Opinion
A132227
01-19-2012
GLYNN & FINLEY, LLP, Plaintiff and Respondent, v. THOMAS ANDERSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. C08-02058)
Thomas Anderson appeals from an order denying his motion to vacate a stipulated judgment and to dismiss an action filed by his former attorneys, Glynn & Finley, LLP (Glynn). Anderson's claims turn on his contention that he did not sign the stipulated judgment until after it was already entered by the trial court. He presented no declarations or other evidence to support his contention but instead relied upon the fact that the stipulated judgment, on its face, purports to show a date next to his signature that postdates entry of the judgment. We affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Glynn agreed to defend Anderson in a personal injury lawsuit filed by an individual who had been severely injured in a motorcycle accident on Anderson's property. Anderson and Glynn entered into a written agreement describing the terms of Glynn's engagement, including the payment of legal fees and costs. Glynn obtained a defense verdict for Anderson following a bench trial. In the months following the conclusion of the personal injury lawsuit, Anderson made several small payments toward the fees incurred in his defense but still owed Glynn more than $300,000.
In "around April" 2008, Glynn advised Anderson that it would take steps to collect the debt. Anderson's lawyer at the time, Jean Ann Bauer, sent Glynn a letter in which she acknowledged the fees that were owed but requested further forbearance in collecting the debt from her client. Eventually, Glynn proposed that a stipulated judgment be entered against Anderson on negotiated terms. Following further negotiations, on June 26, 2008, Glynn sent Bauer a letter agreement, proposed complaint, and proposed stipulated judgment. The proposed complaint set forth a breach of contract cause of action against Anderson and Sand Hill Ranch for failure to pay legal fees. The proposed stipulated judgment provided that Glynn would have judgment entered jointly and severally against Anderson and Sand Hill Ranch for the principal sum of $300,000 with interest to accrue at 10 per cent per year until the judgment was paid in full.
In the first half of August 2008, Bauer returned the stipulated judgment to Glynn. The stipulated judgment bore Anderson's signature. The handwritten date next to Anderson's signature appears to be "11-8-08." The court docket reflects that Glynn filed its complaint against Anderson and Sand Hill Ranch on August 14, 2008. Glynn sent the stipulated judgment containing the parties' signatures to the clerk of the trial court by first-class mail on August 14, 2008. Glynn's cover letter to the court clerk reflects that a copy was sent to Bauer. The trial judge signed the stipulated judgment on August 25, 2008, and it was filed on August 29, 2008. Glynn served notice of entry of the judgment on Anderson and Bauer on September 5, 2008. The cover letter accompanying the notice of entry of judgment reflected that Glynn would file appropriate abstracts of judgment and a notice of judgment lien but would stay further enforcement of the judgment until January 2009.
The appendix provided by appellant does not include a copy of the filed complaint. The only copy of a complaint contained in the record on appeal is the draft complaint sent by Glynn to Anderson's attorney on June 26, 2008.
On January 12, 2009, Glynn sent a letter to Anderson and Bauer giving notice that Anderson and Sand Hill Ranch were in default pursuant to the parties' letter agreement dated June 26, 2008. Even though Glynn had the right to execute on the judgment, it continued to forebear in order to give Anderson more time to satisfy his obligation. Bauer responded in a letter dated March 3, 2009, in which she stated that her client was unable to satisfy the debt because a contract to sell an eleven-acre parcel of land had been breached unexpectedly by the buyer. According to the letter, the proceeds of the sale had been intended to satisfy Anderson's debt. Bauer urged further forbearance while Anderson pursued various lawsuits that might yield favorable settlements. Notably, Bauer did not question her client's obligation to pay the debt or dispute that the court had entered a judgment against Anderson in favor of Glynn.
Throughout 2009 and early 2010, Glynn continued to forbear in order to allow Anderson additional time to sell real property and use the proceeds to pay the judgment debt. Ultimately, the trial court entered a writ of execution at Glynn's request in May 2010. Even then, Glynn continued to forbear from compelling a sale of Anderson's property to provide Anderson's real estate agent additional time in which to secure a buyer. After further delay, on January 4, 2011, Glynn filed a motion seeking an order to sell Anderson's property. As reflected in the court docket, Bauer was representing Anderson and Sand Hill Ranch in this action as of January 2011. The trial court heard Glynn's motion on February 17, 2011. Neither Anderson nor his counsel appeared at the hearing. The court granted the motion for sale of Anderson's property by order dated March 10, 2011.
