Opinion
B320565
09-05-2023
In re the Marriage of LYNETTE A. and DAVID R. JENSEN. v. DAVID R. JENSEN, Defendant and Respondent. LYNETTE A. JENSEN, Plaintiff and Appellant,
Rombro & Manley, S. Roger Rombro and Melinda A. Manley for Plaintiff and Appellant. Law Office of Elke G. Schardt and Elke Gordon Schardt for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. MD037438 Scott J. Nord, Judge Pro Tempore. Reversed.
Rombro & Manley, S. Roger Rombro and Melinda A. Manley for Plaintiff and Appellant.
Law Office of Elke G. Schardt and Elke Gordon Schardt for Defendant and Respondent.
ASHMANN-GERST, J.
This protracted marital dissolution proceeding has been pending since 2009. Apparently frustrated by defendant and respondent David R. Jensen's (David) disobeyance of court orders, on April 11, 2014, the trial court imposed monetary sanctions against him at a hearing on an ex parte application that he filed. Over seven years later, David brought a motion to vacate the sanctions award pursuant to Code of Civil Procedure section 473, subdivision (d), on the grounds that it was void. The trial court granted David's motion, and plaintiff and appellant Lynette A. Jensen (Lynette) appeals.
Because the parties share the same last name, we refer to them by their first names. No disrespect is intended.
Those sanctions now exceed $8.7 million.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Because the April 11, 2014, order was voidable, and not void, David was not entitled to relief pursuant to section 473, subdivision (d). Accordingly, we reverse the trial court's order.
FACTUAL BACKGROUND
I. The parties and Lynette's petition for dissolution of marriage
David and Lynette married on August 10, 1985. David is a medical doctor with his own medical practice; Lynette did not work outside the home during the majority of their marriage. According to the appellate record, TD Ameritrade holds some sort of "IRA, Sharing Plan or [other] account or plan" in David's name or in the name of his medical practice.
Lynette filed a petition for dissolution of marriage on September 3, 2009. The matter has since been litigated-and continues to be litigated-for years.
II. Relevant trial court orders
On March 13, 2013, the parties stipulated that Darren Goodman (Goodman) be appointed to prepare a qualified domestic relations order (QDRO) for David's profit sharing plan. They agreed to "equally share the cost." (Capitalization omitted.) On March 18, 2014, the trial court appointed Susan Carlisle (Carlisle) as an expert to determine "cash flow available for support." David was ordered to "withdraw $16,000 from [his IRA account] and transfer" the monies to Lynette's counsel so that Carlisle's retainer could be paid.
III. David's ex parte application
On April 11, 2014, David filed an ex parte application seeking an order that Lynette sign a quit claim deed to certain business property.
After conferring with counsel in chambers, the trial court granted David's request and ordered Lynette to sign the quit claim deed. It went on to make several additional rulings that appear to have been beyond the scope of David's request and were not part of any written request by Lynette: (1) David was "to be sanctioned at the rate of $1,000.00 . . . per day starting April 18, 2014, if he hasn't paid the $250.00 which is half the retainer for the QDRO"; (2) David was "ordered to comply with the order regarding [Carlisle] and [was] to be sanctioned at the rate of $1,000.00 . . . per day unless he complied starting April 18, 2014"; and (3) David would "be fined an additional $1,000.00 . . . per day for failure to serve" certain court-ordered documents.
IV. David's petition for writ of mandate and petition for review
On May 16, 2014, David filed a petition for writ of mandate and/or prohibition with this court. (Jensen v. Superior Court, B256302.) He asked that we set aside the trial court's April 11, 2014, order on the grounds that he was denied due process. We summarily denied his request.
Dissatisfied, David filed a petition for review in the California Supreme Court, pressing his claim that his due process rights were violated. (Jensen v. Superior Court, S219168.) His petition for review was denied. (Jensen v. Superior Court, June 10, 2014, S219168.)
