Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. FL042580
Mihara, J.
Tamio Onishi appeals from an order denying his motion to set aside a 1998 default judgment entered against him. Onishi and Ricardo Ramirez appeal from the portion of the order filed on December 12, 2006, awarding attorney’s fees to respondents Mary Murguia and Frank Murguia pursuant to Family Code section 271. They also appeal from the temporary order vacating and expunging the acknowledgment of satisfaction of judgment. On appeal, Onishi contends that the judgment entered against him is void on numerous grounds and that the trial court erred in denying his motion to set aside a default judgment. Onishi and Ramirez contend: (1) the order vacating the satisfaction of judgment is void; (2) the trial court erred in striking their testimony; and (3) the award of attorney’s fees deprived them of due process of law. We affirm the order, which was filed on December 12, 2006, denying the motion to set aside the 1998 default judgment and awarding attorney’s fees. We also dismiss the appeal from the temporary order, which was filed on April 3, 2006, vacating and expunging the acknowledgment of satisfaction of judgment.
I. Statement of Facts
Mary and Frank were married in 1955, and Mary filed for dissolution of marriage in 1994. In 1996, Mary obtained an order joining Onishi to the dissolution proceeding based on her attorney’s statement that Onishi and A Capital Funding Group (Funding Group) controlled property and distributions from income-producing assets that belonged to the community. The declaration attached to the notice of motion for joinder referred to “Tamio T. Orniski, dba T.O. Investments.” The order granting Mary’s motion for joinder also referred to “TAMIO T. ORNISKI, dba T.O. INVESTMENTS.”
We refer to respondents by their first names for purposes of clarity and not out of disrespect.
On August 7, 1997, Mary filed a pleading on joinder and caused a joinder summons to be issued. These documents set forth the basis for joining Onishi. The Murguias had entered into an agreement with Onishi in which Onishi invested their money “in real property and real property Deeds of Trust.” Mary requested that Onishi provide an accounting for the money he had received from the Murguias. On August 19, 1997, Onishi was personally served with the joinder summons and the pleading on joinder.
The proof of service of the summons of a “Pleading - Joinder” was signed and filed by Vincent Kilduff, Mary’s attorney, on October 31, 1997.
On September 30, 1997, Onishi admitted in his deposition testimony that he had been served with the pleading on joinder and joinder summons. Onishi also stated that he had not filed a response to these pleadings. At that point, Mary’s attorney advised Onishi that Mary could ask the trial court to enter Onishi’s default if Onishi failed to file a response within 30 days of having been served with the pleading. Onishi responded, “OK.” Onishi also stated that he recruited the Murguias to invest in the loan package, but Ramirez “put this package together.” Onishi persuaded the Murguias to participate in the loan package by providing “a written personal guarantee dated July 30, 1991, that he would ‘buy [them] out of the note, principal and interest,’ in the event of foreclosure on the property.” Onishi also stated that there had been a foreclosure in 1995 on the property that secured the loan package, but none of the investors, including the Murguias, had been paid any money on the loans that they had made.
In March 1998, Mary and Frank stipulated to join Ramirez to the dissolution proceeding. The joinder of Ramirez was based on the following contentions: Ramirez had also received community investment funds from the Murguias; he controlled and held these funds; he had not properly advised them; and he had misled them regarding the investments.
At the same time, Mary filed an amendment to the pleading on joinder to correct the misspelling of Onishi’s name “wherever it appears.” Mary also filed an amended pleading on joinder, which was served by mail on Onishi, and caused an amended summons on joinder on the amended pleading to be issued. On April 9, 1998, Mary’s attorney served Ramirez by substituted service.
On May 28, 1998, Mary’s attorney filed an amended pleading on joinder that incorporated a complaint for conversion and an accounting, and requested damages for fraud and negligence. The complaint requested amounts in excess of $300,000 for “loss of the investments,” $100,000 “for loss of use of the funds invested . . .,” and attorney’s fees. On May 28, 1998, Mary’s attorney served the amended pleadings by mail on Onishi and Ramirez.
In June 1998, the parties exchanged correspondence, which indicated that there was no possibility of settlement. On July 7, 1998, Mary’s attorney requested that defaults be entered for Onishi and Ramirez. The default hearing was held on August 28, 1998. The court assigned the matter to John Padilla, who was appointed as a temporary judge with the consent of Mary’s attorney. Mary testified at the default hearing. The trial court entered judgment against Onishi in the amount of $463,771 and against Ramirez in the amount of $181,646. Mary was also awarded attorney’s fees in the amount of $13,500 as well as costs.
