Opinion
B317891
02-14-2023
DEWELT, LLC, Plaintiff and Respondent, v. DORENE ROBINSON et al., Defendants and Appellants.
PrimeSource Law Group, Karen McLaurin Buresh; Kassouni Law and Timothy V. Kassouni for Defendants and Appellants Dorene Robinson, Road Runner Land and Homes, LLC. Ivycrest Attorneys and Christian I. Oronsaye for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment and postjudgment order of the Superior Court of Los Angeles County No. PC058369, Melvin D. Sandvig, Judge. Reversed and remanded with directions.
PrimeSource Law Group, Karen McLaurin Buresh; Kassouni Law and Timothy V. Kassouni for Defendants and Appellants Dorene Robinson, Road Runner Land and Homes, LLC.
Ivycrest Attorneys and Christian I. Oronsaye for Plaintiff and Respondent.
PERLUSS, P. J.
Dorene Robinson and Road Runner Land and Homes, LLC (Road Runner) appeal a default judgment quieting title to real property in favor of Dewelt, LLC and a postjudgment order directing the clerk to execute a grant deed conveying the property from Road Runner to Dewelt. Robinson and Road Runner contend the judgment roll shows they had not been properly served with summons and the operative first amended complaint when their defaults were entered and the trial court thus lacked personal jurisdiction over them. In the alternative, they argue the court abused its discretion in denying their Code of Civil Procedure section 473 motion to vacate entries of their default. They also contend any orders or other proceedings based on the void entries of default should be reversed or set aside.
Statutory references are to this code.
We agree the court, at the time of entry of Road Runner's default, lacked personal jurisdiction over it and reverse the judgment quieting title in favor of Dewelt and the postjudgment order directing execution of the grant deed. However, we affirm the order denying Robinson's section 473 motion to vacate because she made a general appearance in the action before her default was entered.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint, Answer, Motion for Leave To File a First Amended Complaint and Proposed First Amended Complaint
On March 14, 2018 Erik Lassman filed a complaint against Robinson for breach of contract, intentional misrepresentation, promissory estoppel, bad faith, fraud and specific performance. Lassman alleged he and Robinson were joint owners of real property located in Val Verde, California who had agreed to sell it; Robinson breached her obligation to execute documentation necessary for its sale, requiring Lassman in 2015 to file suit against her; he and Robinson entered into an oral settlement agreement, resulting in Lassman dismissing his prior lawsuit; and Robinson breached the settlement agreement by refusing to proceed with the sale without good cause. On June 19, 2018 Lassman filed a proof of service, on Judicial Council form POS-010 ("Proof of Service of Summons"), showing Robinson had been personally served with the summons and complaint on June 17, 2018 at an address in Santa Ynez, California. In July 2018 Robinson, representing herself, filed an answer to Lassman's complaint denying many of Lassman's allegations, as well as a cross-complaint. On the first page of her answer Robinson provided the same Santa Ynez address as on Lassman's proof of service of summons.
On March 11, 2020 Lassman moved for leave to file a first amended complaint and other relief, seeking dismissal without prejudice of all causes of action in the original complaint; the addition of new causes of action for quiet title, reformation of deed and declaratory relief; and substitution of Dewelt as the plaintiff, with Lassman no longer a party to the action. The new causes of action sought to quiet title to the Val Verde property in favor of Dewelt; reform a grant deed to correct a mistake in the description of the interest in the Val Verde property being transferred from Lassman to Dewelt; and a judicial declaration of the parties' rights, duties and obligations as to the property. The proposed first amended complaint, which was attached to Lassman's motion, also added newly named defendants: (1) Road Runner; and (2) "all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiff's title, or any cloud on plaintiff's title thereto" (Unknown Persons). Robinson remained a named defendant, and the motion included a proof of service indicating it had been served by mail on March 11, 2020 on Robinson individually and as Road Runner's agent for service.
The proposed first amended complaint alleged Road Runner had erroneously been sued as Doe 1 in the original complaint. On July 6, 2020, while his motion for leave to file the first amended complaint was pending, Lassman filed a document titled "Plaintiff's Amendment to Complaint Naming Doe 1," identifying Road Runner as Doe 1 and served it by mail on Robinson in her individual capacity and as Road Runner's agent for service.
We have omitted all unnecessary capitalization of letters, underling and bold-face type in any documents quoted.
