Dareing v. Summers

 

 

 

 

 

 

 

 

 

Filed 12/3/13  Dareing v. Summers CA1/5

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FIRST APPELLATE
DISTRICT

 

DIVISION FIVE

 

 

 
>

ANDREA G. DAREING,             Plaintiff and Appellant,                         v. JIM SUMMERS,             Defendant and Respondent.

A136955               (>Alameda> County             Super. >Ct.> No. HG10523842)

 

            Plaintiff
Andrea G. Dareing appeals from an order denying her motion to set aside an
order of dismissal pursuant to Code of Civil Procedure section 473, subdivision
(b) (section 473(b)).  We affirm.

BACKGROUND

            In
2010, Dareing, acting in propia persona, filed a complaint against defendant
Jim Summers for breach of contract and
fraud.  Summers demurred and Dareing
amended her complaint before the demurrer hearing.  Summers demurred to the href="http://www.fearnotlaw.com/">first amended complaint, and his demurrer
was sustained on the ground that the complaint was “largely unintelligible” and
left the court “unable to discern . . . what wrongdoing [Dareing] is
asserting against [Summers] and the specific facts upon which she bases [her]
claims.”  The court granted Dareing leave
to amend and provided her with detailed instructions about the applicable
pleading requirements.  Dareing filed a
second amended complaint which fared no better than her first.  In a September
23, 2011 order, Summers’s demurrer to this complaint was sustained
on the ground that the complaint “continues to be largely unintelligible.”  Dareing was granted leave to amend, again
with specific instructions regarding pleading requirements.

            On
October 12, 2011, Dareing
filed a document entitled “Notice of Objection and Reply to Defendant Jim
Summers Demurrer By Plaintiff’s Third Amended Complaint.”  Summers construed this document to be a third
amended complaint and again demurred.  In
January 2012, the trial court sustained the demurrer, finding the complaint not
timely filed, not in compliance with the Rules of Court, and “still
. . . not stat[ing] a cognizable cause of action under California
law.”  Because Dareing failed to
demonstrate she could cure the defects, the court denied her leave to amend and
dismissed the action.

            In
May 2012, Dareing apparently served on Summers, but did not file with the
court, a motion to set aside the January 2012 order pursuant to section
473(b).  Summers, unaware the motion had
not been filed, filed an opposition and Dareing filed a reply.  In her reply brief, Dareing stated she was
“removed” from her home on or about May 9, 2011, was homeless and slept in her
car for “many months,” and had to put a close family pet to sleep.  Her contention appears to be that but for
such circumstances, she would have filed an adequate third amended
complaint.  After a hearing, the court
denied Dareing’s motion because she “has not demonstrated mistake,
inadvertence, or excusable neglect.”href="#_ftn1" name="_ftnref1" title="">[1]

DISCUSSION

            Section
473(b) authorizes a court to grant a party discretionary relief from “a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.”  “ â€˜A ruling on a motion for
discretionary relief under section 473 shall not be disturbed on appeal absent
a clear showing of abuse.’ 
[Citation.]”  (>Zamora> v. Clayborn Contracting Group, Inc.
(2002) 28 Cal.4th 249, 257.)

            As
an initial matter, as noted above, Dareing’s section 473(b) motion and any
accompanying papers were never filed with the trial court.  Although a copy was provided to the court on
the day of the hearing, it is not clear whether the court considered or even
read them.  Summers does not contend the
failure to file the written motion is fatal to Dareing’s claim; we assume
without deciding that it is not. 
Nonetheless, as the motion and any accompanying documents were never
filed below, they are not part of the record on appeal.  As the hearing was not reported, the only
support for Dareing’s motion before the trial court contained in the record
before us is the reply brief she filed below.

            “In
order to qualify for relief under section 473, the moving party . . .
must submit affidavits or testimony demonstrating a reasonable cause
. . . .  [Citation.]”  (Elston
v. City of Turlock (1985) 38 Cal.3d 227, 234; accord, 8 Witkin, Cal.
Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 179,
p. 779 [“To obtain discretionary relief [under section 473(b)], the moving
party must show, by affidavit or other proof, a reasonable excuse.”].)  No affidavit or other proof from Dareing
appears in the record; instead, she simply asserted the relevant facts in her
reply brief.  Even the asserted facts,
while sympathetic, are insufficiently specific to support a showing of
excusable neglect.  For example,
Dareing’s reply brief below states she was removed from her home in May 2011
and was homeless for “many months.”  It
is not clear from this assertion whether her homelessness lasted through
October 2011, when she filed her third amended complaint.href="#_ftn2" name="_ftnref2" title="">[2]  Moreover, Dareing was able to file >a third amended complaint; she offers no
explanation why her circumstances enabled her to do this, but not to file one
that was adequately pled.  (See >Kim v. Westmoore Partners, Inc. (2011)
201 Cal.App.4th 267, 280-281 [affirming denial of section 473(b) motion where the
declarant failed to include specific facts “which the court might have been
able to assess in determining whether his failure to respond was actually
excusable in the circumstances”].)

            In
addition, section 473(b) provides: “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.”  “This permits the adverse party and court to
examine the defense or claim before the hearing.  The proposed pleading does not comply with
the statute unless it is good under the rules of pleading.”  (8 Witkin, Cal.
Procedure, supra, § 180,
p. 780.)  Dareing did not file a
proposed fourth amended complaint and there is no record she otherwise provided
one to the court; thus, relief is barred under this provision.  Her failure to do so also precludes us from
determining whether, absent any excusable neglect, she would have been able to
sufficiently amend her complaint.  (See >Sunru Chang v. Carson Estate Co. (1959)
168 Cal.App.2d 110, 113 [reversing order setting aside dismissal and allowing
plaintiff to file amended complaint because “plaintiff’s third amended
complaint clearly states no cause of action and, therefore, it was an abuse of
discretion requiring a reversal for the trial court to grant her motion to set
aside the dismissal”]; see also Transit
Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 279 [“the
excusable neglect must be the actual cause” of the adverse action to be set
aside].)

            The
trial court’s denial of Dareing’s section 473(b) motion was not an abuse of
discretion.

DISPOSITION

            The order
is affirmed.  Summers is awarded his
costs on appeal.

 

 

 

 

 

 

 

 

                                                                                                                                                           

                                                                                    SIMONS,
Acting P.J.

 

 

 

We concur.

 

 

 

                                                                       

NEEDHAM, J.

 

 

 

                                                                       

BRUINIERS, J.