Opinion
G055434
12-11-2018
LAGUNA DANA INVESTMENTS, LLC, Plaintiff and Appellant, v. SIROUS P.A. GHASEMIAN, et al. Defendants and Respondents.
Allen & Kimbell and John H. Parke, James M. Sweeney, and Christopher E. Hahn for Plaintiff and Appellant. Benice Law and Jeffrey S. Benice for Defendant and Respondent Sirous P.A. Ghasemian. No appearances for Defendants and Respondents Del Mar Rug Gallery, Inc. or Sirous & Sons Rug Gallery, Inc.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00493353) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Michael Brenner, Judge. (Retired judge of the Orange Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded. Allen & Kimbell and John H. Parke, James M. Sweeney, and Christopher E. Hahn for Plaintiff and Appellant. Benice Law and Jeffrey S. Benice for Defendant and Respondent Sirous P.A. Ghasemian. No appearances for Defendants and Respondents Del Mar Rug Gallery, Inc. or Sirous & Sons Rug Gallery, Inc.
Laguna Dana Investments, LLC (Laguna Dana) appeals from a postjudgment order granting Sirous P.A. Ghasemian's motion to set aside an April 11, 2013, judgment (judgment) as void. The trial court determined "the court did not have the power to enter default or default judgment against Ghasemian when she failed to appear for trial . . . ." Laguna Dana contends the judgment was not void on its face. Ghasemian disputes Laguna Dana's claims and filed a motion to dismiss the appeal. Ghasemian argues our prior opinion in Laguna Dana Investments, LLC v. Sirous & Sons Rug Gallery, Inc. (Mar. 17, 2014, G048254) [nonpub. opn.] (Laguna Dana I) determined the judgment against Ghasemian was a default. We disagree. The motion to dismiss is denied. The order vacating the judgment is reversed and remanded.
We note the uncertainty as to Ghasemian's identity in the trial court and prior appeal. Because the party's underlying identity is not at issue here, we refer to Ghasemian as a woman for convenience.
Contrary to Ghasemian's assertions, in Laguna Dana I, we vacated the default judgment against Sirous and Sons only, and determined the judgment against Ghasemian must stand.
Ghasemian argued we should dismiss this appeal on the grounds it is frivolous and taken solely for the purpose of delay. As evidenced by our reversal of the matter, we disagree.
FACTS
A detailed summary of the facts from this unlawful detainer action are contained in our opinion in Laguna Dana I, which we incorporate by reference here. Previously, the trial court struck lessee Sirous & Sons Rug Gallery, Inc.'s (Sirous & Sons) answer in October 2012 and ordered a default as to Sirous & Sons when it was unrepresented at trial. Individual lessee Ghasemian filed an answer to lessor Laguna Dana's operative complaint in February 2012, which the court never struck. No default was entered against Ghasemian, even though she did not appear at trial. The trial court entered judgment against both Sirous & Sons and Ghasemian in April 2013.
In Laguna Dana I, we addressed Ghasemian's and Sirous & Sons' appeal from the order denying their motion to vacate the judgment. We determined Ghasemian made no showing of error, and affirmed the judgment against her. We reversed and remanded the order as to Sirous & Sons, however, finding the judgment void because the trial court had no power to strike its answer and proceed by way of default.
Picking up where we left off, in April 2017, Ghasemian filed a motion to vacate a void judgment (2017 motion to vacate). The 2017 motion to vacate alleged the trial court erroneously entered judgment against Ghasemian in violation of the court's October 22, 2012, order to prepare a default judgment only as to Sirous & Sons. The trial court initially denied Ghasemian's motion: "Ghasemian's [motion] is denied. [¶] It was the [trial c]ourt's intention to strike the answer of the individual [Ghasemian] who failed to participate and failed to appear on 10/22/12 for trial. Although [representative for Ghasemian] was present at trial, he was not an attorney at the time, therefore, unable to represent either [d]efendants Sirous & Sons or . . . Ghasemian. [¶] The default judgment will stand."