As set forth in the proposed amended pleading, the property, comprised of two lots, was sold to Lassman and Robinson's now-deceased husband Jim Robinson, who owned the property as joint tenants with rights of survivorship. In April 2011 Lassman, Dewelt's chief executive officer, transferred by grant deed his share of the joint tenancy to Dewelt. Subsequently, Jim Robinson conveyed by grant deed on or about May 23, 2011, as well as by a later June 17, 2011 corrected deed, his share of the property to Road Runner, an entity registered in the State of Nevada. Jim Robinson passed away soon after the transfer. After the transfers Dewelt and Road Runner (as the proposed amended pleading continued to allege) owned the property as joint tenants with survivorship rights. In 2013, as allegedly shown by an attached exhibit reflecting information from the Nevada Secretary of State, Road Runner had its corporate status in the State of Nevada permanently revoked. The proposed first amended complaint alleged Road Runner was thus precluded from holding any interest in the property and, if it were a human being, would be considered dead; its name had since been acquired by a third party with no relationship to either Road Runner or Robinson; and, because of the permanent revocation of Road Runner's corporate status and "the doctrine of rule of survivorship," Dewelt was the (sole) owner of the property.
Although the proposed first amended complaint referred to Road Runner's "corporate status," the exhibit actually stated Road Runner was a domestic limited liability company whose "[e]ntity [s]tatus" was permanently revoked.
The proposed first amended complaint attached exhibits including 2019 Nevada Secretary of State registration filings and other records for a new Road Runner showing that separate entity had been formed, and its articles of organization filed, in 2019, and that this new Road Runner was active and its managing member Mark Desherlia was its registered agent for service of process, with an address on Villa Vista Way in Las Vegas, Nevada. The attached exhibits showed the new Road Runner had different entity and Nevada business identification numbers from the prior, "permanently revoked" Road Runner that was formed in 2011 and that was the defendant named in the proposed first amended complaint.
The proposed amended pleading also attached as exhibits the grant deeds dated May 23, 2011 and June 17, 2011 transferring the property from Jim Robinson to Road Runner. The deeds stated the property was being transferred to a "personal LLC," of which "husband & wife & daughter are all members."
On July 27, 2020 Robinson, still acting only on her own behalf, filed an opposition to Lassman's motion. The caption page of Robinson's opposition listed her address as a post office box in Gridley, California.
The court heard argument on July 27, 2020 and granted Lassman's motion. It ordered Lassman to separately file the first amended complaint rather than rely on the copy attached to his motion. It further directed Lassman to serve the first amended complaint on the registered agent for the new Road Runner. On July 30, 2020 Dewelt and Lassman filed a notice of ruling attaching the July 27, 2020 minute order, along with a proof of service indicating the notice had been mail served on Robinson individually and as Road Runner's agent for service.
2. The Filing of the First Amended Complaint, Dewelt's Efforts at Service of Process and Entry of Robinson's and Road Runner's Default s
On July 31, 2020 Dewelt filed its first amended complaint for quiet title, reformation of deed and declaratory relief. The pleading included a proof of service indicating a copy was served by mail on July 30, 2020 on Robinson, both in her individual capacity and as Road Runner's agent for service, at the post office box in Gridley, California. A summons-which was addressed to Robinson, Road Runner and Unknown Persons and stated they were being sued by Dewelt-was also filed the same day as the first amended complaint.
On August 6, 2020 Robinson, on behalf of herself, filed a motion for reconsideration of the order granting Lassman's motion for leave to amend. Robinson's motion stated, although she had not received Lassman's motion through the mail and was not aware of it until she went online to confirm a court date, she had Lassman's attorney email the filings to her on July 15, 2020. The caption page of Robinson's motion for reconsideration listed the Gridley, California post office box as Robinson's address. On October 2, 2020 the court denied Robinson's motion.
We augment the record on our own motion, pursuant to California Rules of Court, rule 8.155(a)(1)(A), to include Robinson's August 6, 2020 motion for reconsideration and the court's October 2, 2020 minute order denying Robinson's motion.
A proof of service filed October 26, 2020 stated Dewelt's counsel served Road Runner on October 14, 2020 with the summons and complaint by mail and acknowledgment of receipt of service. Copies had been mailed to Desherlia as Road Runner's agent for service at the Villa Vista Way address in Las Vegas, Nevada-the same address as was listed for service on the new Road Runner in the Nevada Secretary of State filings included among the exhibits to the first amended complaint. The proof of service, on Judicial Council form POS-010, indicated the "Notice to the Person Served" on the summons had been completed by checking the boxes next to "on behalf of" and "corporation" pursuant to section 416.10. The box next to "defunct corporation" pursuant to section 416.20 had been left unchecked.
Section 416.10 provides the manner in which summons may be served on a corporation, and section 416.20 provides the manner in which summons may be served "on a corporation that has forfeited its charter or right to do business, or has dissolved."
