Opinion
E074339
09-28-2021
Douglas HUMPHREY, Plaintiff and Appellant, v. Peter D. BEWLEY, as Administrator, etc., et al., Defendants and Respondents.
Christopher Kelley and Denise L. Diaz, Los Angeles, for Plaintiff and Appellant. Bochnewich Law Offices, Peter M. Bochnewich, Palm Desert, and Jacquetta Bardacos for Defendant and Respondent Peter D. Bewley as Administrator of the Estate of Grace Janelunas Newswanger and Administrator of the Estate of Val J. Janelunas.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III, IV, V, VII, and IX.
Christopher Kelley and Denise L. Diaz, Los Angeles, for Plaintiff and Appellant.
Bochnewich Law Offices, Peter M. Bochnewich, Palm Desert, and Jacquetta Bardacos for Defendant and Respondent Peter D. Bewley as Administrator of the Estate of Grace Janelunas Newswanger and Administrator of the Estate of Val J. Janelunas.
OPINION
RAMIREZ, P. J. This action concerns a piece of property in Rancho Mirage. At one time, the owners of record were Val Janelunas and his father, Joseph Janelunas, as joint tenants; however, Joseph died, leaving Val as sole owner. Thereafter, Val died.
Plaintiff Douglas Humphrey asserts a claim to the property; he filed this action to quiet title to it, and he filed a lis pendens. He served process by publication. None of the named defendants (including Val Janelunas's heirs) responded. At Humphrey's request, the trial court entered their default.
Thereafter, Peter Bewley became the administrator of Val Janelunas's estate. He filed a motion to intervene, so he could move to expunge the lis pendens. In response, Humphrey withdrew the lis pendens; the trial court then denied the motion to intervene as moot. Bewley proceeded to sell the property.
All references to Bewley are to him solely in his capacity as administrator and not in his personal capacity.
Humphrey then filed a request for a prove-up hearing and a default judgment. Bewley filed objections. At an unreported hearing, the trial court, on its own motion, quashed the service by publication and vacated the default.
Humphrey appeals. He contends:
1. Humphrey properly effected service by publication, and therefore the trial court erred by quashing service, by vacating the default, and by failing to hold a prove-up hearing.
2. The trial court should not have quashed service as to Val Janelunas's heirs because Bewley had made a general appearance.
3. The trial court erred by setting aside the default on its own motion because Bewley had not moved to set it aside within a reasonable time. In response, Bewley not only disputes Humphrey's contentions, but also contends:
1. The trial court's order is not appealable. 2. Bewley is not a proper party to this appeal because he was never a party below and because Humphrey did not name him in the notice of appeal.
3. The probate court had exclusive jurisdiction over the property.
4. Humphrey has no valid claim to the property.
In the published portion of this opinion, we will hold that the trial court's order granting the motion to quash is appealable, and in such an appeal we may also review its order vacating the default. We will also hold that Humphrey did not properly effect service by publication because the notices that he published specified the property only by assessor's parcel number (APN) and not by either legal description or street address. However, we will also hold that Bewley made a general appearance. Accordingly, the trial court erred by quashing service on Bewley, but not by quashing service on other parties who had not appeared nor by vacating the default.
In the unpublished portion of this opinion, we will reject all of the parties' other contentions.
I
STATEMENT OF THE CASE
In November 2012, Humphrey filed this action to quiet title. He named as defendants (1) the successors of Val Janelunas, (2) the successors of Joseph Janelunas, and (3) all other persons claiming any interest in the property. On September 5, 2013, he filed an amended complaint.
On July 2, 2014, Humphrey recorded a notice of lis pendens.
Also on July 2, 2014, the trial court ordered service of the summons and first amended complaint by publication. In August and September, 2014, Humphrey filed proof of service by publication. On September 25, 2014, at Humphrey's request, the trial court entered the default of all named parties. Three years passed; a lot did happen in the action, involving various other parties who showed up and participated, but nothing that is relevant to this appeal.
The proof of service was filed in three parts: (1) on August 11, 2014, proof of publication in California; (2) also on August 11, 2014, proof of posting at the property; and (3) on September 12, 2014, proof of publication in Pennsylvania.
On September 18, 2017, Bewley was appointed administrator of the estate of Val Janelunas.
Bewley was also appointed administrator of the estate of Grace Janelunas Newswanger, Val's mother. As far as we can tell, this does not affect our analysis of any issue.
On September 6, 2018, Bewley filed a "motion for leave to intervene to expunge lis pendens." (Capitalization altered.) While the motion was pending, Bewley filed a case management statement. On November 29, 2018, Humphrey withdrew the lis pendens. On December 5, 2018, the trial court therefore denied Bewley's motion to intervene as moot.
Bewley now describes this as a "special[ ] appear[ance]." However, he did not label it a special appearance at the time.
Sometime between March 9 and May 30, 2019, Bewley sold the property.
On May 30, 2019, the probate court ordered the final distribution of the estate.
