Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC368763, Tricia Ann Bigelow, Judge.
No appearance for Plaintiff and Respondent.
Hector Hu; Thomas E. Wanner for Defendant and Appellant Behrouz Babajouni.
MOSK, J.
INTRODUCTION
Defendant and appellant Behrouz Babajouni (defendant) appeals a default judgment entered against him on a complaint filed by plaintiff and respondent Moussa Kalimi (plaintiff). Defendant contends that he was not properly served with the summons and complaint and that the trial court erred by denying his motion to quash service and set aside the default. Because substantial evidence supported the trial court’s conclusion that defendant properly was served, we affirm the judgment.
Plaintiff filed no respondent’s brief. We therefore decide the appeal on the record, the opening brief, and the oral argument by defendant. (Cal. Rules of Court, rule 8.220(a)(2).)
Defendant’s brief does not contain a single citation to the record. California Rule of Court, rule 8.204(a)(1)(C) requires that each brief “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Italics added.) “The claimed existence of facts that are not supported by citations to pages in the appellate record... cannot be considered by this court.” (Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5.) Rather than strike the brief and dismiss the appeal, however, we exercise our discretion to disregard the noncomplying statements in the brief and address the merits. (Cal. Rules of Court, rule 8.204(e)(2)(C); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990 & fn. 4; Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.)
On April 2, 2007, plaintiff filed a complaint against defendant; defendant’s business partner, Moshen Babajani (Babajani); and their business, Unlimited Import, Inc. (Unlimited Import). Plaintiff alleged that defendants breached a loan agreement by failing to repay the loan and by attempting to repay it with checks that were dishonored.
Babajani and Unlimited Import are not parties to this appeal. We refer to defendant, Babajani and Unlimited Import collectively as defendants.
Plaintiff filed a proof of service of the summons and complaint and a declaration of due diligence, both executed by a registered process server. The process server declared that he attempted to serve defendants personally at their business address at 1803 South Hope Street on three consecutive days. On the third day—April 26, 2007 at 2:05 p.m.—the process server left three copies of the summons and complaint with a person identified as “Mike ‘Doe’ (Persian male; manager; 6’1; 200 lbs; blck/brwn).” There was evidence that Babajani used the name “Mike.” The process server then mailed copies of the summons and complaint to defendants at their business address, pursuant to Code of Civil Procedure section 415.20.
Statutory references are to the Code of Civil Procedure unless stated otherwise.
Defendants did not respond to the complaint. The clerk of the Superior Court entered the default of defendant and Babajani on June 27, 2007.
It appears that, for reasons not relevant here, no default was taken or judgment entered against Unlimited Import.
Nearly a year later, in April 2008, defendant and Babajani moved to quash service of the summons and complaint and to set aside the default. Defendant and Babajani presented evidence that on the date service was made, they were no longer doing business at 1803 South Hope Street but had moved their business to a new location on Bay Street. They also submitted evidence that both of them were participating in a business meeting at another location on the afternoon service was made. Defendants argued that service was improper and should be quashed pursuant to section 418.10, subdivision (a)(1), and that their default should be set aside on grounds of “surprise” under section 473.
In opposition, plaintiff submitted the declaration of his attorney, Mohammad Nadim. Nadim declared that in April 2007, plaintiff’s place of business was near defendants’ location at 1803 South Hope Street. Plaintiff had informed Nadim that defendants were in the process of moving their business out of that location. Nadim instructed plaintiff to watch the location and to call him as soon as plaintiff saw defendant and Babajani there. On the afternoon of April 26, 2007, plaintiff called Nadim and told him that defendant and Babajani were present. Nadim instructed the process server to meet him at the location. When the process server arrived, plaintiff and Nadim pointed out defendant and Babajani. Nadim watched as the process server delivered three copies of the summons and complaint to Babajani. Nadim further declared that, in February 2008, he attended a mediation in the case at which both defendant and Babajani were present. Nadim recognized Babajani as the person who was served in April 2007.
The trial court heard the motion to quash and to set aside the default on May 7, 2008, and took the matter under submission. The next day, the trial court issued a written ruling denying the motion. The trial court found “persuasive” Nadim’s declaration that he had seen the process server deliver the summons and complaint to Babajani, and that Babajani was the same man who later attended the mediation. The trial court also noted that, according to the California Secretary of State’s records, the South Hope Street location was the designated address for the service of process for Unlimited Imports. The trial court found that these facts, combined with the process server’s declaration of diligence, established that defendants properly were served. The trial court did not expressly address defendant’s argument under section 473.
Defendant failed to include in the record both the trial court’s May 8, 2008 minute order denying the motion and the May 8, 2008 Court Ruling Re Submitted Matter, in which the trial court stated its reasons for doing so. We have obtained copies from the Superior Court file and on our own motion order the record augmented to include them. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
Defendant did not seek review of the trial court’s order by writ of mandate. (§ 418.10, subd. (c).) The trial court entered judgment against defendant and Babajani on June 2, 2008. Defendant timely appealed.
