Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. Nos. CGC04436457, CGC05437642, CGC06451646.
Margulies, Acting P.J.
This is the latest of multiple appeals we have decided concerning litigation ongoing in various forums for more than 25 years between Giovanni Zocca and his brother and sister-in-law, Raffaele and Mary Zocca. In this case, Raffaele obtained a defense verdict after a jury trial and was awarded costs of suit in the amount of $24,684. Giovanni moved successfully to have the judgment reduced to zero based on a setoff arising from another case. The Zoccas now appeal from ensuing orders (1) denying their motion to vacate the order reducing Raffaele’s judgment, and (2) granting Giovanni’s motion to compel Raffaele to execute and deliver an acknowledgement of satisfaction of judgment to him. We affirm the orders in issue.
To avoid confusing the identities of the litigants, we refer hereinafter to the parties individually by their first names and to Raffaele and Mary, collectively, as the Zoccas.
I. FACTUAL AND PROCEDURAL BACKGROUND
The present appeal arises from malicious prosecution and defamation claims filed by Giovanni in San Francisco County Superior Court. In case No. CGC04436457, Giovanni sued the Zoccas, their daughter, Anna Maria, and their former attorney, William Balin, for malicious prosecution. The malicious prosecution case arose from a judgment dismissing Anna Maria’s claims against Giovanni in San Mateo County Superior Court case No. 415615, which this court affirmed in a nonpublished opinion filed in April 2004. (Commonwealth Land Title Company v. Zocca et al. (Apr. 21, 2004, A101821).) Giovanni also filed a defamation action against Raffaele in the City and County of San Francisco, which was eventually consolidated with his malicious prosecution action. A judgment dismissing the defamation claim was entered in September 2007, following a jury trial, and a summary judgment in favor of the Zoccas and their daughter on Giovanni’s complaint for malicious prosecution was entered a few days later. Both judgments awarded the prevailing parties costs of suit. Raffaele submitted a memorandum of costs totaling $24,684, and the trial court entered an amended judgment in favor of Raffaele for $24,684, on December 21, 2007. On August 13, 2008, Raffaele recorded an abstract of judgment for that amount in the City and County of San Francisco.
Case No. 415615 was one of three consolidated cases involving the Zoccas and Giovanni that were resolved by a judgment entered on June 13, 2008, awarding Giovanni net monetary damages of $51,361.38 (hereafter the San Mateo judgment). Giovanni appealed from various aspects of the judgment, and we affirmed it in a nonpublished opinion filed in October 2009. (Commonwealth Land Title Company v. Zocca et al. (Oct. 15, 2009, A120397).)
On September 16, 2008, Giovanni filed a motion to reduce Raffaele’s judgment to zero based, in the alternative, on two asserted offsets in Giovanni’s favor: (1) an offset of $35,000 based on language in the San Mateo County Superior Court judgment recognizing settlement funds previously received by the Zoccas in that amount as a valid offset in one of the consolidated cases; and (2) the final net monetary award of $51,361.38 in favor of Giovanni in the San Mateo judgment. Raffaele, who was in pro. per. at that time, filed no opposition to the motion to reduce his judgment to zero. The motion was granted on October 16, 2008, and notice of the order granting it was served the same day.
The offset was described in the San Mateo judgment as arising from “a settlement previously received by Raffaele and Mary Zocca in the Zocca v. Beckwith litigation, San Mateo Superior Court case no. 416076.” The record does not disclose the subject matter of the Beckwith case. The judgment recognized the Zoccas’ settlement receipts as an offset against a statutory award of damages the Zoccas won against Giovanni in case No. 415615, which the Zoccas had continued to litigate against Giovanni after their daughter’s claim in that case was dismissed.
On October 22, 2008, the Zoccas filed a motion for relief under Code of Civil Procedure section 473, subdivision (b) (hereafter section 473(b)), asserting they failed to file a timely opposition to Giovanni’s motion to reduce the judgment to zero due to excusable neglect. The trial court denied the Zoccas’ October 22 motion on November 10, 2008, citing the fact that the Zoccas failed to attach their proposed opposition to Giovanni’s motion to their motion for relief, as required by section 473(b).
The judgment was against Raffaele only, but the relevant motions, and this appeal, were filed on behalf of both Raffaele and Mary.
Section 473(b) provides in pertinent part as follows: “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 accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken....”
