Opinion
G054928
10-24-2018
BADRIA ELNAGGAR et al., Plaintiffs and Appellants, v. SUHAILA SHUBASSI ELMOHTASEB, Defendant and Respondent.
Badria Elnaggar, in pro. per. for Plaintiff and Appellant. Eman Elamin, in pro. per. for Plaintiff and Appellant. Shaver, Korff & Castronovo, Tod M. Castronovo and Tina M. Bhatia for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07HL05322) OPINION Appeal from an order of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed. Badria Elnaggar, in pro. per. for Plaintiff and Appellant. Eman Elamin, in pro. per. for Plaintiff and Appellant. Shaver, Korff & Castronovo, Tod M. Castronovo and Tina M. Bhatia for Defendant and Respondent.
INTRODUCTION
Badria Elnaggar and Eman Elamin appeal from an order, issued in 2017, denying their motion pursuant to Code of Civil Procedure section 473, subdivision (d), to vacate a judgment entered in 2010. They contended the judgment was void because it did not match the verdict rendered in their 2010 jury trial and because their counsel had entered into an unauthorized stipulation with the court and opposing counsel regarding a response to a note the jury had sent to the court during deliberations.
All further statutory references are to the Code of Civil Procedure.
We affirm the order. Appellants have misunderstood the difference between a verdict and a judgment. The judgment as entered took into account the section 998 offers to compromise extended on behalf of the respondent, Suhaila Elmohtaseb, before the 2010 trial. The jury had no responsibility to consider these offers. As for the stipulation, appellants' counsel had the authority to enter into it without their consent, so even if he failed to obtain consent, his failure does not render the judgment void.
FACTS
Appellants sued respondent in 2007 for injuries incurred in a car accident that took place in 2005. The case was tried to a jury in February 2010. The jury returned a verdict in appellants' favor and awarded damages in the total amount of $8,416.
The case was originally filed as a limited civil case. It was reclassified as unlimited in May 2009.
Before trial, respondent made individual offers to compromise pursuant to section 998. The amounts offered exceeded the awards to each appellant. The trial court entered judgment in March 2010 in favor of appellants for the amounts awarded to them and in respondent's favor for the postoffer costs.
Appellants now deny that any such offer was made. The record contains copies of offers dated March 6, 2009.
In February 2014, appellants filed a complaint in Los Angeles Superior Court and a first amended complaint in March 2014. The first amended complaint made wide-ranging accusations against everyone involved in the 2010 trial. For purposes of this appeal, the salient allegations were that the section 998 offers to compromise were invalid for several reasons. Appellants accused respondent and related parties of fraud, forging court documents, blackmail, perjury, and other misconduct.
Respondent and the other defendants filed an anti-SLAPP motion (§ 425.16). The motion was heard on February 13, 2015, and judgment in defendants' favor (striking the complaint) was entered on February 27. Appellants appealed to the Court of Appeal, Second District, which affirmed the judgment on September 22, 2016.
Appellants filed a motion to vacate the March 2010 Orange County judgment, based on section 437, subdivision (d), on February 10, 2017. As they pertain to this appeal, the grounds for vacating the judgment were (1) the 2010 judgment materially altered the jury's verdict, which was in appellants' favor, and (2) appellants' attorney entered into an unauthorized stipulation to the trial court's response to a jury question.
On March 17, the trial court denied the motion to vacate on the ground that the 2010 judgment conformed to both the verdict and to the section 998 offers to compromise. Appellants filed an appeal from this order on May 8, 2017.
DISCUSSION
Section 473, subdivision (d), provides: "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
"'A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction "relates to the inherent authority of the court involved to deal with the case or matter before it." [Citation.] Lack of jurisdiction in this "fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.]'" (In re Andres G. (1998) 64 Cal.App.4th 476, 482.) A court also acts in excess of its jurisdiction when, "'"though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites."' [Citations.]" (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1087-1088.)
Appellants assert two grounds for reversing the order denying their motion to vacate the judgment. First, they claim that the judgment is void because the trial court altered the jury's 2010 verdict by awarding respondent her postoffer costs. Second, they complain that their attorney at the 2010 trial made an unauthorized stipulation regarding evidence, thereby rendering the judgment void. We review the trial court's determination regarding the validity of the judgment de novo. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020 (Pittman).)
The trial court also ruled that appellants' motion to vacate the 2010 judgment was unreasonably delayed. Appellants did not challenge this ruling in their opening brief, except to say that a void judgment can be challenged at any time. Appellants have therefore forfeited any argument regarding the effect of delay. (See Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [issues not raised in opening brief abandoned].)
