Martinez v. Lopez CA2/2

Filed 1/19/22 Martinez v. Lopez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

OLEGARIO MARTINEZ, B310250

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV02245)
v.

JOSEPHINE H. LOPEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Michelle Williams Court, Judge. Affirmed.

George M. Halimi for Defendant and Appellant.

Law Office of Gary Kurtz and Gary Kurtz for Plaintiff and
Respondent.

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 Josephine H. Lopez (appellant) appeals after the trial court
denied her motion to set aside a default judgment entered against
her in this action involving ownership of a multiunit residential
income property located at 5931 South San Pedro St., Los
Angeles, California 90011 (the property). Appellant also
challenges the trial court’s award of damages and quieting title in
favor of respondent Olegario Martinez (respondent).1
Appellant’s motion for relief from default was based on her
claim that she had not been properly served. Neither party
obtained a court reporter for the hearing on the motion for relief
from default or the evidentiary hearing that took place pursuant
to Code of Civil Procedure section 764.010.2
Appellant has failed to show that the trial court abused its
discretion in denying the motion for relief from default. Further,
because she has provided no reporter’s transcripts, appellant is
precluded from raising an argument as to sufficiency of the
evidence presented at the hearings. We therefore affirm the
judgment.

1 Respondent filed this action against appellant and her
common-law husband Jose Luis Guzman. Guzman died of cancer
in July 2020, during the pendency of this lawsuit. Appellant
asserts, without citation to evidence, that she has acted as the
administrator of Guzman’s estate.
2 Code of Civil Procedure section 764.010 applies to actions
for quiet title. It mandates that a court hear and consider
evidence of title in all such actions.

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 BACKGROUND
In February 2009, respondent purchased the property.3 On
June 1, 2009, respondent executed a quitclaim deed, transferring
the property to himself and appellant for no consideration.
On January 21, 2020, respondent filed a verified complaint
against appellant and Guzman alleging six causes of action: (1)
financial abuse of dependent adult, (2) fraud, (3) quiet title, (4)
breach of fiduciary duty, (5) conversion, and (6) accounting.
On April 2, 2020, respondent filed his proof of service of
summons. The proof of service contained a declaration from a
registered California process server. The declaration listed three
unsuccessful attempts at personal service when there was “[n]o
answer at the door.” However, on March 14, 2020, at 8:35 a.m.,
the process server successfully completed service on appellant “by
leaving copies of the summons and complaint, et al. with: Amy
Guzman-co-occupant.” The process server declared under penalty
of perjury that the declaration was true and correct.
Appellant’s default was requested and entered on April 27,
2020. Appellant acknowledges having received a copy of the
notice of default by mail on or about April 30, 2020.
On August 14, 2020, appellant filed her motion to vacate
the default. Appellant asserted that she and Guzman had
attempted to get information from the court regarding the notice

3 Appellant asserts, without citation to any evidence in the
record, that she and respondent each paid a 50 percent down
payment on the property. Appellant’s citation to the statement of
facts in her motion to set aside the default is insufficient, as
appellant’s motion is not evidence. However, appellant admits,
and the deed shows, that respondent took sole title to the
property in 2009.

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of default they received in the mail. However due to the court’s
closure and stay-at-home order they could not get any
information. They retained counsel in May 2020. Amy Guzman,
the daughter of appellant and Guzman, filed a declaration that
she was never served any paperwork regarding this matter on
March 14, 2020, or at any time. Though she admitted residing at
the address in question, Amy Guzman declared that she would
have been asleep at 8:45 a.m. on March 14, 2020. Appellant
argued that the court lacked jurisdiction over her, that the trial
court should use its equitable power to set aside the default
judgment, and that the court should set aside the default under
Code of Civil Procedure section 473 (section 473), subdivision (b),
which permits a court to relieve a party from a judgment,
dismissal, or other proceeding taken against the party through
his or her mistake, inadvertence, surprise, or excusable neglect.
On September 3, 2020, respondent filed his opposition to
the motion to vacate the default. Respondent argued that the
declaration of the registered process server was more reliable, as
the process server had no interest in the matter and had no
motive to put his professional reputation on the line by falsely
declaring under penalty of perjury that he had served Amy
Guzman on the date and time in question. Respondent further
pointed out that the process server was entitled to a presumption
that service was proper under Evidence Code section 647, that
appellant did not show diligence in filing the motion for relief
three and a half months after the default was entered, and that
appellant did not establish grounds for relief.
On September 14, 2020, appellant filed her reply. On
September 21, 2020, the trial court heard the motion. Both
parties were present with counsel. Having reviewed all of the

