Marriage of Santillan CA4/1 ( 2014 )

Filed 11/18/14 Marriage of Santillan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of MARIA CARMEN
and JULIO CESAR SANTILLAN.
D064022
MARIA CARMEN SANTILLAN,
Respondent, (Super. Ct. No. EFL14212)
v.
JULIO CESAR SANTILLAN,
Appellant.
APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Jr.,
Judge. Affirmed.
J. Manuel Sanchez & Associates and J. Manuel Sanchez for Appellant.
Marcus Family Law Center, Erin K. Tomlinson, Moriel Cohen, Ethan J. Marcus
and Case Y. Kamshad for Respondent.
INTRODUCTION
Husband appeals from a court order denying his request to set aside a default and
default judgment under Code of Civil Procedure section 473, subdivision (b).1 He
contends we must reverse the order because the default and default judgment were the
result of surprise and excusable neglect. We conclude husband has forfeited these
contentions by failing to seek relief on these grounds below. Even if he had not forfeited
these contentions, we affirm the order as he failed to establish the requisite surprise and
excusable neglect.
BACKGROUND
On December 27, 2012, wife filed a petition for dissolution of her marriage to
husband. The two had been married almost 31 years. On the same day, wife also
obtained a temporary domestic violence restraining order against husband. The order
included provisions giving her control of their home and requiring him to move out of it
immediately. At a hearing on January 11, 2013, in which husband represented himself,
the court granted wife a protective order effective for five years. Like the temporary
restraining order, the protective order gave her control of their home and required him to
move out of it immediately. At the same hearing, husband was served with wife's
dissolution petition.
1 Further statutory references are also to the Code of Civil Procedure unless
otherwise stated.
2
On February 20, 2013, wife requested entry of husband's default. On the same
day, she filed an income and expense declaration stating she had gross monthly income
of $2,168.17 and estimated monthly expenses of $2,384.98 plus monthly credit card
payments of $345. She estimated husband had a monthly income of $620. The court
entered default as requested on February 22, 2013.
On February 25, 2013, the court entered a judgment of dissolution. In the
judgment, the court reserved spousal support for future determination and made wife
responsible for approximately $12,000 in credit card debts. The court divided the marital
property by awarding wife their home, the furnishings in it, two cars, 100 percent of the
community interest in her retirement plan, approximately $60,000 from his 401k plan,
and 50 percent of the community interest in his retirement plan. The court awarded
husband three cars, a flatbed trailer, a motor home, tools, approximately $80,000 from his
401k plan, and 50 percent of the community interest in his retirement plan.
On March 22, 2013, husband, now represented by counsel, filed a request for an
order setting aside the default and default judgment under section 473, subdivision (b).2
In his supporting memorandum of points and authorities, husband asserted the grounds
for setting aside the default and default judgment were extrinsic fraud and lack of actual
notice of the divorce proceedings. In his supporting declaration, he stated he and wife
verbally agreed, on December 16, 2012, to hire an attorney to represent them both and to
2 Husband also requested spousal support, which the court later denied. We do not
address the propriety of the spousal support order because husband's opening brief does
not raise any specific challenges to it.
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file for a stipulated divorce. They also agreed to divide all of the community assets
equally and to reserve the issue of spousal support. He was subsequently shocked when a
sheriff's officer served him with a restraining order and evicted him from their home on
January 2, 2013. He was homeless for three days afterwards until he moved in with his
sister. He was also penniless because wife had deposited his monthly retirement check
into her credit union account and then withdrew the entire amount.3 He has diabetes and
the situation affected his health as well as caused him to suffer from depression. He did
not understand the pleadings served on him because his first language is Spanish and he
was too affected by the restraining order and eviction to focus on anything else.
Wife opposed the request for relief. In her supporting declaration, she stated
husband speaks English and the summons with which he was served was translated into
Spanish. She did not feel comfortable hiring a joint attorney because she did not trust
husband, in part because of the domestic violence she endured throughout their marriage.
The judgment divided their community property evenly. She deposited his retirement
check into her account because, at that point, the court's judgment entitled her to half of it
and he had not yet cooperated with her to get a qualified domestic relations order issued
to separate their interests. Husband's health problems have been long-standing.
3 The documents husband provided to support this statement showed the deposit and
withdrawal occurred in March 2013.
4
The court denied husband's request for relief, finding no basis to set aside the
default and default judgment. Husband sought reconsideration of the court's decision and
the court reaffirmed it.
DISCUSSION
Husband contends the court should have granted his request to set aside the default
and default judgment because they were the result of surprise and excusable neglect.
Husband has forfeited these contentions because he did not seek relief on either ground
below. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) Instead, he
sought relief on the grounds of extrinsic fraud and lack of actual notice. Even if husband
had not forfeited these contentions, we are not persuaded the court erred in denying him
relief.
