Opinion
A145349
09-29-2017
GEORGE HOLLAND, JR., Plaintiff and Appellant, v. ROBERT HERNANDEZ et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG11610136)
In this appeal, George Holland, Jr., plaintiff below, seeks to challenge two trial court rulings: an order granting defendants' motion to vacate the entry of defaults and a default judgment against them, and an order dismissing Holland's complaint under statutes mandating dismissal of a complaint not served within three years of its filing. Holland's first challenge is beyond our jurisdiction to consider because he failed to appeal from the court's ruling. Holland's second challenge is wholly without merit. We therefore affirm.
BACKGROUND
On December 28, 2011, Holland filed a complaint in Alameda County Superior Court against defendants Robert Hernandez, Fruitvale Tower, LP (Fruitvale Tower) and Suzanne Brown (collectively "defendants") asserting claims for abuse of process, conversion and negligence. Holland alleged he had leased two suites in an Oakland property from Fruitvale Tower and Hernandez, and had operated a law office and non-profit at that location. He alleged defendants had initiated two unlawful detainer actions and obtained a judgment and writ of possession against him based on fraudulent representations to the court that they had served him with the summons and complaint.
On May 4, 2012, Holland filed a proof of service with the court, purportedly signed by process server Craig Wilson, stating that on May 2, 2012, Wilson had personally served Brown with, among other things, the summons and complaint. No answer was filed.
In a series of further steps, Holland then obtained a default judgment against all three defendants. On June 7, 2012, he filed a request for a default and a clerk's judgment against Brown, indicating via an accompanying declaration that he had served his request on Brown two days earlier. It is not altogether clear from the record whether the clerk entered this default as requested, though the trial court found that she did not. The clerk did not enter a default judgment.
The record reflects that the deputy clerk signed the document, checking a box beside the printed statement "Default entered as requested on (date)," followed by a date-stamp of "JUN 07 2012." (Italics added.) However, the clerk also checked a box beside the statement "Default not entered as requested (state reason):" below which is written "Judgment Not Entered." (Italics added.) We need not decide whether the trial court's finding that the default was not entered is supported by substantial evidence because, as we will discuss, there is substantial evidence supporting the trial court's finding in support of its other basis for granting defendants' motion: that Holland failed to serve defendants.
On December 24, 2012, Holland filed two proofs of service with the court, in which Lisa Alexholland stated that on October 24, 2012, she personally served Hernandez, individually and as authorized agent for Fruitvale Tower, with the summons and complaint. Holland filed a request for entry of default and clerk's judgment against Hernandez and Fruitvale Tower the same day (December 24, 2012). The clerk entered the default that day, but did not enter a default judgment.
A summary of court filings contained in the record indicates that in January 2014, Holland attempted to file a request for default court judgment that was rejected for filing, and he then submitted another request that was filed.
Finally, on March 19, 2014, the court entered judgment in Holland's favor and against defendants in the amount of $29,100 plus $540 in costs.
Eight and a half months later, on December 3, 2014, defendants filed a motion to vacate the entry of the defaults and default judgment against them. The motion, brought under Code of Civil Procedure section 473 "and other well established principles of California law," asserted that the court lacked jurisdiction over defendants to enter the defaults and default judgment, which were therefore void, because Holland had engaged in extrinsic fraud by filing forged, false proofs of personal service of the summons and complaint. Defendants further asserted that they had never received notice of the action prior to entry of the defaults and default judgment. In support of their motion, defendants filed declarations by Brown, Hernandez, their attorney Julie Garfield, and process server Craig Wilson, which (in relevant part) we briefly summarize.
All subsequent statutory references are to the Code of Civil Procedure.
Brown stated that on the date the "false" proof of service stated she was personally served with the complaint and summons at her home address, she was away in Philadelphia and no one else was present at her home. She further stated she had not received any documents relating to the case by mail, that the proofs of service for other documents Holland's counsel purportedly served on her by mail contained an incorrect street address, and that she first learned of this action in late September or early October 2014.
Hernandez stated that the false proofs of service filed by Holland stating Hernandez had been personally served listed an address for Hernandez that actually was a mailbox at a commercial mailbox company; that no personal service could be made on him there; and that although he believed he had received all mail directed to him at that address, he had never received any documents there relating to this action. He first learned of the action in late September or early October 2014 when he received a preliminary title report stating a judgment lien had been placed on property owned by Fruitvale Tower.
Wilson, who Holland had represented served process personally on Brown, stated that he did not execute the proof of service that Holland filed with the court and that the signature on it "purporting to be mine is not mine."
