Opinion
F085523
09-20-2023
MATT FRYER, Plaintiff and Respondent, v. TODD ROBBEN, Defendant and Appellant.
Todd Robben, in pro. per., for Defendant and Appellant. Yoka | Smith, Walter M. Yoka, Chad Chen, and Shauna W. Avrith for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tuolumne County No. CV64813 Philip A. Pimentel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Todd Robben, in pro. per., for Defendant and Appellant.
Yoka | Smith, Walter M. Yoka, Chad Chen, and Shauna W. Avrith for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
Matt Fryer, who in his position as Director of Operations for Waste Management, Inc.'s NorCal-Nevada Area exercised oversight of operations and management of Cal Sierra Disposal, obtained a civil harassment restraining order (Code Civ. Proc., § 527.6) against former Cal Sierra Disposal employee, Todd Robben. Robben contends the order must be set aside because the trial court lacked personal and subject matter jurisdiction over him. Finding no merit to Robben's arguments, we affirm.
Undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Fryer filed a request for civil harassment restraining orders against Robben on September 19, 2022. Fryer and his counsel, Chad Chen, submitted sworn declarations stating facts in support of the requested relief. The following day, the trial court set the matter for hearing on October 14 and granted a temporary restraining order pending the hearing.
Unless otherwise designated, all references to dates are to dates in the year 2022.
The trial court ordered Fryer to personally serve Robben with the court's file-stamped copy of the notice of court hearing (Judicial Council Form CH-109) at least five days before the hearing, together with the following documents: (1) CH-100, request for civil harassment restraining orders (file stamped); (2) CH-110, temporary restraining order; (3) CH-120, response to request for civil harassment restraining orders (blank form); (4) CH-120-INFO, "How Can I Respond to a Request for Civil Harassment Restraining Orders?"; and (5) CH-250, proof of service by mail (blank form) (collectively, the restraining order documents).
Because Fryer was unable to effect timely personal service of the restraining order documents on Robben, Fryer filed a request to continue the court hearing on October 7. The trial court granted the request and continued the hearing to November 4 at 10:30 a.m., with the temporary restraining order to remain in effect to the hearing date. The trial court ordered Fryer to personally serve Robben with the restraining order documents by October 30.
On November 1, Fryer filed a proof of personal service, in which Nils Grevillius declared under penalty of perjury that he personally served Robben with the restraining order documents at "Frosty's" in Jamestown, California, at "10:51 p.m." on October 30.
On November 3, Robben filed a motion to quash the service of summons, which stated the hearing date was November 4 at 11:00 a.m. Robben asserted he had been "improperly served with a copy of the Summons and Complaint" and that Fryer "did not personally serve the Respondent at all." Robben argued because the "lack of service" was improper, the court lacked personal jurisdiction over him, and the action should be dismissed. He also asserted the "Complaint fails to state a cause of action" for civil harassment, and it should be stricken as a "Strategic Lawsuit Against Public Participation." The motion was not accompanied by a declaration or other supporting evidence, although above his signature on the motion, he stated it was "Signed under the penalty of perjury."
Robben did not appear at the November 4 hearing on Fryer's petition. Fryer and his counsel, Chen, appeared at the hearing and stipulated to Commissioner Philip A. Pimentel acting as Judge Pro Tem. According to the minute order of the hearing, the trial court noted it received Robben's motion to quash that "was submitted yesterday afternoon," and Chen stated he "was served a copy by email last night." The trial court noted the proof of service for the restraining order documents was valid, and Robben was not present. After the trial court confirmed the clerks did not receive a request to appear remotely, the trial court ordered the motion denied and stricken, and granted the restraining order by default. The trial court issued a three-year restraining order, which Fryer served on Robben by mail.
On November 14, Robben filed an ex parte motion to reconsider the trial court's entry of the civil harassment restraining order pursuant to sections 1008 and 473. Robben claimed he was not personally served with the restraining order documents, the proof of service was fraudulent as he was never served at the "Jamestown Frosty" on October 30, or any other time, the commissioner lacked personal jurisdiction over him, and he did not consent to the commissioner hearing the case. Robben did not explain how he received notice of the hearing other than to state a clerk named Jason told him the hearing was at 11:00 a.m. Other than signing the motion "under the penalty of perjury," the motion was not accompanied by a declaration or other supporting evidence.
The court clerk returned the motion to Robben unprocessed because it did not comply with the California Rules of Court, including the rule that requires a proposed order to accompany an ex parte application. Robben was asked to resubmit the documents once the corrections or additions were made.
On November 18, the court clerk issued a notice to Robben that a "Proposed Order After Ex Parte Hearing" was being returned to him unprocessed for the following reason: "After Commissioner Pimentel's review of your ex parte application and order, he is declining to take action on any ex parte applications or noticed motions until the petition for writ of mandate (CV64908) has been addressed by the court."
