Opinion
F073777
02-07-2020
MADHU SAMEER, Plaintiff and Appellant, v. SAMEER KHERA, Defendant and Respondent.
Madhu Sameer, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14CECG03660)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge. Madhu Sameer, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
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Appellant Madhu Sameer sued her ex-husband for wrongs allegedly committed during their marital dissolution and child support proceedings. Her complaint contained causes of action for concealment and deceit, malicious prosecution and defense, breach of fiduciary relationship, intentional and negligent infliction of emotional distress, and conspiring with his attorneys to hide income and assets relevant to determining child support. Ex-husband filed an anti-SLAPP motion, which the trial court granted. Madhu filed this appeal.
For clarity and consistency with earlier opinions, we refer to plaintiff Madhu Sameer by her first name and to defendant Sameer Khera as ex-husband.
The acronym "SLAPP" stands for strategic lawsuit against public participation. An anti-SLAPP motion is the special motion to strike authorized by Code of Civil Procedure section 425.16, California's anti-SLAPP statute. Unlabeled statutory references are to the Code of Civil Procedure.
As background, we note Madhu also sued ex-husband's lawyers, alleging they aided and abetted ex-husband's illegal activity during the marital dissolution and child support proceedings. The lawyers filed and won anti-SLAPP motions that predated ex-husband's motion. Madhu appealed those orders and this court affirmed the orders in favor of the ex-husband's lawyers. (Sameer v. Benett (Jan. 11, 2019, F071888) [nonpub. opn.].) We concluded the lawyers' alleged misconduct and crimes during the litigation constituted protected activity for purposes of the anti-SLAPP statute. We also concluded Madhu had failed to establish a probability of prevailing on her claims because some of her causes of action were not recognized under California law, and the litigation privilege codified in Civil Code section 47, subdivision (b) protected the lawyers' conduct.
In this appeal, we conclude Madhu's notice of appeal was not timely as to the order granting ex-husband's anti-SLAPP motion and the subsequent order granting his motion for attorney fees. The untimeliness deprives this court of jurisdiction, and we have no authority to create an equitable exception for Madhu.
In contrast, the appeal is timely as to the trial court's order denying her motions for relief under section 473, subdivision (b) and its order denying her motion for reconsideration. With respect to the motions for relief under subdivision (b) of section 473, we conclude the trial court did not err when it determined Madhu's conduct did not constitute excusable neglect. Also, the court properly denied her motion for reconsideration on the ground the motion was not based on new or different information as required by section 1008, subdivision (a).
We therefore affirm the trial court's orders.
FACTS
Madhu and ex-husband were married in January 1986, had three children (born 1989, 1998 and 1999), and separated in 2003. In October 2003, ex-husband filed a marriage dissolution proceeding in Santa Clara Superior Court. The case was assigned No. 103FL116302. In December 2003 and February 2004, that court issued orders addressing child support.
On February 15, 2006, pursuant to a status-only judgment filed in Santa Clara Superior Court, the marriage of Madhu and ex-husband ended. Remaining issues included division of community property, child support, spousal support, and child custody and visitation.
Child Support
In May 2005, Madhu applied to the Fresno County Department of Child Support Services (DCSS) for child support services. In September 2005, DCSS opened a proceeding in Fresno Superior Court (No. 05CEFS02946) and filed a statement for registration of California support order, a notice of registration of California support order, and a notice regarding payment of support and substitution of payee. These documents directed ex-husband to pay all support obligations to the Fresno office of the DCSS.
In January 2008, DCSS filed a motion to modify ex-husband's child support obligations. Based on its understanding of ex-husband's income, DCSS calculated the guideline child support at $8,186 per month. DCSS filed its motion in Fresno Superior Court rather than in Santa Clara Superior Court—the court that had been dealing with disputes about the amount for child support since 2003.
On February 25, 2008, a judgment on reserved issues was filed in the Santa Clara Superior Court proceeding. The judgment stated it was entered pursuant to the parties' oral stipulation made in open court on May 18, 2007, and (1) addressed property division, (2) provided the method for calculating guideline child support, and (3) specified monthly spousal support in amounts that decreased every 12 months and ceased on June 1, 2010. The judgment also stated that the pending contempt proceedings brought by the parties against each other were dismissed with prejudice.
Madhu's motion to modify spousal support was denied in a May 2010 order of the Santa Clara Superior Court. (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1474.) In June 2012, the Sixth Appellate District affirmed that order. (Id. at p. 1486.)
Meanwhile, DCSS's January 2008 motion to modify child support proceeded slowly. In June 2011, the Fresno Superior Court began the contested hearing on that motion. The testimonial phase of the hearing took two years to complete. In 2013, posthearing briefing on the motion was filed and the motion was submitted in November 2013. In February 2014, the court filed its ruling, which found changed circumstances and the best interests of the children justified deviating from guideline support to require a percentage of ex-husband's bonus and stock income to be paid as additional child support.
In October 2014, Madhu filed a motion in Fresno Superior Court to enforce child support arrearages from 2003 through 2012, supported by declarations and a memorandum of points and authorities. On December 15, 2014, after a hearing, the court denied the motion; Madhu appealed. In April 2018, this court affirmed the trial court's order denying Madhu's motion to enforce child support arrearages. (In re Marriage of Khera & Sameer (Apr. 12, 2018, F070938) [nonpub. opn.].)
Child Custody
In January 2013, the parties' two sons made allegations of domestic violence and sexual molestation against ex-husband, their father. In March 2013, the Santa Clara Superior Court issued an order (1) giving Madhu temporary sole legal and physical custody of the two minor children, (2) allowing ex-husband supervised visitation twice per month for up to 16 hours, and (3) directing ex-husband to have no other contact with the children. In September 2014, the court signed an order giving Madhu sole legal and physical custody of the two sons and stating she had the option of moving with the children to Australia or New Zealand.
Ex-husband's Attorneys
During the marriage dissolution proceeding in Santa Clara Superior Court, ex-husband was represented most of the time by Susan L. Benett, Lewis M. Becker and their law firm, Benett & Becker. However, during some intervals, ex-husband represented himself. Lenore Schreiber represented ex-husband in the child support matter before the Fresno Superior Court. In July 2008, Schreiber substituted as counsel of record in that proceeding and was still acting as his counsel when her anti-SLAPP motion was filed in April 2015. Schreiber did not appear as counsel of record in the proceeding in Santa Clara Superior Court. For purposes of this opinion, we refer to Benett, Becker, their law firm, and Schreiber collectively as "Attorneys."
