Filed 1/16/18 Singh v. Mann CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellants Surinder Singh and Rajinder Kaur appeal from several trial court orders, including one denying their motion to set aside a judgment entered against them. The order denying the motion to set aside the judgment is the only order properly before us, and we conclude that the trial court did not abuse its discretion in issuing it. We therefore affirm.

I.
Factual and Procedural
Background

Singh and Kaur brought this case against respondents Santinder Gill Mann and Harjinder Singh Mann (the Manns) for allegedly reneging on a contract to sell Singh and Kaur a house in which they resided, and for later successfully bringing a wrongful detainer action that left Singh and Kaur temporarily homeless. The trial court entered judgment against Singh and Kaur after it granted the Manns’ motion for judgment on the pleadings. Singh and Kaur subsequently moved to set aside the judgment under Code of Civil Procedure section 473[1] (the set-aside motion), but the motion was denied.

Singh and Kaur filed a notice of appeal in which they expressed an intent to appeal from four orders: 1) a discovery order deeming certain discovery requests admitted; 2) the order granting the Manns’ motion for judgment on the pleadings; 3) the subsequent judgment; 4) and the order denying the set-aside motion.

II.
Discussion

A. Singh and Kaur Abandoned Their Appeal From the Discovery Order, and We Lack Jurisdiction to Consider Their Appeals From the Other Orders, Except the Order Denying the Set-aside Motion.

We first consider the scope of our review of the orders identified in the notice of appeal and conclude that only one of them, the order denying the set-aside motion, is properly before us. To begin with, Singh and Kaur have abandoned their appeal from the discovery order. In their appellate reply brief, they state they “intentionally did not address [the discovery order] in their [opening] Brief and the issue is therefore not before this Court.” In light of this abandonment, we need not further consider their appeal from the discovery order.

We are also unable to consider Singh and Kaur’s appeal from either the order granting the Manns’ motion for judgment on the pleadings or the subsequent judgment. We cannot review the order granting the Manns’ motion for judgment on the pleadings because it is not appealable. An appeal from such an order ordinarily must be taken from the judgment itself, not the ruling on the motion. (See Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1212-1213; Campbell v. Jewish Committee for Personal Service (1954) 125 Cal.App.2d 771, 773.)

In this case, however, we also lack jurisdiction to consider the judgment itself because Singh and Kaur’s notice to appeal from it was untimely. As Singh and Kaur candidly acknowledged in their notice of appeal, the judgment was entered on November 16, 2015, and served on Singh and Kaur two days later. 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.) Thus, the latest day Singh and Kaur could have timely filed their notice of appeal from the judgment was January 15, 2016. Their notice, however, was not filed until April 6, 2016. We therefore lack jurisdiction to consider their appeal from the judgment. (See, e.g., Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)

This leaves us with the appeal from the order denying the set-aside motion, and we have jurisdiction to consider it. Such an order is separately appealable as a special order made after a final judgment. (§ 904.1, subd. (a)(2); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008.) And Singh and Kaur’s notice of appeal was timely as to this order because the order was entered on March 8, 2016, and the notice of appeal filed in early April was filed well within the 60-day period to appeal.

Since we must limit our review to a consideration of only the order denying Singh and Kaur’s set-aside motion, we do not address the parties’ lengthy arguments about the validity of the other orders.

B. The Trial Court Did Not Abuse Its Discretion in Denying Singh and Kaur’s Set-aside Motion.

Section 473, subdivision (b), authorizes a trial court to “relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” A motion under this section is addressed to the sound discretion of the trial court, and an appellate court will not interfere absent a clear showing of an abuse. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266.) In considering whether there has been such a showing, we review the trial court’s underlying factual determinations, including credibility determinations, under a substantial evidence standard. (See, e.g., Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 [“[w]here the facts are in dispute as to whether or not the prerequisites of the mandatory relief provision of section 473, subdivision (b), have been met, we review the record to determine whether substantial evidence supports the trial court’s findings”].) Under this standard of review, “ ‘[w]hen 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.’ ” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283 (Gamet).)