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submitted pleadings and evidence and after hearing arguments of
counsel, the trial court denied the motion to vacate.4 On
September 22, 2020, respondent filed a notice of ruling regarding
the motion to vacate the default.
The prove-up hearing took place on December 7, 2020.
Respondent appeared and was represented by counsel. Appellant
appeared telephonically. Respondent was sworn and testified to
his damages. One additional witness also testified. Respondent
also produced six pages of documentary evidence in support of his
damages, as well as the deeds to the property since the time the
property was purchased.
The court granted respondent damages in the amount of
$44,066.16. The court also quieted title to the property, declaring
respondent the sole and only titled owner of the property. On
December 17, 2020, the trial court entered judgment in favor of
respondent.
On January 12, 2021, appellant filed her notice of appeal.

DISCUSSION
I. Applicable law and standard of review
Section 473, subdivision (b), permits a court to “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.”
A motion seeking relief from default “‘“lies within the sound
discretion of the trial court, and the trial court’s decision will not

4 The trial court simultaneously heard and ruled on other
matters between the parties that are not relevant to this appeal.

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be overturned absent an abuse of discretion.”’” (Behm v. Clear
View Technologies (2015) 241 Cal.App.4th 1, 8.) “‘“Section 473 is
often applied liberally where the party in default moves promptly
to seek relief, and the party opposing the motion will not suffer
prejudice if relief is granted.”’” (Ibid.) “‘“Moreover, because the
law strongly favors trial and disposition on the 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.”’” (Ibid.)
A motion to vacate a default is the proper procedure to
attack a default where proper service of process is challenged.
(Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249
(Strathvale).) The plaintiff has the initial burden of
demonstrating facts justifying the exercise of personal
jurisdiction over the defendant. (Id. at p. 1250.) ““When there is
conflicting evidence, the trial court’s factual determinations are
not disturbed on appeal if supported by substantial evidence.’”
(Ibid.)
II. Respondent established that service of summons
brought appellant within the trial court’s
jurisdiction
When a defendant argues that service of summons was not
effective, “the plaintiff has ‘the burden of proving the facts that
did give the court jurisdiction, that is the facts requisite to an
effective service.’” (American Express Centurion Bank v. Zara
(2011) 199 Cal.App.4th 383, 387 (American Express).)
Here, respondent provided evidence that appellant had
been served by substitute service. Specifically, a registered
process server explained that on March 14, 2020, at 8:35 a.m., he

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left the documents at appellant’s residence in the presence of
Amy Guzman, “a competent member of the household (at least 18
years of age) at the dwelling house or usual place of abode of the
party.” The process server “informed [Any Guzman] of the
general nature of the papers.” Such service was accomplished
after three previous attempts to serve appellant at her home.
The manner of service attested to by the process server was
proper under Code of Civil Procedure section 415.20, subdivision
(b), which provides that “a summons may be served by leaving a
copy of the summons and complaint at the person’s dwelling
house, usual place of abode, usual place of business, or usual
mailing address . . . in the presence of a competent member of the
household . . . at least 18 years of age, who shall be informed of
the contents thereof . . . .”
Pursuant to Evidence Code section 647, the process server’s
information established a presumption of the facts stated in the
return. Thus, the trial court was entitled to treat the process
server’s declaration with a presumption that service occurred as
stated therein. The trial court was “not required to accept this
self-serving evidence contradicting the process server’s
declaration.” (American Express, supra, 199 Cal.App.4th at
p. 390.) While Amy Guzman provided directly conflicting
evidence, we do not disturb the trial court’s resolution of these
conflicting facts. (Strathvale, supra, 126 Cal.App.4th at p. 1250.)
The declaration of the process server constituted substantial
evidence in support of the trial court’s decision.

