Judge Upinder S. Kalra, Case BC597643 2023-02-09 Tentative Ruling

Plaintiff Patricia Bentson brought this action against Defendant Mark B. Barron. The parties own adjacent real properties. Plaintiff alleges there is a limited easement over her property and that Defendant has exceeded the scope of the easement by, among other things, installing a gate, masonry, and removing a paved road. Plaintiff’s First Amended Complaint asserts causes of action for (1) quiet title, (2) trespass to land, (3) conversion, and (4) declaratory relief.

On June 20, 2022, the matter proceeded to a non-jury trial. Plaintiff/Cross-Defendant did not appear. After an oral request made by Defendant/Cross-Complainant Barron, this court ordered the Complaint dismissed without prejudice pursuant to Code of Civil Procedure section 581(b)(5). The court further entered judgment in favor of Defendant/Cross-Complainant for the irrevocable parole license asserted in the Cross-Complaint but did not award compensatory damages.

On June 20, 2022, this matter proceeded to trial. Plaintiff/Cross-Defendant did not appear. After an oral request made by Defendant/Cross-Complainant Barron, the court ordered the Complaint dismissed without prejudice pursuant to Code of Civil Procedure section 581(b)(5). The court further entered judgment in favor of Defendant/Cross-Complainant for the irrevocable parole license asserted in the Cross-Complaint, but did not award compensatory damages. Plaintiff/Cross-Defendant Bentson now moves to vacate the resulting dismissal and judgment under Code of Civil Procedure sections 473(d) and 473(b). Each is addressed in turn.

Plaintiff first moves for relief under section CCP section 473(d). This section provides that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “[I]nclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment. [Citation.] However, the trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.” (Kremerman v. White (2021) 71 Cal. App. 5th 358, 369.) “Generally, defendants have six months from entry of judgment to move to vacate. [Citation.] But, if ‘the judgment is void on its face, then the six month limit set by section 473 to make other motions to vacate a judgment does not apply.” [Citation.] (Id. 369-70.)

The trial here was set for June 20, 2022. Plaintiff attests in her declaration that she appeared at the February 28, 2022, Final Status Conference and mistakenly “understood that the matter was to be set for trial for July 20, 2022.” (Bentson Decl. ¶ 2 [emphasis added].) “[She] wrote the date down and [her] assistant Kristina contacted Serna Wong California Certified Realtime Reporter to appear in July 2022.” (Id.)

Plaintiff further contends she and her counsel did not receive proper notice of the correct trial date thereafter. She argues the February 28, 2022, Minute Order of the Final Status Conference was not mailed to her correct address and was never mailed to her counsel at the time, David E. Wheeler. Plaintiff argues that Defendant gave notice to an address at “1282 Lago Vista Drive, Beverly Hills, California 90210” but not “Goldbook, Ltd., 9440 Santa Monica Blvd., Ste. 301, Beverly Hills, California 90210.” (Mtn. 9: 1-5.) Plaintiff contends these same service issues are true for all notices thereafter, including “for the Proof of Service of the Defendant’s 06/14/2022, Trial Brief, his 06/20/2022 Notice of Ruling at the non-jury trial, and his Proposed judgment on Second Amended Cross-complaint.” (Mtn. 9: 3-5.)

In Opposition, Defendant does not dispute that notice from the Final Status conference was sent to the 1280 Lago Vista Drive Address but argues Bentson has owned that property since 1998 and that “1280 Lago Vista is also the address set forth in the Order Granting Bentson’s former counsel’s [Howard M. Privette’s] Motion to be Relieved as Counsel.” (Opp. 2: 21-22.) Defendant also notes that counsel Wheeler only represented Plaintiff for a limited purpose that had passed by the time of the FSC, and thus service on him was unnecessary.

As an initial matter, “[g]enerally, defendants have six months from entry of judgment to move to vacate. [Citation.] But, if ‘the judgment is void on its face, then the six month limit set by section 473 to make other motions to vacate a judgment does not apply.” [Citation.] (Id. 369-70.) The Court’s June 20, 2022, Minute Order states as follows: “The Court finds Judgment in favor of Cross-Complainant Mark Barron and against Cross-Defendant Patricia Bentson for the irrevocable parole license. There is no award for compensatory damages.” (See 06/20/2022 Minute Order.) On June 27, 2022, Defendant/Cross-Complainant lodged a [Proposed] Judgment, and this court entered judgment that same day. Plaintiff did not move to set aside this judgment until December 27, 2022.