PROCEEDINGS
Lawsuit Against Ex-husband
This lawsuit began on December 5, 2014, when Madhu, representing herself and her two minor children, filed a complaint against ex-husband and Does 1 through 50 in Fresno Superior Court. The lawsuit was assigned case No. 14CECG03660. The causes of action in the complaint were labeled (1) breach of fiduciary duty, (2) loss of income, (3) loss of future earnings, (4) personal injury and damages, (5) pain and suffering, and (6) obstruction of justice. Paragraph No. 4 of the complaint stated: "Plaintiffs have also filed a Petition for Order Allowing Plaintiffs to File Pleading Against Attorney Lenore Schreiber, Susan Bennett [sic] and Lewis Becker, based on attorney client conspiracy (CCP 1714.10)." Madhu stated the petition sought permission to file a lawsuit alleging ex-husband and the Attorneys hatched a conspiracy against her and her minor children. In March 2015, the superior court issued a minute order denying the petition without prejudice.
The petition was filed in Fresno Superior Court in December 2014 and assigned case No. 14CECG03709.
In the present lawsuit, Madhu filed her third amended complaint in May 2015. It is the operative pleading for purposes of this appeal. The third amended complaint did not list the minor children as plaintiffs. It included claims for malicious prosecution, intentional and negligent personal injury, negligent and intentional infliction of emotional distress, breach of fiduciary duty, and deceit. The third amended complaint also included conspiracy allegations under a separate "THEORIES OF LIABILITY" heading.
State Lawsuit Against Ex-husband's Attorneys
On February 2, 2015, Madhu filed a complaint against ex-husband, Attorneys, attorneys who had represented Madhu, and others involved in the dissolution and child support proceedings. The Fresno Superior Court assigned case No. 15CECG00351 to the lawsuit. The causes of action against Attorneys were labeled (1) fraud and fraud upon the court, (2) malicious prosecution and abuse of process, (3) personal injury, (4) pain and suffering, (5) conspiracy, (6) breach of fiduciary duty and conspiracy to breach fiduciary duty, (7) Racketeer Influenced and Corrupt Organizations Act (RICO; 18 U.S.C. §§ 1961-1968), (8) obstruction of justice, (9) perjury, (10) acts of moral turpitude, (11) unfair business practices, and (12) negligent representation.
RICO is contained in sections 1961 through 1968 of title 18 of the United States Code.
Attorneys responded to Madhu's complaint by filing anti-SLAPP motions and demurrers. In May 2015, the trial court held a hearing on the motions and demurrers and granted Attorneys' anti-SLAPP motions. Subsequently, judgments were filed in Attorneys' favor. Madhu filed a notice of appeal and this court assigned the matter case No. 71888. On January 11, 2019, this court filed an opinion affirming the judgments entered in favor of Attorneys based on their anti-SLAPP motions.
Motion to Consolidate
In May 2015, Madhu filed a motion for consolidation requesting this lawsuit against ex-husband (No. 14CECG03660) be consolidated with the lawsuit against Attorneys (No. 15CECG00351) and her petition for a writ (No. 14CECG03709). The hearing on her motion for consolidation was set for June 17, 2015.
Ex-husband's Anti-SLAPP Motion
In June 2015, after Attorneys had prevailed on their anti-SLAPP motions, ex-husband filed an anti-SLAPP motion as to all causes of action. He also filed a demurrer and a motion to strike. His anti-SLAPP motion asserted all conduct complained of related to filings and oral arguments made in the underlying family court proceedings and, therefore, constituted protected conduct under section 425.16, subdivision (e)(1). The motion noted Madhu "alleges some tangential behaviors outside of the courtroom (the majority of which are barred by the statute of limitations)" and argued the gravamen of the entire lawsuit was ex-husband's actions and representations in the underlying family court proceeding. In addition, the motion asserted Madhu could not carry her burden of demonstrating the requisite probability of prevailing on the merits because (1) the claims were barred by the litigation privilege in Civil Code section 47, (2) ex-husband had probable cause to file the marriage dissolution proceeding, (3) the claims of domestic violence were barred by the statute of limitations, (4) the claim for infliction of emotional distress was time-barred, (5) the claim for breach of fiduciary duty failed because they were no longer spouses and, thus, a fiduciary relationship no longer existed, and (6) the claim for deceit based on statements made in the court proceedings was barred by the litigation privilege. Ex-husband's motion also requested attorney fees pursuant to section 425.16, subdivision (c).
On June 17, 2015, Madhu filed an opposition to ex-husband's motions and demurrer. The opposition described Madhu's plans to travel out of the country beginning June 15, 2015, stated she had delayed her departure to attend the hearings scheduled for June 18, 2015, and would be unable to be present for hearings thereafter. It also stated: "Further, my file is currently with a consulting attorney who is evaluating it to see if he would consider taking the case. For this reason too, I am unable to file an appropriate response at this time." The opposition mentioned Madhu's motion to stay or continue hearings scheduled to be heard on June 18, 2015. The opposition argued that the conduct of ex-husband's attorney in scheduling the anti-SLAPP motion for a hearing during a period he knew she would be unavailable was malicious and sanctionable. In addition, Madhu stated: "This is an interim response. I reserve the right to supplement my response on this matter after the matter of consolidation of cases is resolved. [¶] ... I also re-request a stay in the proceedings until March 30, 2016. A stay in such circumstances is mandated."
Also on June 17, 2015, the court heard argument on Madhu's motion for consolidation and denied the motion. In addition, the court partially granted Madhu's request for a continuance by scheduling a hearing on Madhu's ex parte application for a stay and ex-husband's anti-SLAPP motion for July 15, 2015.
On June 24, 2015, ex-husband filed a reply to Madhu's opposition and argued she had not offered a substantive response to his motion. In particular, ex-husband contended Madhu had not carried her burden at the second step of the anti-SLAPP analysis, which required her to affirmatively demonstrate a probability of prevailing on her claims against him.
Prior to the hearing scheduled for July 15, 2015, the trial court posted a tentative ruling stating it would grant ex-husband's anti-SLAPP motion, which would render the demurrer and motion to strike moot. Neither party requested argument and, accordingly, on July 15, 2015, the trial court filed a minute order adopting its tentative ruling. The court also denied Madhu's ex parte application to stay proceedings. On July 28, 2015, counsel for ex-husband filed a notice of entry of judgment, which had a copy of the trial court's July 15, 2015, minute order attached.
Attorney Fees Request
In August 2015, ex-husband filed a motion for attorney fees. He contended he was "a prevailing defendant" as that term is used in section 425.16, subdivision (c)(1) and, therefore, entitled to reasonable attorney fees and costs. The motion asserted 37.45 hours were expended on the anti-SLAPP motion and related papers, of which 16 hours were paralegal time. As the fee for this time, the motion requested $6,263.20. In addition, the motion predicted another five hours would be spent reviewing an opposition, preparing a reply, and arguing the fees motion in court. As compensation for this estimate of additional time, the motion requested an additional $993.75. Accordingly, the total amount requested was $7,256.95.
