Opinion
D080011 D080348 D080687
01-25-2023
JEFFREY MYERS et al., Plaintiffs and Respondents, v. DALE SUNDBY et al., as Trustees, etc., Defendants and Appellants. JEFFREY MYERS et al., Plaintiffs and Respondents, v. DALE SUNDBY et al., Defendants and Appellants.
Edith Littlefield Sundby and Dale Sundby, in pro. per., for Defendants and Appellants. Lewis R. Landau for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEALS from a default judgment and orders of the Superior Court of San Diego County No. 37-2021-00041147-CU-UD-CTL, James A. Mangione, Joel R. Wohlfeil, Judges. Affirmed.
Edith Littlefield Sundby and Dale Sundby, in pro. per., for Defendants and Appellants.
Lewis R. Landau for Plaintiffs and Respondents.
O'ROURKE, J.
These three appeals arise out of an unlawful detainer action filed by Jeffrey Myers and Kathleen Myers against Edith Littlefield Sundby and Dale Sundby. In appeal number D080011, the Sundbys, in their capacity as cotrustees of the Sundby Declaration of Trust, Trust No. 1989-1, dated January 26, 1989 (the Sundby Trust), appeal two orders entered by the Superior Court on January 14, 2022, denying (1) Edith's motion to vacate her default, and (2) Dale's motion to join as a defendant in the case. In appeal number D080348, Edith, in her capacity as a third party claimant, appeals a March 21 order denying her third party claim to right to possession under Code of Civil Procedure section 1174.3. In appeal number D080687, Dale challenges a default judgment entered against him on May 16, and a June 10 order denying his motion to vacate the clerk's entry of default.
We sometimes refer to Edith Littlefield Sundby and Dale Sundby by their first names for clarity.
Undesignated date references are to 2022.
Undesignated statutory references are to the Code of Civil Procedure.
On our own motion, we consolidated these appeals for purposes of oral argument and disposition. We first provide a general factual and procedural background. We then address each appeal separately because the Sundbys do not appear in the same capacity in each appeal. As we shall explain, we find no error and affirm the default judgment and orders.
GENERAL FACTUAL AND PROCEDURAL BACKGROUND
The Sundbys, as trustees of the Sundby Trust, are the former owners of two parcels of real estate located in La Jolla, California (the property). The Sundby Trust defaulted in the payment of a promissory note secured by a deed of trust on the property. The owner and holder of the promissory note and deed of trust recorded a notice of default, held a foreclosure sale, and sold the property to the Myers. On September 16, 2021, the Myers served a written three-day notice to quit due to foreclosure and a 90-day notice to quit due to foreclosure, demanding possession of the property within three days after service on the Sundbys.
The Myers filed a verified unlawful detainer complaint against the Sundbys, in their capacity as co-trustees of the Sundby Trust, after the Sundbys refused to deliver possession of the property. After Edith failed to answer the complaint, a default was entered on November 5, 2021. On November 18, 2021 the trial court clerk entered a default judgment against Edith in her capacity as a trustee of the Sundby Trust.
I. APPEAL NO. D080011
A. Additional Background
Edith filed a motion to vacate the default judgment, alleging that she was not served with the summons and complaint. Dale also filed a motion to join the action and separately to dismiss the action based on allegedly invalid three-day notice proofs of service. The Myers opposed the motions on their merits and on the ground the Sundbys were engaged in the unauthorized practice of law on behalf of the Sundby Trust.
The trial court issued a tentative ruling denying Edith's motion to vacate the default judgment without prejudice. When the case was called, counsel for the Myers appeared but no appearance was made on behalf of Edith, Dale, or the Sundby Trust. The trial court modified its tentative ruling to deny Edith's motion with prejudice. It also denied Dale's motion without comment.
B. Discussion
Edith and Dale, in their capacities as co-trustees of the Sundby Trustappeal two orders entered by the trial court on January 14, denying (1) Edith's motion to vacate her default (§ 473.5), and (2) Dale's motion to join as a defendant in the case and to dismiss the case based on invalid three-day notice proofs of service. The trial court denied Edith's motion on the ground she engaged in the unauthorized practice of law by filing her motion in propria persona on behalf of the Sundby Trust. The trial court denied Dale's motion without comment. The Myers argue that the orders should be affirmed because the Sundbys continue to engage in the unauthorized practice of law by filing their appellate briefs in propria persona on behalf of the Sundby Trust. We agree and affirm the orders.