Another proof of service, on Judicial Council form POS-030 and also filed October 26, 2020, stated Dewelt's counsel served Robinson on July 30, 2020 with the summons and first amended complaint by mailing them to her at the same post office box in Gridley, California as Robinson had previously indicated was her address, including in her opposition to Lassman's motion for leave to file a first amended complaint. The proof of service contained no indication Robinson had been served on behalf of Road Runner.
On October 26, 2020 Dewelt filed a request for entry of Robinson's default, and the court clerk entered the requested default that same day. Four days later Robinson, on behalf of herself, filed a one-sentence opposition, captioned as "Opposition to Erik L. Lasman [sic] Request for Entry of Default Judgement," in which she stated that summons had not been served. The caption page of her opposition set forth the Gridley, California post office box as Robinson's address.
On December 4, 2020 the court clerk filed a notice informing Dewelt its October 26, 2020 proof of service failed to indicate the first amended complaint had been served on Road Runner. Three days later Dewelt filed an amended proof of service stating its counsel served Road Runner on October 14, 2020 with an amended summons and the first amended complaint by mail and acknowledgment of receipt of service. The proof of service was otherwise substantially the same as the initial proof of service on Road Runner filed on October 26, 2020. On December 7, 2020 Dewelt filed a request for entry of Road Runner's default, and the court clerk entered the requested default that same day.
3. The Motions To Set Aside and/or Vacate Default
a. The December 24, 2020 motion
On December 24, 2020 Robinson filed a document with "Motion To Set Aside/Vacate Default" handwritten in all capital letters near the top of the caption page. Underneath a printed heading titled "Opposition to Entry of Default Judgement," the document stated Robinson, individually and as manager of "Road Runner LLC," opposed the "motion for default judgement filed 12/7/20, alleged service to Road Runner LLC, and related factors alleged in document filed 7/31/2020." The December 24, 2020 document, signed by Robinson "In Proper Person" (sic), contained no legal argument as to why any default should be set aside or vacated and did not cite to any legal authorities. It included an attachment titled "General Denial," in which Robinson stated she denied generally and specifically "each and every alleged cause of action contained in Plaintiff's Motion for Default Judgment and all filings prior to and following complaint and motions," as well as Robinson's one-page declaration, which in turn attached copies of deeds and other exhibits.
On December 30, 2020 Dewelt filed an opposition to the motion to set aside/vacate default. Dewelt argued a corporation cannot appear in court in propria persona or through an officer or agent who is not an attorney and Robinson thus could not represent Road Runner and was engaging in the unauthorized practice of law.
On February 11, 2021 Robinson and Road Runner, both through their attorney Richard Miller, filed an "Amended Answer" to the first amended complaint. Miller also later filed a supplemental declaration dated March 25, 2021 expressly in support of the motion to vacate Road Runner's default. Attaching as exhibit A printouts of business entity search results from the Nevada Secretary of State website, Miller in his supplemental declaration explained the exhibit showed there were two different entities named Road Runner, one with an active status and the other dissolved. The Road Runner with an active entity status and a certain Nevada business identification number had the Villa Vista Way address in Las Vegas as the location of its registered agent and managing member, and Desherlia as its registered agent and managing member. The other Road Runner, which had an entity status of "dissolved," in contrast, had a different Nevada business identification number and Robinson as a manager at a different address in Las Vegas; neither Desherlia nor the Villa Vista Way address was listed in the information for the dissolved Road Runner. Miller, attaching as exhibit B copies of the proof of service filed October 26, 2020 and the amended proof of service filed December 7, 2020 showing mail service at the Villa Vista Way address of the summons, complaint, amended summons and first amended complaint on Desherlia as Road Runner's agent, stated defendant Road Runner, which had Robinson as manager, had not been served and entry of default against defendant Road Runner was thus improper. He further pointed out an amended answer had been filed on February 11, 2021 on behalf of defendants Road Runner and Robinson.
On April 19, 2021 the court placed Robinson's December 24, 2020 motion to set aside/vacate default off calendar. The court first stated the requested relief was not clearly set forth in the notice of motion and pointed to the discrepancy between the handwritten title "Motion To Set Aside/Vacate Default" on the motion's first page and its later indication it was an opposition to a motion for default judgment. Because Robinson's motion referred to the December 7, 2020 default, the court continued, her motion appeared to seek an order vacating the default entered against Road Runner on December 7, 2020. Observing no argument or authorities in support of the requested relief, the court also concluded the motion failed to set forth a basis for relief. Stating the motion had been filed and prepared by Robinson, who did not appear to the court to be an attorney, the court additionally determined Robinson could not represent Road Runner.