On October 9, 2019, Humphrey filed a request for a default prove-up hearing. It was set for October 18. Bewley, in what he labeled a special appearance, filed objections to the default prove-up. At the hearing on October 18, 2019, the trial court, on its own motion, quashed the service by publication, finding that it was "improper," and set aside the default. There was no court reporter at that hearing.
Humphrey sought and obtained a settled statement. (Cal. Rules of Court, rule 8.137.) However, it did not provide any information not already in the minute order.
II
APPEALABILITY
Preliminarily, Bewley contends that the trial court's order is not appealable.
Code of Civil Procedure section 904.1, subdivision (a)(3), provides that "an order granting a motion to quash service of summons" is appealable. (See also Templeton Action Committee v. County of San Luis Obispo (2014) 228 Cal.App.4th 427, 432, 175 Cal.Rptr.3d 346.) Bewley seeks to draw a distinction between a motion to quash based on lack of minimum contacts with the forum and a motion to quash based on lack of proper service. An order granting the former is effectively a final judgment. By contrast, an order granting the latter is interlocutory; the plaintiff remains free to attempt new and better service. In Bewley's view, then, only an order based on lack of minimum contacts should be appealable.
Bewley cites no authority in support of this position, and we have found none.
In 1951, Code of Civil Procedure former section 963 — the predecessor of Code of Civil Procedure section 904.1 — was amended to provide for the first time that an order granting a motion to quash service of summons is appealable. (Stats. 1951, ch. 234, § 1, p. 497.) Thus, until 1951, Bewley's position was at least arguable. (See Kneeland v. Ethicon Suture Laboratories (1952) 113 Cal.App.2d 335, 336-338, 248 P.2d 447 ; Thomas v. Lee (1949) 90 Cal.App.2d 44, 45, 202 P.2d 310.)
As amended, however, the statute is unambiguous. It states flatly that an order granting a motion to quash service of summons is appealable. " ‘[W]hen statutory language is ... clear and unambiguous there is no need for construction and courts should not indulge in it. ’ [Citation.]" ( Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 413, 267 Cal.Rptr. 589, 787 P.2d 996.)
Bewley also argues that the order setting aside the default is not appealable. As he points out, "no appeal lies from an order granting a motion to vacate a default entry where no default judgment has been entered [citation]. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 2:167, p. 2-122, italics omitted.) Here, however, the order granting the motion to quash and the order setting aside the default are inextricably interwoven. Under these circumstances, we have jurisdiction to review and, if necessary, to reverse both. (See American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216-218, 246 P.2d 935 ; see, e.g., Allen v. Smith (2002) 94 Cal.App.4th 1270, 1283, 114 Cal.Rptr.2d 898 [reversal of judgment necessarily reversed award of attorney fees, even though award of fees was separately appealable and appellant did not appeal from it].)
See footnote *, ante .
THE VALIDITY OF THE SERVICE BY PUBLICATION
Humphrey contends that the named defendants were properly served. Bewley responds that the publication did not adequately describe the property. We agree.
In a quiet title action, "Whenever the court orders service by publication, the order is subject to the following conditions: [¶] ... [¶] ... The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted." ( Code Civ. Proc., § 763.020.)
Here, the trial court's order for publication (proposed by Humphrey's counsel) provided: "[T]he [assessor's] parcel number of the affected property ... shall be published below the First Amended Summons in the newspaper publications." The proofs of service showed that the published notices did not include the legal description or the street address of the property; in accordance with the order, however, they did include the APN.
This did not comply with Code of Civil Procedure section 763.020. Service by publication requires strict compliance with the applicable statutes. ( County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450, 62 Cal.Rptr.2d 747.) The publication must "particularly" describe the property, and must also give its street address. We may assume, for purposes of argument, that an APN is a sufficiently particular description. Even if so, the published notices here did not also include the street address. The statute provides that, if a legal description is given, then the omission of the street address is not fatal. Here, however, the legal description was not given. By negative implication, the omission of the street address is fatal.
Another way to look at it is that the APN is a sufficient "common designation," in lieu of the street address. On that view, however, the publication must also "particularly describ[e]" the property. In sum, the APN cannot serve as both the particular description and the common designation.
Humphrey does not argue otherwise. He argues only that the trial court "specifically approved" posting the APN. "The trial court's quashing the service by publication years after it occurred, on its own motion, after approving and accepting it at the time, is clearly an abuse of discretion." This argument is wrong, for three reasons.
First, the trial court ordered that the APN be published. It did not order that only the APN be published.
Second, a trial court has the inherent "ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors." ( Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, 29 Cal.Rptr.3d 249, 112 P.3d 636 ; see also id. at pp. 1100-1101, 1103, 1105, 29 Cal.Rptr.3d 249, 112 P.3d 636.)
Third, the trial court issued the order for publication ex parte. Indeed, Humphrey's ex parte application did not expressly request an order that only the APN be published. Rather, Humphrey's counsel slipped this provision into the proposed order, and the trial court signed it. As a matter of due process, this unilateral action cannot preclude a defendant from coming along later and arguing that the publication was defective.
