Opinion
A144146 A145144 A148517
12-20-2016
JOSE DUARTE, Plaintiff and Appellant, v. YOLANDA ASPARREN, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 13-666883)
Approximately five months after marrying Yolanda Asparren, Jose Duarte filed a petition for marital dissolution or, in the alternative, to annul the marriage. The court entered Asparren's default, but later set it aside pursuant to Code of Civil Procedure section 473. Eventually, the court entered a judgment of marital dissolution.
Duarte appeals in propria persona. He contends the court erred by setting aside the default. Duarte also challenges the denial of his request for Family Code section 2030 attorney fees, and the denial of his motions to compel discovery. We affirm.
All undesignated statutory references are to the Code of Civil Procedure. Asparren did not file a brief. We have decided the appeal on the record, and Duarte's opening brief and oral argument. (Cal. Rules of Court, rule 8.220(a)(2).)
FACTUAL AND PROCEDURAL BACKGROUND
Duarte met Asparren on a dating website, and he arranged for Asparren to travel from Peru, where she lived, to the United States. They married in August 2012, shortly after Asparren arrived in California. Approximately five months later, Duarte petitioned to dissolve the marriage based on irreconcilable differences or, in the alternative, for annulment of marriage (the petition). Duarte claimed Asparren used him to obtain a "green card" and the marriage was voidable based on fraud. In late 2013, the court entered Asparren's default. Shortly thereafter, Asparren moved to set aside the default. Asparren — who does not speak or read English — failed to appear at the hearing on the motion and the court took the matter off calendar.
The court allowed Asparren to refile her motion to set aside the default, and she did so in August 2014, claiming she was not personally served with the summons and that she lacked notice of the lawsuit with sufficient time to respond (§ 473.5). Asparren also sought equitable relief, and relief pursuant to section 473. Asparren noted the default was entered due to her "mistake and inadvertence" because she was "homeless, . . . illiterate in English, and was frightened by [Duarte]'s threats that she would be arrested and removed" from the United States if she appeared in court.
In a supporting declaration, Asparren averred Duarte emotionally abused her, "kicked [her] out of the house" and "left [her] homeless on the streets of Oakland." Duarte told Asparren she would be arrested and deported. Asparren slept on friends' sofas and "was never personally served with any court documents." She discovered the "family court proceedings" in late September 2013 and obtained help from a "Legal Document Assistant," who prepared the initial motion to set aside. Asparren thought the document preparer "was taking care of everything"; she did not realize she needed to appear in court on the motion. Asparren averred her failure to respond to the petition was caused by her "mistake as to the true nature of these proceedings" and by Duarte's claim that she would be arrested if she "went to court." Asparren's declaration attached a proposed response to the petition.
In October 2014, the court set aside the default over Duarte's opposition, concluding it had "an interest in trying to resolve disputes . . . on the merits" and that there was "good cause to set aside the default" under section 473 based on Asparren's "excusable neglect[.]" Asparren's response to the petition requested marital dissolution.
Duarte filed motions to compel further responses to discovery, and a motion for attorney fees pursuant to Family Code section 2030. The court denied the motions. It determined Asparren's discovery responses were sufficient and the discovery Duarte sought to compel was not "even remotely related to what the issue is going to be for trial." The court also concluded Duarte was not entitled to attorney fees under Family Code section 2030 because he offered "insufficient evidence" of Asparren's ability to pay. The court explained: "Ms. Asparren's sworn income and expense declaration indicates she makes about $25,000 per year which is an extremely small amount of money to live on in the Bay Area. She's . . . a housekeeper, . . . and has limited income. [¶] Even if Ms. Asparren's income was double what she's making now and she was somehow sending double that amount to relatives out of the country, she would still be of very limited income in this situation and unable to pay Mr. Duarte's attorneys' fees."
