Filed 10/28/20 Scales v. Bradley CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROOSEVELT J. SCALES et al., D075800
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2017-
00046304- CU-OR-CTL )
LAWRENCE BRADLEY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E. L. Strauss, Judge. Affirmed.
David Kay for Plaintiffs and Appellants.
Gupta Evans and Associates, Ajay Gupta and Christopher S. Evans, for
Defendant and Respondent.
Roosevelt Scales and Joyce Otis (Scales and Otis together Appellants)
appeal an order granting Lawrence Bradley’s motion to vacate and set aside
judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellants and Bradley purchased a residence located at 5358 Lenox
Drive in San Diego, California on March 28, 1978. The grant deed specified a
one-third co-tenant ownership for each person. After Scales and Otis
divorced, a grant deed was recorded on August 6, 1998 to specify that Scales,
Otis, and Bradley each owned an undivided one-third interest in the
property. Bradley lived at the property after it was purchased while
Appellants never resided there.
On December 4, 2017, Appellants brought a partition action to force a
sale of the property. Bradley signed a notice and acknowledgement of receipt
concerning the summons and complaint on December 28, 2017. The notice of
acknowledgment of receipt was filed on January 3, 2018.
In connection with the filing of the partition action, Appellants’
attorney served and filed a notice of pendency of action. Bradley signed a
mail receipt after he received the notice of pendency of action on December
12, 2017. The receipt was returned to Appellants’ attorney.
Bradley did not timely file an answer to the complaint in the partition
action. Accordingly, on March 8, 2018, two months after service of the
summons and complaint, Appellants filed a request to enter a default, and a
default was entered. Bradley was sent the notice of default by mail.
Some seven months later, on October 3, 2018, the superior court
entered an interlocutory judgment of partition, direction that the house be
sold. The court appointed a real estate broker to sell the house.
The broker met with Bradley, his daughter, and his son-in-law at the
house on October 18, 2018. On the broker’s request, Bradley signed a
residential listing agreement, authorizing the broker to sell the house.
Bradley also signed a disclosure regarding the real estate agency
relationship.
According to Bradley, he first became aware of the partition action
sometime after meeting the broker on October 18, 2018. Subsequently, he
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retained an attorney who filed a motion to vacate and set aside judgment on
December 19, 2018. In that motion, Bradley requested relief under Code of
Civil Procedure1 section 473, subdivision (b) on the basis of inadvertence and
excusable neglect. To this end, Bradley explained that his “worsening
physical well-being at the time of the service of the Summons and subsequent
default . . . physically prevented [Bradley] from reading and understanding
the documents.” Specifically, Bradley asserted that, during the relevant time
period, he was battling “Follicular Lymphoma Grade 3A cancer,” losing his
eyesight, and struggling to understand the various documents sent to him
relating to the partition action. Bradley also claimed that he paid off
multiple loans obtained by Scales and secured by the property. Additionally,
Bradley maintained that Appellants had not contributed financially to the
property since they purchased it in 1978.
In opposing Bradley’s motion, Appellants argued that Bradley could not
seek relief under section 473, subdivision (b) because the motion was filed
more than six months after the entry of default. In the alternative,
Appellants claimed that Bradley did not act with diligence in seeking relief
after discovery of the partition action and default in any event. Finally,
Appellants argued that Bradley’s excuse for not responding to the partition
action earlier was not believable.
In reply, Bradley contended the court could still grant him relief after
more than six months from the entry of default on equitable grounds.
Apparently, the superior court entertained oral argument on Bradley’s
motion, but there is no transcript of the hearing. Ultimately, the court
1 Statutory references are to the Code of Civil Procedure unless
otherwise specified.
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granted Bradley’s motion and vacated the default and default judgment. In
doing so, the court explained:
“A judgment may be set aside if it has been established
that extrinsic factors have prevented one party to the
litigation from presenting his or her case. ‘The grounds for
such equitable relief are commonly stated as being extrinsic
fraud or mistake. However, those terms are given a broad
meaning and tend to encompass almost any set of extrinsic
circumstances which deprive a party of a fair adversary
hearing.’ (In re Marriage of Park (1980) 27 Cal.3d 337,
347.) The court may set aside a judgment on the ground of
extrinsic fraud even after the time limits of CCP § 473 have
passed. (Heathman v. Vant (1959) 172 Cal.App.2d 639,
648.) Here, the facts presented support vacating the
default and default judgment.”