On October 8, 1998, Michael T. Morrissey, who is appellants’ present attorney, filed a motion on behalf of Ramirez and Funding Group to set aside the default and default judgment entered against these two parties. Morrissey’s declaration stated that his clients were never served with the most recent complaint, which sought damages in the amount of $400,000. It also stated that “to the extent the default judgment was obtained because of a breakdown in communication between myself and Kilduff, said judgment was obtained as a result of my surprise, inadvertence or excusable neglect.” Ramirez’s declaration stated that he had never received any of the pleadings in the case either personally or mailed to his office.
Based on the parties’ stipulation, the trial court issued an order that set aside the default and default judgment entered against Ramirez and Funding Group. Pursuant to the stipulation and order, Ramirez and Funding Group were required to file an answer to the amended pleading on joinder, which was filed on May 28, 1998, on or before January 20, 1999. Ramirez and Funding Group were precluded from filing other pleadings, such as a demurrer or motion to strike. They were also required to provide “new and further” responses to the interrogatories and to requests for production of documents, which had been served on October 19, 1998, on or before January 20, 1999. Ramirez was required to appear for his deposition no later than February 15, 1999. Ramirez never provided further interrogatory responses, produced documents, or appeared for a deposition. However, he filed an answer to the amended pleading on joinder on June 13, 2006.
The default and default judgment entered against Onishi was not set aside.
On February 9, 1999, Onishi appeared in court pursuant to an order of examination that had been obtained by Mary’s attorney. He was sworn by the court clerk, and he left the courtroom for questioning. On February 24, 1999, Morrissey filed a motion on behalf of Onishi to set aside the default and default judgment entered against Onishi. Morrissey’s declaration stated that there had been “some confusion as to whether or not Mr. Onishi was going to retain [his] office.” Morrissey was unaware that Onishi had made the decision to retain him, and Morrissey failed to file the appropriate responsive pleading though Onishi was relying on him to do so. According to Morrissey, the “failure to file a response was thoroughly and completely [his] fault.” There was no claim that Onishi had been improperly joined to the dissolution proceeding or that he had been improperly served.
Morrissey failed to appear on May 3, 1999, which was the date set by the trial court for the hearing on the motion. The hearing was continued until August 9, 1999. When Morrissey failed to appear at that hearing, the trial court ordered the motion off calendar.
On February 22, 2000, Morrissey filed an amended motion to set aside the default judgment against Onishi. Morrissey’s declaration restated his earlier mistakes and claimed that Kilduff had misled him into not appearing at the previous hearing. He stated that he been unable to reach Kilduff, and thus his motion to set aside the default judgment had been delayed. There were no claims of improper joinder or improper service on Onishi.
On April 3, 2000, the date set for Onishi’s amended motion to set aside the default judgment, the clerk’s minute order states that Ismael Perez appeared on behalf of “Orniski, Tamio” and the amended motion was taken off calendar at Perez’s request.
On January 8, 2001, Morrissey sent a letter to Ted Lui, the Murguias’ son-in-law. He also enclosed a proposed stipulation and order setting aside the default judgment, a settlement agreement and release that was to be signed by all parties and Morrissey, two satisfactions of judgment, a request for dismissal, and an acknowledgment of satisfaction of judgment. The letter stated that the Murguias should sign all the documents and return them to Morrissey. The letter also stated that Morrissey would “not file or record any other documents until the provisions of the Settlement Agreement are completed by [his] clients.”
Mary was not represented by an attorney at that time.
After Lui persuaded the Murguias to sign the documents prepared by Morrissey, he gave them to Onishi for delivery to Morrissey. Morrissey acknowledged that the Murguias signed the settlement documents and that some of these documents “appeared” at his office, but Morrissey claimed that he did not know “who delivered them or when.”
On December 20, 2002, an unfiled acknowledgment of satisfaction of judgment that had been prepared by Morrissey was recorded by the Santa Clara County Recorder. This document stated that the judgment had been satisfied in full and was signed by Mary on November 5, 2001. The cover sheet for the document indicated that the recorded document was to be mailed to Morrissey. Morrissey denied ever receiving the signed acknowledgment of satisfaction of judgment. According to Onishi’s deposition testimony on April 20, 2005, he obtained a copy of the satisfaction of judgment “from Morrissey’s office by way of Ramirez.”
After the Murguias did not receive payment, Frank attempted to collect the money from Onishi and Ramirez. He spoke directly with both Onishi and Ramirez, and Ramirez began making payments. Ramirez paid Frank $23,750 between 2002 and 2003.
On March 6, 2006, the Murguias’ attorneys met with a civil attorney to discuss the coordination of efforts to collect on the judgment against Onishi. The civil attorney recommended a search of county records to determine whether a satisfaction of judgment had been recorded in violation of Morrissey’s promise regarding payment. The search revealed that the document had been recorded. Mary’s counsel then filed a motion for an order vacating and expunging the acknowledgment of satisfaction of judgment. A request for judicial notice of various court documents and the declarations of Frank and Lui were attached to the motion. On April 3, 2006, the trial court issued a temporary order that the “Satisfaction of Judgment recorded with the county on December 20, 2002 [was] immediately expunged and vacated.” A hearing was set for April 11, 2006.