On November 24, 2008, the Zoccas filed a second motion for relief under section 473(b) alleging the same “excusable neglect” grounds as their October 22 motion and including a proposed opposition to Giovanni’s motion to reduce the judgment to zero. The motion included affidavits from the Zoccas, as well as an affidavit of a paralegal, Jan Branger, who had assisted them in communicating with Giovanni’s counsel, Christopher Cole, concerning Giovanni’s motion to reduce the judgment. Raffaele averred he first obtained a copy of the motion on September 22, 2008. He stated that due to the complexity of the motion and the skill and attention required to respond to it, he and Mary “were unable to devote the time and effort necessary to respond timely by the deadline of October 3, 2008.” Due to the Zoccas’ antagonistic relationship with Cole, they asked Branger to contact him to request a 30-day continuance. They had difficulty reaching Branger because he was on the East Coast. On September 30, 2008, Branger called Cole and left a message requesting a continuance. On the following day, he sent Cole an e-mail to the same effect. Cole responded by e-mail on October 2, 2008, advising that “[o]ne concern about agreeing to a continuance” was the fact the Zoccas had a judgment they could seek to enforce against Giovanni at any time. Cole’s e-mail asked for an explanation of the reasons for the “lengthy continuance” requested, and inquired whether the Zoccas would stipulate to an order staying any enforcement of the judgment. The e-mail stated: “I want to emphasize that even with such an agreement I cannot now agree to a continuance, but I can further consider the continuance issue.” Cole further informed the Zoccas in the e-mail that he had no authority to grant any extensions of time and could only give the request “further consideration.” The Zoccas immediately agreed to the proposed stipulation to stay enforcement of the judgment, and Branger informed Cole of this. On October 6, 2008, Cole e-mailed Branger, refusing to continue the hearing. The Zoccas averred in their section 473(b) motion that they felt Cole had misled them by suggesting Giovanni would agree to a continuance if the Zoccas agreed not to enforce the judgment against his client.
The Zoccas filed an ex parte application to continue the October 16 hearing date, and appeared at the hearing on October 16 to ask for a postponement. These requests were denied.
In the proposed opposition to Giovanni’s motion to reduce Raffaele’s judgment to zero submitted with their second section 473(b) motion, the Zoccas asserted there was no legal basis for the $35,000 offset right Giovanni claimed because the offset was not awarded “in” the consolidated cases, but “in” the Zocca v. Beckwith case that was settled. The Zoccas asserted the trial court in this case had lacked “jurisdiction” to grant the offset.
Giovanni moved for an order to strike the Zoccas’ second motion for relief under section 473(b) on the grounds the court had previously denied the same motion. On December 11, 2008, Giovanni filed his own motion to require Raffaele to execute a satisfaction of judgment, which was heard together with the Zoccas’ motion for relief on January 16, 2009. Giovanni also filed a written opposition to the Zoccas’ second motion, contending among other things that (1) Cole’s October 6 e-mail was not misleading since he made clear he had no authority to grant any extensions of time; (2) the Zoccas’ proposed opposition to Giovanni’s motion to reduce the judgment to zero failed to produce a single legal authority or evidentiary fact showing the result would be different if Giovanni’s motion were to be reheard and the opposition considered; and (3) the Zoccas failed to demonstrate their failure to file a timely opposition was the result of excusable neglect.
The court denied Giovanni’s motion to strike as moot when it ruled on the merits of the Zoccas’ second motion.
At the hearing on the Zoccas’ second motion for relief the court expressed skepticism as to whether it should grant the motion when it did not appear there was any merit to the Zoccas’ belated opposition to Giovanni’s motion for setoff. The Zoccas told the court the Beckwith settlement had only been allowed as an offset against the $500 statutory damages award in the San Mateo case because the Beckwith suit sought the same damages. They maintained Raffaele’s $24,684 judgment in this case could only be offset against Giovanni’s $51,361.38 judgment in the San Mateo cases. In response, Giovanni’s counsel asserted, without elaboration, that the $35,000 offset applied “against any type of damages.”
If counsel had a good faith basis for his representation to the court, we cannot find it on the record before us. The San Mateo judgment itself does not recognize a $35,000 setoff right in Giovanni’s favor outside of case No. 415615. Since the setoff in that case was based on settlement proceeds received by the Zoccas rather than on any debt or judgment running in favor of Giovanni, we have no reason to disbelieve the Zoccas’ argument, articulated for the first time on this appeal, that the $35,000 setoff was granted under Code of Civil Procedure section 877 on the theory that Beckwith and Giovanni were jointly liable for the tort damages sought in case No. 415615. (See Code Civ. Proc., § 877, subd. (a).) Giovanni offers no evidence or argument to the contrary. Such a setoff would have no application to Raffaele’s judgment here, for court costs incurred in successfully defeating Giovanni’s tort claims against him. However, as discussed post, the merits of Giovanni’s setoff motion in this case have not been preserved for appellate review. The documents the parties filed in the San Mateo action concerning the setoff are also not before us because the Zoccas never requested judicial notice be taken of them in the trial court. For that reason, and due to Giovanni’s objections, we have denied the Zoccas’ efforts to have us consider those documents in this proceeding. (See The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 404 [appellate court will normally not take judicial notice of documents that were not provided to the trial court].)
