Opinion
C091625
04-06-2022
ERIC KOZLOWSKI, Plaintiff and Appellant, v. CAPITAL MAILING SERVICES, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Super. Ct. No. CVCV160369
MAURO, J.
The trial court granted a motion by defendants Perice Sibley and Capital Mailing Service, Inc. (CMSI) to set aside entry of default and default judgment against them. Plaintiff Eric Kozlowski appeals, contending (1) the motion was untimely, and (2) the trial court erred if it considered the evidence attached to the motion.
We conclude (1) the motion could be brought at any time because the entry of default and default judgment was void for lack of personal jurisdiction, and (2) the record does not establish that the trial court relied on extrinsic evidence. We will affirm the trial court's order.
BACKGROUND
I
Kozlowski and The Presort Center of Fresno, Inc. (Presort Center) filed a complaint against CMSI and others asserting assault and conversion in relation to an incident in which Perice Sibley, owner of CMSI, allegedly arranged to remove Kozlowski from CMSI's facility by threat of force and CMSI and Sibley refused to return certain property to Kozlowski. The trial court's docket does not show the filing of a proof of service of the summons and complaint on CMSI.
A little over a year later, plaintiffs filed a first amended complaint, asserting breach of contract. CMSI and Sibley were named as defendants. The trial court's docket does not show the issuance of an amended summons.
Plaintiffs filed a proof of service showing substitute service of a summons and the first amended complaint on Sibley at 461 University Avenue in Los Gatos, California. The following month, Presort Center filed a request for entry of default against Sibley. The request stated that a copy of the request for entry of default was sent by mail to Sibley at 461 University Avenue. The Clerk entered default against Sibley.
Plaintiffs then filed a proof of service showing that a summons and the first amended complaint were personally served on Sibley as agent for service of CMSI. Presort Center filed a request for entry of default against CMSI. The request stated that a copy of the request was sent by mail to CMSI and Sibley at 461 University Avenue. The Clerk entered default against CMSI.
On March 20, 2018, the trial court entered a default judgment in favor of Kozlowski and against Sibley in the amount of $4,195,000. On the same date, the trial court entered a default judgment in favor of Presort Center and against CMSI in the amount of $204,000.
Plaintiffs' counsel filed a notice of entry of the default judgments against Sibley and CMSI on May 30, 2018. The proof of service for that notice shows service of the notice was sent to Sibley and CMSI at 481 University Avenue, Los Gatos, California 95032, a different address than shown in the prior proofs of service.
The record contains a proof of service of an application and order for appearance and examination on Sibley on September 25, 2018. That proof of service states that Sibley was personally served with the application and order for appearance at 481 University Avenue.
A debtor's examination hearing was held on November 8, 2018. Plaintiffs' counsel was present. Sibley appeared with an attorney. After objecting to the debtor's exam, requesting a continuance because of another case between the same parties and initially refusing to answer questions, Sibley took the stand. There is no reporter's transcript for the debtor's examination in the record.
Sibley and CMSI filed a motion to set aside the defaults and default judgments pursuant to Code of Civil Procedure section 473, subdivision (d) on November 27, 2019. The motion was made on the ground that the defaults and default judgments were void because defendants were not properly served with an amended summons for the first amended complaint and Kozlowski lacked standing to pursue the claims as they belonged to his Chapter 7 bankruptcy trustee. Defendants further asked the trial court to exercise its inherent equitable power to set aside the judgments on the ground of extrinsic fraud or mistake as to Kozlowski because Kozlowski concealed the value of his claims against defendants in his Chapter 7 bankruptcy matter. Mark Schulman, acting as assignee of the default judgments, opposed defendant's set aside motion.
Undesignated statutory references are to the Code of Civil Procedure.
The trial court granted defendants' motion. It concluded that the judgments were void on their face because the proofs of service showed that Sibley and CMSI were not served with an amended summons. Additionally, Sibley did not consent to the trial court's jurisdiction when she attended the debtor's examination. Kozlowski appeals from the trial court's order.
DISCUSSION
Kozlowski contends the trial court erred in granting Sibley's motion because Sibley did not bring the motion within a reasonable time not exceeding six months after entry of the default judgment.
A trial court may, upon motion of either party after notice to the other party, set aside a void judgment or order. (§ 473, subd. (d).) A judgment or order is void on its face when the invalidity is apparent upon an inspection of the judgment roll or court record without consideration of extrinsic evidence. (Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 960 (Calvert); Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020 (Pittman).) Where no answer is filed, the judgment roll includes the summons, proof of service for the summons, the complaint, the request for entry of default and a copy of the judgment. (Calvert, at pp. 960-961.)