On February 16, 2011—one day before the hearing on Glynn's motion for an order of sale—Anderson filed a motion to vacate the judgment and dismiss the action. The motion was not filed by Anderson's long-time counsel, Bauer, but was instead filed by an attorney who had substituted as counsel for Anderson in place of Bauer. In the motion, Anderson sought to vacate the judgment on the ground it was void when entered because he had not been served with the lawsuit and purportedly had not appeared in the action before entry of judgment. Anderson claimed in his motion that the trial judge signed the stipulated judgment before it had been signed by him. Anderson also argued that the action should be dismissed because Glynn failed to serve the summons and complaint within two years of the filing of the action. Anderson's motion was not supported by any declarations or other evidence. Instead, Anderson's assertion that he did not sign the stipulated judgment before its entry was based solely on the fact that the handwritten date next to his signature on the stipulated judgment—which appears to read "11-8-08"— postdates the trial judge's dated signature of August 25, 2008.
Glynn opposed the motion and filed a detailed declaration with attached documentary evidence setting forth the history of the attorney fee dispute as well as the action giving rise to this appeal. In its opposition, Glynn suggested that Anderson had dated his signature on the stipulated judgment in a "day-month-year" format—thus reflecting that he signed the judgment on August 11, 2008, not November 8, 2008. Among other things, Glynn stated it was absurd to think the trial judge would sign a stipulated judgment that was not fully executed. Further, Glynn pointed out that a certified copy of the stipulated judgment was signed by both parties as well as the court. Anderson did not file a reply memorandum or submit any additional documentation or evidence to support his motion.
The trial court heard Anderson's motion on April 14, 2011. In a tentative ruling denying the motion, the court stated: "If there was a legitimate dispute about the date [Anderson] signed the stipulated judgment, it should have been brought long ago—there is no explanation (in the form of a declaration of [Anderson] or new counsel) for the delay in challenging the stipulated judgment which was filed on August 25, 2008." At the hearing, Anderson's counsel reported that he tried to get a declaration from his client but was unable to get it filed. He also claimed he was unable to get a declaration from Anderson's former counsel, Bauer, because "of course" she would not challenge a settlement and judgment that she had purportedly negotiated. Anderson's counsel offered to have his client testify that he did not sign the stipulated judgment before its entry, and he stated there was no competent evidence that his client had transposed the day and month when signing the stipulated judgment. He also argued there was no need for additional evidence because the defect was evident on the face of the judgment.
The court initially noted that Anderson's counsel had failed to offer any declarations or other evidence to support his motion. The court then stated: "But aside from that, there's one huge stumbling block that I don't know how you get around. And that is the stipulated final judgment that was signed by [the trial judge]. I don't know how that could possibly be in the court file file[-]stamped in August if, August 29th to be exact, that's when it was microfilmed, if it wasn't signed until November, unless somebody snuck into the court in the middle of the night and found this one document, snuck it out, had it signed, and then snuck it back in. It doesn't make sense. Logically that couldn't have happened. [¶] So it obviously was signed before with both signatures, plaintiff and defendant, before [the trial judge] signed it. There's just no other explanation that makes logical sense." The court confirmed its tentative ruling and denied Anderson's motion in its entirety.
In a written order filed May 24, 2011, the court adopted its tentative ruling and further found that Anderson "has failed to establish that the underlying Stipulated Judgment was not in fact signed by Mr. Anderson before being entered by the Court as the Final Judgment in this matter." Anderson filed a timely appeal.
DISCUSSION
Each of Anderson's arguments rests on the same factual assertion—that he did not sign the stipulated judgment before it was entered by the trial court. As we explain, the court did not err in finding that Anderson signed the stipulated judgment before it was signed by the trial judge and entered by the court clerk. As a consequence, Anderson's remaining arguments necessarily fail as a matter law.
1. The Trial Court did not Err in Finding that Anderson Signed the Stipulated Judgment Prior to Its Entry.
In his opening brief, Anderson proceeds on the assumption that he did not sign the stipulated judgment before its entry, apparently relying on the purported discrepancy on the face of the judgment suggesting that he did not sign it until November 8, 2008, after the judgment has already been entered. Anderson's assumption is unwarranted. The question of when Anderson signed the stipulated judgment is at the center of the dispute. The court found as a factual matter that Anderson had signed the stipulated judgment before it was entered. Thus, the fundamental issue on appeal is whether there is some basis for overturning the trial court's factual finding.