In its April 19, 2021 minute order the court characterized Miller's supplemental declaration as seeming to argue the default against Road Runner should be set aside because the entity had not been properly served with the summons and complaint, and determined the argument was improperly contained in the declaration. Focusing on the reference in Miller's supplemental declaration to the filing of an amended answer on February 11, 2021 on behalf of defendants Road Runner and Robinson, the court stated both defendants had been in default at the time the amended answer to the first amended complaint had been filed. Explaining the amended answer should thus not have been accepted for filing, the court struck defendants Road Runner and Robinson's amended answer to the first amended complaint, but stated the striking of the amended answer did not preclude defendants Road Runner and Robinson from filing future motions to set aside the defaults accompanied by proposed answers. The court also observed defense counsel represented new motions to vacate defaults would be filed.
b. The April 28, 2021 motion
On April 28, 2021, pursuant to section 473, subdivisions (b) and (d), defendants Road Runner and Robinson, through Miller, filed a "Motion To Set Aside and Vacate Default." Arguing the "default . . . entered against Defendants" was due to mistake, excusable neglect, inadvertence and/or surprise, they contended Robinson, although having timely filed an answer to the initial complaint, had been unaware a first amended complaint requiring a new answer had been filed and was thus surprised to learn default had been entered. They also asserted Dewelt had served a different Road Runner from the defendant Road Runner of which Robinson was a manager and member and pointed out that Dewelt's proof of service reflected service on Desherlia, not on the agent for service of process for Robinson's entity with the same name. They did not, however, expressly argue any default entry should be set aside as void under section 473, subdivision (d); rather, in their memorandum of points and authorities, they only asserted, and cited legal authorities showing, section 473, subdivisions (b) and (d), authorized the court to vacate a ruling "due to mistake, inadvertence, surprise or excusable neglect and clerical error." They requested the default entered against them be vacated and their amended answer, originally filed February 11, 2021 but subsequently struck by the court and a copy of which they attached to their April 28, 2021 motion, be deemed filed.
Section 473, subdivision (b), provides a party may seek relief on the grounds of "mistake, inadvertence, surprise, or excusable neglect."
Section 473, subdivision (d), provides, "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
Road Runner and Robinson supported their April 28, 2021 motion with Miller's declaration dated April 27, 2021, which was substantially the same, including exhibits, as his March 25, 2021 supplemental declaration in support of the December 24, 2020 motion. They also supported their motion with Robinson's declaration dated April 27, 2021, in which she averred she had no knowledge of being served with Dewelt's first amended complaint; was never served with the first amended complaint as the manager of Road Runner, which was in "winding up" status; was surprised to discover default had been entered on or about December 7, 2020; and had promptly filed a motion to set aside and vacate the default. She further stated she later learned there was another Nevada limited liability company with the same Road Runner name, but with a manager named Desherlia as its agent for service of process, and she had no relationship with either Desherlia or his company.
Robinson did not aver she had been unaware a first amended complaint requiring a new answer had been filed.
Dewelt filed an opposition on July 26, 2021 to Road Runner and Robinson's motion. It contended no facts or evidence had been presented to support a finding of mistake, inadvertence, surprise or excusable neglect. It also argued, to the extent the motion sought to vacate the default entered against Robinson on October 26, 2020, the motion, filed more than six months later, was untimely. As for the default entered against Road Runner on December 7, 2020, Dewelt asserted that the Road Runner owned and managed by Robinson-which was not to be confused with "the active Road Runner [that] is not owned by the Defendants in this case"-was a corporation with a dissolved or permanently revoked status and thus no longer existed and could neither seek to set aside the default nor present a defense to the action. It characterized as nonsensical the suggestion that, for Dewelt to effect service of summons, the agent of "a permanently revoked" corporation must be served, rather than the agent for service of process for an active corporation.
The court denied Road Runner and Robinson's motion to set aside and vacate default on August 18, 2021. Although finding unclear which default or defaults were addressed by the motion, the court presumed, because both Road Runner and Robinson were the moving parties, they sought to set aside both defaults. Observing the motion had not been filed and served until April 28, 2021, the court first determined it was untimely to the extent it sought to vacate the October 26, 2020 default against Robinson. Even if the motion had been timely, the court continued, Robinson had failed to establish the default against her was due to mistake, inadvertence, surprise or excusable neglect. After summarizing various procedural facts, including Robinson's appearance at the hearing at which the court granted Lassman's motion for leave to amend complaint and her filing a motion for reconsideration of the order granting leave to amend, the court stated Robinson's declaration that she had no knowledge of being served with the first amended complaint was "not supported by the evidence," essentially finding her assertion not credible.
