Filed 1/19/22 Martinez v. Lopez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

OLEGARIO MARTINEZ,

Plaintiff and Respondent,

v.

JOSEPHINE H. LOPEZ,

Defendant and Appellant.

 B310250

 (Los Angeles County

 Super. Ct. No. 20STCV02245)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michelle Williams Court, Judge. Affirmed.

George M. Halimi for Defendant and Appellant.

Law Office of Gary Kurtz and Gary Kurtz for Plaintiff and 

Respondent.

* * * * * *
2

Josephine H. Lopez (appellant) appeals after the trial court 

denied her motion to set aside a default judgment entered against 

her in this action involving ownership of a multiunit residential 

income property located at 5931 South San Pedro St., Los 

Angeles, California 90011 (the property). Appellant also 

challenges the trial court’s award of damages and quieting title in 

favor of respondent Olegario Martinez (respondent).1

Appellant’s motion for relief from default was based on her 

claim that she had not been properly served. Neither party 

obtained a court reporter for the hearing on the motion for relief 

from default or the evidentiary hearing that took place pursuant 

to Code of Civil Procedure section 764.010.2

Appellant has failed to show that the trial court abused its 

discretion in denying the motion for relief from default. Further, 

because she has provided no reporter’s transcripts, appellant is 

precluded from raising an argument as to sufficiency of the 

evidence presented at the hearings. We therefore affirm the 

judgment.

1 Respondent filed this action against appellant and her 

common-law husband Jose Luis Guzman. Guzman died of cancer 

in July 2020, during the pendency of this lawsuit. Appellant 

asserts, without citation to evidence, that she has acted as the 

administrator of Guzman’s estate. 

2 Code of Civil Procedure section 764.010 applies to actions 

for quiet title. It mandates that a court hear and consider 

evidence of title in all such actions.
3

BACKGROUND

In February 2009, respondent purchased the property.3 On 

June 1, 2009, respondent executed a quitclaim deed, transferring 

the property to himself and appellant for no consideration.

On January 21, 2020, respondent filed a verified complaint 

against appellant and Guzman alleging six causes of action: (1) 

financial abuse of dependent adult, (2) fraud, (3) quiet title, (4) 

breach of fiduciary duty, (5) conversion, and (6) accounting.

On April 2, 2020, respondent filed his proof of service of 

summons. The proof of service contained a declaration from a 

registered California process server. The declaration listed three 

unsuccessful attempts at personal service when there was “[n]o 

answer at the door.” However, on March 14, 2020, at 8:35 a.m., 

the process server successfully completed service on appellant “by 

leaving copies of the summons and complaint, et al. with: Amy 

Guzman-co-occupant.” The process server declared under penalty 

of perjury that the declaration was true and correct.

Appellant’s default was requested and entered on April 27, 

2020. Appellant acknowledges having received a copy of the 

notice of default by mail on or about April 30, 2020.

On August 14, 2020, appellant filed her motion to vacate 

the default. Appellant asserted that she and Guzman had 

attempted to get information from the court regarding the notice 

3 Appellant asserts, without citation to any evidence in the 

record, that she and respondent each paid a 50 percent down 

payment on the property. Appellant’s citation to the statement of 

facts in her motion to set aside the default is insufficient, as 

appellant’s motion is not evidence. However, appellant admits, 

and the deed shows, that respondent took sole title to the 

property in 2009.
4

of default they received in the mail. However due to the court’s 

closure and stay-at-home order they could not get any 

information. They retained counsel in May 2020. Amy Guzman, 

the daughter of appellant and Guzman, filed a declaration that 

she was never served any paperwork regarding this matter on 

March 14, 2020, or at any time. Though she admitted residing at 

the address in question, Amy Guzman declared that she would 

have been asleep at 8:45 a.m. on March 14, 2020. Appellant 

argued that the court lacked jurisdiction over her, that the trial 

court should use its equitable power to set aside the default 

judgment, and that the court should set aside the default under 

Code of Civil Procedure section 473 (section 473), subdivision (b), 

which permits a court to relieve a party from a judgment, 

dismissal, or other proceeding taken against the party through 

his or her mistake, inadvertence, surprise, or excusable neglect.

On September 3, 2020, respondent filed his opposition to 

the motion to vacate the default. Respondent argued that the 

declaration of the registered process server was more reliable, as 

the process server had no interest in the matter and had no 

motive to put his professional reputation on the line by falsely 

declaring under penalty of perjury that he had served Amy 

Guzman on the date and time in question. Respondent further 

pointed out that the process server was entitled to a presumption 

that service was proper under Evidence Code section 647, that 

appellant did not show diligence in filing the motion for relief 

three and a half months after the default was entered, and that 

appellant did not establish grounds for relief.

