Filed 10/5/18 Lee v. Taiwanese American Seniors Assn. of Southern California CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.

Edward C. Ip & Associates and Edward C. Ip for Defendant and Appellant.

LP+W and Miriam L. Wu for Plaintiff and Respondent.

_________________________________

1. INTRODUCTION

Defendant Lisa May-Chi Lee appeals from the denial of her motion to vacate the judgment and order pursuant to Code of Civil Procedure[1] section 473, subdivision (b) (section 473(b)). Judgment was entered in favor of plaintiff Taiwanese American Seniors Association of Southern California following summary adjudication and plaintiff’s voluntary dismissal of the remaining claims. Defendant argues it was an abuse of discretion to deny her section 473(b) motion. She asserts she was unable to oppose the summary adjudication motion because her previous attorney abandoned her 12 days before the opposition was due, and she was unable to find a new attorney before the hearing. Further, defendant contends the summary adjudication order was erroneous because she presented triable issues of fact on the fraudulent transfer claim. Plaintiff contends that defendant’s appeal is untimely. We conclude the appeal was timely filed but find no error. Thus, we affirm the order denying the section 473(b) motion.

2. FACTUAL AND PROCEDURAL BACKGROUND

1. Underlying Case

In August 2012, defendant’s then husband, David Lee,[2] was elected as a member of plaintiff’s board of directors. On October 26, 2012, Lee withdrew money from plaintiff’s bank account and deposited it into a new account at a different bank. On November 17, 2012, he and nine other directors were removed from plaintiff’s board of directors. On November 28, 2012, Lee and five other former directors signed a letter authorizing Lee and Zaka Tan to jointly hold plaintiff’s money. From November 28 to December 3, 2012, Lee transferred plaintiff’s money from its accounts to an account in his and Tan’s individual names.

On January 22, 2014, plaintiff sued Lee and others for conversion, declaratory relief, and intentional interference with prospective economic advantage. The first phase of a bifurcated bench trial was held between June 18 and July 23, 2015. On August 5, 2015, the trial court issued a tentative decision, finding Lee and six others liable for conversion. The court set trial for August 14, 2015, on the bifurcated issue of Lee’s financial condition.

At the August 14, 2015 trial, Lee testified that he and defendant had not finalized their divorce. Lee had owned a house in Baldwin Park as a joint tenant with defendant, but he later transferred his interest to defendant as part of a divorce settlement. He had several hundred dollars each in a money market savings account and a checking account at Wells Fargo, and relied solely on social security benefits to pay his living expenses. He denied having any assets other than a car and money in the Wells Fargo accounts. He testified he did not receive anything in exchange for giving defendant the Baldwin Park house.

On August 26, 2015, the trial court entered judgment against Lee and six others for $110,793.61 in damages plus prejudgment interest. In addition, Lee was ordered to pay $2,618.28 in punitive damages to plaintiff.

2. Verified Complaint

On October 13, 2015, plaintiff filed a verified complaint against defendant and Lee, alleging three causes of action: set aside of fraudulent transfers; civil conspiracy; and aiding and abetting fraudulent transfers. Plaintiff alleged Lee transferred real property to defendant after the trial court ruled against Lee in an August 5, 2015 tentative decision in the underlying case.

Contrary to Lee’s trial testimony that he had transferred his interest in real property to defendant as part of a divorce settlement, the grant deed demonstrated that Lee had actually transferred his interest in the Baldwin Park house to defendant five days after trial, on August 19, 2015. The deed was recorded on August 20, 2015. In addition, Lee transferred vacant land to defendant by a quitclaim deed, dated August 19, 2015. The quitclaim deed was recorded on August 21, 2015. Five days later, on August 26, 2015, the trial court entered judgment against Lee for $178,921.64 in the underlying case.

3. Plaintiff’s Motion for Summary Adjudication and

Mediation

On December 30, 2016, plaintiff moved for summary adjudication on the first cause of action to set aside the fraudulent transfers. On March 22, 2017, defendant and her prior attorney, Michael Lo, filed a substitution of attorney form, stating defendant would be self-represented. Defendant signed the substitution form, stating that she consented to the substitution. Defendant did not file an opposition to the summary adjudication motion.

