Bou v. Velasquez CA2/3 ( 2021 )

Filed 5/18/21 Bou v. Velasquez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CHANG H. BOU, et al. B294094
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC646387)
v.
JUAN VELASQUEZ et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Steven J. Kleifield, Judge. Affirmed.
Chang H. Bou and Jung J. Bou, in pro. per., for Plaintiffs
and Appellants.
Michael T. Stoller for Defendants and Respondents Juan
Velasquez and Camerino Islas, individually and in their
capacities as co-trustees of the Verdugo 2006 Equity Trust and
the Hamilton 2009 Trust, and Equity Assurance Group.
Peng Gao for Defendants and Respondents Aiguo Zhang
and Li Wang.
_____________________________
Plaintiffs and appellants Chang H. Bou (Mr. Bou) and Jung
J. Bou (Mrs. Bou), in propria persona, appeal a postjudgment
order that denied their motion pursuant to Code of Civil
Procedure section 473, subdivision (b), to set aside a judgment
dismissing their lawsuit.1
The Bous filed their motion to set aside the judgment five
and one-half months after entry of the judgment of dismissal. We
conclude the trial court properly found that the Bous’ delay in
bringing the motion was unreasonable, and therefore affirm the
order denying the motion to set aside the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 11, 2017, Mr. and Mrs. Bou filed suit alleging
the following eight causes of action: (1) legal malpractice; (2)
breach of fiduciary duty; (3) breach of written contract; (4)
declaratory relief; (5) breach of written contract; (6) specific
performance; (7) accounting; and (8) breach of the implied
covenant of good faith and fair dealing.
a. Dismissal of the first three causes of action.
The first three causes of action, by Mr. Bou alone, were
asserted against W. Dan Lee, an individual, and Lee Offices
(collectively, the Lee Parties). On September 11, 2017, the trial
court sustained their demurrer based on Mr. Bou’s lack of
standing to bring those claims, with 10 days leave to amend. On
September 29, 2017, no amendment having been filed, the trial
1 All undesignated statutory references are to the Code of
Civil Procedure.
2
court entered a judgment of dismissal in favor of the Lee parties
with respect to the first through third causes of action.
b. Dismissal of the fourth through eighth causes of
action of the complaint.
The fourth through eighth causes of action of the Bous’
complaint were asserted by Mrs. Bou alone, in her capacity as a
trustee of the Sage Property Trust (the Sage Trust). The named
defendants in those causes of action were: Juan Velasquez, also
known as J.C. Velasquez (Velasquez), individually and as a
trustee of the Verdugo 2006 Equity Trust (the Verdugo Trust)
and the Hamilton 2009 Trust (the Hamilton Trust); Camerino
Islas (Islas), individually and as a trustee of the Hamilton Trust
and the Verdugo Trust; Equity Assurance Group, a general
partnership (Equity); Li Wang (Wang); and Aiguo Zhang
(Zhang).2
Islas filed an answer to the complaint, while defaults were
entered against Velasquez, Wang and Zhang.
On February 9, 2018, the trial court granted an unopposed
motion for judgment on the pleadings on res judicata grounds in
favor of the movants, i.e., Islas individually and in his capacity as
trustee, and Equity.
On the same date, the trial court ordered the Bous to
submit default packages against the defaulted defendants,
Velasquez, Wang, and Zhang, by February 22, 2018, or the action
against them would be dismissed for lack of prosecution. The
Bous failed to comply with the court’s order.
2 On August 3, 2017, Islas filed a cross-complaint against the
Bous. The cross-complaint ultimately was dismissed and is not
at issue herein.
3
On March 1, 2018, pursuant to the grant of the motion for
judgment on the pleadings, as well as the Bous’ failure to
prosecute the action against the defaulted defendants, the trial
court entered a judgment dismissing with prejudice the fourth
through eighth causes of action.
c. The Bous’ unsuccessful motion to set aside the
judgment of dismissal.
On August 16, 2018, five and one-half months after entry of
the judgment of dismissal, the Bous filed a motion to set aside the
March 1, 2018 judgment of dismissal pursuant to section 473,
subdivision (b) and section 473.5. They contended the motion
was timely because they had not served with written notice of the
judgment of dismissal. They also asserted, in conclusory fashion,
that they have valid allegations and claims against the
defendants, and that the policy of the law is that controversies
should be resolved on their merits.
On September 28, 2018, the matter came on for hearing.