By orders filed on January 21, 2009, the trial court denied the Zoccas’ motion for relief under section 473(b) and granted Giovanni’s motion to require Raffaele to execute and deliver a satisfaction of judgment. The Zoccas filed a notice of appeal on January 30, 2009, from the “Order granting Motion to require Raffaele Zocca to execute and deliver a Satisfaction of Judgment entered in this action on January 16, 2009 and from all rulings made in this case which are appealable orders and from the judgment entered in this action.” An amended notice of appeal filed on February 2, 2009, added “the Order denying [the Zoccas’] Motion for Relief under Code of Civil Procedure section 473(b) entered on January 21, 2009, ” to the actions appealed from. A second amended notice of appeal filed on March 9, 2009, deleted the explicit reference to the January 21 order denying the Zoccas’ motion under section 473(b), and contained an election to proceed with an appendix under California Rules of Court, rule 8.124.
II. DISCUSSION
A. Scope of Appellate Review
The dispositive issue in this case is whether we are permitted to review the merits of the trial court’s decision to grant Giovanni a setoff of $35,000. The Zoccas claim the central issue before this court is “whether the offset which was allowed by the trial court, reducing Appellants’ award to zero, is the type of offset that can be applied to a separate cause of action in another court.” Giovanni argues at length that whether the trial court erred in granting the original order reducing Raffaele’s judgment against him to zero is “not an issue for decision in this appeal.” We conclude Giovanni has the better of this argument.
Although the Zoccas’ notices of appeal are broadly worded, they state expressly in their briefs on appeal that they are appealing from two orders-the January 21, 2009 order denying the Zoccas’ second motion for relief under section 473(b) and the order of the same date granting Giovanni’s motion to compel Raffaele to execute and deliver a satisfaction of judgment. The Zoccas state, apart from these two orders, “There are no other issues or appealable orders under consideration.” Giovanni maintains the Zoccas’ purported appeal from the January 21 order denying the Zoccas’ second motion for relief under section 473(b), although timely, should be dismissed because two of the Zoccas’ notices of appeal do not specifically mention that order. But a notice of appeal must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 8.100(a)(2); In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 252.) Although the Zoccas’ second (and final) amended notice of appeal dropped the explicit reference to the order denying their second section 473(b) motion, all three notices purported to appeal from “all rulings made in this case which are appealable orders.” That language is broad enough to encompass the January 21 order denying the Zoccas’ motion under section 473(b). (See Luz v. Lopes (1960) 55 Cal.2d 54, 59–61 [notice of appeal from order denying relief from default judgment and “ ‘all orders and rulings’ ” adverse to appellant embraces default judgment itself, as well as order denying relief from judgment].) The wording of the notices, combined with the contents of the appellant’s appendix and opening brief, made it “ ‘reasonably clear’ ” the Zoccas were trying to appeal the January 21 section 473(b) order. (D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361.)
The “Statement of Appealability” in the Zoccas’ opening brief states: “Appellant filed a motion for relief under Code of Civil Procedure, section 473(b) on October 22, 2008 [which had to be refiled on November 24, 2008] and this motion was denied pursuant to an order entered January 21, 2009... The appeal is taken from that order which disposes of all issues between the parties.” (Italics added.)
We also reject Giovanni’s argument that the Zoccas abandoned their appeal from the order requiring Raffaele to execute and deliver a satisfaction of judgment by failing to mention that order in their opening brief or to present any argument as to why the trial court erred in granting it. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1177 [“Generally, appellants forfeit or abandon contentions of error... by failing to raise or address the contentions in their briefs on appeal”].) In this case, however, the correctness of the satisfaction of judgment order depends entirely on the correctness of the order denying relief under section 473(b). Any argument for reversing the latter applies with equal force to the former. Accordingly, we find the Zoccas have not abandoned their appeal of either of the orders entered on January 21, 2009.
