Filed 1/7/15 Uldricks v. Blye CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




JEFFREY L. ULDRICKS,

                   Plaintiff and Respondent,                                                 C072133

         v.                                                                    (Super. Ct. No. SCV0029106)

JUDY BLYE et al.,

                   Defendants and Appellants.




         Jeffrey Uldricks acquired an interest in a condominium owned by Warren and
Judy Blye.1 Uldricks subsequently sued the Blyes to recover money he paid to prevent
a foreclosure on the condominium. The Blyes did not appear at trial and Uldricks
obtained a judgment against them. Two months later, the Blyes moved to set aside




1    When referring to the Blyes individually, we will use their first names for clarity.

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the judgment pursuant to Code of Civil Procedure section 473, subdivision (b), claiming
that Judy’s poor health prevented them from traveling from their home in Hawaii to
Placer County for trial. The Blyes also claimed they were unable to retain new counsel
after their original counsel withdrew. The trial court denied the motion to set aside the
judgment, ruling that the Blyes failed to explain their two-month delay in seeking relief
from the judgment and failed to make a sufficient showing of mistake, inadvertence,
surprise, or excusable neglect.
       The Blyes now contend the trial court abused its discretion in denying their motion
to set aside the judgment. Finding no abuse of discretion, we will affirm the judgment.
                                     BACKGROUND
       The Blyes are residents of Hawaii but jointly own property in California. Uldricks
had a prior judgment against Warren in Hawaii which was domesticated in California.
In an attempt to partially satisfy the judgment, Uldricks executed on the Blyes’
condominium in Laguna Hills, California, and obtained Warren’s interest in the property
at a sheriff’s sale. After acquiring the interest, Uldricks learned that the Blyes were in
default on their mortgage and homeowners’ association dues. Uldricks paid more than
$60,000 to protect his interest in the property and brought the present action to recover
from the Blyes approximately half of that amount. The Blyes answered the complaint
through their counsel, Geoffrey O. Evers, and the trial court set trial for April 16, 2012.
       Uldricks propounded discovery and then filed a motion to compel. The Blyes
served discovery responses by mail just days before the hearing, such that Uldricks did
not receive them until the eve of the hearing. The trial court sanctioned the Blyes $3,000.
       Attorney Evers filed a motion to be relieved as the Blyes’ counsel on March 13,
2012. In the motion, Evers explained: “Defendants Warren E. and Judy C. Blye have
been and continue to be unresponsive to numerous attempts at communication, discussion
and/or assistance with the discovery process and now trial preparation. The failure to
respond to counsel’s letters, telephone messages and other communications resulted in

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the court granting motions to compel discovery and as well awarded attorney fees
because of [the Blyes’] failure to provide discovery responses in a timely manner. Since
the date of the hearing wherein the motions to compel were granted, defense counsel has
contacted [the Blyes] by telephone leaving messages on four separate occasions. As
well, defense counsel has forwarded to [the Blyes] written communications by U.S.
Mail and by certified mail on five separate occasions since January 20, 2012. [¶]
More specifically, defense counsel sent letters to the [Blyes] on January 20, 2012,
February 9, 2012, February 24, 2012, February 29, 2012, and March 2, 2012. In both
the February 29th and March 2nd letters, [the Blyes] were advised that if communication
did not increase . . . that current counsel, Geoffrey O. Evers, would seek to recuse himself
as counsel by way of a motion brought before this court. [¶] . . . [O]ther than one
telephone call following the January 20th letter when Defendant Warren E. Blye advised
me that he would think about the letter and get back to me, no further communication has
been directed to defense counsel by [the Blyes].”
       The Blyes did not respond to attorney Evers’s motion to be relieved as counsel,
which appears to have been properly served on them. The trial court granted the motion
on March 29, 2012.
       The trial proceeded as scheduled on April 16, 2012. The Blyes did not
communicate with the trial court or Uldricks’s counsel leading up to the trial and they did
not appear for trial. The trial court entered judgment in favor of Uldricks in the amount
of $37,076, consisting of one-half of the money that Uldricks paid to prevent foreclosure,
plus prejudgment interest in the amount of $3,003, the $3,000 discovery sanction, and
costs in the amount of $625. Notice of entry of judgment was served the next day.
       The Blyes retained new counsel, Allen Ostergar, who filed a motion to set aside
the judgment two months later, on June 18, 2012. The motion asserted that the Blyes
were unable to travel from their home in Hawaii to Placer County for trial due to Judy’s