Defendants' counsel, Julie Garfield, attached a number of Holland's pleadings from the court's file, purportedly signed by an attorney named Cometria Cooper. Garfield pointed out that the signatures on some of those documents were markedly different from the signatures on others. Among these documents was the declaration of mailing of the request for entry of default judgment on defendants.
Defendants also submitted evidence that Holland, and his former wife, Alexholland, who had executed the proofs of service on Hernandez, had been disbarred and disciplined, respectively, by the California State Bar for conduct involving dishonesty.
Holland opposed defendants' motion. He contended that Fruitvale Tower was a suspended business entity that was not authorized to defend the action, that defendants had failed to establish fraud or lack of service, and that defendants waited an unreasonable amount of time before seeking relief. However, he did not submit any evidence to support his contentions or to rebut any of defendants' factual assertions.
After hearing argument, on December 31, 2014, the court granted defendants' motion in a written order that a deputy clerk of the court served by mail that same day. The court found that Wilson did not sign the proof of service regarding Brown or personally serve Brown with process, and that in any event the judgment entered against Brown was in error because no default was ever entered against her. (See footnote 1, ante.) The court also found that neither Hernandez nor Fruitvale Tower was personally served as claimed in the proof of service that Alexholland signed and Holland filed. Further, the court took judicial notice that, contrary to Holland's unsupported assertion that Fruitvale Tower was a suspended entity, it was an active limited partnership at all relevant times. The court vacated the defaults and default judgment.
In its order granting defendants' motion, the court further ruled that defendants, because they were never served, did not need to respond to Holland's complaint. The court set a case management conference for March 18, 2015, and stated its intention to dismiss the case at that time "for failure to serve within three years as required by Code of Civil Procedure sections 583.210 and 583.250."
After continuing the case management conference to April 8, 2015, the court on that date ordered the case dismissed. It stated it was dismissing the case "[p]ursuant to Court Order," an apparent reference to the findings and determinations made in its December 31, 2014 order.
On June 5, 2015, Holland filed a notice of appeal from the judgment of dismissal.
DISCUSSION
I.
We Lack Jurisdiction to Consider Holland's Challenge to the Court's Order Granting
Defendants' Motion to Vacate the Defaults and Default Judgment.
Holland first argues that we must reverse the court's order granting defendants' motion to vacate the defaults and default judgment. Holland did not timely appeal from that order, and we therefore lack jurisdiction to consider his challenge to it.
Although defendants do not raise this issue, "because the timeliness of an appeal poses a jurisdictional issue, we must raise the point sua sponte." (Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849.) " 'Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.' [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal." (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) Further, " ' "[i]f a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review." ' " (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 304.)
We conclude Holland has not appealed from the court's December 31, 2014 order granting defendants' motion to vacate. A notice of appeal "is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100, subd. (a)(2).) Holland's notice of appeal does not specify in any way that he is appealing from the court's December 31, 2014 order. Instead, it states that Holland is appealing from the "judgment or order in this case . . . entered on (date): 4/8/15." The April 8, 2015 order is the order of dismissal, which was entered three months after the ruling granting the motion to vacate the defaults and default judgment. Further, Holland specifically checked the box indicating the appeal is from a "Judgment of dismissal under Code of Civil Procedure sections 581d, 583.250, 583.360, or 583.430." He did not check the box on the notice indicating the appeal is from "[a]n order after judgment under Code of Civil Procedure section 904.1(a)(2)." It is well established that an order granting a motion to vacate a default and default judgment is appealable as an order after final judgment, if, as was the case here, the judgment was final prior to the filing of the motion for such relief. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 (Manson); County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 834; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628; see § 904.1, subd. (a)(2).) Holland's failure to check the box indicating the appeal is from an order after judgment reinforces that the appeal was not from the order granting the motion to vacate.
In short, because Holland's notice of appeal does not specify that he is appealing from the order granting the motion to vacate, we lack jurisdiction to consider this portion of the appeal. (Faunce v. Cate, supra, 222 Cal.App.4th at p. 170.)
After we requested supplemental briefing on the jurisdiction issue, Holland submitted a letter brief arguing that this court should "liberally construe[]" the notice of appeal, citing Russell v. Foglio (2008) 160 Cal.App.4th 653, 661. However, as Holland recognizes, that case stands only for the proposition that we liberally construe a notice of appeal " 'if it is reasonably clear what appellant was trying to appeal from.' " (Ibid.) Here, as in Foglio, there is no indication in the notice of appeal that appellant sought to appeal from the order granting the motion to vacate. On the contrary, the notice specifies quite clearly that it is only an appeal from the April 8, 2015 dismissal order.
