Filed 6/5/20 Oehlert v. Cherednychenko CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOHN OEHLERT et al.,

Plaintiffs and Respondents,

v.

OLENA CHEREDNYCHENKO,

Defendant and Appellant.

A157549

(San Mateo County

Super. Ct. No. 18-CIV-04922)

Respondents John and Elizabeth Oehlert sued their neighbor, appellant Olena Cherednychenko, over a dispute concerning the parties’ drainage systems. Within a month after Cherednychenko failed to answer, the Oehlerts secured a default judgment directing Cherednychenko to pay $100,000 and ordering a permanent injunction. Cherednychenko moved within about a month to set aside the default judgment under Code of Civil Procedure section 473, subdivision (b) (section 473(b)). The trial court denied the motion, and Cherednychenko appealed. Given the preference for determining disputes on their merits, we conclude that the trial court’s order must be reversed.

FACTUAL AND PROCEDURAL BACKGROUND

Cherednychenko and her then husband, Don Heinsohn (who is not a party to this appeal), moved into a home in Montara in March 2014. The Oehlerts were their uphill neighbors. At some point a dispute arose between the neighbors over drainage water that flows from the Oehlerts’ property through the downhill property. According to Cherednychenko, her husband both cared for their drainage system and communicated with the Oehlerts about their conflict. Cherednychenko claimed that the Oehlerts “were both openly and secretly pumping their dirty drainage water” under Cherednychenko and Heinsohn’s home, flooding their home several times and cracking its foundation. She reported the foundation damage to her insurance company, and the company concluded that the damage was caused by the Oehlerts’ drainage water. By letter dated April 6, 2018, the insurance company contacted the Oehlerts to inquire about their insurance carrier.

The Oehlerts did not respond to the letter and instead, on September 14, 2018, filed their complaint against Cherednychenko and Heinsohn seeking an injunction, declaratory relief, and recovery for trespass and nuisance. According to the complaint, Heinsohn had blocked the Oehlerts’ diversion pipe, causing damage to their home. Cherednychenko and Heinsohn were in the midst of divorce proceedings at the time the complaint was filed. Heinsohn was represented by counsel in the divorce proceedings; Cherednychenko was not. A process server personally served Heinsohn at an address in Union City on October 6. According to the Oehlerts, it was much harder to serve Cherednychenko. A process server tried six times to personally serve her at her Montara home address and once at her Palo Alto business address. Ultimately, she was personally served at her home on October 23. Her response was thus due on November 26 (30 days after October 23 was Thanksgiving, meaning she had until the following Monday). (Code Civ. Proc., §§ 412.20, subd. (a)(3), 430.30, subd. (b), 430.40, subd. (a); Cal. Rules Court, rules 1.10(b), 3.110(d).)

Cherednychenko later provided evidence that she flew to Hawaii on November 15. She and Heinsohn exchanged emails about the litigation between November 17 and 28. Heinsohn drafted a proposed response and asked Cherednychenko to file it, and Cherednychenko responded that she was told a lawyer must file a response. She wrote on November 21 (the day before Thanksgiving) that this was the deadline to respond to the complaint, stated she was in “an emergency situation” and could not take action on the complaint, and asked if Heinsohn could handle the response. She also wrote, “Please let me know if you are planning to do anything otherwise the judge will just award our neighbors whatever they asked for, hundreds of thousands of dollars from our house.” No response to these emails appear in the record. Cherednychenko later attested that “[d]uring the deadline to reply to this lawsuit I was out of town and my ex-husband told me that he would write a reply. However, he never did[.]”

No responsive pleading was filed. The Oehlerts filed a request for entry of default against Heinsohn on December 3, and a request for entry of default against Cherednychenko on December 5.

The trial court held a prove-up hearing on December 21, 2018, but no reporter’s transcript of the hearing appears in the appellate record. The trial court entered default judgment that same day in favor of the Oehlerts and ordered Cherednychenko and Heinsohn to pay $100,000 in damages and around $1,200 in costs. The court also entered a permanent injunction against Cherednychenko and Heinsohn ordering them to remove obstruction from their drainage pipes and enjoining them from interfering with the pipes in the future. Notice of entry of the judgment was filed on December 24.

Cherednychenko learned of the default judgment and, proceeding without an attorney, on January 25, 2019, filed a motion to set aside the default judgment on the basis of mistake, inadvertence, surprise, or excusable neglect (§ 473(b)). She did not submit a proposed responsive pleading with the motion.

The Oehlerts opposed the motion. They contended that Cherednychenko was “blatantly lying” about her whereabouts when the responsive pleading was due. They provided declarations attesting that Cherednychenko had been seen at or near her home at various times in December 2018.

By the time she filed a reply brief in support of her motion on March 11, Cherednychenko was represented by counsel. She provided a proposed answer to the complaint with the reply brief.

A hearing on the motion was held on March 15. Again, however, no reporter’s transcript appears in the record on appeal. Following the hearing, the trial court denied Cherednychenko’s motion. The court concluded that Cherednychenko had “fail[ed] to demonstrate that the default judgment was entered against her as a result of mistake, inadvertence, surprise or excusable neglect” and that it was procedurally defective because she failed to include a copy of an answer or other proposed pleading with her motion.

Cherednychenko filed a notice of appeal within 60 days of the notice of entry of the order denying her motion. The Oehlerts filed a motion to dismiss the appeal as untimely because it was filed more than 60 days after entry of judgment, but this court denied the motion and construed the appeal as having been taken from the denial of her motion to set aside the judgment. As such, it was timely.