On September 14, 2020, appellant filed her reply. On 

September 21, 2020, the trial court heard the motion. Both 

parties were present with counsel. Having reviewed all of the 
5

submitted pleadings and evidence and after hearing arguments of 

counsel, the trial court denied the motion to vacate.4 On 

September 22, 2020, respondent filed a notice of ruling regarding 

the motion to vacate the default.

The prove-up hearing took place on December 7, 2020. 

Respondent appeared and was represented by counsel. Appellant 

appeared telephonically. Respondent was sworn and testified to 

his damages. One additional witness also testified. Respondent 

also produced six pages of documentary evidence in support of his 

damages, as well as the deeds to the property since the time the 

property was purchased.

The court granted respondent damages in the amount of 

$44,066.16. The court also quieted title to the property, declaring 

respondent the sole and only titled owner of the property. On 

December 17, 2020, the trial court entered judgment in favor of 

respondent.

On January 12, 2021, appellant filed her notice of appeal.

DISCUSSION

I. Applicable law and standard of review

Section 473, subdivision (b), permits a court to “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.”

A motion seeking relief from default “‘“lies within the sound 

discretion of the trial court, and the trial court’s decision will not 

4 The trial court simultaneously heard and ruled on other 

matters between the parties that are not relevant to this appeal.
6

be overturned absent an abuse of discretion.”’” (Behm v. Clear 

View Technologies (2015) 241 Cal.App.4th 1, 8.) “‘“Section 473 is 

often applied liberally where the party in default moves promptly 

to seek relief, and the party opposing the motion will not suffer 

prejudice if relief is granted.”’” (Ibid.) “‘“Moreover, because the 

law strongly favors trial and disposition on the merits, any 

doubts in applying section 473 must be resolved in favor of the 

party seeking relief from default [citations]. Therefore, a trial 

court order denying relief is scrutinized more carefully than an 

order permitting trial on the merits.”’” (Ibid.)

A motion to vacate a default is the proper procedure to 

attack a default where proper service of process is challenged. 

(Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 

(Strathvale).) The plaintiff has the initial burden of 

demonstrating facts justifying the exercise of personal 

jurisdiction over the defendant. (Id. at p. 1250.) ““When there is 

conflicting evidence, the trial court’s factual determinations are 

not disturbed on appeal if supported by substantial evidence.’” 

(Ibid.)

II. Respondent established that service of summons 

brought appellant within the trial court’s 

jurisdiction

When a defendant argues that service of summons was not 

effective, “the plaintiff has ‘the burden of proving the facts that 

did give the court jurisdiction, that is the facts requisite to an 

effective service.’” (American Express Centurion Bank v. Zara 

(2011) 199 Cal.App.4th 383, 387 (American Express).)

Here, respondent provided evidence that appellant had 

been served by substitute service. Specifically, a registered 

process server explained that on March 14, 2020, at 8:35 a.m., he 
7

left the documents at appellant’s residence in the presence of 

Amy Guzman, “a competent member of the household (at least 18 

years of age) at the dwelling house or usual place of abode of the 

party.” The process server “informed [Any Guzman] of the 

general nature of the papers.” Such service was accomplished 

after three previous attempts to serve appellant at her home.

The manner of service attested to by the process server was 

proper under Code of Civil Procedure section 415.20, subdivision 

(b), which provides that “a summons may be served by leaving a 

copy of the summons and complaint at the person’s dwelling 

house, usual place of abode, usual place of business, or usual 

mailing address . . . in the presence of a competent member of the 

household . . . at least 18 years of age, who shall be informed of 

the contents thereof . . . .”

Pursuant to Evidence Code section 647, the process server’s 

information established a presumption of the facts stated in the 

return. Thus, the trial court was entitled to treat the process 

server’s declaration with a presumption that service occurred as 

stated therein. The trial court was “not required to accept this

self-serving evidence contradicting the process server’s 

declaration.” (American Express, supra, 199 Cal.App.4th at 

p. 390.) While Amy Guzman provided directly conflicting 

evidence, we do not disturb the trial court’s resolution of these 

conflicting facts. (Strathvale, supra, 126 Cal.App.4th at p. 1250.) 

