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Santa Rosa Landlord's Can Rejoice, Gwendolyn Smith Loses Appeal Against Sebastopol Landlord Barbara Wilt

04321f6515309b3edf09adf750d9c76e-thumb-275x267-22992.jpgThe good news is that the 1st District Court of Appeals dealt Gwendolyn Smith and her attorney Gary Levinson a loss. The bad news is that according to reports that have come into my office, Gwendolyn Smith is back in Sonoma County. Two callers reported to me that they saw her in Sebastopol living with a friend of hers who purports to be a yoga instructor. Landlords remember to perform background checks on your potential tenants.

Here is what the court of appeals had to say.

Defendant Gwendolyn Smith and her attorney failed to appear for trial in an unlawful detainer action. The trial court entered a default judgment. Defendant moved to set aside the default judgment under Code of Civil Procedure section 473. The trial court denied the motion, finding the failure to appear was part of a pattern of delaying tactics. Defendant contends she was entitled to relief.

We disagree and affirm.

I. FACTSWe take the facts primarily from the trial court's detailed written ruling denying the motion to set aside the default judgment.

In August 2008, defendant moved into plaintiff Barbara Wilt's rental unit. Her rental application lists Gary P. Levinson, defendant's attorney below and in this appeal, as her cotenant. According to plaintiff, only Levinson paid the rent on the property while defendant was in possession.

Also according to plaintiff, defendant damaged the premises and repairs were required. On September 20, 2008, defendant notified plaintiff that she would vacate the premises no later than October 31, 2008. In response to that promise, plaintiff agreed to forego eviction and also waived the October rent. Defendant failed to vacate by October 31 and denied plaintiff access to the rental unit to inspect alleged defects to the unit claimed by defendant.

On November 2, 2008, plaintiff filed an unlawful detainer action against defendant. The action was initially set for trial on January 6, 2009.

On November 20, 2008, defendant filed a notice of motion to quash service of summons. That motion was denied. On December 8, 2008, defendant sought writ relief from this court. Her petition was denied on December 11, 2008. She unsuccessfully sought review in the California Supreme Court.

Default was entered against defendant and a writ of execution issued. On December 18, 2008, the default was set aside.

Plaintiff filed a first amended complaint for unlawful detainer on January 22, 2009. Defendant answered on February 2, 2009. The matter was reset for trial on February 20, 2009. On that day, defendant vacated the premises.

The matter was set for a short cause hearing on May 6, 2009. On that day, defendant requested a continuance to obtain an attorney. Judge Tansil granted "one last continuance" to July 1, 2009. Levinson, who was listed on the rental application as defendant's cotenant, entered the case as defendant's counsel. Judge Tansil advised the defense there would be no further continuances.

The record reflects that defendant herself has a law degree, but is not licensed in California. She has at times worked with Levinson, presumably as a paralegal or law clerk, and Levinson had represented her in the past.

On June 26, 2009, defendant filed an amended answer and a counterclaim alleging, inter alia, breach of the warranty of habitability. On July 27, 2009, defendant filed a motion for leave to file an amended cross-complaint and a motion to reclassify the action from limited to unlimited jurisdiction. On September 3, 2009, the court granted the motions and defendant's amended cross-complaint, alleging breach of the warranty of habitability and other causes of action, was deemed filed September 23, 2009. On October 2, 2009, plaintiff answered the amended cross-complaint.

Trial was reset for October 7, 2009. Defendant successfully moved to reopen discovery and deposed plaintiff. Trial was reset for April 2, 2010.

On April 2, attorney Levinson attended the 8:30 a.m. trial call before Judge Daum. Levinson informed Judge Daum that he was in the middle of a dependency action in Orange County and had been called back by the presiding Commissioner to attend the continued dependency trial on April 6. Judge Daum trailed the trial calendar call to April 8.

On April 8, neither defendant nor Levinson appeared for trial. Plaintiff's counsel informed the court of a "quite ambiguous" e-mail she had received from Levinson the previous morning. The court proceeded to strike the cross-complaint, enter defendant's default, and allowed a prove-up hearing. In addition to evidence of plaintiff's damages, the trial court heard testimony from defendant's subsequent landlady about similar behavior: paying only four month's rent and then complaining about habitability. The court also admitted into evidence a November 2005 judgment of the circuit court of St. Croix County, Wisconsin, in which the court found that defendant had held over in a tenancy, damaged the rental property, and had acted maliciously, justifying punitive damages.