Thereafter, the trial court granted Ghasemian's motion for reconsideration of the 2017 motion to vacate in full. In its July 2017 minute order (2017 order), the court determined the judgment was void on the face of the record: "The court did not have the power to enter default or default judgment against Ghasemian when she failed to appear for trial on October 22, 2012. [Citation.]" In the 2017 order, the court cited Code of Civil Procedure section 473, subdivision (d), for the proposition the court "may set aside a judgment void on its face at any time." Laguna Dana appeals from the 2017 order granting Ghasemian's motion for reconsideration and ordering the judgment set aside.
Del Mar Rug Gallery, Inc. (Del Mar) and Sirous & Sons are listed as parties to this appeal. As discussed in Laguna Dana I, Del Mar was the original lessee of a commercial property and Sirous & Sons was the alleged successor in interest to Del Mar. Because the order appealed from only involved Ghasemian, neither Del Mar nor Sirous & Sons filed a brief in this matter.
DISCUSSION
Ghasemian asserts the trial court's 2017 order was correct because the judgment against her was "void on the face of the record" because "[t]he [trial] court did not have the power to enter default or default judgment against Ghasemian when she failed to appear for trial . . . ." Her entire argument is premised upon the fact that her answer in the underlying proceeding was stricken and the judgment entered against her was a default judgment. We find no evidence of either in the record. The court erred in vacating the judgment.
Ghasemian sought relief from the trial court under Code of Civil Procedure section 473, subdivision (d), which provides: "The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order." (§ 473, subd. (d).) "'It is well settled that a judgment or order which is void on its face, and which requires only an inspection of the judgment-roll or record to show its invalidity, may be set aside on motion, at any time after its entry, by the court which rendered the judgment or made the order. [Citations.]' [Citations.]" (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.) A default cannot be entered if a party has filed a responsive pleading. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141.) "We review de novo a trial court's determination that a judgment is void." (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.)
All further statutory references are to the Code of Civil Procedure.
We note that Ghasemian did not seek equitable relief from the judgment. This is likely because relief on the ground of extrinsic mistake or fraud is not available to a party if that party has been given notice of an action yet fails to appear without having been prevented from participating in the action. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) --------
The trial court granted Ghasemian's motion for reconsideration. It vacated its prior decision denying Ghasemian's 2017 motion to vacate, granted that motion, and set aside the judgment against Ghasemian as void on its face. The court characterized the Ghasemian judgment, five years after the fact, as a default judgment. In its minute order on the 2017 motion to vacate, it stated "[i]t was this [c]ourt's intention to strike the answer of the individual (Sirous P.A. Ghasemian) who failed to participate and failed to appear on 10/22/12 for trial." Whatever the court's intention might have been, it did not actually strike Ghasemian's answer or enter her default. Ghasemian does not argue otherwise. Indeed, Ghasemian's 2017 motion to vacate concedes this central issue: "Laguna Dana fails to provide the [c]ourt with any evidence of Ghasemian's entry of default in order to support such a judgment (it cannot because no such entry of default exists as it simply waived Ghasemian as a defendant before the [c]ourt on the October 22, 2012 trial date.)"
Ghasemian relies on our language from Laguna Dana I to demonstrate the trial court entered a default judgment against her. In that case, however, we limited our analysis to Sirous & Sons' default, and observed "[o]nce Sirous & Sons was placed in default, it had no right to do anything more." (Laguna Dana I, supra, G048254.) Since there is no evidence Ghasemian defaulted, her rights in the litigation were not terminated. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385 ["The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered"].) She remained able to object to the judgment packet filed by Laguna Dana, its underlying evidence, or its requested damages.
The record demonstrates the trial court did not enter a default judgment against Ghasemian. Because there was no default, the judgment is not void on its face and is not susceptible to attack at this late date. The order is reversed and remanded.
DISPOSITION
Ghasemian's motion to dismiss the appeal is denied. The July 11, 2017, order granting the 2017 motion to vacate is reversed. The matter is remanded to the trial court with directions to vacate its July 11, 2017, order and to reinstate the amended judgment entered April 11, 2013. Laguna Dana is entitled to its costs on appeal.
O'LEARY, P. J. WE CONCUR: ARONSON, J. THOMPSON, J.