On March 29, 2017, defendant, acting pro. per., participated in a mediation before a mutually-agreed upon mediator, who spoke fluent Mandarin Chinese. The parties entered into a settlement agreement pursuant to which defendant agreed to pay $180,000 to plaintiffs over five years. Defendant agreed to sign a stipulated judgment for $200,000, which would be entered against her if she defaulted on the payments. According to plaintiff’s attorney, defendant requested withdrawal of the summary adjudication motion and dismissal of the case, but plaintiff refused to do so until defendant signed the stipulated judgment. On March 30, 2017, plaintiff’s counsel sent the stipulated judgment to defendant by mail. A week later, on April 7, 2017, plaintiff’s counsel called defendant to confirm whether she had received the stipulated judgment. Defendant acknowledged receipt of the document but indicated she needed someone to review it for her because it was written in English. On April 10, 2017, plaintiff filed a notice of settlement with the court.

At the April 17, 2017 summary adjudication hearing and postmediation conference, defendant stated that she wanted to rescind the settlement agreement and oppose the summary adjudication, but that her English was poor. The trial court asked defendant if she needed to find an attorney. Defendant said no, but requested that the trial court provide her with an interpreter. The trial court advised plaintiff’s counsel to hire an interpreter for defendant and continued the hearing to April 19, 2017.

At the April 19, 2017 summary adjudication hearing, defendant was assisted by a court-certified interpreter hired by plaintiff. The trial court again asked defendant if she wanted to retain an attorney to represent her. The April 19, 2017 court minutes state, “Defendant Lisa Lee who is in pro[.] per[.], informs the Court she will not be hiring an attorney.” With the aid of a court-certified interpreter, defendant argued against the summary adjudication motion. After oral argument, the trial court granted summary adjudication on the fraudulent transfer claim and plaintiff dismissed the remaining claims. On May 30, 2017, the trial court entered judgment against defendant and Lee for $221,538.37. Notice of entry of judgment was served on June 29 and filed on July 5, 2017.

4. Defendant’s Section 473(b) Motion

On September 22, 2017, defendant filed a motion to vacate the judgment and order granting summary adjudication on the grounds of mistake, inadvertence, surprise, and excusable neglect. She contended she failed to file an opposition to the summary adjudication motion because she is an elderly woman who speaks little English and has no understanding of law or legal procedures. Further, Lo withdrew as her counsel only 12 days before the opposition to the summary adjudication motion was due, and defendant was unable to find another attorney before the hearing. Defendant mistakenly believed Lo had filed a written opposition to the summary adjudication motion because she was billed for work on it. Defendant also contended she had a meritorious defense to the summary adjudication because she took the real properties in good faith and for reasonable equivalent value.

In support of her motion, defendant submitted a declaration stating Lo withdrew as her counsel on March 22, 2017. According to defendant, nobody from Lo’s office explained to defendant that plaintiff had filed a summary adjudication motion and that she needed to file opposition papers. After Lo’s withdrawal, his staff merely gave defendant a copy of the case summary and told her she had to appear in court on the future hearing dates. Defendant was surprised that Lo had not filed an opposition to the summary adjudication motion because she received an invoice showing Lo spent 21 hours preparing the opposition papers. She paid Lo approximately $20,000 and believed he had prepared the necessary paperwork to represent her. She did not know she was required to file a written opposition to the summary adjudication motion until she discussed her case with a church friend in early September 2017.

From March 22 to April 19, 2017, defendant consulted with four different attorneys. None of the attorneys agreed to take her case, and none of them advised her that she needed to file a written opposition to the summary adjudication motion.

Defendant further stated: “I appeared at the April 19, 2017 hearing for summary adjudication, but I did not understand the reason for the hearing due to my limited understanding of English. [¶] No interpreter appeared at the hearing on my behalf. [¶] When this Court asked me whether I will hire an attorney, I attempted to explain to the Court I consulted with numerous attorneys but was unsuccessful in retaining an attorney. However, due to my limited English, this Court misunderstood me to mean that I will not hire an attorney. [¶] As a result, I was unable to fully comprehend the legal proceeding or adequately convey my position to the Court. [¶] Furthermore, because of my limited English, I did not understand the meaning of Plaintiff’s motion being granted or the consequences of the order for summary adjudication. . . . [¶] Because English is not my native language, I did not understand the meaning of the judgment.”

Defendant attached a proposed opposition to the summary adjudication motion as an exhibit to her motion to vacate the judgment and summary adjudication order. The opposition papers included a declaration from defendant.[3] She stated she and Lee had “essentially separated” in 1996, when he moved out of the Baldwin Park house. But defendant did not file a divorce petition until Lee demanded she relinquish her one-half share of his annuity. During discussions with Lee in January 2015 concerning the divorce, defendant demanded $1,000 per month in spousal support. She stated Lee gave her his share of the subject properties in exchange for her waiver of spousal support and release of her 50 percent interest in his annuity.