Where, as here, the claim is that the judgment is void on its face, we ordinarily review the trial court's order de novo. (See Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.) This is so because the inquiry presents a legal question based upon undisputed facts—i.e., we consider the legal effect of facts apparent from the face of the judgment or the judgment roll. In this case, however, it is not apparent from the face of the stipulated judgment when Anderson actually signed the document. Anderson claims he signed the stipulated judgment only after it was entered, whereas Glynn contends Anderson signed the judgment before its entry, irrespective of the interpretation to be given to the handwritten date next to Anderson's signature. Simply because Anderson appears to have written "11-8-08" next to his signature does not necessarily mean that he signed the document on November 8, 2008. As Glynn has suggested, Anderson may have used a "day-month-year" date format. Alternatively, Anderson may have simply been confused as to the date, or he may have attempted to "postdate" the judgment in order to delay its entry, as one would postdate a check. In short, the relevant facts here are far from undisputed. Under these circumstances, we apply de novo review in considering the court's legal conclusions but we assess the court's factual findings under a substantial evidence standard to determine whether the findings are supported by substantial evidence in the record. (Cf. County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.)
We note that no party has suggested Anderson sought to postdate the stipulated judgment nor has any party addressed the legal consequence, if any, of an attempt to postdate a stipulation. Any such arguments are therefore waived. (See People v. Becker (2010) 183 Cal.App.4th 1151, 1156 [claim not raised in trial court or in opening brief deemed forfeited].)
The evidence in the record strongly supports the trial court's finding that Anderson signed the stipulated judgment before it was entered. In its opposition to Anderson's motion, Glynn filed a certified copy of the stipulated judgment that bears Anderson's signature. As the trial court observed, there is no conceivable explanation for the microfilmed, filed judgment to contain Anderson's signature unless it was already signed when it was entered. Further, it is difficult to conceive that the trial judge would sign a stipulated judgment that was not fully executed by the parties. Anderson has failed to offer any explanation—or evidence—that would contradict the logical and compelling conclusion that the stipulated judgment contained Anderson's signature at the time it was signed by the trial judge.
In addition, the evidence offered by Glynn supports the conclusion that Anderson signed the stipulated judgment before its entry. Glynn stated under penalty of perjury that it received a signed copy of the stipulated judgment from Anderson's former counsel, Bauer, in early August 2008. Glynn's records reflect that it transmitted to the court on August 14, 2008, a copy of the stipulated judgment signed by both parties. Glynn's records further reflect that it served notice of entry of the judgment on September 5, 2008. The judgment attached to the notice contained the signatures of both parties as well as the signature of the trial judge.
In addition to the fact that Glynn's records show Anderson's signature on the stipulated judgment as of August 2008, the conduct of the parties also strongly indicates that Anderson signed and agreed to be bound by the stipulated judgment. Among other things, Glynn's records indicate that both Anderson and Bauer received copies of the notice of entry of judgment in September 2008. In Bauer's subsequent correspondence with Glynn, she did not dispute that Glynn had secured a judgment against her client or that Glynn was entitled to execute on the judgment. Over the course of more than two years, neither Anderson nor Bauer questioned the validity of the stipulated judgment. It was not until Anderson secured new counsel in early 2011 that an issue was first raised about the judgment's validity. The actions of Anderson and his former attorney are consistent with the conclusion that they understood Anderson was bound by the stipulated judgment. Indeed, it is hard to conceive of any other explanation for their ongoing dealings with Glynn following entry of the judgment.
We conclude that substantial evidence supports the trial court's finding that Anderson signed the stipulated judgment before its entry. Anderson failed to offer any conflicting evidence in the trial court, choosing instead to rely on the purported discrepancy in the dates on the stipulated judgment. He states he "cannot explain how or why the judgment was entered with the date discrepancy on its face." However, irrespective of the interpretation to be given to the handwritten date on the stipulated judgment, the fact remains that the evidence establishes Anderson signed the document before it was entered by the trial court. Further, Anderson has made no claim that his signature on the stipulated judgment is forged or otherwise unauthentic.
Finally, we observe that Anderson included in his appendix on appeal a declaration that was neither lodged nor filed with the trial court. The declaration was signed on April 12, 2011, which was two days before the date of the hearing on Anderson's motion in the trial court. In the declaration, Anderson claims he did not sign the stipulated judgment until November of 2008.
We will disregard the belated declaration submitted with Anderson's appendix on appeal. As a general matter, " 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' [Citation.]" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) We may take additional evidence on appeal only under exceptional circumstances and only if a party properly moves the court to do so. (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(c); see generally In re Zeth S. (2003) 31 Cal.4th 396, 408, fn. 5.) Anderson did not make a motion for this court to consider additional evidence, nor has he explained what exceptional circumstances might permit our consideration of the declaration he includes in his appendix.
Furthermore, even if we were to consider the declaration, it would not change our conclusion. Anderson's claim that he did not sign the stipulated judgment until November 2008 is irreconcilable with the fact that a certified copy of the judgment contains his signature. It is also directly at odds with the evidence presented to the trial court by Glynn. The trial court was aware of Anderson's offer to testify as to when he actually signed the stipulated judgment. The court did not permit the testimony because of the "huge stumbling block" Anderson could not get around—i.e., the fact that the court's file contained a signed copy as of August 2008. Thus, there is no reason to believe the trial court would have reached a different conclusion even if it had been timely presented with Anderson's declaration.