As for the December 7, 2020 default against Road Runner, the court stated it was not clear whether Robinson and Road Runner were claiming the default was due to mistake, inadvertence, surprise or excusable neglect under section 473, subdivision (b), or clerical error under section 473, subdivision (d). According to the court, in granting the motion for leave to amend on July 27, 2020, the court had ordered Dewelt to serve the new Road Runner's agent for service of process to ensure notice of the action to any party possibly subject to a judgment because at the time it could not be determined if the new Road Runner had any connection to the claims in the action. The court also found the Road Runner for which Robinson was the manager clearly had notice of the action and the first amended complaint through service of the motion for leave to amend, the notice of ruling and the first amended complaint on Robinson individually and as Road Runner's agent for service. Thus, the court concluded, Road Runner and Robinson failed to establish Road Runner's default should be set aside under section 473, subdivision (b) or (d). The court then scheduled a default prove-up hearing.
4. The Default Prove-up Hearing, Default Judgment and November 4, 2021 Postjudgment Order
For the default prove-up hearing Dewelt filed Lassman's declaration and supplemental declaration. Robinson on her own behalf filed her declaration.
Lassman's declaration included the statement defendant Road Runner had been dissolved or had its corporate status permanently revoked by the Nevada Secretary of State. Robinson's declaration included her statement the Road Runner that was a party to the action was still a legal entity in winding-up status with the rights of "transfer and litigation" but had not been served; rather, the wrong Road Runner (that is, the new Road Runner) in Nevada, which was not a party to the action, had been served. She attached a variety of documents to her declaration, including the Articles of Dissolution for the defendant Road Runner (entity number E0294372011-4) and a document with the letterhead of the Office of the Secretary of State of the State of Nevada indicating those articles had been filed on January 11, 2021.
Miller did not appear at the default prove-up hearing on October 25, 2021 on behalf of Road Runner and Robinson. Robinson told the court Miller was at another courthouse and unable to appear. The court, however, had not received any communication from Miller or his office regarding his nonappearance at the prove-up hearing.
After hearing testimony and considering the evidence presented by Dewelt and Robinson, the court took the matter under submission. Later, the court found "judgment for Plaintiff Erik L. Lassman [sic] and against Defendants Dorene Robinson and Roadrunner Land & Homes, LLC on Plaintiff's First Amended Complaint" and ordered the submission of a proposed judgment, including a list of admitted exhibits.
The October 25, 2021 minute order erroneously referred to the plaintiff as Lassman.
On October 28, 2021 the judgment, which referred to the October 25, 2021 default prove-up hearing, was filed. It provided title to the property was "hereby quieted in favor of the Plaintiff Dewelt, LLC and against all Defendants including anyone claiming rights to the subject property"; reformed the grant deed between Lassman and Dewelt to indicate the interest assigned and transferred by Lassman to Dewelt was Lots 272 and 275, not only Lot 275; and attached the exhibits from Lassman's declarations, which, as the judgment stated, were admitted into evidence and formed part of the judgment.
On November 4, 2021 a postjudgment order bearing the court's electronic signature was filed. It ordered the clerk to execute an attached grant deed, which provided, for valuable consideration, Road Runner "hereby grant[s] to" Dewelt the property.
DISCUSSION
1. Robinson and Road Runner Timely Filed Their Notice of Appeal
Robinson and Road Runner on December 27, 2021 timely filed their notice of appeal from the court's October 28, 2021 default judgment and its November 4, 2021 postjudgment order. Dewelt's contention the notice was untimely because it was filed more than 60 days from the August 18, 2021 denial of Robinson and Road Runner's motion to set aside and vacate default misapprehends governing law: It is the default judgment that is appealable, not an earlier order denying a motion to vacate the default. (See, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 ["the order denying the motion to vacate the default is not independently appealable"; "[h]owever, there is authority for the view that it may be reviewed on an appeal from the judgment, as was noticed here"]; Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1465 ["[t]he order denying Viguri's motion to vacate default- made before entry of the default judgment-is not independently appealable"].)
Dewelt's reliance on Jonathan Neil & Associates, Inc. v. Jones (2006) 138 Cal.App.4th 1481, 1487 to argue otherwise is misplaced. That case involved an order denying a motion to vacate the renewal of judgment, a postjudgment order appealable under section 904.1, subdivision (a)(2). The court's August 18, 2021 order was made prior to entry of judgment and is properly reviewed on appeal from the judgment pursuant to section 906.
2. Dewelt's Failure To Serve Summons on Road Runner Requires Reversal of the Judgment and Postjudgment Order
a. Governing law
"Although the term 'jurisdiction' is sometimes used as if it had a single meaning, we have long recognized two different ways in which a court may lack jurisdiction. [Citation.] A court lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter or the parties, or when it lacks any power to hear or determine the case. [Citation.] If a court lacks such '"fundamental"' jurisdiction, its ruling is void." (People v. Ford (2015) 61 Cal.4th 282, 286; accord, People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660; see In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 ["[a] court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable"].) "A claim based on a lack of fundamental jurisdiction may be raised for the first time on appeal." (Ford, at p. 286; see Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1050 ["questions of jurisdiction are never waived and may be raised for the first time on appeal"].)