On April 11, 2006, Mary and Frank and their attorneys, Onishi and his attorney Pamela Smith, and Morrissey, who appeared on behalf of Ramirez, attended the hearing. The trial court then issued an order stating that the court had already vacated and expunged the acknowledgment of satisfaction of judgment that had been recorded on December 20, 2002. The trial court also continued the matter until June 5, 2006, to address the issue of attorney’s fees and costs. There was no request for a reconsideration of the April 11, 2006 order. There was also no motion to set aside the order vacating and expunging the recorded acknowledgment of satisfaction of judgment.
On May 31, 2006, Morrissey filed a responsive declaration on behalf of Ramirez and Onishi. Declarations by Morrissey and Ramirez and a memorandum of points and authorities were also attached. Morrissey asserted that the judgment against Onishi was void, because the trial court acquired neither personal jurisdiction over Onishi nor subject matter jurisdiction of the dispute. He also argued that the recordation of the acknowledgment of satisfaction of judgment was “superfluous,” because the judgment was “void.”
On June 2, 2006, Mary’s attorney filed and served points and authorities in support of a motion in which Mary requested that the pleadings by Morrissey, on behalf of his clients, be stricken because they were not timely. Noting that there had never been a judicial determination that the judgment against Onishi was void, she requested that the trial court award her attorney’s fees under Family Code section 271 based on how the conduct of Morrissey, Onishi, and Ramirez had frustrated the settlement process.
On June 5, 2006, the matter was continued until June 20, 2006, because the court file was unavailable.
On June 15, 2006, Morrissey filed an “amended” motion on behalf of Onishi in which he sought to set aside the 1998 judgment. Morrissey attached his declaration and a “memorandum of point and authorities in support of Tamio Onishi’s supplemental motion to set aside void default and default judgment.” In the memorandum, Onishi claimed that his earlier motion was taken off calendar at Mary’s request. The trial court granted Onishi’s request that the motion be heard at the same time as the Murguias’ request for attorney’s fees.
In Onishi’s memorandum, there was no reference to the “amended” motion that was filed on February 22, 2000 to set aside the 1998 judgment, which was taken off calendar by Onishi’s attorney on April 3, 2000.
On June 20, 2006, the trial court set both matters for hearing on October 18, 2006.
On September 11, 2006, Mary filed and served notices in lieu of subpoena pursuant to Code of Civil Procedure section 1987, subds. (b) and (c) on Onishi and Ramirez. The notices, which were personally delivered to Morrissey at his office, required Onishi and Ramirez to attend the hearing on October 18, 2006, and to produce the listed documents.
On October 18, 2006, neither Onishi nor Ramirez appeared at the hearing. Perez appeared on Morrissey’s behalf to request a continuance due to Morrissey’s unavailability. Mary’s attorney objected to the continuance and noted that both Onishi and Ramirez did not appear despite service on Morrissey of notices to appear and to produce documents. He also requested that the trial court order that Onishi and Ramirez appear at the rescheduled hearing. The trial court granted the continuance, set the matter for hearing on November 8, 2006, ordered Onishi and Ramirez to personally appear at the next hearing, and advised that the court would not allow testimony on their behalf if they failed to appear at the next hearing.
On October 18, 2006, Mary’s attorney served on Morrissey amended notices in lieu of subpoena, which required Onishi and Ramirez to appear at the November 8 hearing and to produce the listed documents at that time. The notices were served on Morrissey by personally delivering copies of the notices to his office and by mailing copies of the notices to him.
On November 6, 2006, Onishi filed a declaration.
On November 8, 2006, Mary and Frank appeared with their attorneys, who submitted attorney’s fee declarations. Ramirez failed to appear at the hearing. Onishi was present with Morrissey, but he failed to produce any of the documents identified in the notice in lieu of subpoena. Morrissey claimed that he did not know about any documents and that he had “never seen a document request.” The attorneys for the Murguias requested that the Ramirez and Onishi declarations be stricken. Following argument, the trial court set the matter for November 9, 2006.
On November 9, 2006, the trial court ordered that the declarations of Onishi and Ramirez be stricken, because they failed to appear at the hearing and to produce the requested documents. The trial court also denied the motion to vacate the 1998 judgment, finding that Onishi had been properly joined to the dissolution proceeding, that Onishi had made a general appearance through Morrissey in 1999, and that all of Onishi’s challenges to the 1998 judgment were untimely. The trial court then ordered Onishi and Ramirez to each pay attorney’s fees of $10,000 to Mary’s attorney and $10,000 to Frank’s attorney pursuant to Family Code section 271. The order was filed on December 12, 2006.
