Filed 9/6/19 Marriage of McLaughlin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of RONALD MCLAUGHLIN and LESLIE TAYLOR MCLAUGHLIN.

RONALD MCLAUGHLIN,

Respondent,

v.

LESLIE TAYLOR-MCLAUGHLIN,

Appellant.

G056048

(Super. Ct. No. 16D001577)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Frank Ospino, Judge. Affirmed.

Geller Conrad Duvel, Jon Christian Conrad; Law Office of Jack Kayajanian and Jack Kayajanian for Appellant.

Patrick E. Smith for Respondent.

* * *

INTRODUCTION

In this marital dissolution action, Leslie Taylor-McLaughlin (Taylor) appeals from the trial court’s order denying her request, under Code of Civil Procedure section 473, subdivision (b) (section 473(b)), to set aside the stipulation and order she and her former husband Ronald McLaughlin had signed regarding spousal support, attorney fees, and expenses. Taylor argued that at the time she signed the stipulation and proposed order, she was under significant medical, emotional, and financial distress that rendered her unable to convey significant information about her debts and liabilities to her attorney, resulting in her stipulating to pay amounts in support and expenses she could not afford to pay. The trial court denied the motion on the ground Taylor had not been reasonably diligent in seeking the requested relief.

We affirm. Taylor’s declaration filed in support of her request for relief showed she realized her financial straits and communicated her financial issues to her attorney no later than shortly after she signed the stipulation and order. Nothing in Taylor’s request explained why she waited almost six months before seeking to have the stipulation and order set aside. The trial court did not abuse its discretion in denying the request.

BACKGROUND

In February 2016, McLaughlin filed a marital dissolution petition. On August 1, 2016, McLaughlin and Taylor signed a stipulation and order agreeing that (1) Taylor would pay McLaughlin $5,000 in monthly spousal support beginning August 1, 2016, plus $12,500 in arrears for temporary spousal support; (2) McLaughlin would undergo a vocational examination and Taylor would “advance the cost of said evaluation subject to future allocation by the court”; and (3) Taylor would pay McLaughlin’s attorney $7,500 “[a]s and for a pendent lite contribution to [McLaughlin]’s attorney fees.” The court signed the parties’ stipulation and order.

Almost six months later, on January 27, 2017, Taylor filed a request to set aside the stipulation and order based on section 473(b) and Family Code sections 3692 and 3693. In her declaration filed in support of the section 473(b) request, she stated she sought to set aside the August 1, 2016 stipulation and order on the ground that at the time she signed the stipulation and order, she has faced significant medical, emotional, and financial distress which cumulatively impaired her ability to fully comprehend the implications of the stipulation’s obligations. She summarized the sources of her stress as including the following circumstances: (1) at an unspecified time, Taylor learned McLaughlin had been leading a “double life” and incurring expenses in doing so while Taylor had been working long hours at her business; (2) she learned in 2015 that in 2014, the IRS had levied a $1 million lien against her for taxes owed from 2007 through 2011; (3) Taylor settled a lawsuit filed against her company in December 2015 by agreeing to pay a total of $40,000 in three installments in July, August, and September 2016; (4) liens had been taken out against Taylor’s business bank account as a result of unpaid debts; (5) Taylor was not able to cash her payroll checks for May, June, or July 2016 “[d]ue to cash flow issues stemming from the afore-stated settlement payment of $40,000.00 and other financial errors” she has made; and (6) she had to take a “partial leave of absence from [her] company in order to face facts and try to deal with the anxiety issues that [she] was experiencing” and has not been able to work full time since August 2016.

Taylor also stated in her declaration: “I knew and understood that an order had been made for support and attorney’s fees but I was past the point of being able to verbalize to anyone what had been happening with me or my attempts to save my business. It just felt like everything was crashing down around me. There was just no reality in my mind.” She added she “just about lost it” when she walked out of the courtroom the day the stipulation and order were signed and asserted, “My counsel was not fully aware of my deteriorated status, because I had left without notifying him. It was not until my daughter and I got back to our car, and my daughter was able to call my attorney and explain to him what was going on with me that he had any idea of the circumstances.” Taylor stated she went to the doctor the day after the hearing and was referred to a psychiatrist who she has been seeing since August 23, 2016, to help alleviate her stress and anxiety. On September 13, 2016, she was involved in a serious car accident which “further exacerbated [her] anxiety and caused a great deal of damage to [her] vehicle.”

Taylor’s attorney, Jon Christian Conrad, filed a declaration in support of the section 473(b) request, stating that at the time of his preparation and appearance at the August 1, 2016 hearing, Taylor had not informed him, and he was otherwise unaware of the following: “a. A business-related lawsuit had resulted in a levy on my client’s bank accounts, which had left her with zero ability to pay any order of support or attorneys fees. [¶] b. The cumulative crush of not only the pending divorce action, but also the multiple lawsuits regarding her business, the legal matter involving her Silvertree Lane property and the [IRS] Levy, had resulted in a complete inability of my client to comprehend and rationally consider the consequences of the handwritten order to which she agreed on August 1, 2016.” He stated, “I did not find out these facts until well after the hearing date.”

