Burnete v. La Casa Dana Apartments

• Decision Date: 26 March 2007
• Docket Number: No. G037377.,G037377.
• Citation: 148 Cal.App.4th 1262,56 Cal.Rptr.3d 437
• Court: California Court of Appeals Court of Appeals
• Parties: Ilie BURNETE, Plaintiff and Appellant, v. LA CASA DANA APARTMENTS et al., Defendants and Respondents.

56 Cal.Rptr.3d 437

148 Cal.App.4th 1262

Ilie BURNETE, Plaintiff and Appellant, v. LA CASA DANA APARTMENTS et al., Defendants and Respondents.

No. G037377.

Court of Appeal, Fourth District, Division 3.

March 26, 2007.

Law Office of Morris Stone and Morris Stone, Huntington Beach, for Plaintiff and Appellant.

Law Offices of Richard J. Wianecki and Dana C. Clark, Fountain Valley, for Defendants and Respondents.

OPINION

MOORE, J.

Ilie Burnete (Burnete) brought a personal injury action against La Casa Dana Apartments, L'Abri Management, Inc. and Sera Trust (collectively, La Casa Dana), arising from the purportedly dangerous condition of an apartment complex staircase. A judgment of nonsuit was entered against Burnete, who represented himself at trial. Burnete appeals from the order denying his motion to set aside the judgment.¹

In retrospect, Burnete realizes that he made a mistake in assuming that he could competently represent himself at trial. He says that this assumption constituted mistake or excusable neglect, justifying a set aside, and that the court abused its discretion in denying his motion. Were we to agree, no judgment against a self-represented party would ever be final. Every defendant who paid for legal counsel at trial would have to pay for a second trial after the self-represented plaintiff lost. The court did not abuse its discretion in denying relief. We affirm.

In addition, we deny La Casa Dana's motion to dismiss and request for judicial notice, for reasons we will explain.

I FACTS

Judgment was entered against Burnete on October 13, 2005. Burnete filed his set aside motion on April 4, 2006.

In his set aside motion, Burnete stated that he is Romanian and has a very poor command of the English language. He also said that, at the time of trial, he "had a very limited knowledge of the law of the State of California and absolutely no knowledge of the laws, rules and regulations governing the trial of a case to a jury." Burnete summed up his plight by stating: "Now, in retrospect, [he] realizes that he made a great mistake in trying to be his own lawyer in this complex matter and that he had an erroneous concept of the law pertaining to the [trial] of [matters]."

Burnete urged the court to set aside the judgment because he was "mistaken as to the legal [consequences] of his actions" and because of excusable neglect, given his emotional strain, financial duress and medical condition. (Capitalization and boldface omitted.) The order on the motion stated: "Plaintiff was not diligent and failed to seek CCP [§ ] 473 relief within a reasonable time after judgment was entered. Plaintiff has further failed to establish that judgment was taken against plaintiff due to plaintiffs mistake and/or excusable neglect."

II DISCUSSION

A. Preliminary Matters:

(1) Motion to dismiss

As a preliminary matter, we note that La Casa Dana has filed a motion to dismiss the appeal. According to La Casa Dana, the appeal has been taken from a nonappealable order. La Casa Dana concedes that Code of Civil Procedure section 904.1, subdivision (a)(2) permits an appeal to be taken from a postjudgment order. However, as it correctly contends, "section 904.1, subdivision (a)(2) notwithstanding, not every postjudgment order is appealable." (Roden v. AmerisourceBergen Corp. (2005) 130 Cal.App.4th 211, 213, 29 Cal.Rptr.3d 810.)

It is nonetheless the case that this particular postjudgment order is appealable. " "While a denial of a motion to set aside a previous judgment is generally not an appealable order, in cases where the law makes express provision for a motion to vacate such as under Code of Civil Procedure section 473, an order denying such a motion is regarded as a special order made after final judgment and is appealable under Code of Civil Procedure section 904.1, subdivision (b) [see now 904.1, subd. (a)(2)].' [Citation.]" (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394, 72 Cal.Rptr.2d 188.)

