Opinion
G061125
12-21-2022
In re Marriage of LARISSA and KAVEH LAHIJANI. v. FARZANEH RASHIDI, Appellant. LARISSA LAHIJANI, Respondent,
Straus Meyers, Marvin J. Straus, Joshua C. Anaya and Andrew Meyers for Defendant and Appellant. Fuchs Law Group, John R. Fuchs and Gail S. Gilfillan for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 17D000491 Thomas S. McConville, Judge. Request for judicial notice. Granted in part.
Straus Meyers, Marvin J. Straus, Joshua C. Anaya and Andrew Meyers for Defendant and Appellant.
Fuchs Law Group, John R. Fuchs and Gail S. Gilfillan for Plaintiff and Respondent.
OPINION
MARKS, J. [*]
Appellant Farzaneh Rashidi appeals from a default judgment entered on respondent Larissa Lahijani's complaint in joinder that was filed as part of Larissa's petition to dissolve her marriage to Kaveh Lahijani, Rashidi's son. In her complaint, Larissa alleged Kaveh fraudulently transferred a marital estate asset to Rashidi: ownership shares in a Honduran resort.
Because they share a surname, we refer to the Lahijani's by their first names for clarity; no disrespect is intended.
In the trial court, a proof of personal service of process on Rashidi was filed, her default was entered, and Larissa's application for default judgment granted. Although Rashidi filed a motion to set aside the judgment and quash service of summons, she withdrew it before it was adjudicated.
On appeal, Rashidi challenges the default judgment by asserting the trial court lacked subject matter jurisdiction over the complaint in joinder claims and lacked personal jurisdiction over her. We conclude Rashidi has failed to carry her appellate burden to demonstrate the trial court lacked personal jurisdiction. The judgment is affirmed.
The facts and allegations discussed are limited to the issues material to our disposition of this appeal.
I. Background and Complaint in Joinder Allegations
Larissa and Kaveh married in 1998 and purchased land in Honduras in 2007 while living in California. In 2011, Kaveh and Larissa moved to Honduras to develop a tourist resort called Little French Key on land owned by a Honduran corporation named Little Man, S.A., with Kaveh as its sole shareholder.
In November 2016, Larissa moved back to California. A month before the move, according to Larissa, she "obtained a [d]omestic [v]iolence [order, in Honduras,] against [Kaveh], that prohibited [Kaveh] from selling or transferring the entity that owns" Little French Key. Notwithstanding, Kaveh violated the Honduran order in January 2017 by transferring his Little Man shares to Rashidi.
After returning to California, Larissa filed a January 2017 petition to dissolve her marriage to Kaveh. A few months later, Larissa filed a motion for joinder of Rashidi and others (only Rashidi is relevant to this appeal, but several other parties were joined in the dissolution); the trial court granted leave to file a complaint in joinder in July 2017. Relevant to this appeal, Larissa also alleged that Kaveh fraudulently conveyed his shares of Little Man, which allegedly had an estimated value of $12 to $13 million, to Rashidi for the price of $95,000. Larissa alleged Rashidi "own[ed] property in Los Angeles County and [wa]s believed to be a resident of City of Los Angeles [sic] and/or of Laguna Beach, County of Orange, State of California" to establish jurisdiction.
Among other things, Larissa's complaint in joinder requested the transfer of Little Man shares from Kaveh to Rashidi "be declared fraudulent and void" and for the shares to be ordered "returned to the community . . . with one-half of [the shares] to be transferred into the name of [Larissa] as her sole and separate property ...."
II. Record of Proof of Service of Process
In July 2018, according to a proof of service signed by an individual in Honduras, Rashidi was personally served in that country with documents related to the joinder complaint. The day following service, Larissa filed a Judicial Council Form FL-375, as proof of service on Rashidi.
On May 3, 2021, Larissa requested entry of default against Rashidi, which was granted the same day. Nine days later the clerk mailed a copy of the request for entry of default to a Los Angeles apartment address which Rashidi concedes she owns.
III. Default Judgment Application and Judgment
Rashidi did not file any response to the complaint in joinder and six months after Rashidi's default was entered, Larissa filed her application for a default judgment. In the application, Larissa asserted that Kaveh was prohibited from leaving the United States because of pending criminal charges (unrelated to this appeal) and had authorized his girlfriend to take charge of operations at Little French Key.
According to a January 2022 minute order on Larissa's application for default judgment, the trial court "exercise[d] its discretion" under Code of Civil Procedure section 579 and entered a "separate judgment against Rashidi," based on Larissa's complaint in joinder-i.e., the default judgment Rashidi is challenging.