Here, if going by the June 20, 2022, date of the Minute Order entering dismissal, Plaintiff failed to seek relief within the 6-month period. If going by the date of entry of the [Proposed] Judgment of June 27, 2022, however—seven days later—then Plaintiff sought relief exactly 6 months to the date. The difference here is immaterial, however, because Plaintiff has not shown the judgment is void it all.

Former Counsel Wheeler filed a “Notice of Limited Scope of Representation” on December 22, 2021, stating he would appear for Plaintiff at the December 23, 2021, hearing on Plaintiff’s motion to compel Defendant’s deposition and file the Reply to that motion. (See 12/22/2021 Notice of Limited Scope.) That document further stated that “during the limited scope representation,” Plaintiff was to be served at “Goldbook, Ltd., 9440 Santa Monica Blvd., Ste. 301, Beverly Hills, California 90210.” (Id. ¶ 4.) Thus, any notice required pursuant to the limited scope of representation became obsolete after the motion to compel that prompted it was heard and argued. And after that point, it appears undisputed that Defendant was in pro per, including at the time of the February 2022 Final Status conference, and up until current counsel Andrew Jay Kulick substituted in on December 27, 2022.

Further issues also arise. Plaintiff does not state when she purportedly learned that trial was set for July and not June, or what triggered the realization that trial had been missed. She never appeared in court for either the actual or mistaken trial date. Notably absent from Plaintiff’s declaration is any express statement that she had not been served with the Notice of Ruling from Final Status Conference. Thus, even if the notice should have been served at the 9440 Santa Monica Blvd. address—however unlikely—this suggests Plaintiff had actual notice of the hearing date based on service to 1280 Lago Vista, a residence she does not dispute owning. Accordingly, the judgment is not void for improper or lack of service.

"The following exhibits submitted by Cross-Complainant are admitted without objection: 1(A total of 54 photos of subject property); 2(Letter dated 6/15/1996 to Mr. Bowen); 3(5/02/1997 letter from Alan Van Vliet); 4(Deed and Agreement dated 7/12/1955); 10(Letter dated 4/30/2008 to Dear Patty); and 12(Quitclaim Deed dated 3/23/2018)."

Plaintiff concludes, therefore, that judgment must have been only “based on the unsworn statements of Cross-Complainant’s counsel Trial Brief.” (Mtn. 10: 9-10.) “As a result, since the Minute Order of 06/20/2022 reflects that there was no sworn testimony laying the foundation for the exhibits to be admitted, it appears that the Court was without any admissible evidence by which it could grant a judgment in favor the Cross-Complainant, and must be vacated as void as well.” (Mtn. 10: 16-19.) Plaintiff, of course, is purely speculating in this regard. And moreover, she is incorrect. This was an uncontested trial – not a default judgment prove up. Unless there is a party objecting to an exhibit being admitted into evidence, that exhibit is generally admitted, unless it clearly is unreliable or inherently untrustworthy.

Even assuming the admitted testimony was unsworn or otherwise “inadmissible,” and assuming that was the only evidence the court relied upon, Plaintiff cites no authority suggesting this would make the judgment void. In fact, the authority says otherwise. (See City of Fontana v. California Dep't of Tax & Fee Admin. (2017) 17 Cal. App. 5th 899, 920–21, citing with approval to 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 37, p. 85 [“No constitutional provision is violated if unsworn testimony is received, and thus a party waives its objection to unsworn testimony by failing to object to it at trial.”]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 369, p. 427 [“Incompetent or otherwise inadmissible evidence admitted without objection will sustain the judgment.”].)

Plaintiff’s remaining arguments go not to setting aside the judgment or dismissal, but rather, reflect Plaintiff’s disagreement with the court’s application of law to facts in finding in favor of Cross-Defendant on the irrevocable parole license. But these contentions are not grounds to vacate under section 473. “A motion under section 473 of the Code of Civil Procedure ‘was never intended as a substitute for an appeal.’” (See Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897, fn. 5; see also Worth v. Asiatic Transpacific, Inc. (1979) 93 Cal.App.3d 849, 856 [“Trial courts can modify or amend judgments only as prescribed by statute, and modification of judgments to correct errors of law is not authorized by section 473”].)