V. Order after hearing
The trial court issued an order after hearing on August 14, 2014. As is relevant here, the order reiterates that David "shall be sanctioned in the amount of $1,000.00 for every day beyond 04-18-14 that he has not fully complied [with the trial court's orders concerning the QDRO]. The Court reserves over additional sanctions, as the Court may deem just and appropriate, as there has already been unreasonable delay by [David] with regard to this issue." The order further provides that David "shall be sanctioned in the amount of $1,000.00 for every day beyond 04-18-14 that he has not fully complied with [the trial court's orders pertaining to Carlisle]. The Court reserves over additional sanctions, as the Court may deem appropriate." Finally, the trial court ordered David to ensure a "roll-over" into Lynette's Ameritrade account, and David "shall be sanctioned in the amount of $1,000.00 for every day beyond 0418-14 that he has not fully complied." Again, the trial court "reserve[d] over additional sanctions . . . as there has already been unreasonable delay by [David] with regard to this issue."
VI. Subsequent court orders concerning the trial court's April 11, 2014, order
In subsequent trial court orders, the trial court revisited, but did not make any rulings, concerning the April 11, 2014, order. For example, on October 17, 2014, the trial court noted that as a result of his noncompliance with prior trial court orders, David "had accumulated approximately $600,000.00 in potential sanctions." On September 2, 2016, the trial court found that David might "have liability of up to $1,500,000 in sanctions." "Without ruling as to whether the sanctions Order made 04-11-14 is excessive, was made without proper notice, or is otherwise unenforceable or void as [David] has argued, the Court notes that at no time since the order was made has [David] filed a Motion pursuant to Code of Civil Procedure 473 or any other authority requesting that the Order be set aside or modified, or otherwise challenging the validity of the order."
VII. David's motion to vacate the April 11, 2014, sanctions order
A. The motion
On December 9, 2021, David filed a motion to vacate the trial court's ex parte sanctions orders of April 11, 2014. He argued, inter alia, that the trial court lacked the authority to award sanctions ex parte and without written notice. After all, his ex parte application merely sought "Lynette's execution of a quit claim deed." And, "[t]he register of actions does not reveal any pending request for sanctions in connection with the April 11, 2014 hearing.... Thus, David had no notice that the court was considering sanctions on April 11, 2014, and the court did not give David a chance to show why sanctions should not be imposed."
Furthermore, the trial court's order was void because it failed "to specify the basis for imposing sanctions." Thus, it was unknown whether the trial court "imposed sanctions pursuant to any of the numerous statutes or court rules that authorize monetary sanctions," each of which requires "notice and an opportunity to be heard prior to the imposition of sanctions."
B. Lynette's opposition
Lynette opposed the motion, arguing, inter alia, that the April 11, 2014, order was "at most voidable, and not void, and since the time for an appeal has passed, the sanction order[] bec[a]me final and may not be collaterally attacked." Furthermore, because David had made a habit of willfully disobeying court orders, he had "no right to seek relief . . ., nor should [he be granted] relief." Finally, Lynette asserted that the trial court should deny David's motion because it had the inherent constitutional power to issue the sanctions, apart from any statutory authority.
C. Trial court order
After entertaining oral argument, on March 21, 2022, the trial court granted David's motion and vacated the April 11, 2014, order imposing sanctions against David. It found the sanctions order "void" and made without "legal basis" or "due process."
VIII. Appeal
Lynette's timely appeal from the trial court's March 21, 2022, order ensued.
DISCUSSION
I. Appealability
The trial court's order is appealable. (§ 904.1, subd. (a)(12); Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 680; County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110-111, disapproved on another ground in County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 492, fn. 4.)
II. Standard of review and relevant law
"Section 473, subdivision (d), provides a trial court 'may, on motion of either party after notice to the other party, set aside any void judgment or order.' '[I]nclusion of the word "may" in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].' [Citation.] However, the trial court 'has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void ....' [Citation.] Thus, the reviewing court 'generally faces two separate determinations when considering an appeal based on section 473, subdivision (d): whether the order or judgment is void and, if so, whether the trial court properly exercised its discretion in setting it aside.' [Citation.] The trial court's determination whether an order is void is reviewed de novo; its decision whether to set aside a void order is reviewed for abuse of discretion. [Citations.]" (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.)
