M.K. v. A.T. CA3 ( 2022 )

Filed 10/25/22 M.K. v. A.T. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Placer)
----
M.K., C094233
Appellant, (Super. Ct. No.
S-DR-0058203)
v.
A.T.,
Respondent.
Appellant M.K. appeals from the trial court’s denial of a motion to set aside a
judgment and orders granting his wife’s request for a domestic violence restraining order
(DVRO). M.K. argues that the trial court both abused its discretion and committed legal
error by declining to grant him relief under Code of Civil Procedure section 473,
subdivision (b).1 We will affirm.
1 Undesignated statutory references are to the Code of Civil Procedure.
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FACTUAL AND PROCEDURAL HISTORY
A. Procedural background
On September 18, 2019, M.K.’s wife, respondent A.T., filed a request for a DVRO
against M.K. The request sought personal conduct and stay-away orders on behalf of
herself and their nine-year-old son, C.K. She further asked that M.K. move out of her
residence, that she have the right to record unlawful communications, and that the court
issue custody and visitation orders for C.K. In support of her request, A.T. submitted a
statement describing M.K.’s angry and erratic behavior towards A.T. and C.K., and
M.K.’s failure to get adequate psychiatric treatment. In a supplemental declaration, A.T.
described physical abuse by M.K.
M.K. retained attorney Robert McCann and filed a response to A.T.’s DVRO
request on September 27, 2019. Using Judicial Council form DV-120, M.K. checked the
box indicating that he did not agree to the order requested regarding “Other Protected
People.” However, with the respect to the stay-away order, M.K. checked boxes stating,
“I do not agree to the order requested,” “but I would agree to:” and wrote, “AWAY
FROM [A.T.]” M.K. also marked the boxes stating he agreed to the personal conduct
orders and agreed to A.T.’s request to record unlawful communications. He did not agree
to the property and move-out orders and requested a referral to mediation regarding
custody and visitation.
M.K.’s responsive pleading included a declaration which he titled “DV-120
Reasons I Do Not Agree.” There, M.K. said that he did not feel A.T. had C.K.’s best
interests in mind. He wrote: “I Request that [C.K.] be removed from the restraining
order . . . . I request shared legal and full physical custody with supervised visitation to
[A.T.] as I fear for [C.K.’s] safety.” M.K. also denied that he was threatening,
aggressive, or rough towards A.T., and further denied that he failed to take his psychiatric
medications. He explained that he was opposed to moving out of the house because he
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believed it would be detrimental to C.K. M.K. signed his DVRO response under penalty
of perjury.
On October 3, 2019, McCann appeared on M.K.’s behalf at the hearing regarding
a temporary DVRO (TRO). At the hearing, McCann did not assert that M.K. was
opposed to the restraining order against A.T. The trial court granted a TRO as to A.T.
but not as to C.K.
In February 2020, M.K. retained new attorneys, Sean Musgrove and Diane
Yapundich. Musgrove reviewed the court documents, including M.K.’s DVRO response,
but apparently did not notice M.K.’s assent to a stay-away order from A.T. and personal
conduct orders. The parties stipulated to a two-day trial on the DVRO. The trial court
ordered them to file their witness lists and any statements of issues and contentions by
September 18, 2020, and set trial for October 8 and 9.
B. The DVRO trial
On October 8, 2020, the parties and their counsel appeared for trial, with M.K.
appearing telephonically. A.T.’s counsel made an oral motion in limine, asking that
“based on [M.K.’s] response to the request for [DVRO] where [M.K.] agreed to a stay
away order as to [A.T.], and agreed to a personal conduct order, and agreed to an order
for recording, that the Court make a finding that those issues are no longer in dispute.”
A.T.’s counsel asserted that the only matters still at issue were the length of time for the
restraining order after the hearing and the move-out order. A.T.’s counsel argued that
based on his pleading, M.K. was “judicially estopped from taking a different position.”