For brevity, in part I of this opinion we refer to Edith and Dale in their respective capacities as co-trustees of the Sundby Trust as Edith and Dale or the Sundbys.
The Sundbys do not dispute that they are not licensed to practice law in California and are seeking to represent the Sundby Trust on appeal in propria persona. They also do not dispute that they are the settlors and trustees of the Sundby Trust. Citing Donkin v. Donkin (2020) 47 Cal.App.5th 469 (Donkin), Edith claims any sole beneficiary trustee may represent a trust, the number of settlors or trustees is irrelevant, and the Myers presented no evidence establishing that she is not the sole beneficiary of the Sundby Trust. As we shall explain, Edith's reliance on Donkin is misplaced.
"No person shall practice law in California unless the person is an active licensee of the State Bar." (Bus. &Prof. Code, § 6125.) Under the statute, a person who is not a licensed attorney cannot appear in court for another person. (Russell v. Dopp (1995) 36 Cal.App.4th 765, 774.) Where the facts are undisputed, we review de novo whether a person's conduct amounts to practicing law without a license. (See Hansen v. Hansen (2003) 114 Cal.App.4th 618, 622 (Hansen) [issue resolved as a matter of law on appeal].)
" 'A trust is "a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person." '" (Presta v. Tepper (2009) 179 Cal.App.4th 909, 913.) "A trust itself cannot sue or be sued. [Citation.] 'As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust's behalf. [Citations.]'" " 'A claim based on a contract entered into by a trustee in the trustee's representative capacity, . . . may be asserted against the trust by proceeding against the trustee in the trustee's representative capacity.'" (Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.)
"A revocable trust is a trust that the person who creates it, generally called the settlor, can revoke during the person's lifetime." (Estate of Giraldin (2012) 55 Cal.4th 1058, 1062, fn. omitted (Giraldin).) "When the settlor dies, the trust becomes irrevocable, and the beneficiaries' interest in the trust vests." (Ibid.) While the settlor is alive, the trustee owes a fiduciary duty to the settlor, not to the beneficiaries. (Ibid.) "Property transferred to, or held in, a revocable inter vivos trust is . . . deemed the property of the settlor" during the settlor's lifetime. (Zanelli v. McGrath (2008) 166 Cal.App.4th 615, 633.)
Fiduciaries, such as trustees, are precluded from appearing in propria persona in litigation involving third parties and must be represented by counsel. (Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548-549 (Ziegler) [nonattorney trustee may not represent the trust in an action brought to protect trust property]; Hansen, supra, 114 Cal.App.4th at p. 622 [complaint by personal representative in propria persona against third party for return of estate assets should be stricken without prejudice]; Downey v. Johnson (1968) 263 Cal.App.2d 775, 779-780 [conservator, executor, or personal representative of a decedent's estate who is not licensed to practice law may not appear in propria persona in litigation outside probate proceeding].) A limited exception to the rule that trustees are precluded from appearing in propria persons in litigation involving third parties exists for a nonattorney who is the sole trustee, settlor, and beneficiary of a revocable trust-such an individual may represent the trust in propria persona. (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519-1520 (Aulisio).) Another exception exists for a trustee appearing in propria persona in probate litigation proceedings that are not adverse to third parties. (Donkin, supra, 47 Cal.App.5th at p. 473.)
Neither exception applies to this litigation. First, the exception articulated in Donkin, supra, 47 Cal.App.5th 469 does not apply because this unlawful detainer action is not a probate litigation proceeding, and the action involves third parties who are adverse to the trustees, the Sundbys. The Sundbys failed to present evidence showing that the exception in Aulisio, supra, 230 Cal.App.4th 1516 applies. Under Ziegler, supra, 64 Cal.App.4th 545, a nonattorney trustee may not represent the trust in an action brought to protect trust property because the nonattorney trustee would be representing others. (Id. at pp. 548-549.) The question here is whether the Sundbys, as nonattorney trustees, would be representing another person if they appeared on behalf of the Sundby Trust. Reference to the trust instrument shows that the Sundbys are both settlors and trustees. Accordingly, if either Edith or Dale appeared in propria persona, each would necessarily be representing the other settlor and trustee and would therefore be engaged in the unauthorized practice of law.