DISCUSSION
Section 415.20, subdivision (b) provides that, if an individual cannot personally be served despite the exercise of reasonable diligence, service may be accomplished “by leaving a copy of the summons and complaint at the person’s... usual place of business..., in the presence of a... person apparently in charge of his or her office [or] place of business,... at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.” This method of service is sometimes referred to as substitute service. (See Weil et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 4:193, p. 4-29 (rev. #1, 2006) (Civil Procedure).)
A defendant who contends that service was improper may move to quash service pursuant to section 418.10, subdivision (a)(1). (Civil Procedure, supra, ¶¶ 4:411 to 4:414, p. 4-63 (rev. #1, 2009).) The plaintiff bears the burden of establishing that service properly was made. (Floveyor International, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793-794; Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) When reviewing the denial of a motion to quash, we are bound by the trial court’s findings of fact if supported by substantial evidence; we review de novo the legal conclusion whether those facts established proper service. (See CenterPoint Energy, Inc. v. Superior Court (2007) 157 Cal.App.4th 1101, 1119.)
Defendant asserts that “[i]f there are conflicts in the facts, the court should resolve the dispute in favor of the appealing party.” But the case cited by defendant—consistent with the fundamental precepts of appellate practice—states precisely the opposite. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [“All conflicts in the evidence must be resolved in favor of respondent, as the prevailing party,” italics added]; see generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 365, pp. 421-424.)
We note that there is some question whether defendant’s claim of error with respect to denial of his motion to quash is cognizable on appeal from the judgment. Generally, when a motion to quash is denied, the defendant must seek review by filing a petition for a writ of mandate pursuant to section 418.10, subdivision (c). Our Supreme Court has held that, because this statutory mechanism for interlocutory review is available, a defendant may not obtaIn review of an order denying a motion to quash on appeal from a subsequent judgment when, after the motion was denied, the defendant contested the merits of the lawsuit. (McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 257 (McCorkle); see generally State Farm General Ins. Co. v. JT’s Frames, Inc. (2010) 181 Cal.App.4th 429, 437-442 [surveying development and legislative history of section 418.10, subdivision (c)].) Because defendant in this case did not litigate the merits of the lawsuit after his motion to quash was denied, one might argue that the rule of McCorkle should not apply. But we do not need to resolve the issue in this case because we conclude that the trial court’s factual findings were supported by substantial evidence, and those findings compel the conclusion that defendant properly was served with the summons and complaint pursuant to section 415.20, subdivision (b).
The trial court found that Nadim’s declaration was credible, and implicitly rejected the contrary evidence submitted by defendant and Babajani. Nadim declared that he personally observed the process server deliver the service package to a man believed to be Babajani, and that Babajani’s identity as that man was confirmed at the subsequent mediation in this case. The process server’s declaration of due diligence established that he attempted personal service on defendant at the South Hope Street location on three occasions, satisfying the requirement of reasonable diligence in section 415.20, subdivision (b). (Ellard v. Conway (2001) 94 Cal.App.4th 540, 545; Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1391-1392.) The proof of service established the remaining requirements for substitute service.
Defendant asks us, in effect, to reject the trial court’s credibility determinations and to reweigh the evidence in his favor. That we will not do. “An appellate court has no power to reweigh the evidence, or to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn from the evidence.” (Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177 Cal.App.4th 624, 643.) “‘[T]he power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.’ [Citation.]” (Applera Corp. v. MP Biomedicals, LLC (2009) 173 Cal.App.4th 769, 788.)
Defendant argues that the trial court erred in relying on the process server’s proof of service and declaration of due diligence because, in effect, all evidence offered in the form of a declaration constitutes inadmissible hearsay. (Evid. Code, § 1200.) Defendant forfeited any such contention by failing to object on hearsay grounds in the trial court. (Evid. Code, § 353, subd. (a).) In any event, although defendant is correct that testimony offered in the form of a declaration technically is hearsay, sections 2009 and 2015.5 permit the use of declarations in law and motion proceedings, and California Rule of Court, rule 3.1306(a) provides that, in general, “[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice....” (Italics added.) Defendant makes no argument that the trial court abused its discretion by denying his request for a live evidentiary hearing. The trial court properly denied defendant’s motion to quash.
Defendant fails to cite to the record to support his contention that his counsel objected. There is no written objection in the record, and counsel did not object orally at the hearing—counsel only requested an evidentiary hearing, which the trial court denied.
Defendant also argues that the default judgment should be set aside on the grounds of “surprise” under section 473, subdivision (b). That provision grants the trial court discretion to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Defendant, however, claims that he was “surprised” because he was not properly served and therefore did not become aware of the lawsuit. But we have already concluded that the trial court’s finding that defendant properly was served was both supported by substantial evidence and legally correct. That conclusion necessarily disposes of defendant’s argument based on section 473.
Defendant raised no claim either in the trial court or on appeal that he was entitled to relief pursuant to section 473.5, which permits relief from default when service of the summons did not result in actual notice to the defendant in time to defend the action. Defendant forfeited any such contention.
DISPOSITION
The judgment is affirmed. Because plaintiff did not defend the appeal, no costs are awarded.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.