Court of Appeal:
By a MetNews Staff Writer
An orthopedic surgeon in Orange County’s City of Mission Viejo who represented himself in a dissolution of marriage case and failed to appear at a hearing at which a domestic violence restraining order was imposed on him was ineligible for mandatory relief from that order by filing an attorney’s affidavit of fault, Div. Three of the Fourth District Court of Appeal has held, declaring that his pro per status did not render him an “attorney.”
Acting Presiding Justice William W. Bedsworth authored the unpublished opinion, filed Monday, which rejects various contentions by Dr. Kenneth J. Wilkins, who filed for a divorce from his wife. His purported appeal from a Nov. 14, 2019 domestic violence restraining order must be dismissed, Bedsworth said, because it was untimely, and the denial by Orange Superior Court Judge Salvador Samiento of his request for an order vacating the 2019 decision must be affirmed, he wrote, because neither mandatory nor discretionary relief lies.
In the Nov. 14 order, Samiento made a finding that “acts of domestic violence have occurred” and that the wife and two children were the victims, ordering issuance of a five-year restraining order protecting them against Wilkins. (The judge also awarded sole custody to the mother and barred visitation by Wilkins.)
On Nov. 20, Wilkins filed what Bedsworth described as “a free-floating declaration.” In it, Wilkins, who has not been admitted to the State Bar of California, claimed that he was “attorney of record” in the case and said he “takes full responsibility” for a “mistake” he made as attorney in the case.
In his purported affidavit of fault, Wilkins also disclaimed any fault, insisting that he had received no notice of the Nov. 14 hearing and did not learn of the outcome until he engaged in a conversation on the morning of his declaration.
The declaration cited Code of Civil Procedure §473(b) which provides, in part:
“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
While noting that the declaration was not alluded to in a Dec. 13, 2019 request by Wilkins for an order lifting the requirement imposed on him on Nov. 14 that he enroll in a batterers’ program, which was denied, and was not invoked in his Feb. 21, 2020 motion seeking to set aside the restraining order—the order that was the subject of the appeal—Bedsworth said Wilkins “is not eligible for relief” under the mandatory provision. That provision, he wrote, “does not apply to parties representing themselves, only to ‘attorneys’ representing ‘clients.’ ”
The jurist continued:
“The purpose of the provision is to protect the client from the attorney’s fault….Moreover, mandatory relief is available only in cases of a ‘default entered by the clerk,’ a ‘resulting default judgment’ or a ‘dismissal.’ None of these happened in this case.”
Bedsworth also saw no merit in Wilkins’s contention that discretionary relief—in the absence of an attorney’s affidavit—should have been granted under §473(b). Bedsworth said:
“Ken’s argument regarding mistake and excusable neglect boils down to his lack of a law degree. He relies on numerous uncomplimentary remarks by [opposing] counsel on his various filings as evidence that he was incapable of representing himself.”
In a footnote, Bedsworth related:
“Ken refers obliquely in his opening brief to possible mental illness preventing him from representing himself, while not admitting that he is, in fact, mentally ill.”
Finding no abuse of discretion on Samiento’s part, Bedsworth declared:
“Opposing counsel’s low opinion of Ken’s abilities as an advocate does not constitute mistake or excusable neglect on his part.”
Confusion Over Date
The Nov. 14 date was set at a hearing on Oct. 23, but a written notice from the court recited a Nov. 13 hearing date—but that was followed up by a corrected notice. There was no indication in the opinion that Wilkins, confused, showed up on Nov. 13.
There was, however, an indication by Bedsworth that there was merit in Sarmiento’s conclusion that Wilkins did, actually, realize that the hearing was slated for Nov. 14. He said of Wilkins:
“While representing himself, he filed a document protesting the hearing on November 14 as too short for the purpose. He clearly knew there was going to be a hearing on the domestic violence restraining order on November 14. In early November he tried to file an ex parte application changing the date of the hearing, an application acknowledging the date of November 14.”
The case is Marriage of Wilkens, G059238.
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