Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD383713, Michael P. Linfield, Judge.
Michael B. Montgomery and Bruce T. McIntosh for Defendant and Appellant.
Albert M. Graham, Jr.; and Alan S. Yockelson for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
As framed by appellant Ripsime Tonoyan’s brief, this appeal contests two rulings made by the trial court. The first found that she had been properly served with a complaint in joinder. The second struck her answer to that complaint as being untimely. We find no abuse of discretion in either ruling and therefore affirm the post-judgment order from which she appeals.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dissolution Action and Complaint in Joinder
Marine Nazaryan (wife and respondent on this appeal) filed a petition to dissolve her marriage to Sarkis Tonoyan (husband). She alleged that during the marriage husband fraudulently transferred two real property assets, both of which belonged to the community, to certain relatives. One of those assets was a duplex located on Rosedale Avenue in Glendale, California (the Rosedale property), which husband allegedly transferred to his sister, appellant Ripsime Tonoyan (Ripsime).
We refer to Ripsime by her first name solely to distinguish her from Sarkis Tonoyan. We intend no disrespect.
In March 2005, during the pendency of the dissolution proceedings, wife filed a complaint in joinder against Ripsime concerning the allegedly fraudulent transfer of the Rosedale property. The trial court granted the joinder. In the joined complaint, wife alleged causes of action against Ripsime for, inter alia, rescission, quiet title, and declaratory relief, seeking to invalidate the allegedly fraudulent transfer of the Rosedale property. It is that complaint, which was joined in the dissolution proceeding, that is in issue in this appeal.
2. Wife’s Request for Entry of Default and Ripsime’s Motion to Vacate
On June 23, 2005, wife filed a request for clerk’s entry of default against Ripsime based on Ripsime’s failure to file an answer to the complaint in joinder. For reasons not explained by the record or the parties, the clerk took no action on the request. In particular, the clerk did not check the boxes on the request to indicate either entry of default or denial of the request.
Notwithstanding the clerk’s failure to take action on wife’s request for entry of default against Ripsime, the parties proceeded on the assumption that default had been entered.
On July 13, 2005, Ripsime filed a motion for an “order striking, annulling, vacating and setting aside the void default entered against her in this action.” Ripsime’s motion argued that she had not been properly served with the complaint in joinder. In a declaration filed with the motion, Ripsime’s son Vartan stated that on March 17, 2005, he “found the papers in this action hanging on my mother’s front door” and that he “did not review . . . or share” them with Ripsime. Ripsime’s daughter Mary declared that Vartan gave her the bag and that she delivered it to Ripsime’s attorney. Ripsime declared that “[n]o person . . . ever handed [her] a ‘summons and complaint’” and that she knew “that the pleading in this action was left on the doorknob, because [her] daughter so told [her].”
Wife opposed the motion, likewise proceeding on the assumption advanced by Ripsime that a default had been entered on June 23. Wife’s opposition argued that a process server had served Ripsime with the complaint twice, first on March 28 and again on May 23, 2005, and that the server recognized Ripsime on those two occasions because Ripsime had identified herself when he had earlier served her with a subpoena on March 1, 2005. A declaration of the process server, Rod Collins, set forth the following sequence of events.
Concerning service of the subpoena on March 1, Collins stated [numbered paragraphs omitted]: “I knocked on the front door to the residence [at 1037 Ruberta Avenue in Glendale] and was greeted by a young man approximately 17 years in age, who identified himself as the son of Ms. Tonoyan and [her husband Hrach Bursalyan]. I asked the man if he was over 18 years of age and he replied that he was not. I asked him if there was anyone over the age of 18 in the residence. He replied that his brother was over 18, but his brother was in the shower. . . . I explained to the man that I was there to serve his parents with court documents, at which time the man said he would get his parents. He then shut the door. Ten minutes elapsed, and the same man came to the front door and told me that his parents were home but that they were ‘unavailable.’ I insisted that it was necessary for his parents to come to the front door and accept service of the documents. The man again shut the front door. Another ten minutes elapsed and both Ms. Tonoyan and Mr. Bursalyan met me at the front door and identified themselves. . . . I observed Ms. Tonoyan to be in her late 50’s to early 60’s with dark shoulder length hair. She was approximately 5-6 in height and weighed approximately 170 pounds. I observed Mr. Bursalyan to be in his 60’s with gray hair and approximately 5-7 in height. I handed both Ms. Tonoyan and Mr. Bursalyan a civil subpoena[] ordering their personal appearance in Department CE22 on April 1, 2005.”
