Ahn v. Kim

Filed 7/12/07 Ahn v. Kim CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Hyun Soo Kim appeals in propria persona from an adverse judgment after the trial court denied his motion to set aside a default judgment entered against him, following his failure to appear at trial. Relying on Code of Civil Procedure section 473, subdivision (b) (section 473(b)), appellant contends that the trial court abused its discretion in denying his motion because his failure to appear was the result of insufficient notice. The court denied appellants written motion after declining to hear oral argument when appellant failed to comply with the notice requirements of California Rules of Court, rule 3.1308(a)(1).[1] We affirm the trial courts denial of appellants motion to set aside the default judgment.

II.

PROCEDURAL AND FACTUAL BACKGROUNDS

Respondent filed a complaint on October 12, 2004, alleging that appellant failed to pay $45,640.45 for legal services provided by respondent pursuant to an oral agreement. The parties submitted the dispute to nonbinding fee arbitration before the San Francisco Bar Association. Appellant rejected the arbitration determination awarding respondent $20,000. Appellant filed an answer to respondents complaint on August 26, 2005.

On October 24, 2005, the San Francisco Superior Court mailed notice of the initial mandatory settlement conference (MSC) and trial dates to appellant at 575 Bayview Avenue, Millbrae. This address was listed on appellants answer, on his later motion to set aside the judgment, and was used by appellant to identify himself during the hearing on said motion.

In late October 2005, at a case management conference, respondent filed a request to continue the trial until after the April 15th income tax deadline due to the hardship it would pose to his business. The court granted respondents request. An order rescheduling the MSC and the trial for May 4 and May 22, 2006, respectively, were served by the superior court on appellant via mail to the aforementioned address on November 7, 2005. In addition, appellant acknowledges that he had been informed of the intended continuance when he was in attendance at the case management conference. Specifically, appellant claims he was told that a new trial date would be forwarded to me near May next year as [respondent] requested for.

Appellant failed to appear at both the MSC and at the trial. Pursuant to a default prove-up hearing, on June 2, 2006, the court issued a judgment awarding respondent $50,982.95. This sum comprises $45,640.45 in damages, $5,000 in attorney fees and $342.50 in other costs.

On July 20, 2006, appellant moved the court to set aside the default judgment on the grounds that he failed to appear at the rescheduled MSC and trial because he did not receive notice of the new dates.

Respondents opposition to appellants motion claimed that, because appellant had been notified of the continuance, his failure to appear did not constitute mistake, surprise, inadvertence, or excusable neglect as defined by the discretionary provisions of section 437(b). Respondent also relies on Code of Civil Procedure section 587, which provides that non-receipt of notice of request for entry of default does not constitute grounds to set aside a judgment.

Appellant appeared before the trial court on August 24, 2006, to challenge the tentative ruling denying his motion. However, the court declined to hear oral argument because appellant failed to comply with rule 3.1308(a)(1), which requires that notice of intent to appear be provided to opposing parties prior to the scheduled hearing date. Consequently, the court affirmed its tentative ruling denying appellants motion to vacate the judgment by concluding that appellant failed to sustain his burden under section 473(b). This appeal followed.

III.

DISCUSSION

A motion for relief from a judgment under section 473(b) is addressed to the sound discretion of the trial court; its decision will not be overturned on appeal absent a clear showing of abuse of discretion. (Rivercourt Co. Ltd. v. Dyna-Tel, Inc. (1996) 41 Cal.App.4th 1477, 1480.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) Thus, the sole issue on appeal is whether the trial court abused its discretion in denying appellants motion to vacate the default judgment.

Pursuant to a strong policy favoring the resolution of cases based on their merits, section 473(b) permits the trial court to 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. ( 473(b); Shamblin v. Brattain, supra, 44 Cal.3d at p. 478.) The trial court is required to grant relief from default and a default judgment whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, . . . unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. ( 473(b).)

