Opinion
C081446
07-03-2017
MARNIE LYNCH, Plaintiff and Appellant, v. JULIUS RAYART LOCKETT, JR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15DV00579)
Did the trial court abuse its discretion by allowing Julius Rayart Lockett, Jr., to file a responsive pleading five days after the hearing on his motion to set aside a five-year domestic violence restraining order pursuant to Code of Civil Procedure section 473? Marnie Lynch contends the court erred as a matter of law by setting aside the order because Lockett failed to accompany the application for relief with a copy of his answer as mandated by section 473. We conclude that Lockett's filing of an answer within the five days allowed by the court constitutes substantial compliance with the statute and the court did not abuse its discretion by extending a short grace period to defendant under the circumstances presented here. The order is affirmed.
Further undesignated statutory references are to the Code of Civil Procedure.
FACTS
Although the appeal before us involves civil proceedings for a domestic violence restraining order (DVRO), Lockett was also subjected to arrest and a criminal trial in parallel proceedings emanating from the same alleged act of domestic violence on March 2, 2015. Lynch reported to law enforcement that Lockett demanded to see her cell phone, and when she refused, he grabbed her by the arms and threw her to the ground. He put his knees on her chest to prevent her from getting up. He put a hand across her neck to restrict the airflow and covered her mouth with his other hand shouting, "do you want to die?' Law enforcement observed bruising and redness around her neck, along with scratches along her wrist and forearms. They confiscated several weapons belonging to Lockett.
Lockett told the responding police officers a different story. According to Lockett, Lynch had been drinking wine and was drunk. Lynch took Lockett's cell phone and would not return it to him. She ran outside and fell into a bush. He locked the front door, but she kicked it in. He called 911.
On March 6, Lynch sought a DVRO. The original hearing was set for March 25, but it was continued twice. Lockett declared that he was unable to attend the first two scheduled hearings because he was in jail and his lawyer failed to inform him of the hearing on May 20, 2015. He averred: "At the time, I did not understand that the domestic violence charges I was fighting in criminal court were not inclusive of the domestic violence allegations resulting in the DVRO. Upon being served with a copy of the permanent DVRO, I sought counsel and learned of the distinction."
Lockett's criminal trial resulted in a hung jury and the prosecution dropped all the charges. Lockett moved to set aside the permanent DVRO. The trial court granted the motion on condition that Lockett file a response to the request for the restraining order within five calendar days.
The court explained: "But the bottom line is that the five-year restraining order was issued on May 20th, 2015, as a default, not only without the presence and testimony of Mr. Lockett but also without presence and live testimony, any way, from Ms. Lynch. That, coupled with the Court's charge to liberally construe provisions of 473 of the Code of Civil Procedure, as well as coupled with the policy of the law to favor decisions on the merits, appears sufficient to the Court to grant the relief requested.
"The impacts of a domestic violence restraining order, irrespective of whether one's job is at risk or not, are significant. Those impacts include restrictions on one's First Amendment rights, one's Second Amendment rights. In granting the set-aside, however, the Court would do so on conditions. And the conditions would be as follows: The temporary domestic violence restraining order that was in place as of May 20th, 2015, would be revived and reissued on the exact same terms and conditions. Mr. Lockett would be required to file within five calendar days a response to the request for the domestic violence restraining order. And a hearing would be set to address the merits of the request and the response. At the hearing, Ms. Lynch's request for attorneys' fees would be deemed on the table pursuant to Family Code section 6344, as well as any request for restitution under the Family Code."
DISCUSSION
The trial court's ruling also can be affirmed on an alternative ground not raised by the parties. The section 473, subdivision (b) "accompanied by" requirement presupposes a written answer is required to oppose a DVRO. A written answer is not required. "There is nothing in the notice or indeed anything in the code provisions suggesting this written statement is in the nature of a pleading—the functional equivalent of an 'answer' in more formal civil proceedings—the absence of which would entitle the 'plaintiff' to a default judgment. Nor is there anything in the notice or the applicable code provisions suggesting it is the substantial equivalent of a formal opposition to a summary judgment motion, which again if not filed might entitle the 'moving party' to a judgment in its favor without a hearing. [¶] To put it another way, nothing in the notice or in the procedural sections of the code suggests the responding party in one of these protective order cases is not free to challenge the issuance of a permanent order entirely through oral testimony at the hearing itself." (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865, italics added.) Because a written answer is not required to oppose a request for a DVRO, a trial court could not deny section 473 relief for failure to file an answer along with the request for relief. --------
Lynch has a weighty burden on appeal of a trial court's set-aside order pursuant to section 473. First, "[t]he granting or denial of an application to set aside a dismissal under section 473 of the Code of Civil Procedure is a matter which rests in the sound discretion of the trial court. The order will not be disturbed on appeal unless it clearly appears that the trial court was guilty of an abuse of discretion." (Daniels v. Daniels (1955) 136 Cal.App.2d 224, 228.) Second, "[w]e must liberally construe the provisions of section 473." (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402.) "Because the law favors disposing of cases on their merits, 'any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.' " (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)
Despite these fundamental principles, Lynch urges us to strictly apply what she characterizes as the mandatory language of the statute. Section 473, subdivision (b) provides in relevant part: "Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted." She insists the trial court violated the express terms of the statute by granting the motion to set aside the DVRO when Lockett had not filed a responsive pleading by the time of the hearing. Such a rigid application of the statute has been soundly rejected.