On October 23, 2017, plaintiff filed an opposition to the section 473(b) motion. Plaintiff argued Lee fraudulently transferred property to defendant after the trial court issued the August 5, 2015 tentative decision against him in the underlying case. Moreover, defendant admitted in her deposition that she did not give any money to Lee in exchange for his transferring his real property interests to her. Plaintiff further argued Lo did not abandon defendant because she signed the substitution of counsel form, agreeing to self-representation. Plaintiff asserted defendant was savvy enough to sign a settlement agreement and ask that the summary adjudication be taken off calendar even though she had not signed the stipulated judgment. Defendant never executed the stipulated judgment and later reneged on the settlement agreement that she had signed at the mediation. Moreover, contrary to defendant’s assertions, she declined the trial court’s invitation to hire counsel, and she had a translator at the summary adjudication hearing. Finally, plaintiff argued defendant did not have a viable defense to the summary adjudication because no divorce decree or settlement was attached to the putative summary adjudication opposition. Plaintiff contended defendant’s declaration and contentions based on an unidentified divorce settlement were hearsay, lacked foundation, and were inadmissible oral testimony of the contents of a writing.

On November 6, 2017, the trial court denied defendant’s section 473(b) motion. The trial court stated: “I do recall having a summary judgment, and I do recall her being here and claiming she didn’t speak English, and I told everybody that I was very uncomfortable proceeding with somebody who wasn’t fluent in English who was acting as pro[.] per[.] in a situation where I found the summary judgment to be meritorious, so I refused to rule and ordered a Mandarin interpreter here so she would understand what was happening to her. [¶] And I found that the summary judgment was meritorious. I read the papers that said that your client lived here for 40 years and is a nurse and speaks English. Okay. I can understand you can live here 40 years and live in a community and be a nurse and not necessarily feel comfortable in any given language. I understand that. But the facts are that we have already had this conversation, and this was some time ago also. [¶] I’m also a little taken back by when I read the papers and found out that your client agreed to settle the case. It went to a Mandarin-speaking mediator, and she agreed to settle the case, and then there was some issues about she wanted the plaintiff to dismiss the case before signing the settlement, which I understand the plaintiff is reluctant to do that, and that’s how we ended up with summary judgment.”

In response to defendant’s argument that she did not have time to find a new attorney because Lo withdrew as counsel two weeks before the opposition to the summary adjudication was due, the trial court stated: “I was sensitive to this . . . . [Defendant] consented to the substitution of attorney. She consented to act as her own attorney. [¶] I asked her if she wanted an attorney. I asked her if I could help. ‘Are you going to get your own attorney?’ And she said, no, she was going to continue as it was. [¶] And then on the day of the hearing, I didn’t feel comfortable that she understood what was going on, so there was plenty of time for somebody to come in and say, ‘Wait a minute. My client doesn’t speak the language. She doesn’t understand the process.’ [¶] At some point in time, they file a motion and I’ve got to rule on it, and I can’t just kick it down the road until some day when something happens, and this actually is a case where we bent over backwards for your client to help her and to make sure she understood and make sure this is what she wanted. She wanted to proceed in a certain way, and I ruled on a motion, and frankly, it wasn’t a close case, and it wasn’t just because there was no opposition. [¶] . . . I don’t think there was any dispute that property was transferred without consideration after a judgment was entered.” The trial court rejected defendant’s request to vacate the summary adjudication order and judgment, finding it would be prejudicial to plaintiff to relitigate the case.

3. DISCUSSION

1. The Appeal Was Timely

The trial court granted plaintiff’s summary adjudication motion, and plaintiff dismissed the rest of the claims on April 19, 2017. Judgment was entered on May 30, 2017. Plaintiff served the notice of entry of judgment on June 29, 2017, and the notice was filed on July 5, 2017. Defendant filed her section 473(b) motion on September 22, 2017, which was 115 days after entry of judgment. Her motion was denied at the November 6, 2017 hearing.

Later that day, plaintiff served a document bearing the title “Notice of Ruling.” While the document was captioned “Notice of Ruling,” the footer of the document stated it was a “Notice of Entry of Judgment.” Plaintiff’s counsel submitted a copy of the notice, which includes a proof of service stating that the declarant served the “foregoing document” described as a “Notice of Ruling,” on November 6, 2017. According to plaintiff’s counsel, plaintiff also served a copy of the minute order. The copy of the “Notice of Ruling,” submitted by plaintiff’s counsel contains a copy of the November 6, 2017 minute order of the court; but the minute order appears in the exhibit after the proof of service.