Finally, although the bulk of the Zoccas’ opening brief addresses whether Giovanni was entitled to a setoff of $35,000, the correctness of the order granting that setoff and reducing the Zoccas’ judgment to zero is not in fact before us on this appeal. We cannot construe the notice and amended notices of appeal as embracing the order granting a setoff because none of the notices explicitly mention that order and the Zoccas make no assertion in their briefs that they are appealing from it. Further, although the trial court focused exclusively on the substantive basis for the setoff at the hearing on the Zoccas’ motion for relief under section 473(b), and may have denied the motion because it could not understand the grounds for the Zoccas’ objections to it, or because Giovanni’s attorney may have misled it about the nature of the setoff, those matters are immaterial to this appeal. We do not review the reasons for the trial court’s decision, but must affirm it if it is correct on any theory, even if the trial court’s reasoning was erroneous. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329–330 (Davey); J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15–16.)
Giovanni claims an appeal from the October 16 order granting the setoff would have been untimely. We are not convinced of that (see Cal. Rules of Court, rule 8.108(c)), but need not decide that issue.
Davey states: “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” (Davey, supra, 116 Cal. at p. 329.)
As discussed below, the January 21 order denying relief under section 473(b) must be upheld because the Zoccas failed to show “excusable neglect” in failing to file an opposition to Giovanni’s motion for setoff. The accompanying order to compel Raffaele to execute and deliver a satisfaction of judgment must be upheld because Giovanni became entitled to it once the Zoccas’ motion under section 473(b) was denied.
B. Denial of Section 473(b) Motion
Section 473(b) authorizes a trial court to relieve a party from an order entered against him or her “through his or her mistake, inadvertence, surprise, or excusable neglect.” A motion for relief from a judgment under section 473(b) “is addressed to the sound discretion of the trial court; its decision will not be overturned on appeal absent a clear showing of abuse of discretion.” (Rivercourt Co. Ltd. v. Dyna-Tel, Inc. (1996) 41 Cal.App.4th 1477, 1480.) A party seeking relief from an order or judgment under section 473 has the burden of establishing the basis for relief. (Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239.) “[I]f a party fails to show that a judgment has been taken against him through his mistake, inadvertence, surprise or excusable neglect the court may not grant relief. It has no discretion.” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528.) 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.)
In this case, the papers the Zoccas submitted in support of their section 473(b) motion show they were timely served with the Giovanni’s motion, knew when their opposition was due to be filed, knew when the hearing on the motion would take place, and understood a substantial amount of money was at stake. The Zoccas admitted they first saw the moving papers 11 days before any opposition was due, but “were unable to devote the time and effort necessary to respond... by the deadline.... ” Standing alone, claims of being “ ‘overwhelmed and disorganized’ ” or “ ‘press of business’ ” are insufficient to establish excusable neglect in failing to oppose a motion. (See Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423–1424.) After receiving the motion, it took the Zoccas at least eight days to have their paralegal request a continuance from Giovanni’s counsel, Christopher Cole-a delay for which the Zoccas offered no satisfactory explanation. To excuse their delay after that point, the Zoccas argued the October 2, 2008 e-mail from Cole misled them into believing the hearing would be continued if they agreed to defer seeking enforcement of the judgment. But the e-mail by its terms made no promise to grant the Zoccas a continuance even if they did agree to the condition. From all indications, the Zoccas simply chose to ignore the caveats Cole put in his e-mail and take the risk he would nonetheless come through with a continuance. A reasonably prudent person in those circumstances would not have so misconstrued Cole’s e-mail or taken that risk. The Zoccas themselves acknowledged in their moving papers that their prior relationship with Cole had been antagonistic, not courteous. Based on the entirety of their submission to the trial court, the Zoccas were unable to establish that their failure to file an opposition to Giovanni’s setoff motion resulted from excusable neglect. (See, e.g., Baker v. Baker (1968) 260 Cal.App.2d 202, 206 [no sufficient showing of mistake, inadvertence, surprise or excusable neglect where moving party failed to show facts from which an agreement not to take his default might be reasonably inferred].)
They claimed unspecified difficulties with “cell phone contact” and “internet connections” in trying to communicate with their paralegal assistant on the East Coast, but this does not satisfactorily explain an eight-day delay.
The Zoccas offer no contrary argument in their briefs and do not otherwise address the question of whether they met their burden of demonstrating excusable neglect. Accordingly, we hold that the Zoccas’ section 473(b) motion was properly denied, and the order requiring Raffaele to execute and deliver a satisfaction of judgment was properly granted.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: Dondero, J., Banke, J.