Opinion
E067147
09-13-2018
LAW OFFICES OF MARC E. GROSSMAN, Cross-complainant and Respondent, v. ANGELA KENNEDY, Cross-defendant and Appellant.
Law Offices of Erik J. Hammett and Erik James Hammett for Cross-defendant and Appellant. Law Offices of Marc E. Grossman, Marc E. Grossman and Eva M. Hollands for Cross-complaint and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1509666) OPINION APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr. Judge. Affirmed. Law Offices of Erik J. Hammett and Erik James Hammett for Cross-defendant and Appellant. Law Offices of Marc E. Grossman, Marc E. Grossman and Eva M. Hollands for Cross-complaint and Respondent.
I.
INTRODUCTION
In an interpleader action, cross-defendant and appellant, Angela Kennedy, appeals from the judgment entered against her and in favor of cross-complainant and respondent, Law Offices of Marc E. Grossman (Grossman). Kennedy contends the trial court erred in striking her answer to Grossman's cross-complaint and entering default and default judgment against her. Kennedy also contends the trial court abused its discretion in denying her motion to vacate the order on September 2, 2016, entering the default judgment awarding Grossman $21,034.30 plus interest. We reject Kennedy's contentions and affirm the judgment.
Throughout the trial court proceedings, Kennedy represented herself, in propria persona. Nevertheless, she "must 'be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' [Citation.]" (Cassidy v. California Bd. Of Accountancy (2013) 220 Cal.App.4th 620, 628.) The trial court and this court therefore are not required to give Kennedy special treatment because she represented herself during the trial court proceedings.
II.
FACTS AND PROCEDURAL BACKGROUND
In July 2015, James Savage filed a complaint in interpleader against Kennedy and Grossman, alleging the following facts. Kennedy filed a lawsuit against Savage. (Angela Kennedy v. James Rhodric Savage, Los Angeles Superior Court case No. BC521537 (Kennedy lawsuit).) Grossman represented Kennedy during the Kennedy lawsuit. In May 2015, Grossman withdrew as Kennedy's attorney and served Kennedy and Savage with a notice of lien for attorney fees and costs in the amount of $24,009.30. In June 2015, the parties to the Kennedy lawsuit settled. Pursuant to the settlement agreement, Savage was to pay Kennedy $45,000, less the sum of three liens totaling $26,009.30. The liens included Grossman's lien. Under the settlement agreement, Savage was thus required to pay Kennedy $18,990.70. As to the Grossman lien, it was agreed that if Kennedy and Grossman were unable to jointly agree upon disbursement instructions for payment of the $24,009.30 to Grossman, Savage was to interplead the lien amount with the superior court.
Because Grossman and Kennedy disputed payment of the full amount of $24,009.30 from the settlement proceeds, Savage filed the instant complaint in interpleader, requesting the superior court to determine whether Grossman was entitled to any of the $24,009.30 in settlement proceeds. The $24,009.30 in remaining settlement funds was deposited with the court. Savage demanded in his complaint in interpleader that Kennedy and Grossman litigate their claims to the remaining settlement funds, and Savage be discharged from all liability regarding those funds. Savage also requested he be awarded his costs and reasonable attorney fees, paid from the remaining settlement funds deposited with the court.
In August 2015, Grossman filed a cross-complaint against Kennedy for fraud, breach of contract, and quantum meruit. The cross-complaint sought recovery of Grossman's attorney fees and costs from Kennedy for legal services provided in the Kennedy lawsuit.
In November 2015, the trial court granted Savage's motion for discharge and for attorney fees in the amount of $2,975. In December 2015, Kennedy filed an answer to the complaint in interpleader and cross-complaint. The joint trial on the complaint in interpleader and cross-complaint was set for March 14, 2016, and continued several times, at Kennedy's request, to May 2, 2016, July 15, 2016, and September 2, 2016. On September 2, 2016, Kennedy failed to appear for the trial.