All further statutory references are to the Code of Civil Procedure unless otherwise designated.
The trial court found Kaveh was the sole shareholder of Little Man and that Little French Key had been acquired as community property during Larissa and Kaveh's marriage. The court credited Larissa's allegations and found Kaveh's transfer of his interest in Little Man to Rashidi violated Larissa's community property interest in the resort, Little French Key.
The default judgment decreed, among other things, that Kaveh's transfer to Rashidi was "void and of no legal effect" and that Larissa was authorized to "take all lawful steps necessary to obtain and recover all shares of Little Man, and have those shares returned to the community." The judgment contains no explicit jurisdictional findings.
IV. Postjudgment Filings before Notice of Appeal
Three weeks after entry of the default judgment, Rashidi specially appeared and filed a February 1, 2022 motion to quash service of summons and to set aside the default judgment. Among other issues, Rashidi asserted that the form of Larissa's 2018 proof of service of summons was defective, and as an Iranian national, she is not subject to California's jurisdiction.
The following week, Rashidi filed an ex parte application to advance the hearing on her motion. Larissa filed her own application for an order continuing the hearing date and authorizing jurisdictional discovery. The following day, February 9, 2022, Larissa filed a supplemental proof of service, changing the form of her proof of personal service of summons on Rashidi in 2018.
The trial court denied Rashidi's application and granted Larissa's application. One day later, Rashidi filed a timely notice of appeal challenging the court's default judgment.
DISCUSSION
I. Request for Judicial Notice
Larissa requests we take judicial notice of three items filed in the trial court after Rashidi's notice of appeal: (1) Rashidi's March 2022 request to withdraw her motion to set aside the default judgment and quash service of summons; (2) the trial court's minute order granting the withdrawal request; and (3) a 2020 order by this court denying a writ petition by Kaveh, based on his litigation in this case. We grant the request only as to the first two items, pursuant to Evidence Code section 452 and California Rules of Court, rule 8.252. The third item is not relevant because it presented issues unique to Kaveh and Rashidi has not shown why any should have a material bearing on our resolution of this appeal.
II. Appellate Review Principles
If a defaulted party does not move to set aside a default judgment in the trial court and instead appeals only from the judgment, "[g]enerally on such an appeal attack is confined to jurisdictional matters and fundamental pleading defects." (City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 582; accord, Jameson v. Simonds Saw Co. (1904) 144 Cal. 3, 4; see Brue v. Shabaab (2020) 54 Cal.App.5th 578, 586 (Brue) ["a defendant's failure to appear does not forfeit an objection the [trial] court has no personal jurisdiction over it" and a judgment rendered against a defendant over which the court does not have personal jurisdiction is void].)
Not relevant in this appeal, issues about excessive damages can also be reviewed on an appeal from a default judgment. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 288-289 (Kim).)
A "'"judgment by default is said to 'confess' the material facts alleged by the plaintiff, i.e., the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint."' [Citation.]" "The 'well-pleaded allegations' of a complaint refer to '"'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'"' [Citation.]" (Kim, supra, 201 Cal.App.4th at p. 281, italics omitted; accord, Brue, supra, 54 Cal.App.5th at p. 590 ["we accept all well-pleaded allegations as fact"].)
Accordingly, contrary to Rashidi's request that we adjudicate numerous factual issues-such as her assertion she is an "unemployed permanent resident of Iran"-the scope of our appellate review is limited by Rashidi's election to pursue any challenge to the default judgment before this court rather than the trial court. We independently assess her appealable challenges. (See Dorel Industries, Inc. v. Superior Court (2005) 134 Cal.App.4th 1267, 1273 ["On review, the question of jurisdiction is, in essence, one of law"].)
III. Rashidi's Contentions
Of the reviewable issues she presents, Rashidi contends the trial court's default judgment should be reversed because the trial court lacked both subject matter jurisdiction and personal jurisdiction. Rashidi raises two grounds as to subject matter jurisdiction, first that Larissa failed to wait a required six months before filing her underlying dissolution petition and, second, that subject matter jurisdiction is lacking because the judgment adjudicated legal interests in a foreign (Honduran) corporation- i.e., Little Man-that owns and manages foreign real property-i.e., the land on which Little French Key is located in Honduras.
As to personal jurisdiction, Rashidi asserts the proof of service of summons was fatally defective, and that the trial court lacked personal jurisdiction because of insufficient minimum contacts between her and California.