The court entered judgment for plaintiff on April 12.

On May 6, defendant filed a motion for relief from default under Code of Civil Procedure section 473. The motion was supported by just over a page of boilerplate law and a declaration by attorney Levinson.

Levinson described the events at the trial call hearing of April 2. He declares he told Judge Daum he was called back for the continued dependency trial on April 6 and trial would last 2-3 days. Presumably, this is why Judge Daum trailed the trial call until April 8.

On April 6, Levinson could not attend the dependency trial due to illness. Trial was continued until April 7. Levinson declares that at 10:37 a.m. on April 7 he e-mailed plaintiff's counsel and informed her it appeared he would be called back for the dependency trial the next day. At the close of the April 7 court session, the presiding commissioner ordered the parties back for trial the next day, April 8. Levinson declares he sent plaintiff's counsel a second e-mail confirming the continuance.

Levinson also declares that as soon as he learned of the continuance he informed Judge Daum's court by leaving a voicemail message with judicial assistant Kristen Wilson at 4:55 p.m., April 7. He left a second voicemail message with Ms. Wilson at 8:05 a.m., April 8. Levinson acknowledges the court minutes do not reflect the two voicemail messages.

Levinson contacted defendant, explained the situation, and specifically instructed her not to attend the trial call on April 8. He claimed he was concerned that in his absence defendant might get in a conflict with plaintiff, perhaps a physical one.
For reasons we set forth below, the trial court properly denied the motion.


We review the trial court's denial of the motion for relief from default for abuse of discretion. (Zamora v. Clayborn Contracting Group. Inc. (2002) 28 Cal.4th 249, 257-258.)

Section 473, subdivision (b), empowers the trial court to grant relief from default due to "mistake, inadvertence, surprise, or excusable neglect." In the present case, it is difficult to engage in the customary analysis under the statute because, as the trial court noted, neither the points and authorities in support of the motion nor the declaration of Levinson clearly articulate a statutory basis for relief tied to the facts of this case. Levinson's opening brief on appeal suffers from the same defect.

The trial court found that "the force and effect of [Levinson's] failure to wrap up the [dependency] matter was to gain a continuance where none had otherwise been requested." "[C]ounsel made an apparently ineffectual effort to reach the Court by making a phone call at 4:55 p.m. on the day before the trial and then at 8:05 on the morning of trial. No other effort to continue the trial or make other accommodation appears to have been made. The [commissioner presiding over the dependency proceeding] was not put in communication with the trial judge in Sonoma County. What trial counsel did do, was advise his client, who was under lawful subpoena, not to appear in Court."

The court continued, with boldface in the original: "If this matter had not commenced with an unlawful detainer action in November of 2008, and if assiduous efforts of defendant to delay her initial move-out and to delay the proceedings generally as outlined above had not been made, ([i.e.] Defendant's Motion to Quash Summons, Writ to Court of Appeals, Appeal to Supreme Court, a Default from December 2009 set aside, Unlawful Detainer set for trial on February 20, 2009 at which time defendant finally vacated the premises, continuance granted by Judge Tansil . . . with the admonishment that such would be the last continuance; at defendant's request the case went from limited to unlimited with a cross-complaint then filed, Motion to reopen discovery to allow the taking of plaintiff's deposition granted, with averment by counsel that more time for discovery was still needed) and if a nearly identical situation involving this same defendant with her subsequent tenancy hadn't resulted once again in a move-out on the date of trial, and if defendant didn't have a documented history of doing the same things in other jurisdictions, then perhaps this Court would not suspect that all of this was done for some technical [sic: "tactical"] advantage."

The court concluded that it would have to "pay studious inattention to the obvious" in order to not suspect Levinson was merely seeking tactical advantage. The court found that defendant's and Levinson's "failure to appear at trial . . . was not [the result of] mistake, surprise, or excusable neglect."

We, too, would have to pay studious inattention to the obvious to find an abuse of discretion in Judge Daum's detailed and comprehensive ruling. Courts generally disapprove of the tactic of effectively obtaining a continuance to gain advantage over one's opponent. (See, e.g., Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1400.)


The order denying the motion for relief from default is affirmed.

Gwen's next defeat will be the loss of her appeal currently pending against my client Constance Cook. Let's all remember to keep an eye on our community and to protect one another.

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