In re Marriage DON HEINSOHN and OLENA CHEREDNYCHENKO. DON HEINSOHN, Respondent, v. OLENA CHEREDNYCHENKO, Respondent; TAYISIYA DUBININA, Appellant.
A159594 (San Mateo County Super. Ct. No. 17FAM02049)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Filed 12/21/21
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
BACKGROUND
Heinsohn and Cherednychenko married in 2008, and separated in July 2017. Heinsohn petitioned for dissolution of marriage in August 2017.
Dubinina is Cherednychenko‘s niece. On October 3, 2018, Heinsohn filed a motion for joinder of Dubinina as a third party claimant in the dissolution action. He alleged that she was a necessary and indispensable party to the action because Cherednychenko had transferred certain community assets to Dubinina in an effort to hide them from Heinsohn, and her presence as a party was necessary to prove the fraudulent transfers and to ensure the assets were transferred back to the community. The assets allegedly transferred to Dubinina included real property in Hawaii and earnings from Cherednychenko‘s business, a speech and debate school called Young Genius Associates (the debate school or Young Genius).
At a December 17, 2018 hearing, the trial court granted Heinsohn‘s joinder request. The court ordered Heinsohn‘s attorney to prepare the joinder pleading and serve a summons and related documents on Dubinina. The court then informed Dubinina, who was present in the courtroom and unrepresented by counsel, that once Heinsohn served her with the summons and pleading, she would have 30 days “to file an appropriate response.” The court also told her that if she needed “help figuring out what kind of response is appropriate and what you need to do in order to file papers,” she could make an appointment with the court‘s family law facilitator for assistance. Both Heinsohn‘s attorney and Dubinina agreed to email service of Heinsohn‘s joinder papers and Dubinina‘s responsive pleadings.
On January 3, 2019, Heinsohn filed his joinder pleading, in which he alleged that it was appropriate for the court to join Dubinina “as a party to this action because she now holds a majority interest in the community business, has control of [Cherednychenko‘s] finances, and was transferred 100% ownership interest in the parties’ Hawaii property shortly after the parties’ separation herein.” Heinsohn further alleged that Dubinina had “acted with the intent to cause financial injury to [Heinsohn] and her conduct was despicable and done with a willful and knowing disregard of the rights of [Heinsohn].” Heinsohn asked the court to order Dubinina to transfer all of her interests of the debate school and the Hawaii property back to the community. He also requested punitive damages pursuant to
On January 10, 2019, Heinsohn‘s attorney below served the summons, joinder pleading, and related documents on Dubinina by email. The
Dubinina did not file a responsive pleading within the allotted 30 days, and Heinsohn‘s attorney prepared a request to enter default, which was dated February 14, 2019. At his request, the court entered default against Dubinina on February 21.
On March 7, 2019, Dubinina filed a request for an order setting aside the default, with a hearing on the request set for August 30. In her request, Dubinina explained that she had not filed a response to the joinder pleading because she had consulted with the San Mateo County Superior Court‘s self-help center and was told she did not have to file any response. She also stated that she had not been properly served with the request to enter a default. The request did not include a proposed responsive pleading.
On June 28, 2019, the trial court filed its written findings and order after hearing, summarizing the decision it had made at the December 17, 2018 hearing, when it granted Heinsohn‘s request for Dubinina‘s joinder as a party in the present action.5 The hearing on Dubinina‘s request to set aside the default took place on August 30, 2019. Dubinina acknowledged that she had been served electronically on January 10 with the summons for the joinder, the pleading on the joinder, as well as the notice of motion, declaration, and memorandum of points and authorities for joinder. In
At the conclusion of the hearing, the trial court orally denied the request for an order setting aside the default, but did not file its written findings and order after hearing until December 11, 2019, in which it summarized the findings and order it had made at the August 30 hearing and formally denied the request, which the court construed as having been made pursuant to
On December 19, 2019, the trial court entered judgment on Heinsohn‘s pleading on joinder, directing Dubinina to transfer all interests she had in the Hawaii property and Young Genius back to Heinsohn and Cherednychenko, and to immediately vacate her position as principal, CEO, and CFO for Young Genius. The court also ordered Dubinina to pay Heinsohn $7,185.97 in punitive damages, pursuant to
On January 17, 2020, Dubinina filed a request to vacate the default judgment, which again did not include a proposed responsive pleading. She
Also on February 7, 2020, Dubinina filed a notice of appeal from the December 19, 2019 default judgment and the December 11, 2019 order denying her request to set aside the default.
