Karyn Wilbur and Chip Peto
Case No: 1468593
Hearing Date: Tue Dec 10, 2019 10:30

Nature of Proceedings: Req. for Order: Set Aside Req. for Entry of Default; and that Court Grant Nullity of Marriage

RFO Set Aside Default and Enter Judgment of Nullity

Attorneys:

Laura Dewey for Petitioner

Stephen Penner for Respondent

Ruling: The Court has spent a lot of time on this unusual case. Even though the Court would like to do grant Peto’s motion to set aside the default in this matter, it has no jurisdiction to do that, since more than six months has elapsed since the default was entered. On the other hand, Peto raises a very valid point and makes a very valid argument. Ms. Dewey is ordered to appear on December 10, 2019, and Peto and his attorney are ordered to appear and Ms. Dewy and/or Mr. Penner will elicit the necessary testimony from Peto so that the Nullity of Marriage can be entered. Mr. Penner will prepare the Judgment as a “Court ordered Judgment” and secure both Ms. Dewey’s and Mr. Penner’s signature as “approved as to form.” The Judgment will be then entered. Ms. Dewey’s request for sanctions against Mr. Penner are denied. Any request [if made] by Ms. Dewey for the “additional” $500 will be denied.

Analysis

The case was filed in 9/2014; proof of personal service was filed in 9/2014; Wilbur’s request to enter the default was filed in 5/2016; the default was entered.

On 11/13/19 Peto filed a RFO asking the Court to set aside the request for entry of default and that the Court grant a Judgment for Nullity of Marriage; the RFO was supported by declarations and a Memorandum of Points and Authorities.

Declaration of Peto

He testifies that Wilbur and he were married on August 21, 2014, after a short period of dating each other for just over a month; he was a registered sex offender; he did not inform Wilbur even though she had minor children from a previous marriage living with her; on September 2, 2014, less than a month after marriage he was served with a Petition for Nullity of Marriage; he was in full agreement with Wilbur to nullify marriage; he did not to respond to the petition filed and served by Wilbur on September 2, 2014; after being served with the Petition he made another mistake by assuming that Wilbur was going to obtain a Judgment of Nullity; next mistake was to not attempt to contact Wilbur’s attorney, Laura Dewey, to request that she proceed with obtaining a final judgment of nullity of marriage over the next twenty-one months.

On May 25, 2016, Attorney Dewey then filed Wilbur’s Request to Enter Default to obtain a default judgment for nullity of marriage; he did not have any objection; his assumption was that she was going to proceed with obtaining an entry of Court judgment pursuant to the default and to obtain a nullity of marriage on or after May 25, 2016; did not hear from them and assumed that the two of them obtained a nullity of marriage as requested in the original petition; a significant amount of time has transpired between the May 25, 2016, filing of the Request to Enter Judgment and now.

At this time he is bringing his motion to set aside the Request to Enter Judgment so that he can proceed with obtaining a nullity of their marriage. It was in the beginning of 2019 that he learned that a Judgment of Nullity of Marriage had never been entered by Petitioner and her attorney; on February 13, 2019, he contacted Attorney Stephen E. Penner to assist him in this matter; it was his understanding that Mr. Penner contacted Attorney Dewey, and an agreement was made for Ms. Dewey to set this matter for a prove-up hearing, at which time he agreed to testify so as to obtain a Judgment; requests the Court set aside a few minutes to hear his testimony at the time and date of the hearing of the motion.