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poor health, and the Blyes’ original attorney withdrew from the case two weeks prior
to trial, “leaving the Blyes to fend for themselves.”
       The motion was accompanied by a declaration from Judy stating that she suffers
from chronic obstructive pulmonary disease, emphysema, a herniated disc, and anxiety,
all of which made her “unable to travel to California for trial.” Judy’s declaration also
stated: “Our prior attorney in this matter resigned just before trial. My husband Warren
and I were not sure what to do. I have not been able to work for 9 years due to my health
condition and Warren is retired making our finances extremely limited.” Judy’s
declaration added that the Blyes’ current counsel, Allen Ostergar, “agreed to represent us
a few days ago.”
       The Blyes’ motion was also accompanied by a declaration from Judy’s physician,
Dr. Anne Biedel. In her declaration, Dr. Biedel stated that she has been treating Judy
“for approximately five years,” noting that Judy has suffered from chronic obstructive
pulmonary disease “[f]or at least the past three years” and a herniated disc in her neck
“[f]or the past several years.” Dr. Biedel concluded: “In light of [Judy’s] health
condition, it is not advisable that she travel to the mainland and this has been so for the
past several years.”
       The Blyes’ motion was also accompanied by a declaration from Warren, stating
he was unable travel to Placer County to attend the trial due to Judy’s health condition,
which requires him to serve as primary caregiver to the Blyes’ minor son. In addition,
Warren’s declaration stated: “About two weeks prior to trial in this case, our prior
attorney withdrew as counsel and we were left without representation. [¶] We were not
sure what to do at that point and did not have the finances necessary to retain counsel on
such short notice for trial. [¶] . . . [¶] We have attempted to retain other counsel but were
unable to do so until a few days ago when Allen Ostergar, a family friend, thankfully
agreed to represent us.”



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       There is no indication in the Blyes’ motion to set aside the judgment or the
accompanying declarations that prior to trial, the Blyes informed their original attorney or
opposing counsel that they could not travel or appear for trial.
       The trial court heard oral argument on the motion to set aside the judgment on
July 19, 2012. During the hearing, the trial court noted that the Blyes’ new counsel had a
preexisting personal relationship with the Blyes and asked him: “Why didn’t [the Blyes]
contact you for two months after they had notice of the judgment? And whatever those
reasons may be, why aren’t I told those in the declarations?” The Blyes’ new counsel
responded, “I was contacted about a week before and we filed our motion.” He did not
provide any explanation for the Blyes’ delay in contacting him.
       The trial court then discussed attorney Evers’s prior motion to be relieved as
counsel. After reading portions of Evers’s declaration aloud, and paraphrasing the rest,
the trial court observed: “[E]ven before, well before the trial date, the Blyes weren’t
cooperative in this matter. To that is added what is referenced in the Court’s tentative
ruling which is to say that they had notice of the entry of judgment very soon after it
occurred and there’s no adequate explanation having been uncooperative with their
attorney before the trial and then unresponsive to the notice of entry of judgment for two
months afterward. I think that it’s plainly clear that that demonstrates a lack of diligence
and is not appropriate.”
       The trial court denied the motion, stating: “[The Blyes’] Motion to Set Aside
Default Judgment is denied as [the Blyes] have failed to make a sufficient showing
of mistake, inadvertence, surprise, or excusable neglect pursuant to [Code of Civil
Procedure section 473, subdivision (b)]. Further, the [Blyes] have failed to make a
sufficient showing to explain the two month delay in bringing the current motion before
the court.”
                                      DISCUSSION
       The Blyes contend the trial court abused its discretion in denying their motion