(2) Request for judicial notice

La Casa Dana has also requested that this court take judicial notice of the judgment and the notice of entry of judgment in this matter. However, those documents are contained in the respondents' appendix on appeal. Therefore, the request for judicial notice is denied as moot.

B. Merits:

(1) Introduction

Burnete argues that the court abused its discretion in denying his motion, because there was evidence of mistake of law and excusable neglect. Alternatively, he contends the court should have granted his motion on equitable grounds.²

Code of Civil Procedure section 473, subdivision (b),³ provides in pertinent 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 clearly established that `[a] motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse.' [Citation.] The discretion conferred upon the trial court, however, is not a `"`capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.'" [Citations.]' [Citation.]" (Stafford v. Mach (1998) 64 Cal. App.4th 1174, 1180, 75 Cal.Rptr.2d 809.)

(2) Litigant regrets

Burnete describes some of the errors he made at trial. Due to his lack of understanding of the law, he says, he was unable to present his expert medical witness, for having failed to designate an expert. He also says that, due to his inexperience, he was unable to get his photographs of the staircase and his medical records into evidence. The only evidence he put on was his own testimony, but he was not even skilled at getting that into evidence. Moreover, he says, because of the postinjury pain medication he was taking, he was in a confused condition at trial and had an impaired ability to recall events. For that matter, he states that he communicates poorly in any event because English is not his native language.

La Casa Dana points out that the court cautioned Burnete against proceeding without an attorney. Among other things, the court correctly warned: "And, Mr. Burnete, you understand that I can't give you any special considerations because you are representing yourself, and you are subject to all of the same standards that you would as an attorney? Do you understand that?" Burnete replied, "Yes, yes."

As we have previously stated: "We recognize the fact that [Burnete was] appearing without the benefit of legal counsel. However, we are unable to ignore rules of procedure just because we are aware of that fact. "When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].' [Citations.]" (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444, 34 Cal. Rptr.3d 383.) In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.

Burnete concedes that he performed poorly as his own attorney, and that he is not challenging the grant of nonsuit against him. In other words, when he asserts that he was entitled to a set aside because of a mistake of law, what he really means is not that he made a mistake of law when he attempted to put on his case at trial, but that he made a mistake in judgment when he chose to act as his own attorney. However, Burnete cites no case that would support the argument that he should be relieved of the consequences of a decision of that nature. He cites two cases in which relief was afforded to self-represented litigants, i.e., Karlein v. Karlein (1951) 103 Cal.App.2d 496, 229 P.2d 831 and Rappleyea v. Campbell (1994) 8 Cal.4th 975, 35 Cal.Rptr.2d 669, 884 P.2d 126, but those cases are distinguishable.

(3) Relief under section 473

Burnete emphasizes that in Karlein v. Karlein, supra, 103 Cal.App.2d 496, 229 P.2d 831, excusable neglect was shown when a party against whom a default judgment was entered was a self-represented litigant who had difficulty speaking English and was under mental duress. This is an oversimplification of the case, however.

In Karlein v. Karlein, supra, 103 Cal. App.2d 496, 229 P.2d 831, a husband sought to set aside a January 12, 1950 interlocutory judgment of divorce that had been entered against him on default. (Id. at p. 497, 229 P.2d 831) In the affidavit supporting his motion, the husband stated that he had some difficulty with the English language and that he lacked familiarity with legal procedure. He also alleged "that on January 11, 1950, he was taken into custody on a psychopathic warrant issued upon an affidavit sworn to by his wife; that he was held in Los Angeles County Hospital and in Patton State Hospital until January 27, 1950, when he was found sane by a jury and released; that at the time of the default hearing resulting in the interlocutory decree he was actually confined in the psychopathic ward ... and that plaintiff well knew of his incarceration." (Ibid.) The trial court denied the motion and the appellate court reversed. (Id. at pp. 497, 499, 229 P.2d 831.)

The appellate court stated: "While it is the general rule that reviewing tribunals will uphold the discretion exercised by a trial court in granting or denying motions for relief under section 473 of...