Edith contends any sole beneficiary trustee can represent a trust and the trial court lacked any basis for concluding she was not the sole beneficiary of the Sundby Trust and able to represent it. The record contains an amendment to the declaration of trust pursuant to the "Revocation and amendment" clause in the original trust instrument. Edith is correct that the portion of the trust instrument in the record does not show the beneficiaries of the Sundby Trust. It was not the Myers' obligation, however, to provide this information and establish the Sundbys' ability to represent the trust. "The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence." (Evid. Code, § 550, subd. (a).) Unless Edith produced evidence that she was the sole beneficiary of the Sundby Trust, an adverse finding on that fact would have been required. Thus, she had the burden of producing evidence on that issue. (See Tradewinds Hotel v. Cochran (1990) 8 Haw.App. 256, 265 [litigant claiming to be the sole settlor, trustee, and sole beneficiary of trust not entitled to represent trust because he failed to introduce unrecorded trust document and establish his status the sole trust beneficiary].) In any event, even assuming either Edith or Dale is the sole trust beneficiary of the Sundby Trust, during their respective lives, each would necessarily be representing the other in their capacity as settlors and co-trustees. Accordingly, each individual's propria persona representation of the Sundby Trust constitutes the unauthorized practice of law. (Giraldin, supra, 55 Cal.4th at p. 1062 [while the settlor is alive, the trustee owes a fiduciary duty to the settlor, not to the beneficiaries].)
Because the Sundbys cannot represent the Sundby Trust, we decline to address the merits of their arguments and affirm the trial court's orders.
II. APPEAL NO. D080348
A. Additional Background
On March 16, Edith delivered a third party claim to right to possession under section 1174.3 (the claim) to the San Diego County Sheriff. The claim, signed by Edith, provides at paragraph 10:
"(Filing fee) To obtain a court hearing on my claim, I understand that after I present this form to the levying officer I must go to the court and pay a filing fee of $225 or file with the court 'Application for Waiver of Court Fees and Costs.' I understand that if I don't pay the filing fee or file the form for waiver of court fees within 2 court days, the court will immediately deny my claim." (Italics omitted.)
That same day, the superior court clerk docketed the claim as received from the Sheriff. Edith also filed her claim on March 18 at 6:04 p.m. through a private company called "One Legal." On March 18 at 11:48 p.m., Edith again filed her claim through One Legal. The receipt includes a "Message to the Court Clerk" stating: "Fee paid through OneLegal." Nothing in the court's register of actions shows that Edith paid the required filing fee on March 18. On March 21, the trial court denied the claim without a hearing and awarded possession of the premises to the Myers.
Under San Diego County Superior Court, General Order No. 010122 23, e-filing is allowed through multiple court approved e-filing service providers. One Legal is a court-approved e-filing service provider.
B. Discussion
Following the entry of judgment in an unlawful detainer action, individuals not named in the judgment for possession and who occupied the premises on the date on which the unlawful detainer case was filed, may object to the enforcement of the judgment against them by completing a claim of right to possession form. (§ 1174.3, subd. (a)(1).) If an occupant timely presents a completed postjudgment claim of right to possession (§ 1174.3, subd. (h)), the "claimant must follow up with one of two alternative procedures to 'perfect' the claim and thereby secure a hearing on the objection to eviction ([ ] § 1174.3(b) &(c))." (Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2022) ¶ 9:531, p. 9-194 (Rutter Guide).)
One procedure requires presenting a completed claim to the levying officer and paying the filing fee plus rent to the court. (§ 1174.3, subd. (c)(1)); see Rutter Guide, supra, at ¶ 9:532, p. 9-194.) The alternate procedure requires presenting a completed claim to the levying officer and paying the filing fee without rent to the court. (§ 1174.3, subd. (c)(2); see Rutter Guide, supra, at ¶ 9:535, p. 9-195.) Under either procedure, the claimant must pay the appropriate filing fee (unless eligible to proceed in forma pauperis) or "the claim shall be immediately deemed denied and the court shall so order." (§ 1174.3, subd. (f), italics added.) If the claim of right to possession is denied pursuant to subdivision (f), "the court shall order the levying officer to proceed with enforcement of the original writ of possession of real property as deemed amended to include the claimant, which shall be effected within a reasonable time not to exceed five days. Upon receipt of the court's order, the levying officer shall enforce the writ of possession of real property against any occupant or occupants." (§ 1174.3, subd. (g).)