II. Discussion
A. Subject Matter Jurisdiction
Onishi first contends that the judgment against him is void, because the trial court lacked subject matter jurisdiction.
“Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter . . . . Jurisdiction in any proceeding is conferred by law, that is, by the Constitution or statute. Jurisdiction of the subject-matter cannot be given, enlarged, or waived by the parties. An order entered by a court without subject matter jurisdiction is also void and subject to collateral attack.” (In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 593, internal citations and quotation marks omitted.)
“In a proceeding for dissolution of marriage, . . . the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the following: [¶] . . . [¶] The settlement of the property rights of the parties.” (Fam. Code, § 2010, subd. (e).) Thus, the family law court “may order that a person who claims an interest in the proceeding be joined as a party to the proceeding in accordance with rules adopted by the Judicial Council . . . .” (Fam. Code, § 2021, subd. (a).) California Rules of Court, rule 5.150 states in relevant part that “a person who claims or controls an interest subject to disposition in the proceeding may be joined as a party to the proceeding . . . .”
As the court observed in In re Marriage of Siller (1986) 187 Cal.App.3d 36, “[w]here jurisdiction of a California court depends on the . . . type of proceeding, the plaintiff’s complaint (particularly the prayer) is usually determinative. Jurisdiction of the cause attaches at the time of commencement of the action and cannot be divested by the establishment to the satisfaction of the court of a defense to the whole or any portion of the claim, whether by demurrer, or by evidence on the trial.” (Id. at p. 47, internal citations and quotation marks omitted.)
Here, Mary’s complaint in joinder alleged that Onishi controlled property and distributions from income-producing assets that belonged to the community. She subsequently filed an amended pleading on joinder that incorporated a complaint for conversion and an accounting, and requested damages for fraud and negligence. This pleading alleged in relevant part that the Murguias “entrusted certain sums of money” to Onishi, among others, “for management and investment in real property and real property Deeds of Trust” and that he “refuse[s] to return said money, along with any gains.” The pleading further alleged that this amount “exceeds the sum of $300,000.00.” After the default hearing was held, the trial court entered judgment against Onishi in the amount of $463,771.
Relying on Hebbring v. Hebbring (1989) 207 Cal.App.3d 1260, Onishi points out that the trial court lacked jurisdiction to award damages for conversion. He claims that the default hearing “was the adjudication of a claim Frank Murguia allegedly had against [him].”
We first note that the amended pleadings in joinder adequately notified Onishi that the Murguias were seeking the return of the money that they had invested and that this amount could exceed $300,000. Moreover, the judgment itself does not refer to any tort claims or damages. We presume that the judgment is correct and the appellant has the burden of overcoming this presumption by affirmatively showing error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Here, we are unable to review Onishi’s claim that the issues that were raised at the default hearing did not involve the settlement of the community property rights of the Murguias, since Onishi has failed to provide a reporter’s transcript of the hearing. Accordingly, we reject his argument that the trial court lacked subject matter jurisdiction.
B. Defects in the Proof of Service
Onishi next argues that the judgment is void, because the default was entered two days after the amended complaint was served.
In 1996, Mary obtained an order joining Onishi to the dissolution proceeding. The order referred to “TAMIO T. ORNISKI, dba T.O INVESTMENTS.” In August 1997, Onishi was personally served with the joinder summons and the pleading on joinder. On September 30, 1997, Onishi admitted in his deposition testimony that he had been served with the pleading on joinder and joinder summons.
In March 1998, Mary filed an amendment to the pleading on joinder to correct the misspelling of Onishi’s name “wherever it appears.” In May 1998, Mary filed an amended pleading, which incorporated a complaint for conversion and an accounting, and requested damages for fraud and negligence. Kilduff signed a declaration of service by mail in which he declared under penalty of perjury that he served the amended pleading on joinder and the complaint for conversion, accounting, and damages for fraud and negligence on May 28, 1998. He further declared that he mailed these documents to Onishi by depositing them in a sealed envelope with prepaid postage “on the date set forth hereinbelow.” Kilduff signed the declaration on July 6, 1998. Default was entered on July 8, 1998.
Onishi claims that the term “hereinbelow” referred to the July date of service rather than the May date. He also now “vigorously denies that it was ever served.”
However, Onishi does not explain why his attorney has previously asserted on two separate occasions that Onishi was served in a timely fashion. Onishi filed two motions to set aside the default judgment, and attached declarations by Morrissey that were signed on February 11, 1999 and February 16, 2000. In both of these declarations, Morrissey declared under penalty of perjury, that “[p]rior to the entry of the default entered against Tom Onishi and within the time to answer the last amended complaint on joinder,” Morrissey was “apparently retained” by Onishi to represent him in the joinder proceedings. Morrissey also declared that Onishi’s “failure to file a response was thoroughly and completely” Morrissey’s fault. Onishi did not submit his own declaration that he was not timely served with the last amended complaint on joinder. Thus, the record supports the conclusion that Onishi was properly served on May 28, 1998, which was 41 days before the clerk entered the default.
