George v. Williams CA2/6

Filed 1/18/22 George v. Williams CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
ELIZABETH L. GEORGE, 2d Civil No. B309218
Individually and as Trustee, (Super. Ct. No. 56-2019-
etc., 00535384-CU-BC-VTA)
(Ventura County)
Plaintiff and Respondent,
v.
JOHN WILLIAMS et al.,
Defendants and Appellants.
Petrie and John Williams (the Williamses)1 appeal
from (1) the order denying their motions to set aside their
default, and (2) the interlocutory judgment for partition of real
property by sale. (Code Civ. Proc., § 904.1, subd. (a)(2) & (9).)2
1
We refer to Petrie and John Williams by their first names
for ease of identification. No disrespect is intended.
2
Subsequent undesignated statutory references are to the
Code of Civil Procedure.
They contend the trial court: (1) violated their due process rights
when it entered a default judgment against them, and (2) failed
to properly establish the interest of each co-owner. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2016, the Williamses asked Elizabeth George to
help them purchase a single-family home in Ojai. They entered a
written contract in which George agreed to loan them the funds
for a down payment in the amount of $63,750. The Williamses
agreed to pay interest only of seven percent for the first 12
months and 10 percent thereafter, plus a $1,725 “bonus” for “pain
and suffering.”
As provided in the contract, George made the down
payment and purchased the property in her own name. She
obtained a loan from a commercial lender for the balance, secured
by a deed of trust. She then recorded a deed transferring a 99
percent interest to herself as trustee of the Elizabeth L. George
Revocable Trust dated November 23, 1994, and one percent to
Petrie, as tenants in common. They anticipated that Petrie
would refinance the property and ultimately obtain ownership.
The Williamses paid only a portion of the interest
due. They failed to make some of the mortgage payments, forcing
George to make them. They did not repay any of the down
payment or refinance the loan. George paid for needed repairs to
the property.
In September 2019, Petrie recorded a deed
transferring her one percent interest to herself, John, and
George, as tenants in common.
In October 2019, both individually and as trustee,
George filed a complaint against the Williamses for partition,
breach of contract, and breach of the implied covenant of good
2
faith and fair dealing. Petrie was personally served with the
summons and complaint on November 19. (§ 415.10.) John was
served the same day by substituted service on Petrie, and the
following day by mail. (§ 415.20, subd. (b).) The Williamses did
not file a response.
On January 8, 2020, the court clerk entered a default
against the Williamses. The same day, they were served by mail
with the entry of default.
On August 5, George served the Williamses by mail
with an application for entry of default judgment. The
application was supported by George’s declaration summarizing
the facts and attaching copies of the contract and deeds.
On August 12, the Williamses filed motions to set
aside the default. They declared that they did not receive the
summons and complaint until March 15, when John found them
in an abandoned car. They declared that a case management
hearing set for March 27 was cancelled due to COVID-19, and
that the court clerk told them they would receive notice of a new
date, but no such notice was received.
On September 9, the trial court denied the motions
for relief from default. The court ruled that the motions were
filed beyond the six-month time limit of section 473, subdivision
(b), and in any event, the Williamses “failed to act diligently and
failed to seek relief within a reasonable time.”
On October 16, the court found the property was
owned by George, as trustee, as to a 99 percent interest; and by
John, Petrie, and George as to the remaining one percent
interest, as tenants in common. The court entered an
interlocutory judgment ordering partition by sale and appointing
a referee. The court ordered the Williamses to vacate the
3
property within 65 days. The court ordered that George be paid
from the sale proceeds “compensatory adjustments” for: unpaid
principal ($63,750), contractual “pain and suffering” ($1,725),
unpaid interest ($7,268.75), unreimbursed mortgage payments
($13,175.24), and unreimbursed repair and remediation expenses
($35,195), for a total of $121,114. After payment of costs,
expenses, and the compensatory adjustments, 99 percent of the
sale proceeds were ordered to be distributed to George as trustee,
and one percent in equal shares to John, Petrie, and George.
