Filed 8/20/26 Marriage of Gonzalez and Franco CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of ANTONIO BAUTISTA
GONZALEZ and ELIA BAUTISTA
FRANCO.

ANTONIO BAUTISTA GONZALEZ, E086237

Respondent, (Super.Ct.No. FLHE2401732)

v. OPINION

ELIA BAUTISTA FRANCO,

Appellant.

APPEAL from the Superior Court of Riverside County. Sean Lafferty, Judge.

Affirmed.

Law Office of Marvin L. Mathis and Marvin L. Mathis for Appellant.

No appearance for Respondent.

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 Elia Bautista Franco appeals from the default judgment entered in this marital

dissolution action. She contends that the trial court erred by denying her motion under

Code of Civil Procedure section 473, subdivision (b) (section 473(b)) to set aside entry of

default. (Unlabeled statutory references refer to this code.) We affirm.

BACKGROUND

Franco married Antonio Bautista Gonzalez in April 1983. In April 2024,

Gonzalez filed a petition to dissolve the marriage. Franco and Gonzalez have two adult

children, including Denise Bautista.

In May 2024, Bautista lived with Franco. That month, Bautista personally served

Franco with Gonzalez’s petition for dissolution, a summons, and other accompanying

documents. Franco did not file any response. On July 8, 2024, Gonzalez filed a request

for entry of default. On the same day, the court granted the request and entered Franco’s

default.

Franco subsequently moved to set aside the entry of default under section 473(b)

on the basis that she had been “surprised” that her adult daughter served her with the

dissolution petition. Franco also argued that service was improper because Bautista was

an interested nonparty to the dissolution proceeding who was thereby “deemed the

equivalent of a party for the purpose of the [section] 414.10 prohibition on service by a

party.”

In an accompanying declaration, Franco stated that she was “shocked to receive

the documents, and disappointed that [the couple’s] adult children would be involved in

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the divorce.” Bautista told Franco that Gonzalez had asked Bautista to serve Franco with

the dissolution petition after “a discussion with the family members about the divorce.”

Gonzalez opposed the motion, arguing that service was proper because Bautista

was over the age of 21 and was not a party to the dissolution proceeding.

The court denied the motion. At the hearing, the court stated that it had read

Franco’s motion, the cases cited in the motion, and Franco’s accompanying declaration.

In denying the motion, the court explained that Franco’s surprise at being served by her

adult daughter did not amount to fraud, excusable neglect, or legally cognizable surprise

under section 473(b). The court rejected Franco’s argument that Bautista could not

personally serve Franco, reasoning that Bautista “is not really under the jurisdiction of

this Court in any shape or form, not a party to the action.” The court entered default

judgment in February 2025.

DISCUSSION

Franco contends that the trial court abused its discretion by declining to set aside

the default under section 473(b). We disagree.

Section 473(b) includes two provisions for relief from default and default

judgment—“one makes relief discretionary with the court; the other makes it mandatory.”

(Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.)

Only the discretionary provision is at issue here. Under it, the trial “court may, upon any

terms as may be just, relieve a party or the party’s legal representative from a judgment,

dismissal, order, or other proceeding taken against the party through the party’s mistake,

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inadvertence, surprise, or excusable neglect.” (§ 473(b).) The moving party bears the

burden of demonstrating “‘that due to some mistake, either of fact or of law, of himself or

of his counsel, or through some inadvertence, surprise or neglect which may properly be

considered excusable, the judgment or order from which he [or she] seeks relief should

be reversed.’” (Hopkins & Carely v. Gens (2011) 200 Cal.App.4th 1401, 1410, italics

omitted.) We review the trial court’s decision for abuse of discretion. (Austin v. Los

Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.)

In addition, under subdivision (d) of section 473 (section 473(d)), a court may set

aside entry of default and default judgment if a party “has not been properly served.”

