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Banks v. Williams

California Court of Appeals, Third District, Monoc
Mar 25, 2008
No. C050251 (Cal. Ct. App. Mar. 25, 2008)

Opinion


THOMAS BANKS, Plaintiff and Respondent, v. GEORGE J. WILLIAMS III, Defendant and Appellant. C050251 California Court of Appeal, Third District, Mono, March 25, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 12922

SIMS, Acting P.J.

This is the third time this court has been called upon to rule in this dispute, which began as a $7,000 loan by plaintiff Thomas Banks to defendant George J. Williams III. Banks successfully sued Williams to collect the loan. Williams then sued Banks, Banks’s lawyers, and the trial judge who presided over the collection matter. When Williams’s action was dismissed, Banks brought this lawsuit for malicious prosecution, and the trial court entered a default judgment in Banks’s favor.

In our first unpublished opinion (Banks v. Williams (Mar. 27, 2002, C038939) [nonpub. opn.] (Banks I)), we reversed the malicious prosecution default judgment against Williams on the sole ground that Banks had failed to give Williams adequate notice of Banks’s damages. Banks then gave notice to Williams of Banks’s damages, and the trial court entered a second default judgment in Banks’s favor. In our second unpublished opinion (Banks v. Williams (June 29, 2004, C045001) [nonpub. opn.] (Banks II), we upheld entry of the second default judgment against a barrage of challenges, including Williams’s claim that Banks failed to properly serve him with the statement of damages, and that the trial court erred in assigning Williams’s copyright interests to Banks in Banks’s capacity as judgment creditor.

Williams then sought to vacate the second default judgment on grounds of extrinsic fraud: he argued that because he never received the statement of damages, application for default judgment, request for entry of default judgment, or application for copyright assignment order, Banks’s attorney must be lying when she averred that she mailed these documents to him. When the trial court refused to set aside the default judgment, Williams brought this pro se appeal.

We find no error and shall affirm the judgment.

BACKGROUND

Williams has elected to proceed on a clerk’s transcript (Cal. Rules of Court, rule 8.120); thus, the appellate record does not include a reporter’s transcript of the hearing that gave rise to the order challenged in this appeal. This is referred to as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

1. Prior Proceedings

We begin with a short verbatim recitation of the factual background of this case, taken from our opinion in (Banks I, supra, C038939).

“In February 1997 Banks sued Williams for repayment of [a] $7,000 loan. Williams allowed his default to be taken in this first action and filed an appeal, which he later abandoned. Williams then filed an action in the United States District Court against Banks, Banks’s attorneys, and the trial court judge, claiming violations of his civil rights.

“After the federal action was dismissed, Banks filed a complaint for malicious prosecution. However, Banks failed to include any allegations in his complaint concerning the specific amount of damages he sought against Williams. Williams again failed to appear, and the court entered a default judgment against him.

“Williams appealed the judgment. We reversed the judgment on the sole ground that Banks failed to serve Williams with a statement of damages.

“Subsequently, Banks mailed a statement of damages and proof of service to Williams. Williams again failed to appear and the trial court entered a default. Banks filed an application for default judgment and for assignment order. Once again, Williams failed to appear. [On August 14, 2003, t]he trial court entered a default judgment and an order assigning Williams’s copyright interests to Banks, the judgment creditor.” (Banks I, supra, C038939.)

Williams appealed from the August 2003 default judgment entered in Banks’s favor in the malicious prosecution action. In Banks II, we affirmed the default judgment. In so doing, we repeated our observation from Banks I that Banks had “properly served Williams with the summons and complaint[,]” thereby subjecting him to the court’s jurisdiction, and that Williams had made a general appearance in this action.

We rejected Williams’s contention that Banks “never properly served” the statement of damages; and concluded instead that “Banks fully complied with the applicable notice requirements” for service of the statement of damages by personally mailing copy of the statement of damages to Williams at his Carson City Post office box by first class mail.

