Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS105979, David L. Minning, Judge.
Robert W. Snyder for Defendant and Appellant.
Martin F. Goldman for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant Maxtec Machinery Inc. (Maxtec) appeals an order denying its motion to vacate a sister-state default judgment obtained by plaintiff and respondent Allied Machine & Engineering Corp. (Allied) in Ohio.
We perceive no error in the trial court’s refusal to vacate the judgment and therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Events leading up to the litigation.
This matter arises out of the sale of a machine by Maxtec to Allied.
Maxtec, which is located in El Monte, California, is a wholesaler of heavy cutting machines for industrial use. The subject machine was manufactured in Taiwan by Dah Lih Machinery Industry Co. Ltd. (Dah Lih), not a party to this appeal. Maxtec displayed the machine at a tool show in Milwaukee, Wisconsin. The machine then was stored in a warehouse in Wisconsin. Maxtec’s agent, Advanced Machining Solutions, located in Ohio, offered a price quote to Allied, of Dover, Ohio. On December 9, 2004, Allied issued a purchase order to Maxtec. The invoice amount was $233,200.00.
During the week of December 27, 2004, the machine was transported from the Wisconsin warehouse and delivered to Allied.
During the week of January 17, 2005, Chuck Wallace of Maxtec traveled to Dover, Ohio, to assist with the installation of the machine. Shortly thereafter, Allied complained of problems with the machine.
1. Ohio proceedings.
On January 31, 2006, Allied filed suit against Maxtec and Dah Lih in the Court of Common Pleas, Tuscarawas County, Ohio, alleging counts for breach of contract, breach of warranty, revocation of acceptance and promissory estoppel. As to each count, Allied alleged it had suffered damages “in excess of TWENTY-FIVE THOUSAND DOLLARS.” Neither Maxtec nor Dah Lih made an appearance.
On April 19, 2006, the Ohio court entered a default judgment against both defendants in the sum of $399,062 plus interest. The Ohio judgment indicated it was “final and appealable.”
2. Subsequent correspondence between the parties.
On May 23, 2006, Maxtec’s attorney, Sam J. Wu of Alhambra, California, sent a letter to Allied’s counsel acknowledging the $399,062 Ohio judgment. Wu proposed “an amicable solution,” offering to settle the matter for 25 percent of the judgment amount.
After Allied rejected that resolution, Wu sent another letter to Allied on July 28, 2006, attempting to settle the matter for $150,000. The parties failed to reach an agreement.
3. Entry of sister-state judgment in California.
On November 6, 2006 Allied filed an application in the Los Angeles Superior Court for entry of judgment on sister-state judgment.
On November 27, 2006, the superior court entered a sister-state judgment pursuant to Code of Civil Procedure section 1710.25 against Maxtec and Dah Lih in the sum of $399,062 plus interest and filing fees, for a total of $419,335.09.
All statutory references are to the Code of Civil Procedure, unless otherwise specified.
Maxtec promptly was served with notice of entry of the sister-state judgment.
The moving declaration of Maxtec’s president, Vivian Shen (Shen) in support of the motion to vacate the judgment stated “around November 2006, an employee in my office handed me some court documents showing a judgment was entered in the Los Angeles Superior Court against Maxtec.” Therefore, we can conclude that by November 30, 2006, Maxtec was aware of the November 27, 2006 judgment on the sister-state judgment.
4. Maxtec’s motion to vacate the judgment.
a. Moving papers.
On May 9, 2007, more than five months after entry of the sister-state judgment in California, Maxtec filed a motion to vacate the judgment. Maxtec’s motion contended the Ohio judgment was void because the Ohio court lacked personal jurisdiction over Maxtec, a nonresident which had no minimum contacts with the State of Ohio; the Ohio default judgment was void because it awarded damages in excess of the amount sought in the complaint; the trial court has inherent power to vacate a void judgment at any time; and the trial court has the inherent power to vacate a default judgment resulting from mistake or excusable neglect. The motion was based on section 473 as well as section 1710.40.
