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Klein v. Bader

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
B233495 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B233495

01-31-2012

LAW OFFICES OF ROBERT G. KLEIN, Plaintiff and Respondent, v. FRANZ BADER, Defendant and Appellant,

Franz Bader, in pro. per., for Defendant and Appellant. Law Offices of Robert G. Klein and Robert G. Klein for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

(Los Angeles County Super. Ct. No. BC424153)

APPEAL from a judgment of the Superior Court of Los Angeles County, Soussan G. Bruguera, Judge. Affirmed.

Franz Bader, in pro. per., for Defendant and Appellant.

Law Offices of Robert G. Klein and Robert G. Klein for Plaintiff and Respondent.

Pro se appellant and defendant Franz Bader (Bader), a former client of respondent and plaintiff, Law Offices of Robert G. Klein (Klein), seeks to reverse the trial court's entry of a default judgment against him and in favor of Klein for a total of $48,032.72 (representing unpaid and accrued legal fees, unpaid sanctions and unpaid costs) plus 10% per annum in interest until paid based on two contentions: (1) that he was not properly served with the summons and complaint, that the trial court improperly deemed he was served on April 12, 2010 in its April 19, 2010 order and that, as a result, the court did not have personal jurisdiction over him making the default judgment void; and (2) that the trial court improperly deemed him to have admitted Requests for Admissions which were not properly served on him, eliminating his defenses, and thus, the default judgment based on such admissions is void.

Bader was represented by counsel before the trial court until August 9, 2010.

"Where, as here, the defaulting party takes no steps in the trial court to set aside the default judgment, appeal from the default judgment presents for review only the questions of jurisdiction and the sufficiency of the pleadings. [Citations.]" (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767.) Therefore, we only address Bader's first contention that the trial court lacked personal jurisdiction over him because service of process was insufficient.

We hold that by filing a motion requesting that the trial court withdraw its October 22, 2010 order deeming admissions made and including answers to Klein's Request for Admissions, and by failing to simultaneously file a motion to quash, Bader made a general appearance before the court resulting in his forfeiting of any objections to insufficient service of process and lack of personal jurisdiction. As a result, we will affirm the lower court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background is based on the documents in the one-volume Clerk's Transcript, including the declarations of the parties.

In October of 2008, Klein began representing Bader and various entities with which Bader is associated in a litigation matter that had been pending for several years. Klein was initially contacted by John Farrow (Farrow), a manager of Ivacation.com Investor Association, LLC (Ivacation) - one of the entities involved in the litigation matter, with respect to such representation. Under the terms of the written representation agreement, Bader and Ivacation agreed to pay Klein a $10,000 retainer, an hourly rate of $400 plus a 5% bonus if results were obtained and all costs. As of October 1, 2009, such fees and costs totaled $33,353.00. On September 14, 2009, Bader provided Klein with two checks for past services rendered: one for $25,673.00 that was immediately payable and another for $4,000.00 payable after October 1, 2009. However, after a dispute between Bader and Klein regarding the naming of the wife of one of the defendants as a party to the pending litigation involving the various entities, Bader stopped payment on both checks.

The various entities involved in that litigation were Ivacation Investor Association, LLC; Bali Properties, Inc.; International Vacations of Nevada, Ltd.; and International Vacations, Ltd. These entities are also named defendants in the underlying case before the trial court, but none is a party to the current appeal. John Farrow is also a named defendant in the underlying case but is not a party to this appeal.

Klein filed a complaint on October 19, 2009 seeking his unpaid legal fees plus interest and costs from Bader and the various entities involved in the litigation matter. Farrow was served as the agent of the various entities involved. Default judgments were entered against Ivacation; Bali Properties, Inc.; International Vacations of Nevada, Ltd.; and International Vacations, Ltd. in December of 2009. Approximately 20 attempts at service on Bader were made from October of 2009 through January of 2010. On April 19, 2010, the trial court ordered that Bader was deemed served with the summons and complaint as of April 12, 2010.

The trial court's ruling does not elaborate on the rationale behind its deeming that Bader was properly served. However, as we resolve this appeal based on Bader's forfeiture of any right to object to personal jurisdiction, such rationale is irrelevant to our analysis.

Klein served a Request for Admissions on Bader in May of 2010. Due to Bader's failure to respond to such request, the trial court granted Klein's motion to have the admissions deemed admitted on October 22, 2010. Without filing a motion to quash service for lack of personal jurisdiction, Bader, through his counsel at the time, filed a motion requesting that the trial court withdraw its October 22, 2010 order. In this motion, Bader neither objected to personal jurisdiction by the trial court nor moved the court to quash service of the summons and complaint on Bader. The trial court denied Bader's motion on February 3, 2011.

