Marriage of Gomez and Mellen CA2/7 ( 2021 )

Filed 10/21/21 Marriage of Gomez and Mellen CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re Marriage of STEVEN B307879
GOMEZ and SUSAN M.
MELLEN. (Los Angeles County
Super. Ct. No. 19STFL11398)
SUSAN M. MELLEN, ORDER MODIFYING
OPINION [NO CHANGE IN
Respondent, APPELLATE JUDGMENT]
v.
STEVEN GOMEZ,
Appellant.
THE COURT:
The opinion filed on October 20, 2021 and not certified for
publication, is modified as follows:
On page 9, after the last sentence in the Disposition
section, add the sentence: Gomez is to recover his costs on
appeal.
This order does not change the appellate judgment.
___________________________________________________________
SEGAL, Acting P. J. FEUER, J. IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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Filed 10/20/21 Marriage of Gomez and Mellen CA2/7 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
In re Marriage of STEVEN B307879
GOMEZ and SUSAN M.
MELLEN. (Los Angeles County
Super. Ct. No. 19STFL11398)
SUSAN M. MELLEN,
Respondent,
v.
STEVEN GOMEZ,
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Juhas, Judge. Reversed with
directions.
Steven Gomez, in pro. per., for Appellant.
Artiano & Associates, James Artiano and Lawrence S.
Andrews for Respondent.
INTRODUCTION
Susan Mellen claims she was never married to Steven
Gomez because, when she purportedly married him on March 14,
1993, she was already married to someone else. In 2019 Mellen
filed this action to annul her marriage to Gomez. Gomez did not
timely respond, and the court entered his default.
Gomez moved to set aside the default under Code of Civil
Procedure section 473, subdivision (b),1 but the family law court
denied the motion. The family law court subsequently entered a
default judgment declaring the marriage a nullity. Gomez
appeals, and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On September 23, 2019 Mellen filed a petition seeking to
annul her marriage to Gomez,2 who has been incarcerated since
1997.3 On October 7, 2019 Mellen served Gomez with the
petition at a prison in Fresno County. When Gomez did not
1 Statutory references are to the Code of Civil Procedure.
2 Mellen claims that Gomez, who was “engaged in certain
illegal activities,” convinced her to marry him in 1993 “in a
misguided attempt to create spousal immunity” and that it “was
never a real marriage.” She obtained a dissolution of her first
marriage in 2019.
3 Mellen was also incarcerated, from 1998 to 2014, but for a
crime she did not commit. After her release from prison, she
received a $12 million settlement from the City of Los Angeles for
wrongful conviction.
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respond, the family law court entered his default on January 13,
2020.
Nine weeks later, on March 20, 2020, Gomez, representing
himself, filed (among other things) a motion to set aside his
default on the ground it was entered through his “[i]nadvertence,
surprise, mistake, or excusable neglect.”4 Gomez stated that “he
had ‘no’ access to [a] prison law library in [the] month[s] of
[November] and [December] of 2019 to defend his rights” and
that he had “[n]o writing material [and] no envelopes to mail.”
On July 27, 2020 the family law court denied Gomez’s
motion. The family law court ruled that the motion was
“procedurally proper,” but that Gomez did not meet his burden to
show the “default was entered as a result of mistake, surprise,
inadvertence or excusable neglect or fraud on [his] part.”
On August 31, 2020 the family law court entered a default
judgment against Gomez declaring the marriage a nullity.
Gomez filed a timely notice of appeal.5
4 Mellen claims the “sizable settlement she received as a
result of her . . . civil settlement piqued [Gomez’s] interest in this
matter and induced him to file” the motion as part of a “money
grab” for her settlement funds. Mellen’s income and expense
declaration, dated January 12, 2020, lists her total assets as
approximately $4.5 million.
5 Gomez’s notice of appeal, filed September 3, 2020, stated he
was appealing from the default judgment dated July 27, 2020.
The latter date is actually the date of the order denying Gomez’s
motion to set aside the entry of default. We liberally construe the
notice of appeal to be from the August 31, 2020 judgment. (See
Verceles v. Los Angeles Unified School Dist. (2021) 63 Cal.App.5th
776, 783 [“‘[N]otices of appeal are to be liberally construed so as
to protect the right of appeal if it is reasonably clear what
3
DISCUSSION
A. Gomez’s Motion To Set Aside the Default Was Timely
Section 473, subdivision (b), states that an application for
relief under the provision “shall be made within a reasonable
time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken.” (See Austin v. Los
Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928
[“A party seeking relief under section 473(b) must file the motion
within a reasonable time but not longer than six months after the
judgment or dismissal has been entered.”].) Gomez filed his
motion to set aside the default approximately two months, and
thus well within six months, after the court entered the default.
Contrary to Mellen’s assertion, Gomez’s motion was timely.
Which the family law court appears to have found.
Although the court’s order stated, “the motion is untimely,” that
had to have been a typographical error. The court stated:
“Procedurally the motion is untimely under [section] 473(b) as it
was filed within six months of the date of entry of default.
Default was entered on 1/13/20 and the instant motion was filed
on 3/20/20. [Gomez] has complied with [section] 473(b) because a
appellant was trying to appeal from, and where the respondent
could not possibly have been misled or prejudiced.’”]; Winter v.
Rice (1986) 176 Cal.App.3d 679, 682 [“Where judgment was
entered at the time of filing of a notice of appeal from” an order
denying a motion to vacate a default, “the notice may be
construed to refer to the judgment thereby permitting review of
the order.”]; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975,
981 [order “denying [a] motion to vacate the default is not
independently appealable” but “may be reviewed on an appeal
from the judgment”].)