Maxtec contended it never conducted business in Ohio. Maxtec denied it arranged for the sale of the instant machine in Ohio and attributed the sale to its Ohio agent. Maxtec took the position it did not engage in any conduct which would subject it to the jurisdiction of the Ohio courts.
These assertions appeared in Maxtec’s memorandum of points and authorities, not in Shen’s declaration.
Shen’s supporting declaration admitted Maxtec received notice of entry of the November 27, 2006 judgment by the end of that month. Shen stated: “I was extremely busy in the holiday seasons and spent quite some time out of the country. . . . I even thought that at that time that it was not really related to Maxtec and therefore did not pay attention to it. I did not approach my present attorney until April of 2007, when some marshals showed up in my office with a Notice of Levy.”
b. Allied’s opposition papers.
In opposition, Allied contended the motion was untimely because a motion to vacate a judgment entered pursuant to section 1710.10 et seq. must be made no later than 30 days after service of notice of entry of judgment and proper proof thereof. Allied further contended the motion to vacate should be denied because an examination of the judgment roll did not disclose any invalidity on the face of the judgment.
The opposition papers were supported by the declaration of Steven Stokey (Stokey), an officer of Allied, who described Maxtec’s contacts with Ohio. The Stokey declaration stated in pertinent part: “During the week of January 17, 2005, Chuck Wallace of Maxtec Machinery traveled to Dover, Tuscarawas County, Ohio, to assist with installation of the machine. [¶] 5. During the week of January 24, 2005, Chuck Wallace of Maxtec Machinery continued to work at the Dover, Tuscarawas County, Ohio, plant location for [Allied], on problems with the machine and troubleshooting. During this week, Mr. Wallace and [Allied] representatives conferred via telephone with Vivian [S]hen, also of Maxtec, concerning missing parts. [¶] 6. During the week of January 31, 2005, Chuck Wallace of Maxtec Machinery continued to work at the Dover, Tuscarawas County, Ohio, plant location for [Allied], continuing to work on problems with the machine and troubleshooting.” The Stokey declaration concluded: “Any suggestion that Maxtec did not conduct business in Ohio on this specific project is simply false.”
c. Trial court’s ruling.
On July 6, 2007, the matter came on for hearing. The trial court denied Maxtec’s motion to vacate the judgment.
Maxtec filed a timely notice of appeal from the order.
CONTENTIONS
Maxtec contends: mistake by counsel is revocable; there was no admissible evidence the Ohio court has personal jurisdiction over Maxtec; even if the Stokey declaration contained admissible evidence, it would be insufficient to confer personal jurisdiction over Maxtec; Maxtec did not purposefully avail itself of any benefits or the protection of Ohio with respect to the instant transaction with Allied; and the Ohio judgment was void because the complaint failed to allege that Allied had been damaged in a specific amount.
DISCUSSION
1. Maxtec’s motion to vacate failed to comply with the 30-day limitation period of section 1710.40.
Section 1710.40 provides in relevant part: “(b) Not later than 30 days after service of notice of entry of judgment pursuant to Section 1710.30, proof of which has been made in the manner provided by Article 5 (commencing with Section 417.10) of Chapter 4 of Title 5 of Part 2, the judgment debtor, on written notice to the judgment creditor, may make a motion to vacate the judgment under this section.” (Italics added.)
The clerk’s notice of entry of judgment on sister-state judgment cautioned Maxtec as follows: “A sister-state judgment has been entered against you in a California court. Unless you file a motion to vacate the judgment in this court within 30 DAYS after service of this notice, this judgment will be final.” (Judicial Council Form EJ-105 (Rev. July 1, 1983), italics added.)
Maxtec failed to bring a timely motion under section 1710.40. Maxtec’s opening brief simply ignores the impact of this limitations period.