In her capacity as a third party claimant, Edith appeals the March 21, order denying her claim. She contends that she properly filed her claim pursuant to section 1174.3 but that the e-filing was not entered into the court's register of actions and a judge, who was not assigned to the case, denied the claim without the statutorily required hearing. The Myers contend the trial court properly denied the claim because Edith failed to pay the $225 filing fee, her last minute purported attempt to make an e-filing through One Legal on March 18 did not result in timely payment of her filing fee, and she provided no other record reference for having timely paid her filing fee. In her reply brief, Edith argues that the Myers presented no evidence to support their argument that she failed to timely file the required filing fee. Instead, she notes that the document the Myers cite states in the Message to the Court Clerk, "Fee paid through OneLegal," and she never received a rejection notice pursuant to California Rules of Court, Rule 2.259(b).
In part II of this opinion our references to Edith are to her in her individual capacity.
All undesignated rule references are to the California Rules of Court.
As a preliminary matter, we note that attached to Edith's reply brief is her sworn declaration dated August 10 containing additional factual assertions. Because the declaration is dated after the date of the order on appeal, it constitutes postjudgment evidence under section 909. Section 909 allows appellate courts to "take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal" for the purpose of making a factual determination "contrary to or in addition to those made by the trial court."
Procedurally, rule 8.252(c)(1) addresses evidence on appeal by stating that "[a] party may move that the reviewing court take evidence." (Italics added.) It also specifies what an order granting the motion must contain and allows appellate courts to admit documentary evidence without a hearing. (Id. at (c)(2) &(3).) In other words, a party to an appeal must file a motion that complies with the general rules for motions made on appeal (see rule 8.54 [setting out rules for motions made on appeal]) in order to request that a reviewing court take new evidence.
Edith has not filed a motion requesting that this court take and admit new evidence, nor has she complied in substance with the requirements associated with the making of a motion on appeal (see rules 8.54(a)(1) [party "must serve and file a written motion stating the grounds and the relief requested and identifying any documents on which the motion is based"] and 8.54(a)(2) ["motion must be accompanied by a memorandum"]). Given the lack of compliance with these important procedural requirements, we decline to accept or consider the declaration attached to Edith's reply brief.
Even if Edith had followed the procedural rules for requesting that this court take new evidence, the circumstances under which we may receive new evidence are "very rare" and "the evidence normally must enable the Court of Appeal to affirm the judgment, not lead to a reversal." (Philippine Export &Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090.) In this case, Edith seeks admission of her declaration to reverse the trial court's March 21 order. Accordingly, it is not proper for this court to take and consider this new evidence proffered on appeal.
Turning to the merits, section 1174.3 requires that a claim of right to possession must be accompanied by the required filing fee and provides that a claim filed without the appropriate filing fee will be denied. (§ 1174.3, subds. (c) &(f).) When a claim is denied under subdivision (f) of section 1174.3, the trial court is required to order the levying officer to proceed with enforcement of the original writ of possession, as amended to include the claimant. (§ 1174.3, subd. (g).) Here, the trial court denied Edith's claim based on her failure to comply with section 1174.3; ordered the original writ of possession amended to include Edith; and ordered the levying officer to enforce the original writ of possession. The wording of the court's order creates the strong inference that it denied Edith's claim based on her failure to submit the mandatory filing fee. Accordingly, we reject her contention that the Myers "made up" the argument regarding her failure to pay the mandatory filing fee.
Edith next contends she paid the filing fee. In her reply brief, she notes that she timely filed her claim "on March 18, 2022 at 6:04 p.m., Court Transaction #21278585" and "again out of an abundance of caution the same day at 11:47 p.m., Court Transaction #21278679 . . . to add the 'Fee paid through OneLegal' message to the clerk." She asserts the Myers presented no evidence to support their position that she failed to pay the required filing fee and she never received a rejection notice from the court pursuant to rule 2.259(b).
