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             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                                             1
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




1  The trial court found the motion might alternatively be one for reconsideration or
leave to file a fourth amended complaint and, if so, denied such motion as well. On
appeal, Dareing only argues she was entitled to relief under section 473(b). Accordingly,
we only review that portion of the order.
                                              2
showing of abuse.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28
Cal.4th 249, 257.)
       As an initial matter, as noted above, Dareing’s section 473(b) motion and any
accompanying papers were never filed with the trial court. Although a copy was
provided to the court on the day of the hearing, it is not clear whether the court
considered or even read them. Summers does not contend the failure to file the written
motion is fatal to Dareing’s claim; we assume without deciding that it is not.
Nonetheless, as the motion and any accompanying documents were never filed below,
they are not part of the record on appeal. As the hearing was not reported, the only
support for Dareing’s motion before the trial court contained in the record before us is the
reply brief she filed below.
       “In order to qualify for relief under section 473, the moving party . . . must submit
affidavits or testimony demonstrating a reasonable cause . . . . [Citation.]” (Elston v.
City of Turlock (1985) 38 Cal.3d 227, 234; accord, 8 Witkin, Cal. Procedure (5th ed.
2008) Attack on Judgment in Trial Court, § 179, p. 779 [“To obtain discretionary relief
[under section 473(b)], the moving party must show, by affidavit or other proof, a
reasonable excuse.”].) No affidavit or other proof from Dareing appears in the record;
instead, she simply asserted the relevant facts in her reply brief. Even the asserted facts,
while sympathetic, are insufficiently specific to support a showing of excusable neglect.
For example, Dareing’s reply brief below states she was removed from her home in May
2011 and was homeless for “many months.” It is not clear from this assertion whether
her homelessness lasted through October 2011, when she filed her third amended
complaint.2 Moreover, Dareing was able to file a third amended complaint; she offers no
explanation why her circumstances enabled her to do this, but not to file one that was


2  Although Dareing’s brief on appeal makes additional factual assertions regarding the
timing of the events in question, there is no record that these factual assertions were made
before the trial court — much less that they appeared in an affidavit — and we therefore
do not consider them.


                                              3
adequately pled. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267,
280-281 [affirming denial of section 473(b) motion where the declarant failed to include
specific facts “which the court might have been able to assess in determining whether his
failure to respond was actually excusable in the circumstances”].)
       In addition, section 473(b) provides: “Application for this relief shall be
accompanied by a copy of the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted.” “This permits the adverse party and court
to examine the defense or claim before the hearing. The proposed pleading does not
comply with the statute unless it is good under the rules of pleading.” (8 Witkin, Cal.
Procedure, supra, § 180, p. 780.) Dareing did not file a proposed fourth amended
complaint and there is no record she otherwise provided one to the court; thus, relief is
barred under this provision. Her failure to do so also precludes us from determining
whether, absent any excusable neglect, she would have been able to sufficiently amend
her complaint. (See Sunru Chang v. Carson Estate Co. (1959) 168 Cal.App.2d 110, 113
[reversing order setting aside dismissal and allowing plaintiff to file amended complaint
because “plaintiff’s third amended complaint clearly states no cause of action and,
therefore, it was an abuse of discretion requiring a reversal for the trial court to grant her
motion to set aside the dismissal”]; see also Transit Ads, Inc. v. Tanner Motor Livery,
Ltd. (1969) 270 Cal.App.2d 275, 279 [“the excusable neglect must be the actual cause” of
the adverse action to be set aside].)
       The trial court’s denial of Dareing’s section 473(b) motion was not an abuse of
discretion.
                                        DISPOSITION
       The order is affirmed. Summers is awarded his costs on appeal.




                                               4
                    SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




                5
