Filed 2/15/23 Shapira v. Lackenbacher CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
ADRIANA BROMET GARNICA H049775
SHAPIRA, (Santa Clara County
Super. Ct. No. 21CS000235)
Plaintiff and Respondent,
v.
TOMAS LACKENBACHER,
Defendant and Appellant.
This action was brought under the Uniform Interstate Family Support Act
(UIFSA; Fam. Code, § 5700.101 et seq.) and the Full Faith and Credit for Child Support
Orders Act (28 U.S.C. § 1738B.) In March 2021, a Notice of Registration of Out-Of-
State Support Order (Registration Notice or Notice) under the UIFSA was filed with the
court below on behalf of plaintiff and respondent Adriana Bromet Garnica Shapira
(respondent) and directed to defendant and appellant Tomas Lackenbacher (appellant).
The Registration Notice attached a child support order from Colombia. The Notice
provided that if appellant wished to contest the registration or enforcement of the Notice,
he was required to file papers within 20 days. Appellant did not file such challenge.
Approximately six months later, he filed a motion for relief from default. After a
hearing, on December 13, 2021, the court denied appellant’s motion.
Appellant challenges the order denying his motion for relief from default. Finding
no abuse of discretion by the trial court, we will affirm the order.
I. PROCEDURAL BACKGROUND
On March 16, 2021, the Registration Notice under the UIFSA was filed with the
court, identifying respondent as the plaintiff and obligee and appellant as the defendant
and obligor. The Notice attached a February 2009 Colombian judgment that included a
child support order. The Colombian judgment included recitals that appellant and
respondent had married on September 3, 2000, in Sausalito, California, and that they had
two daughters. The papers accompanying the notice indicated that appellant’s child
support obligation as previously ordered was fifty percent of the minimum salary in
Colombia.
The Registration Notice provided: “lf you want to contest the validity or
enforcement of the registered order, you must request a hearing within 20 days after
notice.” The Notice included as an attachment the form that was to be used (form
FL575) if appellant wished to contest the registered order. The Registration Notice
provided further: “If you fail to contest the validity or enforcement of the attached order
within 20 days after notice, the order will be confirmed by the court and you will be
unable to contest any portion of the order including the amount of arrears as specified in
the letter of transmittal requesting registration or sworn statement.” Appellant did not file
a challenge to the Registration Notice.
On September 20, 2021—more than five months after the deadline for filing a
contest to the registered order—appellant filed with the court a motion for relief from
default, in a document captioned “Points and Authorities in Support of Request for Relief
from Filing FL575 Within 20 Days of Notice and in All Events Respondent Substantially
Complied.” (Capitalization and boldface omitted.) The authority upon which he based
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the motion was Code of Civil Procedure section 473.1 Appellant argued that the motion
was proper because he sought the relief within six months as required by the statute. He
asserted in the motion, inter alia, that he had substantially complied with the requirement
that he contest the Notice by his submission to the court, on April 13, 2021 (28 days after
the Notice, and thus eight days past the deadline for filing an objection), a letter seeking a
copy of his file. Appellant urged that even if the letter were not deemed substantial
compliance, “he thought it was and therefore he should be relieved of his ‘failure’ to
submit his FL575 within 20 days of ‘notice’ of the FL570.” The remainder of appellant’s
motion attacked the validity of the Colombian judgment.
A contested hearing on the motion occurred on November 9, 2021.2 A formal
order was filed on December 13, 2021, in which the court denied appellant’s motion for
relief from default.
Appellant filed a notice of appeal from the order denying his motion for relief
from default.
II. DISCUSSION
A. Motions for Relief from Default
Under section 473, subdivision (b) (§ 473(b)), “[t]he 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.” The party moving for relief from default
under section 473(b) must file the motion within a reasonable time but no longer than six
months after entry of the order, and that party bears the burden of establishing the right to
the relief. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929.)
Although “[t]he statute’s ‘broad remedial provisions’ [citation] are to be ‘liberally
1
All further statutory references are to the Code of Civil Procedure unless
otherwise stated.
2 The record does not include a reporter’s transcript from this hearing.
3
applied to carry out the policy of permitting trial on the merits’ [citation, t]he party
seeking relief, however, bears the burden of proof in establishing a right to relief.