The hearing on Dubinina‘s request to vacate the default judgment was taken off calendar after she filed her notice of appeal.
DISCUSSION
I. Trial Court‘s Jurisdiction to Enter Its Order and Judgment Before Issuance of the Remittitur in Dubinina‘s Prior Appeal
We will first address Dubinina‘s contention that the trial court did not have jurisdiction to enter either the December 11, 2019 findings and order denying her request to set aside the default or the default judgment filed on December 19, because both were entered before December 24, when the remittitur issued in her earlier appeal from the joinder order. Heinsohn counters that any error in entering the default judgment days before the remittitur issued was harmless because Dubinina was not prejudiced by the court‘s actions. As we shall explain, neither party‘s argument is correct, and the trial court did have jurisdiction to enter its order and judgment before issuance of the remittitur in the circumstances of this case.
As noted earlier, Dubinina had filed a notice of appeal on September 6, 2019, from the court‘s June 28 written order joining her as a third party claimant in the present action. On October 22, this court issued an order dismissing the appeal, on the ground that an order granting a motion for joinder is not appealable. On November 19, we also denied Dubinina‘s motion to vacate that dismissal order. The trial court entered the order denying Dubinina‘s request to set aside the default and the default
Normally, under
Here, Dubinina had appealed from the trial court‘s order joining her as a party in the present action. An order “[m]erely adding or substituting new parties to a proceeding is not an appealable order” (In re Marriage of Tim & Wong (2019) 32 Cal.App.5th 1049, 1055–1057), and this court dismissed her appeal from the joinder order on that ground. Consequently, the trial court had jurisdiction when it denied Dubinina‘s request for an order setting aside the default and entered a default judgment shortly before issuance of the remittitur, which followed this court‘s dismissal of the appeal from the nonappealable joinder order. (See Hearn Pacific Corp. v. Second Generation Roofing, Inc., supra, 247 Cal.App.4th at pp. 146–147.)
II. Dubinina‘s Claims of Mistake and Substantial Compliance Under Section 473, Subdivision (b)
Dubinina, who represented herself in the proceedings below, next contends the trial court erred when it denied her request for an order setting aside the default without considering whether her failure to file an answer to the joinder pleading was excused on the ground of mistake, and whether she
A. Trial Court Background
Dubinina was present at the hearing on December 17, 2018, at which the court granted Heinsohn‘s request to join Dubinina as a third party claimant in the present action. After ordering Heinsohn‘s attorney to serve a summons and joinder pleading on Dubinina, the court informed Dubinina that “you will have 30 days after being served with [the joinder papers] to file an appropriate response. [¶] If you need help figuring out what kind of response is appropriate and what you need to do in order to file papers, the Family Law Facilitator on the second floor can assist you.”
The joinder summons that Heinsohn‘s attorney served on Dubinina on January 10, 2019 also stated just below the caption: “NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below.” Below that language, the summons stated that “[i]f you fail to file an appropriate pleading with 30 days of the date this summons is served on you, your default may be entered and the court may enter a judgment containing the relief requested in the pleading, court costs, and such other relief as may be granted by the court . . . .”
Dubinina did not file a responsive pleading by February 11, 2019, 30 days after service of the joinder summons. On February 14, without first notifying Dubinina, Heinsohn‘s attorney prepared a request to enter default, and the court entered a default on February 21.
Dubinina filed a request for order on March 7, 2019, asking the court to set aside the default, explaining, inter alia: “I consulted with San Mateo Court Self Help Center and they said that I do not need to file any Response.
In her August 23, 2019 declaration in support of her request to set aside the default, Dubinina further explained her failure to file a proposed answer to the pleading on joinder, stating that when she went to the San Mateo County Superior Court self-help center for assistance in filing her response, as suggested by the court at the December 17, 2018 hearing, the lawyer there “told me that since I had already been joined to the case I do not need to write any Response.”
