the default is due to a failure to answer or due to the striking of an answer. (Greenup, at p. 828.)
Here, the Response did not request a division of community or quasi-community property and did not request a confirmation of property as separate property. The checkboxes that would have allowed such relief were not checked. "The only issues that may be litigated in a default proceeding are those presented by the complaint. As to other issues, those are not and cannot be litigated or adjudicated." (Burtnett v. King (1949) 33 Cal.2d 805, 810.) Accordingly, the trial court could not enter a judgment purporting to effectuate a division of that property.
Because the Sanctions Order and Judgment violated husband's due process rights and because the Judgment is rendered void, we need not address whether denial of husband's Motion(s) to Set Aside Default Judgment and Motion for Reconsideration constituted an abuse of discretion.
DISPOSITION
The Sanctions Order and Judgment are reversed, and husband's Petition is reinstated. In the interests of justice, each party shall bear their own costs on appeal. (Cal. Rules of Court, Rule 8.278(a)(5).) The case is remanded to the trial court for further proceedings consistent with this opinion.
WE CONCUR: POOCHIGIAN, ACTING P. J., SMITH, J.