Zeehandelaar v. Mahurin CA4/1 ( 2021 )

Filed 5/17/21 Zeehandelaar v. Mahurin 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
ANDRE ZEEHANDELAAR, D077118
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2017-
MICHAEL TODD MAHURIN et al., 00037736-CU-PO-CTL)
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of San Diego
County, Randa Trapp, Judge. Affirmed.
Andre Zeehandelaar, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
The trial court dismissed this case for “[l]ack of prosecution and failure
to appear” after plaintiff Andre Zeehandelaar failed to obtain a default
judgment after the case had been pending for more than two years, and failed
to appear at three consecutive hearings—including an order to show cause
(OSC) hearing regarding “Why [the] Case Should Not be Dismissed.” The
court then denied Zeehandelaar’s request to set aside the dismissal based on
“excusable mistake and neglect.” (Code Civ. Proc., § 473, subd. (b).)1
Zeehandelaar appeals the judgment of dismissal and postjudgment order
denying his request for section 473(b) relief. For reasons we will explain, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2017, Zeehandelaar filed a tort lawsuit against Michael
Todd Mahurin and the owners of real property on which Mahurin allegedly
assaulted and robbed Zeehandelaar. Zeehandelaar, who has a law degree but
does not practice law, represented himself.
Zeehandelaar had difficulty locating defendants to serve them with the
complaint and summons. He believed Mahurin was “hiding” from the sheriff
and a process server, and that the property owners lived outside California.
In June 2018, the court approved Zeehandelaar’s request to serve
defendants by publication. On August 17, 2018, Zeehandelaar filed a proof of
service indicating weekly publication began on June 28. Thus, service was
complete as of July 26, 2018,2 and defendants had until August 27 to respond
to the complaint.3
Also on August 17—the same day he filed his proof of service and 10
days before defendants’ response deadline—Zeehandelaar filed a request for
entry of default and a request for default judgment against defendants. The
1 Undesignated statutory references are to the Code of Civil Procedure.
For brevity, we will refer to section 473, subdivision (b) as section 473(b).
2 Service by publication is deemed complete on the twenty-eighth day
after publication begins. (See § 415.50, subd. (c); Gov. Code, § 6064.)
3 Defendants had 30 days from July 26 to respond (§ 412.20, subd. (a)(3)),
which fell on Saturday, August 25. The response deadline thus rolled to the
next court day, which was Monday, August 27. (§ 12.)
2
court notified Zeehandelaar it was “unable to process” the request because it
was “premature.” The court then set an October 19 OSC hearing regarding
Zeehandelaar’s “Failure to Request Entry of Default.”
The trial court’s minute order for the October 19 OSC hearing stated,
“Upon the Court’s inquiry, plaintiff will resubmit default judgment papers
forthwith.”
The same day as that hearing—over one year after he filed his
complaint—Zeehandelaar filed a new request for entry of default. The court
clerk entered defendants’ default as of that date.
In early January 2019, the trial court set an OSC hearing for late
January regarding “Failure to Request Entry of Default.” The appellate
record does not explain the impetus for this hearing, or whether
Zeehandelaar appeared at it. On the date of this hearing, the trial court
mailed notice to Zeehandelaar’s home address regarding an OSC hearing on
April 19 regarding “Failure to File Judgment.” This notice stated,
“Appearances at all hearings are mandatory unless specifically excused by
the court for good cause shown.”
It appears from the trial court’s minute order for the April 19 OSC
hearing that Zeehandelaar appeared and requested a continuance to June 7,
which the court granted.
The court’s minute order for the continued June 7 hearing stated,
“There are no appearances by any party.” The court mailed notice to
Zeehandelaar at his home address of an OSC hearing on August 2 regarding
“Failure to File Judgment.” This notice also warned that “[a]ppearances at
all hearings are mandatory unless specifically excused by the court for good
cause shown.”
3
The trial court’s minute order for the August 2 OSC hearing stated,
“There are no appearances by any party.” Accordingly, the trial court set an
OSC hearing for October 4 regarding “Why [the] Case Should Not be
Dismissed.” An entry in the register of actions on August 30 indicates the
October 4 OSC hearing was continued to November 1.4
The trial court’s minute order for the November 1 OSC stated: “There
are no appearances by any party. The Court orders the entire action
dismissed without prejudice. Lack of prosecution and failure to appear.”
On November 7, Zeehandelaar filed an ex parte request to set aside the
dismissal based on “excusable mistake and neglect.”5 In a supporting
declaration, he explained he mistakenly entered the November 1 hearing
date on his calendar for November 15 because the court clerk gave him the
new date via telephone while he was driving (see fn. 4, ante). He further
explained he was experiencing delays gathering records to prove up his
damages and was distracted by health issues his spouse was experiencing.
The court heard Zeehandelaar’s request on November 12.
