Filed 9/30/26 Salcedo v. Kobisher CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BERTHA SALCEDO, D086076
Plaintiff and Appellant, (Super. Ct. No. 37-2020-
v. 00006147-CU-PO-CTL)
AARON KOBISHER et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert C. Longstreth, Judge. Affirmed.
Cervantes Hodges Law Firm and Antonio Cervantes for Plaintiffs and
Appellants.
Segal McCambridge Singer & Mahoney, Arthur J. Chapman and
Katherine M. deGuzman for Defendants and Respondents, Aaron Kobisher
and Kobi Auto Recycling.
Yale & Baumgarten and David W. Baumgarten for Defendants and
Respondents, David Rowland and R Family Properties II, LLC.
Bertha Salcedo, as an individual and doing business as La Bodega Auto
Body Parts and Radiators (Salcedo) appeals from the court’s order denying
her motion to set aside a default judgment which she brought under Code of
Civil Procedure section 473, subdivision (b).1 She contends that the trial
court abused its discretion in denying her motion; moreover, she contends
that defendants did not suffer any prejudice from her actions but she suffered
substantial prejudice. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Although the record on appeal does not contain documents predating
the motion before us in this appeal, the register of actions reflects that in
November of 2020, Salcedo filed a complaint against, among others, R Family
Properties II, LLC and David Rowland; and Aaron Kobisher, individually and
as the dba for Kobi Auto Recycling (collectively, Respondents).
In November of 2023, the court granted the motion of Salcedo’s counsel
to be relieved as her counsel. It appears that for a time thereafter, she was
unrepresented by counsel. The relieved firm served upon Salcedo the order
granting its motion, which set forth upcoming court dates, including a trial
readiness conference scheduled for February 16, 2024, and trial set to begin
on March 1, 2024 and which included an advisal in bold type face that she
was required to comply with all court rules and applicable laws, and “[i]f you
fail to do so, or fail to appear at hearings, action may be taken against you.
You may lose your case.”
Thereafter, Salcedo failed to appear for a discovery motion that she had
initiated; she failed to produce her expert witnesses for deposition; she failed
to respond to a letter from counsel advising her of the need to produce her
experts for deposition or face the sanction of exclusion of expert testimony;
she failed to provide any information for inclusion in the joint trial readiness
1 All further statutory references are to the Code of Civil Procedure. For
brevity, we will refer to section 473, subdivision (b) as section 473(b).
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report; she failed to respond to opposing counsel’s telephone call regarding
the upcoming trial readiness conference; and she did not appear at the
hearing on the trial readiness conference on February 16.
When Salcedo did not appear, the court ordered the issuance of an
order for her to appear and show cause (OSC) why her complaint should not
be dismissed for failure to prosecute. The court set the OSC on March 1,
2024.
Salcedo appeared on that date. Although we do not have the transcript
of that hearing, it appears that after the court heard from her, the court
continued both the trial readiness conference and the OSC to March 15, 2024.
The court admonished her to work with counsel to participate in the
preparation of the joint trial readiness report, and Salcedo and counsel
exchanged contact information at the close of the hearing. Opposing counsel
followed up with a detailed e-mail to the address she provided, informing her
of the importance of her participation in the report’s preparation. Salcedo did
not respond or participate in any way.
Salcedo appeared at the hearing on March 15. After hearing from her,
the court dismissed the complaint. We do not have a transcript of that
hearing.
On May 14, 2024, Salcedo, represented by new counsel, filed a motion
to vacate the dismissal.
The motion was heard on June 28, 2024. Salcedo’s counsel argued that
the dismissal should be set aside “under the discretionary aspect of 473(b).”
