MILLER J.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RID1802286 Jennifer R. Gerard, Judge. Affirmed.
Law Offices of Daniel H. Cargnelutti and Daniel H. Cargnelutti; Larry A. Basham, in pro. per., for Appellant.
Law Offices of Evan D. Williams and Evan D. Williams for Respondent.
OPINION
MILLER J.
The family court denied motions for relief (Code Civ. Proc., § 473, subd. (b))and reconsideration (§ 1008, subd. (a)) made by appellant Larry Alan Basham (Husband). Husband contends the family court erred by denying his motions and his request for a continuance. We affirm.
All subsequent statutory references will be to the Code of Civil Procedure unless otherwise indicated.
FACTS
A. BACKGROUND
Husband, and respondent Katherine Anne Basham (Wife), share two adult daughters. In 2001 the Department of Veterans Affairs (the VA) determined Husband was 10 percent disabled. In November 2021, Husband was receiving a veteran's disability payment of $144.61 per month. Also in November 2021, a judgment was entered terminating the marriage of Husband and Wife. In terminating the marriage, the family court ordered: "Monthly veteran disability allotment to be automatically direct deposited into daughter's college tuition account until her tuition is paid in full. Amount will continue to grow from it's [sic] now current rate of $144.14 as annual amount changes."
It is unclear why the amounts are inconsistent, e.g., $144.14 in the judgment and $144.61 in a declaration.
In 2022, "[Husband's] disability was reassessed and the new [disability payment] amount was determined to be $1,529.95 per month" based on the VA's finding that husband was 70 percent disabled. In May 2022 the VA's new payment amount was made retroactive to January 2022. On May 4, 2022, $5,509.24 was direct deposited into the daughter's college tuition account. Husband requested the $5,509.24 be returned to him because he was not required to deposit that amount into their daughter's account. On June 30, 2022, Husband personally deposited $144.14 into their daughter's account. The $5,509.24 was not returned to Husband, so Husband refused to deposit any more money into their daughter's account.
B. REQUEST TO ENFORCE THE JUDGMENT
On December 19, 2022, Wife requested arrears for the disability payments that were supposed to be deposited into their daughter's college tuition account. A hearing on the request was set for March 20, 2023. On March 16, 2023, Husband's attorney (Attorney) requested the hearing be rescheduled. Attorney contended he had two status conferences, in other cases, already scheduled for March 20, 2023, and he "had to move office locations by 3/01/23, which caused [Attorney] to be unable to timely file an Opposition" to Wife's request for arrears. On March 17, 2023, the family court found that Husband failed to demonstrate good cause for continuing the hearing and denied his request.
The hearing on Wife's request for arrears was held on March 20, 2023, as scheduled. Husband and Attorney appeared at the hearing. Attorney argued that Husband was obligated to direct deposit $144.14 plus any annual cost of living increases, which would be an "annual increase of about five to six percent per year." Husband contended that, when his disability percentage was reassessed and increased to 70 percent, he was not obligated to deposit all the money from that reassessment increase.
The family court found that the November 2021 order was "pretty plainly written out." The family court quoted the portion of the order that read," 'Amount will continue to grow from its now current rate of $144.14, as annual amount changes.'" The family court reasoned, "There must have been some contemplation that there was going to be a change in the amount-whether it was going to be as drastic as it appears to be, over 1,500 percent higher." The family court continued, "Clearly the amount changed drastically based on the reassessment. That appears to be addressed because it will continue to grow as the amount changes annually. I suspect that means he gets a reassessment annually. I don't have a responsive declaration from him. I don't know if that is accurate or not. I'm speculating, and I'm not going to make an order on speculation." The court ordered Husband to pay arrears of $15,616.24 at a rate of $1,000 per month.
C. MOTIONS FOR RELIEF AND RECONSIDERATION
On April 3, 2023, Attorney filed a combined motion for relief and reconsideration. In a declaration in support of the motion for relief, Attorney declared he was unable to file a written response to Wife's request for arrears "because [he] was in the process of physically moving homes and offices by 03/01/2023." Attorney contended that "the process of physically moving homes and offices by 03/01/2023 constitutes excusable neglect."
In a declaration in support of the motion for reconsideration, Husband declared that the" 'annual amount changes' as referenced in the judgment were to be 'cost of living adjustments.'" Husband explained that "separate and apart from a cost-of-living increase, is a complete re-evaluation of a veteran, for current worsening conditions and/or new conditions stemming from active service." Husband declared that he applied to be reevaluated, and the process involved various medical screenings and then approval by the VA. Husband requested the family court reconsider its order that Husband pay arrears because the parties' agreement was that Husband would pay $144.14 per month plus cost-of-living increases.
D. WIFE'S OPPOSITION
In opposing Husband's motion for relief, Wife declared that the hearing on her request for arrears was originally "set for January 23, 2023. [Husband] retained [Attorney] on January 17, 2023, and as a professional courtesy, a continuance of the January 23 hearing was agreed to so that [Husband] could file a response. The hearing was continued to March 20, 2023. No response was ever filed." Wife asserted Attorney could have filed a response anytime from January 17, 2023, to the time he had to move. Further, Wife contended Husband failed to allege new circumstances for the motion for reconsideration and noted that Husband was permitted to orally oppose Wife's request for arrears at the hearing on Wife's request.
