Filed 5/22/20 Everett v. Moreno CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

NICHOLAS EVERETT,

Plaintiff and Respondent,

v.

ANTONIO MORENO,

Defendant and Appellant.

B295542

(Los Angeles County

Super. Ct. No. BC690349)

APPEAL from an order of the Superior Court of Los Angeles County, David S. Cunningham III, Judge. Affirmed.

Antonio Moreno, in pro. per., for Defendant and Appellant.

Primuth, Driskell & Terzian and Jonathan D. Primuth for Plaintiff and Respondent.

Defendant and appellant Antonio Moreno, in pro. per., appeals from an order of the trial court denying his motion under Code of Civil Procedure section 473, subdivision (b), to set aside the default entered in favor of plaintiff and respondent Nicholas Everett. This appeal lies after the court granted default judgment in favor of Everett. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)

In light of Moreno’s failure to provide an adequate record on appeal, and because he has failed to provide reasoned argument supported by citations to the record and applicable law, we deem the appellate contention that he purports to make forfeited. To the extent we are able to ascertain Moreno’s contention—that the trial court abused its discretion in denying his motion because he claimed to be unaware that he needed to file an answer or responsive pleading to the complaint—we find no abuse of discretion. We affirm the order denying his motion.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a May 25, 2016 legal services agreement, Moreno retained Everett to defend him in a slander-defamation lawsuit. At the time Moreno retained Everett, Moreno had represented himself for nearly one year and had filed an answer to the plaintiff’s complaint. Though the agreement capped fees at $18,000, Everett eventually billed a total of $45,187.91. When Everett requested that Moreno pay the final invoice of $40,187.91 (the total amount of the bill less the $5,000 retainer Moreno had already paid), Moreno refused.

On January 16, 2018, Everett commenced this lawsuit against Moreno for fraud in the inducement, breach of contract, and a common count cause of action based on the outstanding debt that Moreno owed him. Moreno received the summons and complaint via substituted service on February 10, 2018. On February 16, 2018, he filed a request for extension to respond to Everett’s complaint, which Everett personally granted. Based on the extension, Moreno was required to file a responsive pleading no later than April 26, 2018. Between April 1 and 27, 2018, Everett received correspondence from two mediation organizations informing him of Moreno’s request for mediation. Everett declined to mediate the case.

At Everett’s request, the court entered default against Moreno on June 28, 2018.

On September 12, 2018, approximately three months after entry of default, Moreno filed a motion to set aside the default pursuant to section 473, subdivision (b). In his declaration supporting the motion, Moreno conceded that he received a summons and complaint by substituted service. Upon receipt, Moreno sent letters to Everett, “thinking that If I would respond within that manner, I didn’t have to submit anything to the court. I did request an extension of time to see if I was able to take this case through mediation. . . . However, to my surprise, it appears that [Everett] did not want to go thru [sic] mediation. I then knew that this matter was going to a case management conference, so I prepared a response to that and filed it in the court. [¶] . . . It appears that I was to file a written response and submit a copy to the court. I did not know that I had to respond in that manner. If I would have known of this procedure, I would have complied.”

The case summary indicates that Everett filed an opposition to Moreno’s motion to set aside the default, and that Moreno filed a reply. On November 19, 2018, the court advanced consideration of Moreno’s motion to set aside the default and noted that Moreno had failed to comply with section 473, subdivision (b), because he did not include a copy of a proposed answer in his motion. The court continued the hearing on the motion and ordered Moreno to file a copy of his proposed answer no later than December 14, 2018.

Prior to calling the matter for a hearing on January 9, 2019, the court handed Moreno (and Everett’s counsel) a copy of its tentative ruling denying Moreno’s motion to set aside the default. After reading the tentative ruling, “Mr. Moreno elect[ed] to walk out of the hearing.”

Following Moreno’s departure, the court adopted its tentative ruling and denied the 473, subdivision (b) motion. In a written ruling, the court found Moreno’s motion to be in violation of California Rules of Court, rule 3.1113(b), because it did not contain “a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” The court also found that Moreno failed to cite any legal authority for the proposition that a defendant’s ignorance of the need to file an answer after receiving a summons is sufficient to constitute excusable mistake, inadvertence, surprise, or neglect. The summons “clearly states that Defendant has 30 calendar days after service . . . to file a written response to the Court.” Despite his allegation that he was ignorant of the necessity of filing a written response, Moreno conceded that he received service of the summons and complaint via substituted service.