"Even when a court has fundamental jurisdiction, however, the Constitution, a statute, or relevant case law may constrain the court to act only in a particular manner, or subject to certain limitations. . . . When a trial court has fundamental jurisdiction but fails to act in the manner prescribed, it is said to have acted 'in excess of its jurisdiction.' [Citation.] Because an ordinary act in excess of jurisdiction does not negate a court's fundamental jurisdiction to hear the matter altogether [citation], such a ruling is treated as valid until set aside. [Citation.] A party may be precluded from seeking to set aside such a ruling because of waiver, estoppel, or the passage of time." (People v. Ford, supra, 61 Cal.4th at pp. 286-287 ; accord, People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 661 ["When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable"; ["[t]hat is, its act or judgment is valid until it is set aside"].)
There is no time limit to challenge a judgment that is void on its face. (See Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021; OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326 (OC Interior Services); Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440; see also Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761 [a challenge to a default "that is void on the face of the record when entered is subject to challenge at any time irrespective of lack of diligence in seeking to set it aside within the six-month period of section 473"].) "To prove that the judgment is void [on its face], the party challenging the judgment is [generally] limited to the judgment roll, i.e., no extrinsic evidence is allowed." (OC Interior Services, at p. 1327; accord, Tearlach Resources Limited v. Western States Internat., Inc. (2013) 219 Cal.App.4th 773, 779.) However, other than in certain types of collateral attacks on the judgment, an exception exists: "[I]f a party admits facts showing that a judgment is void, or allows such facts to be established without opposition, then, as a question of law, a court must treat the judgment as void upon its face." (OC Interior Services, at p. 1328; see Phelan v. Superior Court of San Francisco (1950) 35 Cal.2d 363, 372-373 ["in determining whether the order is void on its face we are limited to a consideration of matters which appear in the judgment roll or are admitted by the parties"].)
"What the judgment roll consists of differs depending on whether any defendant answered the complaint." (OC Interior Services, supra, 7 Cal.App.5th at p. 1328, fn. 2.) "In case the complaint is not answered by any defendant," section 670 defines "judgment roll" as including "the summons, with the affidavit or proof of service; the complaint; the request for entry of default with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment." (§ 670, subd. (a); see Kremerman v. White (2021) 71 Cal.App.5th 358, 370 [the judgment roll consists of papers set forth in section 670, subdivision (a), "[w]hen a default judgment has been taken"]; OC Interior Services, at p. 1328, fn. 2 [section 670, subdivision (a)'s definition of "judgment roll" applies "[i]n default situations"].)
Section 670, subdivision (b), provides that, "[i]n all other cases," the judgment roll consists of the pleadings; orders striking out any pleading in whole or in part; a copy of the jury's verdict, the court's statement of decision, or the referee's finding; a copy of any order made on demurrer or relating to a change of parties; and a copy of the judgment. Subdivision (b) further provides, if the action has two or more defendants and any defendant has allowed judgment to pass by default, the judgment roll also includes the summons, with proof of its service, on the defendant, and, if the defaulting defendant be served by publication, then the affidavit for publication and the order directing the publication of the summons. (§ 670, subd. (b).)
A default judgment is void for lack of personal jurisdiction if the defendant has not been served with the summons and complaint in accordance with the statutory service requirements. (See Ellard v. Conway (2001) 94 Cal.App.4th 540, 544; Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229; see also Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439 ["[i]n the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant"].) "When a defendant challenges the court's personal jurisdiction on the ground of improper service of process 'the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.'" (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) The filing of a proof of service creates a rebuttable presumption that service was properly effected, but only if that proof of service conforms to the statutory requirements. (Dill, at pp. 1442-1444.)
b. The trial court had jurisdiction over Robinson in her individual capacity when her default was entered
Relying on authority that a judgment void on its face is subject to attack at any time, Robinson asserts nothing in the judgment roll shows she was served with a summons on the first amended complaint (as opposed to the initial complaint) and the form used for proof of the purported service of summons and the first amended complaint on her-the proof of service filed October 26, 2020 on Judicial Council form POS-030-expressly stated, "Do not use this Proof of Service to show service of a Summons and Complaint." She also contends, although that proof of service indicated she was served with the first amended complaint by mail to a post office box, there was no proof she received the amended pleading and, moreover, it was unclear why Dewelt mailed the documents to a post office box rather than the address in Santa Ynez, California used when serving the original pleading and included on her answer to the initial complaint.