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to set aside the judgment. We disagree.
         Code of Civil Procedure section 473, subdivision (b)2 provides in pertinent part
that “[t]he 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,” provided
relief is sought “within a reasonable time, in no case exceeding six months, after the
judgment, dismissal, order, or proceeding was taken.” The burden of proof in
demonstrating circumstances justifying relief under section 473, subdivision (b) falls on
the party seeking relief. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.)
         “As the discretion to grant or deny a Code of Civil Procedure section 473,
subdivision (b) motion is soundly vested in the trial court, we may only disturb its ruling
by finding that the court abused its discretion.” (Conservatorship of Buchenau (2011)
196 Cal.App.4th 1031, 1038.) However, any doubts in applying section 473 must be
resolved in favor of the party seeking relief because the policy underlying section 473
favors disposition on the merits. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419.)
An order denying a motion for relief under section 473 is therefore “ ‘scrutinized more
carefully than an order permitting trial on the merits.’ [Citation.]” (Id. at pp. 1419-
1420.)
         “Ordinarily, a party seeking relief under section 473 from a judgment, order or
other proce[e]ding has the double burden of showing (1) diligence in making the motion
after discovering its own mistake, and (2) a satisfactory excuse for the occurrence of that
mistake. [Citation.]” (Billings v. Health Plan of America (1990) 225 Cal.App.3d 250,
255.) To determine whether the mistake or neglect was excusable, “the court inquires
whether ‘a reasonably prudent person under the same or similar circumstances’ might




2   Undesignated statutory references are to the Code of Civil Procedure.

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have made the same error.” (Bettencourt v. Los Rios Community College Dist. (1986)
42 Cal.3d 270, 276.) We conclude the trial court did not abuse its discretion in ruling that
the Blyes failed to carry their “double burden.”3
       First, it was not an abuse of discretion to conclude that the Blyes failed to establish
diligence in seeking relief from the judgment. The Blyes waited two months to bring
their motion. They explained the delay by claiming they were unable to promptly retain
new counsel for financial reasons. However, the trial court was not required to set aside
the judgment based on the Blyes’ claimed lack of resources. (See Carrasco v. Craft
(1985) 164 Cal.App.3d 796, 806 [“in exercising its discretion the trial court may properly
take into consideration a defendant’s lack of funds to obtain counsel in determining
whether a motion to set aside a default was brought within a reasonable time; however,
lack of funds does not, as a matter of law, require the setting aside of the default”].)
Furthermore, the Blyes offered no explanation for their failure to contact attorney
Ostergar, who was described as a family friend, for nearly two months. Nor did they
describe any of their other efforts to retain counsel.
       In addition, attorney Evers’s motion to be relieved as counsel states that the Blyes
failed to communicate with him for weeks, making it impossible for Evers to prepare for
trial. Although the Blyes now dispute that they had only one communication with Evers
after January 20, 2012, they did not oppose Evers’s motion and did not provide any
contrary evidence in response to that motion. Under the circumstances, it was not
unreasonable for the trial court to conclude that the Blyes’ need for new counsel was


3   Prior to 1981, a party moving for relief from default under section 473 was also
required to show that the case or defense was meritorious. (Uriarte v. U.S. Pipe &
Foundry Co. (1996) 51 Cal.App.4th 780, 789.) In 1981, the Legislature amended section
473 “to specifically provide that no affidavit or declaration of merits need be provided by
a party moving for relief thereunder.” (Ibid.; former § 473, as amended by Stats. 191,
ch. 122, § 2.) Thus, the existence of a possibly meritorious defense is irrelevant to the
present appeal, and we shall not address the parties’ arguments on that point.