M.K.’s counsel, Yapundich, objected, asserting that the motion in limine should
have been filed with the witness list because it was made without notice to M.K. A.T.’s
counsel countered that there was notice, especially since M.K.’s position was reinforced
during M.K.’s deposition, at which Yapundich was present. A.T.’s counsel then read
from M.K.’s deposition, in which M.K. reviewed his response to the DVRO and
confirmed that everything was true and correct. M.K. also confirmed that he “signed off
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on” his agreement with the personal conduct orders, though he was “very surprised” to
see that he had checked the box agreeing to the order. And, when asked, as to “Box 7
with respect to the request for a stay away order, you say you agree to a stay away order
as to [A.T.], correct?” he responded, “I show I do not agree to the order requested but I
would agree to—yeah, but I would agree to stay away from [A.T.]” Deposing counsel
clarified, “So you agree to a stay away order as to [A.T.], correct?” and M.K. answered,
“That’s correct.” Counsel asked, “And you agree to a stay away order from [A.T.], [ ],
but not a stay away order as to [C.K.], correct?” M.K. answered, “Yes.”
A.T.’s counsel argued that M.K.’s verified response to the DVRO, confirmed at
his deposition, bound M.K. to his concessions in the pleading. Yapundich responded that
M.K. was not clear on what he said at the deposition and what box he checked , and that
his answers in his responsive pleading and at his deposition, indicated his confusion.
After stating that it would rule on A.T.’s “verbal motion in limine to address the
exclusion and/or a request for presumptively an estoppel . . . as to the offering of
evidence on certain portions of” A.T.’s DVRO application, the trial court found that
M.K.’s verified response to the DVRO “reaffirmed in part in his deposition indicate that
he had no objection to personal conduct orders protecting [A.T.]” As M.K.’s verified
response stated that he did not agree to the order requested but did expressly assert that he
agreed to stay-away from A.T., the court found that “[M.K.] agreed to a restraining order
and stay away order as to [A.T.], but did not agree to a stay away order with regards to
the minor child.” The trial court, therefore, ordered that M.K. was “prohibited and
excluded . . . from submitting or offering evidence that would counter” A.T.’s request for
a stay-away order. It further prohibited M.K. from offering evidence with regard to the
personal conduct orders and order permitting A.T. to record unlawful communications.
The trial court reasoned that the request for personal conduct orders and the stay-away
order were “not at issue because they were not placed at issue by the pleadings filed by
[M.K.] [¶] Secondly, he had an opportunity to disavow his answers and his responses to
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his deposition . . . and he did not do so. Therefore, the Court has made the order for
exclusion of evidence on those issues . . . and they are therefore not at issue.”
The trial court ultimately granted a DVRO as to A.T. only but shortened the time
to 18 months because M.K. agreed to the orders, and the court wished to “reward right
doing.”2 It further restrained M.K. from harassing and contacting A.T., ordered M.K. to
stay 100 yards from A.T. in certain areas, granted the move-out order, and extended the
custody order already in place. The parties agreed to remove C.K. as a protected party
from the TRO.
C. M.K.’s set aside motion
On March 5, 2021, five months after the DVRO trial, M.K. moved to set aside the
judgment and orders granting the DVRO and requested a new trial. M.K. argued that he
was entitled to relief under the discretionary provisions of section 473, subdivision (b),
based on mistake, inadvertence, surprise, and/or excusable neglect. In support of the
motion, Musgrove provided a declaration stating that he reviewed M.K.’s DVRO
response after M.K. retained him as counsel. However, Musgrove “missed the fact” that
M.K.’s response, filed by his former attorney, indicated M.K.’s agreement to the personal
conduct order and stay-away order from A.T. He also stated that he was under the
impression that M.K. opposed the DVRO because his responsive declaration denied that
2 We requested supplemental briefing on the question of mootness, given that the
DVRO was set to expire on April 8, 2022. M.K. submitted a letter brief representing that
the DVRO has been extended to at least October 31, 2022, when the court will hear
A.T.’s pending request to renew the DVRO. M.K. further notes that Family Code section
3044 creates a five-year rebuttable presumption that an award of sole or joint custody of a
child to a person who has perpetrated domestic violence is detrimental to the best interest
of a child. Thus, he contends that even if the DVRO had expired, it may impact his
ability to obtain custody of C.K. for five years. A.T. did not argue to the contrary. We
agree with the parties that the matter is accordingly ripe for appeal. (See Harris v.