II.
Holland Has Failed to Show the Trial Court Erred in Dismissing the Case.
Holland's challenge to the trial court's April 8, 2015 order dismissing the case rests in large part on arguments that the court erred in the findings and determinations made in its December 31, 2014 order granting defendants' motion to vacate the default and default judgment. We will consider these arguments as they relate to the court's dismissal order because Holland has timely appealed from that order, and because that order itself apparently refers to and relies on the findings and determinations in the court's December 31, 2014 order.
Holland makes four arguments in support of his challenge to the court's April 8, 2015 dismissal order, none of which is persuasive.
A. Holland's Personal Service Argument
First, Holland challenges the trial court's findings that he did not effect personal service of the summons and complaint on defendants. This raises issues of fact, as to which the parties presented conflicting evidence.
When a ruling challenged on appeal depends on resolution of disputed facts, we review it for substantial evidence. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1136-1137; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873 (Bowers).) Our review is limited to determining, based on the entire record, whether there is substantial evidence to support the trial court's factual determination. (Bowers, at pp. 873-874.) If there is substantial evidence to support the trial court's finding, the judgment will not be disturbed even if there is also evidence supporting a contrary finding. (Id. at p. 872.)
Holland relies solely on the proofs of service he filed with the trial court, as though they were the beginning and the end of the matter. As defendants point out, the proofs of service established a presumption of valid service, but that presumption is rebuttable. (Conservatorship of Jones v. Jones (1986) 188 Cal.App.3d 306, 311; City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731.) Defendants did indeed rebut this presumption, as indicated by the declarations of Brown, Hernandez, Garfield and Wilson that we have summarized. The declaration of Wilson, the process server Holland purportedly used to serve Brown, states that the signature on the purported proof of service is not his. Brown declared under penalty of perjury, and provided corroborating documents, that on the date she was purportedly served she was in Philadelphia and not at her residence, where she was purportedly served, and that no one else was present at her home at that time. Hernandez declared that the address where he was purportedly personally served was a commercial mailbox, that he could not have been served there, and that he never received a complaint or service of summons among the mail he received in that box. Both Brown and Hernandez declared they were unaware of the case and had received no documents pertaining to it until Hernandez obtained a title report reflecting a lien on a Fruitvale Tower property in late 2014. Defendants also presented evidence that neither Holland nor his former wife, who claimed to have served Hernandez, were credible—specifically, evidence of State Bar records indicating Hernandez had been disbarred and his former wife had been disciplined, both for conduct involving dishonesty. Plainly, on this record there was substantial evidence showing defendants were not served with the summons and complaint, and Holland's argument to the contrary is completely meritless.
So is Holland's assertion that "[t]his appeal presents pure questions of law" and his argument that the standard of review is de novo, for which he cites inapposite cases involving statutory interpretation and undisputed facts. (See Cal-Air Conditioning, Inc. v. Auburn Union School District (1993) 21 Cal.App.4th 655, 667; see California Teachers Assn. v. San Diego Community College Dist. (1983) 28 Cal.3d 692, 695-699.)
B. Holland's Lack of Diligence Argument
Second, Holland argues the trial court "erred and it is disingenuous for finding that [defendants] acted diligently," contending they "waited over two years" after having actual knowledge of the action to file their motion to vacate.
We begin with the rules governing the time Holland had to effect service on defendants. Section 583.210, subdivision (a) provides: "The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed." Section 583.250 provides in full: "(a) If service is not made in an action within the time prescribed in this article: [¶] (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. [¶] (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."
Holland filed his complaint on December 28, 2011. The deadline under the above-quoted statutes within which Holland was required to serve defendants with the summons and complaint was December 28, 2014. Defendants moved to vacate the default and default judgment on December 3, 2014, close in time to the running of the three-year statute, and on this same date served their moving papers on Holland. Holland contends defendants did not act diligently because even if they were not personally served, "they had actual notice of [Holland's] action since there was substantial compliance with the code and yet [defendants] deliberately unreasonably waited and took no action."
This argument about diligence may have been relevant to the court's ruling on the motion to vacate, from which, as we have already concluded, Holland did not appeal. However, we fail to see what bearing it has on the court's dismissal of the case under sections 583.210 and 583.250 (the three-year statute).
A party may, as defendants did here, seek equitable relief from a default or default judgment after the statutory six-month time limit applicable to motions under section 473. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; Manson, supra, 176 Cal.App.4th at p. 47; see § 473.5.) Defendants sought equitable relief based on extrinsic fraud, specifically, the forged and false proofs of service. To qualify for such relief, "the moving party must demonstrate diligence in seeking to set aside the default once it was discovered." (Manson, at p. 49.)