According to defendant’s counsel, defendant received a different version of the notice. That notice also bore the title, “Notice of Ruling.” The attached proof of service, however, stated that the declarant had served a “Notice of Entry of Judg[m]ent” on June 29, 2017.[4] The notice received by defense counsel did not include a copy of the minute order. Respondent’s Appendix includes this version of the “Notice of Ruling,” which was filed with the trial court on November 13, 2017.

On December 11, 2017, the trial court signed an order denying defendant’s motion to vacate the judgment and summary adjudication order. On January 22, 2018, defendant file a notice of appeal from the section 473(b) order under section 904.1, subdivision (a)(2).

Plaintiff moves to dismiss the appeal as untimely. Plaintiff argues the section 473(b) motion was filed after the time to appeal from the judgment had expired and the motion raised arguments that could have been made prior to the judgment. But as acknowledged by plaintiff, the appeal is from the denial of the section 473(b) motion, and not the judgment.[5] A denial of a section 473(b) motion is an appealable order, separate from the judgment. (§ 904.1, subd. (a)(2); Austin v. Los Angeles County Unified School Dist. (2016) 244 Cal.App.4th 918, 927, fn. 6 (Austin) [“An order denying relief from a judgment under section 473(b) is a separately appealable post-judgment order under . . . section 904.1, subdivision (a)(2)”]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008-1009.)

Relying on Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 43-44, plaintiff contends an appeal from a denial of a motion to vacate an appealable judgment cannot be brought if the grounds upon which the party sought to have the judgment vacated existed before entry of judgment. But defendant’s appeal from the section 473(b) order does not raise the same issues as would an appeal from the judgment. Defendant seeks relief from the judgment and order based on the grounds of mistake, inadvertence, surprise, and excusable neglect.

Moreover, plaintiff’s reliance on Litvinuk is undermined by our Supreme Court’s recent decision in Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127 (Ryan). In Ryan, the Supreme Court held that the denial of a motion to vacate final judgment under section 663 is an appealable postjudgment order under section 904.1, subdivision (a)(2) even though the appellant could have appealed from the judgment. (Ryan, supra, 3 Cal.5th at p. 127.) The Supreme Court stated: “A statutory appeal from a ruling denying a section 663 motion is indeed distinct from an appeal of a trial court judgment and is permissible without regard to whether the issues raised in the appeal from the denial of the section 663 motion overlap with issues that were or could have been raised in an appeal of the judgment.” (Id. at p. 135.) Similar to section 663, section 473(b) is a special order made after final judgment that is separately appealable. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394 [“in cases where the law makes express provision for a motion to vacate such as under . . . section 473, an order denying such a motion is regarded as a special order made after final judgment and is appealable”]; see Ryan, supra, 3 Cal.5th at p. 130.) Even if the issues raised in the section 473(b) motion overlap with issues that could have been raised on appeal from the judgment, defendant may appeal from the postjudgment order pursuant to section 904.1, subdivision (a)(2).

Plaintiff further contends the appeal is untimely because the notice of appeal was filed more than 60 days after plaintiff served the notice of ruling. We disagree. Under California Rules of Court, rule 8.104(a)(1), a notice of appeal is timely if filed on or before 180 days after entry of judgment; however, if the superior court clerk or a party serves a document entitled “Notice of Entry” of judgment or “a filed-endorsed copy of the judgment” (showing date of service or accompanied by proof of service), the notice of appeal must be filed within 60 days after service. “Judgment” includes an appealable order. (Cal. Rules of Court, rule 8.104(e).) Here, defendant had 180 days to file the notice of appeal because plaintiff’s notice did not comply with the strict requirements of rule 8.104(a)(1)(B).

Plaintiff served on defendant a document entitled “Notice of Ruling.” Because the document was not entitled “Notice of Entry,” the 60-day period for noticing an appeal was not triggered. (Alan v. America Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902 (Alan); 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 671-672 [document mailed by clerk captioned “notice of ruling” failed to comply with “notice of entry” requirement].) Moreover, even if the November 6, 2017 minute order was attached to the “Notice of Ruling” (a fact that is in dispute), the minute order was not file-stamped. “[C]ourts have consistently held that the required ‘document entitled “Notice of Entry”’ . . . must bear precisely that title, and that the ‘file-stamped copy of the judgment’ . . . must truly be file stamped.”[6] (Alan, supra, 40 Cal.4th at p. 903.) The copy of the appealable minute order with a printed notation—“MINUTES ENTERED 11/06/17 COUNTY CLERK”—is not file stamped or endorsed; thus, it does not satisfy the requirement of “a filed-endorsed copy of the judgment” under rule 8.104(a)(1)(B). (Alan, supra, 40 Cal.4th at p. 902.) Because the 60-day period for noticing the appeal was not triggered, defendant had 180 days to file the notice of appeal. Defendant’s appeal therefore was timely because she filed the notice of appeal on January 22, 2018, which was 77 days after the November 6, 2017 order denying her section 473(b) motion. Finding the appeal to be timely, we deny plaintiff’s motion to dismiss the appeal.