Under section 473, subdivision (b), a court has the discretion, "upon any terms as
may be just, [to] relieve a party . . . from a judgment, dismissal, order or other proceeding
taken against him or her through his or her mistake, inadvertence, surprise, or excusable
neglect." We will not reverse a ruling on a motion for discretionary relief under section
473, subdivision (b), absent a clear showing of abuse. (State Farm Fire & Casualty Co.
v. Pietak (2001) 90 Cal.App.4th 600, 610.) The appropriate test is whether the court's
ruling exceeded the bounds of reason considering all the circumstances before it. (Ibid.)
A
Husband contends the default and default judgment were the result of "surprise"
because he and wife had a verbal agreement to hire a joint attorney and file for a
stipulated divorce. He further contends wife never told or hinted to him she was
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terminating their agreement. We cannot determine from the record before us whether the
agreement ever existed or whether the court made any factual finding as to its existence.
Assuming the agreement's existence, it does not support the granting of relief on the
ground of "surprise."
"The term 'surprise,' as used in section 473, refers to ' "some condition or situation
in which a party . . . is unexpectedly placed to his injury, without any default or
negligence of his own, which ordinary prudence would not have guarded against." ' "
(State Farm Fire & Casualty Co. v. Pietak, supra, 90 Cal.App.4th at p. 611.) Whatever
husband and wife may have agreed to on December 16, 2012, no ordinarily prudent
person would have relied upon the agreement after wife had husband evicted from their
home, obtained a five-year domestic violence protective order against him and had him
personally served with a petition for dissolution. This is particularly true since the
petition states on its face wife was the only client of the law firm filing it.
In fact, the record shows husband surmised he could not rely upon the agreement
well before he was served with the dissolution petition. He stated in his declaration, "On
January 2, 2013 I was shocked and taken aback by the fact that my wife sent a sheriff to
our home for the purpose of serving me with a restraining order and evicting me from our
home. This was a 360 degree turn in the opposite direction of what my wife and I had
discussed. She obviously had no intentions of respecting the terms of our agreement and
resolving our divorce amicably. I was fooled into thinking this so she could take
advantage." (Italics added.)
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"It is the duty of every party desiring to resist an action or to participate in a
judicial proceeding to take timely and adequate steps to retain counsel or to act in his own
person to avoid an undesirable judgment. Unless in arranging for his defense he shows
that he has exercised such reasonable diligence as a man of ordinary prudence usually
bestows upon important business his motion for relief under section 473 will be denied."
(Elms v. Elms (1946) 72 Cal.App.2d 508, 513.) As husband has not shown he exercised
reasonable diligence to avoid the default and default judgment, husband has not
established the court exceeded the bounds of reason by denying him relief on the ground
of surprise.
B
Husband alternatively contends the default and default judgment were the result of
excusable neglect because he was suffering from a physical disability (diabetes) and
mental disability (major depression) when they occurred. " 'Excusable neglect' is
generally defined as an error ' " 'a reasonably prudent person under the same or similar
circumstances might have made.' " [Citation.]' " (Ambrose v. Michelin North America,
Inc. (2005) 134 Cal.App.4th 1350, 1354, citing Zamora v. Clayborn Contracting Group,
Inc. (2002) 28 Cal.4th 249, 258.) Excusable neglect may result from a disability. (In re
Marriage of Kerry (1984) 158 Cal.App.3d 456, 465.)
In this case, the only evidence related to husband's purported disabilities is
contained in the following two sentences from his declaration: "I am a diabetic and this
whole situation has affected my health. As a result I have also begun suffering from
depression." While this evidence might demonstrate husband has disabilities, it does not
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demonstrate husband's disabilities were debilitating or otherwise actually prevented him
from taking reasonable steps to protect his interests in this matter. (Wilterdink v.
Wilterdink (1947) 81 Cal.App.2d 526, 531-532; Elms v. Elms, supra, 72 Cal.App.2d at
p. 513 [a person may not obtain relief from a default unless he demonstrates his
excusable neglect was the actual cause of the default].)
Presumably aware of this evidentiary gap, husband points to other statements in
his declaration to bolster his position. Specifically, he stated in his declaration, "My
original first language is Spanish and I am unfamiliar with legal terms so I could not
understand any of the pleadings that were served on me. This coupled with the fact that I
was severely affected with being served with a restraining order and evicted, I could not
focus on anything else that was happening."
We find these statements unavailing. Not only are they untethered to any of
husband's claimed disabilities, but they describe a rather typical reaction under the
circumstances. Were we to hold a litigant faced with typical litigation stresses could rely
on those stresses to excuse him from taking reasonable steps to protect his interests in the
litigation, we would create the proverbial exception that swallowed the rule. We,
therefore, conclude husband has not shown the court exceeded the bounds of reason by
denying him relief on the ground of excusable neglect.4
4 Given our conclusions, we need not address husband's contention denial of relief
resulted in a miscarriage of justice.
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DISPOSITION
The order is affirmed. Respondent is awarded costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
HALLER, J.
AARON, J.
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