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proposed response was filed with the [Request for Order]. As a
result, the motion is procedurally proper.” The court obviously
meant to write “timely,” not “untimely.”
Mellen argues Gomez’s motion under section 473 was
untimely because he “failed to file his [m]otion more than three
months after receiving notice of the entry of default.” But he filed
his motion, at the latest,6 on March 20, 2020. That’s pretty
diligent, even for represented litigants.
Mellen relies on Stafford v. Mach (1998) 64 Cal.App.4th
1174. In that case the defendant’s insurer, despite repeated
notices from both its insured and the parties injured by the
insured’s car, waited “six months to the day after the default was
entered and four and one-half months after it became aware of
the default judgment” before filing a motion to set aside the
default under section 473, subdivision (b). (Id. at pp. 1177-1178,
1185.) The court in Stafford reversed an order granting the
motion, concluding that the “record is devoid of any evidence
justifying such a long delay” and that “the delay in filing appears
to have been largely a tactical decision.” (Ibid.) This case is
nothing like Stafford. Gomez filed his motion for relief a mere
two months (at the latest) after the entry of his default. And
Mellen did not present any evidence or argument that Gomez
delayed bringing his motion for tactical reasons or that his
explanation for the short delay was not true.
6 Gomez argues he timely filed his motion to set aside on
January 8, 2020, but refiled it on March 20, 2020 because the
court either did not receive it or rejected it. Mellen argues Gomez
did not serve her with the motion until April 24, 2020.
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B. The Family Law Court Abused Its Discretion in
Denying Gomez’s Motion To Set Aside the Default
Under the discretionary provision of section 473,
subdivision (b), which applies where (as here) there is no attorney
affidavit of fault, a “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.” “[T]he standard of review from the court’s grant or
denial of a motion for relief from default is well-settled. ‘“A
motion seeking [relief from default] lies within the sound
discretion of the trial court, and the trial court’s decision will not
be overturned absent an abuse of discretion.”’” (Behm v. Clear
View Technologies (2015) 241 Cal.App.4th 1, 14.) Nevertheless,
“[b]ecause 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; see McClain v. Kissler (2019)
39 Cal.App.5th 399, 413; Murray & Murray v. Raissi Real Estate
Development, LLC (2015) 233 Cal.App.4th 379, 385.)
Gomez explained in his declaration why he had been
unable to respond to the petition before the court entered his
default in January 2020. Gomez stated that he learned about the
petition in October 2019 (which is when Mellen served him), but
that he “was prevented to defend his right” by an “external factor
beyond his control.” He explained that, due to several 10-day
prison lockdowns, he did not have access in November and
December 2019 to a prison law library or to writing material and
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envelopes. Gomez also said he was “illiterate to procedures and
law required to defend his cause, and has only a 5th grade
education.”7
Gomez’s explanation for his (relatively brief) delay in
responding to Mellen’s petition entitled him to relief under
section 473, subdivision (b). An inmate’s “failure to contest the
judgment because he was denied the means to do so is, of course,
excusable neglect as a matter of law.” (Payne v. Superior Court
(1976) 17 Cal.3d 908, 926, fn. 9; see J.W. v. Watchtower Bible &
Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1172
[“‘“Excusable neglect” is generally defined as an error “‘“a
reasonably prudent person under the same or similar
circumstances might have made”’”’”].) Gomez said he did not
have access to writing materials or envelopes, both of which he
needed to respond to Mellen’s petition. That was enough.
The family law court ruled this explanation was
insufficient because the court found Gomez’s “claim that he had
no access to the law library for two months, or that he had no
supplies,” did not “articulate what steps he took or may have
taken to obtain what he needed in order to respond. Although he
7 Mellen argues Gomez “did not present any evidence of
these facts in his supporting declaration, which was instead
focused on his erroneous belief he was improperly served . . . .”
But he did. Gomez used a form motion that included various
boxes Gomez checked and text he added to the form. The
statements about his inability to obtain writing material and
access the prison library because of frequent lockdowns appear
after a checked box stating “[c]ontinued on the attached
declaration” and below the handwritten words “continued
declaration.” The verification under penalty of perjury to “the
foregoing” is on the last page of the form motion.
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argues that he is unfamiliar with legal procedures and defenses,
he has chosen to proceed as a self-represented litigant and this is
not a basis upon which to set aside a default.”
A series of prison lockdowns in November and December,
however, is a pretty good articulation of why an inmate could not
obtain what he needed to obtain, and do what he needed to do, to
respond to a petition served in October. It is also unclear what
other steps Gomez could have taken without access to paper,
writing implements, envelopes, and a library. (See In re Allison
(1967) 66 Cal.2d 282, 289 [“‘prisoners have the right to prompt
and timely access to the mails for the purpose of transmitting to
the courts statements of facts which attempt to show any ground
for relief’”]; Cal. Code Regs., tit. 15, § 3138, subd. (a) [“Upon the
request of an indigent inmate . . . writing paper, envelopes, a
writing implement, and the postage required for five 1-ounce
First-Class letters per week shall be supplied.”]; see also Brinson
v. McKeeman (W.D.Tex. 1997) 992 F.Supp. 897, 909 [“the state
must furnish indigent inmates with pen and paper to draft legal
documents [and] stamps to mail them”].) And Gomez did not
argue he was entitled to relief because he was self-represented;
he argued he was entitled to relief because he could not obtain
writing material and envelopes in time to respond to the petition
in a timely manner.
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DISPOSITION
The order denying Gomez’s motion under section 473,
subdivision (b), and the default judgment are reversed. The
family law court is directed to enter a new order granting the
motion and setting aside the entry of default.
SEGAL, Acting, P. J.
We concur:
FEUER, J.
IBARRA, J. *
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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