On September 8, 2015, Madhu filed an opposition to the motion for attorney fees. The opposition gave a New Zealand address and stated Madhu had learned of the motion for attorney fees when she telephoned the clerk of court about an unrelated matter. Madhu's opposition asserted, "I have not been served, therefore the motion must be denied." As background, Madhu described her relocation to New Zealand, stated opposing counsel had her email address, and asserted opposing counsel could have emailed her copies of the scanned documents filed with the court. Madhu argued opposing counsel had ethical and legal obligations to (1) meet and confer prior to scheduling a hearing, (2) inform her of the hearing date, and (3) provide a scanned copy of the documents via email. Based on the lack of service and the failure to meet these obligations, Madhu argued the motion for attorney fees must be denied. Madhu also contended "Appeal Court has previously ruled that deliberately scheduling a hearing in the absence of a party is a sanctionable offense. I therefore request sanctions against the party and their counsel."
Counsel for ex-husband filed a reply to Madhu's opposition to the motion for attorney fees and supported the reply with a declaration explaining how the motion for attorney fees and supporting papers were served on Madhu. Counsel's declaration stated the motion for attorney fees had been served by mail using Madhu's Fresno address and Madhu had never advised counsel that she wished to be served electronically or at a different address. The reply asserted the service provided was legally sufficient, Madhu had actual notice the motion was filed, and denial of the motion would be improper because the award of attorney fees to a prevailing defendant was mandatory under section 425.16, subdivision (c)(1).
On September 22, 2015, the trial court filed a minute order adopting its tentative ruling, which was to grant the motion and find reasonable attorney fees and costs equaled $2,955. The court applied the usual lodestar analysis (i.e., reasonable rates times reasonable hours) and reduced the 26.45 hours of attorney time claimed by finding 14 hours were reasonably incurred on the anti-SLAPP motion and the motion for attorney fees. The court found the discounted rate charged for attorney time—$198.75 per hour—was reasonable. The court found paralegal time of 1.5 hours was reasonably incurred and the prevailing rate in the community for paralegal time was $115 per hour. Based on these findings, the court stated the "motion is granted in the amount of $2,995.00 as reasonable attorney's fees and costs." Thus, the court awarded approximately 41.3 percent of the amount requested for attorney fees. The court addressed Madhu's opposition by stating her "contention that service of the motion for fees was defective is without merit."
In October 2015, a notice of entry of the order awarding attorney fees was filed. The consequences of that notice are discussed in part I.C. of this opinion.
Motion to Set Aside Orders
On December 21, 2015, Madhu filed motions to set aside (1) the July 15, 2015, order granting ex-husband's anti-SLAPP motion and (2) the September 22, 2015, order awarding attorney fees. Madhu asserted the motions were based on "CCP 473(b), CCP 473.1, CCP 475, Rule 60(b)."
As grounds for relief, Madhu argued (1) the order must be void because opposing counsel deliberately scheduled the hearings in her absence with the specific intent of preventing her from participating; (2) service was defective; (3) an attorney she retained before leaving the country made mistakes, which should not be imputed to her; and (4) technological problems hindered her communication with the court and her access to documents through its Web site.
In January 2016, ex-husband filed an opposition to Madhu's motions to set aside. Counsel for ex-husband submitted a declaration in support of the opposition. The declaration stated the law firm had received an email from Madhu (1) stating she would be out of the country from June 15, 2015, through at least August 30, 2015, and (2) requesting an agreement to refrain from filing anything in this and other lawsuits Madhu had filed against her ex-husband. The law firm was unwilling to agree and did not respond to the email. With respect to service, the declaration stated Madhu did not consent to electronic service and did not provide an alternate address.
Madhu's reply to the opposition argued the order granting ex-husband's anti-SLAPP motion was the result of counsel's "malicious action of deliberately scheduling hearings in my absence." In Madhu's view, "[t]he court cannot reward [ex-husband and his counsel] for fraud, manipulation and bad faith litigation tactics." She also argued the "contention that I refused electronic service is out of context."
On March 16, 2016, the trial court held a hearing on Madhu's motions to set aside. Madhu appeared telephonically at the hearing using CourtCall. The court adopted its tentative ruling to deny the motions and filed a minute order to that effect.
Motion to Reconsider
Shortly after Madhu's motions to set aside were denied, Madhu filed a notice of motion for reconsideration, supporting points and authorities, a supporting declaration, and a supporting affidavit. Ex-husband opposed the motion.
On April 27, 2016, the trial court held a hearing on Madhu's motion to reconsider. Madhu appeared using CourtCall and ex-husband appeared through counsel. After hearing argument, the court adopted its tentative ruling to deny the motion. The ruling stated: "While it is unfortunate that [Madhu] has experienced technological difficulties in accessing the Court's tentative rulings from New Zealand, this is not a new or different fact or circumstance." The ruling also explained why the court's ruling on the motions to set aside referred to only the September 22, 2015, order awarding attorney fees and did not refer to the July 15, 2015, order granting ex-husband's anti-SLAPP motion by stating: "The omission of the July 15, 2015, date in the last paragraph of the tentative ruling on [Madhu's] set aside motion was a typographical error." Thus, the court intended to deny both of Madhu's set aside motions.
Appeal
On May 2, 2016, Madhu filed a notice of appeal listing orders entered on July 15, 2015 (anti-SLAPP motion granted), September 22, 2015 (attorney fees awarded), March 14, 2016 (set aside denied), and April 27, 2016 (reconsideration denied). Her appeal is timely as to the last two orders.
Federal Lawsuit
In December 2017, more than two years after judgments were filed in favor of Attorneys in case No. 15CECG00351 and ex-husband prevailed on his anti-SLAPP motion in this case, Madhu filed a 164-page complaint in federal court alleging many claims against numerous defendants under RICO and other statutes. (See Sameer v. Khera (E.D.Cal. Aug. 6, 2018, No. 1:17-CV-01748 DAD EPG) [2018 U.S. Dist. Lexis 132021; 2018 WL 3753023] [order denying request for temporary restraining order].) The defendants named in the federal action included Madhu's "lawyers, her ex-husband, his lawyers, expert witnesses involved in her divorce proceedings, the judges who presided over those proceedings, and more." (Sameer v. Khera (E.D.Cal. Dec. 5, 2018, No. 1:17-CV-01748 DAD EPG) [2018 U.S. Dist. Lexis 205650 at *5; 2018 WL 6338729 at *1].) Her second amended complaint in the federal action alleged 15 causes of action, including fraud, negligence, breach of fiduciary duty, intentional and negligent infliction of emotional distress, obstruction of justice, defamation, aiding and abetting, civil conspiracy, and RICO conspiracy. (Ibid.) The district court determined Madhu's allegations were fanciful and concluded "the only appropriate response is to dismiss the case with prejudice, as federal courts lack subject-matter jurisdiction over actions such as this." (2018 U.S. Dist. Lexis 205650 at *7-*8; 2018 WL 6338729 at 2*.) Madhu appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. On December 13, 2019, that court issued an opinion affirming the district court's dismissal of the lawsuit and denying Madhu's requests for judicial notice of documents, which the Ninth Circuit determined were irrelevant to the issues on appeal. (Sameer v. The Right Move 4 U (9th Cir. 2019) 787 Fed.Appx. 473 [2019 U.S. App. Lexis 36917; 2019 WL 6821136].)