As a general matter, "[e]xcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting." (Evid. Code, §§ 500, 550, subd. (b) ["The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact."].) Thus, Edith's contention that the Myers were required to present proof regarding nonpayment of the filing fee is inapt because it was incumbent on her to provide competent evidence that she paid the mandatory filing fee and was entitled to a hearing on her claim. (See Gintel v. Green (1958) 165 Cal.App.2d 723, 726 ["[a] party who holds the affirmative of an issue must produce evidence to prove it, and he is defeated if no evidence is given on the issue by either side"].) Her assertion that she added a message to the clerk about paying the filing fee through One Legal is insufficient proof that she paid the mandatory filing fee.
Finally, Edith's reliance on the trial court's failure to send a rejection notice is misplaced. Under rule 2.259(a)(1), "[w]hen a court receives an electronically submitted document, the court must promptly send the electronic filer confirmation of the court's receipt of the document, indicating the date and time of receipt." "If the document received by the court . . . complies with filing requirements and all required filing fees have been paid, the court must promptly send the electronic filer confirmation that the document has been filed. The filing confirmation must indicate the date and time of filing and is proof that the document was filed on the date and at the time specified." (Rule 2.259(a)(2).) "If the clerk does not file a document because it does not comply with applicable filing requirements or because the required filing fee has not been paid, the court must promptly send notice of the rejection of the document for filing to the electronic filer. The notice must state the reasons that the document was rejected for filing." (Rule 2.259(b).)
Edith claims that on March 18 at 11:47 p.m. she submitted her claim a second time with a message to the clerk that she paid the fee through One Legal. The record shows that Edith received the required rule 2.259(a)(1) confirmation at 11:48 p.m., noting that the court "received" her documents and that the documents were "[u]nder clerk review." Thereafter, nothing in the record shows that the court sent a confirmation of filing under rule 2.259(a)(2) that Edith's claim complied with the filing requirements including the payment of all required fees. Nor did the court send a rejection notice under rule 2.259(b). Where, as here, no rejection is sent and the court did not send a confirmation of filing per rule 2.259(a)(2), "there is no presumption that the court received and filed the document. The electronic filer is responsible for verifying that the court received and filed any document that the electronic filer submitted to the court electronically." (Rule 2.259(a)(4).) Rule 2.259(a)(4) unequivocally imposed upon Edith the obligation to ascertain the status of her attempted filing.
The record does not support Edith's claim that the trial court erred by denying her claim without a hearing. Accordingly, we affirm the court's March 21 order denying Edith's claim.
III. APPEAL NO. D080687
A. Introduction
Dale appeals from a default judgment entered against him on May 16, and a June 10 order denying his motion to vacate the clerk's entry of default on the ground he did not offer admissible evidence directed to his mistake, inadvertence, surprise or excusable neglect as required for relief under section 473, subdivision (b)). We affirm the default judgment and the June 10 order.
In part III of this opinion, our references to Dale are to him in his individual capacity.
B. Discussion
Dale's notice of appeal challenges the default judgment entered against him on May 16, and the June 10 order denying his motion to vacate the clerk's entry of default. He tenders a single argument addressing the default judgment and order. He contends that the April 15 notice of ruling filed and served by the Myers' counsel improperly attached the trial court's tentative ruling, not the minute order confirming the tentative ruling, and that his time to respond under section 418.10 has not expired. Accordingly, he claims the trial court erred when entering his default on April 25, the subsequent default judgment, and his motion to vacate the default.
To address Dale's arguments, we address the events that occurred in this action after the Myers' counsel filed and served the April 15 notice of ruling in conjunction with the governing statues to explain (1) that the April 15 notice of ruling started the time for Dale to respond; (2) why his response was untimely and thus why his default was properly entered; and (3) why the trial court properly denied his motion to vacate the clerk's entry of default.
1. April 15 Notice of Ruling Triggered Dale's Time to Respond
On April 15, the Myers' counsel filed a "Notice of Ruling" that attached a copy of the court's tentative ruling denying his motion to vacate the clerk's entry of default. Citing Shpiller v. Harry C's Redlands (1993) 13 Cal.App.4th 1177 (Shpiller), Dale contends the notice of ruling did not trigger his time to respond.
