Filed 7/19/17 Rayn v. Besneatte CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


RHONDA RAYN,
Plaintiff and Respondent,
v.
DANE A. BESNEATTE,
Defendant and Appellant.

A145818

(Solano County
Super. Ct. No. FCS 044217)


Defendant Dane Besneatte appeals from the trial court’s denial of his motion to set aside a default judgment entered against him. On appeal, he argues that (1) the denial of the motion was improper and (2) the default judgment wrongly awarded punitive damages to plaintiff Rhonda Rayn. We disagree with the first claim and lack jurisdiction to consider the second. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Besneatte is a licensed attorney who is representing himself. Throughout this litigation and the events leading up to it, he engaged in a pattern of neglect resulting in the filing of this case, the entry of a default judgment against him, and his loss of appellate opportunities to challenge trial court rulings.
The discouraging history of this case began when Rayn retained Besneatte to represent her in pursuing claims against her father-in-law’s estate. With Besneatte as her attorney, Rayn sued the estate in 2012. In late 2013, Rayn discovered that judgment had been entered against her because, unbeknownst to her, the estate had filed a motion for summary judgment and Besneatte did not file any response on her behalf. In a declaration included in our record, Rayn attested that Besneatte committed professional malfeasance and breached his fiduciary duty to her. She declared that Besneatte was “incredibly difficult to communicate with,” failed to return phone calls, kept irregular office hours, gave bad advice about the prospects of her suit, failed to appear at a case management conference and meetings, gave bad settlement advice, failed to tell her about discovery requests that the estate had sent to Besneatte, caused her to be sanctioned, and failed to return her case file when she requested it. In his briefing, Besneatte states that “at no time during the 36 years he has practiced law has there ever been a time when he has willfully, maliciously, intentionally or otherwise took action to harm or cause distress to any client. . . .” Our record, however, includes no evidence refuting Rayn’s assertions about Besneatte’s representation of her.
After Rayn learned that judgment had been entered against her, she retained new counsel, who sent Besneatte a letter in February 2014 seeking a return of the fees and costs that Rayn had incurred in her unsuccessful suit. Besneatte did not respond.
Months later, Rayn filed this action against Besneatte by filing a complaint alleging that he had been negligent and had breached his fiduciary duty to her. On October 11, 2014, Besneatte was served with substituted service of process at his office in Dixon. At the time of substituted service, and possibly on subsequent occasions, Besneatte was also served with a statement of damages. He did not answer or otherwise respond to the complaint, and default was entered against him on December 5.
Over the six months following substituted service, Rayn’s attorney served additional pleadings and notices on Besneatte by mailing them to his office, none of which was returned. These included a proof of service of notice of reassignment and notice of hearing, a request for entry of default, a case management conference statement and notice to appear by telephone, a request for court judgment and supporting documents, a notice of intent to appear by telephone at an order to show cause hearing, and a notice of entry of judgment. The trial court also mailed to Besneatte an order to show cause why judgment should not be entered with a notice of a hearing date in late February 2015. Besneatte did not appear at the hearing.
On March 9, 2015, the trial court entered a default judgment against Besneatte in the amount of $216,874.65, which was composed of $59,612.70 in compensatory damages, $6,776.95 in prejudgment interest, $485 in costs, and $150,000 in punitive damages. On March 17, Rayn mailed to Besneatte a notice of entry of judgment.
Eighty days later, on June 5, 2015, Besneatte filed a motion to set aside the default and to vacate the judgment under Code of Civil Procedure sections 473 and 473.5 (the set-aside motion) and supporting affidavit. A hearing on the set-aside motion was held on July 8. At the hearing, Besneatte testified that “the first time that [he] was aware that this case was in existence” was when he was personally served with an order to appear for a debtor’s exam, service that the record reflects occurred on April 24. He testified that he had serious medical problems beginning in mid-October 2014 and was not working from the period starting the week before Thanksgiving to January 2 or 3, 2015. While he was not working, someone would pick up his mail, put it in a plastic bag, and hang the bag on his office door. He would occasionally visit his office and take the bag inside without reading its contents.
Although Besneatte returned to work in early January 2015, he testified that he did not open the mail in the bags until “the end of February, maybe even March.” The trial court asked Besneatte, “[Y]ou’re telling me that as an officer of the court and as a legal representative of defendants or other parties, you let their mail sit there for two, maybe three months, without ever touching a piece of mail. Is that what you’re telling me?” Besneatte answered, “It is.” He testified that upon his return to work he “had a crush of cases” and “just was overwhelmed and inundated with cases and going to court and was overworked.”
The trial court denied the set-aside motion. It found that the evidence “clearly demonstrates properly substituted service” on Besneatte, defeating his claim for relief under section 473. It also found under section 473.5 that “there is sufficient evidence to show that any lack of actual notice was due to [Besneatte’s] inexcusable neglect.” Besneatte filed his notice of appeal from the denial of the set-aside motion on July 16, 2015.
