Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV071213
McAdams, J.
Appellants Jovan and Vesna Jovanovic (the Jovanovics) challenge an order denying their motion to set aside a judgment after a contested trial in an unlawful detainer action. For the reasons stated below, we affirm.
Facts and Procedural History
Facts
Respondent Robert Jackson owns real property in San Martin, California. On or about July 30, 2005, Jackson rented a portion of the property, including a 2,500 square-foot commercial building and an acre of land, to Jovan Jovanovic for $3,700 per month. Jovanovic was also responsible to pay for the utilities. Shortly after the parties entered into their agreement, the Jovanovics moved a “fifth wheel” onto the property and lived in the fifth wheel. The Jovanovics paid a $500 security deposit; they did not pay anything further on the rental agreement.
Unlawful Detainer Action
On September 8, 2006, Jackson served the Jovanovics with a three-day notice to quit. On September 15, 2006, Jackson filed the instant unlawful detainer action against the Jovanovics. The unlawful detainer action was limited to the commercial property and did not cover the fifth wheel. The case was scheduled for trial on November 16, 2006.
The record in this case is sparse. On our own motion we take judicial notice of the filing date and the trial date in the unlawful detainer action from the superior court’s on-line public record docket information in this case.
Breach of Contract Action & Motion to Consolidate
On November 14, 2006, the Jovanovics filed a breach of contract action against Jackson, in which they alleged that Jackson had breached an oral agreement to sell them a portion of the property at issue in this case. On November 15, 2006, the Jovanovics filed a motion to consolidate the unlawful detainer and breach of contract actions. Jackson filed opposition to the motion the following day. The trial date in the unlawful detainer action was continued one day to November 17, 2006, the date set for the hearing on the motion to consolidate. We presume the motion to consolidate was denied, since the trial of the unlawful detainer action went forward on November 17, 2006.
On our own motion, we take judicial notice of the on-line public record information in the breach of contract action, Santa Clara County Superior Court Case No. CV074710, which is the subject of a separate appeal in Case No. H031680. We also take judicial notice of portions of the appellate record in that case, to the extent that they help us understand what happened in this case.
Trial of Unlawful Detainer Action
Jackson was represented by counsel and testified at the unlawful detainer trial. The Jovanovics did not attend the trial, but were represented by their counsel, Tina Triano. Triano cross-examined Jackson, made offers of proof in response to Jackson’s objections, and argued that there was no landlord-tenant relationship between the parties. At one point, she told the court that Jovan Jovanovic was on his way and would arrive shortly. By the time Jackson rested his case, Jovanovic had not arrived.
The court entered judgment in favor of Jackson and awarded him possession of the property, forfeiture of the rental agreement, and $50,128.80 in damages for unpaid rent plus $460 in costs. At the end of the trial, Jackson’s counsel prepared a judgment, showed it to Triano, and presented it to the court for signature and filing.
Motion for Relief From Judgment
On May 14, 2007, almost six months after entry of judgment, the Jovanovics filed a motion for relief from judgment pursuant to both the mandatory and discretionary provisions of Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)) on the grounds that the judgment was entered as a result of their counsel’s mistake, inadvertence, surprise, or neglect. The papers in support of the motion included a memorandum of points and authorities and the declarations of Triano, Jeffrey Mentzos (Triano’s husband and law partner), and Jovan Jovanovic. Jackson opposed the motion and the Jovanovics filed a reply. The only documents in the record relating to the motion are copies of the notice of motion, the court’s order denying the motion, and the notice of entry of order. Although the reporter’s transcript indicates that Triano filed an attorney affidavit of fault, a copy of the affidavit is not in the record on appeal.
Triano’s partner Kurt Miller argued the motion. He told the court that Triano thought the two cases were going to be consolidated and that it was her fault the Jovanovics did not appear at trial. He stated that Triano did not know the court’s findings in the unlawful detainer action would be res judicata or have collateral estoppel effect in the breach of contract case, that the Jovanovics vacated the premises on November 22, 2006, and that the Jovanovics were no longer interested in possessing the property.
The Jovanovics’ reply brief contains additional facts regarding their absence from the trial. These facts are not supported by citations to the record and there is no evidence in the appellate record supporting these facts. One of the fundamental rules of appellate review is that an appealed judgment or order is presumed to be correct. “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness. For this purpose, he or she must provide this court with an adequate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) We shall therefore disregard any factual statements in the briefs that are not supported by the record.