In early 2015, the court denied Duarte's request for annulment because Duarte "failed to appear for trial." At a December 2015 hearing, Asparren reiterated her request for a marital dissolution. Duarte "object[ed] to the entry of a divorce decree based on irreconcilable differences" or "any judgment other than a nullity." The court observed: "The Court has reviewed the record, and the request for a judgment for a nullity was rejected. The Court is proceeding under a dissolution and the Court grants the judgment of dissolution of marriage and orders that the marriage be dissolved and that the marital status is terminated[.]"
Duarte filed several notices of appeal. We consolidated the appeals. In late 2015, we denied Duarte's petition for writ relief challenging an order striking his section 170.6 peremptory challenge. (Duarte v. Superior Court, (Dec. 8, 2015, A146904) [nonpub. order].)
DISCUSSION
I.
Granting Relief from Default Was Not an Abuse of Discretion
Duarte contends the court erred by granting Asparren's motion to set aside the default. "'Although a trial court has discretion to vacate the entry of a default . . . , this discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits.' [Citation.] [S]ections 473 and 473.5 authorize challenges to defaults . . . on various grounds within certain periods. Under . . . section 473, subdivision (b), a party may seek relief on the grounds of 'mistake, inadvertence, surprise, or excusable neglect' within 'a reasonable time,' but not more than six months after the entry of the default . . . . [S]ection 473.5 permits the court to set aside a default . . . if the defendant, 'through no inexcusable fault of his own, [received] no actual notice' of the action, provided that relief is requested within a reasonable time, but not more [than] two years after the entry of the default judgment. [Citation.]" (Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97 (Bae).) We review the order granting Asparren's motion to set aside the default for abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea).)
According to Duarte, the court could not set aside the default under section 473 because Asparren did not seek relief until August 2014, more than six months after the default was entered. Duarte is correct that "more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable. [Citation.] But we cannot undo the effect of the ruling or the ensuing judgment on the ground that the court may have misapplied section 473 as long as any other correct legal reason exists to sustain either act. [Citation.]" (Rappleyea, supra, 8 Cal.4th at pp. 980-981.) Here, the court had inherent authority to vacate the default on equitable grounds such as extrinsic mistake. "[A] trial court may . . . vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.]" (Id. at p. 981; Bae, supra, 245 Cal.App.4th at p. 98 [a "party may seek equitable relief from a default" after the statutory period "'has run'"].)
Asparren filed her initial motion for relief within six months of the default as required by section 473, but the court took the matter off calendar when Asparren failed to appear at the hearing on the motion. --------
Extrinsic mistake exists when the ground for relief is not "'the fraud or other misconduct'" of one of the parties but "'the excusable neglect of the [defaulting party] to appear and present his [or her] claim or defense. If such neglect results in an unjust judgment, without a fair adversary hearing, the basis for equitable relief is present.' [Citation.]" (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738 (Aldrich) [courts define "'mistake'" broadly; it tends to "encompass almost any set of extrinsic circumstances" depriving "a party of a fair adversary hearing"].) To qualify for equitable relief from default on the basis of extrinsic mistake, the defendant must demonstrate: (1) "a meritorious case"; (2) "a satisfactory excuse for not presenting a defense to the original action"; and (3) "diligence in seeking to set aside the default once the [mistake] had been discovered." (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071.)
Here, Asparren was entitled to equitable relief on the grounds of extrinsic mistake. Her proposed response to the petition was sufficient to establish she had a "meritorious case." (Aldrich, supra, 170 Cal.App.3d at p. 738; Rappleyea, supra, 8 Cal.4th at p. 983 [answer to unverified complaint "suffices to show merit"]; Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1148 [only a minimal showing is necessary to establish a meritorious case].) Asparren also had a satisfactory excuse for failing to timely respond to the petition: she was homeless, did not understand English, and believed appearing in court would result in her arrest and deportation. Finally, Asparren demonstrated diligence pursuing relief from default — she filed her initial motion to set aside the default within a month of its entry, and presented a reason for not appearing in court on that motion. Her second motion for relief was filed only 10 months after the entry of default.
