Marriage of Short

 

 

 

 

 

 

 

 

Filed 7/1/13 
Marriage of Short CA5

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
>

In re the Marriage of COLLEEN and ROBERT SHORT.
COLLEEN M. SHORT,   Respondent,                           v.   ROBERT L. SHORT,   Appellant.	F065344   (Super. Ct. No. 437086)     >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Stanislaus
County.  Jack M. Jacobson, Judge.

            Robert
Short, in pro. per. for Appellant. 

No appearance for Respondent.

-ooOoo-

            Appellant
Robert L. Short (Husband) contends the trial court erroneously denied his
motion to set aside a default judgment entered against him in a marriage
dissolution proceeding.  Despite
Husband’s incarceration from before the default through the filing of his
motion to set aside the default judgment, the trial court concluded the motion
was untimely.  Specifically, the court
found that the motion to set aside the default judgment was not filed within
the six-month period prescribed by Code of Civil Procedure section 473,
subdivision (b). 

The appellate record clearly
establishes that Husband’s motion was deposited in the prison’s mail more than
six months after the judgment was entered. 
Furthermore, Husband has not demonstrated that the six-month limit is
unconstitutional on its face or unconstitutional as applied to his
situation.  Thus, the trial court
correctly denied the motion on the ground it was untimely. 

            We
therefore affirm the order denying the motion to set aside the judgment. 

FACTS AND PROCEEDINGS

            On June 7,
2010, Husband filed a petition for
dissolution of marriage with the Fresno County Superior Court.  

            Ten days
later, Colleen Short (Wife) filed a petition for dissolution of marriage with
the Stanislaus County Superior Court.  

            Later in
June 2010, Wife filed a motion to quash the dissolution proceedings Husband had
filed in Fresno County Superior Court or, alternatively, to transfer venue to
Stanislaus County.  The Fresno County
Superior Court heard Wife’s motion and issued an order denying the motion to
quash, but granting the motion to transfer the case to Stanislaus County.  

            In August
2010, Husband’s attorney ceased representing him and thereafter Husband
represented himself in the dissolution proceeding and in this court. 

            On December
3, 2010, a case management conference
was held by the Stanislaus County Superior Court.  At that time, Husband had not filed a
response to Wife’s petition for dissolution and no default had been
entered.  The court set a further case
management conference for March 4, 2011.

            On December
9, 2010, Husband was arrested and held in the Fresno County Jail.  Subsequently, he was sentenced to a six-year
term and was transferred to the custody of the California Department of
Corrections and Rehabilitation (CDCR). 
Currently, Husband is being held by the CDCR at the California Medical
Facility in Vacaville.  Husband asserts
that the earliest permissible date of his release is December 13, 2013.   

            On March 4,
2011, the scheduled case management conference was held and the Stanislaus
County Superior Court signed a minute
order stating that Husband had filed a response to the petition for
dissolution, but had not served a preliminary declaration of disclosure.  The court noted that Husband was
incarcerated, directed Husband to file a declaration within 30 days, and set a
further case management conference for May 6, 2011.  A proof of service indicated the minute order
from the case management conference was served on Husband at the Fresno County
Jail on March 8, 2011. 

            In late
March and early April, Wife’s attorney sent letters to Husband reminding him of
the court order to file a preliminary declaration of disclosure and advising
him that if he failed to comply, she would file a motion to strike his response
and proceed by way of a default.   

            In May
2011, Wife filed a motion to strike Husband’s response and enter a
default.  Wife’s motion was based on
Husband’s failure to comply with the court order to file and serve a
preliminary declaration of disclosure.   


The hearing on Wife’s motion to
strike and enter a default was set for June 15, 2011.  The appellate record indicates that after
Wife filed her motion Husband filed a motion for a continuance and a declaration
in support of his motion for a continuance. 
Neither Husband’s motion for a continuance nor the declaration in
support of that motion is included in the clerk’s transcript.  The clerk’s transcript does contain Wife’s
opposition to Husband’s motion for a continuance and her declaration in support
of her opposition. 

            The minute
order from the June 15, 2011, hearing (1) indicated that neither Husband nor
Wife was present, (2) denied Husband’s request for a continuance, and (3)
granted Wife’s motion to strike his response and enter a default.

            On July 14,
2011, a judgment of dissolution and a notice of entry of a judgment of
dissolution were filed.  The judgment
denied spousal support to both parties, divided community property and debts,
and confirmed certain items at the separate property of Husband or Wife.  The clerk of court mailed a copy of the
notice to Husband at a post office box for CDCR in Vacaville. 