Dubinina also pointed out in her declaration that she had been present at virtually all of the prior hearings in the case, assisting and translating for Cherednychenko, including the December 17, 2018 hearing, where she “was brought into the case proceedings and was joined to the case. [¶] Before that hearing, I filed my Declaration to the [Heinsohn‘s] Schedule of Assets and Debts, and notified this court that I invested my funds from my Young Genius speech and debate school in purchasing, remodeling and the maintenance of [Heinsohn‘s and Cherednychenko‘s] home in Montara, CA and would like to receive those funds back at the dissolution of their marriage. At the Joinder hearing on December 17, 2018, during the court proceedings I understood that in order to receive my share of the house I had to be joined to this case. [¶] Thus, I was joined to the case in order not only to carry out any judgment regarding the income from my Young Genius speech and debate school and the ownership of the real property in Hawaii but also for this Court to protect my rights to all of my assets. . . .” Dubinina
At the August 30, 2019 hearing on Dubinina‘s request to set aside the default, the court addressed her claim of mistake as follows: “Miss Dubinina indicated she went to the family law facilitator and she was advised she did not need to file responsive pleadings. That would have been contradictory to the court‘s discussion on the record of the need to file a response, as well as the contents of the summons, which indicate clearly that the response is required, and there is a particular time period required for that, 30 days.”
The court then addressed Dubinina‘s failure to satisfy the requirement, under
In its belated written findings and order after hearing, filed on December 10, 2019, the court did not address the reasonableness of Dubinina‘s mistake in relying on the family law facilitator, but focused only on the fact that Dubinina had failed to file a responsive pleading within 30 days of being served with the joinder summons and pleading, as well as her failure to comply with
B. Legal Analysis
In addition,
The law concerning
In the present case, as we shall explain, we agree with Dubinina that the court abused its discretion when it denied her request for an order setting aside the default, considering the evidence she presented of both reasonable mistake and substantial compliance with
1. Mistake
First, as to mistake, “[a]n ‘honest mistake of law’ can provide ‘a valid ground for relief,’ at least ‘where a problem is complex and debatable,’ but relief may be properly denied where the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ [Citation.] In considering whether a mistake of law furnishes grounds for relief, ’ ” ‘the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law.’ ” ’ [Citations.]” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1413.)
Here, the trial court never expressed doubt about Dubinina‘s credibility with respect to her reliance on the incorrect advice she received from the trial court‘s family law facilitator. Rather, the court found that this reliance was not reasonable considering the court‘s statement at the December 17, 2018 hearing that Dubinina would have 30 days after being served with the
However, the evidence shows that Dubinina, who was not represented by counsel, diligently acted on the court‘s vague suggestion at the December 17, 2018 hearing that she speak with the court‘s family law facilitator for “help figuring out what kind of response is appropriate and what you need to do in order to file papers.” Dubinina consulted with the family law facilitator, and then—as set forth in her August 23, 2019 declaration—reasonably relied on that lawyer‘s advice that she did not need to file a response because she had already been joined in the matter.7
We therefore find that the court‘s implicit determination in its December 11, 2019 findings and order after hearing that Dubinina‘s mistake was unreasonable is not supported by the evidence, and constituted an abuse of discretion. (See Hopkins & Carley v. Gens, supra, 200 Cal.App.4th at p. 1413; see also Grappo, supra, 11 Cal.App.5th at p. 1005.)
2. Substantial Compliance
“The purpose of the proposed pleading requirement of
In this case, the trial court focused on Dubinina‘s failure to include a proposed responsive pleading in her request for relief from default, and did not even consider whether Dubinina had substantially complied with
The record, however, reflects that by the time she was joined to the case, Dubinina had already made clear her position on the matters at issue in the joinder pleading. Specifically, in a six-page declaration filed on December 3, 2018, in response to Heinsohn‘s joinder request, Dubinina addressed Heinsohn‘s claims against her in depth, explaining that she was the sole owner of Young Genius, that she bought the land in Hawaii with her own money, and that the transfer of the land after the parties separated “was the returning of an asset to its rightful owner.” Then, only days before she was served with the joinder summons and pleading, in a declaration filed on January 3, 2019 in anticipation of a property division hearing that was to be held the next day, Dubinina again described her right to the contested property, explaining that she had owned and operated Young Genius since 2008 and had bought her aunt the land in Hawaii. In the August 23, 2019 declaration in support of her request to set aside the default, Dubinina
In addition, Dubinina had been actively involved in the proceedings in this matter from the start, attending hearings to translate for Cherednychenko and also assisting her aunt with preparation of pleadings and other documents. Notably, at the December 17, 2018 hearing on Heinsohn‘s request for joinder, Dubinina was present, was sworn as a witness, and actively participated in the discussion of the issues. For example, the court asked her questions about the Hawaii property, and Dubinina explained that she had bought the property with her money, had put title of the property into Cherednychenko‘s name only, and then, after the parties separated, title was transferred into Dubinina‘s name. Dubinina also told the court that the income from Young Genius was her money, which she had to use for rent, paying employees, and returning students’ deposits, all to keep the debate school running.
