Marriage of Estrada and Arias CA4/2 (2014) · DecisionDepot
Marriage of Estrada and Arias CA4/2
California Court of Appeal Jul 23, 2014 No. E059199Unpublished
Filed 7/23/14 Marriage of Estrada and Arias CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re the Marriage of MARIA FELIX ESTRADA and TAINE ANTONIO ARIAS.
MARIA FELIX ESTRADA, E059199 Appellant, (Super.Ct.No. SBFSS095746) v. OPINION TAINE ANTONIO ARIAS,
Respondent.
APPEAL from the Superior Court of San Bernardino County. Michael J. Torchia,
actual or constructive notice of the trial date or of the default prove-up hearing.
The record contains evidence that Estrada had at least constructive notice of the
trial date and was served with notice of the prove-up hearing. However, the record
clearly demonstrates Estrada was not afforded notice 15 days before the uncontested
hearing, as mandated by Code of Civil Procedure1 section 594, subdivision (a). Because
notice 15 days before the prove-up hearing was a jurisdictional prerequisite, we must
reverse the judgment.
I.
PROCEDURAL BACKGROUND
After various proceedings in this marital dissolution proceeding (including but not
limited to entry of Arias’s default and a stipulation to vacate the default), the family court
1Unless otherwise indicated, all further undesignated statutory references are to the Code of Civil Procedure.
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set a continued trial setting conference for September 30, 2011, for which the clerk gave
notice. On that date, Don Gonzales, appearing specially for Estrada’s attorney Carroll
Lawson, appeared for Estrada who was not personally present. The family court
conducted a settlement conference, after which it noted that the matter was contested and
that the parties desired a court trial. The court therefore directed the parties to file and
serve their exhibit and witness lists, and set the matter for a short cause trial on January
25, 2012. Counsel for the absent parties waived notice.
On November 10, 2011, Estrada filed a substitution of attorney substituting herself
in propria persona for Lawson.
On January 25, 2012, Estrada failed to appear for trial. The minute order for that
date states: “Court sets matter for a default prove-up hearing. If [Estrada] fails to appear
the matter will proceed by default.” The family court set a settlement conference/default
prove-up hearing for March 6, 2012, and directed Arias’s attorney to give notice.
Counsel for Arias filed a notice of ruling re default prove-up hearing with the
family court on February 28, 2012.2 The notice informed Estrada that the family court
set “a Default Prove-up hearing . . . for March 6, 2012, at 8:30 a.m.,” and that “[i]f [she]
fail[ed] to appear, the matter w[ould] proceed by default.” The notice was supported by a
2 Estrada did not designate the notice of ruling to be included in the clerk’s transcript on appeal. On our own motion, we have directed the superior court to transmit a copy of the notice for our review, and we ordered the record on appeal to be augmented with the notice of ruling filed on February 28, 2012. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
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proof of service indicating the notice had been served on Estrada by mail on February 27,
2012.
Estrada failed to appear for the March 6, 2012, default prove-up hearing. The
family court noted that “[f]or the record, this matter was previously set for court trial on
January 25th. [Estrada] failed to appear. The Court indicated that [the matter] would be
set today for a settlement conference or default prove-up hearing. If [Estrada] failed to
appear, the court would proceed by default.” The family court found that “[n]otice of this
proceeding was sent by [Arias’s attorney] to [Estrada] on February 27, 2012.” Arias’s
attorney informed the court there had not been any contact with Estrada and expressed
Arias’s desire to go forward with the default prove-up hearing. Counsel examined Arias,
after which the court dissolved the marriage.
The court entered a final judgment of dissolution on May 16, 2013, and the clerk
of the superior court served a notice of entry of judgment on May 21, 2013. Estrada
timely filed a notice of appeal on July 15, 2013.
II.
DISCUSSION
“‘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 LaMoure (2011) 198 Cal.App.4th 807, 829 [Fourth Dist., Div. Two], quoting In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “[I]t is the burden of the party
challenging the order or judgment on appeal to provide an adequate record to assess
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error.” (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 470, citing Maria P. v.
Riles (1987) 43 Cal.3d 1281, 1295.)
Arias did not file a respondent’s brief. “As a result, we may accept as true the
facts stated in [appellant’s] opening brief. ([Citation]; Cal. Rules of Court, rule
8.220(a)(2).) Nonetheless, [appellant] still bears ‘the affirmative burden to show error
whether or not the respondent’s brief has been filed,’ and we ‘examine the record and
reverse only if prejudicial error is found.’” (Smith v. Smith (2012) 208 Cal.App.4th 1074,
1077-1078.)
Because the parties submitted to the jurisdiction of the family court, the judgment
entered in this case was not a default judgment under Code of Civil Procedure section
585 et sequitur. (See, e.g., Family Code, § 2336; Cal. Rules of Court, rules 5.401-5.415.)
Rather, the judgment was rendered after an uncontested prove-up hearing, which is
governed by Code of Civil Procedure section 594. (Garamendi v. Golden Eagle Ins. Co.
341; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2014)
¶¶ 12:10, 12:14, p. 12-6.) Nonetheless, the California Supreme Court has indicated that a
judgment entered after a hearing conducted pursuant to section 594, subdivision (a), “‘is
in the nature of a default.’” (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 (Au-Yang).)
“The due process clauses of the United States and California Constitutions require
that a party be given reasonable notice of a judicial proceeding. [Citations.] This notice
requirement is codified in subdivision (a) of Code of Civil Procedure section 594 . . . ,
which states that a party may proceed in the absence of an adverse party with a trial that
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involves issues of fact if proof is made to the court that ‘the adverse party has had 15
days’ notice of such trial.’” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 54.)
The purpose of the notice requirement under section 594, subdivision (a), “‘is to
prevent the possibility of such default being taken against one who has, by reason of
insufficient notice or no notice of the time of trial, been unable to appear.’ [Citations.]
[¶] Proceeding to judgment in the absence of a party is an extraordinary and disfavored
practice in Anglo-American jurisprudence: ‘[T]he policy of the law is to have every
litigated case tried upon its merits, and it looks with disfavor upon a party, who,
regardless of the merits of the case, attempts to take advantage of the mistake, surprise,
inadvertence, or neglect of his adversary.’ [Citations.] Reflecting this principle, section
594[, subdivision ](a) expressly puts the burden on the party seeking to proceed with trial
in the absence of the opposing party to prove that the absent party received the statutory
15-day notice. The Legislature has not required the absent party to show that it did not
receive the statutorily required notice.” (Au-Yang, supra, 21 Cal.4th at p. 963.)
Compliance with the notice requirement of section 594, subdivision (a), is
mandatory and jurisdictional.3 (Au-Yang, supra, 21 Cal.4th at p. 964; Urethane Foam
Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767 (Latimer) [Fourth Dist., Div.
Two]; People ex rel. San Francisco Bay Conservation etc. Com. v. Smith (1994) 26
Cal.App.4th 113, 126; Minkin v. Levander (1986) 186 Cal.App.3d 64, 70; Bird v.
3 In contrast, the Supreme Court held that compliance with the statutory manner of proving notice under section 594, subdivision (b), although mandatory, is not jurisdictional. (In re Marriage of Goddard, supra, 33 Cal.4th at p. 58.)
Family Law, supra, ¶ 12.16.1, p. 12-7; 6 Witkin, Cal. Procedure (5th ed. 2008)
Proceedings Without Trial, § 475, p. 932.) As this court previously noted, “a judgment
entered following a trial conducted in violation of the [notice] requirement is void.”
(Latimer, at p. 767.)
According to Estrada, the record on appeal is completely devoid of evidence that
she received actual or constructive notice of the trial date or of the prove-up hearing. We
disagree. The register of actions demonstrates Estrada was represented by counsel at the
September 30, 2011, trial setting conference during which the family court set the trial
date. The attorney who appeared for Estrada’s attorney of record waived written notice.
Because Estrada did not move to set aside the judgment and, therefore, she filed no
affidavit or declaration in the family court, there is no evidence in the record that Estrada
did not receive notice of the trial date.
Even if Estrada did not receive actual notice of the trial date, the record contains
evidence that she had notice of the prove-up hearing. When Estrada failed to appear for
trial on January 25, 2012, the trial court set the matter for a prove-up hearing on March 6,
2012, and ordered Arias to give notice. Arias’s attorney filed a notice of ruling on
February 28, 2012, which was served on Estrada the day before. On the day of the prove-
up hearing, Arias met his burden of introducing evidence that Estrada received notice.
Again, Estrada filed no affidavit or declaration in the trial court to contradict the evidence
that she was provided with notice of the prove-up hearing.
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Although the record does not support Estrada’s contention that she received no
notice whatsoever of the prove-up hearing, the record plainly demonstrates that the
family court lacked jurisdiction to proceed with the prove-up hearing in Estrada’s
absence and to enter a judgment. The prove-up hearing took place on March 6, 2012,
more than 15 days after the hearing was set on January 25, 2012. But Arias’s attorney
waited until February 27, 2012, to serve Estrada with a notice of ruling. As a result,
Estrada only received an eight-day notice, instead of the mandatory 15 days. (§ 594,
subd. (a); Au-Yang, supra, 21 Cal.4th at p. 963.) Therefore, the judgment is void and
must be reversed. (Latimer, supra, 31 Cal.App.4th at p. 767.)
III.
DISPOSITION
The judgment is reversed. Appellant Maria Felix Estrada shall recover her costs
on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
RICHLI J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a judgment entered after an uncontested prove-up hearing is void if the party against whom the judgment is taken did not receive the mandatory 15 days' notice required by Code of Civil Procedure section 594, subdivision (a).
Issues
Whether the family court had jurisdiction to enter a judgment after an uncontested prove-up hearing when the appellant received only eight days' notice of the hearing.
Disposition. reversed
Quotations verified verbatim against the opinion
“Compliance with the notice requirement of section 594, subdivision (a), is mandatory and jurisdictional.”
“Therefore, the judgment is void and must be reversed.”