Dareing v. Summers CA1/5

Filed 12/3/13 Dareing v. Summers CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

ANDREA G. DAREING, Plaintiff and Appellant, A136955 v. JIM SUMMERS, (Alameda County Super. Ct. No. HG10523842) Defendant and Respondent.

Plaintiff Andrea G. Dareing appeals from an order denying her motion to set aside an order of dismissal pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)). We affirm. BACKGROUND In 2010, Dareing, acting in propia persona, filed a complaint against defendant Jim Summers for breach of contract and fraud. Summers demurred and Dareing amended her complaint before the demurrer hearing. Summers demurred to the first amended complaint, and his demurrer was sustained on the ground that the complaint was “largely unintelligible” and left the court “unable to discern . . . what wrongdoing [Dareing] is asserting against [Summers] and the specific facts upon which she bases [her] claims.” The court granted Dareing leave to amend and provided her with detailed instructions about the applicable pleading requirements. Dareing filed a second amended complaint which fared no better than her first. In a September 23, 2011 order, Summers’s demurrer

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to this complaint was sustained on the ground that the complaint “continues to be largely unintelligible.” Dareing was granted leave to amend, again with specific instructions regarding pleading requirements. On October 12, 2011, Dareing filed a document entitled “Notice of Objection and Reply to Defendant Jim Summers Demurrer By Plaintiff’s Third Amended Complaint.” Summers construed this document to be a third amended complaint and again demurred. In January 2012, the trial court sustained the demurrer, finding the complaint not timely filed, not in compliance with the Rules of Court, and “still . . . not stat[ing] a cognizable cause of action under California law.” Because Dareing failed to demonstrate she could cure the defects, the court denied her leave to amend and dismissed the action. In May 2012, Dareing apparently served on Summers, but did not file with the court, a motion to set aside the January 2012 order pursuant to section 473(b). Summers, unaware the motion had not been filed, filed an opposition and Dareing filed a reply. In her reply brief, Dareing stated she was “removed” from her home on or about May 9, 2011, was homeless and slept in her car for “many months,” and had to put a close family pet to sleep. Her contention appears to be that but for such circumstances, she would have filed an adequate third amended complaint. After a hearing, the court denied Dareing’s motion because she “has not demonstrated mistake, inadvertence, or excusable neglect.”1 DISCUSSION Section 473(b) authorizes a court to grant a party discretionary relief from “a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” “ ‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear