Opinion
2d Civil No. B232082
01-31-2012
CAROLYN S. SIMMONS, Plaintiff and Appellant, v. DAVID J. RADOJEVICH, Defendant and Respondent.
Carolyn S. Simmons, in pro. per., for Plaintiff and Appellant. Law Offices of Belsher, Becker & Roberts, Howard Mark Becker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CV070819)
(San Luis Obispo County)
Plaintiff Carolyn S. Simmons appeals a judgment dismissing her breach of contract action against defendant David J. Radojevich following the sustaining of a demurrer to her second amended complaint without leave to amend. We conclude, among other things, that Simmons has not shown that the trial court abused its discretion by denying her motion to set aside the dismissal. (Code Civ. Proc. § 473.) We affirm.
All statutory references are to the Code of Civil Procedure.
FACTS
Simmons sued Radojevich for money allegedly owed on loans she made to him. She amended her complaint "multiple times."
On June 17, 2010, Simmons filed her second amended complaint, alleging breach of contract, negligence, breach of fiduciary duty, and fraud.
On July 6, 2010, Radojevich filed a "notice of demurrer, demurrer and memorandum of points and authorities," alleging that Simmons had failed to state facts sufficient to state any cause of action. The notice advised Simmons there was a hearing date of September 9, 2010, on the demurrer.
Simmons did not file a response to the demurrer and she did not attend the September 9th hearing.
The trial court sustained the demurrer without leave to amend and dismissed the action.
On January 5, 2011, Simmons filed a "notice of motion and motion to set aside dismissal" under section 473, subdivision (b). In her attached declaration, Simmons said, "I did not receive the Notice of Demurrer because Defendant and his attorneys sent the Notice to an old address." She said she had filed a notice of change of address. Her motion did not include an opposition to the demurrer and her points and authorities did not address the merits of the demurrer or the sufficiency of her complaint.
The trial court held a hearing on Simmons' motion. There is no reporter's transcript of that proceeding. The court denied the motion. In a written order, it said, "[The] demurrer was indeed served at the address indentified on plaintiff's [second amended complaint]. Plaintiff's written notice of change of address was not served and filed until August 26, 2020, almost seven weeks after the demurrer had been served. Consequently, Plaintiff fails to establish any excusable neglect to justify setting the dismissal aside."
DISCUSSION
Abuse of Discretion
Simmons claims the trial court erred by denying her motion to set aside the dismissal of her action.
Radojevich responds that Simmons' claims cannot be decided on appeal because she failed to designate a complete record. He notes that she did not produce a reporter's transcript of the hearing on her motion to set aside the dismissal, she did not include the defendant's opposition, and she omitted 12 relevant documents from the initial history of this action. He claims that at the hearing Simmons made an admission that supported the trial court's decision to deny the relief she sought.
Radojevich's objections are meritorious. "A fundamental principle of appellate practice is that an appellant '"must affirmatively show error by an adequate record. . . . . Error is never presumed. . . . 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .'"'" (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) Here our review is hampered because Simmons did not designate a complete record. "To the extent the record is incomplete, we construe it against" appellant. (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 498.)
Simmons also makes factual assertions in her appellate briefs without citation to the record. "[S]tatements of fact contained in the briefs which are not supported by the evidence in the record must be disregarded." (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361.) But even on the merits, the result does not change.
Simmons claims the trial court was required to grant her motion for relief under section 473, subdivision (b) and to set aside the dismissal and the order sustaining the demurrer.
But as Radojevich correctly notes, to obtain relief under that section, Simmons had to attach her response to the demurrer, and her failure to do so was a fatal omission. Section 473, subdivision (b) provides, in relevant part, "Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted . . . ." (Italics added.) Here the critical pleading was Simmons' opposition to the demurrer. But her motion did not include that document. It consequently did not comply with section 473. The trial court had valid grounds to deny relief based on this omission. (Ibid.) Moreover, in her motion, Simmons made no attempt to defend the validity of her second amended complaint. She did not address the merits of the demurrer or explain how she could amend her pleading.
Simmons claims the trial court erred by not granting relief because she was not served with the demurrer.
But the trial court found she was properly served. That finding is supported by the record. In her second amended complaint, filed June 17, 2010, Simmons listed her address as 69 South Seaward Street, Ventura, CA 93003. The proof of service by mail on the demurrer reflects that a copy of the demurrer was mailed to that address on July 6, 2010. A demurrer is properly served on the plaintiff at the address the plaintiff listed on the complaint. (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 620, fn. 2.)
In her declaration attached to her motion, Simmons claimed the address listed on the complaint was "an old address" and she had filed a notice of change of address. But the trial court found that her notice of change of address was not filed until "almost seven weeks after the demurrer had been served." That finding is supported by the record which reflects that the notice of change of address was filed on August 27, 2010.
A party may obtain relief for excusable neglect under section 473. But a court may properly find that an unreasonable delay in filing a change of address notice does not constitute grounds for relief under this section. "Excusable neglect is 'that neglect which might have been the act of a reasonably prudent person under the same circumstances.'" (Lint v. Chisholm, supra, 121 Cal.App.3d at p. 620.) Simmons' declaration contains no facts to explain why she waited until August 27th to file the notice of change of address. She stated no facts about what steps she took to keep track of her mail.
The trial court could reasonably find that Simmons' short and conclusory declaration was insufficient to state facts showing excusable neglect. "[Simmons] did not show (1) [her] failure to notify the court of [her] address change, or alternatively to otherwise adequately arrange for mail delivery, was the act of a reasonably prudent person under the same circumstances; or (2) the nonreceipt occurred 'without any fault of [her] own . . . .'" (Lint v. Chisholm, supra, 121 Cal.App.3d at p. 620.) Moreover, we cannot presume error based on the incomplete record Simmons has provided. The opposition to her motion is not included and there is no reporter's transcript of the hearing. "'A motion for relief under section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal. . . .'" (Martin v. Cook (1977) 68 Cal.App.3d 799, 807.)
The judgment is affirmed. Costs on appeal are awarded to respondent. NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
COFFEE, J.
Charles S. Crandall, Judge
Superior Court County of San Luis Obispo
Carolyn S. Simmons, in pro. per., for Plaintiff and Appellant.
Law Offices of Belsher, Becker & Roberts, Howard Mark Becker for Defendant and Respondent.