The trial court therefore granted Grossman's oral motion to dismiss Kennedy's answer to the cross-complaint and proceeded with the trial on the complaint in interpleader. Grossman presented evidence supporting his attorney fees and costs claim to the $24,009.30 in remaining settlement funds. The court deducted Savage's attorney fees claim of $2,975, and awarded Grossman $21,034.30, plus interest.
Kennedy filed a motion to vacate and set aside default and the default judgment awarded to Grossman in the amount of $21,034.30. Grossman filed opposition, and the trial court heard and denied Kennedy's motion to vacate. The trial court entered a judgment in favor of Grossman and against Kennedy, in the amount of $21,034.30, plus interest, to be paid from the interpleaded funds of $24,009.30, minus $2,975 paid to interpleader counsel for Savage. The court further dismissed Grossman's cross-complaint without prejudice.
III.
DEFAULT JUDGMENT
Kennedy contends the trial court erred in striking her answer to Grossman's cross-complaint and entering default and a default judgment against her in the amount of $21,034.30, plus interest. Kennedy argues she properly filed an answer to the cross-complaint. Therefore, under Code of Civil Procedure section 585, subdivision (a), the trial court could not strike her answer and enter a default judgment against her. But section 585 is inapplicable because the judgment was entered on the complaint in interpleader and was not a default judgment.
Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
Section 585 concerns default proceedings resulting from a failure to answer a complaint. Section 585 provides, in relevant part, that "[j]udgment may be had, if the defendant fails to answer the complaint, as follows: [¶] (a) In an action arising upon contract or judgment for the recovery of money or damages only, if the defendant has . . . been served . . . and no answer . . . has been filed with the clerk of the court within the time specified in the summons . . . the clerk, upon written application of the plaintiff, and proof of the service of summons, shall enter the default of the defendant or defendants, so served, and immediately thereafter enter judgment for the principal amount demanded in the complaint . . . together with interest allowed by law or in accordance with the terms of the contract, and the costs against the defendant . . . ." Subdivision (e) of section 585 similarly addresses cross-complaints.
The record shows that, at the time of the trial, the court struck Kennedy's answer only as to Grossman's cross-complaint, because Kennedy did not timely appear for trial on the cross-complaint. The joint trial on the complaint in interpleader and cross-complaint was set for 10:00 a.m., on September 2, 2016. After the court and Grossman's counsel waited over half an hour for Kennedy to appear, the court granted Grossman's oral motion to strike Kennedy's answer to the cross-complaint for failure to appear for trial. The court then proceeded with the trial on the complaint in interpleader and permitted Grossman to prove up his interpleader claim for recovery of attorney fees and costs from the remaining settlement funds. After Grossman presented evidence supporting his interpleaded claim, the court found Grossman was entitled to recover $21,034.30, plus interest. Grossman consented to the court dismissing his cross-claims without prejudice. The court then properly entered judgment on the complaint in interpleader in favor of Grossman and against Kennedy for $21,034.30, plus interest.
The record thus shows that, instead of the court entering default and a default judgment, the court proceeded in Kennedy's absence with the properly noticed trial on September 2, 2016. The judgment states that the "action came on for trial" and Kennedy "did not appear at the trial" after having been "properly served with notice of trial." The judgment further states that on Grossman's oral motion, the court struck Kennedy's answer "for failure to appear." The court then found, based on the evidence presented, including exhibits 1 through 8 entered into evidence, that the attorney fees invoiced by Grossman were reasonable and necessary. The judgment stated Kennedy did not appear at trial, despite having been properly served with notice of trial.
Pursuant to section 594, subdivision (a), if the absent party has been given 15 days' notice of the trial, the court may proceed with the trial in that party's absence. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863.) Contrary to Kennedy's argument during oral argument, there was no requirement under section 594 or Heidary that a motion to continue the trial was required in the instant case, instead of proceeding with the trial in interpleader in Kennedy's absence. The trial on the complaint in interpleader had been properly noticed to commence on September 2, 2016, and Grossman was ready and willing to proceed.