As this court stated in Liquidator of Integrity Ins. Co. v. Hendrix (1997) 54 Cal.App.4th 971, 973, section 473 may not be used as a procedural remedy to vacate the entry of a sister-state judgment in California – the appropriate remedy is a motion to vacate pursuant to section 1710.40. Here, Maxtec failed to bring a timely motion to vacate under section 1710.40 and thereby forfeited that remedy. Maxtec’s subsequent motion for relief under section 473 was not a substitute for a proper motion to vacate under section 1710.40. Thus, the issue on the motion for relief under section 473 was not whether the Ohio judgment should be vacated, but rather, whether Maxtec should be relieved from its failure to bring a timely motion to vacate under section 1710.40. As explained below, Maxtec failed to show good cause for relief.
2. No basis for relief under section 473.
a. Maxtec was not diligent in seeking relief under section 473.
Section 473, subdivision (b) provides an application for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Italics added.)
Here, Maxtec was not diligent in seeking relief. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1181.) Maxtec admitted that by the end of November 2006, it was aware the superior court had entered the Ohio judgment as a sister-state judgment. However, Maxtec waited more than five months, until May 9, 2007, to file its motion to vacate the judgment pursuant to section 473.
b. No merit to Maxtec’s attempt to attribute its inaction to the mistake of counsel.
Maxtec argues relief under section 473 is warranted because “mistake by counsel is revocable.” Maxtec contends its former counsel, Wu, “was negligent in missing the deadline to contest the default judgment.” Maxtec cites the provision in section 473, subdivision (b), for mandatory relief when an application for relief is accompanied by an attorney’s affidavit of fault.
Maxtec’s arguments are wholly without merit.
Maxtec is not entitled to mandatory relief because it did not submit an affidavit of fault from attorney Wu; it merely submitted a declaration by Shen, its president.
Further, the issue at this juncture is not Wu’s failure to attack the default judgment in Ohio, but rather, whether Maxtec showed good cause to vacate the November 27, 2006 judgment entered in the Los Angeles Superior Court on the Ohio judgment.
In that regard, Maxtec’s five-month delay in bringing the motion to vacate the November 27, 2006 judgment cannot be attributed to counsel. Shen admitted in her declaration that she learned of the judgment by the end of November 2006 but “was extremely busy in the holiday seasons . . . .”
We conclude Maxtec failed to show good cause for the extreme delay in filing the motion for relief under section 473.
3. No merit to Maxtec’s jurisdictional arguments.
Maxtec contends the Ohio judgment is void so as to be subject to attack at any time. Its arguments in this regard are unavailing.
a. Ohio court’s jurisdiction over Maxtec.
Maxtec contends there is no admissible evidence to establish the Ohio court had personal jurisdiction over Maxtec because the Stokey declaration, filed in opposition to the section 473 motion, is inadequate to demonstrate the Ohio court had personal jurisdiction over Maxtec. The argument fails.
It is the appellant’s duty to provide an adequate record for review. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.) In moving to vacate the November 27, 2006 judgment, Maxtec did not supply the trial court with a copy of the record in the Ohio litigation and the Ohio record is not a part of the record on appeal. We decline to speculate that Maxtec was not duly served with process by Allied. We can only presume the Ohio court acted properly in exercising jurisdiction over Maxtec.
b. Ohio judgment not void for lack of minimum contacts.
A court may exercise specific jurisdiction over a nonresident defendant only if: (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. (Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269.)
When there is conflicting evidence with respect to the facts showing minimum contacts with the forum state, the trial court’s factual determinations are not disturbed on appeal if supported by substantial evidence. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449.)
Here, Stokey’s opposing declaration recounted Maxtec’s contacts with Ohio with respect to the instant transaction. The declaration indicates that Wallace of Maxtec traveled to Ohio to assist with the installation of the machine and worked there on troubleshooting and repairing the machine. The Stokey declaration establishes Maxtec had sufficient contacts with Ohio so as to subject it to jurisdiction in that state.
Maxtec’s contention the Stokey declaration lacks foundation is meritless because Maxtec did not make such an objection below. (Evid. Code, § 353.)
c. The effect of the allegations in the Ohio complaint that Allied was seeking damages “in excess of” $25,000.