(California Capital Insurance Company v. Hoehn (2024) 17 Cal.5th 207, 214-215;

Giorgio v. Synergy Management Group, LLC (2014) 231 Cal.App.4th 241, 244, 246-247

& fn. 6.) We independently review whether the entry of default was void because of

defective service of process. (Giorgio, at p. 247.)

Franco argued in the trial court and again contends on appeal that Bautista could

not personally serve Franco, because Bautista was an “‘interested party.’” Franco filed

her motion in the trial court under section 473(b), not section 473(d), and defective

service is not a proper ground for such a motion. In any event, the argument lacks merit.

“A summons may be served by any person who is at least 18 years of age and not

a party to the action.” (§ 414.10) Bautista is over 21 years old and is not a party to the

action. Under the plain language of section 414.10, Bautista was authorized to serve

Franco.

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 Franco’s argument to the contrary is unavailing. Franco contends that Bautista is

prohibited from serving Franco in the dissolution proceeding because children are

beneficiaries of their parents’ estates under the Probate Code and therefore “are deemed

‘interested parties’ under the dicta of” Caldwell v. Coppola (1990) 219 Cal.App.3d 859,

865.” (Italics omitted.) In that case, the plaintiff’s sister was named as an additional

protected person in a domestic violence restraining order and served the defendant with

the order. (Id. at pp. 861-862.) The Court of Appeal held that the service was improper

under section 414.10. (Caldwell, at p. 865.) The court reasoned that “a named person

protected under a domestic violence injunctive order cannot validly personally serve such

orders and related legal process on a defendant,” because that protected person is

afforded the same protection as the plaintiff and thus has a “significant similarity of

interest with the named plaintiff.” (Id. at pp. 864-865.)

Franco does not explain how Bautista has such a significant similarity of interest

with either Gonzalez or Franco to have rendered her ineligible to serve Franco under the

reasoning of Caldwell. We will not develop an appellant’s argument for them. (Pacific

Bell Telephone Co. v. County of Placer (2025) 111 Cal.App.5th 634, 640 (Pacific Bell).)

Nor do we see how the possibility that Bautista might one day be a beneficiary of her

parents’ estates gives her an interest in the parents’ dissolution proceeding that is

significantly similar to her parents’ interest in that proceeding. Caldwell is therefore

inapposite.

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 Franco also argues that she was so “shocked” that Bautista personally served her

with the dissolution petition that it constituted “surprise” under section 473(b). The

argument is meritless. Under section 473(b), the term “surprise” refers to “‘some

condition or situation in which a party to [a] cause is unexpectedly placed to his [or her]

injury, without any default or negligence of his [or her] own, which ordinary prudence

could not have guarded against.’” (Credit Managers Assn. v. National Independent

Business Alliance (1984) 162 Cal.App.3d 1166, 1173.) The emotional state of surprise

that Franco felt upon learning that her daughter was serving her with Gonzalez’s petition

to end their marriage is not the type of surprise that can be the basis for relief under

section 473(b).

Finally, we reject Franco’s argument that “[t]here is no indication” that “the trial

court fully, or sufficiently, applied” the requirements of section 473(b). The court’s

statements at the hearing reflect that the court considered Franco’s motion and the

accompanying declaration. In explaining its ruling, the court addressed “fraud, excusable

neglect,” and “surprise.” The record thus confirms that the court properly considered the

requirements of section 473(b). Franco also mentions the alleged family discussion that

occurred before Bautista served Franco, but she fails to explain how that discussion has

any bearing on the propriety of service under section 414.10 or on any of the grounds to

set aside entry of default under section 473(b). Again, we will not develop an appellant’s

argument for them. (Pacific Bell, supra, 111 Cal.App.5th at p. 640.)

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 For the foregoing reasons, we conclude that the trial court did not err under either

section 473(b) or section 473(d) by declining to set aside the entry of default.

DISPOSITION

The judgment is affirmed. Gonzalez shall recover his costs of appeal, if any.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ
J.

We concur:

McKINSTER
Acting P. J.

FIELDS
J.

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