Section 594, subdivision (a) provides: "(a) In superior courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days' notice of such trial or five days' notice of the trial in an unlawful detainer action as specified in subdivision (b). If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice."
Kennedy's reliance on Heidary v. Yadollahi, supra, 99 Cal.App.4th 857, for the proposition a motion to continue the trial was required is misplaced. Heidary does not support such a proposition and the instant case is distinguishable. In Heidary, the trial court entered defaults and default judgments against the cross-defendants for failure to appear at the trial. The court in Heidary held the default judgments were void because the cross-defendants did not receive notice of the trial. (Id. at p. 859.) The Heidary court further noted that, where defendants who have answered fail to appear for a properly noticed trial, "the court's only options when they did not appear were to proceed with the trial in their absence, or to continue the trial." (Id. at p. 864; italics added.) Unlike in Heidary, the instant case does not involve entry of default and a default judgment on the complaint in interpleader. In addition, the trial on the complaint in interpleader was properly noticed under section 594. The court therefore properly proceeded with the trial on the complaint in interpleader in Kennedy's absence.
Citing Barbaria v. Independent Elevator Co. (1955) 133 Cal.App.2d 657, 659, Kennedy further argues that the trial court could not strike her answer and enter a default judgment against her for failure to appear at trial, because she properly filed an answer to the cross-complaint. Barbaria is not on point. Here, there was no default or default judgment entered on the complaint in interpleader. Also, Barbaria does not involve a party failing to appear at a properly noticed trial, with the trial court allowing the trial to proceed as noticed in the absence of a party. Kennedy received adequate notice of the trial on the complaint in interpleader, held on September 2, 2016. Notice was provided on July 14, 2016. The trial court therefore properly proceeded with the uncontested trial, as noticed, in Kennedy's absence. Grossman was permitted to present evidence proving his interpleader claim seeking to recover attorney fees and costs from Kennedy. Because Kennedy failed to appear at the properly noticed trial and refute Grossman's evidence proving up his claim, the trial court appropriately entered judgment in favor of Grossman and against Kennedy.
Although the trial court granted Grossman's oral motion to strike Kennedy's answer, this was as to Grossman's cross-complaint, not the complaint in interpleader, with the case proceeding to trial on the complaint in interpleader in Kennedy's absence. The judgment against Kennedy awarding Grossman $21,034.20 plus interest, was therefore not a default judgment. Rather, it was a judgment entered on the complaint in interpleader after a properly noticed uncontested trial. Kennedy has not demonstrated any procedural or substantive defect concerning entry of judgment under section 594. The judgment against Kennedy, awarding Grossman $21,034.20 plus interest, therefore was proper.
IV.
MOTION TO VACATE JUDGMENT
Kennedy contends the trial court abused its discretion in denying her motion to vacate and set aside default and the default judgment entered against her on September 2, 2016 (motion to vacate). We disagree.
A. Procedural Background
On September 16, 2016, Kennedy filed her motion to vacate under section 473, subdivision (b). Kennedy stated in her supporting declaration that on Friday, August 26, 2016, "a call was placed to the Court" in an attempt to continue the trial. She was unable to obtain a continuance. The following Monday, another "call was placed to the Department Clerk" to request a continuance. The "Court" was told Kennedy was not feeling well and was concerned she might not be available for the noticed trial on September 2, 2016. The "Department Clerk" stated that her presence was required and, when she appeared for the trial, she could make an oral motion for a continuance.