The court denied the motion on the grounds that it was untimely. The court stated that since this is an unlawful detainer case, Triano should have filed the motion within days of the judgment, before Jackson had an opportunity to execute on the judgment and while the Jovanovics were still in possession.
Discussion
The Jovanovics argue that the court erred in denying the motion because (1) the motion was timely, since it was filed within the six month time period allowed under the statute, and (2) relief was mandatory since Triano filed an attorney affidavit of fault. We begin by addressing the latter contention.
Mandatory Relief Under Section 473(b)
Section 473(b) empowers a court to grant relief from attorney error in appropriate cases. The statute contains both mandatory and discretionary provisions. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1415 (Huh).)
The mandatory provision states: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk …, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473(b), italics added.)
Procedurally, an application for mandatory relief “ ‘must be filed within six months of entry of judgment’ ” and must “ ‘be in proper form, and be accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ ” (Huh, supra, 158 Cal.App.4th at p. 1414.) “Furthermore, the defaulting party must submit sufficient admissible evidence that the default was actually caused by the attorney’s error. [Citation.] ‘If the prerequisites for the application of the mandatory relief provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ ” (Ibid.)
In providing for mandatory relief in cases where the attorney files an affidavit of fault, “the Legislature created a narrow exception to the discretionary relief provision for default judgments and dismissals.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).) “By its express terms, the mandatory relief provision applies only to defaults, default judgments, and dismissals.” (Huh, supra, 158 Cal.App.4th at p. 1415.)
But some courts have construed the provision to reach other circumstances deemed to be procedural equivalents of defaults, default judgments and dismissals. (See, e.g., In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1443 [relief granted in dissolution case where neither the party nor her attorney appeared for trial]; Avila v. Chua (1997) 57 Cal.App.4th 860 [summary judgment].) “ ‘The rationale of these cases is that, where there is no hearing on the merits, an attorney’s neglect should not prevent the party from having his or her day in court.’ ” (In re Marriage of Hock & Gordon-Hock, at p. 1443.) “Other courts have rejected that rationale, characterizing such decisions as ‘understandable, yet ultimately misguided quests to salvage cases lost by inept attorneys,’ which ‘have applied the mandatory provision far beyond the limited confines the Legislature intended.’ ” (Huh, supra, 158 Cal.App.4th at p. 1415, citing English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 148 (English).)
The plaintiff in English opposed a defense summary judgment motion based solely on a requested continuance to conduct discovery. (English, supra, 94 Cal.App.4th at pp. 133-134.) After refusing to continue the hearing, the trial court granted summary judgment. (Id. at p. 134.) The plaintiff sought relief under the mandatory relief provision of section 473(b) based on her attorney’s declaration of fault for failing to oppose summary judgment on the merits. (Ibid.) The court concluded that the mandatory relief provision did not apply, reasoning that “a summary judgment is neither a ‘default,’ nor a ‘default judgment,’ nor a ‘dismissal.’ ” (Id. at p. 143.) The court explained that a summary judgment is not a default under the mandatory provision, because the statute refers only to “a ‘default’ entered by the clerk (or the court) when a defendant fails to answer a complaint, not to every ‘omission’ or ‘failure’ in the course of an action….” (Ibid., fn. omitted.) A summary judgment likewise is not a default judgment, which “is a judgment entered after the defendant has failed to answer the complaint and the defendant’s default has been entered.” (Ibid.) Finally, a summary judgment is not a dismissal, which is defined as “ ‘the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by a court.’ ” (Id. at p. 144.) A defense summary judgment cannot be considered a dismissal since it “does not constitute a removal of the plaintiff’s application for judicial relief, but rather an adjudication … based on the undisputed facts before the court.” (Id. at p. 149.)
The court decried other courts’ “expansive interpretation of the statute under which the dispositive test, largely detached from the language of the statute itself, is whether the ruling from which relief is sought was ‘in the nature of a default’ and whether the party seeking relief ‘had her day in court.’ ” (English, supra, 94 Cal.App.4th at pp. 147-148.) English deferred to the express dictates of the mandatory provision, saying no “court is at liberty to substitute its judgment for that of the Legislature in determining how far the statute should reach, no matter what good intentions may urge such an action.” (Id. at p. 148.)
In Huh, we agreed with the analysis in English and concluded that the mandatory provision in section 473(b) “ ‘applies only to relief sought in response to defaults, default judgments or dismissals’ ” and that summary judgments are not within the purview of the mandatory provision. (Huh, supra, 158 Cal.App.4th at p. 1418; accord, Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 294.) In Hossain v. Hossain (2007) 157 Cal.App.4th 454, 456, the court concluded that the mandatory provision “does not apply to an attorney’s failure to timely file opposition and a cross-motion to a motion to enforce a settlement” and in Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321, the court concluded that the mandatory provision could not be relied on to set aside a judgment where neither the defendants nor the defense attorney appeared for trial.