IV. Subject Matter Jurisdiction
First, we address Rashidi's contention the trial court lacked subject matter jurisdiction to adjudicate Larissa's complaint in joinder.
The California Legislature has conferred on trial courts original subject matter jurisdiction over proceedings based on the Family Code (Fam. Code, § 200). As Rashidi states herself, this case "falls within the authority of the [trial] court" under Family Code section 2010. The section establishes in relevant part that, "[i]n a proceeding for dissolution of marriage," trial courts have "jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning . . .: [¶] . . . [¶] . . . [¶] . . . [¶] . . . [¶] (e) The settlement of the property rights of the parties." (Fam. Code, § 2010; see also In re Marriage of Lackey (1983) 143 Cal.App.3d 698, 702 [discussing trial court subject matter jurisdiction based on predecessor statutes].)
On joinder of a third party to a marital dissolution case, a trial "court may order that a person who claims an interest in the proceeding be joined as a party to the proceeding in accordance with rules adopted by the Judicial Council ...." (Fam. Code, § 2021, subd. (a).) "The petitioner or the respondent may apply to the court for an order joining a person as a party to the case . . . who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding." (Cal. Rules of Court, rule 5.24(c)(1).) Family Code section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property."
Rashidi presents no legal authority negating the trial court's subject matter jurisdiction over Larissa's complaint in joinder, which pleaded: the real property for Little French Key was acquired in 2007, while the couple had been living in California; that "Little Man was incorporated by Respondent in or about 2010 or 2011, to own and operate . . . Little French Key"; and that Kaveh did not move to Honduras until after 2010. This sufficiently invoked Family Code section 760's characterization of the foreign corporate shares underlying the allegedly fraudulent transfer as the community property of a marriage subject to California subject matter jurisdiction.
A. Statute on Petitioner Residency
Rashidi asserts two theories for her contention the trial court lacked subject matter jurisdiction. First, she correctly notes Larissa filed her dissolution petition in this case less than six months after she returned from spending years in Honduras. Based on this, Rashidi asserts Larissa did not comply with Family Code section 2320, which states in relevant part that "a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition." (Id., subd. (a).)
Even assuming arguendo that Family Code section 2320 applies to the default judgment (which did not dissolve the marriage), Rashidi's reliance on the statute to challenge subject matter jurisdiction fails for the fundamental reason that noncompliance with the statute is a waivable issue and therefore not a statute that determines fundamental subject matter jurisdiction. (Cal. Rules of Court, rule 5.63 ["Failure to meet the residence requirement of Family Code section 2320" is waived if not filed as part of a motion to quash proceedings]; see In re Marriage of Hinman (1992) 6 Cal.App.4th 711, 716-717 [subject matter jurisdiction cannot be waived].) We additionally note the court record reveals that Rashidi did not raise this issue in her motion to quash service of summons that she ultimately withdrew.
B. Two Tribunal Rule
Next, Rashidi asserts the trial court lacked subject matter jurisdiction in this case because, "by [Larissa] filing actions in Honduras that resulted in an order regarding the community propert[y] at issue in this appeal, [she] vested exclusive jurisdiction in the Honduran court system-precluding the California court from asserting jurisdiction over this matter."
Rashidi relies on Slinack v. Superior Court (1932) 216 Cal. 99, 106, for the proposition that "where two tribunals have concurrent jurisdiction over the same parties and subject matter, the tribunal in which jurisdiction first attaches retains it exclusively." The rule has no application to this appeal, first, because it facially does not apply. Based on the record presented, Rashidi is relying on Honduran court orders that involve Kaveh and not her, so the parties in the Honduras litigation are not the same.
More fundamentally, the rule stated in Slinack does not support Rashidi's subject matter jurisdiction challenge because it only applies where the tribunals are of the same sovereign. (See Fowler v. Ross (1983) 142 Cal.App.3d 472, 476 [rule discussed in Slinack "is applicable where the tribunals are within the same state but the rule does not apply where jurisdiction is taken by a state court and a federal court].) In sum, Rashidi has presented no legal authority negating the subject matter jurisdiction established by the California Legislature. When an action is brought in a court of this state involving the same parties and the same subject matter as an action already pending in a court of another jurisdiction, a stay of the California proceedings is not a matter of right, but within the sound discretion of the trial court.
IV. Personal Jurisdiction
A. Service of Summons
"The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial action or proceeding. [Citation.]" (Kremerman v. White (20 21) 71 Cal.App.5th 358, 370.) Absent a general appearance by a defendant, "[t]o establish personal jurisdiction [over the defendant], compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment. [Citation.]" (Ibid.; Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 ["A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service"].)