"A judgment is 'void' only when the court entering that judgment 'lack[ed] jurisdiction in a fundamental sense' due to the '"entire absence of power to hear or determine the case"' resulting from the '"absence of authority over the subject matter or the parties."' [Citations.] To be sure, a court that '"'acts contrary to [its] authority'"' '"to give certain kinds of relief, or act without the occurrence of certain procedural prerequisites'" is often said to lack 'jurisdiction.' [Citations.] But such acts do not render the court's ensuing judgment or order void. That is because 'jurisdictional errors can be of two types[:] A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.' [Citation.] Only void judgments and orders may be set aside under section 473, subdivision (d); voidable judgments and orders may not. [Citations.]" (People v. The North River Ins. Co. (2020) 48 Cal.App.5th 226, 233-234; see also In re Jesusa V. (2004) 32 Cal.4th 588, 624 ["A court acts in excess of jurisdiction 'where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no "jurisdiction" (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites'"].)
"[M]ost procedural errors are not jurisdictional. [Citations.] Once a court has established its power to hear a case, it may make errors with respect to areas of procedure, pleading, evidence, and substantive law. [Citations.]" (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56; see also Lee v. An (2008) 168 Cal.App.4th 558, 565 [a court acted in excess of its jurisdiction by imposing terminating sanctions without adequate prior notice; the resulting default and default judgment were therefore voidable, not void]; Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 99.)
While a motion to set aside a void judgment or order may be made at any time, a motion to set aside a voidable order "must be challenged within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity. [Citations.]" (Pittman v. Beck Park Apartments Ltd., supra, 20 Cal.App.5th at p. 1021; Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 862.) In other words, when a judgment or order is merely voidable, a party is not entitled to relief under section 473, subdivision (d). (Lee v. An, supra, 168 Cal.App.4th at p. 566.)
III. The trial court erred
Applying these legal principles, we conclude that the trial court erred in granting David's motion to vacate pursuant to section 473, subdivision (d). The trial court's April 11, 2014, order imposing sanctions against David was not void. "[A]t all times[, the trial court] had fundamental jurisdiction over the subject matter and the parties." (People v. The North River Ins. Co., supra, 48 Cal.App.5th at p. 234.)
Braugh v. Dow (2023) 93 Cal.App.5th 76, first raised by David's counsel during oral argument, is readily distinguishable. In that case, the judgment was void because "the trial court did not obtain personal jurisdiction over [the defendant] due to improper service of the summons and complaint." (Id. at p. 90.) Here, the trial court had both subject matter jurisdiction and personal jurisdiction over the parties.
In his motion to vacate the April 11, 2014, order, David raised several arguments in support of his contention that the sanctions order was flawed. However, he offered no legal authority or argument that those alleged errors gave rise to a void-as opposed to voidable-order. Likewise, in defending the trial court's order on appeal, he still fails to explain, with legal authority and argument, why the trial court's April 11, 2014, order was void. Nor could he. As set forth above, that order was at most voidable.
Even during oral argument, David's counsel insisted that the trial court's April 11, 2014, order was rendered in excess of its jurisdiction. Pursuant to the well-settled legal principles set forth above, an order issued in excess of a court's jurisdiction is voidable, not void.
Notably, there were no unusual circumstances that would have prevented David from timely moving to vacate the April 11, 2014, order. (Lee v. An, supra, 168 Cal.App.4th at p. 563.) David certainly objected to the order. He filed a petition for writ of mandate with this court and sought review in the California Supreme Court. While those efforts failed, nothing stopped him from timely filing a section 473 motion in the trial court. Even after the trial court issued its September 2, 2016, order, which indicated that David could be liable for $1.5 million in sanctions and noted his failure to seek to set aside the April 11, 2014, order, David did nothing for another five years-not until December 2021 did he finally file a motion to vacate the sanctions order.
Certainly a court has inherent power on equitable grounds to vacate an order when it is entered without due process. (See, e.g., Adoption of B.C. (2011) 195 Cal.App.4th 913, 919; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228.) But there is no indication or argument here that the trial court resorted to its equitable powers when it granted David's motion.
In sum, assuming without deciding that the trial court erred in imposing monetary sanctions against David, that error rendered the April 11, 2014, order voidable, not void. As such, David was not entitled to relief pursuant to section 473, subdivision (d).
DISPOSITION
The order granting David's motion to vacate the April 11, 2014, order is reversed. Lynette is entitled to costs on appeal.
WE CONCUR: LUI, P.J., HOFFSTADT, J.