Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. 06CECG00547. Donald S. Black, Judge.
Steele Law Corporation and Mary Rafani-Steele for Defendant and Appellant.
Lee & Beyersdorf and David C. Beyersdorf for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Dawson, J. and Hill, J.
OPINION
Appellant Bee Lee appeals the trial court’s denial of his motion to vacate and set aside judgment entered in this case. Appellant sought discretionary relief under the provisions of Code of Civil Procedure section 473, subdivision (b) (section 473(b)). He contends the trial court based its ruling on a clear error of fact. We will affirm.
FACTS
Respondent Kia Yang sued appellant Bee Lee in a dispute involving real property. Attorney R. Rick Myers represented appellant in the matter.
On September 26, 2006, Myers filed a motion to be relieved as counsel. Myers’ declaration stated appellant failed to assist him in preparing the case and failed to communicate with him when requested. Specifically, appellant did not return phone calls, attend office conferences, or respond to letters Myers sent him. Myers’ declaration also stated appellant “failed to regularly pay his account for his representation in this matter, and he is not in compliance with his contract for services with this firm.”
The trial court granted Myers’ motion to be relieved as counsel. The written order was filed in December 2006. That order also set a mandatory settlement conference for July 31, 2007, and listed the trial date as August 8, 2007.
Appellant failed to appear in court on the trial date. The superior court entered judgment against appellant on September 4, 2007.
Approximately four and a half months after the judgment was filed, appellant filed a motion to set aside the judgment pursuant to section 473(b). Appellant’s declaration accompanied the motion and asserted the facts set forth in the following two paragraphs.
Appellant left for China sometime in the fall of 2006. Appellant never received actual notice of Myers’ motion to be relieved as counsel. When he returned to the United States, appellant checked his mail and did not see any notice from Myers. Appellant did not know if the notice was lost in the mail or if his family neglected to give it to him. Consequently, when he returned to the United States, appellant assumed Myers was still his attorney and waited for Myers to contact him regarding the court proceedings.
After August 8, 2007, appellant learned from a friend that he had missed the scheduled trial date. The fact that the trial had taken place came as a “complete surprise” to appellant.
The trial court’s written decision addressed appellant’s claim of excusable neglect as follows:
“The court finds that [appellant] has not satisfied his burden of showing that his neglect was excusable. Here, [appellant] admits that he left the country for an extended period of time, apparently for around 1 year while he knew that an action was pending against him, and in which he had filed a cross-complaint. Based on [Myers’ declaration, appellant] apparently did not (a) attempt to contact his attorney at all during this time period, (b) provide any way for his attorney to contact him, (c) pay his attorney for services rendered or (d) respond to his attorneys’ attempts to contact him. [Appellant] did not act with reasonable care, precaution or prudence in leaving the country for a year during the pendency of this litigation, incommunicado from his attorney, and failing to pay his attorney to represent him. A reasonably prudent person would have either provided his attorney a means of contacting him, or contacted his attorney to be apprised of the developments of the action.”
Based on these findings, the trial court denied appellant’s motion to set aside the judgment. Appellant filed a timely appeal.
Our recitation of facts is based solely on documents in the clerk’s transcript. We have not relied upon any document attached as an exhibit to the respondent’s brief because those exhibits are not properly a part of the appellate record. (See Cal. Rules of Court, rules 8.120-8.163 [record on appeal].)
DISCUSSION
I. Standard of Review
A superior court’s ruling on a motion for discretionary relief under section 473(b) is reviewed on appeal for an abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)
Generally, the abuse of discretion standard of appellate review is a deferential one. Deference, however, is not appropriate where a superior court exercises its discretion to deny relief under section 473. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235.) Because of the strong public policy preference for the resolution of disputes on their merits, “[d]oubts are resolved in favor of the application for relief from default [citation], and reversal of an order denying relief results [citation].” (Id. at p. 235.) “Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Ibid.)
II. Applicable Principles of Law
A. Excusable Neglect
The discretionary portion of section 473(b) provides that a superior court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment … taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
Under this provision, the critical question is whether the party’s error was excusable. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) An error is excusable if a reasonably prudent person placed in the same or similar circumstances might have made the same error. (Ibid.)