Salcedo’s counsel pointed out that Salcedo’s highest level of education was
middle school in Mexico, and her husband’s highest level of education was
high school. He said, “in her way” she filed a trial readiness report and
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exhibits on March 13.2 He stated, “[a]nd what I understand is that because
these were not properly filed or in proper format—and I might be wrong—the
Court dismisses the case.” He argued that the prejudice to her was
“overwhelming.” The court acknowledged Salcedo’s language issues and
educational background. But the court was critical of Salcedo’s approach to
the case:
“[H]er attitude has been toward this entire process . . . has
essentially been to tell everybody to pound sand . . . to
disregard, you know, court orders and appearances and
everything, and then come back and say, you know, ‘Hey,
let’s forgive all of that.’ ”
After hearing from all parties, the court took the matter under
submission.
On July 2, 2024, the court issued its written ruling denying Salcedo’s
motion to vacate the dismissal of her complaint pursuant to section 473(b).
In its ruling, the court stated:
“Plaintiff has not demonstrated ‘mistake, inadvertence,
surprise, or excusable neglect’ sufficient to support relief
from dismissal. To the contrary, as the Court has
previously found, Plaintiff was expressly advised by the
Court at the March 1, 2024 hearing what she needed to do
to comply with the requirements necessary to bring her
case to trial, and nonetheless failed to do so, despite the
efforts of the Defendants to assist her. The court also finds
under the circumstances that granting the requesting relief
would substantially prejudice the other parties.”
The trial court vacated the remaining dates and served on the parties a
“notice of dismissal” that stated that unless other action was taken, the
2 Although the register of actions (no. 187) reflects that on March 13,
2024, Salcedo filed a joint trial readiness conference report, the record before
us on appeal does not include any such filing.
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remaining claims would be “deemed dismissed without prejudice” on August
17, 2024.
II. DISCUSSION
A. The Order of June 21, 2025 is Appealable
As an initial matter, we note that Respondents contend that the order
is not appealable because it is untimely.
After the court order of July 2, Salcedo filed a notice of appeal, but we
dismissed that appeal because the court’s ruling on the motion did not
dispose of all causes of action. After the remittitur from the dismissal had
issued, the trial court issued an order on February 21, 2025, which stated,
“pursuant to the notice of dismissal [issued on August 17, 2024], the case has
been dismissed in its entirety.”
On March 27, 2025, Salcedo once again filed a notice of appeal, this
time identifying the February 21, 2025, signed minute order as the order she
was appealing. That order is appealable, as it meets the requirements of
section 581d. It is a written, filed, and signed dismissal order, which can be
treated as a judgment disposing of the entire appeal.3 Using that order as
the date from which to measure timeliness, this appeal, which was filed less
than 60 days later on March 27, 2025, is timely.
B. Salcedo Does Not Meet Her Burden of Establishing that the Court
Erred in Denying her Motion to Vacate the Dismissal
Turning to the merits, “Section 473(b) contains two distinct provisions
for relief from default. The first provision . . . is discretionary and broad in
scope: ‘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,
3 We acknowledge that the February 21 order is ambiguous (“has been
dismissed”) but we construe it as an appealable signed order of dismissal.
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inadvertence, surprise, or excusable neglect.’ ” (Even Zohar Construction &
Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838.)
Salcedo’s motion was brought pursuant to this discretionary provision.
The moving party has the burden of establishing entitlement to relief
by a preponderance of the evidence. (Huh v. Wang (2007) 158 Cal.App.4th
1406, 1423.) “ ‘[B]ecause the law strongly favors trial and disposition on the
merits, any doubts in applying section 473 must be resolved in favor of the
party seeking relief from default.’ ” (Parage v. Couedel (1997) 60 Cal.App.4th
1037, 1042.) “However, ‘ . . . if a party fails to show that a judgment [or
order] has been taken against him through his mistake, inadvertence,
surprise or excusable neglect the court may not grant relief. It has no
discretion.’ ” (Ibid.)