The trial court denied the motion to set aside the dismissal,
stating: “Lack of actual notice of the judgment of dismissal is not
grounds to set aside the ruling which caused the judgment to
issue. On 2/8/18, [the trial court] determined that the Complaint
against Defendant Islas was barred by the doctrine of res
judicata. Plaintiffs’ motion comes on 8/16/18, more than 6
months after this determination, and therefore outside the ambit
of CCP §§ 473 and 473.5. As to the defaulted defendants, [the
trial court] ordered Plaintiffs to submit default packages against
the defaulted Defendants on 2/8/18. Plaintiffs submit no evidence
that they were ignorant of this order. Nevertheless, Plaintiffs did
not submit the required packages, and they offer no reason either
for their failure to do that, or their failure to be diligent in
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making the instant motion sooner. For these reasons, the motion
is DENIED.”
On November 26, 2018, a timely notice of appeal was filed
from the September 28, 2018 order.
CONTENTIONS
The Bous contend the trial court erred in denying their
motion under section 473 as untimely because the motion, filed
on August 16, 2018, was brought less than six months after entry
of the judgment of dismissal on March 1, 2018. 3 They further
contend the error was prejudicial because absent the error, the
judgment of dismissal would have been set aside and the matter
would have been resolved on the merits.4
DISCUSSION
1. Procedural issues.
a. The scope of the appeal is limited to the September
28, 2018 order denying the motion to set aside the dismissal.
Appellants argue the trial court erred in granting Islas’s
motion for judgment on the pleadings because the complaint is
not barred by res judicata.
However, as this court noted in its March 12, 2020 order
denying a motion to dismiss the appeal as untimely, the appeal
was taken from the September 28, 2018 order denying the motion
3 Although the Bous’ motion below was based on both section
473, subdivision (b), and section 473.5, their appellate briefs do
not appear to rely on the latter statute.
4 We previously deferred ruling on a motion to augment the
record with documents appended to the appellants’ opening brief.
We now deny the motion to augment with respect to Exhibit D,
which does not appear to have been filed in the matter in the
court below, and otherwise grant the motion.
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to set aside the judgment, not the March 1, 2018 judgment that
was entered following the grant of the motion for judgment on the
pleadings. Therefore, our review is confined to the September 28,
2018 order that was specified in the notice of appeal.
b. The parties to the appeal: we construe the notice of
appeal to include Mrs. Bou as an appellant.
The appellants’ opening brief and the reply brief, both of
which were authored by Mr. Bou in propria persona, identify both
Mr. Bou and Mrs. Bou as appellants. However, the notice of
appeal was filed by Mr. Bou alone. Given this state of the record,
on March 12, 2021, this court requested briefing with respect to
why Mrs. Bou “should or should not be deemed an appellant in
this matter.”
K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal. 5th
875 (K.J.), is on point. There, a litigant’s notice of appeal from a
sanctions order was construed to include a sanctioned attorney,
whose name was omitted from the notice of appeal. (Id. at pp.
885-890.) The Supreme Court concluded “that a reviewing court
must construe a notice of appeal from a sanctions order to include
an omitted attorney when it is reasonably clear that the attorney
intended to join in the appeal, and respondent was not misled or
prejudiced by the omission.” (Id. at p. 885.) Guided by K.J., we
conclude that although Mrs. Bou’s name did not appear in the
notice of appeal, the notice of appeal should be construed to
include her as an appellant because it is reasonably clear that
she intended to join in the appeal, and respondents were not
misled or prejudiced by the omission. (Id. at pp. 885-890.)5 6
5 Respondents have not shown that they were misled or
prejudiced by the omission, and in fact, they did not respond to
this court’s invitation to brief the issue.
6
We now turn to the merits of the appeal.
2. The trial court acted within its discretion in finding that
the motion for relief under section 473, subdivision (b), was
untimely.
a. Governing principles.
Section 473 provides in relevant part at subdivision (b):
“The court may, upon any terms as may be just, relieve a party or
his or her legal representative from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect. Application
for this relief . . . shall be made within a reasonable time, in no
case exceeding six months, after the judgment, dismissal, order,
or proceeding was taken.” (Italics added.)
The party seeking relief under section 473 must be diligent.