Maxtec contends the Ohio default judgment is void because the complaint failed to allege a specific amount of damages. Instead, Allied pled it had been damaged “in excess of” $25,000. Maxtec argues the entry of a default judgment which exceeds the amount demanded in the complaint amounts to a violation of due process.
Traci & Marx Co. v. Legal Options, Inc. (2005) 126 Cal.App.4th 155 (Traci), which the trial court relied on, but which Maxtec does not mention in its appellate briefing, is directly on point.
In Traci, plaintiffs sued defendants in the Court of Common Pleas for Cuyahoga County, Ohio, alleging various causes of action. Their prayer for relief requested, inter alia, compensatory damages “in excess of $25,000” and “punitive damages in excess of $25,000.” Defendants did not answer. The Ohio court conducted a default hearing, after which it granted plaintiff judgment against defendants in the amount of $25,890 as compensatory damages and $130,000 as punitive damages. Thereafter, the Los Angeles Superior Court ordered entry of the Ohio judgment in the amount of $171,793.50, representing the principal amount of the Ohio judgment, along with accrued interest. The superior court subsequently granted a motion to vacate the sister-state default judgment. Traci reversed and ordered the judgment reinstated. (Traci, supra, 126 Cal.App.4th at pp. 157-158.)
Traci began with the observation that “ ‘ “California must, regardless of policy objections, recognize the judgment of another state as res judicata, and this is so even though the action or proceeding which resulted in the judgment could not have been brought under the law or policy of California. ” ’ ” (Traci, supra, 126 Cal.App.4th at p. 158.)
Traci noted the California Supreme Court has “held that fundamental fairness requires that a default judgment be limited to ‘the specific amount of damages alleged in the complaint.’ [Citation.] Thus, in a default proceeding, a prayer for relief of an amount ‘in excess of’ a specified dollar amount will result in an award of ‘no more than’ that dollar amount. (See, e.g., Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [‘the Courts of Appeal have consistently read the code to mean that a default judgment greater than the amount specifically demanded is void as beyond the court’s jurisdiction’]; Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 432-433; Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 444-445 [a plaintiff’s ‘prayer for damages “in excess of $5,000” ’ entitled that plaintiff to a default judgment of $5,000, but no more].) Thus, in a default proceeding in California, a prayer for relief ‘in excess of’ a specified dollar amount will result in an award of ‘no more than’ that dollar amount.” (Traci, supra, 126 Cal.App.4th at p. 160.)
However, the issue is not “whether, under California law, a prayer for relief of an amount ‘in excess of’ a specified dollar amount will result in an award of ‘no more than’ than that dollar amount, but whether the same result would obtain in Ohio. For as noted above, ‘ “California must, regardless of policy objections, recognize the judgment of another state as res judicata, and this is so even though the action or proceeding which resulted in the judgment could not have been brought under the law or policy of California.” ’ [Citations.] And defendants, whose burden it was to establish that the judgment was not enforceable in Ohio, failed to provide any Ohio authority to support their assertion that Ohio law provides that the ‘in excess of’ language in the prayer for relief constitutes a ceiling rather than a floor for recoverable damages. (Tom Thumb Glove Co. v. Han (1978) 78 Cal.App.3d 1, 5 [‘[T]he burden is on the party seeking relief to show by a preponderance of the evidence why he is entitled to it’].) Consequently, the trial court erred in vacating the judgment, since there was no basis to conclude that the Ohio court acted in excess of its jurisdiction, or that the judgment was not enforceable in Ohio.” (Traci, supra, 126 Cal.App.4th at p. 160.)
Guided by Traci, we conclude the request in the Ohio complaint for damages “in excess of” $25,000 does not render the $399,062 Ohio default judgment void.
DISPOSITION
The order denying the motion to vacate the judgment entered on the Ohio default judgment is affirmed. Allied shall recover its costs on appeal.
We concur: CROSKEY, J., KITCHING, J.