2. The Stipulated Judgment Was Not Void When Entered Because Anderson Made a General Appearance in the Action by Signing the Stipulated Judgment.
Anderson contends the stipulated judgment is void under Code of Civil Procedure section 473, subdivision (d) because he had not been served or appeared in the action when it was entered. We disagree.
Subdivision (d) of Code of Civil Procedure section 473 provides in pertinent part that a court may, upon motion of an injured party or on its own motion, "set aside any void judgment or order." "A trial court has no statutory power under [Code of Civil Procedure] section 473, subdivision (d) to set aside a judgment that is not void: Once six months have elapsed since the entry of a judgment, 'a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face.' [Citation.]" (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495-496.)
As noted above, it is not apparent from the face of the stipulated judgment when Anderson actually signed the document. It is therefore questionable whether Anderson would be entitled to relief under Code of Civil Procedure section 473, subdivision (d) even if he could offer evidence showing that he signed the judgment only after it was entered. The judgment's purported invalidity does not appear on its face but instead must be proven with extrinsic evidence.
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Anderson relies on the principle that a judgment entered before service of process has occurred is void for lack of personal jurisdiction. (See Sindler v. Brennan (2003) 105 Cal.App.4th 1350, 1353.) He contends the stipulated judgment is void because he had not been served or appeared in the action at the time it was entered. The argument fails because his consent to the stipulated judgment constituted a general appearance and was equivalent to personal service of the summons.
Section 410.50, subdivision (a) of the Code of Civil Procedure provides in part, "A general appearance by a party is equivalent to personal service of summons on such party." " 'A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act. [Citations.]" (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52; see generally Code Civ. Proc., § 1014.)
Execution of a stipulation for entry of judgment constitutes a general appearance that waives any objection to a failure to serve the summons. (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1270; see Title Guarantee & Trust Co. v. Griset (1922) 189 Cal. 382, 390.) In light of our conclusion that Anderson signed the stipulated judgment before it was entered, it necessarily follows that Anderson made a general appearance in the action. The court therefore had personal jurisdiction over him when it entered the judgment. Anderson's claim that the judgment was void for lack of personal jurisdiction thus fails as a matter of law.
Anderson's contention that he did not waive service of process likewise lacks merit. A general appearance by a party, including the execution of a stipulation for entry of judgment, constitutes " ' "a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service." [Citation.]' [Citations.]" (Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 52.) Anderson effectively waived service of process by signing the stipulated judgment.
Anderson also argues that, "at the very least, [he] was entitled to have the judgment vacated based on his surprise." However, he did not raise this issue in the trial court or ask that court to grant equitable relief from the judgment. The contention is therefore forfeited on appeal. (See People v. Becker, supra, 183 Cal.App.4th at p. 1156.) Further, a court's power to grant equitable relief from a judgment is narrower than the statutory relief afforded under Code of Civil Procedure section 473. (Talley v. Valuation Counselors Group, Inc., supra, 191 Cal.App.4th at p. 146.) Here, the uncontroverted evidence establishes that Anderson signed a stipulated judgment after lengthy negotiations between his counsel and Glynn. Given the ongoing correspondence between the parties that both preceded and followed entry of judgment, there is no evidence to support a claim of surprise and no basis for equitable relief from the judgment, even if that relief were available to Anderson on appeal. 3. The Trial Court Properly Denied Anderson's Request to Dismiss the Case Because His General Appearance Dispensed with the Service of the Summons. Finally, Anderson argues the action should be dismissed because Glynn did not serve the summons and complaint within two years of the filing of the action. He relies on a local rule of court as well as various sections of the Code of Civil Procedure that allow a court to dismiss an action when service of process is not timely made. (See Code Civ. Proc., §§ 583.410, subd. (a), 583.420, subd. (a); Contra Costa County Superior Court Local Rule 5.G.)
Anderson's argument fails because his general appearance, which occurred when he consented to the stipulated judgment, dispensed with the need for personal service of the summons and complaint. (Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 52.) Personal service on Anderson was deemed complete when he consented to entry of the stipulated judgment in August 2008. Thus, the court properly denied his request for dismissal premised on the purported lack of personal service.
DISPOSITION
The order denying appellant's motion to vacate judgment and dismiss action is affirmed. Respondent shall recover its costs on appeal.
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McGuiness, P.J.
We concur:
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Pollak, J.
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Siggins, J.