Marriage of Denny









Filed 9/15/11 Marriage of Denny CA1/1




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of ALICE E. and BARNEY J. DENNY.
BARNEY J. DENNY, Appellant, v. ALAMEDA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent.	A129602 (Alameda County Super. Ct. No. C-521747)

In this appeal we find that the trial court abused its discretion by denying a motion for relief from default brought by defendant Barney Denny pursuant to Code of Civil Procedure section 473, subdivision (b). We therefore reverse the trial court’s ruling, and grant the motion for relief from default. We also reverse the accompanying order that granted the motion of the Alameda County Department of Child Support Services (the Department) for a declaration of the validity of a 1979 Alameda County judgment of dissolution in the case. We remand the case to the trial court with directions to hear and determine the merits of defendant’s request for clarification of a prior ruling that denied the Department’s motion to reduce the arrears to judgment and for a declaration of his release from the obligation to make any further payment of arrears.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
This extraordinarily prolonged and intermittently tortuous action began back on June 1, 1979, with a petition filed by Alice Denny to dissolve her marriage to Barney Denny, followed by an amended petition for dissolution she filed on August 7, 1979.[1] The original petition requested an award of custody of the children, spousal support, and child support to Barney. The amended petition was dramatically different in substance: Alice requested custody of the children, along with an award of spousal and child support from Barney. The record before us, although a bit confusing, indicates on the proof of service attached to the original petition that Barney was served by mail with the amended petition on July 31, 1979, before the amended petition was filed. Also, the amended petition did not include an attached proof of service.
Alice filed a request for entry of a default against Barney on August 14, 1979, only seven days after the amended petition was filed. The request was granted, and on September 25, 1979, an interlocutory default judgment of dissolution was filed that granted custody of the parties’ two children to Alice, and ordered Barney to pay to Alice child support in the amount of $150 per month per child and spousal support in the amount of $150 per month.[2]
The Department entered the fray in 1981, by filing a petition under the Uniform Reciprocal Enforcement of Support Act (Fam. Code, former § 4800 et seq., now the Uniform Interstate Family Support Act, Fam. Code, § 4900 et seq.), in Clark County, Nevada, to enforce the support provisions of the prior dissolution judgment. Thereafter, Barney consistently made support payments to Alice through Nevada and the Department, although in May of 1990, the Department asserted that Barney owed arrears in the aggregate amount of $25,455. On February 4, 1991, the Clark County District Court ordered Barney to pay child support in the amount of $300 per month and $100 per month on arrears of $25,722.01.[3]
After the parties’ two daughters became emancipated, on April 10, 2002, the Clark County District Court filed a Release of Judgment in the case, and notified the Department that the balance owed by Barney “was paid in full.” The Department asserted that through a mistake in calculations the interest on the arrears had not been added to the total amount owed by Barney, but the Clark County District Court declined to re-open the case as requested by the Department absent a judgment of arrears.
The Department filed a notice of motion to reduce the arrears to judgment in Alameda County Superior Court on June 12, 2002. As amended in January of 2004, the motion stated the amount of arrears as approximately $58,000, although Barney contested the amount. The case then languished as the Department sought to establish the amount of arrears, if any, owed by Barney, and presented conflicting arrears figures.
In February of 2006, Commissioner John Porter, who had been assigned to the Department’s motion, questioned the validity of the 1979 default dissolution judgment on the ground that the amended petition had never been properly served on Barney. Ultimately, Commissioner Porter made a tentative finding following a hearing on April 28, 2006, that the dissolution judgment was void for lack of jurisdiction, but granted the parties additional opportunity to address the jurisdictional issue. After another hearing on November 9, 2006, Commissioner Porter denied the Department’s motion to reduce the arrears to judgment in an order filed on June 25, 2007, and ordered the Department to “halt all collection activities” in the case until further order of the court, but did not make a further explicit finding on the validity of the judgment.
No further efforts to collect arrears were made until July of 2008, when the Department notified Barney that “we will continue to collect on the arrears which includes intercepting your tax refunds.” The Department subsequently pursued collection demands by intercepting Barney’s tax refunds and his federal economic stimulus check.
On April 19, 2010, Barney moved for relief in the nature of an order: clarifying Commissioner Porter’s prior ruling that denied the Department’s motion to reduce the arrears to judgment; enjoining the Department from further efforts to collect arrears from him; releasing the IRS lien against him; and releasing him from liability for arrears. Barney’s motion was set for hearing on June 1, 2010, in Department 24, before a court commissioner other than Commissioner Porter. In response to a request from Barney’s counsel, on April 23, 2010, Commissioner Porter agreed to ask the attorney for the Department to contact him to arrange to put the motion on his calendar in Department 702.
On April 11, 2010, Barney’s attorney sought to remove the motion from the calendar in Department 24, but was advised that a stipulation was required to do so. Barney’s counsel then awaited word from the attorney for the Department on her request to have the motion set in Commissioner Porter’s court, but was never contacted by the Department.
On May 26, 2010, the Department filed opposition and a responsive declaration to Barney’s motion, along with a request for a declaration that the Alameda County judgment of dissolution is the “Controlling Order” in the case, not the Clark County order that released Barney from his obligation to pay further child support arrears. Barney’s attorney did not receive the Department’s request before the scheduled hearing.
At the hearing in Department 24 on June 1, 2010, before Commissioner Nancy Lonsdale, Alice and the attorney for the Department appeared, but neither Barney nor his counsel were present. Barney’s motion for clarification of the judgment and affirmative relief was denied, and the Department’s motion was granted.
On July 7, 2010, Barney filed a motion to set aside the June 1, 2010 order. The accompanying declaration of Barney’s attorney states that she “inadvertently missed” the June 1, 2010, hearing date on the motion, and detrimentally relied on the Department to contact her to drop the motion from Department 24. Counsel also declared that because of a “family emergency” that necessitated travel to San Diego and caused “additional stress,” she inadvertently failed to “properly calendar the motion and monitor the scheduled court date.” Commissioner Lonsdale denied Barney’s motion with the cryptic statement that the “court will not reconsider prior orders.” This appeal followed.
DISCUSSION
Barney seeks to reverse the trial court’s order that denied his motion to set aside the June 1, 2010, order on two grounds: first, that he was entitled to relief pursuant to Code of Civil Procedure section 473 (section 473), subdivision (b), from the default ruling on his motion taken in his absence; and second, that the court had no authority to grant “affirmative relief” to the Department without “adequate notice” to him or a “meaningful opportunity to be heard.”
“Section 473, subdivision (b) provides for two distinct types of relief. Under the discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,’ the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against’ a party or his or her attorney.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 615–616; see also In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1442; Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.) “Subdivision (b) of section 473 also includes an ‘attorney affidavit,’ or ‘mandatory,’ provision. It states in pertinent part: ‘Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is [timely], is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’ Under the ‘mandatory’ provision of section 473, subdivision (b), ‘a party is relieved from the consequences of his or her attorney’s mistake, inadvertence, surprise, or neglect and relief is available regardless of whether the attorney’s neglect is excusable.’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 608; see also Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1099.)
We are persuaded that Barney was entitled to discretionary relief from the failure of his attorney to appear at the hearing on the motion to clarify Commissioner Porter’s prior ruling and release him from liability for arrears. A party seeking relief under the discretionary provision of section 473 “ ‘from a judgment, order or other proceeding has the double burden of showing (1) diligence in making the motion after discovering its own mistake, and (2) a satisfactory excuse for the occurrence of that mistake. [Citation.] The court must generally consider the facts and circumstances of a case to determine whether the party was diligent in seeking relief [citation], and whether the reasons given for the party’s mistake are satisfactory.’ [Citation.]” (Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196, fn. omitted.)
“A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.” (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) “To determine whether the mistake or neglect was excusable, ‘. . . the court inquires whether “a reasonably prudent person under the same or similar circumstances” might have made the same error . . . .’ ” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681–682, italics omitted, quoting from Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) “ ‘In deciding whether counsel’s error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim.’ ” (Generale Bank Nederland v. Eyes of the Beholder Ltd., supra, at p. 1401.)