On November 23, Fryer filed and served an amended proof of service, in which Grevillius declared he personally served Robben with the restraining order documents at "Frosty's" in Jamestown on October 30, at "10:51 a.m." In an accompanying declaration, Grevillius stated he was a private investigator retained by a law firm to attempt personal service of the restraining order documents on Robben. Grevillius explained he personally served the documents on Robben outside the Frosty restaurant located on Main Street in Jamestown on October 30 at 10:51 a.m.; the original proof of service incorrectly stated he served Robben at 10:51 p.m.; and he "did not notice the typographical error" when he signed the proof of service, but the amended proof of service showed the correct time.
Grevillius also explained the efforts he made to locate and serve Robben. Grevillius stated he was on Main Street in Jamestown at about 10:44 a.m. on October 30 when he saw Robben exit a pickup truck, which drove off. Grevillius exited his vehicle and called to Robben. When Grevillius told Robben he had "papers" for him, Robben responded he did not want them and hugged himself so that his hands were not available. Grevillius dropped the papers at Robben's feet and said, "You've been served." Robben stated that was not "good service" and walked away from the papers. Grevillius asserted "[t]he Frosty restaurant was the closest identifiable building to where I served Mr. Robben on Main Street."
Robben filed a petition for writ of mandate and request for stay in this court on November 28 in Robben v. Superior Court (Dec. 13, 2022, F085288). We denied the petition and stay request without prejudice on December 13. Robben filed a notice of appeal in the superior court on December 28. Robben filed a second petition for writ of mandate in this court on December 19 in Robben v. Superior Court (Mar. 2, 2023, F085415), which we summarily denied on March 2, 2023. The California Supreme Court denied Robben's petition for review on April 26, 2023.
Fryer filed a request to take judicial notice of the court dockets in five cases involving Robben, a notice of entry of judgment in another case, and a complaint Robben filed with the California Department of Consumer Affairs, Bureau of Security and Investigative Services, as well as the department's response. We grant the request to take judicial notice of the court dockets and court-filed documents, labeled Exhibits 1 through 6, but deny the request as to the Department of Consumer Affairs documents labeled Exhibits 7 and 8, as they are irrelevant to our decision. (Evid. Code, §§ 452, 459.)
DISCUSSION
Robben asserts the civil harassment restraining order must be set aside because the trial court lacked personal and subject matter jurisdiction over him and the case. Specifically, he contends: (1) he was never properly served with the restraining order documents; (2) the proof of service was fraudulent; and (3) he missed the hearing because a court clerk gave him the incorrect time, thereby depriving him of due process. Robben further asserts the commissioner lacked jurisdiction over the matter because he is not a licensed attorney and Robben did not consent to him acting as a temporary judge.
The Issuance of the Restraining Order
Section 527.6, subdivision (m)(1), requires that a respondent to a request for a civil harassment restraining order be "personally served with a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition," at least five days before the hearing. The trial court found the proof of service, which showed Robben was personally served at the Frosty's in Jamestown, California, at 10:51 p.m. on October 30, 2022, was valid.
Because Robben was not present and did not request to appear remotely, the trial court proceeded with the hearing, denied and struck the motion to quash, and granted the restraining order by default. While Robben claimed in his motion to quash that he was not personally served with the documents, he did not present any evidence to show the proof of service was invalid or that he was not personally served. There is no basis to disturb the trial court's conclusion that Robben was personally served with the restraining order documents or to disturb the issuance of the restraining order. The restraining order documents advised Robben if he was personally served with the temporary restraining order and notice of court hearing, but he did not appear at the hearing, a restraining order that is the same as the temporary restraining order will be served on him by mail.
Although Robben purported to verify the motion to quash by stating it was "[s]igned under the penalty of perjury," he failed to comply with section 2015.5, which required Robben to state the date and place of execution and, if executed within this state, state "I certify (or declare) under penalty of perjury that the foregoing is true and correct. Failure to comply with these requirements renders any purported verification invalid. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 ["courts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form"]; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217 [court refused to consider declaration that failed to comply with § 2015.5 as it had "no evidentiary value"].) Robben asserts in his reply brief that he complied with section 446 in verifying the motion to quash, and that section applies to verification of pleadings, not verification of declarations, which must comply with section 2015.5.
Robben contends his constitutional rights were violated because a temporary judge presided over the hearing in the absence of his stipulation. We disagree, as Robben was personally and timely served with notice of the hearing but failed to appear.