Plaintiff also moves for relief under section 473(b). Section 473, subdivision (b) provides for two distinct types of relief: mandatory and discretionary. “Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.” (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 615–16.) The test of whether neglect was excusable is whether “ ‘a reasonably prudent person under the same or similar circumstances' might have made the same error. [Citations.]” (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.)

“What constitutes a ‘reasonable time’ depends on the circumstances of each case ‘but definitively requires a showing of diligence in making the motion after the discovery of the default.’” [Citation.] “Whether a party has acted diligently is a factual question for the trial court” [Citation], which exercises a great deal of discretion in making that determination.” (Arega v. Bay Area Rapid Transit Dist. (2022) 83 Cal. App. 5th 308, 316.)

This court cannot find that Plaintiff acted reasonably under the circumstances. Even giving Plaintiff the benefit of the doubt by assuming she did, in good faith, believe the trial was set for July, she demonstrates no attempts to retain an attorney in the months preceding that date. Rather, it appears her attempts to find an attorney began in late 2022, months after the dismissal and judgment had already been entered. As noted above, she also never attempts to explain when or how she learned she had calendared the wrong trial date.

In Reply, Plaintiff filed a “Due Diligence Declaration” that leaves the pressing questions unanswered. She attests it “has been extremely difficult to find an attorney” to represent her. (Reply Decl. ¶ 2.) When she “learned that this case had been dismissed” she “immediately began working with [her] assistant contacting attorneys, looking up lawyers and asking everyone [she] could think of to make a recommendation.” (Id. ¶ 6.) Absent is any indication of when she learned the case had been dismissed. Plaintiff lists a variety of contacts and avenues she pursued to find a lawyer, but again without stating when these efforts occurred. (Id. ¶ 10.)

One hint is that a person she had contacted was of no help because he had “passed away in October 2022.” (Id. [emphasis added].) Of course, by October of 2022, the case had already been dismissed for about four months. She eventually found Counsel Kulick at some unspecified time. (Id. ¶ 11.)

Another more telling fact is this: As previously noted supra, this motion for relief was filed exactly 6 months from entry of the judgment. This suggest that Plaintiff (and/or her counsel) was well aware of this jurisdictional time limit.

Last, but not least, the Plaintiff never denies ever receiving the notices to her ‘Key Largo” address. This includes the notices sent to those addresses on 2/28/22, 6/20/22 and 6/28/22. Of course, there is a simple reason why she has not denied ever receiving same: She actually received them.

In short, this Court finds upon the totality of the circumstances upon the record before it that Plaintiff has actual notice of the trial date of 6/20/22, as well as the rulings therefrom, including the notice of entry of judgment. See, Notices of Rulings – 2/28/22, 6/20/22 and 6/28/22.

So at the very least, Plaintiff had actual knowledge by late June 2022, that her case had been dismissed and that a judgment had been entered against her. She has simply failed to adequately explain why it took her exactly six months to file this motion. “Couldn’t find an attorney” is not a sufficient excuse in this case.

This court recognizes that “reviewing courts tend to favor orders granting relief under section 473(b) in order to effectuate a policy favoring trial on the merits over dispositions by default. This policy, however, cannot invariably prevail over competing policies, including those that ‘favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.’ [Citation.] While ‘courts are liberal in relieving parties of defaults caused by inadvertence or excusable neglect,’ they ‘do not act as guardians for incompetent parties or parties who are grossly careless as to their own affairs. There must be rules and regulations by which rights are determined and under which judgments become final.’ ” (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1415.)

Under these circumstances, Plaintiff has not adequately demonstrated she moved with the required diligence to set aside the judgment or dismissal. Thus, this court concludes that Plaintiff has no relief available under the discretionary provision of section 473(b).

Judge of the Superior Court

FN 1 - As Plaintiff has not attached an attorney declaration of fault, the mandatory provision of section 473(b) is inapplicable.

FN 2 -Indeed, there are likely almost 100,000 practicing lawyers in the greater Los Angeles area.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.