Although Dewelt asserts Robinson's section 473, subdivision (b), motion, brought more than six months after entry of her default, was untimely and that she forfeited her defective service of summons arguments not raised in the trial court, a judgment void on its face is subject to direct or collateral attack at any time, including a direct attack for the first time on appeal. (See, e.g., OC Interior Services, supra, 7 Cal.App.5th at pp. 1327-1328.)
As discussed, Robinson's own filings indicated the Gridley post office box was an address she began to use.
As Robinson acknowledges, however, before the complaint had been amended and her default entered for failure to respond to the amended pleading, Robinson had not only been served a copy of the initial complaint and the summons but also answered that initial pleading. Accordingly, even if nothing in the judgment roll indicates Robinson was served with a summons on the first amended complaint, the trial court had personal jurisdiction over her at the time her default was entered because she had generally appeared in the action. (See Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 441 ["[i]t is undoubtedly true that a defendant need only be served with summons once and that service of an amended complaint by mail under Code of Civil Procedure section 1012 is sufficient where the defendant has made an appearance in the action," fn. omitted]; Judicial Council of Cal., com., West's Ann. Code Civ. Proc. (2023 ed.) foll. § 412.10 ["Once jurisdiction over a defendant is obtained by service of a copy of the summons and a copy of the complaint, amendment of the complaint does not require either a new summons or a new service of summons upon him. The amended complaint alone is served, usually upon his attorney"]; see also §§ 410.50 ["the court in which an action is pending has jurisdiction over a party from the time summons is served on him"; "[a] general appearance by a party is equivalent to personal service of summons on such party"; "[j]urisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action"], 417.30 [requiring proof of service of summons to be filed unless the defendant has previously made a general appearance].)
The October 26, 2020 proof of service (filed the same day as both Dewelt's request for entry of Robinson's default and the clerk's entry of that default) stated the summons and first amended complaint were served on Robinson on July 30, 2020, but the summons providing notice to Robinson that she was being sued by Dewelt (as opposed to Lassman) was dated July 31, 2020.
"'A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.'" (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.) "The statutory list of acts constituting an appearance ([ ] § 1014 [filing an answer, demurrer, motion to strike, etc.]) is not exclusive; 'rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person. [Citation.] What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.'" (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147; see Fireman's Fund Ins. Co., at p. 1145 ["'An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections. [Citations.]' [Citation.] Filing an answer on the merits constitutes a general appearance"].)
Robinson provides no legal authority to support-and thus forfeited-her arguments, raised in the appellate reply brief, that mail service on Robinson of the first amended complaint was defective, including her contention Dewelt was required to submit proof of her receipt of the amended pleading, not just a proof of service on her. (See Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 733, 786 ["issues not addressed as error in a party's opening brief with legal analysis and citation to authority are forfeited"]; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["[a]n appellant must provide an argument and legal authority to support his contentions"; "[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"]; see also Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [appellate court's review limited to issues that have been adequately raised and supported in appellant's brief].)
Moreover, the contention there was no proof Robinson ever received the amended pleading ignores her August 6, 2020 motion for reconsideration, which confirmed she had received a copy of the proposed first amended complaint on July 15, 2020 at her request; her July 27, 2020 opposition to the motion for leave to file that amended pleading, a motion that had attached the proposed first amended complaint; and the trial court's July 27, 2020 minute order stating Robinson had appeared for the hearing at which the court granted the motion for leave to file the amended pleading. (Cf. Bristol Convalescent Hospital v. Stone (1968) 258 Cal.App.2d 848, 865 ["[w]e are of opinion that the amended complaint was effectively served on counsel for defendants by mailing it on May 5, although the amended complaint was not filed in the clerk's office until May 6"]; Hinds v. Superior Court of Los Angeles (1924) 65 Cal.App. 223, 226 [service of the proposed amended complaint at the time of giving notice of an application to the court for permission to file the amended complaint constitutes sufficient service on a defendant whose counsel was present at the hearing].)
Finally, in support of her alternate argument the court abused its discretion in denying her motion for relief from default under section 473, Robinson cites the rubric that courts favor a hearing on the merits and relies on her contention she had not been properly served with summons on the first amended complaint. As discussed, that argument fails. Moreover, Robinson's April 28, 2021 motion to vacate default was not filed within six months of the October 26, 2020 entry of default, as required by section 473, subdivision (b). (See Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 ["A party seeking relief under section 473(b) must file the motion within a reasonable time but not longer than six months after the judgment or dismissal has been entered. This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed"].)
c. The court lacked jurisdiction over defendant Road Runner when its default was entered
Although we reject Robinson's challenge to the court's jurisdiction over her in her individual capacity, we reverse the default judgment quieting title in favor of Dewelt and the related postjudgment order directing execution of documents to effect that judgment because the court lacked personal jurisdiction over Road Runner, a necessary party to this quiet title action (see § 764.010 [before entering judgment in any quiet title action, the court must "examine into and determine the plaintiff's title against the claims of all the defendants"]; see also § 762.010 [plaintiff in a quiet title action must name as defendants "the persons having adverse claims to the title of the plaintiff against which a determination is sought"]), when its default was entered.