[Citation.]” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) The
moving party has a dual burden: “ ‘He [or she] must show a satisfactory excuse for his
[or her] default, and he [or she] must show diligence in making the motion after
discovery of the default.’ [Citation.]” (Kendall v. Barker (1988) 197 Cal.App.3d 619,
625, original italics (Kendall).)
An order granting or denying relief from default under section 473 is reviewed for
abuse of discretion. “ ‘A ruling on a motion for discretionary relief under section 473
shall not be disturbed on appeal absent a clear showing of abuse.’ [Citation.]”
(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 (Zamora).)
B. There Was No Error
Appellant asserts that the court’s denial of the motion for relief from default was
an “overreach of [its] discretion.” He reiterates that his letter of April 13, 2021 to the
court, that he describes as having been “timely,” complied with the requirements of a
formal challenge to the Registration Notice. Appellant offers no legal authority in
support of his claim that the court erred in denying his motion for relief from default
under section 473(b). (See People ex rel. 20th Century Ins. Co. v. Building Permit
Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 [failure to cite legal authority for
position in appellate brief “amounts to an abandonment of the issue”].)3
3 The briefs submitted by appellant are not in compliance with the rules of
appellate procedure. Significantly, appellant’s briefs contain no citations whatsoever to
the specific procedural and factual matters upon which he bases his claim that the court
below erred. This failure constitutes a violation of rule 8.204(a)(1)(C) of the California
Rules of Court, which requires that every brief “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the record where the matter
appears.” Under such circumstances, “an appellate court need not search through the
record in an effort to discover the point purportedly made. [Citations.] [It] can simply
deem the contention to lack foundation and, thus, to be forfeited. [Citations.]” (In re
S.C. (2006) 138 Cal.App.4th 396, 406-407.) We note further that appellant refers to a
4
As noted, appellant had a dual burden of showing that he was diligent in
presenting the motion for relief from default, and that there was a satisfactory excuse—
“mistake, inadvertence, surprise, or excusable neglect” (§ 473(b))—for the default. (See
Kendall, supra, 197 Cal.App.3d at p. 625.) We conclude that in the trial court’s denial of
the motion for relief here, the record fully supports implied determinations that appellant
failed to establish either unexplained delay or a satisfactory excuse for the default.4
The record shows that the Registration Notice was served on March 16, 2021.
Appellant’s objection to the Notice was due on or before April 5, 2021. According to
appellant’s motion, he submitted a letter to the court requesting copies of the files—
which he contended substantially complied with the requirement of a formal written
objection to the Notice—on April 13, 2021. Irrespective of the validity of his claim of
substantial compliance, this letter was eight days beyond the deadline for the objection.
Further, it appears from the Register of Actions that is part of the record on appeal that
on April 16, 2021, the court clerk rejected the filing of appellant’s letter. There is
nothing in the record indicating that appellant took further action, either on his letter that
was rejected or in objecting to the Registration Notice, until he filed the motion on
September 20, 2021. Appellant provided no explanation for waiting more than five
months after the rejection of his letter to take any action relative to the Notice.
number of supposed facts that are not part of the record before us. Appellant was
required in his opening brief to “[p]rovide a summary of the significant facts limited to
matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C), italics added.) “Factual
matters that are not part of the appellate record will not be considered on appeal and such
matters should not be referred to in the briefs.” (Lona v. Citibank, N.A. (2011) 202
Cal.App.4th 89, 102.) We will therefore disregard extraneous matters outside the record
that are referenced in appellant’s briefs. (Banning v. Newdow (2004) 119 Cal.App.4th
438, 453, fn. 6.)
4 The court in its order did not provide a detailed statement of its reasons. Rather,
it simply concluded: “Father’s motion to set aside the registration is denied as it is
untimely.” As an appellate court, “we are not bound by the trial court’s stated reasons in
support of its ruling; we review the ruling, not its rationale. [Citation.]” (Limited Stores,
Inc. v. Franchise Tax Bd. (2007) 152 Cal.App.4th 1491, 1496.)
5
As a panel of this court has explained, the granting of relief under section 473(b)
“is not warranted unless the moving party demonstrates diligence in seeking it.
