Filed 12/12/17 Marriage of Mitchell CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE


In re the Marriage of PAULA and RODGER MITCHELL.
B271143

(Los Angeles County
Super. Ct. No. VD076423)

PAULA MITCHELL,

Appellant,

v.

RODGER MITCHELL,

Respondent.



APPEAL from the post-judgment orders of the Superior Court of Los Angeles County, Robert Higa, Judge. Reversed.
Von Esch Law Group, Amy M. Von Esch and Jennifer M. Porche for Appellant.
Hagan & Associates, Kara J. Hagan and Timothy P. Seeger for Respondent.
_________________________
INTRODUCTION
Petitioner Paula Mitchell appeals from the order of the trial court setting aside the default and default judgment of dissolution taken against her husband, respondent Rodger Mitchell. (Code Civ. Proc., § 473, subd. (b).) Paula’s appeal also challenges the court’s subsequent order denying her motion for reconsideration. (§ 1008.) We hold that the trial court lacked jurisdiction to grant statutory relief under section 473 and Rodger did not seek relief under the relevant provisions of the Family Code. Accordingly, we reverse both orders.
FACTUAL AND PROCEDURAL BACKGROUND
Evaluating the record according to the rules of appellate review (Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 976 [“appellate court is limited to considering matters in the record of the trial proceedings; matters not presented by the record cannot be considered on the suggestion of the parties in their briefs”]), it shows that the following occurred:
1. The petition for dissolution and Rodger’s first default
a. 2011
In July 2011, Paula filed a petition for dissolution of her marriage to Rodger and served him in September 2011.
b. 2013
In February 2013, Paula obtained a default against Rodger. Three months later, Rodger’s attorney, Cara J. Hagan, notified Paula’s former counsel that Rodger wanted to set aside the default. The parties stipulated to set aside the default in July 2013. When the trial court signed the stipulation, it ordered Rodger to file and serve “any responsive pleadings no later than 7-15-2013.” (Italics added.) Rodger did not file his answer to the petition for dissolution by that date.
2. Rodger’s second default and the judgment for dissolution
a. 2014
On June 2, 2014, nearly a year after Rodger’s response was due, Paula’s former counsel notified attorney Hagan by letter that if Rodger did not file his response to the petition for dissolution by June 10, 2014, Paula would file another request to enter Rodger’s default on June 11, 2014. Rodger did not file a response.
On June 11, 2014, the trial court entered Rodger’s second default. On June 18, 2014, the court mailed Paula’s request to enter the second default to Rodger at the home in La Mirada where he was living, which was community property (the home).
b. 2015
Attorney Amy Von Esch substituted into this case as Paula’s counsel in April 2015. In September 2015, Paula obtained a judgment of dissolution. In relevant part, the judgment assigned each party one-half of the proceeds from the sale of the home. The judgment allowed Rodger to remain in the home and pay Paula $2,300 per month in rent and ordered the sale of the home within 60 days of the judgment.
Hagan twice wrote to Von Esch in October 2015 requesting a stipulation from Paula to set aside the second default judgment. Von Esch replied that she was unwilling to talk to Hagan – who was not Rodger’s attorney of record – until Hagan substituted into the case.
On November 20, 2015, Paula moved ex parte for an order giving a real estate agent access to the home in preparation to sell it.
3. Rodger’s motion to set aside the default
Also on November 20, 2015, at the ex parte hearing, some 17 months after entry of the second default, Rodger submitted to the court a motion to set aside the default and default judgment pursuant to the discretionary provision of section 473, subdivision (b). The motion did not include a proposed responsive pleading in violation of section 473, subdivision (b) and was procedurally improper under the local rules. In support, Hagan filed her attorney declaration that did not describe attorney fault; instead it questioned whether the trial court had authority to enter the default.
The trial court denied Paula’s motion for a real estate agent’s entry and granted Rodger’s motion to set aside the second default and default judgment.
4. Paula’s reconsideration motion
Paula moved for reconsideration. Von Esch’s attached declaration described the legal and procedural infirmities of Rodger’s motion to set aside the default judgment, including that the trial court had directed Paula to respond to Rodger’s set-aside motion immediately upon receiving it for the first time in open court.
At the February 2016 hearing on Paula’s reconsideration motion, the trial court acknowledged that the motion was “right on a lot of those points.” Although the court had intended to grant reconsideration, it decided to deny the motion because by that time Rodger had filed his response to the petition for dissolution. The court stated, “[t]he law does not favor a default.” “[T]hey want to contest it, I’m going to allow them to contest it. I’m not going to let it go by default.” “And you can appeal that if you want. I should be interested in what they say if they’re going to say I shouldn’t let them contest it, even if they want to.”