DISCUSSION
Default
The Williamses contend the trial court erred when it
entered the default judgment against them in violation of their
right to due process. There was no error.
We review an order denying a motion to set aside a
default for abuse of discretion. (Rappleyea v. Campbell (1994) 8
Cal.4th 975, 981.) However, “‘a trial court order denying relief is
scrutinized more carefully than an order permitting trial on the
merits.’ [Citations.]” (Id. at p. 980.)
By statute, an application for relief from default
“shall be made within a reasonable time, in no case exceeding six
months.” (§ 473, subd. (b).) Because the application here was
made more than six months after entry of the default, the court
had no jurisdiction to grant relief pursuant to section 473.
(Aldrich v. San Fernando Valley Lumber Co. (1985) 170
Cal.App.3d 725, 735 & fn. 3.) Nor does section 473.5, cited by the
Williamses in their reply brief, entitle them to relief because the
motion was served more than 180 days after service of notice of
the entry of default.
4
In their reply brief, the Williamses rely on Ventura
County Superior Court Administrative Order re: Implementation
of Emergency Relief in Response to COVID-19 (Admin. Order No.
20.12).3 Although issues raised for the first time in a reply brief
are generally forfeited, “we exercise our discretion to address this
argument because it is easily resolved.” (Sweetwater Union High
School Dist. v. Julian Union Elementary School Dist. (2019) 36
Cal.App.5th 970, 987.)
The administrative order, with exceptions not
applicable here, closed the clerk’s office from April 15 through
May 12, 2020. It also provided: “For purposes of computing time
for filing papers under Code of Civil Procedure §§ 12 and 12a,
March [16], 2020, to May 12, 2020, inclusive, are deemed
holidays . . . .” (Italics deleted.) In the order denying the motion
to set aside the default, the trial court referred to a different, and
later, administrative order and stated: “the temporary COVID
Court closure ended with respect to filing papers on 6/10/20, yet
Defendants waited over 2 months after the reopening of the
Clerk’s office to file these motions.”
Section 12a, subdivision (a), provides: “If the last day
for the performance of any act provided or required by law to be
performed within a specified period of time is a holiday, then that
period is hereby extended to and including the next day that is
not a holiday.” The statute does not entitle the party to extend
the applicable time limit based on intervening holidays occurring
before the last day. (Muller v. Coastside County Water Dist.
(1960) 180 Cal.App.2d 712, 714; Muller v. Muller (1960) 179
Cal.App.2d 815, 818.) Thus, the trial court correctly concluded
3We take judicial notice of Administrative Order No. 20.12
on our own motion. (Evid. Code, § 452, subds. (c), (d)(1).)
5
that the motions were not filed within the six-month period
provided in section 473.
“After six months from entry of default, a trial court
may still vacate a default on equitable grounds even if statutory
relief is unavailable.” (Rappleyea v. Campbell, supra, 8 Cal.4th
at p. 981.) “One ground for equitable relief is extrinsic mistake—
a term broadly applied when circumstances extrinsic to the
litigation have unfairly cost a party a hearing on the merits.”
(Ibid.) To establish extrinsic mistake, the defaulted party must:
(1) “‘demonstrate that it has a meritorious case,’” (2) “‘articulate a
satisfactory excuse for not presenting a defense to the original
action,’” and (3) “‘demonstrate diligence in seeking to set aside
the default once . . . discovered.’ [Citation.]” (Id. at p. 982.)
Here, the trial court properly concluded that the
Williamses did not diligently seek to vacate the default. They
were served with notice of entry of default on January 8. Even if
the trial court credited their claim that they did not find the
summons and complaint until March 15, they still waited almost
five months before seeking relief from default. Information
provided by the court clerk about the March 27 hearing did not
excuse filing a timely motion for relief from default. Accordingly,
the trial court did not err in denying relief from default on
equitable grounds.