After denying Moreno’s motion, the court entered default judgment in favor of Everett in the amount of $17,346.09. Moreno filed a timely notice of appeal from the order denying his motion to set aside the default.

DISCUSSION

It is axiomatic that a judgment is presumed correct, and an appellant must affirmatively demonstrate error in the proceedings below by an adequate record. (Hotels Nevada, LLC. v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) The appellant must summarize all significant evidence in the record (and only in the record) with appropriate citations and must support his or her contentions with citations to legal authority. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738; Cal. Rules of Court, rules 8.204(a)(1)(C), 8.204(a)(2)(C).) An appellant’s failure to present cogent legal argument and a complete and accurate evidentiary record forfeits his or her arguments on appeal. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 (Wagner).)

Moreno has failed to provide an adequate appellate record, and his appellate briefs are devoid of reasoned argument. The only citations to legal authority are two cases (Wilson v. Goldman (1969) 274 Cal.App.2d 573 (Wilson); Beall v. Munson (1962) 204 Cal.App.2d 396 (Beall)) that Moreno has quoted verbatim in his opening brief. He has not expounded or otherwise established how either case applies in this appeal. Moreover, Moreno’s briefs are predominantly devoid of citations to the record. For example, under the heading “Evidence of the Case” in his opening brief, Moreno sets forth five paragraphs of facts that are not supported by citations to the record. In short, Moreno has forfeited his contention on appeal. (Wagner, supra, 162 Cal.App.4th at p. 259.)

To the extent we are able to ascertain Moreno’s argument on appeal—that he did not believe he needed to file a responsive pleading after he submitted letters to Everett requesting mediation—Moreno has failed to explain how that entitles him to relief under section 473.

Section 473, subdivision (b), gives the trial court the power to grant relief to a party from an adverse judgment obtained through the party’s “‘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.’” (Cf. Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928, fn. 7 (Austin) [relief from default may be granted if responsive pleading is served and filed separately but before the motion hearing].)

The party moving for relief under section 473, subdivision (b) must set forth evidence establishing a reasonable mistake, inadvertence, or excusable neglect. An honest mistake of law may be a valid ground for relief, but “ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” (A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.) “‘“[T]he determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.” . . . [Citation.]’” (Torbitt v. State of California (1984) 161 Cal.App.3d 860, 866 (Torbitt).)

When, as here, the party requested discretionary relief under section 473, we shall not disturb the trial court’s ruling “‘absent a clear showing of abuse.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “‘[W]e do not reweigh evidence or reassess the credibility of witnesses. [Citation.]’” (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 915 (Cowan).) When the evidence gives rise to conflicting reasonable inferences, one of which supports the findings of the trial court, the trial court’s finding is conclusive on appeal. (Ibid.)

Moreno has not met his burden of demonstrating an abuse of discretion. Despite the trial court’s prior order continuing consideration of his motion so that Moreno could file a proposed answer or responsive pleading, Moreno has not established that he heeded the court’s advice. That failing alone forecloses him from any relief. (§ 473, subd. (b); Austin, supra, 244 Cal.App.4th at p. 928, fn. 7.)

The record also militates against a finding that Moreno was ignorant of the need to timely file a responsive pleading, or that he was reasonably mistaken in believing that was no longer required to file a responsive pleading. (Torbitt, supra, 161 Cal.App.3d at p. 866.) Moreno’s knowledge that he needed to file a responsive pleading was borne out by his self-representation in the prior defamation lawsuit wherein he filed an answer to the plaintiffs’ complaint. Moreno also received a summons and complaint in this case informing him that he had 30 calendar days to file a written response to the court—not to Everett. Acting on that notice, Moreno obtained a 30-day extension to respond to the complaint in an apparent attempt to mediate the fee dispute. The only reasonable inference that could be drawn from the foregoing is that Moreno knew or at least suspected that he needed to file a response with the court. Despite our inability to overturn the trial court’s finding that under the circumstances Moreno was not credible (Cowan, supra, 196 Cal.App.4th at p. 915), we concur in that finding. Even were we to find that the circumstances also give rise to a reasonable inference that Moreno was honestly mistaken, we would not reverse the trial court’s ruling. (See Cowan, supra, 196 Cal.4th at p. 915.) Thus, the trial court did not abuse its discretion in denying Moreno’s section 473, subdivision (b) motion.

DISPOSITION

The order is affirmed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY, J.