Paula timely appealed.
CONTENTION
Paula contends that the trial court abused its discretion in setting aside the default and default judgment and erred in denying her reconsideration motion.
DISCUSSION
1. The trial court had no jurisdiction to grant Rodger statutory relief.
A default and default judgment entered against a party through that party’s “mistake, inadvertence, surprise, or excusable neglect” may be set aside under the discretionary provision of section 473, subdivision (b), but only if the motion is made within six months after entry of the default. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) Rodger moved to set aside the default under section 473, subdivision (b) 17 months after its entry, with the result that the trial court had no power to give him statutory relief. This is so, irrespective of Rodger’s failure to demonstrate mistake, inadvertence, surprise or excusable neglect because the six-month period is jurisdictional. (Manson, Iver & York v. Black, at p. 42; 3 Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 16:57, p. 16-21; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344 [court has no authority to grant relief when a party fails to comply with statute’s time limits].)
Another reason the trial court was precluded from granting Rodger’s set-aside motion was that section 473, subdivision (b) requires that “[a]pplication 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.” (§ 473, subd. (b), italics added.) Rodger did not include with his motion a copy of his proposed answer to the petition for dissolution. Nor did Rodger substantially comply with the proposed answer requirement. (See Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402-403 [although proposed answer was not attached to the set-aside motion, requirement was substantially satisfied because answer was made available at the hearing on the set-aside motion].) Rodger did not file his answer until December 18, 2015, a month after the court ruled on his set-aside motion.
Rodger did not seek relief under the mandatory provision of subdivision (b) of section 473 and Hagan’s attached declaration nowhere mentions fault. Thus, the trial court was not obligated to consider availability of relief under the mandatory provision. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125-1126 [motion must specify grounds upon which relief is sought whether under the discretionary provision or the mandatory provision for attorney fault].)
2. Rodger is not entitled to equitable relief.
Generally, “[a]fter six months from entry of default, a trial court may . . . vacate a default on equitable grounds even if statutory relief is unavailable. [Citation.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) However, “traditional ‘equitable’ set-aside relief is statutorily-preempted with regard to . . . post-1992 marital property division or support judgments [citations].” (3 Hogoboom & King, supra, ¶¶ 16:80 & 16:101, at pp. 16-26, 16-30, citing Fam. Code § 2120 et seq.; see also, In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910.) “[A]s to such judgments[,] all prior law on ‘equitable’ set-aside relief is preempted. [Citations.]” (In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 571.) “Family Code section 2122 specifies ‘the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment’ [citation], after the six-month deadline under Code of Civil Procedure section 473 has passed [citation].” (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 87, italics added, quoting from In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684 & Fam. Code, § 2121, subd. (a).) Rodger’s set-aside motion did not mention any of the six exclusive grounds enumerated in Family Code section 2122, let alone make the necessary showing thereunder. Hence, he did not seek relief under the Family Code.
We are mindful that “ ‘ “appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits.” ’ [Citation.]” (Carmel, Ltd. v. Tavoussi, supra, 175 Cal.App.4th at p. 402.) However, “[f]inal is final, and liberality has its limits.” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1022 (dis. opn. of Stewart, J.).) Rodger’s set-aside motion was procedurally deficient and untimely under section 473, subdivision (b), and his motion did not seek relief under the relevant provisions of the Family Code. Accordingly, the trial court had no authority to set aside the default and default judgment. As the result of our holding, we need not address Paula’s challenge to the order denying her motion for reconsideration (§ 1008).
DISPOSITION
The orders setting aside the default and default judgment and denying the motion for reconsideration are reversed. Appellant to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



DHANIDINA, J.


We concur:


EDMON, P. J.



LAVIN, J.