DISCUSSION

Cherednychenko argues that the trial court erred when it denied her motion to vacate the default and default judgment. On the record before us, we must agree.

Section 473 (b) permits a trial court “upon any terms as may be just” to set aside a previous order or judgment taken against the party because of his or her “mistake, inadvertence, surprise, or excusable neglect.” A motion denying a party’s request for relief under section 473(b) is reviewed for an abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) Where there is a conflict in the evidence but the prevailing party has presented evidence supporting its contentions, the trial court’s determination of the controverted facts will not be disturbed. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Granting relief under section 473(b) is “strongly favored by law.” (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1140.) And “[b]ecause the law favors disposing of cases on their 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.’ ” (Rappleyea, at p. 980.)

The undisputed evidence shows that Cherednychenko was aware of the lawsuit, that she and her estranged husband communicated about how to respond and she hoped he would handle it, and that she apparently was in Hawaii during at least part of the time she was to respond to the complaint. Cherednychenko first argues that this amounted to a mistake of fact or surprise under section 473(b) because she mistakenly believed that her husband would protect their community property, and she was surprised when he did not. But she presented no evidence that would lead to a reasonable belief that Heinsohn would file a responsive pleading. The email exchange with him reveals only that he asked her to handle the filing and that he did not respond when she asked that his attorney handle it instead. We agree with the Oehlerts to the extent that they contend Cherednychenko failed to establish mistake or surprise under section 473(b). (See Don v. Cruz (1982) 131 Cal.App.3d 695, 700 [where defendant relies upon a codefendant to defend the action, courts require a showing that defendant’s reliance was reasonable].)

The evidence instead showed neglect on Cherednychenko’s part. The question is whether it was excusable neglect for purposes of section 473(b). “The test of whether neglect was excusable is whether ‘ “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ ” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1128.) Had Cherednychenko been an attorney, the neglect would not have been excusable. (Ibid. [no discretionary relief where attorney was aware of deadlines to file oppositions to summary judgment motions but failed to timely file].) But Cherednychenko was an unrepresented party who was going through a divorce. Although it is a close question, we conclude that her neglect was excusable under the circumstances, especially since her delay led to a judgment of $100,000 and entry of a permanent injunction less than a month after the missed deadline, and she moved promptly to set aside the judgment.

We find support in Shapiro v. Clark, supra, 164 Cal.App.4th 1128. There, an unrepresented party was delayed filing a response to a complaint after her son died unexpectedly. (Id. at pp. 1133–1134.) When she tried to file an answer, it was rejected because a default had been taken earlier that same day. (Id. at p. 1134.) The trial court granted the defendant’s request to set aside the default, and the appellate court noted that a failure to do so likely would have been an abuse of discretion. (Id. at p. 1141.) Here, Cherednychenko did not make as “compelling [a] showing of good cause” as did the defendant in Shapiro for failing to answer the complaint timely (id. at p. 1131), but she did provide mitigating circumstances and promptly moved to set aside the default judgment that was swiftly entered following her neglect.

As they did below, the Oehlerts accuse Cherednychenko of lying about her whereabouts. They note that they presented “damning . . . Minute Orders from the San Mateo County Court records indicating [Cherednychenko] was not only in town, but also making personal appearances in pro per related to her divorce proceedings [citation]!” But those minute orders show she appeared in court only once before her answer was due (on October 26, 2018), and three times after the Oehlerts had sought a default (on December 7 and 17, 2018, and January 4, 2019). These minute orders do not contradict Cherednychenko’s evidence that she flew to Hawaii in November. If anything, the minute orders establish that Cherednychenko was typically attentive to litigation in which she was involved. The Oehlerts also claim that they would suffer prejudice if this court were to reverse because they “are unable to proceed with the sale of their home until this issue is resolved.” The only support they provide for this statement is a passage from their opposition in the trial court, which itself was unsupported by any declarations or further explanation.

We also conclude that it was an abuse of discretion to deny Cherednychenko’s motion on the basis it was procedurally defective for failure to submit a proposed answer or other pleading with her moving papers. True enough, section 473(b) provides that application for relief under the statute “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Cherednychenko submitted such a proposed answer with her reply brief on March 11, 2019, four days before the hearing on her motion. Given that Cherednychenko sought relief and provided a proposed response well within the six-month limit in section 473(b), we see inadequate justification for denying the motion on this ground.

We recognize, as respondents’ counsel stressed at oral argument, that the standard of review is deferential. But “[t]he law favors judgments based on the merits, not procedural missteps.” (Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 134.) Cherednychenko provided evidence of mitigating circumstances excusing her neglect that favor proceeding to the merits: She was going through a divorce, was unrepresented in both that action and in these proceedings during the time to respond to the complaint, traveled to Hawaii during that time, made at least some attempt to seek help from her estranged husband to respond, and moved promptly to set aside the default judgment after it was quickly entered against her. While, as we have said, this is a close case, under the careful scrutiny we give to orders denying requests to set aside default judgments, we conclude that reversal is appropriate. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 980.)

DISPOSITION

The order denying Cherednychenko’s motion to set aside the default and default judgment against her is reversed. The matter is remanded to the trial court with directions to grant the motion, to set aside the default and default judgment, and to file Cherednychenko’s answer. Cherednychenko shall recover her costs on appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

Oehlert v. Cherednychenko A157549