In this case, Triano appeared for the trial of the unlawful detainer action. She participated in the trial by cross-examining Jackson, responding to objections with offers of proof, and arguing that the parties did not have a landlord-tenant relationship. There is no evidence of a clerk’s entry of default; the fact that Triano participated in the trial indicates that the Jovanovics were not in default. The judgment entered here was not a default judgment as defined in English; it was a judgment after a contested trial in which the Jovanovics appeared through their counsel and had an opportunity to present their case. For these reasons, we conclude that the judgment at issue here was not subject to the mandatory relief provision in section 473(b).
Timeliness of Motion Under Discretionary Relief Provision
The discretionary provision in section 473(b) provides: “The 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. Application 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, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (§ 473(b), italics added.)
In contrast to the mandatory provision in section 473(b), “discretionary relief under the statute is not limited to defaults, default judgments, and dismissals….” (English, supra, 94 Cal.App.4th at p. 149.) “The discretionary relief provision of section 473, subdivision (b) applies to any ‘judgment, dismissal, order, or other proceeding.’ ” (Zamora, supra, 28 Cal.4th at p. 254.) Thus, for example, “the failure of counsel to meet a procedural deadline” is “a proper subject for section 473 relief.” (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1193.) So, too, is “failure to timely respond to [a] request for admissions.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 (Elston), superceded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64-65.)
“In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default.” (Elston, supra, 38 Cal.3d at p. 234, italics added.) A party seeking discretionary relief on the ground of attorney error must demonstrate that the error was excusable, since the attorney’s negligence is imputed to the client. (Zamora, supra, 28 Cal.4th at p. 258.) “The inexcusable neglect of an attorney is usually not a proper basis for granting the client’s motion under section 473.” (Elston, supra, 38 Cal.3d at p. 236, fn. 6.) “Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276; see Zamora, at p. 258.)
Generally speaking, the trial court’s ruling on a discretionary motion for relief is reviewed for an abuse of discretion. (Zamora, supra, 28 Cal.4th at p. 257.) But “because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].” (Elston, supra, 38 Cal.3d at p. 233; Zamora, at p. 256.) For that reason, “a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.” (Elston, at p. 233.)
The Jovanovics argue that their application for relief was timely because it was filed within six months of entry of judgment. The court entered judgment on November 17, 2006, and the Jovanovics filed their motion for relief on May 14, 2007, just three days short of six months after entry of judgment. But the statute contains a two-part deadline. The application for relief must be filed “within a reasonable time” and “in no case exceeding six months, after the judgment … was taken.” (§ 473(b).) Thus, the question becomes whether the court abused its discretion when it concluded that the motion was not filed within a reasonable time, even though it was filed within six months of entry of judgment.
We cannot say the trial court abused its discretion, since the motion involved setting aside the judgment in an unlawful detainer case. Unlawful detainer is a summary remedy to obtain possession of property. The time periods for pleading and service of process, as well as setting the matter for trial, are shorter than in ordinary civil actions. The action is entitled to priority on the trial calendar and the law provides for expeditious enforcement of a judgment of possession. (12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property, § 703, p. 824-825; Code of Civ. Proc., §§ 1161, 1166, 1167, 1167.3, 1170.5.) As the trial court observed, the Jovanovics had vacated the premises more than six months before the hearing on the motion and their attorney told the court they were no longer interested in possession. In addition, as the court observed, the attorney’s error, which resulted in the Jovanovics’ failure to appear at trial, was known to Triano on the date of the trial; it did not become evident at some later time. Under these circumstances, we cannot say the court abused its discretion in finding that the motion was not filed “within a reasonable time” and was therefore untimely.
Even if the application was timely, since the record does not contain copies of the affidavit of fault or the other declarations and papers in support of the motion, we cannot ascertain whether the Jovanovics demonstrated sufficient excusable neglect to warrant setting aside the judgment. As we noted at footnote 3, on appeal the Jovanovics have the burden of overcoming the presumption of correctness. For this purpose, they must provide this court with an adequate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellants. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.)
For all these reasons, we conclude the court did not abuse its discretion when it denied the Jovanovics’ motion to set aside the judgment.
Disposition
The posttrial order denying the motion to set aside the judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.