Declaration of Stephen Penner

On March 18, 2019, he had a phone conversation with Attorney Laura Dewey requesting that she follow through with the required request for a default prove-up hearing based on fraud to obtain an annulment of the within marriage. Ms. Dewey agreed for a price of $500 to set the matter for a thirty minute prove-up hearing upon his representation that Peto would appear and testify to the fact that he was a registered sex offender at the time of marriage in order to obtain an annulment of marriage; agreement was made with Ms. Dewey because Wilbur was unable to be located; nobody had any information about where she was, whether she was still residing within the State of California, or whether or not she had passed away; sent Ms. Dewey a letter dated June 25, 2019, demanding that she set the default prove-up hearing forthwith since she had already been paid $500; based upon the fact that he was unable to obtain any return phone calls from Ms. Dewey previously, he told her that his client was willing to pay another $500 if she would just complete this matter forthwith; did not receive any response either in writing or by telephone from Ms. Dewey to his September 18, 2019, correspondence; it is appropriate for the Court to grant relief by setting aside Wilbur’s Request for Default and to file the Response and Request for Nullity of Marriage attached; also requested that the Court set this matter for a prove-up hearing as soon as possible; asks the Court to hold a brief hearing on the prove-up of a default hearing to obtain a Final Judgment of Nullity of Marriage at the time and place of the Motion to Set Aside Request to Enter Default.

The Court notes that Mr. Penner told Ms. Dewey that his client was willing to pay another $500 if she would just complete this matter forthwith.

Mr. Penner filed a Memorandum of Points and Authorities in support. But it does not provide this Court with any authority to set aside a default now, more than three years after it was entered.

Opposition

Filed 12/2; Ms. Dewey asks that the RFO for set aside be denied and Peto be ordered to pay sanctions for the frivolous request and invasion of privacy.

As for a reason that the Court cannot now set aside the default she relies upon California Code of Civil Procedure Section 473 which provides, in relevant part:

“The 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

She acknowledges she received $500 from Peto for her efforts that proved unsuccessful; she testifies she has expended three hours of her time thus far in dealing with this RFO; anticipates another hour in court, plus whatever time may be necessary to review reply pleadings; hourly rate is $375; four hours of her time is $1,500, not counting the aggravation and personal distress of having her privacy invaded; requests appropriate sanctions.

Stephen Penner’s Declaration filed 12/5

He testifies that:

By Wilbur’s attorney’s own admission, Wilbur herself has disappeared and all attempts to find and contact her have failed. Peto now requests the Court to allow him to file his Response requesting nullity of marriage. It does not make sense for Wilbur’s attorney to now oppose the request of both parties for a judgment of nullity of marriage. On March 18, 2019, both the attorney for Wilbur, Laura Dewey, and the attorney for Peto, Stephen E. Penner, agreed that for a payment of $500 to Ms. Dewey, she would calendar a prove-up hearing with the Court in order to obtain the judgment of nullity of marriage for the parties. On April 10, 2019, check no. 4763 in the amount of $500 was sent to Ms. Dewey as she requested in order to schedule the hearing. It is undisputed that Ms. Dewey never scheduled the prove-up hearing as agreed to by both attorneys. It is also undisputed that Mr. Penner made several attempts, both written and by telephone, to communicate with and meet and confer with Ms. Dewey without any response from her.

That on August 6, 2019, he ran into Ms. Dewey in the halls of the Superior Court and confronted her about not following through in scheduling the agreed upon hearing for the parties to finally obtain their judgment of nullity of marriage. She responded by saying that she was in the process of attempting to contact her client whose whereabouts were unknown. He requested that Ms. Dewey return the $500 which she had taken, to which she replied that she would return the money. Ms. Dewey never returned the $500 which she had taken without following through on her promises.

That California Rules of Court, Rule 3.110, section (h) states: “When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.”

Peto is justified in bringing his motion here given Dewey’s failure to obtain the default judgment. It is inconceivable that Ms. Dewey would object to the Motion to obtain a Judgment of Nullity to the parties’ marriage, since she had filed a request for such relief which is not in any way, shape, or form being contested by either party. Peto, in fact, now requests such a judgment of nullity which Ms. Dewey failed to obtain for her client over three years ago back in 2016.

The Court’s Conclusions

Even though the Court would like to do grant the motion to set aside the default in this this matter, it has no jurisdiction since more than six months has elapsed since the default was entered. On the other hand, Peto raises a very valid point and Ms. Dewey should be ordered to follow up on dates specifically set.