2. Williams’s Motion to Vacate the August 14, 2003, Judgment

In January 2005, Williams moved to vacate the August 2003 judgment on the ground it “was secured by extrinsic fraud.” Specifically, Williams asserted he never “received” the statement of damages, application for default judgment, request for entry of default judgment, or application for copyright assignment order. He urged the trial court to reject affidavits by Banks’s former counsel that she sent these documents to him by mail as inadequate to constitute proofs of service, or perjurious. In support of his motion, Williams submitted a declaration that he “did not receive” these documents “by any means.” He also submitted a declaration by his wife that “we received nothing . . . in the mail or by personal service” related to this case after this court’s first unpublished opinion and by his daughter (who picks up mail when her parents are out of town) that she received no letters for her father from Banks or his counsel between April and May 2002.

In Williams’s view, Banks’s former attorney “could have served the statement of damages and the request for entry of default by express mail, priority mail, Federal Express, requiring a signed receipt and thereby obtained proof of actual receipt of delivery. She could have served the documents by fax and obtained a fax machine printout. [She] did neither[, and] [f]or an attorney to fail to obtain actual proof of service of such important legal papers is a factor beyond incompetance.” (Paragraph break omitted.)

Banks opposed the motion, arguing that it was untimely under Code of Civil Procedure section 473 (undesignated section references are to the Code of Civil Procedure); that this court’s prior unpublished opinion established that service by first class mail was proper after Williams’s general appearance in this case, and Banks was not obliged to use alternative methods, such as Federal Express; and that Williams’s representations that he did not receive the documents are not credible.

The trial court denied Williams’s motion on February 15, 2005. According to the clerk’s minutes, the court conducted an unreported hearing, at which Williams appeared, represented himself, and argued “at length regarding his motions.” Banks was ordered to prepare a formal order.

DISCUSSION

I.

On appeal, we must presume the trial court’s judgment or order is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We therefore adopt all inferences in favor of the judgment or order appealed from, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging an order on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must present an analysis of the facts and legal authority on each point made, and also must support the arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Although Williams is representing himself on appeal, he is held to the “same ‘restrictive procedural rules as an attorney.’” (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)

Because Williams has chosen to appeal only “on the judgment roll” (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we “‘must conclusively presume that the evidence is ample to sustain the [trial court’s] findings.’” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error “appears on the face of the record.” (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)

II.

Williams contends the trial court should have set aside the default judgment against him because it was obtained via extrinsic fraud and is therefore void. “Inherent in that ground is the statement by implication that the recital of service in the purported affidavit and certificate of service in the judgment roll is false. That falsity is of necessity either mistaken or deliberately fraudulent.” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181.) Williams’s appeal charges deliberate fraud: he asserts his declaration (taken with those of his wife and daughter) establishes he failed to “receive” documents regarding entry of the second default judgment entered against him, and demonstrates uncontrovertibly that Banks’s former counsel lied when she averred she mailed them to him.

Williams is inconsistent in his description of the documents he claims he did not receive. In his motion in the trial court to set aside the default judgment, Williams states the evidence of extrinsic fraud lies in Banks’s former counsel’s declarations that she mailed to him the statement of damages; a “request for entry of default judgment” (and supporting declaration by Banks); an “application for default judgment”; and an application for assignment to Banks of Williams’s copyrights in certain books as a means to satisfy the judgment.

Banks responds that Williams’s representations he failed to “receive” the documents mailed are not credible and, in any event, his motion was properly denied as untimely because the judgment was not void on its face, and Williams failed to seek to set it aside within one year of its entry.

Banks is correct that Williams’s January 2005 motion to set aside the August 2003 default judgment was untimely.

Section 473 grants the trial court discretion to set aside a judgment under certain circumstances. Under subdivision (d) of that section, the trial court may set aside a void judgment and there is no statutory time limit for doing so. Subdivision (b), on the other hand, states a time limit within which to set aside a judgment. Under that provision, application for relief must be “made within a reasonable time, in no case exceeding six months, after judgment . . . was taken.”

The question as to which of these two provisions applies turns on whether the default judgment rendered against Williams was void or merely voidable. A judgment is void when the trial court lacks fundamental jurisdiction (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 (Goddard)) and is “‘vulnerable to direct or collateral attack at any time.’” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) Fundamental jurisdiction is the court’s inherent authority over the subject matter and the parties before it. (Ibid.; Abelleira v. District Court of Appeal, Third Dist. (1941) 17 Cal.2d 280, 288.)