Concerning service of the complaint on March 28, Collins declared [numbered paragraphs omitted]: “On said date [around 7:30 p.m.], I knocked on the front door to the residence. I could hear talking and heard movement from within the residence. I observed the lights inside the residence being turned off. I then walked around the north side of the residence to a large kitchen window and observed the kitchen light to be the only light on in the residence. I stood outside the large kitchen window waiting for someone to appear. Approximately ten minutes later, Ms. Tonoyan walked into the kitchen. I made eye contact with [her], and holding the documents in the air, I yelled through the window that I had court documents for her and that I was leaving them at her front door.”
Concerning service of the complaint on May 23, Collins stated [numbered paragraphs omitted]: “On said date [around 3:15 p.m.], I knocked on the front door to the residence. I could hear talking and movement from within the residence, but no one answered the door. I waited outside the front door for approximately five minutes. I then walked around the north side of the residence to a living room window and waited for someone to appear. Approximately 10 minutes later, Ms. Tonoyan entered the living room wearing a white bra and underwear. I made eye contact with Ms. Tonoyan, and holding the documents in the air, I yelled through the window that I had court documents for her and that I was leaving them at her front door. Ms. Tonoyan proceeded to run out of the room.”
Wife’s attorney filed a declaration in which he explained that after the March 28 service of the complaint, Ripsime’s attorney first had advised him that he believed that service was ineffective and later offered to accept service if wife’s attorney would send the appropriate acknowledgement form. After wife’s attorney sent the form, Ripsime’s attorney responded by letter on May 5 stating that he would not accept service unless wife’s attorney withdrew a lien he had filed on the property. “In an abundance of caution,” wife’s attorney therefore requested the process server to serve Ripsime again, and service was accomplished on May 23.
In her reply to the opposition, Ripsime disputed the process server’s account. Declarations from her and her husband Hrach Bursalyan denied that she had ever identified herself to the process server. They characterized Collins’s assertion to the contrary as “completely” and “absolutely false.”
3. The Trial Court’s Ruling Denying Ripsime’s Motion to Vacate
On August 8, 2005, the court denied Ripsime’s motion to vacate entry of default. The court found the declaration of the process server to be credible, and the declarations of Ripsime, her husband, and her children not to be credible. The court found that service of the complaint on Ripsime was “valid and effective” on both March 28 and May 23, 2005. The court also found that wife’s request for entry of default was “valid and proper.”
4. Ripsime’s Motion for Reconsideration and Relief from Default
On August 12, 2005, Ripsime moved for reconsideration of the trial court’s denial of her request to set aside default (Code Civ. Proc., § 1008) and for relief from default based on alleged attorney error (Code Civ. Proc., § 473, subd. (b)).
The basis for her reconsideration request was the purportedly new evidence (supported by a physician’s note) that Ripsime was 5 feet 1 inch tall and weighed 223 pounds, whereas the declaration of process server Collins described her as 5 feet 6 inches and 170 pounds. In addition, Ripsime tendered a declaration averring that on May 23, 2005 she was “5’1 in height and weighed 223 pounds” and claiming that she had “an old driver’s license listing [her] as 5’4”, 150 pounds, which was never correct.” (She did not produce a copy of that driver’s license.)
According to the motion, the purported attorney error was that counsel “had erroneously advised [Ripsime] that, in his opinion, she had not been validly served and therefore need not actively contest the joinder complaint.” The motion concluded: “The default was taken solely as a result of attorney error, and it should be set aside.” However, Ripsime’s attorney did not provide, as required by law, a sworn affidavit, explaining his fault. Instead, he offered a declaration that merely stated [numbered paragraphs omitted]: “All facts set forth in the foregoing motion are true and correct[; and] . . . The decision to challenge personal jurisdiction was solely mine and not the client’s.” In addition, Ripsime offered a declaration from her son Robert Bursalyan which stated [numbered paragraphs omitted]: “I did advise Mr. Montgomery [Ripsime’s attorney] that on or about May 23, 2005, the process server handed my brother and father subpoenas. Mr. Montgomery has repeatedly advised my mother and my sister and me that my mother was not effectively served.”
Wife opposed the motion for reconsideration. Wife tendered another declaration from Collins. He explained that he had been a registered process server for 17 years and had served over 20,000 individuals. He reiterated that he first met Ripsime when she identified herself to him when he served her with a subpoena on March 1. He explained that his prior statement that she “was approximately 5-6 in height and weighed approximately 170 pounds [was his] estimate; [he] never weighed or measured [her].” He denied that he had “handed” any documents to Ripsime’s husband or son on May 23, 2005, reiterating that “the documents were left at the front door as previously stated.”