DISCUSSION
Madhu's opening brief includes a section with the heading "QUESTIONS ON APPEAL," which lists 20 issues. Many of these questions relate to the four orders Madhu is challenging in this appeal—namely, (1) the July 2015 order granting ex-husband's anti-SLAPP motion, (2) the September 2015 order awarding attorney fees, (3) the March 2016 order denying Madhu's motions to set aside the prior orders, and (4) the April 2016 order denying Madhu's motion to reconsider. None of the questions framed by Madhu address the timeliness of her appeal, which we must address as a threshold matter because it relates to our authority (i.e., jurisdiction) to decide the questions presented.
I. Appellate Jurisdiction and Timeliness of Appeal
A. Basic Legal Principles
The appellate process begins with the filing of a notice of appeal in the superior court. (Cal. Rules of Court, rule 8.100(a)(1); Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 3:1, p. 3-1.) The time allowed for filing an appeal is specified in rule 8.104, which sets the deadline at the earlier of 60 days from service of the notice of entry of the appealable order or 180 days after entry of the appealable order. (Rule 8.104(a)(1)(A)-(C).) These deadlines are subject to statutory exceptions and the extensions of time set forth in rule 8.108. (Rule 8.104(a).) The extensions result from valid motions (1) for new trial, (2) to vacate the judgment, (3) for judgment notwithstanding the verdict, and (4) to reconsider. (Rule 8.108(b)-(e); see §§ 629 [judgment notwithstanding verdict], 657 [new trial], 663 [vacate], 1008 [reconsider].)
Subsequent references to numbered rules are to the California Rules of Court.
"The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Under rule 8.104(b), "[i]f a notice of appeal is filed late, the reviewing court must dismiss the appeal." Absent a public emergency, superior courts and appellate courts have no authority to grant extensions of the time to file a notice of appeal. (Rule 8.104(b); see rule 8.66.) The unforgiving nature of these principles was noted in Baker v. Castaldi (2015) 235 Cal.App.4th 218, where this court stated the deadlines for filing a notice of appeal "are jurisdictional and will bar an appeal even where the trial court has arguably led a litigant astray." (Id. at p. 224, fn. 21.) Similarly, in Bowles v. Russell (2007) 551 U.S. 205, the United States Supreme Court made "clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement," and it "has no authority to create equitable exceptions to jurisdictional requirements." (Id. at p. 214.)
Because the untimeliness of a notice of appeal deprives the appellate court of jurisdiction—that is, the power to hear and decide the appeal—appellate courts "must raise the point sua sponte." (Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849.) In accordance with this responsibility, we consider whether Madhu's notice of appeal was timely with respect to each of the four orders listed in the notice.
B. Order Granting Anti-SLAPP Motion
On July 15, 2015, the minute order granting ex-husband's anti-SLAPP motion was filed. On July 28, 2015, counsel for ex-husband filed and served a document entitled "NOTICE OF ENTRY OF JUDGMENT," which had a copy of the minute order attached. Accordingly, the 60-day period set forth in rule 8.104(a)(1)(B) would have ended on Saturday, September 26, 2015.
Madhu's notice of appeal was filed on May 2, 2016, which is 279 days after the service of the notice of entry of judgment. Accordingly, Madhu's notice of appeal failed to meet either the applicable 60-day deadline or even the 180-day deadline specified in rule 8.104(a)(1). Therefore, the timeliness of her appeal of the order granting ex-husband's anti-SLAPP motion (and this court's power to consider and decide the appeal) depends on whether a statutory exception or one or more of the extensions in rule 8.108 applies.
Based on our review of the appellate record, most of the documents filed in the superior court between the date of the minute order granting the anti-SLAPP motion and the expiration of the 60-day period on Monday, September 28, 2015, related to ex-husband's request for attorney fees. None of the motions mentioned in rule 8.108 as creating extensions were filed during that period.
Rule 8.108(c) refers to motions to vacate, stating: "If, within the time prescribed by rule 8.104 to appeal from the judgment [or order], any party serves and files a valid notice of intention to move—or a valid motion—to vacate the judgment [or order], the time to appeal from the judgment [or order] is extended ...." Madhu's motion to set aside the July 15, 2015, order granting ex-husband's anti-SLAPP motion is a motion to vacate for purposes of this rule. However, the filing of Madhu's motion to set aside did not extend the period in which to appeal because the motion was filed on December 21, 2015. December 21, 2015 was not "within the time prescribed by rule 8.104 to appeal from" the anti-SLAPP order. (Rule 8.108(c).) Rather, that date came after the 60-day appeal period expired. Thus, under the terms of the rule, the filing of the motion to set aside did not extend the time for filing a notice of appeal.
Consequently, we conclude Madhu's notice of appeal was untimely with respect to the July 15, 2015, order granting ex-husband's anti-SLAPP motion. Therefore, this court has no jurisdiction over that matter, and we cannot consider and decide Madhu's challenge to that order.
C. Order Awarding Attorney Fees
On September 22, 2015, the minute order granting ex-husband's motion for attorney fees was filed. The initial clerk's transcript did not contain a notice of entry of the order awarding attorney fees. However, the register of actions included in the clerk's transcript referred to a "Notice of Entry of Judgment" filed with the superior court on October 13, 2015. This court, on its own motion to augment the record, directed the clerk to augment the clerk's transcript to include that document. The augmented appellate record now includes the "NOTICE OF ENTRY OF JUDGMENT OR ORDER" on optional Judicial Council form CIV-130 relating to the September 22, 2015, order granting ex-husband's motion for attorney fees. (See rules 1.31 [mandatory forms], 1.35 [optional forms].) The filing of the notice of entry of the attorney fees order commenced a 60-day appeal period that expired on December 12, 2015.
Madhu's notice of appeal was not filed within the 60-day period. Instead, the notice of appeal was filed on May 2, 2016, which was 202 days after the notice of entry was filed on October 13, 2015. Therefore, Madhu's notice of appeal failed to meet the 60-day deadline specified in rule 8.104(a)(1) with respect to the order awarding attorney fees. As a result, the timeliness of her appeal from the order awarding attorney fees depends on whether a statutory exception or one or more of the extensions provided in rule 8.108 applies.
Madhu's motion to set aside the attorney fees order was filed on December 21, 2015. The 60-day period triggered by the October 13, 2015, filing of the notice of entry of the order awarding attorney fees expired on December 12, 2015. Consequently, the filing of the motion to set aside did not extend the time for appeal because it was not filed "within the time prescribed by rule 8.104 to appeal from" the order awarding attorney fees. (Rule 8.108(c).) In addition, we have located no motions filed within the 60-day period that would result in an extension under rule 8.108.
Consequently, we conclude Madhu's notice of appeal was untimely with respect to the September 22, 2015, order awarding attorney fees. As a result, this court has no jurisdiction over that matter, and we cannot consider and decide Madhu's challenge to that order.
D. Other Orders
Madhu's notice of appeal was filed on May 2, 2016, which is less than 60 days after the March 16, 2016, order denying her motion to set aside and the April 27, 2016, order denying her motion for reconsideration. Therefore, her appeal is timely with respect to those orders. Consequently, this court has jurisdiction to consider and decide whether Madhu's challenges to those orders have merit—that is, establish reversible error.
II. Motion to Set Aside Under Section 473
Section 473, subdivision (b) provides for relief from judgments and dismissals in specified circumstances. It contains a provision for mandatory relief and a provision for discretionary relief.
A. Mandatory Relief Under Section 473
1. Overview of Statute
The mandatory relief provision acts as a "narrow exception to the discretionary relief provision for default judgments and dismissals. [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The mandatory relief provision states in part:
"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 against his or her client, and which will result in entry of a default judgment, 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, subd. (b), italics added.)
When relief is granted based on an attorney's affidavit of fault, the trial court must "direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties." (§ 473, subd. (b).) The purpose of the mandatory relief provision is to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 257.) Stated in more detail, its purpose is to relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.)
2. Application of Statute
Madhu's moving papers raised attorney mistake as a ground for relief. However, her application for relief was not "accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect." (§ 473, subd. (b).) As a result, an explicit statutory condition for mandatory relief was not satisfied. Consequently, Madhu is not entitled to relief under the mandatory provision of section 473, subdivision (b).
B. Discretionary Relief Under Section 473
1. Overview of Statute
Section 473, subdivision (b) also provides that a "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." The phrase "may, upon any terms as may be just, relieve" grants discretionary authority to the trial court and, as a result, appellate courts review the trial court's order for an abuse of discretion. (Ibid.; see Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 257.)
Notwithstanding the discretionary component of this provision, a party seeking relief must satisfy certain conditions to be eligible to for relief. First, the application "shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted." (§ 473, subd. (b); see generally Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 728-730.) Second, the application must "be made within a reasonable time, in no case exceeding six months, after the ... order ... was taken." (§ 473, subd. (b).)
In addition, the party moving for relief usually has the burden of showing that the mistake, inadvertence, surprise, or neglect was excusable. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) An error qualifies as "excusable" for purposes of the discretionary relief provision in section 473 if a reasonably prudent person placed in the same or similar circumstances might have made the same error. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) Because California law favors resolving cases on their merits, a trial court order denying relief is scrutinized on appeal more carefully than an order permitting trial on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Accordingly, "[d]oubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation]." (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235.) "Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails." (Ibid.)
Based on the foregoing principles, the issues presented are whether Madhu's requests for relief satisfied the procedural conditions set forth in the statute and whether her neglect was clearly inexcusable.
2. Timeliness
One of the conditions imposed on requests for relief under the discretionary provision of section 473, subdivision (b) is that the application must be made within a reasonable time after issuance of the order being challenged. The reasonable time allowed may not exceed six months, which is the outside limit of the court's jurisdiction to grant relief under the statute's discretionary provision. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1422.) Here, Madhu's motions to set aside the order granting the anti-SLAPP motion and the order awarding attorney fees were filed on December 21, 2015. The orders being challenged were filed in July and September 2015. Therefore, Madhu's requests for discretionary relief were made within the six-month period and are not barred by the outside limit.
3. Attached-Pleading Requirement
Another statutory condition provides the application for relief "shall be accompanied by a copy of the answer or other pleading proposed to be filed therein ...." (§ 473, subd. (b).) When the condition is not satisfied, "the application shall not be granted." (Ibid.) The rationale for requiring the proposed document to be included in the application "is to avoid further delays by compelling the delinquent party to demonstrate a readiness to proceed on the merits." (Rodriguez v. Brill, supra, 234 Cal.App.4th at p. 729.) Including the proposed document also assists appellate courts in evaluating whether the moving party has carried its burden of establishing prejudice by showing a more favorable result would have been reasonably probable if the proposed document had been timely filed. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822-823 [appellant's burden to show error was prejudicial].)
A question of statutory interpretation presented under the facts of this case is whether Madhu's opposition to the anti-SLAPP motion and opposition to the subsequent motion for attorney fees qualify as an "other pleading proposed to be filed" as that phrase is used in section 473, subdivision (b). In some contexts, the term "pleading" has a relatively narrow definition. (See §§ 420 ["pleadings are the formal allegations by the parties of their respective claims and defenses"], 422.10 ["pleadings allowed in civil actions are complaints, demurrers, answers, and cross-complaints"].) However, in Rodriguez v. Brill, supra, 234 Cal.App.4th 715, this court interpreted the term "pleading" more broadly. We concluded "that, when relief is sought from a terminating sanction imposed for failing to provide discovery responses, the application must be accompanied by verified responses to the discovery in question." (Id. at p. 729.) Similarly, in Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918 (Austin), the court interpreted the attached-pleading requirement broadly and applied it to an opposition to a motion for summary judgment. (Id. at pp. 932-933.) Accordingly, we interpret the phrase "other pleading proposed to be filed" (§ 473, subd. (b)) to include an opposition to an anti-SLAPP motion and an opposition to a motion for attorney fees that the moving party would have presented to the trial court but for the asserted "mistake, inadvertence, surprise, or excusable neglect." (Ibid.)
Here, Madhu's requests for relief under section 473, subdivision (b) did not include a copy of a proposed opposition to ex-husband's anti-SLAPP motion or a copy of a proposed opposition to ex-husband's motion for attorney fees. Consequently, we consider whether these omissions lead to the conclusion that her "application shall not be granted." (§ 473, subd. (b).) On another question of statutory interpretation, we conclude section 473 does not mandate strict compliance with the attached-pleading requirement. Instead, we join the interpretation adopted in Austin and conclude substantial compliance with the statutory condition is sufficient. (Austin, supra, 244 Cal.App.4th at p. 933.) Substantial compliance is achieved when the papers submitted with the motion to set aside pursuant to section 473, subdivision (b) proffer essentially the same factual contentions and legal arguments as would have been included in the proposed opposition had it been drafted and attached. (Austin, at p. 933.) Therefore, the substantial compliance test applies to the points and authorities, affidavits, and declarations filed by Madhu in connection with her motions to set aside the anti-SLAPP order and the attorney fees order.