Section 415.40 provides in part that "[a] summons may be served on a person outside this state in any manner provided by this article[ containing sections 415.10 through 415.95]." A section in the article provides that "[a] summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery." (§ 415.10.)
The article establishes how proof should be filed in the trial court to show "that a summons was served on a person outside this state." (§ 417.20.) Relevant here, it requires proof "by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter." (§ 417.10, subd. (a).)
A declaration is sufficient to qualify as an affidavit for proof of service (see People ex rel. Savage v. L.A. Trust Deed etc. Exchange (1961) 190 Cal.App.2d 66, 70) and section 2015.5 establishes requirements a declarant must satisfy to "support[], evidence[], establish[], or prove[]" a matter. Key to this appeal, the section provides that: "(1), if executed within this state, [a declaration must] state[] the date and place of execution, or (2), if executed at any place, within or without this state, [a declaration must] state[] the date of execution and that it is so certified or declared under the laws of the State of California." (Ibid., italics added.)
Rashidi accurately asserts the declaration filed with the original proof of service submitted by Larissa in 2018, while a Judicial Council Form FL-375, did not comply with section 2015.5. Although the server's declaration stated it was made under penalty of perjury, it was signed in Honduras and did not invoke California law because it did not contain the phrase italicized above.
Given the lack of invocation in the original proof of service, Rashidi relies on Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601 to argue there was insufficient evidence of service of process to satisfy the due process requirement of personal jurisdiction and notice of the action on Rashidi. In that case, the California Supreme Court held that "declarations signed outside California must state they were made 'under the laws of the State of California' in order to satisfy section 2015.5 and to be used as evidence." (Kulshrestha, supra, 33 Cal.4th at p. 608; see id. at p. 606 [legislative purpose of the section is "to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty," and obviates a substantial compliance argument].)
Notwithstanding its defect in form, the original proof of service declaration does not provide a jurisdictional ground for reversal of the default judgment in this appeal because the defect was curable according to the California Supreme Court's holding in City of Salinas v. Luke Kow Lee (1933) 217 Cal. 252 (City of Salinas). There, a default judgment was entered that foreclosed a street assessment lien based on a service of summons by publication. Over four-and-a-half years after entry of judgment, the defendant unsuccessfully moved to set it aside in the trial court. (Id. at p. 254.) After the defendant correctly pointed out the proof of service facially showed "that publication of summons had been for an insufficient period" (ibid.), the trial court allowed "the filing of an amended affidavit of publication wherein it was made to appear that summons had, in fact, been published for a period of two months as required by law" (ibid., italics omitted).
In affirming the trial court's allowance of the plaintiff's amended filing and denial of the defendant'smotion to set aside the default judgment, the high court reasoned: "It was well within the province of the court below to permit the filing of such amended affidavit of publication, even though several years had then elapsed since the entry of the judgment, for it is now well settled that it is the fact of service and not the proof of service which determines the validity or invalidity of a judgment. [Citations.]" (City of Salinas, supra, 217 Cal. at pp. 254-255; see Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020) 56 Cal.App.5th 771, 804 ["A trial court has inherent power to exercise its discretion to control the proceedings before it, and this power includes the authority to receive supplemental or additional declarations for the court's guidance and decision"].)
In this case, Larissa attempted to cure the defect in her original proof of service, eight days after Rashidi first raised the issue in her motion to set aside the default judgment and quash service of summons. Specifically, Larissa filed a February 9, 2022, supplemental proof of service that stated the declaration regarding personal service on Rashidi in 2018 in Honduras was being made "under the laws of the State of California."
On its face, the supplemental proof of service complied with section 2015.5. The validity and effect, if any, of Larissa's attempt to cure the original proof was not adjudicated because, as noted, Rashidi ultimately withdrew her motion before the trial court ruled on any of its raised issues.
We make no findings about the factual assertions contained in the supplemental proof of service. We only conclude, based on our limited appellate review, that the record fails to show actual service of process on Rashidi was lacking. Under City of Salinas, the curable nature of the defect in the 2018 Judicial Council Form 375 Larissa submitted to the trial court does not provide a ground to reverse the default judgment for lack of service of summons.