On June 10, the trial court rejected this argument, stating Dale's motion to vacate the default "appears to focus on the notice of ruling filed and served on April 15, . . . However, there is nothing improper about this notice, and it sufficiently imparted the required notice pursuant to . . . section 1167.4. [¶] In any event, [Dale] was present at the April 15, 2022 hearing such that he was on notice that his Motion had been denied." On appeal, Dale repeats the arguments he made to the trial court, again relying on Shpiller, supra, 13 Cal.App.4th 1177. As we shall explain, the trial court did not err in denying Dale's motion to vacate his default.
In Shpiller, supra, 13 Cal.App.4th 1177, appellant appealed from a notice of ruling announcing a dismissal. (Id. at p. 1178.) In the passage that Dale relies on, the Shpiller court noted that "[a] notice of ruling is not an appealable order; an order is a document which contains a direction by the court that a party take or refrain from action, or that certain relief is granted or not granted [citations] and which is either entered in the court's permanent minutes or signed by the judge and stamped 'filed.'" (Id. at p. 1179.) The appellate court declined to "save" the appeal by giving appellant the opportunity to file a file-stamped copy of an appealable order and dismissed the appeal. (Id. at p. 1180.) Shpiller does not stand for the proposition that a notice of ruling does not start the running of a deadline for taking action after a court rules upon a pending motion.
At the hearing on Dale's motion to vacate his default, the trial court confirmed its tentative ruling and ordered the Myers' counsel to serve notice of the ruling. Dale requested more time to file a petition for writ of mandate, which the trial court denied. Thereafter, when discussing a trial date, the Myers' counsel stated:
"[W]ith the denial of Mr. Sundby's motion, I will give him notice of the ruling. And he must appear by responding withing five days. As soon as he responds, I intend to move for summary judgment, which is why he continuously tends to not respond."
This record shows that Dale knew he was required to respond within five days of receiving the April 15 notice of ruling. Dale does not argue that the tentative ruling attached to the notice of ruling misled him in any way. The record shows that any procedural irregularity in the Myers' act of attaching the tentative ruling to their notice of ruling instead of the minute order confirming the tentative ruling did not result in a miscarriage of justice because Dale knew he was required to answer within five days. (Cal. Const., art. VI, § 13; see Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 ["the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred"].) Thus, Dale's argument that his default should have been vacated because his time to respond had not expired lacks merit.
2. Dale's Response Was Untimely
Dale moved to stay or dismiss this unlawful detainer action under subdivision (a) of section 418.10 because, among other things, a federal court had jurisdiction over the matter. After the trial court denied his motion on April 15, Dale had five days after service of written notice of entry of the order denying his motion to respond to the complaint. (§ 1167.4, subd. (b).)"No default may be entered against the defendant before expiration of his or her time to plead." (§ 418.10, subd. (d).) On April 15, the Myers' counsel filed a "Notice of Ruling" that attached a copy of the court's tentative ruling denying the motion. As we discussed above, the April 15 notice of ruling informed Dale of his time to respond.
Subdivision (a) of section 418.10 allows a defendant to "serve and file a notice of motion for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. [¶] (2) To stay or dismiss the action on the ground of inconvenient forum. [¶] (3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8."
Section 1167.4 provides: "Notwithstanding any other provision of law, in any action under this chapter: [¶] (a) Where the defendant files a notice of motion as provided for in subdivision (a) of Section 418.10, the time for making the motion shall be not less than three days nor more than seven days after the filing of the notice. [¶] (b) The service and filing of a notice of motion under subdivision (a) shall extend the defendant's time to plead until five days after service upon him of the written notice of entry of an order denying his motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 15 days." (Italics added.)
The Myers' counsel electronically served the April 15 notice of ruling, which added two additional court days to Dale's response deadline making his response due on Friday, April 22. (§ 1010.6, subd. (a)(4)(B).) Dale failed to timely respond to the complaint by Friday, April 22 and the clerk duly entered his default on Monday, April 25.