4. Anti-SLAPP Opposition and Substantial Compliance
As background for applying the substantial compliance test, we review some of the basic principles governing anti-SLAPP motions. These principles define when such a motion should be granted and, therefore, define the ways an opposition to an anti-SLAPP motion can defeat the motion.
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v Schnitt (2016) 1 Cal.5th 376, 384.) Thus, a plaintiff opposing an anti-SLAPP motion can attempt to prevail (1) by arguing the defendant did not carry its burden or (2) by demonstrating a probability of success on the merits. A plaintiff will prevail in the second step by demonstrating the pleading is legally sufficient and is supported by sufficient evidence to make a prima facie showing of facts that would sustain a favorable judgment. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
Madhu's papers supporting her motion to set aside the anti-SLAPP order assert she would have prevailed if she had presented a timely opposition. Her declaration stated, "Had I been able to present my defense, the results would have been different." She also stated that arguments supporting this position were provided in the points and authorities filed with the motion.
We have reviewed Madhu's points and authorities in support of her motion to set aside the July 15, 2015, order granting ex-husband's anti-SLAPP motion. In that document, Madhu again reasserted her claim that she would have defeated ex-husband's motion. For instance, on page 12 of Madhu's points and authorities, she stated, "I was not given a chance to participate in the proceeding or present a meritorious defense." On page 13 of the points and authorities, Madhu stated: "Had the motion been scheduled appropriately in a manner that allowed me to participate in the proceedings, the results may have be[en] different." However, these conclusory statements about merit are not supported by a presentation of arguments and evidence that would have been included in her opposition to carry her burden of demonstrating a probability of success on the merits of the causes of action stated in her third amended complaint. (See Baral v Schnitt, supra, 1 Cal.5th at p. 384.) Consequently, we conclude Madhu did not substantially comply with the attached-pleading requirement of section 473, subdivision (b). Her failure to satisfy this statutory condition for relief leads to the conclusion that her motion to set aside "shall not be granted." (Ibid.)
This conclusion is not simply the application of technical requirements to trip up a self-representing litigant. Rather, requiring Madhu to substantially comply with the attached-pleading requirement goes to the fundamental question of whether she could have presented an opposition that had merit and, thus, justified further proceedings in this lawsuit. Presenting a meritorious opposition is a difficult task when a plaintiff brings a lawsuit alleging the defendant committed wrongs in earlier litigation because protected activity includes any written or oral statement made (1) before a judicial proceeding or (2) in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (e)(1), (2).) It also includes "any other conduct in furtherance of the exercise of the constitutional right of petition." (§ 425.16, subd. (e)(4).) On appeal, Madhu claims ex-husband's acts and omissions committed in connection with the marital dissolution and child support litigation are not protected because illegal conduct is not protected. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 317.) However, the Flatley exception is narrow—it applies only where "the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence." (Id. at p. 316.) Here, the papers submitted with Madhu's motion to set aside the anti-SLAPP order and her appellate brief have not acknowledged the narrowness of the Flatley exception and demonstrated illegality was conceded or conclusively shown by the evidence.
Similarly, Madhu's papers submitted with her motion to set aside the anti-SLAPP order, as well as her appellate brief, have not addressed and demonstrated that the litigation privilege codified in Civil Code section 47, subdivision (b), which provides an absolute immunity from tort liability for communication with some relation to judicial proceedings, does not apply.
We note Madhu's malicious prosecution cause of action is not barred by the litigation privilege. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) However, "[t]o establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) Here, the evidence in the record defeats, as a matter of law, the probable cause element because ex-husband had probable cause to initiate the marital dissolution proceeding.
In summary, Madhu did not substantially comply with the attached-pleading requirement of section 473, subdivision (b) in her motion to set aside the anti-SLAPP order in favor of ex-husband. Based on this noncompliance, we conclude the trial court did not err in denying her motion. In short, Madhu's claims that her defenses to the anti-SLAPP motion had merit are not supported by the record.
5. Opposition to Attorney Fees Motion —Substantial Compliance
Next, we consider whether the papers Madhu submitted with her motion to set aside the attorney fees order achieved substantial compliance by offering essentially the same factual contentions and legal arguments as would have been included in the proposed opposition had it been prepared and attached to the motion. (Austin, supra, 244 Cal.App.4th at p. 933.)
A declaration filed by Madhu to support her motion to set aside the attorney fees order stated: "I dispute the amount of the award. The award is excessive. The details are provided in the Memorandum of P&A filed concurrently herewith. Had I been able to present my defense, the results would have been different." Madhu's memorandum of points and authorities asserted the attorney who requested fees copied the anti-SLAPP motions filed on behalf of Attorneys in case No. 15CECG00351. Madhu also asserted the attorney was guilty of fraud for claiming hours that were not spent on the anti-SLAPP motion filed in this case. Madhu also contends the request for judicial notice prepared to support ex-husband's anti-SLAPP motion was copied from requests for judicial notice presented with ex-husband's demurrers and, in turn, those requests for judicial notice had been copied from requests prepared by lawyers representing Attorneys in case No. 15CECG00351.
We conclude Madhu's motion to set aside the attorney fees order offered essentially the same factual contentions and legal arguments as would have been included in an opposition to ex-husband's motion for attorney fees. Accordingly, she substantially complied with the attached-pleading requirement contained in section 473, subdivision (b) as it applies to her motion to set aside the order awarding attorney fees.
C. Excusable Neglect
1. Trial Court's Order
On March 16, 2016, the trial court held a hearing on Madhu's motions to set aside the anti-SLAPP order and the attorney fees order. Madhu appeared by CourtCall. The law and motion minute order states the court adopted its tentative ruling.
The trial court's explanation of its decision to deny the motions began with a description of the general principles governing such motions, including the burden on the plaintiff to show by a preponderance of the evidence that the acts causing the order sought to be set aside were acts a reasonably prudent person would have taken in the same circumstances. The court noted Madhu's status as a self-representing litigant and stated that, generally, a party's ignorance of legal procedures is an insufficient ground for granting a motion to set aside a judgment. The trial court's analysis of the circumstances of the case and whether Madhu's acts and omissions were excusable stated:
"That [Madhu] filed the current action, then chose to leave the country is not a ground on which the relief sought may be granted. [Madhu] has not shown excusable mistake, inadvertence, surprise or neglect. Instead, [Madhu] has shown that, after pursuing the current action, she elected to leave the country and trust that [ex-husband] and [ex-husband]'s attorneys, with whom [she] has historically had notably acrimonious relationships, would not vigorously pursue [ex-husband]'s claims in her absence. This constitutes wishful thinking, not excusable mistake, inadvertence, surprise or neglect."