Article VI, section 21 of the California Constitution provides: "On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." (Cal. Const., art. VI, § 21; see § 259, subd. (d) ["every court commissioner" has the power to "[a]ct as a temporary judge when otherwise qualified so to act and when appointed for that purpose, on stipulation of the parties litigant"].) Having notice of the hearing, Robben's failure to appear meant he was not a "party litigant" within the meaning of article VI, section 21, and Fryer's stipulation was sufficient to empower the commissioner to act as a temporary judge. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 6-10 [petitioner's failure to appear at the hearing denied him "party litigant" status and permitted the temporary judge to act in the absence of petitioner's stipulation]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1089-1090 [temporary judge may act without consent of absent party who has notice of the proceeding].)
Robben also contends the commissioner was not qualified to act as a temporary judge because he is not an active licensee of the California State Bar. As we have stated, a subordinate judicial officer such as a court commissioner is required to be "a member of the State Bar." (Cal. Const., art. VI, § 21; § 259, subd. (d); Cal. Rules of Court, rule 10.701(b).) Robben asserts the commissioner is an inactive licensee of the State Bar and contends that means he is no longer a member of the State Bar.
The term "member of the State Bar" as used in any provision of the law refers "to a licensee of the State Bar." (Bus. & Prof. Code, § 6002, subd. (b).) "The licensees of the State Bar are all persons admitted and licensed to practice law" in California. (Id., § 6002, subd. (a).) "Licensees of the State Bar are divided into two classes: [¶] (a) Active licensees. [¶] (b) Inactive licensees." (Id., § 6003.) "Inactive licensees are those licensees" who either have requested enrollment as inactive licensees or are involuntarily enrolled as inactive licensees. (Id., §§ 6005, 6004.) While an inactive licensee is not entitled to hold office, vote, or practice law, an inactive licensee does not lose his or her admission to the State Bar and does not need to be readmitted to return to active status. (Id., § 6006 ["inactive licensees at their request may, on application and payment of all fees required, become active licensees"].) Thus, assuming the commissioner is an inactive licensee, he remains a member of the State Bar and is not required to be an active member to serve as a court commissioner. (Rules of the State Bar, rule 2.30(C) [a licensee serving as a court commissioner is eligible for enrollment as an inactive licensee].)
In 2017 and 2018, the Legislature substantially amended the State Bar Act by making the State Bar solely a licensing and regulatory agency, and establishing a separate, voluntary California Lawyers Association. (Stats. 2017, ch. 422; Stats. 2018, ch. 659.) Now, instead of being active or inactive "members" of the State Bar, attorneys are active or inactive "licensees." (Bus. & Prof. Code, § 6003 et seq.; Stats. 2018, ch. 659, § 8.)
For the first time in his reply brief, Robben argues the commissioner could not preside over the civil harassment restraining order proceeding under Government Code section 72190. Since "[w]e do not consider arguments raised for the first time in a reply brief," we do not address the argument. (City of Merced v. American Motorists Insurance Co. (2005) 126 Cal.App.4th 1316, 1328-1329.)
Robben asserts he missed the November 4 hearing because a court clerk told him the hearing was at 11:00 a.m., which time was reflected on his motion to quash. To challenge the issuance of the restraining order on this basis, Robben needed to file a motion to set aside the grant of the restraining order under section 473, which authorizes the court to relieve a party from a judgment if a party demonstrates it was the result of mistake, inadvertence, surprise, or excusable neglect. (§ 473, subd. (b); Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042 [§ 473 motion alleging respondent did not receive actual notice of the probate proceedings due to mistake and inadvertence].) Since Robben did not properly present this issue to the trial court, we do not consider it on appeal. (See Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 143 [appellate courts generally will not consider matters presented for the first time on appeal]; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise issue in trial court waives or forfeits issue on appeal].)
We recognize Robben attempted to file a motion to reconsider the restraining order under sections 1008 and 473, in which he asserted a court clerk told him the time for the hearing was 11:00 a.m. The court, however, returned the motion without filing it as it failed to comply with the California Rules of Court and because there was a pending petition for writ of mandate in another matter. Robben does not contend the court erred in declining to file the motion. Moreover, Robben did not argue in the motion that his failure to appear at the hearing was due to the incorrect information or that the restraining order should be set aside on that basis.
Robben asserts in passing that "there were fraudulent proof of service affidavits used." As best we can tell, this assertion is based on his claim he could not have been served at 10:51 p.m., as stated in the original proof of service, or at 10:51 a.m., as stated in the amended proof of service, because the Frosty restaurant was closed at both times. Robben, however, did not raise this issue in the trial court and therefore we do not consider it. (Franz v. Board of Medical Quality Assurance, supra, 31 Cal.3d at p. 143.) Robben has also forfeited the issue because he does not support it with reasoned argument or cite to legal authority to support it. (City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1302 ["[w]hen points are perfunctorily raised without adequate analysis and authority, we may treat them as abandoned or forfeited"]; Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1347 [" '[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' "].)