In contrast, a court that has fundamental jurisdiction may lack the power to act except in a particular manner, to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites. Although this lack of power is often referred to as “jurisdiction,” a court that lacks this latter type of jurisdiction renders a judgment that is merely voidable. (Goddard, supra, 33 Cal.4th at p. 56; Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1343-1343.) A voidable judgment may be attacked directly by motion to vacate the judgment or on appeal but is generally not subject to collateral attack once the judgment is final unless “‘unusual circumstances were present which prevented an earlier and more appropriate attack.’” (People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 661.)

Williams insists the judgment is void, and subject to attack at any time. He is mistaken. As we explained in Banks I and reiterated in Banks II, Banks “properly served Williams with the summons and complaint” in 2000, thereby subjecting Williams to the court’s jurisdiction. A default judgment taken against Williams thereafter is not void, and thereby open to attack at any time. It is merely voidable, and may only be set aside on direct appeal or by a timely motion pursuant to section 473, subdivision (b). (Goddard, supra, 33 Cal.4th at p. 56.)

Section 473, subdivision (b), provides, as pertinent, that application to set aside a judgment “shall be made within a reasonable time, in no case exceeding six months, after the judgment . . . was taken.” Under subdivision (b) of section 473, Williams’s January 2005 motion to set aside the August 2003 default judgment was not timely.

Moreover, even if his motion to set aside the judgment had been timely made, Williams could not prevail on appeal from the trial court’s refusal to vacate it. Whether service was properly made as shown by a proof of service is a question of fact for the trial court (see Rackov v. Rackov (1958) 164 Cal.App.2d 566, 570), and its “determination is binding on an appellate court if supported by substantial evidence.” (Crescendo Corp. v. Shelted, Inc. (1968) 267 Cal.App.2d 209, 212.) William’s sole ground for appeal rests on his assertion that the court should have disbelieved the sworn affidavits of service submitted by Banks’s former counsel.

His claim of error fails because our review of this judgment roll appeal is limited to error that appears on the face of the record. (See National Secretarial Service, Inc. v. Froehlich, supra, 210 Cal.App.3d at p. 521.) Williams does not dispute that the record contains evidence -- in the form of affidavits and proofs submitted by Banks’s former counsel -- that the subject documents were mailed to him at the proper address. And, as we explained in Banks II, service by mail is appropriate under sections 1010 to 1020 once a party has made a general appearance in an action.

He contends, rather, that Banks’s counsel’s statements are false. Whether the proof of service is fraudulent is a factual dispute properly resolved by a trial court. “Issues of fact and credibility are questions for the trial court and not the reviewing court. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the trier of fact.” (In re Christina T. (1986) 184 Cal.App.3d 630, 638-639.) We defer to the trier of fact on issues of credibility and we may reject testimony believed by the trier of fact “‘only when it is inherently improbable or incredible, i.e., “‘unbelievable per se,’” physically impossible, or “‘wholly unacceptable to reasonable minds.’”’” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Banks’s former counsel’s averments that she served the subject documents on Williams by mail are none of these.

We presume the court’s implicit conclusion to favor the credibility of Banks’s former counsel over Williams was also based in part on its evaluation of Williams’s demeanor at the hearing on his motion to set aside the judgment and its judgment of his credibility. Under such circumstances, the court is the sole judge of credibility, and we do not upset its findings on appeal.

III.

By separate motion, Banks has moved for sanctions against Williams for filing a frivolous appeal. (§ 907.) “Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Although without merit, we do not find Williams’s claims frivolous. Accordingly, we decline Banks’s request for sanctions.

However, we have this message for Williams: enough already!

DISPOSITION

The judgment is affirmed. Banks shall recover his costs. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur: NICHOLSON, J., ROBIE, J.

In his appeal, Williams also argues that this court must reverse the default judgment “[b]ecause the court record now shows that Williams did not receive a notice of entry of default judgment prior to the second default judgment.” The record shows that the court served a copy of the judgment by mail on Williams.


Summaries of

Banks v. Williams

California Court of Appeals, Third District, Monoc
Mar 25, 2008
No. C050251 (Cal. Ct. App. Mar. 25, 2008)
Case details for

Banks v. Williams

Case Details

Full title:THOMAS BANKS, Plaintiff and Respondent, v. GEORGE J. WILLIAMS III…

Court:California Court of Appeals, Third District, Monoc

Date published: Mar 25, 2008

Citations

No. C050251 (Cal. Ct. App. Mar. 25, 2008)