Appellants timely appealed.
DISCUSSION
We began our analysis of the issues before us in a somewhat
unorthodox matter. Here, Bradley filed a short respondent’s brief consisting
of about four pages of argument. He did not provide any authority to support
his contention that the superior court did not abuse its discretion in granting
his motion below. He explains that he was unable to submit “a
comprehensive brief . . . at this time” because of his “lack of resources.”
Appellants interpret Bradley’s brief as a “request that Court of Appeal
perform the task of representing [Bradley] on appeal.” We do not share
Appellants’ reading of the respondent’s brief. Bradley’s brief is not
particularly helpful to this court, but that brief’s short comings do not alter
how we approach the instant matter.
On appeal, the order of the trial court is presumed to be correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, if the
order is correct on any theory, the appellate court will affirm it regardless of
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the trial court’s reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-
777; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) All
intendments and presumptions are made to support the order on matters as
to which the record is silent. (Denham, at p. 564.) And an appellant has the
burden to provide an adequate record and affirmatively show reversible
error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
Here, Appellants have provided a lengthy brief, replete with caselaw
they contend explains why the superior court erred below. However, absent
in Appellants’ opening brief is any discussion of the standard of review we are
to apply in this matter. The standard of review is the lens through which we
must consider the record. Without reference to the applicable standard of
review and an explanation how the court erred in consideration of that
standard, Appellants’ discussion of numerous cases does not necessarily
advance their argument.
In the instant matter, it is not disputed that Bradley moved for relief
from default and default judgment outside the applicable six month window
set forth in section 473. As such, the superior court used its equitable powers
to grant Bradley his requested relief. (See Rappleyea v. Campbell (1994) 8
Cal.4th 975, 980-981 (Rappleyea); Department of Industrial Relations v.
Davis Moreno Construction, Inc. (2011) 193 Cal.App.4th 560, 570.) We
review the superior court’s exercise of its equitable power to set aside a
default judgment for an abuse of discretion. (Rappleyea, at p. 978; Cruz v.
Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.) Under this deferential
standard of review, we must determine whether the trial court, applying the
relevant legal principles, reached a ruling that is “ ‘so irrational or arbitrary
that no reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 773.) A superior
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court’s ruling will be affirmed on appeal “unless it falls outside the bounds of
reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226; see Shamblin v.
Brattain (1988) 44 Cal.3d 474, 478 [“The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.”].) We
draw all reasonable inferences from the evidence and review the record in the
light most favorable to the court’s determinations, and we may not substitute
our decision for that of the superior court. (Id. at pp. 478-479.) We also defer
to the court’s findings supported by substantial evidence. (Nellie Gail Ranch
Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1006 [“The abuse of
discretion standard includes a substantial evidence component: ‘We defer to
the trial court’s factual findings so long as they are supported by substantial
evidence, and determine whether, under those facts, the court abused its
discretion.’ ”].)
Extrinsic mistake is “a term broadly applied when circumstances
extrinsic to the litigation have unfairly cost a party a hearing on the merits.”
(Rappleyea, supra, 8 Cal.4th at p. 981.) “Extrinsic mistake is found
when . . . a mistake led a court to do what it never intended.” (Kulchar v.
Kulchar (1969) 1 Cal.3d 467, 471-472.) For instance, extrinsic mistake occurs
when a defendant has “a satisfactory excuse for failing to timely answer” a
complaint. (Rappleyea, at p. 982.) Similarly, “ ‘[e]xtrinsic fraud usually
arises when a party is denied a fair adversary hearing because he has been
“deliberately kept in ignorance of the action or proceeding, or in some other
way fraudulently prevented from presenting his claim or defense.” ’ ” (Bae v.