2. Standard of Review

Defendant’s motion to vacate the judgment and summary adjudication order was made under section 473(b)’s discretionary relief provision. (Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1091.) That provision of section 473(b) states in relevant part: “The court may, upon 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.” “The general underlying purpose of section 473(b) is to promote the determination of actions on their merits.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) The moving party bears the burden of establishing a right to relief from the judgment or order. (Austin, supra, 244 Cal.App.4th at p. 928.) “‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.’” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)

3. Denial of Section 473(b) Motion Was Not Abuse of

Discretion

Defendant argues it was an abuse of discretion to deny her motion to vacate the judgment and order pursuant to section 473(b). Defendant was then 74 years old and was not fluent in English. She contends she failed to oppose the summary adjudication because her previous attorney, Lo, abandoned her 12 days before the opposition was due and she was unable to find a new attorney prior to the hearing. She mistakenly believed Lo had filed an opposition because she was billed for work on it.

The trial court was mindful of defendant’s age and limited English ability and considered these issues during the summary adjudication hearing. At the April 17, 2017 hearing, the trial court advised plaintiff to hire a Mandarin interpreter for defendant, and continued the summary adjudication hearing for two days. The April 19, 2017 court minutes indicate defendant was assisted by an interpreter: “Certified Mandarin interpreter Jie Ma . . . assisted Defendant Lisa Lee in pro[.] per.” At the section 473(b) motion hearing, the trial court stated: “I do recall having a summary judgment, and I do recall her being here and claiming she didn’t speak English, and I told everybody that I was very uncomfortable proceeding with somebody who wasn’t fluent in English who was acting as pro[.] per[.] in a situation where I found the summary judgment to be meritorious, so I refused to rule and ordered a Mandarin interpreter here so she would understand what was happening to her.”

Further, the trial court was concerned that defendant did not have attorney representation and asked her repeatedly if she wanted to retain counsel. The April 19, 2017 court minutes show defendant declined to retain counsel: “Defendant Lisa Lee who is in pro[.] per[.], informs the Court she will not be hiring an attorney.”

Defendant stated in her declaration that the trial court misunderstood her refusal to retain counsel: “No interpreter appeared at the hearing on my behalf. [¶] When this Court asked me whether I will hire an attorney, I attempted to explain to the Court I consulted with numerous attorneys but was unsuccessful in retaining an attorney. However, due to my limited English, this Court misunderstood me to mean that I will not hire an attorney.” Defendant’s statements are inconsistent with the April 19, 2017 court minutes and the trial court’s statements at the November 6, 2017 hearing, which reflect that defendant was assisted by an interpreter and stated she did not wish to retain counsel. Given that defendant chose to proceed in pro. per. and was assisted at the summary adjudication hearing by a Mandarin interpreter, the trial court could reasonably conclude that defendant’s failure to oppose the motion was not based on mistake, inadvertence, surprise, or excusable neglect.

Defendant also contends the trial court abused its discretion because it did not consider the proposed summary adjudication opposition that was filed in connection with the section 473(b) motion. Defendant argues the proposed opposition to the summary adjudication motion raised triable issues of fact on the fraudulent transfer claim. She further asserts she has a valid defense because Lee transferred all of his interest in the Baldwin Park house and the vacant lot pursuant to an August 18, 2015 marital settlement agreement before the judgment was entered in the underlying case on August 26, 2015. On appeal, defendant admits the August 5, 2016 judgment of dissolution and attached August 18, 2015 marital settlement agreement were not presented to the trial court.

Defendant seeks judicial notice of the August 5, 2016 judgment of dissolution and attached August 18, 2015 marital settlement agreement, but does not explain why they were not presented to the trial court. Defendant relies on these documents to argue that denial of the section 473(b) motion was an abuse of discretion. The trial court did not have the benefit of the August 5, 2016 judgment of dissolution and August 18, 2015 marital settlement agreement when ruling on the section 473(b) motion; the denial of the motion was not an abuse of discretion.[7]

4. DISPOSITION

The order denying the section 473(b) motion is affirmed. Plaintiff Taiwanese American Seniors Association of Southern California shall recover its costs on appeal from defendant Lisa May-Chi Lee.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P.J. MOOR, J.