Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. LC 033863, Leon S. Kaplan, Judge.
Law Offices of Howard Allen Levy and Howard Allen Levy for Plaintiff and Appellant.
Law Offices of Tabone and Derek L. Tabone for Defendant and Respondent.
FLIER, JUDGE.
Richard Lee Gardner, Jr., appeals from an order granting respondent Jose Landeros’s motion to vacate default and default judgment in this action. The motion was made on the grounds that respondent was never served with a summons and complaint, the court never acquired jurisdiction over him and the judgment therefore is void. We hold substantial evidence supports the trial court’s finding that respondent was never properly served, the default judgment thus is void as to him and the trial court properly vacated the default and default judgment against him. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
In 1994, respondent was introduced to Charles Bowshier by his boss, and, along with a man named Jose Aguilar, was asked to help Bowshier purchase a duplex at 7347 Jamieson Avenue in Reseda (Jamieson property). Respondent agreed and, together with Aguilar, applied for a loan and took title to the Jamieson property. Bowshier was to pay all the money to make the purchase, make all the payments, pay the taxes, maintain the property and purchase insurance. When escrow closed, Bowshier moved into one unit of the duplex and rented out the other.
Respondent did not live on, receive mail at or manage the Jamieson property. He did not collect any rent or pay any expenses. He did not know or meet any tenant. During this time, respondent lived on Laurel Canyon Boulevard in Pacoima, California.
Bowshier’s tenant, Steve Jensen, owned a dog, of which respondent was unaware. On July 9, 1995, Jensen’s dog attacked and bit appellant. Respondent was unaware of this event.
The first amended complaint alleges the attack occurred at “4347” Jamieson Avenue, but the parties apparently agree the incident occurred at the Jamieson property.
In February 1996, respondent moved to a house on Rangoon Street in Arleta, California, where he has resided ever since. His home address and telephone number have always been listed in the local telephone directory.
Appellant brought this action arising from the dog bite in September 1995, naming Jensen, Bowshier, Aguilar and respondent as defendants. He filed a first amended complaint in June 1996. In December 1996, appellant attempted to serve a summons and first amended complaint upon respondent at the Jamieson property. When the process server was unsuccessful in finding respondent at the Jamieson property, the pleadings were left with an unknown female there and a copy was mailed to respondent at the Jamieson property. Respondent did not receive the service and had no actual knowledge of the litigation.
A default judgment was entered by the court on April 21, 1997. The judgment awarded appellant $52,000 in special damages, $30,000 in loss of earnings, $250,000 in general damages and about $300 in costs, a total of over $332,000.
Respondent first became aware of this matter when the judgment appeared on his credit report, in July 2002. He obtained a copy of the court’s file and believed the incident was an insured event. He did not know the judgment was an unpaid liability. His initial concern was to remove the reference from his credit report. He went to a counseling company that referred him to two attorneys, and he also sought advice from a third attorney. Two of the attorneys recommended filing bankruptcy at a cost of about $5,000, and the third demanded that respondent pay a retainer of $10,000 before any consultation, which respondent could not afford. Respondent consulted the attorneys in February and March 2003. He was told the bankruptcy would stay on his credit report for at least seven years. None of the attorneys suggested filing a motion to vacate the judgment for lack of service.
In 2004, respondent was sued by the second mortgage holder of the Jamieson property, and he learned it had been lost by foreclosure in 1998. Respondent retained his present counsel to defend against the suit brought by the second mortgage holder.
In May 2005, appellant attempted to enforce the judgment by having a levy placed upon the bank accounts of respondent and his wife. At that point, respondent retained his present counsel to also oppose that levy. Respondent’s counsel attempted to negotiate with appellant’s representative on respondent’s behalf. He questioned the validity of service upon respondent and informed appellant’s representative that respondent had never lived at the Jamieson property where summons was supposedly served. In September 2005, respondent’s counsel provided appellant’s representative with documents proving respondent was residing in Arleta at the time of the supposed service in December 1996. Nevertheless, appellant proceeded to enforce the judgment against respondent and had a levy placed upon respondent’s wages in November 2005.
In early December 2005, respondent attempted to file a complaint to set aside the prior judgment in response to appellant’s collection efforts. This filing was rejected by the clerk with the direction that it should be brought as a motion to vacate in this action. Respondent then filed his motion to vacate default and default judgment on December 16, 2005. The motion was based on the grounds that respondent was never served with the summons and complaint, the court never acquired jurisdiction over him and the judgment therefore is void. This motion was denied without prejudice on February 2, 2006.