(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal. 4th
249, 258; accord, Huh v. Wang (2007) 158 Cal. App. 4th 1406, 1420
[“threshold requirement for relief is the moving party’s
diligence”].) As the statute itself provides, “application for relief
‘shall be made within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was
taken.’ ” (Huh v. Wang, at p. 1420, original italics.) What
constitutes a reasonable time in any case depends upon the
circumstances of that particular case, and is a question of fact for
the trial court. (Minick v. City of Petaluma (2016) 3 Cal. App. 5th
15, 33 (Minick).) A delay is unreasonable as a matter of law
6 Bearing in mind that Mr. Bou, a nonattorney, cannot
represent Mrs. Bou in this matter, we deem her a co-author of
their appellate briefs.
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when it exceeds three months and there is no evidence to explain
the delay. (Id. at p. 34.)
We review the trial court’s finding that the Bous did not
file their motion within a reasonable time for an abuse of
discretion. (Minick, supra, 3 Cal.App.5th at p. 33.) Although an
order denying relief under section 473, subdivision (b) is
scrutinized more carefully than an order permitting trial on the
merits, our review nonetheless is “highly deferential.” (McClain
v. Kissler (2019) 39 Cal. App. 5th 399, 413.)
b. The trial court did not abuse its discretion in
finding the Bous’ motion for relief under section 473, subdivision
(b), was untimely.
In their moving papers in the court below, the Bous did not
even address whether their motion was timely under section 473,
subdivision (b). They merely argued the motion to set aside the
dismissal was timely because it was brought within the time
prescribed in section 473.5, subdivision (a) [two years after entry
of a default judgment or 180 days after service of notice of entry
of a default or default judgment]. Given the Bous’ failure to
present any legal argument, let alone any declarations or other
evidence, to establish that the five and one-half month interval
between the dismissal and the motion to set it aside under
section 473 was reasonable, we perceive no abuse of discretion in
the trial court’s ruling against them on this issue.
In their opening brief on appeal, the Bous contend their
motion under section 473 was timely because it was filed five and
one-half months after entry of the judgment of dismissal, and
therefore the motion was filed within the six-month deadline.
This argument is meritless because, as we have stated, six
months is merely the outer limit to file the motion. To reiterate,
8
section 473, subdivision (b), requires the motion to be filed
“within a reasonable time, in no case exceeding six months, after
the judgment, dismissal, order, or proceeding was taken.”
Therefore, the bare fact the motion was filed within the six-
month period does not render the motion timely.7
Further, we note that in their moving papers below, the
Bous contended their motion was timely because they had not
been served with written notice of the March 1, 2018 judgment of
dismissal. However, as the trial court found, irrespective of
whether the Bous had actual notice of the March 1, 2018
judgment of dismissal, by that date they were already on notice
that their case was headed for dismissal. As indicated, several
weeks earlier, on February 9, 2018, the trial court granted the
motion for judgment on the pleadings and ordered that a
judgment of dismissal be entered in favor of the movants. On
February 9, 2018, the court also ruled that unless the Bous
submitted a default package against the defaulted defendants by
7 In their appellants’ reply brief, the Bous assert, without
citation to the record, that they filed the motion to set aside the
dismissal “just four and a half months after learning of the
judgment of dismissal in the office of [their] former attorney
while picking up two boxes of case files.” (Italics added.)
However, points raised for the first time in a reply brief on appeal
will not be considered, absent good cause for failure to present
them earlier. (Nordstrom Com. Cases (2010) 186 Cal. App. 4th
576, 583.) Moreover, even if this unsupported new explanation
were credited, a four and one-half month delay in bringing the
motion after learning of the dismissal does not constitute
diligence in moving for relief.
9
February 22, 2018, the action would be dismissed as against the
defaulted defendants.8
In seeking to set aside the dismissal, the Bous did not
submit any evidence that they were unaware of the February 9,
2018 order that put their case on track for dismissal. Therefore,
the trial court properly found that irrespective of whether the
Bous had actual notice that a judgment of dismissal had been
entered on March 1, 2018, they were aware of the existence of the
February 9, 2018 order and its potential consequences, but were
not diligent in moving for relief under section 473. There was no
abuse of discretion.
8 In fact, the record reflects that as early as June 14, 2017,
the trial court warned the Bous at a case management conference
of a potential dismissal of the defaulted defendants.
10
DISPOSITION
The September 28, 2018 order denying the Bous’ motion to
set aside the judgment of dismissal is affirmed. Respondents
shall recover their costs on appeal.
NOT TO BE PUBLISHED
KALRA, J.*
We concur:
EDMON, P.J.
LAVIN, J.
________________________________
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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