Zeehandelaar appeared at the hearing, which was not reported. The court
denied his request with the following explanation in its amended minute
order: “The Court notes plaintiff defaulted defendants on 10/19/2018.
4 Zeehandelaar asserts in his appellate briefing that while he was
driving to court for a hearing on August 30, he spoke by telephone to a court
clerk who notified him the hearing would be continued to November 1. The
appellate record, however, does not indicate any hearing was set for August
30.
5 Zeehandelaar stated the request was based on “CCP § 472(b).” It is
clear he intended to refer to section 473(b).
4
Thereafter, plaintiff failed to appear for three consecutive Order to Show
Cause Re Judgment hearings on 06/07/2019, 08/02/2019 and 11/01/2019.”
Zeehandelaar appeals. Defendants have not appeared in the case.
DISCUSSION
I. Appellate Principles
“It is a fundamental rule of appellate review that a judgment is
presumed correct and the appealing party must affirmatively show error.”
(In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1484; see
Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) Even when, as
here, no respondent’s brief is filed, the appellant still bears the burden of
showing prejudicial error. (See Lee v. Wells Fargo Bank (2001) 88
Cal.App.4th 1187, 1192, fn. 7; Cal. Rules of Court,6 rule 8.220(a)(2).)
To overcome the presumption of correctness, “the appellant must
identify each order that he asserts is erroneous, cite to the particular portion
of the record wherein that ruling is contained, and identify what particular
legal authorities show error with respect to each challenged order.” (County
of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443; rule 8.204(a)(1)
[appellant’s brief must “support each point by argument”].) “When an
appellant . . . asserts [a point] but fails to support it with reasoned argument
and citations to authority, we treat the point as forfeited.” (Delta
Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075.)
The appellant must also provide an appellate record sufficient to
establish error as to each challenged order. (Jameson, supra, 5 Cal.5th at
p. 609.) “ ‘ “[I]f the record is inadequate for meaningful review, . . . the
decision of the trial court should be affirmed.” ’ ” (Gee v. American Realty &
6 Further rule references are to the California Rules of Court.
5
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) The appellant’s brief
must also “[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record where the matter appears.” (Rule
8.204(a)(1)(C).) An appellant who fails to provide proper citations to the
record to support appellate claims may be deemed to have forfeited those
claims. (Estates of Collins & Flowers (2012) 205 Cal.App.4th 1238, 1251, fn.
11 (Collins & Flowers); Alki Partners, LP v. DB Fund Services, LLC (2016) 4
Cal.App.5th 574, 589 (Alki Partners) [“An appellant who fails to cite
accurately to the record forfeits the issue or argument on appeal that is
presented without the record reference.”].)
An appeal is not a second trial. We do not reweigh evidence. (Curcio v.
Pels (2020) 47 Cal.App.5th 1, 12.) We “resolve all factual conflicts and
questions of credibility” in the prevailing party’s favor. (Schild v. Rubin
(1991) 232 Cal.App.3d 755, 762.) And we will affirm the judgment if it is
correct on any theory, regardless of the trial court’s reasoning. (Estate of
Beard (1999) 71 Cal.App.4th 753, 776-777.)
These appellate principles apply with equal force to self-represented
appellants. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th
1113, 1125-1126.)
II. Scope of Appeal
Zeehandelaar indicated in his notice of appeal that he is challenging
both the order of dismissal and the order denying his request for relief under
section 473(b). Both are appealable. (See Brehm v. 21st Century Ins. Co.
(2008) 166 Cal.App.4th 1225, 1234 [a “minute order . . . signed by the court
(or at least stamped with a replica of the trial judge’s signature)” is “an
appealable judgment under . . . section 581d”]; Austin v. Los Angeles Unified
School Dist. (2016) 244 Cal.App.4th 918, 928, fn. 6 [“An order denying relief
6
from a judgment under section 473(b) is a separately appealable
postjudgment order under . . . section 904.1, subdivision (a)(2).”].) However,
Zeehandelaar has not met his appellant’s burden as to either challenge.
First, in his briefing, Zeehandelaar has not addressed or challenged the
propriety of the trial court’s dismissal of the case for “[l]ack of prosecution
and failure to appear.” The judgment of dismissal is presumed correct
(Jameson, supra, 5 Cal.5th at pp. 608-609), and Zeehandelaar’s failure to
address the issue forfeits it on appeal (Delta Stewardship Council Cases,
supra, 48 Cal.App.5th at p. 1075).
Second, Zeehandelaar has not supported his challenge to the trial
court’s denial of section 473(b) relief with a single citation to the appellate
record. Although this would justify our deeming the challenge forfeited (see
Collins & Flowers, supra, 205 Cal.App.4th at p. 1251, fn. 11; Alki Partners,
supra, 4 Cal.App.5th at p. 589), we exercise our discretion to consider it on
the merits.
III. No Error in Denying Section 473(b) Relief
Zeehandelaar contends the trial court abused its discretion in denying
his request for section 473(b) relief. We disagree.