As early as 1918, the Supreme Court recognized that substantial compliance with the terms of the statute was sufficient. Although the defendant in County of Los Angeles v. Lewis (1918) 179 Cal. 398 did not attach a copy of his proposed answer to his request to set aside his default pursuant to section 473, he had previously served and tried to file his answer. The Supreme Court affirmed the lower courts, both of which had granted the defendant the requested relief. The Supreme Court stated: "The principal point made on this appeal is that [defendant's] application was not 'accompanied' by a copy of the answer, within the meaning of [section 473], and, therefore, that it was error to grant it. We think that, in view of the facts stated, the application was in substance and effect so accompanied, and that to hold otherwise would be to deny [defendant's] right to a hearing on the merits by an unnecessarily strict construction of the provision. The plain object of the provision was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court. Substantial compliance with the provision of course requires such production in connection with the application for relief." (County of Los Angeles v. Lewis, supra, at p. 400.)
Contrary to the Supreme Court's early recognition that substantial compliance satisfied the statute, we took an extremely cramped view of section 473's admonition that an answer or other proposed pleading accompany a motion for relief from default. In Puryear v. Stanley (1985) 172 Cal.App.3d 291, we declined to extend the concept of substantial compliance finding that to do so "would distort the express directive of section 473." (Puryear, at p. 295.) Rejecting such a strict application of the statutory language and remaining true to the Supreme Court's liberal application of section 473, the court in County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832 concluded: "We are of the view that such a rigid application of the 'accompanied by' requirement fails to give full remedial effect to the statute. Such an application of the statutory language is an 'unnecessarily strict' (County of Los Angeles v. Lewis, supra, 179 Cal. at p. 400) way to accomplish the statutory objectives." (County of Stanislaus v. Johnson, supra, 43 Cal.App.4th at p. 837.)
Lynch concedes the courts have allowed any filing before the actual hearing on the motion to set aside to constitute substantial compliance with the "accompanied by" requirement, but she draws a line in the sand when it comes to allowing a post-hearing filing of an answer or responsive pleading. In her view, the trial court simply ignored the plain language of the statute and permitted a late filing of a response in derogation of the very purpose of the statute. She claims she was unable to prescreen the proposed answer to determine whether Lockett had a colorable defense to a restraining order or was merely tormenting her with another painful hearing. She simply ignores the broad discretion accorded to the trial court in ruling on a motion to set aside pursuant to section 473 as well as the strong public policy to allow a hearing on the merits. (See, e.g., Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.)
In Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918 (Austin), the Court of Appeal rejected a similar argument and gave homage to the fundamental principles governing our review of the trial court's order granting the motion pursuant to section 473. The court acknowledged that the purpose of section 473 is to promote the determination of a case on its merits (Austin, at p. 928) and that a motion to vacate under section 473, subdivision (b) is addressed to the sound discretion of the trial court. (Austin, at p. 929.) Nevertheless, the Los Angeles Unified School District insisted, as Lynch does here, that the motion was procedurally defective because the plaintiff did not submit her proposed opposition to the summary judgment motion with her request for relief or at any other time prior to the final hearing on the motion. The Court of Appeal again rejected a rigid, technical reading of the statute.
The court explained: "Although Austin failed to include with any of her papers a proposed memorandum in opposition to summary judgment, in light of the public policy favoring determination of actions on their merits and the concomitant requirement that ' "any doubts in applying section 473 must be resolved in favor of the party seeking relief from default" ' [citation], we conclude Austin substantially complied with the attached-pleading requirement. Had she attached an opposition memorandum, Austin would have proffered essentially the same factual contentions and legal arguments as she did in her various filings requesting relief from the judgment, including an application to continue the motion to obtain necessary discovery as contemplated by Code of Civil Procedure section 437c, subdivision (h). Accordingly, the objective of the attached-pleading requirement to determine 'the relief sought is not simply to delay the proceedings' and the party is acting in good faith has been satisfied." (Austin, supra, 244 Cal.App.4th at p. 933, fn. omitted.)
Given the gravity of Lockett's First and Second Amendment rights at stake, the fact he confused his criminal proceedings with Lynch's civil suit to obtain a restraining order, and the reality that a jury had hung and the criminal charges had been dropped, we cannot say the trial court abused its discretion by setting aside the DVRO obtained in Lockett's absence or in finding that the filing of a response within five days of the hearing constituted substantial compliance with the accompanied by requirement. Nor, contrary to Lynch's argument on appeal, can we say the court abused its discretion in finding that a belated response was not simply to delay the proceedings or that his attempt to vindicate himself in the civil proceedings was prosecuted in bad faith. While the burden of proof in the criminal and civil proceedings is clearly different, the trial court did not abuse its discretion by affording Lockett the opportunity to defend himself in the civil proceedings and thereby attempt to prove by a preponderance of the evidence that there is no basis for a DVRO.
Indeed, the language of section 473 affords a trial court considerable latitude. Section 473, subdivision (b) provides in part: "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." Here the court conditioned its order to set aside the DVRO on Lockett's filing of a response within five days. In so doing, it not only allowed Lockett the opportunity to substantially comply with the "accompanied by" language, but it imposed "any terms as may be just." To allow Lockett an abbreviated time horizon during which he was compelled to file his response or have the order vacated, was an imminently just condition providing him the opportunity to have his case heard on the merits but at the same time insuring that the case moved forward in a timely fashion. On this record, we can find no abuse of discretion and no act in derogation of the purpose of the statute.
DISPOSITION
The order setting aside the permanent domestic violence restraining order is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
RAYE, P. J. We concur: BLEASE, J. MURRAY, J.