Stampolis (2016) 248 Cal.App.4th 484, 495-496 [appeal from expired civil harassment
restraining order is not moot if the order has been renewed].)
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any domestic violence had occurred. Musgrove averred that had he noticed M.K.’s
position, he would have filed a motion to amend the pleadings to accurately reflect the
legal position that he took at subsequent hearings and in communication with A.T. and
her attorneys.
M.K.’s other current attorney, Yapundich, also submitted a declaration stating that
she did not have notice of A.T.’s motion in limine prior to trial. She further explained:
“After the October 8, 2020 date, I learned that [M.K.’s] prior counsel, Mr. McCann, did
not attach the correct declaration” to M.K.’s DVRO response. She realized the error
while reviewing the court file.
Finally, M.K. represented in his declaration that he repeatedly told McCann he
opposed the restraining order. M.K. asked McCann to file M.K.’s amended declaration
clarifying his opposition, but McCann sent the declaration to the mediator instead of the
court. Although McCann assured M.K. that he would file the corrected declaration, M.K.
reviewed the court file “in the middle of October 2020” and learned at that time that his
supplemental declaration was never filed.
At the hearing on the motion, the trial court stated that it had reviewed all the
papers, pleadings, and the minutes from the trial. It then denied the motion to set aside
on two grounds: “1) There was no . . . request to amend and/or for relief at the time of
the trial; [and] 2) The filing for the relief was not made as soon as possible and effective
even with the COVID issues.” It further stated that its “primary focus is that at the time
of trial [A.T.] was entitled to rely on the verified response to the DVRO application.”
The court said that if Musgrove had made an oral motion to amend M.K.’s response at
trial, it would have permitted the amendment and continued the trial. However,
Musgrove failed to do so.
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DISCUSSION
I
Section 473, Subdivision (b)’s Discretionary and Mandatory Provisions
M.K. argues that the trial court erred by denying his motion under both the
discretionary and mandatory provisions of section 473, subdivision (b). However,
M.K.’s motion did not seek mandatory relief from default. Thus, as we explain, we may
only consider whether the trial court erred by denying M.K.’s request for discretionary
relief.
Section 473, subdivision (b) contains both mandatory and discretionary provisions
for relief. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432,
438.) The discretionary provision states that the court “may . . . relieve a party or his or
her legal representative” from a variety of orders, including a “judgment, dismissal,
order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) The mandatory
provision is more limited in a sense, applying only to defaults and dismissals. (Martin
Potts, supra, at p. 438.) The mandatory provision requires the court to grant relief where
the motion is supported by an attorney’s “sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect” which caused the default. (§ 473, subd. (b).) For
discretionary relief, the court retains, of course, discretion to grant relief, and an attorney
affidavit is not required. (Ibid.) Further, as relevant here, the statute permits
discretionary relief based on “excusable neglect,” whereas it provides for mandatory
relief when an attorney attests to “neglect,” whether or not excusable. (Martin Potts, at p.
438; § 473, subd. (b).)
In his notice of motion, M.K. sought relief under section 473, subdivision (b)
“based on mistake, inadvertence, surprise, and/or excusable neglect.” (Italics added.)