[Citation.] ‘ “The moving party . . . must show diligence in making the motion after
discovery of the default.” ’ [Citation.] Whether a party has acted diligently is a factual
question for the trial court. [Citation.]” (Huh v. Wang (2007) 158 Cal.App.4th 1406,
1420 (Huh).) The circumstances here, discussed in the previous paragraph, demonstrate
an absence of diligence by appellant in bringing the motion for relief from default in a
timely fashion. Appellant waited nearly the full six-month statutory period to bring the
motion. He provided no justification for that delay. And he presented nothing in his
motion explaining why he waited more than five months after his letter was rejected by
the court clerk before filing the motion.
What this court stated in Huh in concluding that the moving party had failed to
meet his burden of showing diligence applies with equal force in the present case:
“ ‘[T]he proper procedure’ for motions under section 473(b) first contemplates the
moving party’s ‘presentation of some explanation, by affidavit or testimony, of any
extended delay, and the court then determines whether such explanation may be deemed
sufficient to justify the granting of the relief sought.’ [Citation.] While six months—the
longest time allowable—represents the outside limit ‘of the court’s jurisdiction to grant
relief in any event, the “reasonable time” test stands as an independent consideration and
in any given situation, its determination, within the maximum six-month period,
“depends upon the circumstances of that particular case.” ’ [Citation.] For that reason,
‘there must be some showing—some evidence—’ of the relevant circumstances.
[Citation.] Here, [moving party] offered no evidence explaining the delay in seeking
relief. Given the absolute failure of proof on this point, there is no basis for granting
relief.” (Huh, supra, 158 Cal.App.4th at p. 1422, fn. omitted, quoting Benjamin v. Dalmo
Mfg. Co. (1948) 31 Cal.2d 523, 528-530 (Benjamin).)
6
Appellant likewise failed to meet his burden of meeting the second requirement of
his motion under section 473(b)—that there was a satisfactory excuse—“mistake,
inadvertence, surprise, or excusable neglect” (§ 473(b))—for the default. (See Kendall,
supra, 197 Cal.App.3d at p. 625.) The sole matter raised in his motion was the fact that
he sent a letter to the court on April 13, 2021, rejected by the court, which he argued
constituted his “impliedly objecting” to the Registration Notice. Appellant asserted
further that the letter was substantial compliance with the requirement that he object to
the Notice within 20 days, but even were it not substantial compliance, “he thought it was
and therefore he should be relieved of his ‘failure’ to submit” the proper written objection
in a timely fashion.
Appellant offers no explanation for his claimed belief that his submission of an
April 13, 2021 letter to the court was substantial compliance with the requirement that
he formally object to the Notice within 20 days. (See Hearn v. Howard (2009) 177
Cal.App.4th 1193, 1206 [moving party’s “unsupported, subjective belief” concerning
date she was served with summons and complaint did not “demonstrate that the default
judgment was entered as result of mistake, inadvertence, surprise or excusable neglect”].)
Further, he did not present in his motion any facts under penalty of perjury (by affidavit
or declaration) justifying the request for relief from default. (Cf. Benjamin, supra, 31
Cal.2d at p. 529 [“proper procedure appears to involve the presentation of some
explanation, by affidavit or testimony, of any extended delay” justifying granting relief
from default].) Moreover, appellant did not include a copy of the rejected letter with his
motion. The trial court was therefore unable to evaluate whether the rejected letter could
have constituted substantial compliance with a formal objection to the Registration
Notice.5
5Appellant makes several assertions in his appellate briefs regarding statements
purportedly made at hearings conducted below. He did not cite to the record in support
of such assertions, as is required. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Further, he
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Appellant has made no showing—let alone “ ‘a clear showing’ ” (Zamora, supra,
28 Cal.4th at p. 257)—that the trial court abused its discretion in denying the motion for
relief from default.
III. DISPOSITION
The order of December 13, 2021, denying appellant’s motion for relief from
default under Code of Civil Procedure section 473, subdivision (b) is affirmed.
Respondent shall recover her costs on appeal.
failed to procure reporter’s transcripts for this appeal. (See Maria P. v. Riles (1987)
43 Cal.3d 1281, 1295 [appellant has the burden of “provid[ing] an adequate record to
assess error” and the failure to do so will result in the issue being resolved against
appellant].) Accordingly, we will disregard appellant’s assertions regarding what may
have transpired at the hearings below.
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BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
DANNER, J.
WILSON, J.
Garnica Shapira v. Lackenbacher
H049775