5. The Trial Court’s Ruling Denying Ripsime’s Motion for Reconsideration and Relief from Default
On October 26, 2005, the court denied Ripsime’s motion. In regard to the request for reconsideration, the court found that the evidence about Ripsime’s height and weight was not “new evidence” because it was available to her at the time of her first motion to set aside entry of default.
The court also rejected the motion for relief based upon her claim of attorney fault. The court reiterated its findings that Collins was credible and Ripsime and her family members were not credible. It found Ripsime was evading service and such action “and lack of credibility render her culpable such that she is not protected by [Code Civ. Proc., § 473, subd. (b)], which protects only an innocent client and provides no relief for the culpable client who participates in conduct which led to the default or dismissal.” In addition, the court found that counsel’s affidavit was insufficient to trigger relief because it “was not a straightforward admission of fault” and that counsel’s “only mistake” was that he “believed his clients,” individuals the court found “to be disingenuous and not to be believed.”
6. Trial and Judgment in the Dissolution Proceeding Between Wife and Husband
Meanwhile, in the dissolution portion of the action between wife and husband, the court held a trial on reserved issues to characterize and divide marital assets and liabilities. Ripsime did not participate in the trial although she had an opportunity to do so. Wife had served Ripsime with a subpoena to testify at trial. Ripsime failed to appear but counsel appeared on her behalf and stated that if called as a witness, Ripsime would assert the privilege against self-incrimination.
On March 7, 2006, following the trial, the court entered judgment on reserved issues. In the judgment, as here relevant, the court found that husband’s testimony was not “particularly credible” and that husband “breached his fiduciary duty to [wife] and committed fraud in relation to the disposition of the . . . Rosedale” property. The court also found “that the gift of the Rosedale property to [husband’s] sister, Ripsime Tonoyan, was in effect a sham transaction.” The court awarded the Rosedale property solely to wife.
7. Ripsime’s Purported Appeal from Orders Relating to Entry of Default
Ripsime purported to appeal from the court’s August 2005 order denying her motion to vacate entry of default and its October 2005 order denying her motion for relief from default and reconsideration. In an unpublished opinion filed on August 22, 2006, we dismissed the appeal as having been taken from nonappealable orders. We noted that such orders can be reviewed only on appeal from the default judgment.
8. Ripsime Files An Answer to the Complaint in Joinder
On August 29, 2006, one week after we dismissed her appeal, Ripsime, after determining that the clerk had never actually entered the default, filed an answer to the complaint in joinder.
9. Wife’s Motion to Strike Answer to Complaint in Joinder
On September 14, 2006, wife moved to strike Ripsime’s answer. Wife argued that the answer was not timely filed and that the court should strike it under Code of Civil Procedure section 436, subdivision (b) and California Rules of Court, rule 5.158(c). Ripsime opposed the motion, arguing that default could not be entered because she had filed an answer.
10. Wife’s Motion to Correct Judgment in Dissolution Proceeding
On October 13, 2006, wife moved to correct the March 7, 2006 judgment in the dissolution action nunc pro tunc to include the legal descriptions of the realty awarded to her, including the Rosedale property. Ripsime filed no opposition to this motion.
Wife’s motion to amend the judgment is not included in the record on appeal.
11. The Trial Court’s Ruling re Wife’s Two Motions
On January 29, 2007, the trial court granted wife’s motions to strike Ripsime’s answer and to amend nunc pro tunc the judgment in the dissolution proceeding to include the property descriptions. In addition, the trial court “further ordered that the Judgment [of March 7, 2006], as entered nunc pro tunc . . . be entered against the third-party claimant, Ripsime Tonoyan.” (Capitalization omitted.)
At the hearing, the trial court explained: “[T]he answer is not in conformity with the local rules which allows her [Ripsime] 30 days to file a response to a complaint for joinder. . . . [Ripsime] argues that her answer cannot be stricken because the default was never entered. . . . [C]laimant [Ripsime] is correct in asserting that the clerk cannot refuse to accept the answer for filing because the time to respond has expired. However, that doesn’t prevent this court from striking the answer. And the court is going to grant the motion to strike.”
Thereafter, Ripsime filed an objection to the order “permitting judgment to be entered against [Ripsime], on the ground that [Ripsime] is at least entitled to a credit for trust deed payments, taxes, insurance and maintenance prior to reversal of title under Court Order.” The trial court overruled the objection.