Typically, courts acknowledge that the party moving for relief has the burden of showing that the mistake, inadvertence, surprise, or neglect was excusable. But the courts also qualify this burden by stating that any doubts as to the showing are to be resolved in favor of the moving party. (E.g., New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.)
B. Diligence in Seeking Relief
A moving party has a dual burden. Besides showing the error was excusable, a moving party must comply with certain procedural requirements to qualify for relief under section 473(b). Specifically, the moving party’s application for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment … was taken.” (Ibid.)
This provision and its reasonable time requirement means a moving party must show that he or she acted diligently once learning of the judgment. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420.) Whether a party has acted diligently is a question of fact for the trial court. (Ibid.)
III. Excusable Neglect
A. Length of Absence from United States
Appellant’s main argument is that the trial court erroneously found that he had left the country for approximately one year when, in fact, he “was only gone from the country for a period of approximately one month.”
This assertion of fact regarding a one month’s absence is not supported by a citation to the appellate record. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) It is a fundamental rule of appellate practice that factual assertions in an appellate brief should be supported by citations to the appellate record. (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 936, fn. 4.)
In any event, however, we decline to examine the record for evidence as to the length of appellant’s absence from the country because, as addressed post, the trial court’s ruling was correct whether appellant was absent for a year, a month, or some amount of time in between.
B. Finding That Appellant’s Neglect Was Not Excusable
Assuming for the sake of argument that appellant was out of the country for only a month, it does not follow that the trial court’s ultimate determination was erroneous. That determination—that appellant failed to carry his burden of showing his neglect was excusable—is well supported regardless of where appellant was located during the period he ignored the lawsuit and made no effort to communicate with Myers.
Appellant did not act as a reasonably prudent person in defending the claim against him. His absence at trial occurred as a result of several failings on his part, including the failure to be in communication with his attorney while in this country and the failure to make arrangements to receive information about the pending lawsuit while he was outside the United States. These failures exist regardless of how much time appellant spent in China and how long he was in the United States. Indeed, if appellant was outside the country for only a month instead of a year, it appears he was even less prudent in keeping apprised of the status of the lawsuit. Had he been outside the United States for only a month, it would have been easier for him to maintain contact with Myers or take other steps to determine the status of the lawsuit. He did neither.
Therefore, we conclude that, regardless of where appellant was located during the time he ignored the lawsuit, appellant did not act as a reasonably prudent person would have in the circumstances. Accordingly, the trial court correctly determined that appellant’s actions were not excusable.
In addition, we note the trial court’s determination is consistent with existing case law. In Lint v. Chisholm (1981)121 Cal.App.3d 615, the defendant was a self-represented attorney who, like appellant, failed to appear at trial. The defendant claimed a domestic dispute caused a disruption in the delivery of his mail. (Id. at p. 619.) He admitted he did not notify the clerk of an address change. (Ibid.) The trial court denied his motion for relief under section 473. (Lint, at p. 619.) The appellate court affirmed, concluding the defendant’s failure to notify the court of his address change or to otherwise arrange for mail delivery was not the act of a reasonably prudent person. Therefore, his failure to receive notice of trial did not occur “without any fault of his own.” (Id. at p. 620.)
IV. Reasonable Diligence
An alternate ground for upholding the trial court’s denial of appellant’s motion for relief is appellant’s failure to demonstrate he acted diligently in seeking relief once he learned of the judgment. (See Huh v. Wang, supra, 158 Cal.App.4th at pp. 1420-1421 [moving party did not diligently pursue motion for relief].)
Appellant’s declaration made no attempt to identify when he learned of the existence of the judgment against him or the amount of time that passed between his discovery and the filing of his motion for relief. Accordingly, the record does not contain enough evidence to support a finding that appellant pursued his motion for relief diligently once he discovered the judgment.
Therefore, the trial court’s implied determination that appellant did not act diligently in seeking relief under section 473(b) is supported by the factual record and applicable law. (See Huh v. Wang, supra, 158 Cal.App.4th at p. 1420.)
DISPOSITION
The judgment is affirmed.