A trial was held on April 11, 2011 and Bader failed to appear. As a result, the court entered a default judgment against Bader in addition to Ivacation and the other entities, jointly and severally, in the amount of $48,032.72 representing earned but unpaid fees of $39,223.22, unpaid sanctions of $6,199.50 and unpaid costs of $2,610.00. Bader timely filed a notice of appeal on June 1, 2011.

The judgment accrues at an interest rate of 10% per annum until paid.

ISSUES ON APPEAL

Bader seeks to reverse the trial court's entry of a default judgment against him based on the contention that he was not properly served with the summons and complaint and that the trial court improperly deemed he was served on April 12, 2010 in its April 19, 2010 order. As a result, Bader argues, the court did not have personal jurisdiction over him and the default judgment is void.

As noted earlier in this opinion, we only address Bader's first contention that the trial court lacked personal jurisdiction over him because service of process was insufficient.
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DISCUSSION

Proper service of process is a fundamental requirement for a court to exercise personal jurisdiction over a defendant. (Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832.) A judgment entered without personal jurisdiction over the defendant is therefore void. (Ibid.) In addition to the statutory methods of obtaining personal jurisdiction over a defendant by service of process, personal jurisdiction may be asserted over a defendant who generally appears before the court and thereby forfeits any objections to defective statutory service of process. (Code Civ. Proc., § 410.50, subd. (a); Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)

A defendant generally appears when he or she participates in an action in a manner that recognizes the court's jurisdiction before filing a motion to quash service of process for lack of personal jurisdiction. (Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 250; Mt. Holyoke Homes, LP v. California Coastal Commission (2008) 167 Cal.App.4th 830, 844.) "If the defendant confines [his] participation in the action to objecting to lack of jurisdiction over the person, there is no general appearance. [Citations.] However, a party who seeks relief on any basis other than a motion to quash for lack of personal jurisdiction will be deemed to have made a general appearance and waived all objections to defects in service, process or personal jurisdiction. [Citations.] The Courts of Appeal have described the scope of actions in the litigation process which constitute a general appearance as follows: 'A general appearance occurs where a party, either directly or through counsel, participates in an action in some manner which recognizes the authority of the court to proceed. It does not require any formal or technical act. [Citations.] "If the defendant 'raises any other questions, or asks for any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general . . . . ' [Citation.]" [Citations.]' [Citations.] Thus, if a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance. [Citations.]" (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52-53.)

"If, however, a party files a motion [to quash service] . . . before or simultaneously with an act that would otherwise constitute a general appearance, under subdivision (e) of section 418.10 that party will not be deemed to have 'generally appeared' in the action, but instead will be deemed to have 'specially appeared' and not waived the party's jurisdictional challenge." (Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 426; Code Civ. Proc., § 418.10, subd (e).)

Bader waived any objections to insufficient service when he generally appeared before the trial court. Bader, through his counsel at the time, filed a motion requesting that the trial court withdraw its October 22, 2010 order deeming admissions made. Further, in his motion for such relief, Bader submitted his proposed answers to Klein's Request for Admissions.

Under Chitwood v. County of Los Angeles (1971) 14 Cal.App.3d 522, the answering of interrogatories was held to be "predicated on the assumption that the court has jurisdiction over the answering party - otherwise, there would be no need for the answers. . . . [T]he only hypothesis upon which answers to interrogatories are prepared, filed and served is that the answering party is subject to the court's jurisdiction." (Id., at p. 528.) As answers to a Request for Admissions are substantially similar to answers to interrogatories, we find that the propounding of such answers also rests on the hypothesis that the court has jurisdiction over the defendant. Additionally, there is no evidence in the record to show that Bader timely moved to quash service of process. Thus, by filing the motion requesting that the trial court withdraw its October 22, 2010 order deeming admissions made and including answers to Klein's Request for Admissions, and by failing to simultaneously file a motion to quash, Bader made a general appearance before the court resulting in his forfeiting of any objections to insufficient service of process and lack of personal jurisdiction.

DISPOSITION

Based on the foregoing, the default judgment against Franz Bader is affirmed. Respondent shall recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J. WE CONCUR:

KLEIN, P. J.

KITCHING, J.


Summaries of

Klein v. Bader

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
B233495 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Klein v. Bader

Case Details

Full title:LAW OFFICES OF ROBERT G. KLEIN, Plaintiff and Respondent, v. FRANZ BADER…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

Date published: Jan 31, 2012

Citations

B233495 (Cal. Ct. App. Jan. 31, 2012)