C. Appointment of Temporary Judge
Onishi also contends that the 1998 default judgment was void, because the requirements for the appointment of a temporary judge were not met.
A hearing on Onishi’s default was set for August 28, 1998. Only Mary and her attorney were present at the hearing. Mary’s attorney signed and filed a form “Stipulation to Temporary Judge,” which agreed that John Padilla, a licensed California attorney, “be appointed Judge Pro Tempore (Temporary Judge) of the Superior Court to try this action.” Judge Raymond Davilla ordered that the selection of Padilla be approved, and appointed Padilla to serve as the temporary judge for the default hearing. Padilla signed the oath of office and consent to serve as a temporary judge.
Onishi first claims that Padilla was not properly sworn as a temporary judge. He asserts that “there is no affidavit of the clerk and somebody signed Judge Davilla’s name to the order.”
“On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.” (Cal. Const., art. VI, § 21.) Former rule 244 of the California Rules of Court (hereafter former rule 244) provided that “the stipulation of the parties that a case may be tried by a temporary judge must be in writing and must state the name and office address of the member of the State Bar agreed upon. It must be submitted for approval to the presiding judge or to the supervising judge of a branch court. . . . [¶] . . . The order designating the temporary judge must be endorsed upon the stipulation, which must then be filed. The temporary judge must take and subscribe the oath of office . . . .”
Contrary to Onishi’s claim, former rule 244 did not require the court clerk to submit an affidavit. Former rule 244 also did not prohibit the signature of the presiding judge or the supervising judge by his or her designee. Moreover, the procedure outlined in former rule 244 is not jurisdictional, but serves the interests of the judicial system. “‘By requiring a written instrument, the rule prevents disputes as to whether parties have in fact consented and the scope of their consent. [Citation.] By further requiring the written approval of a supervising judge and an oath, the rule insures that the activities of temporary judges are monitored and do not impair the administration of the trial courts.’” (In re Richard S. (1991) 54 Cal.3d 857, 866, quoting In re Lamonica H. (1990) 220 Cal.App.3d 634, 644.) However, the temporary judge has no power to act in a particular case where there is no compliance with article VI, section 21 of the California Constitution. (Cf. In re Richard S., supra, 54 Cal.3d at p. 866.) Thus, the critical requirements are that the parties agree to trial by a temporary judge, that the court order a trial before the temporary judge, and that the temporary judge be a member of the State Bar, “sworn and empowered to act.” (Cal. Const., art. VI, § 21.) Those requirements were met in the present case.
Onishi argues that the parties did not agree to a hearing by a temporary judge, because neither he nor Frank signed the stipulation. There is no merit to this argument. First, where a default has been entered against a party, he or she has no right to appear in court until either the default is set aside or the default judgment is entered. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) Since Onishi did not set aside the default, he had no right to appear, and thus, his consent was not required. Second, assuming that Onishi has standing to raise the issue as to whether Frank’s signature was required, we note that “[a] party who has notice of a proceeding but fails to appear or otherwise take part loses the status of party litigant. [Citation.] The parties who do appear and take part may thus stipulate to the appointment of a temporary judge without the consent of the absent, nonlitigating parties. [Citation.]” (Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1089.) Here, Frank did not appear at the hearing, and thus, he waived any right to object to the appointment of a temporary judge. (Id. at p. 1092.)
Onishi claims that the judgment was void because the temporary judge was not “designated solely for that particular case.” However, he has failed to provide any factual or legal support for this claim. Under these circumstances, we conclude that the issue has been waived. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
D. Code of Civil Procedure Section 473
Onishi next contends that the trial court erred in finding that his motion under Code of Civil Procedure section 473 was untimely. We disagree.
On August 28, 1998, the default judgment was filed. On February 24, 1999, Onishi filed a motion to set aside the 1998 judgment. Morrissey then failed to appear on May 3, 1999, which was the date for the hearing on the motion. The trial court continued the hearing until August 9, 1999. When Morrissey again failed to appear, the trial court ordered the motion off calendar.
On February 22, 2000, Onishi filed an “amended” motion to set aside the 1998 judgment. Morrissey failed to appear on April 3, 2000, which was the date set for the hearing. However, Perez appeared on Onishi’s behalf and requested that the motion be taken off calendar.
On June 15, 2006, Onishi brought an “amended” motion to set aside the default. In addition to the grounds set forth in the 1999 motion, Onishi argued that the judgment was void. The trial court found that the motion was untimely.