The declaration of the process server constituted substantial 

evidence in support of the trial court’s decision.
8

III. Appellant has failed to show there was insufficient 

evidence to support the trial court’s denial of her 

motion for relief from default

Appellant contends that the evidence was insufficient to 

support the trial court’s denial of relief from default. Specifically, 

appellant argues that respondent failed to have the process 

server present to testify regarding his attempts to serve 

appellant and his service of the summons and complaint on Amy 

Guzman. Appellant presents no authority suggesting that inperson testimony is required from a process server. Further, 

appellant neglects to address Evidence Code section 647, which 

provides the presumption that service was proper based on the 

declaration of the registered process server.

To the extent that appellant seeks to argue that evidence 

presented at the hearing was insufficient, appellant’s challenge 

necessarily fails because appellant did not include a reporter’s 

transcript or other record of the oral proceedings of the hearing 

on her motion. The party challenging a judgment on appeal 

bears the burden of providing an adequate record to enable the 

reviewing court to assess whether the trial court erred. (Ketchum 

v. Moses (2001) 24 Cal.4th 1122, 1140-1141 (Ketchum).) The 

burden is placed on the challenging party because “[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 Arceneaux (1990) 51 Cal.3d 1130, 

1133.) Without an adequate record, a judgment must be 

affirmed. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.)

Without a record of the oral proceedings we must presume 

the evidence was sufficient to deny the motion for relief from 

default.
9

IV. The court did not abuse its discretion in denying 

relief from default

A. Equitable relief

Appellant argues that the trial court should have used its 

inherent, equitable power to set aside the default. (Citing 

Olivera v. Grace (1942) 19 Cal.2d 570, 576.) “A party seeking 

relief under the court’s equitable powers must satisfy the 

elements of a ‘stringent three-pronged test’: (1) a satisfactory 

excuse for not presenting a defense, (2) a meritorious defense, 

and (3) diligence in seeking to set aside the default.” (Kramer v. 

Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 29 (Kramer).) 

While appellant acknowledges that there are three elements, she 

only addresses one. Appellant asserts that she and Guzman had 

a meritorious defense to the action, in that Guzman was suffering 

from cancer and required extensive treatments that prevented 

appellant and Guzman from forwarding payments to respondent 

pursuant to their agreement.

However, appellant has failed to address the first and third 

elements required for relief under the trial court’s equitable 

powers. The trial court credited the evidence of the registered 

process server showing that appellant was served in mid-March 

2020. Taking into consideration the factual finding by the court 

that service was proper, appellant has failed to provide a 

satisfactory excuse for not presenting a defense to the lawsuit. 

“‘“Although the policy of the law is to favor a hearing on the 

merits of a case, courts are not required to set aside default 

judgments for defendants who flagrantly ignore the responsibility 

to present a defense.”’” (Kramer, supra, 56 Cal.App.5th at p. 29.) 

Appellant forfeited her right to have the matter heard on the 
10

merits “by choosing to ignore this case and [her] responsibilities 

under the California Rules of Court.” (Id. at p. 30.)

Further, although appellant admits receiving notice of her 

default in the case no later than April 30, 2020, she did not file a 

motion for relief from default until three and a half months later, 

in August 2020. Appellant cites no authority that a three-and-ahalf-month delay constitutes the type of diligence required for 

equitable relief. (See, e.g., Younessi v. Woolf (2016) 244 

Cal.App.4th 1137, 1145 (Younessi) [seven-week delay between 

party learning of dismissal and filing motion for relief constituted 

unreasonable delay]; Mercantile Collection Bureau v. Pinheiro 

(1948) 84 Cal.App.2d 606, 609 [nine-week delay in filing motion 

for relief untimely].) The trial court was not required to credit 

appellant’s assertions that she was unable to take action to 

respond to the action due to restrictions in place due to the 

COVID-19 pandemic.5 Under the circumstances, we decline to 

find that the trial court abused its discretion in denying equitable 

relief.

B. Statutory relief

Appellant further argues that the trial court should have 

granted her relief from default under section 473. We find that 

the trial court did not abuse its discretion in determining that 

5 Appellant has requested in her reply brief that we take 

judicial notice of the notices issued by the Los Angeles County 

Superior Court as of March 4, 2020. Appellant has failed to 

specify a particular order that prevented her from accessing 

information regarding this litigation. As there were numerous 

orders issued by the Superior Court during the COVID-19 

pandemic, and appellant has not identified any order of 

particular relevance, we deny appellant’s request.
11

appellant’s failure to respond to the complaint was not excusable 

neglect. “‘“‘The inadvertence contemplated by the statute does 

not mean mere inadvertence in the abstract. If it is wholly 

inexcusable it does not justify relief.’”’” (Younessi, supra, 244 

Cal.App.4th at pp. 1146-1147.)