This case falls under the discretionary provision of section 473(b) both because the adverse judgment was not the result of attorney conduct, and because it does not fall within the scope of default or default judgment required to trigger the mandatory provision of section 473(b).[2] It is apparent from his opening brief that appellant does not understand the legal distinction between the discretionary and mandatory provisions of section 473(b).

Section 473(b) permits the court to vacate an adverse judgment which resulted from a partys mistake, inadvertence, surprise, or excusable neglect. These terms have been judicially defined as follows: A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts. [Citation.] Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. [Citation.] Inadvertence in the abstract is no plea on which to vacate a default. [Citations.] The surprise referred to in section 473 is defined to be some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against. [Citation.] The excusable neglect referred to in the section is that neglect which might have been the act of a reasonably prudent person under the same circumstances. [Citation.] (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.)

Appellant attended the October 2005 case management conference during which the court granted respondents request for continuance, and was advised the dates would be moved to the following May. Despite appellants claim that he did not receive the November 7, 2005 notice informing him of the exact trial dates, the court record contains a proof of service showing such notice was mailed to his record address. Thus, the record fully supports the trial courts determination that appellants conduct fell outside the parameters of mistake, inadvertence, surprise, or excusable neglect.

Even overlooking this written notice, appellant waited approximately seven months, until after he received notice of the adverse judgment, to follow up with the court. Therefore, the trial court also was justified in concluding that it is not excusable neglect for an in propria persona litigant faced with a $45,000 lawsuit not to ascertain the dates of his or her trial, after being told it would take place in May 2006. Consequently, the trial court was within its discretion in finding that appellant failed to sustain his burden under section 473(b).

Additionally, the trial court properly adhered to rule 3.1308(a)(1) in declining to hear appellants oral argument. Rule 3.1308(a)(1) provides in pertinent part: If the court has not directed argument, oral arguments must be permitted only if a party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear. The court informed appellant that, due to his failure to comply with the rule, it could not hear oral argument because it would be deemed an ex parte communication.

Finally, appellant relies on Gamet v. Blanchard for the proposition that [t]rial judges must acknowledge that in propria persona litigants often do not have an attorneys level of knowledge about the legal system and are more prone to misunderstanding the courts requirements. ((2001) 91 Cal.App.4th 1276, 1284.) There, the Court of Appeal held that the trial court abused its discretion where [t]he judges comments that he could jam Gamet and that he wanted to keep the heat on, when combined with the unexplained judgment dismissing the action shortly thereafter, seem[ed] arbitrary and create[d] the appearance of substantial unfairness. (Id. at p. 1283, fn. omitted.) The court found that the confusing, indeed misleading, nature of the various orders and communications that Gamet received from the trial court [was] particularly important in light of Gamets (involuntary) in propria persona status. (Id. at pp. 1284-1285.)

Appellants reliance on Gamet is inapposite. There is no evidence that this trial court issued misleading orders or otherwise treated appellant unfairly.

Furthermore, it is well settled that mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) While we sympathize with the difficulties of navigating the legal system without representation, appellants status as an in propria persona litigant is not a legitimate basis for countermanding the trial courts judgment.[3]

IV.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

_________________________

Ruvolo, P. J.

We concur:

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Reardon, J.

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Sepulveda, J.

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[1] This rule was formerly numbered California Rules of Court, rule 324. All subsequent undesignated rule references are to the California Rules of Court.

[2] [F]or purposes of the mandatory provision of section 473(b), a default means only a defendants failure to answer a complaint, and a default judgment means only a judgment entered after the defendant has failed to answer and the defendants default has been entered. [Citation.] (Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321.) In Vandermoon, an amended judgment entered after a trial conducted in defendants absence did not constitute a default or default judgment for purposes of the mandatory provision of section 473(b).

[3] Respondents request for judicial notice is denied. The amount of legal experience that appellant has does not influence the outcome of this case.