A. Legal Principles
Section 473(b) “contains both mandatory and discretionary provisions.”
(Huh v. Wang (2007) 158 Cal.App.4th 1406, 1414; see Shayan v. Spine Care
& Orthopedic Physicians (2020) 44 Cal.App.5th 167, 170.) The discretionary
provision applies here because Zeehandelaar is self-represented. (Esther B.
v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100 [“the discretionary
provision applies to a party, including a party appearing in propria
persona”].)
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Section 473(b)’s discretionary provision states: “The court may, upon
any terms as may be just, 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. 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.”
“The common requirement” for discretionary relief under section 473(b)
“is that the error must have been excusable.” (Solv-All v. Superior Court
(2005) 131 Cal.App.4th 1003, 1007.) “The standard is whether ‘ “a reasonably
prudent person under the same or similar circumstances” might have made
the same error.’ ” (Ibid.) “In determining whether to grant relief under this
provision, the court is vested with broad discretion [citation], and its factual
findings are entitled to deference. [Citation.] It has been repeatedly noted
that a decision should only be held to be an abuse of discretion if it ‘exceed[s]
the bounds of reason.’ ” (Ibid.) However, “[b]ecause the law favors disposing
of cases on their merits, ‘any doubts in applying section 473 must be resolved
in favor of the party seeking relief from default [citations]. Therefore, a trial
court order denying relief is scrutinized more carefully than an order
permitting trial on the merits.’ ” (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 980.)
B. Analysis
The only grounds for excusable neglect or mistake that Zeehandelaar
cited to the trial court were delays caused by the distraction from his spouse’s
health issues, and a calendaring error regarding the date of the November 1
OSC hearing regarding dismissal. The trial court did not abuse its discretion
in finding these grounds inadequate.
8
Over the course of more than one year (October 2018 to November
2019), the trial court held multiple OSC hearings to address Zeehandelaar’s
repeatedly deficient default judgment applications. The trial court
repeatedly warned Zeehandelaar in its hearing notices that his attendance
was mandatory. Yet, Zeehandelaar failed to appear for three consecutive
hearings—June 7 (a continued hearing date he requested), August 2, and
November 1—including one to address “Why [the] Case Should Not be
Dismissed.” In light of his track record of missed hearings, it was within the
trial court’s discretion to reject his proffered explanation for missing the
November 1 hearing.
Additionally, as of the date of dismissal—more than two years after he
filed the action, and more than one year after he obtained entry of
defendants’ default—Zeehandelaar still had not gathered the information he
needed to prove-up a default judgment. Indeed, in his appellate briefing, he
implies he still has not obtained the necessary information. The trial court
was best situated to determine whether Zeehandelaar’s two-year delay in
proving up his default judgment was excusable in light of his claim that he
was distracted by his spouse’s health issues.
Zeehandelaar cites two new grounds on appeal to support his claim
that the trial court abused its discretion. First, he asserts he missed the
November 1 hearing because he had just been diagnosed with cancer and
“was busy scheduling medical procedures with his doctors on the day of the
[hearing].” However, nothing in the appellate record substantiates the
assertion or indicates he ever mentioned it to the trial court. (See Bach v.
County of Butte (1989) 215 Cal.App.3d 294, 306 (Bach) [“It is elementary that
an appellate court is confined in its review to the proceedings which took
place in the trial court. [Citation.] Accordingly, when a matter was not
9
tendered in the trial court, ‘It is improper to set [it] forth in briefs or oral
argument, and [it] is outside the scope of review.’ ”]; Jameson, supra, 5
Cal.5th at p. 609, fn. 11 [stating the “ ‘immutable’ ” rule of appellate
procedure that “ ‘if it is not in the record, it did not happen’ ”].)
Second, Zeehandelaar argues his “delays were caused in much part by
the failure of [court clerks] to timely inform [him] of any rejections of his
requests For Default and Default Judgment.” This argument fails because
Zeehandelaar did not raise it in the trial court—which was best situated to
ascertain the veracity of the claim—or support it with citations to evidence in
the appellate record. (Bach, supra, 215 Cal.App.3d at p. 306.) Indeed, the
record reflects that over the course of the year following entry of default
against defendants, the trial court continuously informed Zeehandelaar
through OSC hearings of the need to prove up a default judgment (and even
continued one of those hearings at Zeehandelaar’s request).
Finally, Zeehandelaar invokes the public policy favoring adjudication of
cases on the merits. However, “that policy coexists with the policy ‘that a
plaintiff shall proceed with reasonable diligence in the prosecution of an
action.’ ” (Nye v. 20th Century Ins. Co. (1990) 225 Cal.App.3d 1041, 1045,
quoting § 583.130.)
10
DISPOSITION
The judgment of dismissal and the postjudgment order denying
Zeehandelaar’s request for section 473(b) relief are affirmed. Zeehandelaar to
pay respondents’ costs on appeal (if any).
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
11