Opinion
G035908 G036722
5-4-2007
RIMA JONES, Plaintiff and Appellant, v. LAW OFFICES OF LARRY BROOKENS et al., Defendants and Respondents.
Rima Jones, in pro. per., for Plaintiff and Appellant. No appearance for Respondents.
NOT TO BE PUBLISHED
Rima Jones appeals from the default judgment in her favor, which was entered on June 13, 2005, and from the order denying her petition to modify the default judgment, which was entered on August 5, 2005, contending the award of damages was inadequate (G035908). She also appeals from the subsequent orders setting aside the default judgment (G036722). We affirm the orders setting aside the default judgment and dismiss the remaining appeal as moot.
FACTS
Jones filed this action against Larry Brookens and Armand Thruston, both attorneys, who represented her in a case in Los Angeles County, Jones v. Pena (NC031553). Unfortunately, the record on appeal does not contain the complaint, but we infer from the opening brief that the basis of this action was Joness unhappiness with the Pena result.
On May 18, 2005, Jones filed a request to enter default against Brookens and Thruston; defaults were entered and a prove-up hearing was set. On June 13, 2005, the trial court entered a default judgment against Brookens and Thruston in the amount of $15,000. The minute order reflects, "The Court has now carefully considered the declarations of Plaintiff submitted in support of her request for entry of judgment. The Court finds that such declarations demonstrate that Plaintiff is entitled to judgment in the amount of $15,000 against Defendant Law Offices of Larry Brookens and Defendant Law Offices of Armand Thruston, jointly and severally, plus costs as allowed by law." The record on appeal does not contain the declarations on which the trial court relied.
Jones petitioned to modify the default judgment. Although the record does not contain the petition, it does contain the trial courts minute order denying the petition: "In accordance with CCP 585(b), the Court is required to render default judgment only for such sum as appears just. In this case, Plaintiff only presented evidence of $15,000 in damages and, therefore, judgment was rendered for that amount. There is no basis presented to increase that amount. The petition is therefore denied." Jones filed an appeal from the default judgment and the order denying the petition to modify the default judgment in August 2005.
On November 14, 2005, Brookens and Thruston moved to set aside the default judgment, claiming they were never served with the summons and complaint and that Jones filed fraudulent proofs of service. The record does not contain a copy of the proofs of service, but does contain copies of the motions to set aside the judgment.
Brookens and Thruston declared the service address on the proof of service is "3333 Brea Canyon Road, #207, Diamond Bar, California 91765." Thruston declared he has not had an office there since approximately 1995. Brookens has an office there, but his legal assistant declared she was present in the office on the day stated on the proof of service and "no one delivered or attempted to serve any legal documents. Other than Mr. Brookens, I was the only other person working in the office on April 4, 2005, as Mr. Brookens had no other employees." The assistant had never received a summons and complaint from any process server on behalf of Thruston or Brookens.
Both Brookens and Thruston declared the proof of service indicated service on "Trisha and Jamie, Authorized Agents." They declared they have never had authorized agents for service of process and do not know any individuals named Trisha or Jamie.
The trial court granted Thruston and Brookens relief from the default judgment under Code of Civil Procedure section 473. It set an order to show cause hearing, ordering Jones to show good cause why the case should not be dismissed. The record does not include the outcome of that hearing. Jones filed an appeal from the order on February 7, 2006. We consolidated the two appeals for argument and opinion.
DISCUSSION
A default is void as a matter of law if the defendant was not properly served. (Kallman v. Henderson (1965) 234 Cal.App.2d 91, 99.) A defendant may seek to set aside a void judgment under Code of Civil Procedure section 473, subdivision (d). Generally, an appeal from a judgment stays proceedings in the trial court because jurisdiction of the cause is vested in the appellate court until issuance of the remittitur. But "`"a court may set aside a void order at any time. An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree — a void order." [Citations.] [Citation.]" (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.)
Jones argues in her brief that the trial court was wrong in setting aside the default because Brookens and Thruston were properly served and were lying to the trial court. This is essentially a challenge to the sufficiency of the evidence to support the trial courts order. The motions by Brookens and Thruston contained declarations under penalty of perjury swearing they had never been served and explaining the circumstances supporting their assertions. The trial court apparently believed Brookens and Thruston, and their declarations constitute substantial evidence to support the trial courts order setting aside the defaults against them. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
When we review a trial courts judgment or order, we presume it is correct unless the appellant demonstrates otherwise. "A ruling by a trial court is presumed correct, and ambiguities are resolved in favor of affirmance. [Citations.] The burden of demonstrating error rests on the appellant." (Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th at pp. 631-632.) An appellant must demonstrate error by providing an adequate record. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) Jones has not met her burden of demonstrating error and the trial courts order must be affirmed.
Our affirmance of the order setting aside the default judgment renders moot Joness appeal from that judgment and the order denying her petition to modify it. (Andrisani v. Saugus Colony Limited, supra, 8 Cal.App.4th at p. 523.) Accordingly, we dismiss the appeal.
DISPOSITION
The orders setting aside the defaults and default judgments against Brookens and Thruston are affirmed. The appeal from the default judgment and the order refusing to modify it is dismissed as moot.
We concur:
RYLAARSDAM, J.
ARONSON, J.