Thus, the notice sought relief only under the discretionary provision of the statute and,
“[a]s a general rule, the trial court may consider only the grounds stated in the notice of
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motion.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125 (Luri).) Although
M.K. subsequently filed an amended notice using a Judicial Council form, the amended
notice also did not specify whether he sought mandatory or discretionary relief,
referencing only the statute. Further, the purpose of the notice requirements is to cause
the moving party to “sufficiently define the issues for the information and attention of the
adverse party and the court.” (Hernandez v. National Dairy Products (1954) 126
Cal.App.2d 490, 493.) M.K. filed the amended notice seven days before the hearing,
which was after A.T. filed her opposition responding to M.K.’s arguments for
discretionary relief. Thus, the amended notice did not change the nature of the motion.
We acknowledge that “[a]n omission in the notice may be overlooked if the
supporting papers make clear the grounds for the relief sought.” (Luri, supra, 107
Cal.App.4th at p. 1125.) But here, M.K.’s motion expressly—and exclusively—argued
that the court had the “discretionary authority” to set aside the order based on “mistake,
inadvertence, surprise, and/or excusable neglect.” M.K. admits as much in his opening
brief. Moreover, the attorney affidavits submitted in support of the motion, standing
alone, are insufficient to transform the motion into one seeking mandatory relief. (See
Luri, at pp. 1125-1126 [trial court not required to consider mandatory relief where the
notice of motion specified only discretionary relief as grounds for motion, even where
motion included attorney affidavit of fault].) The trial court accordingly did not err by
failing to consider the application for relief under the mandatory provision of section 473,
subdivision (b).3
3 We reject M.K.’s contention that his motion adequately sought mandatory relief
because his reply brief below “reference[d] mandatory relief.” Even if his reference on
reply to mandatory relief was a fully articulated argument, which it was not, it is
generally improper to raise new arguments on reply. (American Drug Stores, Inc. v.
Stroh (1992) 10 Cal.App.4th 1446, 1453.)
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We also will not consider whether M.K. can obtain mandatory relief on appeal, as
M.K. has forfeited this contention by failing to raise the argument below. (Kern County
Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038
[“arguments not raised in the trial court are forfeited on appeal”].) Accordingly, we will
review the trial court’s ruling based only on the discretionary provision of section 473,
subdivision (b).
II
Timeliness
The trial court denied M.K.’s motion on two distinct, but interrelated, grounds:
(1) the motion was not timely brought; and (2) M.K. did not seek to amend his response
at the time of trial. We conclude that the trial court did not abuse its discretion in finding
M.K.’s motion was untimely, and on this basis affirm.
A discretionary motion to set aside “ ‘ “is addressed to the sound discretion of the
trial court, and in the absence of a clear showing of abuse . . . the exercise of that
discretion will not be disturbed on appeal.” [Citations.] Moreover, all presumptions will
be made in favor of the correctness of the order, and the burden of showing abuse is on
the appellant.’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Although an
order denying relief under section 473, subdivision (b) is scrutinized more closely than an
order permitting trial on the merits, our review is still “highly deferential.” (McClain v.
Kissler (2019) 39 Cal.App.5th 399, 413.) “ ‘ “ ‘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.’ ” [Citations.]’ [Citation.]” (In re
Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.)
With respect to timeliness, a party seeking relief under section 473 must be
diligent. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258;
accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420 [“threshold requirement for
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relief is the moving party’s diligence”].) The statute provides that a party moving for
discretionary relief must do so “within a reasonable time, in no case exceeding six
months, after the judgment, dismissal, order, or proceeding was taken.”4 (§ 473, subd.
(b).) (Italics added.) “What constitutes ‘ “a reasonable time in any case depends upon
the circumstances of that particular case” ’ [citation] and is a question of fact for the trial
court. [Citation.]” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 33.) “A delay
is unreasonable as a matter of law only when it exceeds three months and there is no
evidence to explain the delay. [Citations.]” (Id. at p. 34.)