The court determined (1) the parties had not agreed to forestall hearings until Madhu returned to Fresno and (2) ex-husband and his attorneys had not made representations intended to mislead Madhu into thinking no actions would be taken in her absence. The court also noted the federal rules of civil procedure cited by Madhu did not apply to the proceedings. The court concluded Madhu had failed to show she was entitled to set aside the orders and denied her motions.
2. Justifications for Madhu's Acts and Omissions
The act or omission that Madhu seeks to excuse is the failure to file more thorough oppositions to the anti-SLAPP motion and the attorney fees motion, instead of the rudimentary oppositions she filed. This failure was due to the fact that she was out of the country and had not made arrangements for service of documents to a location other than her Fresno address. Her failure to make such arrangement was based on her misunderstanding of the law. Consequently, we must evaluate Madhu's legally erroneous views about service of motions and the obligations of opposing counsel while she was "'on hiatus' from June 12, 2015-Sept 30, 2105."
These erroneous views were expressed in Madhu's motion to set aside, which stated: "Opposing counsel was required by law not to schedule hearings during my absence." Exactly what law imposed this requirement is not identified.
California cases establish that "not every mistake of law is excusable." (Viles v. State of California (1967) 66 Cal.2d 24, 29.) To be excusable, the mistake of law must be both honest and reasonable. (Ibid.) In some instances, "a mistake of law may be excusable when made by a layman but not when made by an attorney." (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 479.) "In considering whether a mistake of law furnishes grounds for relief, '"'the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.'"'" (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1413.)
Here, Madhu does not acknowledge her mistake of law in asserting "[o]pposing counsel was required by law not to schedule hearings during my absence." As a result, her moving papers and her appellate brief make no attempt to show how that mistaken view of the law was reasonable. The fact Madhu filed a request for stay suggests she was aware of a procedure for halting the litigation in her absence. An objectively reasonable person would infer from the stay procedure that a party cannot unilaterally achieve the equivalent of a stay simply by informing the opposing side of that party's absence from the country. If the unilateral option were available, the stay procedure would be superfluous. Consequently, we conclude Madhu's mistaken understanding about the law requiring opposing counsel to not schedule a hearing during her absence was not reasonable and, thus, not an excusable mistake of law.
Similarly, Madhu was mistaken in her view that opposing counsel could not serve the motions and related papers by mailing them to her Fresno address. Madhu did not file a change of address notice pursuant to rule 2.200 and did not consent to service by email. Thus, the motions were appropriately served by mail and the law governing service by mail is contained in section 1013, subdivision (a), which states:
"In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party's place of residence."
Based on this provision and the absence of a change of address notice, we conclude opposing counsel was allowed by law to continue mailing papers to Madhu's Fresno address. Madhu has offered no justification for her mistake of law about proper service by mail and we conclude it was not reasonable. (See Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620 [appellate court affirmed denial of defendant's § 473 motion, concluding defendant's failure to arrange for mail delivery was not the act of a reasonably prudent person].)
Madhu also contends her failure to file complete oppositions to ex-husband's motions should be excused because she believed an attorney would handle matters in her absence. For example, her memorandum of points and authorities in support of her motion to set aside the attorney fees order asserted: "I had retained an attorney DAVIDSON, and believed that he would take care of the matter. However, I was surprised to know that he had not substituted in, not [sic] had he got a continuation, as he informed me that he planned to do." Madhu's papers repeated this point, stating: "Further, before I left for New Zealand, I had an agreement with THORNTON DAVIDSON, who assured me that he would get [a] continuation from court, and would file Substitution of Attorney forms immediately (EXHIBIT 5). I was not aware that he did not file these documents. Details provided elsewhere in this document."
These descriptions assert the attorney was at fault. In part II.A of this opinion we addressed obtaining mandatory relief under section 473, subdivision (b) based on attorney error, which requires an attorney affidavit of fault, and concluded mandatory relief is not available in this case. Consequently, we consider whether discretionary relief based on the attorney's mistake or neglect is available. When a party seeks to invoke the provision for discretionary relief to address attorney error, the following principles apply: "'A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) "'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.'" (Ibid., italics added.) Here, Madhu has failed to present any evidence showing the attorney's conduct in failing to timely file for a continuance or to timely file an opposition was excusable under the foregoing principles.
Madhu also argues her mistakes were excusable because of problems with the trial court's Web site, and the technological failures could not have been foreseen by her. Madhu cites no cases or other authority for the proposition that technological problems or, more generally, mistakes of the court can render her own neglect excusable. The absence of citations is understandable because California courts have taken a contrary view and adopted the following principle:
"Where the error or inadvertence is that of the court or of the court and the opposite party, as distinguished from one chargeable to the party seeking relief therefrom, section 473 ... has no application." (Rodgers v. Horn (1948) 85 Cal.App.2d 339, 343-344.)
Based on this principle, we reject Madhu's argument that her mistakes or neglect should be excused because she could have overcome the mistakes but for the technological errors or problems she attributes to the trial court.
In summary, Madhu has not demonstrated the trial court erred in determining her neglect and underlying mistakes of law were excusable under section 473, subdivision (b).
D. Inherent Authority
In addition to the authority to grant relief under section 473, trial courts also retain the inherent authority to vacate a default judgment on equitable grounds where the party seeking relief establishes the judgment resulted from extrinsic fraud or mistake. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.) Equitable relief, however, "may be given only in exceptional circumstances." (Rappleyea, at p. 981.)
Courts have established a "stringent" three-part test to obtain equitable relief under the trial court's inherent authority. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982.) First, the party must demonstrate it has a meritorious case. Second, the party "'must articulate a satisfactory excuse for not presenting a defense to the original action'" by showing extrinsic fraud or mistake prevented the party from defending the action on the merits. (Ibid.) Third, the party must show diligence in seeking to set aside the default judgment once the party discovered it. (Ibid.)
Here, for the reasons discussed earlier, Madhu has not shown a satisfactory excuse for not presenting more extensive oppositions to the motions. Also, there is no showing of extrinsic fraud.
"'"Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense."'" (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290.) Here, opposing counsel's conduct in filing motions after Madhu advised him she was leaving the country and would not be available and his serving papers by mailing them to her Fresno address was not fraud. Instead, those acts conformed to the applicable rules of procedure. The trial court explicitly found ex-husband and his counsel did not make representations intending to mislead Madhu into thinking no action would be taken in her absence. Madhu has not demonstrated that finding of fact was erroneous.
In summary, the trial court did not err when it decided not to grant relief pursuant to its inherent equitable authority.
III. Motion to Reconsider
A. Applicable Legal Principles
1. Incorporation by Reference
The section of Madhu's opening brief addressing her motion for reconsideration includes the following paragraph:
"All fact[s] presented and arguments made above and below this section, the facts and arguments presented in the Motion for reconsideration (7, CT 1556 - 1572) as well as those made in Court, and represented thru settled statement (8, CT 1749-1756), are incorporated herein as if fully presented here. Only additional arguments are being presented."