Singh and Kaur contend that the trial court abused its discretion in denying the set-aside motion because, according to them, any neglect on their part in failing to participate in the proceedings leading to the entry of the judgment was excusable. They claim that their native language is Punjabi, and they argue that in denying the set-aside motion the court abused its discretion because it failed to mention their “lack of counsel, inability to speak, read or under[stand the] English language, homelessness . . . or self-confessed oversight and lack of understanding of the court’s rules requiring address changes or docket monitoring.” We are not persuaded.[2]

In denying the set-aside motion, the trial court correctly pointed out that “[t]he burden of proof is on the party seeking relief under section 473 of the Code of Civil Procedure to show that he failed to act within the time allowed by statute through mistake, inadvertence, surprise or excusable neglect.” (Fairfield v. Ahlstrom (1962) 206 Cal.App.2d 590, 592.) “Excusable neglect is that neglect which might have been the act of a reasonably prudent person under the same circumstances.” (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276.)”

After correctly summarizing the applicable law, the trial court went on by finding that “[t]here has been considerable motion practice in this case. [Singh and Kaur’s] failure to notify the court or defense counsel of their address change, or alternatively to otherwise adequately arrange for mail delivery, or to monitor the docket for months, does not meet this standard. Had the court not granted judgment on the pleadings, it would have been inclined to grant the [Manns’] then pending motion for terminating sanctions, for [Singh and Kaur’s] complete failure to participate in discovery in this case.” In other words, the trial court found that Singh and Kaur failed to sustain their burden of showing that their neglect was excusable.

We can perceive no abuse of discretion. Under section 473, subdivision (b), “ ‘[t]he word “excusable” means just that: inexcusable neglect prevents relief.’ ” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 528.) Here, the trial court’s finding that Singh and Kaur failed to sustain their burden of demonstrating excusable neglect was supported by ample, and certainly substantial, evidence. Singh and Kaur submitted a single declaration, signed only by Singh, in support of the set-aside motion. In the declaration, Singh stated that he was forced to vacate his residence on August 31, 2015, and was required to reside temporarily in a church and a hotel until October 13, 2015. He stated, “it never occurred to [him] that [he] needed to change the address [he] had listed at the Court.” And he claimed to have “had no knowledge of the motion for judgment on the pleading[s] until after his response was due. Once he learned of the motion, he attempted to contact counsel to no avail.”

In opposing the set-aside motion, the Manns filed eight declarations. These declarations were unopposed and unrebutted.[3] Collectively, they indicated that Singh and Kaur avoided attempts to contact them about litigation matters, including pending discovery. In mid-June 2015, when Singh and Kaur were still represented by counsel, the Manns had form interrogatories personally served on the attorney for Singh and Kaur. Sing and Kaur never responded, even after the Manns obtained an order on August 27, 2015, compelling responses to the interrogatories (and awarding sanctions). In early July 2015, the Manns also served a request for production of documents by mail on Singh and Kaur’s attorney. Singh and Kaur never responded, even after the Manns obtained an order on September 24, 2015, compelling the production of documents. And on July 21, 2015, the Manns served a notice to take Singh’s deposition. Singh again never responded, even after the Manns obtained an order on October 27, 2015, compelling the deposition. Singh and Kaur argue that it was improper for the trial court to base its denial of the set-aside motion partly on their failure to participate in discovery. But we see nothing wrong with the court pointing to their discovery disengagement to support its finding that their failure to participate in the proceedings leading to the judgment was inexcusable.