Here, M.K. fails to provide any excuse for his lengthy delay in seeking to set aside
the DVRO and file an amended pleading. The evidence shows that on September 4,
2020, M.K. was deposed with Yapundich present. At that time, A.T.’s counsel went
through each of M.K.’s answers in his pleading, questioning and confirming M.K.’s lack
of opposition to the requested orders. One month later, at the October 2020 trial, A.T.’s
counsel brought her motion in limine, again reminding M.K. and Yapundich that M.K.
agreed to the personal conduct order, recording order, and stay-away order as to A.T. in
his responsive pleading. Through the motion in limine, A.T.’s counsel also made clear
her position that M.K.’s concessions represented a lack of opposition to the orders.
According to the declaration filed with his set aside motion, approximately one week
after the October 2020 trial, M.K. reviewed the court file and learned that his prior
counsel had failed to file his supplemental declaration clarifying that he opposed the
restraining order. Thus, M.K. had all the information required to file a section 473,
subdivision (b) motion by the middle of October 2020.
4 Section 473, subdivision (b)’s mandatory provision, however, requires only that
the application for relief be made “no more than six months after entry of judgment,”
without any reasonableness requirement. (§ 473, subd. (b).)
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Nonetheless, M.K. inexplicably waited nearly five months to file his motion to set
aside. None of the declarations submitted with the moving papers explain the delay.
Yapundich simply attests that she learned McCann submitted the incorrect declaration
“[a]fter the October 8, 2020 date,” without any further detail. M.K. and Musgrove’s
declarations are silent as to the delay.5 Based on this evidence, the trial court was well
within its discretion to determine that M.K. did not file the motion within a reasonable
time, as M.K. and his attorneys were aware of both his erroneous pleading and inaccurate
declaration in October 2020, yet waited five months before seeking relief.
We note that Yapundich attempted to provide further explanation regarding the
delay in her reply affidavit, declaring that despite requesting M.K.’s court file in
November 2020, miscommunications with the clerk’s office and COVID-19-related
obstacles prevented her from receiving the file until February 1, 2021. The trial court
typically cannot consider evidence submitted on reply. (Plenger v. Alza Corp. (1992) 11
Cal.App.4th 349, 362, fn. 8 [new evidentiary matter in reply allowed only in exceptional
cases].) Even if it had considered the evidence, it was within its discretion to find
Yapundich’s belated explanation insufficient to support a reasonable delay. There is no
dispute that M.K.’s attorneys knew of the error in the pleadings in October 2020, which
provided the basis for the set aside motion. It is unclear why M.K.’s attorneys also
5 Musgrove declares that had he realized the issue in M.K.’s response, he would
have filed a motion to amend the pleadings. While there is no express requirement that a
party move for leave to amend “immediately” upon realizing it is required, Musgrove’s
declaration only reinforces the trial court’s observation that Yapundich should have
sought to amend M.K.’s response at trial, when A.T.’s counsel made the issue clear. It
also again begs the question why neither attorney moved to set aside and file the
amended pleading soon after trial.
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needed to learn that McCann failed to file M.K.’s supplemental declaration before
bringing the motion.6
As section 473, subdivision (b) relief “is not warranted unless the moving party
demonstrates diligence in seeking it” (Huh v. Wang, supra, 158 Cal.App.4th at p. 1420),
and the trial court acted within its discretion to find that M.K. failed to bring the motion
within a reasonable time, we affirm the denial of the motion.
DISPOSITION
The order denying M.K.’s request to set aside the DVRO as to A.T. is affirmed.
A.T. shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
MAURO , J.
6 The unfiled supplemental declaration is not included in the record, as M.K. instead
lodged a new supplemental declaration in support of his motion. Further, M.K. declares
that in October 2020 he reviewed the court file and discovered that his supplemental
declaration was not on file. Thus, even if the unfiled declaration were relevant to the
motion to set aside, there is no explanation why his attorneys waited months to obtain
another copy of the court file before filing the motion.
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