In a second declaration filed later in April 2017, Conrad stated: “Pursuant to [Code of Civil Procedure] § 473(b), I wish to inform the Court that I made a mistake on August 1, 2016, related to [Taylor] and her mental and emotional state that day. [¶] . . . I should not have let her execute or negotiate the stipulation that resulted if I had known [Taylor] better at that time or been aware of how affected [Taylor] was by her then life events. [¶] . . . Although I accurately related the information and guidance provided by the Court, I mistakenly thought [Taylor] had capacity that day to comprehend and fully understand the agreement she was executing. She did not. [¶] . . . I request that the Court set aside the stipulation and allow us a chance to go forward on the merits of the case. I apologize to the Court and to [Taylor] for my mistake that day.”

On October 10, 2017, the trial court denied the section 473(b) request. The court’s minute order stated: “Court finds [Taylor] failed to move with sufficient diligence to set aside especially alleging the date [Taylor] signed was a mistake. Court specifically finds only on the issue of timeliness grounds and without getting into the merits of [Taylor] knowing or not knowing what she was signing.”

The trial court’s register of actions shows that on October 20, 2017, Taylor filed a request for a statement of decision with regard to the court’s denial of the section 473(b) request; the appellate record does not contain a copy of any such request for a statement of decision. A minute order dated January 5, 2018, which was later signed by the trial court on January 29, 2018, stated: “Court informs [Taylor]’s attorney as to his request for Statement of Decision. Court denies the request for a Statement of Decision and on Court’s Own Motion deems the Request for Statement of Decision as a Motion for Reconsideration.” The order further stated: “Court notes the Stipulation filed on 8/1/16 at issue in this case, [Taylor] set to set aside within the Request to Set Aside filed on 1/27/17. On the same date, [Taylor] filed a Request to Modify Spousal Support. The ruling the Court previously issued, the order denying [Taylor]’s request to set aside the Stipulation filed on 8/1/16, in [a] practical [respect] [a]ffects [Taylor]’s responsibility to pay spousal support from August, September, October, November and December of 2016 and January of 2017 because Court also made the finding that the issue of spousal support and retroactivity was preserved by [Taylor] by filing a Request for Order on 1/27/17. What court found at that time, pursuant to the 10/10/17 Minute Order, reflects accurately the Court’s ruling which was denied. Court specifically found [Taylor] failed to move sufficiently to set aside and Court made its ruling on Motion to Set Aside to denying it without reaching the underlying merits of the claims raised by [McLaughlin]. Court specifically made its finding on the basis that the application to which the Motion to Set Aside was not made within a ‘reasonable time’ as required by Code of Civil Procedure Section 473(b). Court heard the offers of proof, statements, read all of the Motion and the Court felt that the reasonable time requirement of Code of Civil Procedure Section 473(b) was not met. The Court feels Code of Civil Procedure Section 632 and [California Rules of Court, rule] 3.1590 and Family Code Section 2127 do not have application to this particular Motion to Set Aside. However, Court reaffirms today’s ruling constitutes the Court’s oral Statement of Decision under any circumstance. For purposes of preserving the respondent’s right to appeal the Court is going to deem today’s Motion for a Statement of Decision as a Motion for Reconsideration. Court denies the Motion for Reconsideration this date.”

Taylor appealed.

DISCUSSION

I.

SECTION 473(B) AND THE APPLICABLE STANDARD OF REVIEW

Section 473(b) provides in 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.” It is well established that “California courts have consistently held that parties may obtain relief from . . . stipulations voluntarily entered into pursuant to a voluntary agreement through the discretionary relief provision of section 473.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255.) As section 473(b) requires that an application for relief “be made within a reasonable time, in no case exceeding six months,” a party seeking such relief must be diligent. (See Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 527-528 (Benjamin).)

“The standard for appellate review of an order denying a motion to set aside under [Code of Civil Procedure] section 473 is quite limited. A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] ‘“‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’” [Citations.]’ [Citation.] The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118; see Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1144.)

II.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING TAYLOR’S REQUEST.

The trial court denied Taylor’s section 473(b) request solely on the ground she failed to show she was reasonably diligent in seeking that relief. As discussed ante, “a threshold requirement for relief [under section 473(b)] is the moving party’s diligence.” (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420 (Huh).) Such “relief is not warranted unless the moving party demonstrates diligence in seeking it. [Citation.] ‘“The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.”’ [Citation.] Whether a [litigant] has acted diligently is a factual question for the trial court.” (Ibid.)