Code of Civil Procedure section 473, subdivision (b) provides mandatory relief from default “whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, . . . unless the court finds that the default . . . was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.” (Code Civ. Proc., § 473, subd. (b).)
Relying on Code of Civil Procedure section 1005.5, Onishi points out that a “motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of the motion . . . .” Thus, he claims that his motion was timely because it was filed on February 24, 1999, which fell within the six month period.
In 1999 and 2000, Onishi’s motion to set aside the default was taken off calendar. “A court calendar is a list of causes awaiting hearing on motion or trial. [Citation.] . . . The court for good cause has discretion in the control and regulation of its calendar or docket. [Citation.] It is permissible for good cause to delay a trial or hearing to a later date or to drop or strike a case from the calendar, to be restored on motion of one or more of the litigants or on the court’s own motion. ‘Off Calendar’ is not synonymous with ‘dismissal.’ ‘Off’ merely means a postponement whereas a ‘dismissal’ in judicial procedure has reference to a cessation of consideration. Courts have control of pleadings in a case until a valid final judgment is rendered. [Citation.]” (Guardianship of Lyle (1946) 77 Cal.App.2d 153, 155-156.) After Onishi requested that his motion be taken off calendar, he did not seek to renew it for six years. There is nothing in the record to indicate that Onishi was prevented from renewing the motion prior to that time. Since Onishi waited for six years to seek a hearing on the motion, the trial court did not abuse its discretion in concluding that his request for a hearing was untimely.
Onishi’s reliance on Bergloff v. Reynolds (1960) 181 Cal.App.2d 349 is misplaced. In that case, the matter was placed off calendar and the hearing on the motion was held seven months later. Here, Onishi waited over six years to seek a hearing on his 1999 motion.
E. Order Vacating and Expunging the Acknowledgment of Satisfaction of Judgment
Onishi and Ramirez challenge the temporary order of April 3, 2006, which vacated and expunged the acknowledgment of satisfaction of judgment on a number of grounds. We conclude that they have failed to file a timely appeal from this order.
Mary filed a motion that included an ex parte request for an order vacating and expunging the acknowledgment of satisfaction of judgment, which had been fraudulently recorded. A request for judicial notice of various court documents and the declarations of Frank and Lui were attached to the motion. On April 3, 2006, the trial court issued a temporary order that the “Satisfaction of Judgment recorded with the county on December 20, 2002 is immediately expunged and vacated.” A hearing was set for April 11, 2006. On that date, Smith, who was Onishi’s attorney, Onishi, and Morrissey, Ramirez’s attorney, appeared. No one at the hearing argued that the acknowledgment of satisfaction of judgment had been properly recorded in 2002 or that Mary’s motion had been improper. Following argument, the trial court issued an order stating that the court had already vacated and expunged the acknowledgment of satisfaction of judgment. The matter was continued for a hearing on the issue of attorney’s fees. Onishi and Ramirez did not request reconsideration of or file a motion to set aside the April 11, 2006 order. They also did not file an appeal from the April 11, 2006 order.
Contrary to the claim by Onishi and Ramirez on appeal, Mary did not bring this motion under Code of Civil Procedure section 473.
In general, a party does not have the right to appeal except from a final judgment or final order. (See Code Civ. Proc., § 904.1.) “A judgment is the final determination of the rights of the parties in an action or proceeding.” (Code Civ. Proc., § 577.) As our Supreme Court has stated, “[a] judgment is final when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.” (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 (Sullivan), internal citations and quotation marks omitted; see also Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.) Here, Onishi and Ramirez appealed from the temporary order. However, the trial court issued a final order directing that the acknowledgment of satisfaction of judgment be expunged, which left “nothing to be done but to enforce by execution what ha[d] been determined.” (Sullivan, at p. 304, internal quotation marks omitted.) Thus, the April 11, 2006 order was appealable. Since Onishi and Ramirez failed to file a notice of appeal within 60 days from the date of the final order, this court must dismiss that portion of the appeal pursuant to California Rules of Court, rule 8.104, subdivision (b).
F. Ramirez and Onishi Declarations
Ramirez and Onishi argue that the trial court erred in striking their testimony.
On May 31, 2006, Ramirez filed a declaration in support of his opposition to the Murguias’ request for attorney’s fees and in support of Onishi’s motion to set aside the 1998 judgment.
On June 20, 2006, the trial court set the Murguias’ request for attorney’s fees and Onishi’s “amended” motion to set aside the 1998 judgment for hearing on October 18, 2006.
On September 11, 2006, Mary filed and served notices in lieu of subpoena pursuant to Code of Civil Procedure section 1987, subdivisions. (b) and (c) on Onishi and Ramirez. The notices, which were personally delivered to Morrissey at his office, required Onishi and Ramirez to attend the hearing on October 18, 2006, and to produce listed documents.