We conclude the court was within its discretion to grant equitable relief from default. (Rappleyea, supra, 8 Cal.4th at p. 984.) Having reached this result, we need not address Duarte's claim that setting aside the default prejudiced him. We reject Duarte's claim — premised on Elkins v. Superior Court (2007) 41 Cal.4th 1337 — that the trial court violated his due process and "fair trial" rights at the hearing on the motion to set aside the default. Elkins concerned the rights of family law litigants to certain protections afforded in other civil proceedings. (Id. at p. 1345; see also Mendoza v. Ramos (2010) 182 Cal.App.4th, 680, 687 [rejecting similar claim].) The court considered Duarte's evidence and did not deny his rights to due process or a "fair trial." Nor are we persuaded by Duarte's claims regarding evidentiary rulings made in connection with the order granting the motion to set aside the default.
II.
Substantial Evidence Supports the Denial of Family Code
Section 2030 Attorney Fees
Duarte claims the court erred by denying his motion for Family Code section 2030 attorney fees. Family Code sections 2030 and 2032 empower a trial court to "award fees and costs between the parties [in a dissolution action] based on their relative circumstances in order to ensure parity of legal representation in the action." (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 974, fn. omitted (Falcone).)
Sections 2030 and 2032 list factors the court must consider in determining whether to award attorney fees. (In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056.) Section 2032, subdivision (a) requires the court to determine whether the award is "just and reasonable under the relative circumstances of the respective parties." The court "is entitled to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party's relative need and the other party's ability to pay, it is to take into account '"'all evidence concerning the parties' current incomes, assets, and abilities.'"' [Citation.]" (Falcone, supra, 203 Cal.App.4th at pp. 974-975; see also Cryer, supra, 198 Cal.App.4th at p. 1056 [noting Family Code section 2032 "not only requires that the court consider the financial resources of each party, but also requires a broader analysis of the parties' relative circumstances"].)
We review the denial of Duarte's request for Family Code section 2030 attorney fees for abuse of discretion. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) An abuse of discretion occurs if, considering all relevant circumstances, the court's decision exceeds the bounds of reason. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479-480.) We review factual findings supporting the court's exercise of discretion for substantial evidence. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769.)
Here, the court determined Duarte did not establish Asparren had the "ability to pay attorneys' fees." Substantial evidence supports that determination. As the court observed, Asparren's "sworn income and expense declaration indicates she makes about $25,000 per year which is an extremely small amount of money . . . . She's . . . a housekeeper, . . . and has limited income. [¶] Even if Ms. Asparren's income was double what she's making now and she was somehow sending double that amount to relatives out of the country, she would still be of very limited income in this situation and unable to pay Mr. Duarte's attorneys' fees." (See In re Marriage of Keech (1999) 75 Cal.App.4th 860, 868 [trial court erred in awarding Family Code section 2030 attorney fees where husband's "monthly gross income left little room for payment" of such fees].) Duarte's disagreement with the court's conclusion does not demonstrate a lack of evidence supporting that conclusion. We conclude the court did not abuse its discretion in denying Duarte's request for attorney fees pursuant to Family Code section 2030.
III.
Duarte's Remaining Arguments Fail
Duarte challenges the denial of his September 2013 and November 2014 motions to compel discovery. He contends the denial of discovery precluded him from effectively opposing the motion to set aside the default, and from prevailing on his attorney fees motion. Duarte has not demonstrated the court prejudicially erred in denying the motions to compel. (MACQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045 [no prejudicial error in denying motions to compel discovery]; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [appellant has burden to establish prejudicial error, even in absence of respondent's brief].) We have considered — and rejected — Duarte's remaining arguments. (Southern California Edison Co. v. Public Utilities Com. (2014) 227 Cal.App.4th 172, 203, fn. 23.)
DISPOSITION
The trial court's orders are affirmed. In the interests of justice, the parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
Jones, P.J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.