By the time the motion to vacate was heard, the three-year period within which Holland was required to serve the summons and complaint had run. Holland did not argue in the trial court that the case fell within any statutory exception to, or that he was entitled to an extension of, the three-year period; nor does he make any such argument in his appellate briefs. (See §§ 583.220, 583.230.) Moreover, the statutory exceptions and grounds for extension do not include lack of diligence by a defendant—in seeking relief from default or otherwise. (Ibid.) Under these circumstances, the trial court had no choice but to dismiss Holland's action once it determined the three-year period had run and he had not effected service on defendants. Dismissal under the statute is mandatory. (§ 583.250, subd. (a)(2) ["If service is not made in an action within the time prescribed in this article: [¶] . . . [¶] [t]he action shall be dismissed by the court on its own motion . . . after notice to the parties"]; id., subd. (b) [The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute"], italics added.)
C. Holland's Argument That Defendants Should Have Been Required to Answer His Complaint
Holland's third argument is that the trial court committed a "grave injustice" and "exceeded its jurisdiction" when it held defendants were not required to file answers after determining they had not been served because defendants requested only that the court allow them to file their answer. This argument is no more persuasive than his others.
Holland cites no statute or case law supporting the proposition that a perceived "grave injustice" provides an exception to the three-year dismissal statute, and the statute provides for none. As already discussed, by the time the court ruled on defendants' motion to vacate and stated its intention to dismiss the case, the three-year period had already run, and the court was required by the governing statute to dismiss the case. (§ 583.250, subds. (a)(2), (b).) Nor has Holland has shown any injustice in any event. The trial court found that defendants had never been served with the summons and complaint, and impliedly found that Holland and/or his surrogates falsely represented to the court that service had been effected on defendants thereby obtaining the default judgment by means of fraud. Having done so, he can hardly complain that he has been unjustly treated. Indeed, Holland's argument is an attempt to place on the court responsibility for preventing a loss of rights that Holland himself made no effort to protect. He knew as of early December 2014 that defendants were challenging service and should have known the three-year statute was about to run. (See Strong v. Sutter County Bd. of Supervisors (2010) 188 Cal.App.4th 482, 498 [attorney is presumed to know the laws and rules of procedure which govern the forms of litigation, the legal remedies, which he selects and pursues, and attorney's knowledge is imputed to his client].) There is no evidence that he took any steps to prevent dismissal of the case, such as by attempting to effect service on defendants or seeking a stipulation from them that would extend his time to do so. (See § 583.230.)
Holland, notwithstanding having been disbarred, was representing himself at this point in the case, though as late as January 2014 he was apparently represented by a lawyer named Cometria Cooper. Regardless, a party appearing in propria persona in our courts is held to the same standards as those applied to an attorney. (See, e.g., A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1288 [a party appearing in propria persona in the trial court is held to the same restrictive rules of procedure as an attorney].)
In short, the court's order, entered after the three-year period for service had run, stating that defendants were not required to answer the complaint created no injustice, and its dismissal of the case thereafter was neither an injustice nor an abuse of discretion.
D. Holland's Additional Reply Brief Argument
Finally, in his reply brief, Holland adds the argument, for which he provides no legal or evidentiary support, that defendants "acted in bad faith by deliberately delaying their motion beyond the statutory period," and that this court "can correct the wrong." Holland makes this argument tardily and without good reason for doing so. Therefore, we disregard it. (Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1377 [disregarding issue raised for first time in reply brief without explanation]; Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817 [points asserted on appeal without adequate factual or legal analysis are forfeited].) If we did consider it, we would reject it as legally meritless for reasons already discussed, and as factually meritless.
There is no statutory exception to the three-year service requirement for "bad faith."
Holland relies solely on the fact that the hearing on defendants' motion to vacate, after initially being set for dates in November 2014, was reset for dates in December 2014 and was ultimately held on December 30, 2014. He characterizes this as "multiple unreasonable delays" on defendants' part and as "an attempt to extend their motion beyond the limitation period." He cites nothing in the record to support that characterization. Further, he ignores the evidence defendants offered describing their efforts to prepare the moving papers without counsel, their subsequent retention of counsel and their substantial investigative work. Nor does he acknowledge the thoroughness of the moving papers defendants filed, or the necessity of their preparing them.
DISPOSITION
The trial court's April 8, 2015 order dismissing Holland's complaint is affirmed. Respondents shall recover their costs on appeal.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.