B. Fundamental Personal Jurisdiction
"Under California's long-arm statute, California state courts may exercise personal jurisdiction 'on any basis not inconsistent with the Constitution of this state or of the United States.' [(Code of Civ. Proc., § 410.10.)] California's long-arm statute allows the exercise of personal jurisdiction to the full extent permissible under the U.S. Constitution." (Daimler AG v Bauman (2014) 571 U.S. 117, 125 (Daimler); accord, Sibley v Superior Court (1976) 16 Cal.3d 442, 445.) "The Fourteenth Amendment's Due Process Clause limits a state court's power to exercise jurisdiction over a defendant. The canonical decision in this area remains International Shoe Co. v. Washington [(1945)] 326 U.S. 310." (Ford Motor Company v. Montana Eighth Judicial District Court (2021) 592 U.S.___,____ [141 S.Ct. 1017, 1024] (Ford Motor Company).)
There are "two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction. [Citation.] [¶] A state court may exercise general jurisdiction only when a defendant is 'essentially at home' in the State. [Citation.] General jurisdiction, as its name implies, extends to 'any and all claims' brought against a defendant. [Citation.] Those claims need not relate to the forum State or the defendant's activity there; they may concern events and conduct anywhere in the world. But that breadth imposes a correlative limit: Only a select 'set of affiliations with a forum' will expose a defendant to such sweeping jurisdiction. [Citation.] In what we have called the 'paradigm' case, an individual is subject to general jurisdiction in her place of domicile. [Citation.] (internal quotation marks omitted). And the 'equivalent' forums for a corporation are its place of incorporation and principal place of business. [Citation.] (internal quotation marks omitted); [Citation.] (leaving open 'the possibility that in an exceptional case' a corporation might also be 'at home' elsewhere)." (Ford Motor Company, supra, 592 U.S. at p.____ .)
"Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims." (Ford Motor Company, supra, 592 U.S. at p.____ .) "Under well-established case law specific jurisdiction exists when (1) the defendant has 'purposefully availed' himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant's contacts with the forum; and (3) the assertion of personal jurisdiction would comport with '"fair play and substantial justice."' [Citations.]" (Brue, supra, 54 Cal.App.5th at pp. 589-590.)
"There are no bright line rules for determining jurisdiction. '"[R]ather, the facts of each case must be weighed to determine whether the requisite 'affiliating circumstances' are present."' [Citation.]" (Brue, supra, 54 Cal.App.5th at p. 590.) "'[T]his determination is one in which few answers will be written "in black and white. The greys are dominant and even among them the shades are innumerable."' [Citation.]" (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 268, quoting Kulko v. California Superior Court (1978) 436 U.S. 84, 92.)
On specific personal jurisdiction, we agree with Rashidi. Undisputed portions of the record show no specific personal jurisdiction over Rashidi can be exercised because the underlying controversy neither relates to nor arises out of Rashidi's contacts with California.
Nothwithstanding, Rashidi has not shown the trial court lacked personal jurisdiction over her because she has not shown a lack of general personal jurisdiction. She points to no authority, statutory or otherwise, that required Larissa as the plaintiff to plead facts ab initio establishing the court's personal jurisdiction over her. (See In re Sharon's Estate (1918) 179 Cal. 447, 458 [record's lack of recital to jurisdictional fact by itself "does not make the judgment void, for extrinsic evidence is admissible to prove such fact, except where some statute makes the record the exclusive mode of proof"] .) The only legal authorities Rashidi cites to for her assertion that Larissa failed to meet a trial court burden involved initiating motions to quash. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 [discussing shifting burdens on jurisdiction triggered by defendant's motion to quash]; see also Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 [same]). As noted, Rashidi unilaterally withdrew her filed motion to set aside the default judgment and quash service of summons, removing any ability to obtain factual findings to challenge the judgment on personal jurisdiction grounds.
In sum, the absence of a trial court ruling on the factual issues Rashidi wishes to argue accompanied by an absence of a legal authority that required Larissa to plead facts on personal jurisdiction ab initio, confirms a lack of any fundamental pleading defect or jurisdictional ground on which our limited appellate review would result in a reversal of the default judgment at issue here. Rashidi has failed to carry her appellate burden.
In sum, there is no trial court ruling on the factual issues Rashidi wishes to argue, and no legal authority requiring Larissa to plead facts on personal jurisdiction ab initio. Our review on appeal is limited to either a fundamental pleading defect or jurisdictional grounds to support reversal. Neither burden has been met by Rashidi on appeal. Hence, there are no grounds based on our limited appellate review to support reversal of the default judgment in this case.
DISPOSITION
The January 10, 2022 default judgment is affirmed. Respondent shall recover her costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.