Filed 4/13/20 Shoaga v. Guess CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

RAIMI SHOAGA,

Plaintiff and Appellant,

v.

THE ESTATE OF LEE GUESS et al.,

Defendants and Respondents.

A156996

(Alameda County

Super. Ct. No. RG14709691)

MEMORANDUM OPINION

On June 16, 2014, plaintiff Raimi Shoaga filed a second amended complaint against respondents The Estate of Lee Guess (the Estate), Lee Guess and Annie Johnson, alleging causes of action for conversion, stalking, malicious mischief and vandalism, fraud, wrongful eviction, intentional infliction of emotional distress and nuisance/breach of implied warranty of habitability. Essentially, the complaint alleged that Lee Guess inherited real property occupied by plaintiff from his (Guess’s) father, and that Guess and Annie Johnson evicted plaintiff and took his personal belongings.

Plaintiff attempted several times to obtain a default judgment, but was not successful because he failed to comply with certain procedural requirements. The court issued several orders to show cause as to why no default had been taken against defendants when they had not yet appeared in the action. (Cal. Rules of Court, rule 3.110(g).)

Defendant Lee Guess filed an answer on behalf of himself alone. Entry of default was obtained against defendant Annie Johnson. Although one minute order indicates that entry of default was denied as to the Estate because there was no valid proof of service, another order indicates that a default entered on November 5, 2015 against the Estate was set aside (the clerk’s transcript does not contain a minute order from November 5). The court dismissed the action against the Estate on September 7, 2017 because “there is no indication that an Estate of Lee Guess exists nor that a representative o[f] the Estate has ever been timely served.”

A court trial was held on May 23, 2018 on the second amended complaint. Plaintiff was represented by counsel, at first “on limited scope.” The court took the matter under submission. Judgment was entered against plaintiff on August 1, 2018 and he was ordered to take nothing by way of his action.

On January 30, 2019, plaintiff, acting in pro. per., filed a “Notice of Motion to Vacate Judgment for Fraud on the Court.” Although the grounds for this motion are not entirely clear, it appears plaintiff was seeking, under Code of Civil Procedure section 473, subdivision (b), to set aside both the judgment in this action in favor of defendants and the underlying 2012 eviction which led to this action.

The motion to vacate was denied on March 19, 2019. The minute order from the hearing states, “Plaintiff did not show any fraud on the court on the part of defendant Lee Guess. [Citation.] Plaintiff did not show that any of the issues raised in the motion brought about the entry of an adverse judgment. [Citation.] Plaintiff did not show the diligence required for discretionary relief under Code of Civil Procedure section 473(b). [Citation.] Plaintiff did not submit a declaration of attorney fault as required for section 473(b) mandatory relief. [Citation.] Plaintiff did not submit an affidavit or a declaration under penalty of perjury, meaning there is no evidence before the court. [Citation.]”

Plaintiff filed a notice of appeal on April 12, 2019 that identifies the judgment appealed from as “MOTION TO SET ASIDE CCP 473(a)(1)(b).” He has filed an opening brief in pro. per., which although not a model of clarity, argues: (1) the defaults taken against defendants Annie Johnson and the Estate must be reinstated; (2) defendants did not comply with statutory timelines and damaged plaintiff’s property when they evicted plaintiff; (3) defendants did not timely provide plaintiff with a trial brief in the current action; and (4) evidence submitted by defendant Lee Guess at trial should have been excluded due to his failure to respond to discovery or to provide witness lists. Defendants have not filed any brief in response.

We assume the post-judgment order denying relief under Code of Civil Procedure section 473, which was identified as the appealable order, is appealable notwithstanding that it appears to be in substance a motion for reconsideration of a judgment. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1413.) But in his opening brief, appellant raises no argument that directly attacks this order. In any event, the record reveals no abuse of discretion by the trial court in denying the motion to vacate. (Id. at pp. 1418-1420.)

Although the opening brief argues that a default judgment should have been taken against the Estate and Annie Johnson, this was not the basis for the motion to vacate in the trial court, which focused on allegedly untruthful testimony by Lee Guess and the legality of the underlying eviction. Moreover, plaintiff’s notice of appeal was filed more than eight months after judgment was entered in this action, so any appeal challenging an underlying order vacating a default within that case was not timely. (California Rules of Court, rule 8.104(a).) For the same reason, plaintiff may not now complain of discovery or procedural violations within that case.

To the extent plaintiff argues the defendants committed illegal acts in effecting the underlying conviction, that eviction took place in 2012 and is long since final. To the extent he is arguing that these illegal acts mean that he should have prevailed in his current complaint, he has not timely appealed from the judgment itself.

The judgment (order denying relief under Code of Civil Procedure section 473, subdivision (b)) is affirmed. Because defendants have not filed a brief in this appeal, each side shall bear its own costs in the interests of justice.

 

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

(A156996)