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itself the result of a lack of diligence, and not an adequate excuse for the Blyes’ failure to
seek relief from the judgment sooner. Accordingly, although a two-month delay is not
necessarily unreasonable, the trial court did not abuse its discretion in ruling that the
Blyes failed to make a sufficient showing to explain or excuse their delay in seeking
relief from the judgment.
       Second, it was not an abuse of discretion to conclude that the Blyes failed to
establish mistake, inadvertence, surprise, or excusable neglect pursuant to section 473,
subdivision (b). The Blyes contend “the judgment should have been set aside on the
grounds of inadvertence and excusable neglect” because (1) attorney Evers withdrew two
weeks before trial, and (2) Judy’s poor health prevented them from traveling to Placer
County. But the Blyes have not met their burden under section 473.
       The Blyes claim they were “left attorneyless two weeks before trial.” According
to the record, however, that was because the Blyes were not diligent in communicating
with their original attorney. As we have explained, although the Blyes now dispute that
they had only one communication with Evers after January 20, 2012, they did not oppose
Evers’s motion to withdraw and did not provide any contrary evidence or make any
specific request in response to that motion. Accordingly, the record supports the trial
court’s conclusion that the Blyes did not cooperate with Evers. In any event, there is no
evidence that the Blyes tried to communicate with opposing counsel after their attorney
withdrew, or sought a continuance or accommodation prior to trial. (Hearn v. Howard
(2009) 177 Cal.App.4th 1193, 1206 [“ ‘It is the duty of every party desiring to resist an
action or to participate in a judicial proceeding to take timely and adequate steps to retain
counsel or to act in his own person to avoid an undesirable judgment. Unless in
arranging for his defense he shows that he has exercised such reasonable diligence as a
man of ordinary prudence usually bestows upon important business his motion for relief
under section 473 will be denied. [Citation.]’ ”].) Although the Blyes generally aver that
they “were not sure what to do,” that, by itself, does not establish reasonable diligence.

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       The Blyes also claim that Judy’s poor health prevented them from traveling to
Placer County for trial. A showing of excusable neglect may be based upon the disability
of the party moving for relief under section 473. (In re Marriage of Kerry (1984) 158
Cal.App.3d 456, 465 [party entered into stipulation due to mental illness]; Kesselman v.
Kesselman (1963) 212 Cal.App.2d 196, 207-208 [party not capable of understanding
legal proceedings due to post-stroke mental deterioration].) However, to establish
excusable neglect on the basis of disability, the moving party must show that the
disability caused the party’s failure to act. (See, e.g., Transit Ads, Inc. v. Tanner Motor
Livery, Ltd. (1969) 270 Cal.App.2d 275, 279 [excusable neglect must be the actual cause
of the default]; Davis v. Thayer (1980) 113 Cal.App.3d 892, 909 [defendant failed to
show that her medical condition prevented her from responding to the complaint];
see also Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1038 [defendant failed to show that
parents’ illnesses and deaths prevented him from responding to the complaint].)
       The Blyes submitted evidence regarding Judy’s poor health and the obstacles
to travel, but their declarations do not establish that Judy’s health condition prevented
the Blyes from communicating with their original counsel or Uldricks’ counsel, or
prevented them from quickly seeking new counsel or requesting a continuance or
accommodation in an effort to avoid entry of judgment.
       The Blyes argue they were only required to produce “very slight” evidence to
carry their burden under section 473, subdivision (b), because Uldricks would suffer no
prejudice from an order setting aside the judgment. However, that is not a sufficient
basis to set aside the judgment if the Blyes failed to exercise diligence. (Carroll v. Abbott
Laboratories, Inc. (1982) 32 Cal.3d 892, 900 [where there is inexcusable neglect, the law
does not permit setting aside a judgment simply because the other side has not been
prejudiced].) In addition, the trial court could reasonably conclude that the Blyes failed
to present even “very slight” evidence of mistake, inadvertence, surprise, or excusable
neglect. We have reviewed the Blyes’ declarations and note that they fail to set forth any

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specific details that would explain or excuse their insufficient communication. In any
event, we are not convinced that Uldricks would suffer “no prejudice” if the judgment
were set aside. Uldricks appeared for trial and incurred approximately $2,000 in
attorneys’ fees in connection with the trial. The trial court could reasonably conclude
that Uldricks would be prejudiced if required to go to trial a second time.
       The trial court did not abuse its discretion in denying the Blyes’ motion to set
aside the judgment.
                                      DISPOSITION
       The judgment is affirmed. Uldricks shall recover his costs on appeal.



                                                            MAURO              , Acting P. J.


We concur:


             MURRAY                   , J.


             HOCH                     , J.




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