Dale appears to argue that his April 25 filing of a petition for writ of mandate with this court extended his time to respond until we ruled on the petition. (§ 418.10, subd. (c).) Dale's reliance on section 418.10 is misplaced because the timeline is different for this unlawful detainer proceeding. This proceeding is governed by the Unlawful Detainer Act (the Act, §§ 1159-1179a). Section 1177 of the Act provides that Code of Civil Procedure Part 2 (which includes section 418.10) applies to unlawful detainer proceedings under section 1159 et seq. "except as otherwise provided [by section 1159 et seq.]" The Act otherwise provides in section 1167.4 that the five day response time begins to run with the prevailing party's mailing of notice of the ruling. (§ 1167.4, subd. (b).) The Rutter Guide, supra, explains the interplay of these statutes as follows:
Subdivision (c) of section 418.10 provides: "If the motion is denied by the trial court, the defendant, within 10 days after service upon him or her of a written notice of entry of an order of the court denying his or her motion . . . and before pleading, may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. The defendant shall file or enter his or her responsive pleading in the trial court within the time prescribed by subdivision (b) unless, on or before the last day of the defendant's time to plead, he or she serves upon the adverse party and files with the trial court a notice that he or she has petitioned for a writ of mandate. The service and filing of the notice shall extend the defendant's time to plead until 10 days after service upon him or her of a written notice of the final judgment in the mandate proceeding. The time to plead may for good cause shown be extended by the trial court for an additional period not exceeding 20 days." (Italics added.)
"Defendant's option to petition for writ of mandate: Denial of a motion to quash is reviewable by immediate petition for writ of mandate. In unlawful detainers (or forcible entry/detainer actions), the writ petition must be filed on or before the last date defendant has to plead-i.e., within five days of service of notice of denial of the motion (subject to a maximum 15-day extension for good cause shown). [CCP § 1167.4(b).]" (Rutter Guide, supra, ¶ 8:177, p. 8-84.)
To be timely, Dale needed to file his notice of filing of petition for writ of mandate as required by subdivision (c) of section 418.10 (requiring notice be filed in the trial court "on or before the last day of the defendant's time to plead"). Dale's last day to respond was April 22 and he untimely filed his petition for writ of mandate on April 25. Since Dale did not comply with the requirement of subdivision (c) of section 418.10 and file his notice of filing a petition for writ of mandate before his last day to plead (April 22), the trial court properly entered his default on April 25.
3. Motion to Vacate Clerk's Entry of Default Properly Denied
Section 473, subdivision (b) provides in part: "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." This provision "applies to any 'judgment, dismissal, order, or other proceeding.'" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254.) The moving party bears the burden of establishing that he or she is entitled to relief under section 473, subdivision (b) by a preponderance of the evidence. (Luz v. Lopes (1960) 55 Cal.2d 54, 62.)
On May 16, Dale moved to vacate entry of his default on the ground he was never served with the notice of ruling governing his time to respond. As detailed in part III.B.1, ante, we rejected this argument. The Myers opposed the motion on the ground Dale offered no evidence that his default was taken through mistake, inadvertence, surprise, or excusable neglect as required by subdivision (b) of section 473. On June 10, the trial court denied his motion, stating, "the short declaration attached to this Motion does not address Defendant's mistake, inadvertence, surprise or excusable neglect."
In his opening brief, Dale failed to address the merits of the trial court's June 10 ruling denying his motion to vacate the clerk's entry of default on the ground he failed to show mistake, inadvertence, surprise, or excusable neglect. Accordingly, he failed to show entitlement to relief and we affirm the June 10 order denying his motion to vacate entry of his default. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [points not supported with reasoned argument and citations to authority may be treated as forfeited]; Cal. Rules of Court, rule 8.204(a)(1)(B), [each brief must state each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority].) Because the trial court properly denied Dale's motion to vacate his default, we affirm the default judgment entered against him on May 16.
DISPOSITION
The January 14, 2022 orders denying Edith's motion, in her capacity as a trustee of the Sundby Trust, to vacate her default; and Dale's motion, in his capacity as a trustee of the Sundby Trust, to join as a defendant are affirmed.
The March 21, 2022 order denying Edith's claim of right to possession is affirmed.
We also affirm the May 16, 2022 default judgment against Dale and the June 10, 2022 order denying Dale's motion to vacate his default.
Respondents are entitled to their costs on appeal.
WE CONCUR: HUFFMAN, Acting P.J. DATO, J.