Kennedy further stated in her supporting declaration that she intended to appear at the trial on September 2, 2016, but on the morning of the trial "inadvertently slept in" because of "long hours of preparation and feeling ill." She immediately contacted the court and told "Bob the Court Bailiff" of her "disbelief and concern" about missing the "hearing" (trial). The bailiff said the hearing was at 10:00 a.m. At approximately 9:00 a.m., Kennedy told the bailiff that she was on her way to the court. She called again at 10:00 a.m., informing the bailiff that she was gathering her documents and waiting for her mother to give her a ride to the courthouse. She said she needed a ride because of her illness, being on prescription drugs, and not being able to see clearly. By the time Kennedy arrived at the court, the courtroom was dark and the matter had already been heard and decided in favor of Grossman. Kennedy noted in her declaration that she is disabled and suffers from partial blindness. This, according to Kennedy, was why she was unable to arrive on time for the trial.
Kennedy attached to her declaration medical documents reflecting her physical ailments and the reasons for previous continuances. Two of the documents concerned her condition in April 2016, five months before the September 2016 trial. One of the documents concerned her left eye condition in April, November, and December 2015. Also attached was a copy of a doctor's letter dated April 18, 2016, stating that Kennedy was unable to appear in court from March 2016 to May 2016, because she was recovering from surgery. Grossman filed opposition to Kennedy's motion to vacate.
On October 17, 2016, the trial court heard Kennedy's motion to vacate. Counsel appeared on behalf of Grossman, and Kennedy appeared in propria persona. During oral argument, Kennedy repeated what she had stated in her declaration. She further stated that on the day of trial, she was waiting for her mother because her mother was a witness. Her mother was late. Kennedy told the court she appeared in court on the day of the trial but was late. She added that her money (the settlement funds) was in a court trust and she was trying to get it back. She said she could not afford an attorney and could not find an attorney who would take the case. Kennedy implored the court to vacate the judgment and allow her to present her case. After oral argument, the court took the matter under submission and subsequently denied Kennedy's motion to vacate.
B. Discussion
Section 473, subdivision (b), provides that "[a] 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." In general, a trial court's order granting or denying relief under the discretionary provisions found in section 473, subdivision (b), is reversible only on a finding of abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Ibid.) The party seeking relief must show a satisfactory excuse for the failure. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598; MJM, Inc. v. Tootoo (1985) 173 Cal.App.3d 598, 603-604.) When reviewing the evidence in support of a section 473 motion, "we extend all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Connolly, supra, at pp. 597-598.)
We recognize that, typically, public policy favors a trial on the merits. Therefore, an order denying relief from a default judgment is subject to closer appellate scrutiny than one granting such relief. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Here, as discussed above, the judgment in the instant case is not a default judgment. The judgment was entered following a trial on the merits.
In addition, Kennedy has not shown that the trial court abused its discretion in denying her section 473 relief from the judgment. The trial was properly noticed and was continued several times at Kennedy's request. After Kennedy called the court and again attempted to continue the trial, she was told she would have to appear for the trial on September 2, 2016, at 10:00 a.m. She then notified the court, on the morning of the trial, that she would be late. The court accommodated Kennedy by delaying the trial by half an hour but then proceeded with the trial in Kennedy's absence.
Kennedy did not demonstrate in her motion to vacate any satisfactory excuse for her failure to appear for the trial. Her excuses for not timely appearing for the trial were reasonably rejected by the trial court. Kennedy failed to establish that on September 2, 2016, she was incapable of appearing on time for the trial or that her failure to do so constituted excusable neglect or inadvertence under section 473. Although she called the court and said she would be late because she slept in, had physical health problems, and had to wait for a ride to court, the court reasonably concluded these were not valid reasons for Kennedy not being present for the trial, after the court waited half an hour for her to appear.
"Excusable neglect" under section 473, subdivision (b) is generally defined as an error a reasonably prudent person under the same or similar circumstances might have made. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354; accord, Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) We are not persuaded that a reasonably prudent person would have failed to appear at trial under the same or similar circumstances leading to Kennedy's nonappearance at trial on September 2, 2016. We therefore conclude the trial court did not abuse its discretion in denying Kennedy's motion to vacate the judgment.
V.
DISPOSITION
The judgment is affirmed. Grossman is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.