There are two kinds of void orders: orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence. "This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that the judgment [or order] is void." (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326.) A judgment is facially void when the invalidity is apparent from an inspection of the judgment roll or court record without considering extrinsic evidence. (Pittman, supra, 20 Cal.App.5th at p. 1021; Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.) "If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face." (Pittman, supra, 20 Cal.App.5th at p. 1021.) This second type of judgment or order must be challenged within the time limits prescribe by section 473, subdivision (b), or by an action in equity. (Ibid.)
There is an exception to the rule regarding challenging a void order or judgment though extrinsic evidence. "If the [plaintiff] . . . should admit the facts which show the judgment to be void, or if he should allow them to be established without opposition, then, as a question of law upon such facts, . . . a judgment is void upon its face." (Hill v. City Cab & Transfer Co. (1889) 79 Cal. 188, 191[failure to serve defendant established; judgment void]; see Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 205-206 [plaintiff conceded defendant not served].) Respondent in this case has not admitted any facts showing the judgment to be void and has not allowed them to be established without opposition.
Appellants assert that the 2010 order is void because even though the jury found in their favor, and awarded damages to them, the judgment allowed respondent to collect more in costs than the total damage award. But appellants have failed to distinguish between the verdict and the judgment. The jury renders the verdict; it is the trier of fact. In this case, it found that respondent was negligent in operating a vehicle and awarded each appellant a few thousand dollars in damages. The court issues the judgment. In doing so, the court applies principles of law that are outside the province of the jury. In this case, the court took into account the respondent's section 998 offers to compromise. Respondent submitted evidence of the offers, which exceeded the amount of damages awarded to each appellant.
Section 998, subdivision (c)(1), provides: "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer. In addition, . . . the court . . ., in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial . . . or during trial . . . of the case by the defendant." Appellants "failed to obtain a more favorable judgment or award" from the jury, so the court was required to apply the provisions of section 998, subdivision (c)(1), in crafting the final judgment. Far from rendering the judgment void, the application of section 998 in the 2010 case was required by law.
The trial court did not alter the jury's verdict in the 2010 case. The judgment as issued in March 2010 reflected both the jury's award to appellants for their damages and respondent's statutory right to recover postoffer costs pursuant to section 998.
Appellants failed to timely appeal from the 2010 judgment. Allowing them to challenge the judgment after the time for appeal had long since expired, as they tried to do by their motion to vacate, "would be to declare that every unsuccessful litigant has two appeals, the time of one being fixed by law, the time of the other being fixed by his own convenience . . . ." (Estate of Baker (1915) 170 Cal. 578, 582.) If the amounts of the judgment were incorrect, the error had to be timely raised on a direct appeal from the 2010 judgment. The failure to do so is fatal to this appeal.
Appellants assert another basis for declaring the judgment void. During the deliberations in the 2010 car accident case, the jury sent a note to the judge asking for documents itemizing appellants' actual medical expenses. After discussing the note with counsel for both sides, the judge returned the following response: "No document was received in evidence that itemizes 'actual medical expenses' for either plaintiff. You must rely on your notes and/or memory of the testimony of various witnesses that did testify regarding past medical expenses." The minute order of that date states that both appellants were present in court when the stipulation was made.
Despite the representation in the minute order of February 8, 2010, that they were in court when the jury's note was received and the judge's response was returned, appellants claim they did not learn about the stipulation until 2014. --------
Appellants now assert that their attorney stipulated not to submit documents itemizing their medical expenses and did so without their consent, thereby rendering the judgment void. This argument is meritless.
First, appellants misstate what happened during deliberations. The jury asked for documents. Appellants' counsel did not stipulate not to submit documents; he stipulated that no such documents had been received into evidence. If no such documents had been admitted into evidence before the parties rested, the jury could not consider them during deliberations.
Second, even if appellants' counsel stipulated to the court's response to the jury's note without their consent, the judgment would not thereby be rendered void. "An attorney has implied authority to enter into stipulations affecting procedure in the trial, as distinguished from those which go to the cause of action itself [citation] . . . ." (People v. Prado (1961) 190 Cal.App.2d 374, 376; see § 283, subd. (1).) While appellants' counsel could not dismiss their complaint or settle the action without their express authorization (see Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1235-1236), he could enter into a stipulation regarding a note to the jury without obtaining consent. By no stretch of the imagination could such a stipulation have deprived the trial court of jurisdiction or have caused it to exceed its powers so as to render the judgment void.
DISPOSITION
The order denying appellants' motion to vacate the 2010 judgment is affirmed. Respondent is to recover costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.