E. HEARING
At the hearing on Husband's motions, the family court announced its tentative rulings. In regard to the motion for relief, the family court said, "I don't believe [Attorney] moving offices justifies good cause under 473." Attorney asserted that having to move his office and home at the same time "would constitute excusable neglect." The family court found that Attorney moving his home and office did not constitute excusable neglect and that the declaration in support of the motion for reconsideration was insufficient to support granting reconsideration. Therefore, both aspects of the combined motion were denied.
DISCUSSION
A. MOTION FOR RELIEF
1. MANDATORY RELIEF
Husband contends the family court erred by not granting him mandatory relief under section 473, subdivision (b). Mandatory relief pertains to defaults, default judgments, and dismissals. (§ 473, subd. (b); Huh v. Wang (2007) 158 Cal.App.4th 1406, 1414-1415.) Husband and Attorney attended the hearing on Wife's request for arrears, and Attorney orally argued in opposition to the request. Husband did not default, and nothing was dismissed. Accordingly, the mandatory relief provisions are not applicable. The family court did not err.
The statute provides, "[T]he 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." (§ 473, subd. (b).)
2. DISCRETIONARY RELIEF
Husband contends the family court erred in finding that Attorney moving out of his office and home did not constitute excusable neglect.
We apply the abuse of discretion standard of review. (County of San Bernardino v. Mancini (2022) 83 Cal.App.5th 1095, 1103.) The family court has discretion to set aside an order entered against a party due to his attorney's excusable neglect. (§ 473, subd. (b).) "Excusable neglect exists when 'a reasonably prudent person in similar circumstances might have made the same error.'" (Mancini, at p. 1103.)
"Relevant factors in assessing counsel error include: '(1) the nature of the mistake or neglect; and (2) whether counsel was otherwise diligent in investigating and pursuing the claim.' [Citation.] 'Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.' [Citation.] 'To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.'" (Huh v. Wang, supra, 158 Cal.App.4th at p. 1423.)
Attorney substituted-in as counsel for Husband on January 17, 2023. On January 17, 2023, Attorney contacted Wife's counsel seeking a continuance of the hearing on her request for arrears, which demonstrates Attorney was aware of the pending arrears request. Attorney needed the continuance so he could draft an opposition, which establishes Attorney was aware that an opposition had not yet been filed.
Wife's counsel agreed to the continuance and the hearing was moved to March 20, 2023. Husband's opposition was due "at least nine court days . . . before the hearing." (§ 1005, subd. (b).) That means Husband's opposition was due by March 7, 2023. Attorney began moving his office and home "during the last several weeks of February," and continued the move through "the first several weeks of March." That timeline establishes that Attorney had from January 17, 2023, to mid-February 2023 to draft and file the opposition. Attorney fails to explain how he was diligent during that month long period, i.e., why he did not draft and file the opposition sometime between January 17, 2023, and mid-February 2023. Because Attorney did not demonstrate diligence, the family court did not err in denying the motion for relief.
B. MOTION FOR RECONSIDERATION
Husband contends the family court erred by denying his motion for reconsideration.
A motion for reconsideration must be based on "new or different facts, circumstances, or law." (§ 1008, subd. (a).) "[T]he moving party must provide a" '" 'satisfactory explanation for the failure to produce [the new or different] evidence at an earlier time.'" '" (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) We apply the abuse of discretion standard of review. (Ibid.)
As explained ante, Attorney claimed he was unable to file an opposition because he was moving out of his office and home "during the last several weeks of February." Attorney did not explain why he failed to file the opposition between January 17, 2023, and mid-February 2023. Because there is no explanation as to why the opposition could not be filed prior to mid-February 2023, the family court did not err in denying Husband's motion for reconsideration.
C. REQUEST FOR A CONTINUANCE
Husband contends the family court erred by denying his request to continue the hearing on Wife's request for arrears. A family court may continue a hearing upon a showing of good cause. (Cal. Rules of Court, rule 5.95(d)(2)(A).) Good cause is demonstrated when a party is unable "to obtain essential testimony, documents, or other material evidence despite diligent efforts." (Cal. Rules of Court, rule 3.1332(c)(6).) As explained ante, Husband has failed to demonstrate diligence because he has not established why he was unable to file his opposition between January 17, 2023, and mid-February 2023. Because diligence was not established, good cause for the continuance was not shown. The family court did not err.
D. FAMILY COURT'S AUTHORITY
In Husband's appellant's reply brief, he raises the assertion that the family court lacked jurisdiction to award his veteran's disability payments to his daughter because such payments are not community property. We do not address issues raised for the first time in a reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)
DISPOSITION
The orders are affirmed. Respondent, Katherine Anne Basham, is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RAMIREZ P. J. RAPHAEL J.