Filed 9/25/19 Purnell v. Payless Brakes & Tires, Inc. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

GEORGETTE PURNELL,

Plaintiff and Appellant,

v.

PAYLESS BRAKES & TIRES, INC.,

Defendant and Respondent.

F077418

(Super. Ct. No. 16CECG03924)

OPINION

THE COURT*

APPEAL from the orders of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

Georgette Purnell, in pro. per., for Plaintiff and Appellant.

Patrick L. Fortune for Defendant and Respondent.

-ooOoo-

After plaintiff Georgette Purnell failed to appear at a case management conference regarding her lawsuit against defendant Payless Brakes & Tires, Inc., the trial court issued an order to show cause (OSC) requiring her to personally appear before the court at a date and time specified and to show cause why sanctions should not be imposed against her. However, plaintiff failed to appear at the OSC hearing. The trial court continued the matter one more time, serving plaintiff with notification of a continued hearing date for the OSC hearing. When plaintiff once again failed to appear as ordered, the trial court dismissed her lawsuit without prejudice. Months later, plaintiff moved to set aside the dismissal under Code of Civil Procedure section 473, but the trial court denied the motion due to her failure to show excusable neglect. Plaintiff’s motion for reconsideration was likewise denied. Plaintiff appeals, arguing the trial court should have granted relief from the dismissal. We conclude plaintiff has failed to demonstrate the trial court abused its discretion. Accordingly, the orders appealed from are hereby affirmed.

FACTS AND PROCEDURAL HISTORY

Plaintiff’s Action is Dismissed

On December 12, 2016, plaintiff filed her complaint for damages against defendant. Although the complaint is not part of the record on appeal, it appears from other documents in the record that plaintiff alleged, among other things, that defendant breached a contract by failing to perform certain work on her vehicle as promised.

After being served, defendant failed to timely file an answer to the complaint, and plaintiff requested that the clerk enter defendant’s default, which was granted. Defendant moved to set aside the default. On March 29, 2017, the trial court denied defendant’s motion. Thereafter, plaintiff twice filed a request to have the trial court enter a default judgment in her favor, but her request was denied both times; the first denial was on procedural grounds, and the second was because the judgment sought by her exceeded the amount prayed for in the complaint.

At the time plaintiff filed her lawsuit, she was notified by the trial court that her case was scheduled for a case management conference. The case management conference was scheduled for April 10, 2017, but plaintiff failed to appear. As a result of her nonappearance, the trial court issued an OSC requiring plaintiff “to appear in person on 6-15-17 at 9:00 a.m. [i]n Department 404” of the Fresno County Superior Court “to show cause why you should not be sanctioned for: [¶] … failure to appear at the Case Management Conference.” The OSC with the accompanying court date was served on plaintiff at her home address by the trial court clerk, and plaintiff’s declaration admits to receiving it.

On June 15, 2017, plaintiff failed to appear at the OSC hearing. The trial court’s response was essentially to give plaintiff one more chance by continuing the OSC hearing for 60 days to August 17, 2017. Once again, the court clerk served notice on plaintiff of the continued hearing. Plaintiff admits in her declaration that she received the June 15, 2017 order continuing the matter to August 17, 2017.

On August 17, 2017, the continued date of the OSC hearing, plaintiff again failed to appear as required. As a result, the trial court ordered plaintiff’s action dismissed without prejudice.

Motion to Set Aside Dismissal and Reinstate Plaintiff’s Case

On December 13, 2017, plaintiff filed her motion to set aside the dismissal under section 473. Plaintiff’s motion included her declaration explaining that she could not afford an attorney so she relied on the help of a non-attorney friend by the name of Hussein Ali. She thought Mr. Ali would have let her know if any action was required on her part, but as it turned out, he failed to do so. Her declaration admitted that by the time she received the June 2017 minute order, her “trust placed in Mr. [Ali] for his assistances began to diminish,” and “[a]ll attempts thereafter to contach [sic] him proved fruitless.” Although she received the orders of the trial court to personally appear, she still hoped her friend would somehow address all court matters, and she stated she was shocked to learn the trial court had dismissed her action without prejudice.

On February 1, 2018, the trial court issued its order denying plaintiff’s section 473 motion, concluding that plaintiff failed to show excusable neglect. The trial court noted that a party acting without the benefit of legal counsel is held to the same rules of procedure, and is entitled to the same, but no greater, consideration than other litigants. In holding that plaintiff failed to show excusable neglect, the trial court explained that not only had plaintiff acknowledged being served with the trial court’s orders requiring her personal appearances, none of which did she obey, but she admitted that in June of 2017, she began to lose faith in Mr. Ali. Nevertheless, she again failed to appear at the August 17, 2017 OSC hearing. As summarized by the trial court in its order denying the motion:

“Plaintiff fails to explain why, after losing faith in Mr. Ali’s willingness to help her and not being able to get in touch with him, Plaintiff chose not to appear at the 8/17/2017, hearing. Plaintiff does not address why she failed to attend any of the hearings. Plaintiff does not show that her acts were those of a reasonably prudent litigant, or that the dismissal was the result of anything other than Plaintiff’s negligence regarding her own case. [¶] Plaintiff’s declaration fails to show mistake, inadvertence, surprise, or excusable neglect, sufficient to warrant [section] 473 [, subdivision] (b) relief. Plaintiff’s lack of knowledge of the law is insufficient; that she chose to rely on a non-attorney is insufficient; that she was aware of and chose not to attend three hearings is insufficient. [¶] Plaintiff filed the instant action, then chose to hope that a non-attorney would handle it for her. Plaintiff does not show reasonable mistake, inadvertence, surprise, or excusable neglect. Plaintiff has failed to show that she is entitled to set aside the dismissal of the action. Accordingly, Plaintiff’s motion is denied.”