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III. Appellant has failed to show there was insufficient
evidence to support the trial court’s denial of her
motion for relief from default
Appellant contends that the evidence was insufficient to
support the trial court’s denial of relief from default. Specifically,
appellant argues that respondent failed to have the process
server present to testify regarding his attempts to serve
appellant and his service of the summons and complaint on Amy
Guzman. Appellant presents no authority suggesting that in-
person testimony is required from a process server. Further,
appellant neglects to address Evidence Code section 647, which
provides the presumption that service was proper based on the
declaration of the registered process server.
To the extent that appellant seeks to argue that evidence
presented at the hearing was insufficient, appellant’s challenge
necessarily fails because appellant did not include a reporter’s
transcript or other record of the oral proceedings of the hearing
on her motion. The party challenging a judgment on appeal
bears the burden of providing an adequate record to enable the
reviewing court to assess whether the trial court erred. (Ketchum
v. Moses (2001) 24 Cal.4th 1122, 1140-1141 (Ketchum).) The
burden is placed on the challenging party because “[a] judgment
or order of a lower court is presumed to be correct on appeal, and
all intendments and presumptions are indulged in favor of its
correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,
1133.) Without an adequate record, a judgment must be
affirmed. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)
Without a record of the oral proceedings we must presume
the evidence was sufficient to deny the motion for relief from
default.

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IV. The court did not abuse its discretion in denying
relief from default
A. Equitable relief
Appellant argues that the trial court should have used its
inherent, equitable power to set aside the default. (Citing
Olivera v. Grace (1942) 19 Cal.2d 570, 576.) “A party seeking
relief under the court’s equitable powers must satisfy the
elements of a ‘stringent three-pronged test’: (1) a satisfactory
excuse for not presenting a defense, (2) a meritorious defense,
and (3) diligence in seeking to set aside the default.” (Kramer v.
Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 (Kramer).)
While appellant acknowledges that there are three elements, she
only addresses one. Appellant asserts that she and Guzman had
a meritorious defense to the action, in that Guzman was suffering
from cancer and required extensive treatments that prevented
appellant and Guzman from forwarding payments to respondent
pursuant to their agreement.
However, appellant has failed to address the first and third
elements required for relief under the trial court’s equitable
powers. The trial court credited the evidence of the registered
process server showing that appellant was served in mid-March
2020. Taking into consideration the factual finding by the court
that service was proper, appellant has failed to provide a
satisfactory excuse for not presenting a defense to the lawsuit.
“‘“Although the policy of the law is to favor a hearing on the
merits of a case, courts are not required to set aside default
judgments for defendants who flagrantly ignore the responsibility
to present a defense.”’” (Kramer, supra, 56 Cal.App.5th at p. 29.)
Appellant forfeited her right to have the matter heard on the

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merits “by choosing to ignore this case and [her] responsibilities
under the California Rules of Court.” (Id. at p. 30.)
Further, although appellant admits receiving notice of her
default in the case no later than April 30, 2020, she did not file a
motion for relief from default until three and a half months later,
in August 2020. Appellant cites no authority that a three-and-a-
half-month delay constitutes the type of diligence required for
equitable relief. (See, e.g., Younessi v. Woolf (2016) 244
Cal.App.4th 1137, 1145 (Younessi) [seven-week delay between
party learning of dismissal and filing motion for relief constituted
unreasonable delay]; Mercantile Collection Bureau v. Pinheiro
(1948) 84 Cal.App.2d 606, 609 [nine-week delay in filing motion
for relief untimely].) The trial court was not required to credit
appellant’s assertions that she was unable to take action to
respond to the action due to restrictions in place due to the
COVID-19 pandemic.5 Under the circumstances, we decline to
find that the trial court abused its discretion in denying equitable
relief.
B. Statutory relief
Appellant further argues that the trial court should have
granted her relief from default under section 473. We find that
the trial court did not abuse its discretion in determining that

5 Appellant has requested in her reply brief that we take
judicial notice of the notices issued by the Los Angeles County
Superior Court as of March 4, 2020. Appellant has failed to
specify a particular order that prevented her from accessing
information regarding this litigation. As there were numerous
orders issued by the Superior Court during the COVID-19
pandemic, and appellant has not identified any order of
particular relevance, we deny appellant’s request.