Appellant has not furnished this court with a transcript of the trial court’s hearing so the basis for the court’s ruling is unclear.
On March 16, 2006, respondent filed a second motion to vacate default and default judgment on the same grounds as his prior motion. The court initially denied the motion, then vacated its order and set the matter for a further hearing to take place on April 25, 2006. On that date, appellant’s counsel having failed to appear, the motion was continued again to May 25, 2006, for further briefing on equitable issues. On May 25, 2006, the court heard the arguments of counsel and took the matter under submission.
On June 30, 2006, the trial court granted respondent’s motion to vacate default and default judgment. The court ruled respondent was not entitled to relief under Code of Civil Procedure section 473.5 but that respondent was entitled to relief on equitable grounds in order to allow adjudication on the merits.
The court stated: “It appears likely that [respondent] was an unsophisticated participant to a scheme by his boss related to the financing of the residence involved in the tort, and that he has a meritorious defense to the instant tort claim. Though he was aware of the judgment in 2002 and sought legal advice, he seems not to have comprehended until he retained present counsel that he had any recourse.”
Appellant initially filed a petition for writ of mandate in this court challenging the order granting the motion to vacate. In a preliminary response to the writ petition, respondent agreed the order was appealable and stated he was not opposed to treating the writ petition as an appeal. We therefore deemed the petition to be a notice of appeal and ordered the matter to proceed as an appeal.
DISCUSSION
1. The Trial Court Properly Considered the Renewed Motion to Vacate
Appellant initially contends that the trial court improperly considered a renewed motion to vacate without compliance with the provisions of Code of Civil Procedure section 1008. Specifically, appellant argues the trial court had no jurisdiction to grant a “renewed or reconsidered” party-instituted motion because respondent did not provide a declaration showing what new or different facts, law or circumstances were the basis for his renewed motion nor specified what prior order was made and by what judgment, as required under the statute.
Code of Civil Procedure section 1008, provides, in relevant part: “(b) A party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. . . . [¶] . . . [¶] (e) This section specifies the court’s jurisdiction . . . and applies to all applications to reconsider any order . . . or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
Appellant relies on Le Francois v. Goel, a case in which our Supreme Court held Code of Civil Procedure section 1008 limits a party’s power to file repetitive motions but a court may, upon its own motion, reconsider prior interim orders to correct its own errors. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) Goel explained the court has jurisdiction to reconsider its prior ruling whether “the ‘judge has an unprovoked flash of understanding in the middle of the night’ [citation] or acts in response to a party’s suggestion.” (Id. at p. 1108.) In either case, “if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus it might want to reconsider that ruling on its own motion . . . [,] it should inform the parties of this concern, solicit briefing, and hold a hearing.” (Id. at p. 1108.) This is essentially what the trial court did in the present case when the court denied respondent’s initial motion to vacate without prejudice, thus implicitly granting respondent leave to renew his motion. (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015 [“Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial”].) We assume the court’s written minute order means what it says, absent evidence showing otherwise. There is no showing the court did not intend by its order to grant leave to file a renewed motion. Respondent did renew his motion, the parties briefed the issues and the court granted the renewed motion after a further hearing on the merits.
The trial court therefore had jurisdiction to consider, and properly considered, the renewed motion to vacate.
2. Substantial Evidence Supports the Trial Court’s Implied Finding that Respondent Was Not Properly Served
We review the trial court’s factual findings under the substantial evidence standard of review, viewing the evidence in the light most favorable to the prevailing party, giving the party the benefit of every reasonable inference, and resolving all conflicts in his favor. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.)
In granting the motion to vacate, the court impliedly found that respondent was never validly served as a defendant in this action. Substantial evidence supports this finding.
Respondent declared he never resided at the Jamieson property, was never served and had no actual knowledge of the action until 2002. The proof of service indicates a substitute service was made on a “Jane Doe” at the Jamieson property on December 21, 1998. The evidence showed without conflict that respondent was residing on Rangoon Street in Arleta at that time and had resided at that address for 10 months. Respondent also was listed at the Rangoon Street address in the telephone directory. The proof of service showed the process server made only three attempts over three consecutive days to serve respondent before making a substituted service at the Jamieson property and shows no attempt to ascertain respondent’s true residence address. Respondent never received mail at the Jamieson property, nor did he manage or visit the property after the close of escrow. Under the evidence presented, the substituted service was ineffective. The court properly found that respondent was never validly served.