A trial court’s decision on a motion to set aside an order under section
473(b) will not be disturbed on appeal absent a clear showing of abuse of
discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th
249, 257.) We must defer to the trial court’s credibility assessments and
accept the “court’s factual finding that there was no mistake unless there is
no substantial evidence to support it.” (McClain v. Kissler (2019) 39
Cal.App.5th 399, 418 (McClain); see Solv-All v. Superior Court (2005)
131 Cal.App.4th 1003, 1007.)
We emphasize here that the issue before us on appeal is whether the
court erred in its July 2 ruling denying Salcedo’s motion to vacate the order of
dismissal at the OSC hearing on March 15. This appeal does not ask us to
consider whether the dismissal itself was proper.
It is Salcedo’s burden on appeal to provide a record sufficient for
review. However, notwithstanding her appellate burden, we have observed
that the register of actions reflects that she filed a declaration in support of
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the motion before us on the same date that she filed the section 473(b)
motion. The declaration does not appear in the record that she designated,
but to assist us in in the resolution of this appeal, on our own motion,
pursuant to Rule of Court 8.155, subdivision (a)(1), we order that the record
is augmented to include that declaration.
Notably, Salcedo’s very brief declaration does not assist Salcedo in
meeting her burden under section 473(b). It consists only of a brief summary
of a chronology of events; an assertion that she had not received notice of the
February 16 date; an observation that the minute order from March 1 did
“not state the reasons for the OSC or how [she] could cure the OSC”; and an
assertion that she had filed a trial readiness report in advance of the March
15 hearing. She further declared that she “tried to present [her] exhibits to
[respondents’ counsel but] was not able to effectively communicate” with
them.
At the hearing, Salcedo’s new counsel argued generally that Salcedo
was not well-educated, but other than counsel’s unsupported assertion in the
motion’s supporting memorandum of points and authorities that her highest
level of education was ninth grade middle school, Salcedo offers no evidence
as to her lack of education or how such a lack may have contributed to her
failure to participate in the litigation that she had initiated. Salcedo’s
declaration did not describe any efforts to retain counsel or what reasonable
diligence she exercised in connection with the matters leading up to the
dismissal of her lawsuit, nor did she set forth any misunderstanding or
inadvertent error. “ ‘The inadvertence contemplated by the statute does not
mean mere inadvertence in the abstract. . . . [Citations.] It is the duty of
every party desiring to . . . participate in a judicial proceeding to take timely
and adequate steps to retain counsel or to act in his own person to avoid an
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undesirable judgment. Unless in arranging for [her] defense [s]he shows that
[s]he has exercised such reasonable diligence as a [person] of ordinary
prudence usually bestows upon important business [her] motion for relief
under section 473 will be denied.’ ’” (Hearn v. Howard (2009) 177 Cal.App.4th
1193, 1206, quoting Elms v. Elms (1946) 72 Cal.App.2d 508, 513.) Salcedo
failed to make a sufficient showing to support the motion.
Salcedo contends the trial court abused its discretion by declining to set
aside the default under section 473(b), because Salcedo was “a pro se litigant
with significant language and educational barriers [who had] missed a single
hearing due to lack of notice but demonstrated diligence by promptly
attending subsequent hearings and filing required documents.” As we noted
above, this is not an appeal from the March 15 dismissal order, and we
expressly do not reach the merits of that decision. Instead, we consider only
whether Salcedo satisfied her burden under section 473, subdivision (b). As
noted above, we conclude that she has not.
As to prejudice, Salcedo contends that the prejudice to Respondents
was slight, and therefore “[r]elief under section 473(b) is favored,” citing
Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 932
(where there is no prejudice to the opposing party, very slight evidence is
required to justify relief under section 473(b)). We do not read that case so
broadly, but in any event, substantial evidence supports the court’s finding
that there was more than slight prejudice to the Respondents, in the form of
their having to set aside a settlement among the parties and re-prepare for
trial after years of litigation. (See McClain, supra, 39 Cal.App.5th at p. 418
[appellate court defers to the court’s factual finding unless there is no
substantial evidence to support it].)
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On the record before us, Salcedo has failed to meet her burden to show
error in the court’s order denying her motion to vacate the prior dismissal.
III. DISPOSITION
Affirmed. Respondents are awarded the costs on appeal.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
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