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appellant’s failure to respond to the complaint was not excusable
neglect. “‘“‘The inadvertence contemplated by the statute does
not mean mere inadvertence in the abstract. If it is wholly
inexcusable it does not justify relief.’”’” (Younessi, supra, 244
Cal.App.4th at pp. 1146-1147.)
Further, a motion for relief under section 473 is subject to
the same requirement that it be made “within a reasonable time,
in no case exceeding six months.” (§ 473, subd. (b).) As set forth
above, the trial court did not abuse its discretion in determining
that under the circumstances of this case, it was unreasonable for
appellant to ignore service and wait until three and a half
months after the entry of default to address this lawsuit.
Appellant asserts that respondent would not have been
prejudiced by the granting of her motion for relief from default.
Appellant cites Slusher v. Durrer (1977) 69 Cal.App.3d 747, 755,
for the proposition that “[w]here there is no showing of prejudice
to the party opposing the motion to set aside the default
judgment . . . only very slight evidence is required to justify a
court in setting aside the default.”
Appellant fails to sufficiently support her position that
respondent would not be prejudiced. In contrast to appellant’s
assertion, the record shows that respondent presented evidence of
prejudice. He asserted in his declaration that he intended to
return to his village in Mexico because he was presently
unemployed and could live there on very little money. The
pendency of the lawsuit was causing him to suffer medically and
financially due to the delay. The trial court was permitted to
credit respondent’s evidence and find that granting appellant
relief from default would be prejudicial to respondent.

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 Considering the above factors, we find the trial court did
not abuse its discretion in denying the motion for relief from
default under section 473, subdivision (b).
V. Appellant has failed to establish that the trial court
erred in granting respondent title to the property
and damages
Code of Civil Procedure section 764.010 provides:
“The court shall examine into and determine the
plaintiff’s title against the claims of all the
defendants. The court shall not enter judgment by
default but shall in all cases require evidence of
plaintiff’s title and hear such evidence as may be
offered respecting the claims of any of the
defendants, other than claims the validity of which is
admitted by the plaintiff in the complaint. The court
shall render judgment in accordance with the
evidence and the law.”
Appellant acknowledges that the trial court held a prove-up
hearing in accordance with Code of Civil Procedure section
764.010 on December 7, 2020. Appellant further acknowledges
that respondent produced six pages of documentation regarding
his damages, as well as copies of the deeds to the property since
the time that respondent purchased the property. Respondent
also provided oral testimony to the trial court at the hearing.
Despite this evidence appellant claims that there was insufficient
evidence supporting the trial court’s decision to award the
property to respondent and to award respondent damages.
Appellant claims that respondent failed to produce (1) any
written evidence that he solely paid for the down payment of the
property when it was purchased, (2) any evidence that he is a
dependent adult, or (3) any evidence that he was defrauded by
appellant and Guzman for the transfer of title and loan.

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 Appellant’s claim for insufficiency of the evidence must fail.
Without a record of the oral proceedings, we must presume the
evidence was sufficient to award title of the property and
damages to respondent. As set forth above, appellant failed to
meet her burden of providing an adequate record to enable this
court to assess whether the trial court erred. (Ketchum, supra, 24
Cal.4th at pp. 1140-1141.)
VI. Appellant’s arguments regarding the statute of
frauds and statute of limitations are not properly
before this court
Appellant raises two arguments that we may not consider
because they were not raised or considered at the trial court
level: (1) that respondent failed to meet the requirements of the
statute of frauds concerning the agreement between the parties
and (2) that respondent failed to meet the requirements of the
applicable statutes of limitations.
Appellant has failed to provide a citation to the record
showing that these issues were considered at the trial court level.
“‘[W]e ignore arguments, authority, and facts not presented and
litigated in the trial court. Generally, issues raised for the first
time on appeal which were not litigated in the trial court are
waived.’” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.)
Both issues appellant seeks to put before this court are
affirmative defenses that must be raised at the trial court level.
(Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th
1001, 1015 [statute of frauds must be raised as an affirmative
defense in the trial court to be considered on appeal]; Ladd v.
Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298,
1309 [statute of limitations is an affirmative defense and
defendant has the burden to prove all facts essential to this

13
defense at the trial court level].) Due to her default, appellant
failed to present these issues in the trial court. Therefore, we do
not consider them on appeal.

DISPOSITION
The judgment is affirmed. Respondent is awarded his costs
of appeal.

___________________________
CHAVEZ, J.

We concur:

_______________________________
ASHMANN-GERST, Acting P. J.

_______________________________
HOFFSTADT, J.

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