On October 18, 2006, neither Onishi nor Ramirez appeared at the hearing. Perez appeared on Morrissey’s behalf to request a continuance due to Morrissey’s unavailability. Mary’s attorney objected to the continuance. He noted that both Onishi and Ramirez did not appear despite service on Morrissey of notices to appear and to produce documents, and pointed out that neither had appeared at any hearing in the previous six years. He also requested that the trial court order that Onishi and Ramirez appear at the rescheduled hearing. The trial court granted the continuance, set the matter for hearing on November 8, 2006, ordered Onishi and Ramirez to personally appear at the next hearing, and advised that the court would not allow testimony on their behalf if they failed to appear at the next hearing.
On October 18, 2006, Mary’s attorney served on Morrissey amended notices in lieu of subpoena, which required Onishi and Ramirez to appear at the November 8 hearing and to produce the listed documents at that time. The notices were served on Morrissey by personally delivering copies of the notices to his office and by mailing copies of the notices to him.
On November 6, 2006, Onishi filed a declaration in reply to the opposition to the supplemental motion to set aside the default and default judgment.
On November 8, 2006, Mary and Frank appeared with their attorneys, who submitted attorney’s fee declarations. Ramirez failed to appear at the hearing. Morrissey failed to provide any documentary evidence to explain why Ramirez had failed to comply with the October 18 order and the notice in lieu of subpoena. Morrissey stated that he did not “think Mr. Ramirez’s testimony has anything to do with the issues before” the court, and provided a version of events that had no support in the record. Onishi was present with Morrissey, but he failed to produce any of the documents identified in the notice in lieu of subpoena. Morrissey claimed that he did not know about any documents and that he had “never seen a document request in [his] life.” The attorneys for the Murguias requested that the Ramirez and Onishi declarations be stricken. Following argument, the trial court set the matter for November 9, 2006.
On November 9, 2006, the trial court ordered, among other things, that the declarations of Onishi and Ramirez be stricken, because they failed to appear at the hearing and to produce the requested documents.
When a party is served with a written notice to appear pursuant to Code of Civil Procedure section 1987, subdivision (b), a subpoena is not required. “The giving of the notice shall have the same effect as service of a subpoena on the witness, and the parties shall have those rights and the court may make those orders, including imposition of sanctions, as in the case of a subpoena for attendance before the court.” (Code Civ. Proc., § 1987, subd. (b).) The notice to appear may also include a request for the production of documents and “no subpoena duces tecum shall be required.” (Code Civ. Proc., § 1987, subd. (c).) The failure to produce documents pursuant to Code of Civil Procedure section 1987, subdivision (c) can have the same consequences as a failure to appear pursuant to Code of Civil Procedure section 1987, subdivision (b). (Code Civ. Proc., § 1987, subd. (c).)
Code of Civil Procedure section 1987 is technically not a discovery statute, because it is not part of the Civil Discovery Act of 1986. (See Code Civ. Proc. § 2016.) However, cases involving discovery sanctions guide our analysis. “The court’s discretion to impose discovery sanctions is broad, subject to reversal only for manifest abuse exceeding the bounds of reason.” (American Home Assurance Co. v. Societe Commerciale Toutelectric (2002) 104 Cal.App.4th 406, 435; Michaely v. Michaely (2007) 150 Cal.App.4th 802, 809.)
Onishi and Ramirez first claim that there was no order compelling the production of documents. However, they were served with a notice to appear that included a request for the production of documents pursuant to Code of Civil Procedure section 1987, subdivisions (b) and (c).
Ramirez also contends that he was no longer a party to the dissolution proceedings after the default judgment was set aside. Ramirez is wrong. On January 15, 1999, based on the parties’ stipulation, the trial court ordered that the default judgment would be set aside as to Ramirez. The trial court also ordered Ramirez to file an answer, provide responses to interrogatories, produce documents, and submit to a deposition by specified dates. Though Ramirez filed an answer, he did not comply with the remaining portions of the court order. The order further stated that “the complaint . . . may be severed from the main action and tried before the Superior Court . . . .” (Italics added.) There is nothing in the record to indicate that this complaint was ever severed from the dissolution proceedings.
Onishi and Ramirez next claim: “Onishi was at the hearing in question and Ramirez still recovering from cancer and no testimony was requested. Counsel did not say what either would add and the requested documents from Onishi for all we know were there and available since no one asked for them and they had nothing to do with the issues before the Court.” While Onishi was at the hearing, he did not produce the requested documents. If Onishi had the documents at the hearing, presumably he would have produced them if he wanted to avoid having his declaration stricken. There was also no documentation of Ramirez’s disability. Moreover, Code of Civil Procedure section 1987, subdivision (c) provides the procedure for objecting to the request for production of documents. Neither Onishi nor Ramirez filed any objections, and thus they have forfeited the issue on appeal.