The trial court therefore correctly vacated the default. VII
See footnote *, ante .
VIII
THE EFFECT OF BEWLEY'S APPEARANCE
Humphrey contends that the trial court erred by quashing service because Bewley had made a general appearance.
Bewley protests that the service by publication was defective. (See part VI, ante. ) But "[a] general appearance by a party is equivalent to personal service of summons on such party." ( Code Civ. Proc., § 410.50, subd. (a).) It makes up for defective service, or even a complete lack of service. ( Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145, 8 Cal.Rptr.3d 446.)
"The determination of special appearance versus general appearance is based on the ‘character of the relief sought,’ not by statements of intention of the party. [Citation.]" ( In re D.R. (2019) 39 Cal.App.5th 583, 593, 252 Cal.Rptr.3d 283.) " ‘ "What is determinative is whether [the] defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed." ’ [Citations.] ‘ "[I]f an appearance is for any purpose other than to question the jurisdiction of the court[,] it is general." ’ [Citations.]" ( Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 125, 243 Cal.Rptr.3d 623, 631.)
Humphrey asserts that Bewley made a general appearance by (1) filing and litigating the motion to intervene, (2) filing a case management statement, and (3) opposing Humphrey's request for a default prove-up. We consider only the motion to intervene, because we agree that it was a general appearance.
A motion to intervene does not question the jurisdiction of the court. To the contrary, it affirmatively asks the court to exercise jurisdiction. Thus, it recognizes the authority of the court to proceed.
Bewley cites Code of Civil Procedure section 1014, which lists certain actions, such as filing an answer, which constitute a general appearance; he then argues that he did not take any of the listed actions. It has repeatedly been held, however, that "this list ‘is not exclusive.’ [Citations.]" ( Sunrise Financial, LLC v. Superior Court, supra , 32 Cal.App.5th at p. 125, 243 Cal.Rptr.3d 623.)
Bewley also argues that his general appearance had no effect because he was not a named party. As we already held in part III, ante , the complaint named "all persons unknown claiming any legal or equitable right, title, estate, lien or interest to the property ... adverse to [Humphrey's] title, or any cloud on [Humphrey's] title thereto." (Capitalization altered.) Bewley came within that description.
One could argue that the motion to intervene did not constitute a general appearance for another reason — that it was a nullity. A default had been entered, and for the reasons just discussed, it included Bewley. "As a general rule, ‘the entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until ... the default is set aside.’ [Citations.]" ( In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1037, 102 Cal.Rptr.2d 662.) Any motion by a defaulted defendant, other than a motion to set aside the default, is " ‘unauthorized and void.’ " ( A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 647, 89 Cal.Rptr. 873.) It has "no legal effect." ( Christerson v. French (1919) 180 Cal. 523, 525, 182 P. 27.)
Bewley does not actually raise this argument. And wisely so, as it has previously been rejected by Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 147 Cal.Rptr. 766. Forbes held that "that a demurrer filed by defendant after his default is taken constitutes a general appearance." ( Id. at p. 264, 147 Cal.Rptr. 766.) This is true even though "a demurrer or answer filed after entry of default" is otherwise a "nullity." ( Id. at pp. 263-264, 147 Cal.Rptr. 766.)
We have also considered another argument that Bewley does not raise: that his motion to intervene was not a general appearance because it was denied (or, to look at it another way, it was a general appearance, but personal jurisdiction terminated when it was denied). As already discussed, however, because Bewley was in default, the motion was a nullity except as a general appearance. It did not give the trial court the authority to determine whether Bewley should or should not be allowed to participate in the action.
Even though Bewley did make a general appearance, the trial court did not err by vacating the default sua sponte. A general appearance does not retroactively validate a default entered earlier. ( In re Marriage of Smith (1982) 135 Cal.App.3d 543, 547-552, 185 Cal.Rptr. 411.) As mentioned, Code of Civil Procedure section 410.50, subdivision (a) merely provides that a general appearance is the equivalent of service of summons. Subdivision (b) then provides, "Jurisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action." (Italics added.) The service of summons in 2018 would not support a default entered in 2014. (See Moffett v. Barclay (1995) 32 Cal.App.4th 980, 983, 38 Cal.Rptr.2d 546.)
The trial court did err, however, by quashing service as to Bewley. Even though the service by publication was invalid, he had made a general appearance and was subject to its personal jurisdiction. Instead, it should have given him 15 days after service of a written notice of entry of its order to respond to the complaint. (See Code Civ. Proc., § 418.10, subd. (b).)
See footnote *, ante .
X
DISPOSITION
The order quashing service is reversed, solely as to Bewley; as to all other parties who had not already appeared, it is affirmed. The order vacating the default is affirmed. On remand, the trial court must order that Bewley has 15 days after service of a written notice of entry of its order to respond to the first amended complaint, except that it may shorten or extend this time for good cause. In the interest of justice, we do not award costs on appeal to either side.
We concur:
SLOUGH, J.
FIELDS, J.