Opinion
A130316
12-02-2011
DIGI-SHARK et al., Plaintiffs and Respondents, v. KEN BELANGER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City & County of San Francisco Super. Ct. No. CGC-09-493329)
Ken Belanger (defendant) appeals from the trial court's order denying his motion to set aside the default judgment obtained by Digi-Shark and Curt Simon (plaintiffs). He contends the trial court erred in ruling on the motion without hearing oral testimony. We affirm the trial court's order.
BACKGROUND
On October 9, 2009, plaintiffs filed a complaint against defendant. Process servers were engaged to serve the summons, complaint, and related documents on defendant. The proof of service filed with the trial court reflected that, on October 23, 2009, Kurt Serbus personally served the documents on defendant.
Defendant did not file any response to the complaint and, on November 24, 2009, plaintiff filed a Request for Entry of Default, which was mailed to defendant's home address. The court clerk entered the default on December 15, and a default judgment was filed on March 4, 2010.
On June 1, 2010, defendant filed a motion to set aside the default judgment. He contended that the default judgment was void because he had not been properly served with the complaint.
The trial court had previously denied defendant's motion to quash the summons.
In opposing defendant's motion, plaintiffs relied on a declaration from Serbus, a private investigator, who averred he personally served defendant on October 23, 2009. He averred he had been provided with defendant's residence address, 427 Chestnut Street in San Francisco, and that defendant had been described to him as being approximately 5 feet 8 inches tall, overweight, and with thin to balding hair. On the morning of October 23, Serbus was waiting outside defendant's building. At 9:24 a.m., Serbus "observed a man exiting the building who matched the description of [defendant]." Serbus approached the man, stating defendant's name. Defendant turned towards Serbus in response to his name, and Serbus handed him a copy of the summons, complaint, and related documents as he was about to enter a car. Defendant took the papers from Serbus and threw them into Serbus's car, whereupon Serbus tossed the papers on the street in front of defendant. Defendant then entered a car and drove off. During this exchange, defendant "answered to his name at least three times."
Counsel for plaintiffs averred in a declaration that Serbus called him on October 23, 2009, and stated that he had effected service on defendant and that defendant had thrown the papers at Serbus. Counsel also averred that he mailed defendant a copy of the documents on October 27, but they were returned marked "Return to Sender - no such person at address." Counsel then e-mailed the documents to defendant on November 12.
In support of his motion, defendant primarily relied on a declaration from a neighbor, Steven House, who averred that he was the person with whom Serbus interacted at 9:24 a.m. on the morning of October 23, 2009. House averred in part: "4. As I was sitting in my car about to start the engine, the [process server] walked up [to] the driver side window with an envelope in his hand and tapped on the driver's side window of my car. [¶] 5. I opened my door, stepped out, and asked him what he wanted. He then stated 'Here this is for you' and handed me the envelope he had been holding. [¶] 6. I looked at the envelope. Written on the outside was the name Ken Belanger. [¶] 7. After reading the name on the envelope, I told the [process server] that I was not Ken Belanger, and went to hand the envelope back to him. He replied: 'You have been identified as Ken Belanger' and walked away as I tried to hand the envelope back. [¶] 8. The [process server] then walked back to his car opened the passenger door and got in the car. While the driver's door was still open, I tossed the envelope through the open door to the [process server]. [He] caught the envelope and then threw it on the street directly outside his car open door, closing his door and driving off in his car." House's physical description differs from that of defendant; House is 6 feet 4 inches tall, thin, and has a full head of dark hair.
On July 1, 2010, a hearing was held on defendant's motion to set aside the default judgment. The trial court stated it had reviewed the declarations provided by both parties and refused to permit oral testimony by House. The court found that defendant had received personal service. The court entered an order denying the motion on September 22, and this appeal followed.
DISCUSSION
Defendant does not dispute that the Serbus declaration provides substantial evidence for the trial court's finding that he was served with the summons and complaint on October 23, 2009. Instead, he contends the trial court erred in refusing to hear live testimony from Serbus and House in order to resolve the factual conflict reflected in their declarations.
California Rules of Court, rule 3.1306 provides for the receipt of evidence at a hearing on a motion, as follows: (a) "Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown." (b) "A party seeking permission to introduce oral evidence . . . must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other parties in a manner to assure delivery to the other parties no later than two days before the hearing."
All further rules references are to the California Rules of Court.
Rule 3.1306 gives the trial court discretion to decide whether to permit oral testimony and cross examination. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1499-1500; see also California School Employees Assn. v. Del Norte County Unified Sch. Dist. (1992) 2 Cal.App.4th 1396, 1405 [citing rule former 323 and stating, "the trial court has broad discretion to decide a case on the basis of declarations and other documents rather than live, oral testimony"]; Laraway v. Sutro & Co. (2002) 96 Cal.App.4th 266, 273 ["Determinations of good cause are generally matters within the trial court's discretion, and are reversed only for an abuse of that discretion. [Citations.]"].)
Effective January 1, 2007, former rule 323 was renumbered rule 3.1306.
In the present case, although defendant indicated in his motion to set aside the default judgment that he wanted the trial court to hear live testimony to resolve the evidentiary conflict between the House and Serbus declarations, he did not file the written statement required by rule 3.1306, requesting permission to introduce oral evidence and stating the nature and extent of the proposed testimony. On appeal, defendant does not argue he complied with rule 3.1306. Moreover, the relevant witnesses were not available at the July 1, 2010 hearing—although defendant represented that House could come to court in 10-15 minutes, House was not actually at the hearing; and there is no indication in the record that Serbus was available at the hearing.
Defendant's failure to comply with rule 3.1306 may have been due to the fact that he was representing himself. However, that did not excuse him from complying with the applicable court rules. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 ["A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation."]; accord, Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1269-1270.)
Although it is normally the better course for a trial court to hear oral testimony where resolution of an issue "depend[s] upon which of two sharply conflicting factual accounts is to be believed," there is "no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 414.) In the circumstances of this case, had defendant complied with rule 3.1306, it might have been an abuse of discretion for the trial court to refuse to hear oral testimony. However, in light of defendant's failure to comply with the rule, and the delay and waste of court resources that would have occurred had the hearing been postponed to permit the receipt of testimony from House and Serbus, the trial court did not abuse its discretion in deciding to resolve the evidentiary conflict without receiving oral testimony. (See Silver v. Los Angeles County Metropolitan Transportation Authority (2000) 79 Cal.App.4th 338, 352 [citing rule former 323 and stating, "[t]he absence of a duly filed request by petitioners to present oral testimony at the hearing further disposes of the contention" that the trial court erred in not hearing oral testimony]; see also People v. Lewis (1977) 71 Cal.App.3d 817, 820-821 [counsel's failure to follow local rule requiring written notice "provided an adequate basis for the trial court's refusal to consider defendant's motion to suppress"].)
Defendant points out that the trial court did not reference rule 3.1306 at the July 1, 2010 hearing. However, the general rule is " 'that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]' [Citations.]" (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) So long as such possible grounds may exist for the trial court to have denied defendant's request to present oral testimony, defendant has not sustained his burden to demonstrate error and overcome the presumption of correctness attending the trial court's order. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
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DISPOSITION
The trial court's order is affirmed.
SIMONS, J.
We concur.
JONES, P.J.
BRUINIERS, J.