S.B. v. B.J. CA5

Filed 11/16/21 S.B. v. B.J. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

S.B., F080482 Plaintiff and Appellant, (Super. Ct. No. BPT-19-002075) v.

B.J., OPINION Defendant and Respondent.

THE COURT* APPEAL from orders of the Superior Court of Kern County. Susan M. Gill, Judge. S.B., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent. -ooOoo- S.B. appeals in propria persona from the trial court’s order setting aside the entry of default and default judgment against B.J, and the trial court’s order denying his request for emergency custody. Because the trial court was required to set aside the default and

* Before Poochigian, Acting P. J., Smith, J. and Snauffer, J.

default judgment pursuant to Code of Civil Procedure, 1 section 473, subdivision (b), and S.B. fails to establish any applicable hearsay exception to admit his minor children’s witness statements, we affirm. FACTS This action arises from events related to a family custody dispute involving a Domestic Violence Restraining Order. Because the underlying record includes sensitive material, and our decision rests largely on legal analysis, we limit our recitation of the facts to those necessary for our decision. Furthermore, the limited record on appeal excludes documents and transcripts that, while unnecessary to reach our decision, nevertheless prevent us from producing a thorough narrative. Around February 2019, 2 S.B. filed a petition in Kern County. The Los Angeles County Sheriff served B.J. with notice of that petition on February 28. B.J. failed to appear for over four months. On July 10, B.J. retained new local counsel. However, the court declared B.J. in default on July 22. The court granted and entered a default judgment in favor of S.B. and against B.J. on July 26. Within six months of the entry of judgment, on September 11, B.J.’s attorney filed a Request for Order, requesting the court set aside default and default judgment. The attorney attached a sworn affidavit and other proper documents pursuant to section 473, subdivision (b). In response, S.B. filed a Responsive Declaration to Request for Order. He attached a police report recounting an investigator’s interviews with two of S.B. and B.J.’s minor children, which, according to S.B.’s brief but absent from the record, the trial court ruled were inadmissible hearsay.3 On November 1, the trial court granted B.J.’s request to set aside default and default