            Over eight
months later, on April 3, 2012, Husband filed a motion to set aside the
judgment.  His declaration supporting the
motion stated that (1) he was an indigent prisoner incarcerated by the
California Department of Corrections and Rehabilitation at the California
Medical Facility in Vacaville, (2) the default judgment was taken against him
while he was incarcerated and unable to obtain an attorney or personally appear
in court to defend his interests, and (3) he believed the default judgment had
deprived him of this constitutional rights of due process and equal protection
to access the courts.  The declaration
did not address why more than six months passed between the mailing of the
notice of entry of judgment and the filing of Husband’s motion to set aside the
default or why he did not file and serve the preliminary declaration of
disclosure ordered by the court. 

            On May 14,
2012, the trial court held a hearing on Husband’s motion to set aside the
default as well as Wife’s request for an order requiring Husband to remove his
personal property from her residence. 
The court confirmed its tentative ruling and denied the motion to set
aside the default judgment as untimely. 
The court concluded that the April 2012 motion had not been filed within
six months of the entry of the July 2011 judgment. 

In June 2012, Husband filed a
notice of appeal that stated he was appealing the court’s ruling that denied
his motion to set aside the judgment.  

            In January
2013, Husband filed his opening brief
with this court.  In February 2013, this
court sent a letter to Wife notifying her that if she did not file a
respondent’s brief or make a showing of good cause for relief within 15 days,
the appeal would be submitted for decision upon the record and Husband’s
opening brief.  Wife did not file a
respondent’s brief. 

DISCUSSION

I.       
 STATUTE’S
SIX-MONTH PERIOD FOR RELIEF FROM DEFAULT

            Code of
Civil Procedure section 473, subdivision (b) provides that 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.”  The statute further provides that an
application for relief “shall be made within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was
taken.”href="#_ftn2" name="_ftnref2" title="">^[1] (Code of Civ. Proc., § 473, subd.
(b).) 

“The six-month time limit for
granting relief under section 473 is jurisdictional and relief cannot be
granted under section 473 if the application for such relief is instituted more
than six months after the entry of the judgment, order or proceeding from which
relief is sought.”  (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d
725, 735, fn. 3.)  The California Supreme
Court has considered the statutory time limit and stated that where more than
six months have elapsed from the entry of default, relief under section 473 is
unavailable.  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980, citing to >Aldrich v. San Fernando Valley Lumber Co.,
supra, at p. 735, fn. 3; see 8
Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court,
§ 175, p. 773 [“a court has no authority under C.C.P 473(b) to excuse a
party’s noncompliance with the 6-month limit”].)

To calculate whether the
application for relief was made within the six-month period, a court must
identify (1) the date on which the period begins to run and (2) the date on
which the application for relief was “made.” 
If the second date is more than six months after the first date, the
inquiry ends and the motion for relief under Code of Civil Procedure section
473, subdivision (b) must be denied.

California courts have held that
the six-month period runs from entry of default, not entry of judgment.  (Manson,
Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.)  In the instant case, the clerk’s transcript
contains the June 15, 2011, minute order granting Wife’s motion to enter
default after striking Husband’s response. 
The clerk’s transcript also contains the judgment of dissolution and the
notice of entry of judgment, both of which were filed on July 14, 2011.  !(CT 43, 60, 66)!

An “application for relief under
the statute is deemed to be made upon
filing in court of a notice of motion and service of the notice of motion on
the adverse party.”  (>Arambula v. Union Carbide Corp. (2005)
128 Cal.App.4th 333, 341, original italics.) 
In the instant case, the Husband’s motion to set aside the judgment was
filed on April 3, 2012.  The proof of
service for that motion states that the motion was deposited in a mail box at
the prison in accordance with prison rules on March 25, 2012. 

We will assume that the
prison-delivery rulehref="#_ftn3"
name="_ftnref3" title="">^[2] applies to Husband’s motion to set aside the
judgment and, thus, will use March 25, 2012, as the date on which Husband
“made” his application for relief.  This
date is more than nine months after the issuance of the order granting Wife’s
motion to enter default and is more than eight months after the entry of the
judgment.  Therefore, regardless of which
of these events triggered the six-month period, Husband’s motion was untimely
and the trial court lacked jurisdiction to grant relief under Code of Civil
Procedure section 473, subdivision (b). 
Therefore, we must affirm the trial court’s order denying Husband’s
motion for relief.

II.    
CONSTITUTIONAL CLAIMS

As to Husband’s constitutional
arguments, they are directed at the failure to allow him to attend in person or
by telephone the hearing at which Wife’s motion for entry of default was
granted.  Husband’s constitutional
arguments are not a facial challenge to the statute’s six-month limit and are
not an as-applied challenge to the enforcement of the six-month period in the
circumstances presented by this case. 
Therefore, the arguments do not establish that the denial of Husband’s
motion as untimely violated his constitutional rights to due process or equal
protection.

DISPOSITION

The May 14, 2012, order denying
Robert Short’s motion to set aside the default judgment is affirmed. 

Because respondent has not appeared
in this appeal, we direct that each party shall bear his or her own costs on
appeal.