"It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court." (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20; see Estate of Wiedemann (1964) 228 Cal.App.2d 362, 370-371 [incorporation by reference of points and authorities filed in the trial court violates Cal. Rules of Court].) "It is inappropriate for an appellate brief to incorporate by reference arguments contained in a document filed in the trial court. [Citation.] Such practice does not comply with the requirement that an appellate brief 'support each point by argument and, if possible, by citation of authority.' (Cal. Rules of Court, rule 8.204(a)(1)(B).)" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854; see Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 390, fn. 12.)
In accordance with these well-established principles, we do not consider the facts and arguments presented in the motion for reconsideration Madhu filed in the trial court, only the facts and arguments presented in her opening brief.
2. Reconsideration of Prior Ruling
Section 1008 governs motions to reconsider a ruling made on an earlier motion, including a motion for relief under section 473, subdivision (b). (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 486, 487.) Section 1008, subdivision (a) provides:
"When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (Italics added.)
Section 1008, subdivision (e) provides in part: "This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion .... No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section."
In addition to establishing "new or different" information exists, the party applying for reconsideration under section 1008 must "show diligence with a satisfactory explanation for not having presented the new or different information earlier." (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.)
3. Standard of Review
Superior courts exercise their discretion when ruling on a motion to reconsider a prior order. (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 265.) Accordingly, a superior court's ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1338.)
B. Madhu's New or Different Information
1. Repeated Arguments
The portion of Madhu's opening brief devoted to the motion to reconsider includes restated arguments made in connection with the motion for relief under section 473, subdivision (b). These restated arguments do not contain new or different information that was not presented with the motion for relief under section 473, subdivision (b). For example, in Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, the plaintiff contended the trial court should have granted his motion for reconsideration because the court's grant of summary judgment for the defendants was based on errors of law or a failure to consider the evidence presented in opposition to the motions for summary judgment. (Id. at p. 724.) The appellate court concluded neither ground presented a new fact or circumstance supporting reconsideration. (Ibid.) The same reasoning applies to the arguments Madhu made in her motion to set aside and then repeated in her motion for reconsideration. Consequently, we conclude Madhu's repeated arguments are not "based upon new or different facts, circumstances, or law" for purposes of section 1008, subdivision (a). As a result, those arguments do not provide grounds for reconsidering the denial of the motion to set aside.
2. Madhu's Affidavit
Section 1008, subdivision (a) requires the party applying for reconsideration to provide an affidavit stating, among other things, "what new or different facts, circumstances, or law are claimed to be shown." Here, Madhu filed an affidavit that included the following:
"1. On March 15, 2015 [sic], between 2:30 PM and 5:00 PM, inclusive, I was unable to access the Fresno Court's website.
"2. I was unable to get access to the Tentative Ruling of the Court as the screen kept timing out.
"3. I attempted to call the phone number provided at the Court's website, but did not get any response. I even attempted to call the Court Clerk but received no response.
"4. As a consequence of these problems faced by me, I was unable to read the tentative ruling that the Court had posted on the website on March 15, 2016.
"5. Because I did not know what was in the ruling, I was unable to schedule an oral argument, even though I had previously booked the Courtcall to attend a hearing.
"6. I attended the hearing on March 16, 2016, and informed the Court about the problems that I had been facing. These problems are not new—they have been faced by me over the last 6 months, and have been documented in my motion to Set Aside, that was being heard.
"7. These infrastructural and technological problems were not [my] fault, but they prevented me from presenting my oral argument in support of my request.
"8. I request that the Court reconsider my motion for these reasons, and grant my motion. If the Court is unwilling to do so, I request that the Court reschedule the hearing and put it back on the calendar so I may be allowed to present my oral argument." (Italics added.)
The minute order from the March 16, 2016, hearing on Madhu's motion to set aside under section 473, subdivision (b) states Madhu appeared using CourtCall and no appearance was made on behalf of ex-husband. The hearing was not reported and, as a result, there is no reporter's transcript in the appellate record informing us what was said at the hearing.
3. Hearing on the Motion to Reconsider
On April 27, 2016, the trial court heard argument on Madhu's motion to reconsider. The minute order states Madhu appeared using CourtCall, counsel appeared on behalf of ex-husband, and the hearing was "Not Reported." The court adopted its tentative ruling to deny the motion.
Madhu addressed the absence of a reporter's transcript by obtaining a settled statement. In July 2017, the trial court signed and filed Madhu's amended settled statement for the April 27, 2016, hearing. The amended settled statement describes the disagreement between Madhu and the trial court on whether the motion for reconsideration presented new evidence.
The amended settled statement includes Madhu's contention that her motion to set aside included evidence that the trial court's Web site had not worked on September 22, 2016, and, in contrast, her motion for reconsideration provided new evidence that the trial court's Web site had not worked in March 2016, when the motion to set aside was heard. The amended settled statement noted the trial court's disagreement with these contentions. As to September 22, 2016, the trial court's version states: "'No such evidence was provided. [Madhu] simply stated that the Court's website did not work on that date.'" As to March 2016, the trial court's version states: "'No such evidence was provided. Again, [Madhu] only stated that the Court's website had not worked on March 2015 ALSO.'"
C. Absence of New or Different Facts
The appellate record does not support Madhu's contention that she presented new or different facts to support her motion for reconsideration. Specifically, it does not support her argument that the "facts concerning technological issues that had prevented [her] from participating in [the] March [2016] hearing" constituted new or different facts. (Underscoring omitted.) Paragraph 6 of Madhu's affidavit states she "attended the hearing on March 16, 2016, and informed the Court about the problems that I had been facing. These problems are not new ...." This statement's reference to "problems" is reasonably interpreted to mean the inability to access the court's Web site and tentative ruling, which difficulties were described in paragraphs 1 and 2 of the affidavit. Based on the contents of the affidavit and the trial court's version set forth in the settled statement, we conclude Madhu informed the court of her March 2016 difficulties in accessing the Web site and the tentative ruling on the motion to set aside when she appeared by CourtCall at the March 16, 2016, hearing. Consequently, when the court heard about these difficulties again when it evaluated the motion for reconsideration, they were something the court had heard previously and were not new information. Therefore, we conclude the court did not err when it denied Madhu's motion for reconsideration on the ground it did not present new or different information. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 ["facts of which the party seeking reconsideration was aware at the time of the original ruling are not 'new or different'"].)
Based on the foregoing conclusion, we do not reach the question of whether Madhu demonstrated the alleged error was prejudicial. (See In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823 [error alone does not warrant reversal; appellant must show injury from the error]; Cal. Const., art. VI, § 13; § 475.)
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
SMITH, J.