A party appealing a trial court’s ruling that the party was neglectful in not complying with procedural rules might be careful to adhere to appellate rules and deadlines. Besneatte was not. This court dismissed and reinstated this appeal three times, and almost dismissed it a fourth time, because Besneatte missed numerous filing deadlines and failed to comply with other rules. Almost a year after filing the notice of appeal, Besneatte finally filed an opening brief in an acceptable format. Rayn then filed her brief raising a number of arguments, including one challenging this court’s jurisdiction over Besneatte’s claim that the default judgment improperly included punitive damages. Besneatte did not file a reply.
II.
DISCUSSION
A. The Trial Court Properly Denied the Set-aside Motion.
1. The trial court correctly determined that Besneatte was not entitled
to relief under section 473 because Rayn’s substituted service of
process was effective.
Besneatte first argues that the trial court improperly denied the set-aside motion because Rayn failed to establish effective substituted service of process. We are not persuaded.
We begin with the governing law. Principles of due process, including the need for personal jurisdiction to be established over a defendant, require that the applicable statutory procedures for service of process be satisfied. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858.) A default judgment entered against a defendant who was not served with process in compliance with those procedures is void. (Ibid.) “Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) The burden is on the plaintiff to prove that service of process was effective when the defendant challenges the trial court’s personal jurisdiction. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)
We review the trial court’s determination de novo when the question is whether an entry of default and the default judgment were void for lack of proper service of process. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Where findings of fact are challenged, we consider whether they are supported by any substantial evidence, contradicted or uncontradicted. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245.) “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.) We do not reweigh evidence, reassess the credibility of witnesses, or resolve conflicts in the evidence. (Pope, at p. 1246.)
Section 415.20 authorizes substituted service of process in lieu of personal delivery. It provides, “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” (§ 415.20, subd. (b).)
Under section 415.20, “an individual may be served by substituted service only after a good faith effort at personal service has first been made. . . . Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘ “reasonable diligence.” ’ ” (American Express. Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 389.) Since the “ ‘ “purpose of . . . section 415.20 is to permit service to be completed upon a good faith attempt at physical service on a responsible person[,]” . . . [s]ervice must be made upon a person whose “relationship with the person to be served makes it more likely than not that they will deliver process to the named party.” ’ ” (Hearn v. Howard, supra, 177 Cal.App.4th at pp. 1202-1203.)
Rayn argues that her filing of the proof of service created a presumption of effective substituted process that Besneatte failed to effectively rebut. We agree. “The filing of a proof of service creates a rebuttable presumption that the service was proper . . . if the proof of service complies with the applicable statutory requirements.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; Evid. Code, § 647.) Rayn filed a proof of service from a registered process server, Tom Martin, in which he attested that on October 11, 2014, he left copies of the summons, complaint, and statement of damages with Anita Parish, a person described as a legal assistant, at Besneatte’s business address, and later mailed the documents to that same address. Martin had attempted to serve Besneatte personally five times at this business address before he left the documents with Parish.
Besneatte argues that the rules “were not ‘precisely followed’ here,” but he fails to identify any specific rule that was violated. He also asserts that the evidence submitted to prove substituted service was “inconsistent,” but we discern no meaningful discrepancies in the evidence. Without cogently explaining his argument, Besneatte suggests there was something amiss because a service-of-process Work Order attached to Martin’s declaration filed in response to the set-aside motion left blank a space for including the place, date, and time that the documents were mailed. But the fact that the documents were mailed to Besneatte’s place of business after they were left with Parish was established by the proof of service, an Affidavit of Reasonable Diligence filed with the proof of service, and Martin’s declaration. That the Work Order did not include this information creates no inconsistency. There is ample, and certainly substantial, evidence supporting the trial court’s determination that substituted service was effective.
2. The trial court did not abuse its discretion in determining that any
lack of actual notice was due to Besneatte’s inexcusable neglect.
Having concluded that the trial court properly determined that Rayn established effective substituted service of process, we turn to consider whether, as Besneatte claims, the court abused its discretion in denying the set-aside motion under section 473.5 upon a finding of inexcusable neglect. We conclude that it did not.