Plaintiff’s Motion for Reconsideration

Shortly after denial of her motion under section 473, plaintiff filed a motion for reconsideration of that order pursuant to section 1008. On March 29, 2018, the trial court denied plaintiff’s motion for reconsideration because there was no supporting affidavit or memorandum setting forth the existence of any new or different facts or circumstances along with an explanation for the failure to have produced such evidence earlier.

Notice of Appeal

Plaintiff filed a timely notice of appeal from the trial court’s order denying her motion for relief under section 473 and the order denying reconsideration under section 1008.

DISCUSSION

I. Standard of Review

Under section 473, subdivision (b), a court may grant relief 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 filing a motion for such discretionary relief under section 473 bears the burden of establishing a right to relief. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) Whether the moving party successfully carried this burden is a question entrusted to the trial court, and its ruling will not be disturbed on appeal in the absence of a demonstrated abuse of discretion. (Ibid.) “ ‘ “[A] motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.” [Citation.]’ ” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266; accord, State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) It is generally accepted that the appropriate test for abuse of discretion is whether or not the trial court’s ruling exceeded the bounds of reason, all of the circumstances before it being considered. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) Where two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. (Ibid.)

Moreover, “[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.) Because a trial court’s order is presumed to be correct, error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, an appellant must affirmatively demonstrate prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.)

II. Section 473 Motion Properly Denied

“ ‘[A] party who seeks relief under [section 473] must make a showing that due to some mistake … or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed.’ ” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623–624.) To be entitled to relief under section 473, subdivision (b), the mistake, inadvertence, surprise, or neglect must be shown to be of the “excusable variety.” (Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1017.) It is the moving party’s burden to prove excusable neglect or other excusable conduct by a preponderance of the evidence. (Kendall v. Barker, supra, 197 Cal.App.3d at p. 624; Hopkins & Carley v. Gens, supra, 200 Cal.App.4th at p. 1410 [moving party must establish right to relief].) In determining whether the moving party’s mistake or other error was excusable, the test is whether “ ‘ “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ ” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258, italics omitted.) “ ‘[A] litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)

Plaintiff asserts the trial court erred in refusing to set aside the dismissal entered against her. We disagree. As the trial court’s ruling denying relief under section 473 thoroughly explained, plaintiff failed to show excusable neglect or other excusable error on her part as a basis for setting aside the dismissal. To reiterate, prior to entering the dismissal the trial court had served plaintiff with orders demanding her personal appearance in court (including the OSC), which she admits having received, and yet on three separate occasions she failed to appear without explanation. Further, plaintiff concedes she had begun to lose faith in Mr. Ali, the non-attorney friend she allegedly hoped would help her, but despite this diminished trust and inability to contact him, she still failed to take personal responsibility to appear at the continued OSC hearing on August 17, 2017. Her passivity and gross carelessness concerning her own legal interests was clearly not the type of error a reasonably prudent person might have made under the circumstances. Whether, as plaintiff suggests, Mr. Ali may have been seeking to scam plaintiff in this matter, does not alter this basic assessment of plaintiff’s conduct.

On this record, we conclude the trial court properly determined that plaintiff failed to show excusable neglect to support her section 473 motion. Plaintiff has failed to meet her burden as appellant of affirmatively demonstrating that the trial court’s order denying relief under section 473 constituted an abuse of discretion.

III. Motion for Reconsideration Properly Denied

A motion for reconsideration must be based on new or different facts, circumstances or law. (§ 1008, subds. (a) & (b).) The party seeking reconsideration must not only set forth the requisite new or different facts, circumstances or law, but also a sufficient explanation for failure to have presented such matters earlier. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) Here, the trial court denied plaintiff’s motion for reconsideration because “[t]here is no affidavit or supporting memo that states that new or different facts or circumstances exist and an explanation for the failure to have produced such evidence earlier.” Based on our review of the record, the trial court correctly denied the motion for reconsideration on this ground, and furthermore, plaintiff’s appeal has failed to affirmatively demonstrate any error.

IV. Defendant’s Further Argument for Rejecting Plaintiff’s Appeal

In opposing plaintiff’s appeal, in addition to arguing the trial court did not abuse its discretion, defendant asserts that, even if an error occurred, plaintiff cannot show such error was prejudicial (see § 475 [prejudicial error required for reversal]) because the original dismissal of the action was without prejudice. In other words, since the dismissal was without prejudice, plaintiff in theory could have refiled her case as a new action or a new pleading, provided the statute of limitations had not expired. (See Buell v. CBS, Inc. (1982) 136 Cal.App.3d 823, 826–827; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) §§ 11:112 to 11:113, p. 11-61.) We conclude this further argument offered by defendant was not adequately developed by legal discussion with citations to authority. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) In any event, it is unnecessary to address it and we decline to do so since the present appeal may be readily resolved because of the failure by plaintiff, as appellant, to affirmatively establish an abuse of discretion concerning the particular orders she has appealed from, as we have already explained above.

DISPOSITION

The orders of the trial court are affirmed. Costs on appeal are awarded to defendant.