Here, neither Onishi nor Ramirez appeared at the October 18, 2006 hearing. They also did not produce the requested documents. The matter was continued. Despite service of amended notices in lieu of subpoenas, which required their attendance on November 8, 2006 and the production of the requested documents, Ramirez did not appear or produce the documents. Though Onishi appeared at the hearing, he did not produce the requested documents and his counsel claimed that he had “never seen a document request in [his] life.” Based on this record, Onishi and Ramirez have failed to show that the trial court abused its discretion in striking their declarations.
G. Award of Attorney’s Fees
Onishi and Ramirez argue that “it is an unconstitutional violation of due process of law to award attorney’s fees to or against a claimant” pursuant to Family Code section 271. They claim that “[i]t has always been the general rule and philosophy in California, as well as the balance of the 49 states, that attorney fees are the responsibilities of the parties incurring them [Code of Civil Procedure § 1021]. To change that rule and award attorney fees against a third party in a breach of fiduciary duty lawsuit is a deprivation of due process of law. The fact that someone deals with someone who happens to be married and then goes through a divorce cannot operate to change Code of Civil Procedure § 1021.”
Family Code section 271 provides in relevant part: “(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. . . . [¶] (b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.”
Attorney’s fees are the responsibility of each party “[e]xcept as attorney’s fees are specifically provided for by statute.” (Code Civ. Proc. § 1021.) Here, the trial court awarded attorney’s fees in a family law proceeding, and thus Family Code section 271 was applicable. It is well settled that trial courts in California have the authority to award attorney’s fees against joined parties in marital dissolution proceedings. (See e.g., In re Marriage of Siller (1986) 187 Cal.App.3d 36, 43; In re Marriage of Jovel (1996) 49 Cal.App.4th 575, 585-590.)
Nevertheless, Onishi and Ramirez claim that “parties enter into relationships based on the law in existence and the legislature cannot change the rules because one side splits up. Such a rule violates equal protection, violates substantive due process and abridges the freedom of a party to contract. . . . [¶] It is in fact unfair to switch the attorney fee burden to a third party merely because one of the two married people needs money. It is in fact unreasonable to make a third party pay for a person’s dissolution.” This argument has no merit. Onishi and Ramirez were ordered to pay attorney’s fees based on their conduct and that of their attorney, not because the Murguias needed money for their dissolution.
Onishi and Ramirez next argue that the Murguias failed to provide adequate notice under Family Code section 271, because they did not identify “what conduct was under scrutiny.” This argument illustrates the difficulties that the Murguias have encountered in dealing with Onishi, Ramirez, and Morrissey throughout this litigation. Their supporting declarations that were attached to the application for the order to expunge and vacate the satisfaction of judgment, the points and authorities in support of the motion to compel, the attorney fee declaration, and their reply memorandum of points and authorities re joined parties provide extensive details regarding conduct by Onishi, Ramirez, and their attorney, which supported their requests for attorney’s fees under Family Code section 271. This conduct included the filing of two separate motions to set aside the judgment pursuant to Code of Civil Procedure section 473, which were not prosecuted and eventually taken off calendar, and the failure to comply with multiple court orders. The conduct of Onishi, Ramirez, and Morrissey in connection with the acknowledgment of satisfaction of judgment also supported an award of attorney’s fees. Morrissey obtained the Murguias’ signatures on the settlement agreement after telling them that no documents would be filed or recorded until they received payment. Though the Murguias did not receive payment, the satisfaction of judgment was wrongfully recorded. Moreover, despite an outstanding judgment, Onishi and Ramirez made no attempts to settle the matter and continued to engage in tactics solely for purposes of delay. The documents filed by the Murguias provided adequate notice to Onishi and Ramirez under Family Code section 271.
H. Joinder Order
Onishi contends that “the joinder order itself was fraudulently obtained.”
The alleged misjoinder of parties may be challenged either by demurrer to the joinder complaint or by raising the objection as an affirmative defense in the answer. (Code Civ. Proc., § 430.10, subd. (d).) The failure to object either by demurrer or answer waives the defect in the complaint. (Code Civ. Proc., § 430.80.) Here, Onishi never filed a timely demurrer or answer to the joinder complaints. Thus, he cannot raise the issue on appeal.
III. Disposition
The order, which was filed on December 12, 2006, denying the motion to set aside the 1998 default judgment and awarding attorney’s fees is affirmed. The appeal from the temporary order, which was filed on April 3, 2006, vacating and expunging the acknowledgment of satisfaction of judgment is dismissed. Costs on appeal are awarded to the Murguias.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.