Finally, the Williamses contend they were denied
their right to due process by the trial court’s failure to hold a case
management conference. (Cal. Rules of Court, rules 3.700, 3.720-
3.722.) We reject this contention because they cite no authority
to establish that a case management conference is required after
a default has been entered, or that failure to hold such a
conference denies due process.
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Partition
The Williamses contend the partition order is
defective because the trial court failed to properly establish each
co-owner’s interest in the property. We disagree.
“On appeal, defendant may challenge the sufficiency
of the evidence offered to support the default judgment.” (Kim v.
Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288.) “The
standard of review for an interlocutory judgment of partition is
abuse of discretion.” (Cummings v. Dessel (2017) 13 Cal.App.5th
589, 597.) Because the default interlocutory judgment here was
supported by substantial evidence, the trial court did not abuse
its discretion.
In an action for partition, the trial court determines
the plaintiff’s right to partition (§ 872.710), the interests of the
parties in the property (§ 872.610), and the manner of partition
(§§ 872.810-872.840). The court then issues an interlocutory
judgment. (§ 872.720.) The court appoints a referee to divide or
sell the property. (§§ 873.010, subd. (a), 873.210, 873.510,
873.790.) The court then orders the proceeds of sale disbursed
(§ 873.810) and enters a judgment of partition (§ 874.210).
“[P]artition as to concurrent interests in the property
shall be as of right.” (§ 872.710, subd. (b).) As a tenant in
common, George had “an absolute right to partition.” (Formosa
Corp. v. Rogers (1951) 108 Cal.App.2d 397, 409.)
The trial court did not err when it determined the
interests of the parties in the property. Following a default,
“[t]he court shall hear the evidence offered by the plaintiff, and
shall render judgment in the plaintiff’s favor for that relief, not
exceeding the amount stated in the complaint . . . as appears by
the evidence to be just.” (§ 585, subd. (b).) The trial court
7
properly considered George’s declaration and the contract and
deeds attached to it. (§§ 585, subd. (d), 2015.5; Cal. Rules of
Court, rule 3.1800(a)(2) & (8).) These documents established that
Petrie, John, and George were tenants in common, and
established their respective ownership interests.
As provided by statute, the trial court ordered that
the proceeds of the sale be disbursed to pay the expenses of the
sale and other costs of partition (§ 873.820, subds. (a) & (b)),
“compensatory adjustment among the parties according to the
principles of equity” (§ 872.140), and distribution of the residue
based on their ownership interests (§ 873.820, subd. (d)).
The Williamses contend they did not breach the
contract and did not violate the covenant of good faith because
the contract did not include a termination clause and they made
regular payments. These arguments are unavailing because the
trial court took no action regarding the breach of contract or
breach of good faith causes of action.
The Williamses claim that George committed fraud
and misled the court by representing that the loan had to be
repaid within 12 months, not disclosing all the payments they
had made, and recording title documents that gave them only a
one percent interest in the property. But they forfeited the right
to present evidence or otherwise participate in the prove-up
hearing because they defaulted. (Sass v. Cohen (2020) 10 Cal.5th
861, 882.) The purported fraud does not entitle them to relief
because it relates to the intrinsic merits of the lawsuit rather
than showing that they were prevented from participating in the
lawsuit. (City and County of San Francisco v. Cartagena (1995)
35 Cal.App.4th 1061, 1067-1068.)
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Based on the evidence before it, the trial court did not
err in ordering partition by sale and distributing the proceeds in
the manner provided.
DISPOSITION
The interlocutory judgment is affirmed. Respondent
shall recover costs on appeal.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
9
Kevin G. DeNoce, Judge
Superior Court County of Ventura
______________________________
John Williams and Petrie Williams, in pro. per., for
Defendants and Appellants.
Ferguson Case Orr Paterson and Joshua S. Hopstone
for Plaintiff and Respondent.