Further, a motion for relief under section 473 is subject to 

the same requirement that it be made “within a reasonable time, 

in no case exceeding six months.” (§ 473, subd. (b).) As set forth 

above, the trial court did not abuse its discretion in determining 

that under the circumstances of this case, it was unreasonable for 

appellant to ignore service and wait until three and a half 

months after the entry of default to address this lawsuit.

Appellant asserts that respondent would not have been 

prejudiced by the granting of her motion for relief from default. 

Appellant cites Slusher v. Durrer (1977) 69 Cal.App.3d 747, 755, 

for the proposition that “[w]here there is no showing of prejudice 

to the party opposing the motion to set aside the default 

judgment . . . only very slight evidence is required to justify a 

court in setting aside the default.”

Appellant fails to sufficiently support her position that 

respondent would not be prejudiced. In contrast to appellant’s 

assertion, the record shows that respondent presented evidence of 

prejudice. He asserted in his declaration that he intended to 

return to his village in Mexico because he was presently 

unemployed and could live there on very little money. The 

pendency of the lawsuit was causing him to suffer medically and 

financially due to the delay. The trial court was permitted to 

credit respondent’s evidence and find that granting appellant 

relief from default would be prejudicial to respondent.
12

Considering the above factors, we find the trial court did 

not abuse its discretion in denying the motion for relief from 

default under section 473, subdivision (b).

V. Appellant has failed to establish that the trial court 

erred in granting respondent title to the property 

and damages

Code of Civil Procedure section 764.010 provides:

“The court shall examine into and determine the 

plaintiff’s title against the claims of all the 

defendants. The court shall not enter judgment by 

default but shall in all cases require evidence of 

plaintiff’s title and hear such evidence as may be 

offered respecting the claims of any of the 

defendants, other than claims the validity of which is 

admitted by the plaintiff in the complaint. The court 

shall render judgment in accordance with the 

evidence and the law.”

Appellant acknowledges that the trial court held a prove-up 

hearing in accordance with Code of Civil Procedure section 

764.010 on December 7, 2020. Appellant further acknowledges 

that respondent produced six pages of documentation regarding 

his damages, as well as copies of the deeds to the property since 

the time that respondent purchased the property. Respondent 

also provided oral testimony to the trial court at the hearing. 

Despite this evidence appellant claims that there was insufficient 

evidence supporting the trial court’s decision to award the 

property to respondent and to award respondent damages. 

Appellant claims that respondent failed to produce (1) any 

written evidence that he solely paid for the down payment of the 

property when it was purchased, (2) any evidence that he is a 

dependent adult, or (3) any evidence that he was defrauded by 

appellant and Guzman for the transfer of title and loan.
13

Appellant’s claim for insufficiency of the evidence must fail. 

Without a record of the oral proceedings, we must presume the 

evidence was sufficient to award title of the property and 

damages to respondent. As set forth above, appellant failed to 

meet her burden of providing an adequate record to enable this 

court to assess whether the trial court erred. (Ketchum, supra, 24 

Cal.4th at pp. 1140-1141.)

VI. Appellant’s arguments regarding the statute of 

frauds and statute of limitations are not properly 

before this court

Appellant raises two arguments that we may not consider 

because they were not raised or considered at the trial court 

level: (1) that respondent failed to meet the requirements of the 

statute of frauds concerning the agreement between the parties 

and (2) that respondent failed to meet the requirements of the 

applicable statutes of limitations.

Appellant has failed to provide a citation to the record 

showing that these issues were considered at the trial court level. 

“‘[W]e ignore arguments, authority, and facts not presented and 

litigated in the trial court. Generally, issues raised for the first 

time on appeal which were not litigated in the trial court are 

waived.’” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.)

Both issues appellant seeks to put before this court are 

affirmative defenses that must be raised at the trial court level. 

(Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th 

1001, 1015 [statute of frauds must be raised as an affirmative 

defense in the trial court to be considered on appeal]; Ladd v. 

Warner Bros. Entertainment, Inc. (2010) 184 Cal.App.4th 1298, 

1309 [statute of limitations is an affirmative defense and 

defendant has the burden to prove all facts essential to this 
14

defense at the trial court level].) Due to her default, appellant 

failed to present these issues in the trial court. Therefore, we do 

not consider them on appeal.

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs 

of appeal.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.