Citing Benjamin, supra, 31 Cal.2d 523, the Huh court stated: “‘[T]he proper procedure’ for motions under section 473(b) first contemplates the moving party’s ‘presentation of some explanation, by affidavit or testimony, of any extended delay, and the court then determines whether such explanation may be deemed sufficient to justify the granting of the relief sought.’ [Citation.] While six months—the longest time allowable—represents the outside limit ‘of the court’s jurisdiction to grant relief in any event, the “reasonable time” test stands as an independent consideration and in any given situation, its determination, within the maximum six-month period, “depends upon the circumstances of that particular case.”’ [Citation.] For that reason, ‘there must be some showing—some evidence—’ of the relevant circumstances.” (Huh, supra, 158 Cal.App.4th at p. 1422; see Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 609 [nine-week delay untimely; “nowhere in the record before us is there any showing whatever to excuse the failure . . . to timely file [a] motion for relief”].)

In Huh, supra, 158 Cal.App.4th at pages 1420 to 1421, the appellant’s counsel waited over five months after realizing he had failed to file an opposition to a motion for summary judgment, and more than three months after notice of entry of judgment was given, before filing a motion for relief from the consequence of that omission under section 473(b). The appellant had offered no evidence explaining the delay in seeking relief. The Huh court stated: “Given the absolute failure of proof on this point, there is no basis for granting relief. As settled by our high court long ago in Benjamin, ‘the circumstances occasioning the attorney’s delay of more than three months before the institution of these proceedings should have been presented in support of [the] motion for relief.’ [Citation.] ‘To hold otherwise—that in the absence of any explanation a delay of more than three months in undertaking to open a default can be excused—would empower the trial court to dispense with the “reasonable time” requirement of the statute.’” (Huh, supra, 158 Cal.App.4th at p. 1422.)

The Huh court, affirming the denial of the appellant’s section 473(b) motion, stated: “That time lag puts this case in the same league as Benjamin, supra, 31 Cal.2d 523. There, our high court noted, ‘no action was taken to open the default for a period of more than three months.’ [Citation.] As the court observed: ‘Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default.’ [Citation.] Under those circumstances, the court concluded, ‘the trial court abused its discretion in granting . . . relief under authority of section 473 . . . .’ [Citation.] Key to that conclusion was the lack of evidence explaining the delay.” (Huh, supra, 158 Cal.App.4th at pp. 1421-1422.)

Here, the record lacks evidence that explains Taylor’s almost six-month delay in seeking relief under section 473(b). In her declaration filed in support of the section 473(b) request, Taylor explained she mistakenly signed the stipulation and order on August 1, 2016 because her ability to think clearly that day was impaired by the cumulative effect of her medical, emotional, and financial stressors, which also hindered her ability to fully communicate with her attorney regarding her mental and financial status. But her declaration also shows that her attorney was brought into the loop regarding her mental state later that same day; Taylor explained in her declaration that after she left the courthouse on August 1, 2016 and she and her daughter got to their car, her daughter was able to call Taylor’s attorney and “explain to him what was going on with [Taylor].”

Taylor’s attorney vaguely stated in his declaration filed in support of the section 473(b) request that he was unaware of Taylor’s stressors until “well after the hearing date.” That statement is insufficient to explain why Taylor did not pursue section 473(b) relief for over five months.

Although Taylor stated in her declaration that she had been under a psychiatrist’s care, she did not suggest her anxiety has rendered her unable to handle her affairs since August 1, 2016. In her declaration, she stated she took a “partial” leave of absence from work but continued to work, albeit fewer hours than she had previously worked. No other evidence was presented in support of Taylor’s section 473(b) request that explained her delay.

In her appellate opening brief, Taylor argues that her delay in filing the section 473(b) request could be explained “by virtue of the exercise of her right to be free from self-incrimination prompted by McLaughlin’s filing of an order to show contempt” on August 31, 2016. Taylor argues “the six-month period for bringing a motion for relief under section 473 was tolled while McLaughlin’s Order to Show Cause re Contempt was pending in the court because Taylor was unable to file a declaration in support of her Request for Order during that time.”

There are several serious problems with Taylor’s argument. Neither the section 473(b) request nor its supporting declarations mentioned any order to show cause regarding whether Taylor should be held in contempt. Nor did the request or declarations ever suggest that the filing of any such order to show cause had played any part in Taylor’s delay in filing the section 473(b) request. Taylor’s counsel did not mention the order to show cause regarding contempt at the hearing on the section 473(b) request. Our record does not contain any such order to show cause or any related briefs or declarations. Taylor has not provided any facts, citations to legal authority, or analysis, either in the trial court or on appeal, showing how the filing of any such order to show cause had any bearing on Taylor’s ability to timely file a request to set aside the stipulation and order.

The record shows Taylor’s counsel did not first argue that the filing of the order to show cause regarding contempt justified Taylor’s delay in filing the section 473(b) request until one year after the section 473(b) request itself had been filed, and three months after the trial court denied the section 473(b) request. At the January 2018 hearing on Taylor’s request for a statement of decision, which was construed by the court as a motion for reconsideration, Taylor’s counsel first argued Taylor could not have filed the section 473(b) request until after the order to show cause regarding contempt had been resolved. Even then, counsel failed to provide any relevant documentation, citation to any legal authority, or any analysis to support the argument the order to show cause excused Taylor from diligently seeking relief under section 473(b).

DISPOSITION

The order is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.