“Under the statute and in addition to the necessity of excusing the original default by a sufficient showing of ‘mistake, inadvertence, surprise, or neglect,’ the application must also be made within a ‘reasonable time’ within six months after the party becomes aware that a default has been entered against it. [Citations.] . . . [W]hat a ‘reasonable time’ is in any case depends primarily on the facts and circumstances of each individual case, but definitively requires a showing of diligence in making the motion after the discovery of the default. [Citation.] In other words, the moving party must not only make a sufficient showing of ‘mistake, inadvertence, surprise, or neglect’ in order to excuse the original default, but must also show diligence in filing its application under section 473 after learning about the default. If there is a delay in filing for relief under section 473, the reason for the delay must be substantial and must justify or excuse the delay.” (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181; see also Adoption of Aaron H. (2000) 84 Cal.App.4th 786, 790.)
Our review of the trial court’s decision to deny relief under the discretionary provisions of section 473 judgment is circumscribed. “ ‘The disposition of such a motion rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion. Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. . . .’ [Citations.]” (Yeap v. Leake (1997) 60 Cal.App.4th 591, 598.)
Although we recognize the limits of our reviewing function and our obligation to defer to an informed, appropriate exercise of the trial court’s discretion, we are persuaded for several reasons to reverse the court’s denial of the motion to set aside the prior order. First, as we read the record Commissioner Lonsdale failed to even entertain any discretion in ruling on Barney’s section 473 motion. The articulated steadfast refusal to “reconsider prior orders” suggests that Commissioner Lonsdale either mistakenly considered Barney’s motion as one brought pursuant to Code of Civil Procedure section 1008,[4] or simply declined to contemplate the showing offered by Barney in support of his request for relief. Either way, the record before us indicates a glaring lack of proper attention to the substance of the motion.
Barney also presented adequate grounds to justify relief. The section 473 motion was brought diligently and promptly following the prior ruling. Under the circumstances that attended the rather convoluted procedural history of the case, we also find that the failure of counsel to appear was the result of excusable mistake and neglect. Based on her communication with Commissioner Porter, counsel was under the explicable and justifiable impression that the motion would be continued and heard in his court, where he could appropriately rule on the effect of his prior ruling, rather than as scheduled in Department 24 before a commissioner entirely unfamiliar with the case. The Department never bothered to contact Barney’s attorney to discuss the proposed schedule change, despite a request to do so. The Department did, however, proceed to file a request for affirmative relief – in the nature of a determination that the release of Barney from his obligation to pay further child support arrears by the Clark County was invalid – without notice to Barney’s attorney before the hearing. Counsel also declared that a family emergency diverted her attention from the fact that the hearing had not been rescheduled as she assumed. Further, in the protracted history of the case, counsel had diligently represented Barney and appeared on his behalf at all scheduled hearings. And finally, nothing before us indicates that prejudice to the Department will result if relief is granted.
Although broad, “ ‘ “the trial court’s discretion is not unlimited and must be ‘ “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ [Citations.] [¶] [Code of Civil Procedure s]ection 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. [Citations.] In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ [Citations.] [¶] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying [Code of Civil Procedure] section 473 must be resolved in favor of the party seeking relief from default.” ’ [Citations.]” (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136; see also Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230; Roy Burns Construction Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1413 (Roy Burns Construction).) “ ‘ “It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” ’ [Citation.]” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402; see also Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 894–895.)
Under the facts presented, and considering the lack of any prejudice to the Department, we conclude that the failure of Barney’s counsel to appear at the prior hearing on the motion constitutes excusable mistake or neglect as a matter of law. (Roy Burns Construction, supra, 184 Cal.App.4th 1406, 1415.) The trial court therefore clearly abused its discretion by denying the motion for relief from default. (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 703.)
DISPOSITION
The order that denied Barney’s motion under section 473 is reversed. Barney’s motion for relief from default is granted. The Department’s motion for a declaration that the Alameda County judgment of dissolution is the “Controlling Order” in the case is also reversed. The trial court is directed on remand to hear and rule on the merits of Barney’s motion for clarification of Commissioner Porter’s ruling that denied the Department’s motion to reduce the arrears to judgment and for a declaration of his release from liability for further payment of arrears.[5] Costs on appeal are awarded to Barney.

	__________________________________ Dondero, J.
We concur: __________________________________ Marchiano, P. J. __________________________________ Margulies, J.

In re Marriage of Denny. Denny v. Alameda Co. Dept. Child Support Services, A129602



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