Section 473.5 authorizes a trial court to relieve a party from a default judgment “[w]hen service of a summons has not resulted in actual notice to [the] party in time to defend the action” and the party demonstrates “that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (§ 473.5, subds. (a) & (c).) We review a ruling on a motion seeking discretionary relief under section 473.5 for an abuse of discretion, a standard under which we evaluate “whether the trial court exceeded the bounds of reason.” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318-1319.) Still, because “ ‘[i]t is the policy of the law to favor, whenever possible, a hearing on the merits,’ ” even in cases where the showing of an abuse of discretion “ ‘ “ ‘is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.’ ” ’ ” (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1444, italics omitted.)
Here, the trial court found “sufficient evidence to show that any lack of actual notice was due to [Besneatte’s] inexcusable neglect.” We look to case law interpreting section 473, subdivision (b), which refers to “excusable neglect,” for guidance. Under that provision, neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.) “ ‘The word “excusable” means just that: inexcusable neglect prevents relief.’ [Citation.] [¶] The burden of establishing excusable neglect is upon the party seeking relief who must prove it by a preponderance of the evidence.” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528, fn. omitted.) A showing of excusable neglect may be based upon the party’s disability. (See In re The Marriage of Kerry (1984) 158 Cal.App.3d 456, 466 [mental confusion]; Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208 [post-stroke mental deterioration].) But to establish excusable neglect on the basis of disability, the moving party must show that the disability, and not something else, was the reason for the neglect. (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 909.)
We conclude that the trial court’s finding of inexcusable neglect was supported by substantial evidence, much of which was presented by Besneatte himself. He testified that he had no actual notice of any of the pleadings or notices before April 24, 2015, the date he was personally served with the order to appear at a debtor’s examination. But even if his testimony fails to establish inexcusable neglect for his being unaware of this litigation for some portion of time between the substituted service and April 24, his testimony can be construed to establish inexcusable neglect for other parts of the relevant period.
According to Besneatte, he was not working from mid-November 2014 to the beginning of January 2015. We recognize that being an attorney can be hard, especially when facing medical challenges. But Besneatte provided no satisfactory excuse for failing to ensure that someone was reviewing his mail while he was unable to work. And he provided even less of a satisfactory excuse for not ensuring that his mail was reviewed before late February or early March 2015, almost or more than two months after he had returned to work. Being overwhelmed, inundated with cases, and overworked does not justify completely ignoring the simple and essential responsibility of reviewing litigation correspondence. Finally, even if his testimony could be construed to establish excusable neglect through late February or March 2015, it did nothing whatsoever to explain his continued lack of knowledge of this litigation until the end of April, when he was served with the order to appear for a debtor’s exam. The trial court may have reasonably discredited Besneatte’s testimony that he ever read the contents of the bags. Or it may have reasonably determined that if he did read the bags’ contents, he did so in an inexcusably negligent manner. Either way, the court did not abuse its discretion by concluding that any lack of actual notice was due to Besneatte’s inexcusable neglect.
B. We Lack Jurisdiction to Consider Besneatte’s Challenge to the Default
Judgment.
Besneatte argues that the default judgment’s award of punitive damages was improper because nothing in Rayn’s allegations supported such an award. We cannot consider this argument because we lack jurisdiction to so.
The relevant dates are important. After the default judgment was entered, Rayn served a notice of entry of judgment on Besneatte on March 17, 2015. But Besneatte did not file his set-aside motion until 80 days later, on June 5. He filed his notice of appeal on July 16.
A notice of appeal must be filed on or before 60 days after the party filing the notice of appeal is served with a notice of entry of judgment. (Cal. Rules of Court, rule 8.104.) This time period can be extended if the party files a valid motion to vacate the judgment within the time prescribed by rule 8.104. (Rule 8.108; see also English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 135-136.) By waiting until 80 days after being served with the notice of entry of judgment, Besneatte failed to file his motion within rule 8.104’s 60-day period, and his time to appeal from the default judgment therefore lapsed long before he filed his notice of appeal on July 16. Accordingly, we lack jurisdiction to consider his challenge to the default judgment. (Van Beurden Ins. Services., Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Moreover, even if we had jurisdiction, we would likely be unable to consider the claim given Besneatte’s failure to designate the complaint and statement of damages as part of the record. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
III.
DISPOSITION
The order denying the motion to set aside the default and to vacate the judgment is affirmed. Respondent is awarded costs on appeal.
 

_________________________
Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.












Rayn v. Besneatte A145818