Moreover, any claim of fraud is belied by the process server's declaration, in which he explained the 10:51 p.m. time in the original proof of service was a typographical error and he served Robben at 10:51 a.m. outside the Frosty restaurant on Main Street in Jamestown, which was the closest identifiable building to where he served Robben. Since Robben was served on Main Street outside the restaurant, its opening and closing times are irrelevant.
In sum, the commissioner was empowered to decide whether to issue the restraining order and did not err in doing so based on the proof of service. The restraining order documents advised Robben if he was personally served with the temporary restraining order and notice of court hearing, but he did not appear at the hearing, a restraining order that is the same as the temporary restraining order will be served on him by mail. Robben was adequately apprised of the consequences of his failure to appear at the hearing. Consequently, the trial court did not err in issuing the restraining order.
The Motion to Quash
Robben also appears to challenge the denial of his motion to quash. An order denying a motion to quash a service of summons, however, is not an appealable order; to obtain review of such an order a defendant must file a petition for writ of mandate. (§ 418.10, subd. (c); ViaView, Inc. v. Retzlaff, supra, 1 Cal.App.5th at pp. 211-212.) Notably, Robben already filed a petition for writ of mandate in this court in Robben v. Superior Court, supra, F085415, in which he challenged the denial of the motion to quash. Since we summarily denied the writ, our denial is not law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 893-894; Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1097 [summary denial of "petition for writ of mandate is not a denial on the merits and does not become law of the case"].) In the interest of justice, we will treat this portion of Robben's appeal as a petition for writ of mandate and consider the merits of the denial of the motion to quash. (ViaView, Inc. v. Retzlaff, at p. 213 [exercising discretion to treat appeal of denial of motion to quash as a mandate proceeding].)
A respondent asserting lack of personal jurisdiction may serve and file a notice of motion to quash service of summons. (§ 418.10, subd. (a)(1).) Absent voluntary submission to the court's authority, "compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over" the respondent. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440.) When a respondent challenges that jurisdiction by bringing a motion to quash, it is the petitioner's burden "to prove the existence of [personal] jurisdiction by proving, inter alia, the facts requisite to an effective service." (Ibid.)
In reviewing a motion to quash service of process, we decide whether the trial court's factual findings were supported by substantial evidence and independently determine the ultimate question of whether service was sufficient to secure personal jurisdiction over the defendant. When the jurisdictional facts are not in dispute, the question of whether there is personal jurisdiction over the defendant is a legal question that we review de novo. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.)
As we have explained, the record indicates the trial court properly concluded Robben was served with the restraining order documents based on the proof of service before it. Although the time of service turned out to be incorrect, the process server later explained it was a typographical error. While Robben asserts this shows the proof of service was fraudulent, there is nothing to suggest the incorrect time was anything other than a typographical error. As we have stated, Robben did not present any evidence that he was not served. Therefore, the trial court's conclusion that Robben was personally served in advance of the hearing is supported by substantial evidence and gave the trial court jurisdiction over Robben.
Robben could have, but did not, make a special appearance at the November 4 hearing to argue the motion to quash he filed the previous day. Robben claims he did not appear because the court clerk gave him the wrong time for the hearing, which deprived him of due process. However, the evidence showed he was personally served with the restraining order documents, which contained the time and date for the hearing, namely, November 4 at 10:30 a.m. Robben did not present any evidence, either with his motion to quash or his later ex parte motion for reconsideration, which was not accepted for filing, to support his claims that he was informed of a different time, or he was not properly served. Because the record indicates Robben was served with notice of the hearing, there is nothing to suggest his due process rights were violated in connection with the restraining order hearing.
Robben raises factual issues in his appellate brief that were not before the trial court on the motion to quash. Robben asserts he could not have been served at 10:51 p.m., as stated in the original proof of service, or at 10:51 a.m., as stated in the amended proof of service, because the Frosty was closed at both times. Robben, however, did not present any evidence in the trial court to support his assertions of the Frosty's opening and closing times. Moreover, the process server explained in his declaration that he served Robben outside the Frosty restaurant on Main Street in Jamestown after Robben got out of a pickup truck, and the restaurant was the closest identifiable building to where he served Robben.
Robben asks us to remand the case so that he may prove he was not personally served with the restraining order documents. We decline his request, as he had the opportunity to present such evidence to the trial court and his failure to do so does not justify remanding the case for further proceedings.
DISPOSITION
The trial court's order granting Fryer's petition for a civil harassment restraining order against Robben is affirmed. Fryer is awarded his costs on appeal.
WE CONCUR: LEVY, Acting P. J., MEEHAN, J.