Section 473, subdivision (d) does not set forth a time limit within which a trial court may set aside a void judgment or order. Courts have held that a judgment that is void on its face because of lack of personal jurisdiction may be challenged at any time. (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228 (County of San Diego).) There is no time limit to attack a judgment that is void on its face. (Pittman, supra, 20 Cal.App.5th at p. 1021.)
When a court lacks jurisdiction over a party, it has no power to hear or determine the case against that party and its ensuing judgment is void. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660; Calvert, supra, 29 Cal.App.5th at p. 961; County of San Diego, supra, 186 Cal.App.4th at pp. 1225-1226.) A default judgment is void for lack of personal jurisdiction when the plaintiff fails to comply with the statutory procedures for service of process. (Calvert, at p. 961; County of San Diego, at pp. 1226-1227.) That the defendant actually knew of the action does not satisfy the requirement of proper service of the summons and complaint. (County of San Diego, at p. 1226; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392.)
The trial court correctly concluded that the entry of default and the default judgment against Sibley were void on their face. Only one summons was issued: the summons for the original complaint. A summons must be directed to the defendant and contain the names of the parties to the action (§ 412.20, subd. (a)), but as plaintiffs concede in their appellants' opening brief, the summons does not identify Sibley as a defendant. "[I]f an amendment adds a new party defendant, an amended or new summons naming that party as a defendant must be issued and served upon the new defendant, since no jurisdiction would be obtained by serving him [or her] with a copy of the summons that does not name him [or her]." (Jud. Council Comment to section 412.10.) The summons was invalid and the trial court did not obtain personal jurisdiction over Sibley because the summons was not amended to add Sibley as a defendant. (Powers v. Braly (1888) 75 Cal. 237, 238-239; Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433; Jud. Council Comment to section 412.10.) Because the entry of default and the default judgment against Sibley were void on their face for lack of personal jurisdiction, a motion for relief could be brought at any time. (Pittman, supra, 20 Cal.App.5th at p. 1021; County of San Diego, supra, 186 Cal.App.4th at p. 1228.)
The Judicial Council's comments to section 410.10 et seq., "giving information on the source of the statute, its intended effect, and its relationship to other provisions . . . provide an important guide to statutory interpretation." (Ault v. Dinner for Two, Inc. (1972) 27 Cal.App.3d 145, 149, fn. 2.)
The appellant's opening brief appears to be directed to the motion to set aside the default and the default judgment against Sibley only; the background section of the brief refers only to Sibley and the argument section of the brief refers to "the Defendant" in the singular. To the extent this appeal also relates to the portion of the order granting relief to CMSI, no defendant answered the complaint or otherwise made an appearance before plaintiffs filed their first amended complaint. If no defendants have appeared, a summons must be issued upon the amended complaint and served on the defendants. (W.H. Marston Co. v. Kochritz (1926) 80 Cal.App. 352, 361.) There is no proof of service showing service of the original complaint on CMSI. "(I)f the complaint is amended before any service, an amended summons that refers to the amended complaint should be issued and served with a copy of the amended complaint." (Jud. Council Comment to section 412.10.) No amended summons was issued in this case. Therefore, the trial court did not acquire personal jurisdiction over CMSI. Because the entry of default and the default judgment against CMSI were void on their face for lack of personal jurisdiction, a motion for relief could be brought at any time. (Pittman, supra, 20 Cal.App.5th at p. 1021; County of San Diego, supra, 186 Cal.App.4th at p. 1228.) The trial court properly granted Sibley and CMSI's motion to set aside the entry of default and default judgment against them.
II
Kozlowski also contends that if the trial court considered the evidence attached to the set aside motion, it erred because its review of the motion, which was filed more than two years after entry of the judgments, was limited to the face of the record.
The trial court ruled that the default judgment was void on its face; additionally, Sibley did not consent to the trial court's jurisdiction when she attended the court-ordered debtor's examination. The trial court's ruling that the judgment was void on its face was based on the judgment roll. There is no showing that the trial court relied on the declarations submitted in support of the set aside motion to conclude that Sibley did not consent to the trial court's jurisdiction; those declarations did not address the debtor's examination. The record does not establish the factual premise of Kozlowski's appellate claim.
DISPOSITION
The trial court's order granting defendants' motion to set aside the entry of the defaults and default judgments is affirmed. Sibley and CMSI shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: ROBIE, Acting P. J. DUARTE, J.