T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 97.) “[T]he party
seeking equitable relief on the grounds of extrinsic fraud or mistake must
show three elements: (1) a meritorious defense; (2) a satisfactory excuse for
not presenting a defense in the first place; and (3) diligence in seeking to set
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aside the default judgment once discovered.” (Rodriguez v. Cho (2015) 236
Cal.App.4th 742, 750.) “When a default judgment has been obtained,
equitable relief may be given only in exceptional circumstances.” (Rappleyea,
at p. 981.)
Considering the first prong of this test, a defendant against whom a
default judgment is entered usually shows it has a meritorious case by
submitting a proposed verified answer. (Rappleyea, supra, 8 Cal.4th at
p. 983; Beard v. Beard (1940) 16 Cal.2d 645, 648.) Here, along with his
motion to vacate the default and default judgment, Bradley filed a proposed
verified answer to the complaint in the partition action. The verified answer
denied, admitted, and otherwise responded to the allegations of the operative
complaint. It also included 24 affirmative defenses. Consequently, we agree
with the superior court’s implicit finding that Bradley showed he had a
meritorious case against Appellants.2
We also determine that Bradley met his burden of showing that he had
a satisfactory excuse for not defending this case. Bradley offered a self-
declaration wherein he explained his many physical ailments (cancer,
declining eyesight, advanced age) caused him to be unable to understand the
gravity of the partition action and the documents he received relating to that
suit. Additionally, Bradley explained that he had lived at the property for 40
years, maintained the property (including making $50,000 of improvements)
without significant contribution from Appellants since 1978, paid all taxes
and insurance associated with the property while he lived there, and paid off
2 Also, we observe that Bradley filed a proposed cross-complaint against
Appellants. In that cross-complaint, Bradley alleges that he owns the house
exclusively based upon action he took since the house’s purchase in 1978.
The allegations in the cross-compliant, if proven true, underscore that
Bradley has a meritorious case against Appellants.
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several loans borrowed by Scales secured by the property. With this
foundation in mind, Bradley declared that he “did not comprehend that a
lawsuit had been filed against me or grasp that my home of forty years could
be forcibly sold. Consequently, [he] did not know what procedural next steps
[he] was required to take, and, and with [his] focus and attention on [his]
cancer treatment and overall mental state deteriorated, [he] did not have the
wherewithal to even know further action on his party was necessary.”
Reflecting on this evidence presented to the superior court, we determine that
substantial evidence supports the superior court’s implicit finding that
Bradley had a satisfactory excuse for not defending the suit in the first place.
Finally, Bradley acted diligently in moving to set aside the default and
default judgment. According to Bradley, he discovered that his house “was
being forcibly sold” when he met with the broker on October 18, 2018. After
learning that the property would be sold, Bradley contacted his cousin, who
found the partition action on the register of actions and discovered that
judgment had been entered against Bradley with the result that Bradley’s
home was to be sold. Thus, Bradley maintains that it was not until late
October 2018 that he found out about the partition action and the related
judgment. Bradley soon thereafter retained counsel. On November 12, 2018,
his counsel contacted Appellants’ counsel to ascertain if Appellants would
stipulate to vacate the judgment. Appellants declined. Then, two days later,
Bradley’s counsel reserved a hearing date for a motion to vacate the default
and default judgment. Bradley filed his motion December 19, 2018. Included
with the motion was a proposed verified answer and cross-complaint. As
such, substantial evidence supports the superior court’s implied finding that
Bradley acted diligently to vacate the default and default judgment. (See
Lee v. An (2008) 168 Cal.App.4th 558, 566 [no diligence when defendant
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waited over two years to move to vacate default judgment]; Stiles v. Wallis
(1983) 147 Cal.App.3d 1143, 1150 [no diligence when defendant waited 20
months to move to vacate default judgment]; Mechling v. Asbestos Defendants
(2018) 29 Cal.App.5th 1241, 1248 [diligence shown where defendant moved to
vacate default judgments five months after retaining counsel to do so].)
In short, on the record before us, Appellants have not met their burden
for reversal under the “highly deferential” abuse of discretion yardstick.
(Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1239.)
DISPOSITION
The order is affirmed. Bradley is awarded his costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
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