At the conclusion of that hearing, the court granted Heinsohn‘s motion for joinder.8 In explaining its reasoning, the court described the conflicts in
Finally, in response to Heinsohn‘s request for order filed in anticipation of a May 24, 2019 hearing in the dissolution matter, in which he had asked for, inter alia, “exclusive, use, title, and control” of Young Genius and the Hawaii property, Cherednychenko filed a responsive request for order and a declaration, with the attachments to both of these documents also signed by Dubinina on May 13, beneath the statement, “I have translated and helped compose this document.” The first attachment requested that the court deny Heinsohn‘s request for “exclusive, use, title, and control over” Dubinina‘s Hawaii property and debate school, and the second attachment provided a detailed description of the history and facts supporting Dubinina‘s claim to ownership of both the Hawaii property and the debate school, as well as Heinsohn‘s harassment of Dubinina and efforts to “destroy[] Young Genius.” The response also requested an order to “[c]ontinue this matter until after
Despite all of this evidence showing Dubinina‘s ongoing, in-depth involvement in the case and her readiness to proceed on the issues raised in the joinder pleading, the court denied her request for relief because she had not technically satisfied
In her briefing, Dubinina cites Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 932–933, in which the party requesting relief under
This evidence in the record also reveals that Dubinina was fully engaged with the issues to be decided and was prepared to proceed with the case if the court granted her request for relief. (See Carmel, supra, 175 Cal.App.4th at p. 401 [purpose of
Considering all of these factors, we conclude Dubinina substantially complied with the proposed pleading requirement and the court‘s rigid application of that requirement in the circumstances of this case was unwarranted. (See County of Stanislaus v. Johnson, supra, 43 Cal.App.4th at pp. 401–402; Austin v. Los Angeles Unified School District, supra, 244 Cal.App.4th at p. 933.)
3. Prejudice
Finally, Dubinina filed her request to set aside the default soon after receiving notice of entry of default, and Heinsohn has not shown that he would have been prejudiced had the trial court granted the requested relief. (See Grappo, supra, 11 Cal.App.5th at p. 1005 [” ‘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’ “].)
As previously discussed, in her declaration opposing joinder and during the December 17, 2018 hearing on joinder, Dubinina described in detail her position and vigorously contested Heinsohn‘s allegations with respect to the debate school and the Hawaii property. Thus, Heinsohn was apprised of Dubinina‘s position on these issues well before the default was entered and long before the August 2019 hearing at which the court denied her request for relief. In addition, the court still had to hold a long cause hearing regarding the characterization of the Hawaii property and the debate school, and division of those properties between Heinsohn and Cherednychenko; that hearing was ultimately scheduled for April 2020.
Moreover, any delay that might have occurred resulted from the failure of Heinsohn‘s attorney to warn Dubinina that he intended to request entry of
In Fasuyi, supra, 167 Cal.App.4th at page 701, we addressed a similar situation involving a represented defendant, in which the plaintiff‘s “counsel took the default without so much as a reminder, let alone a warning, about any responsive pleading. [The defendant] argues this was ‘unfair.’ We agree, as such warning is at the least an ethical obligation of counsel[.]” (Citing Weil & Brown, Cal. Practice Guide: Civil Procedure before Trial (The Rutter Group 2007) ¶¶ 5:68-5.71, pp. 5-16 to 5-17 (rev. #1, 2007); see Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [” ’ [T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary’ “].)
Here, as in Fasuyi, Heinsohn “would not be prejudiced by the grant of relief from default,” since his “only argument is delay, and there would have been none had his counsel done what he should have.” (Fasuyi, supra, 167 Cal.App.4th at p. 702.)
4. Conclusion
Courts must remain mindful of the rules governing the extreme remedy of barring parties from participating in litigation affecting their rights,
Considering the requirement that a trial court‘s order denying a request for relief from default must be ” ‘scrutinized more carefully than an order permitting trial on the merits,’ ” and in light of the abundance of evidence in the record demonstrating both the reasonableness of Dubinina‘s mistake and her substantial compliance with
Accordingly, both the order denying Dubinina‘s request to set aside the default and the ensuing default judgment must be reversed.
DISPOSITION
The order denying Tayisiya Dubinina‘s request for an order setting aside the default and the default judgment are reversed. Costs on appeal are awarded to Dubinina.
Kline, J.*
We concur:
Stewart, Acting P.J.
Miller, J.
In re Marriage of Heinsohn and Cherednychenko (A159594)
*Assigned by the Chief Justice pursuant to