As discussed, Dewelt's first amended complaint alleged that defendant Road Runner's Nevada corporate status was permanently revoked in 2013; defendant Road Runner was thus precluded from holding any interest in the property and would be considered "dead"; and Dewelt, having held the property with defendant Road Runner under a joint tenancy with rights of survivorship, was entitled to quiet title to the property. The first amended complaint attached exhibits to support these allegations, including the 2019 registration for the new Road Runner.
For purposes of the judgment roll, the complaint includes its exhibits. (See, e.g., Clark v. Beyrle (1911) 160 Cal. 306, 311, 313; Kremerman v. White (2021) 71 Cal.App.5th 358, 373.)
Although both the October 26, 2020 proof of service of summons and the December 7, 2020 amended proof of service of summons stated the party served was defendant Road Runner, any presumption of proper service on defendant Road Runner was fully rebutted by the details of those proofs of service and the allegations and exhibits of Dewelt's amended complaint. Thus, despite the first amended complaint's additional allegations and exhibits stating that the new Road Runner, a third party with an active entity status and whose sole member and agent for service of process was Desherlia, had no relationship to the "dead" defendant Road Runner with the permanently revoked entity status, both proofs of service showed summons had been served on Desherlia as the agent for "Road Runner Land & Homes, LLC" at the Valley Vista Way address in Nevada, and both proofs of service checked the box indicating Desherlia had been served on behalf of a corporation-rather than a defunct corporation, the box for which had been left unchecked. Nothing in the record shows Dewelt carried its burden of establishing service on Desherlia effected service on defendant Road Runner. (See, e.g., Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at pp. 1437-1439 [record did not establish plaintiff substantially complied with requirements for service of process; "even assuming that Warner is an agent of Strata, there is no evidence that Warner is authorized to accept service of process, as required by section 416.10"].) Indeed, in its July 26, 2021 opposition to the April 2021 motion to vacate default, Dewelt admitted it had served the new Road Runner unaffiliated with the defendants, rather than defendant Road Runner, with summons.
Because the judgment roll shows the December 7, 2020 entry of default against defendant Road Runner was based on service of summons on the new Road Runner, the default entry as to it was void on its face for lack of personal jurisdiction-a challenge properly considered for the first time on appeal. (See, e.g., Plotitsa v. Superior Court, supra, 140 Cal.App.3d at p. 761; see also OC Interior Services, supra, 7 Cal.App.5th at p. 1330 [a judgment or order "absolutely void may be attacked anywhere, directly or collaterally whenever it presents itself;" "[i]t is simply a nullity, and can be neither a basis nor evidence of any right whatever"; "[b]eing worthless in itself, all proceedings founded upon it are equally worthless," and "[i]t neither binds nor bars any one," cleaned up].)
Relying on Walker v. Dorn (1966) 240 Cal.App.2d 118, Dewelt argues Road Runner and Robinson's filing of their section 473, subdivision (b), motion constituted a judicial admission that defendant Road Runner had been properly served. Whatever other flaws may be reflected in that argument, here, the section 473 motion and supporting declarations consistently contended a different Road Runner, not defendant Road Runner, had been served, so filing of the section 473 motion neither constituted nor contained any admission otherwise.
We reverse the judgment and November 4, 2021 postjudgment order, with instructions to the trial court to vacate entry of Road Runner's default and set aside any action by the court clerk to execute the grant deed attached to the postjudgment order. (See, e.g., Moore v. Kaufman (2010) 189 Cal.App.4th 604, 616 ["[b]ecause the judgment is void as to Diaz, subsequent orders purporting to enforce the judgment against her, such as the order that she answer questions at the judgment debtor examination, are likewise void"].)
DISPOSITION
The trial court's October 28, 2021 judgment and November 4, 2021 postjudgment order are reversed. The case is remanded with directions to the trial court to (i) vacate the entry of Road Runner's default; and (ii) set aside any action by the court clerk to execute the grant deed attached to the postjudgment order.
Road Runner is to recover its costs on appeal. Robinson and Dewelt are to bear their own costs.
We concur: SEGAL, J., FEUER, J.