The proof of service shows a first attempt to serve respondent was made at 10:47 a.m. on December 18, 1996, when there was “no answer”; a second attempt was made at 3:46 p.m. on December 19, 1996, when again there was “no answer”; a third attempt was made at 8:00 p.m. on December 20, 1996, at which time the process server simply noted, “defendant not in.” The next day, December 21, 1996, the process server apparently returned to the Jamieson property and left a copy of the summons and other pleadings with a “Jane Doe,” giving a physical description of her and simply indicating that she was a “competent member of the household” and at least 18 years of age and that he had informed her of “the general nature of the papers.” The proof of service indicated a copy of the papers was also mailed to respondent at the Jamieson property on December 24, 1996.
3. The Trial Court Properly Vacated the Default and Default Judgment
We agree with respondent that this case is controlled by City of Los Angeles v. Morgan, which holds that under the due process clause of the federal Constitution “a personal judgment rendered without service of process on, or legal notice to, a defendant is not merely voidable, but void, in the absence of a voluntary appearance or waiver.” (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 730 (Morgan), citing McDonald v. Mabee (1917) 243 U.S. 90.) Under Morgan, “[i]f the invalidity of the judgment is apparent by an inspection of the judgment or the judgment roll it may be vacated upon motion at any time after its entry. [Citation.] If, however, the invalidity is not thus apparent, it may be set aside by motion, if such motion is filed within a reasonable time, i.e., not longer than the time set forth in Code of Civil Procedure, section 473 [i.e., six months]. [Citations.] Otherwise, the challenge permitted is limited to an action in equity to vacate the judgment.” (Morgan, supra, at p. 730.) In this case, respondent first attempted to file an independent action in equity to set aside the judgment, but the pleading was rejected by the clerk. Respondent then filed a motion to vacate default and default judgment in this action. Respondent therefore made a reasonable attempt to comply with the described procedure.
Respondent properly challenged the proof of service by providing evidence he never received actual or constructive notice of the action prior to entry of judgment and not until years after its rendition. As the court stated in Morgan, “ ‘It has long been established that a false affidavit of service constitutes extrinsic fraud. A party is thus prevented from having his day in court. Courts of equity will relieve a party from an unjust judgment rendered against him when, without service of process, either actual or constructive, no opportunity has been given him to be heard in his defense.’ ” (Morgan, supra, 105 Cal.App.2d at p. 731.)
Appellant essentially concedes that no proper service was made on respondent but asserts that respondent as a matter of law did not exercise due diligence in seeking equitable relief from the default and default judgment. Appellant argues that beyond the six-month period in which relief can be obtained under Code of Civil Procedure section 473, “there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.) Appellant claims a delay of more than three years between the time respondent had knowledge of the lawsuit and the time he filed a renewed motion to vacate clearly cannot justify equitable relief from a judgment, when unexplained delays of merely a few months are deemed unreasonable in context of a section 473 motion.
However, a judgment void for lack of due process notice or extrinsic fraud is subject to attack at any time in a proceeding or action brought for that purpose. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 488; see also Stern v. Judson (1912) 163 Cal. 726, 735-736.) Absent service of process upon the defendant, he has no duty to take affirmative action at any time to preserve his right to challenge the judgment even if he obtains actual knowledge of the judgment. (Morgan, supra, 105 Cal.App.3d at p. 731.) “What is initially void is ever void and life may not be breathed into it by lapse of time.” (Ibid.) Indeed, if a plaintiff chooses to obtain a judgment that is void for lack of service upon a defendant, “he and his privies may not complain that the law does not subsequently accord to them a so-called ‘right’ which has never existed.” (Ibid.) Neither laches nor ordinary statutes of limitation may be invoked as a defense against an action or proceeding to vacate such a judgment. (Id. at p. 732.)
Moreover, “there is a well established exception which provides that although the judgment or order is valid on its face, if the party in favor of whom the judgment or order runs admits facts showing its invalidity, or, without objection on his part, evidence is admitted which clearly shows the existence of such facts, then it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569.) Appellant did not take issue with respondent’s claim that he was never properly served. In such event, “it is the duty of the court to declare the judgment void as a matter of law upon the admitted facts.” (Id. at p. 570.)
When the defendant never had knowledge of the suit and there accordingly has never been a real contest in the trial or hearing of the case, there is reason to open the case for a “new and fair hearing.” (Cf. Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) The trial court properly granted the motion the vacate default and default judgment.
DISPOSITION
The order is affirmed. Respondent is to recover his costs on appeal.
We concur: COOPER, P. J. BOLAND, J.