Several of the eight declarants stated they knew Singh and tried on behalf of the Manns to serve him personally with litigation-related documents, but Singh avoided their attempts. The Manns’ attorney declared that multiple attempts were made to contact Singh by phone about discovery matters and issues related to alternative dispute resolution, but Singh rebuffed the calls. In the words of Manns’ attorney, “[w]hen we call the last known phone number, either no one will pick up or, if they do, they hang up or claim they do not understand us.” Cumulatively, this testimony is substantial evidence supporting the trial court’s determination that Singh and Kaur’s neglect in failing to participate in the proceedings leading to the entry of the judgment was inexcusable.

Evidence was also presented that Singh and Kaur’s neglect was not due to their professed lack of English proficiency. One declarant suggested that Singh understood English as he had engaged in discussions with the declarant in English about collection matters. More significantly, another declarant, an associate of the Manns’ attorney, testified that she is fluent in Punjabi and called Singh about his deposition, but when she “spoke to him in Punjabi to inform him that [she] can speak and understand Punjabi . . . he hung up the phone.” The associate stated Singh “chose to purposefully ignore our office and any communication.”

We recognize that a showing of excusable neglect may be based upon a party’s disability. (See In re 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 even assuming that Singh and Kaur’s lack of English proficiency is a disability for purposes of section 473, Singh and Kaur were still required to show that this disability, and not something else, was the reason for their neglect. (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 909.) They failed to do so.

We also recognize that at the time the judgment was entered Singh and Kaur were not represented by counsel. But “ ‘ “[w]hen a litigant is appearing in propria persona, [the litigant] is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].” [Citations.]’ [Citation.] In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.” (Burnete v. La Casa Dana Apartments, supra, 148 Cal.App.4th at p. 1267.)

In arguing that the trial court abused its discretion, Singh and Kaur place undue reliance on Gamet, supra, 91 Cal.App.4th 1276. In that case, a pro per litigant, Sue Gamet, wrote to the judge before disengaging from litigation activities to say she was no longer represented by counsel, was living out of state, had become permanently disabled from a scuba accident, was out of work and money, and could not travel without assistance. (Id. at p. 1280.) Her opposing parties nonetheless “pressed ahead” with three discovery motions, and during a hearing on one of them the judge stated, “ ‘I’m in a position to jam [Gamet] . . . I’d like to keep the heat on . . . to see what she is going to do.’ ” (Id. at p. 1281.) After a judgment against Gamet was subsequently entered without an explanation, Gamet filed a set-aside motion, which was denied, again without an explanation. (Id. at p. 1282.)

In reversing the denial of the set-aside motion, the Court of Appeal concluded that the trial court had abused its discretion “because of a combination of events.” (Gamet, supra, 91 Cal.App.4th at p. 1283.) The court explained that “[n]owhere in the record is there any indication the trial judge gave any consideration to Gamet’s alleged personal and family traumas. The judge’s 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 arbitrary and create the appearance of substantial unfairness. . . . When disposing of cases become an end in itself, justice and fairness can easily fall by the wayside, and it appears that is what happened here.” (Ibid.)

This case is easily distinguishable from Gamet because it does not involve a similar combination of events. Singh and Kaur, unlike Gamet, never notified the trial judge of their circumstances before or during the proceedings leading to the adverse judgment. Moreover, they, unlike Gamet, did not provide the court or the other parties with contact information, did not make any effort to keep abreast of the litigation, and avoided being contacted about the case. Furthermore, the trial court here, unlike the trial judge in Gamet, never suggested a desire to impede any party’s participation in the litigation and provided reasons for its rulings.

Singh and Kaur brought this case and seemingly had an interest in prosecuting it. But for more than four months they, at best, did nothing whatsoever to be notified of litigation activities or, at worst, actively avoided being contacted about them. We cannot conclude on the record before us that the trial court abused its discretion in ruling that Singh and Kaur failed to prove excusable neglect.

III.
Disposition

The order denying appellants’ set-aside motion is affirmed. Respondents are awarded their costs on appeal.

_________________________

Humes, P.J.

We concur:

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Dondero, J.

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Banke, J.

Singh et al. v. Mann et al. A148125