Following service of notice of entry of the court’s orders striking Ripsime’s answer and correcting the dissolution judgment, Ripsime filed a timely notice of appeal.
12. Husband’s Appeal from the Dissolution Judgment
Meanwhile, Husband appealed from the dissolution judgment of March 7, 2006 that (as between him and wife, but not Ripsime) had declared the transfer of the Rosedale property to Ripsime to be a sham and that had awarded the property to wife. In an unpublished opinion filed August 31, 2007, we affirmed the judgment.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion In Finding That Ripsime Had Been Properly Served With The Complaint In Joinder
Ripsime first challenges the trial court’s finding, made in context of denying her motion to vacate the default, that she had been properly served on March 28 and May 23. As set forth above, the trial court explicitly credited the process server (Collins) and found that the declarations offered by Ripsime and her family were not credible. The trial court’s resolution of a credibility dispute created by competing declarations is reviewed for abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]” (Id. at pp. 478-479.)
Ripsime explains that she is attacking that ruling because “[a]lthough the issue of relief from default is apparently moot in this case, since default was never, and does not appear to have been ordered entered at the time of the striking of the Answer, Ripsime is still asking that the order striking the Answer and the Judgment in accord thereof be set aside.”
In this case, the trial court had a reasonable basis to credit Collins’s declaration. Collins had met Ripsime less than one month before his first service of the complaint when he had served her with a subpoena at which time she identified herself to him. Hence, the trial court could reasonably credit Collins’s averment that he recognized Ripsime on March 28 and May 23 when he went to her home to serve her. Furthermore, the discrepancy between the record date of service (March 28) and the date that Ripsime’s children claimed to have found the summons and complaint on the front door (March 17) along with their close family ties to Ripsime cast doubt upon the veracity of their declarations. In sum, the trial court’s resolution of the credibility dispute was not an abuse of discretion.
Further, there is no merit to Ripsime’s claim that finding valid service when the process server left the summons and complaint on her door defeats “any guarantees of due process.” Service is complete when there is, as here, a good faith attempt to physically serve the party. (Khourie, Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, 1013.) A party cannot defeat service by rendering physical service impossible. (Ibid.) When the process server and the defendant are within speaking distance of each other and a reasonable person would conclude that service of a legal document was attempted, the defendant cannot avoid service by moving away without taking the documents. (Id. at p. 1013-1014.) Here, on both March 28 and May 23, Collins saw and recognized Ripsime. He was in speaking distance of her and informed her that he would leave the summons at her front door. This method of service was reasonable, valid, and effective.
Because we conclude that the trial court did not err in finding that Ripsime had been properly served on March 28 and May 23, we need not address Ripsime’s argument that wife implicitly conceded that service had not been properly affected when her attorney sent a Notice of Acknowledgement and Receipt to Ripsime’s counsel.
Contrary to what Ripsime suggests, the fact that the trial court had never had an opportunity to personally observe Ripsime and her family members did not preclude the court from choosing to disbelieve them. If that were the law (and it is not), a trial court would never be permitted to resolve an issue submitted on conflicting declarations. Traditional motion practice “ordinarily mean[s] the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion. [Citations.] [¶] . . . There is simply no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflicts without hearing live testimony.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.)
In moving to set aside entry of default, Ripsime never requested the opportunity to present live testimony.
Ripsime’s contention that the trial court erred in denying her subsequent motion for reconsideration and relief from default based upon attorney neglect is likewise without merit.
In moving for reconsideration, a party “must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) The trial court’s denial of a motion for reconsideration is reviewed for abuse of discretion. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Here, the trial court clearly did not abuse its discretion in denying the motion. Ripsime’s knowledge of her height and weight was, by its very nature, always available to her. In addition, at the time of her first motion to set aside entry of default, she knew about the potential relevancy of that information because Collins’ declaration included the physical description of her that she later claimed was incorrect.
Similarly, the trial court did not abuse its discretion in denying the motion for relief based upon a claim of attorney fault. The statute requires “an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc., § 473, subd. (b).) Ripsime’s attorney failed to provide such an affidavit. Instead, he simply averred that all of the facts in the memorandum of points and authorities accompanying the motion were true. This was insufficient. An attorney’s affirmation of the contents of a legal memorandum does not satisfy the requirement of “an attorney’s sworn affidavit attesting” to fault. (See State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 608-609.) Further, to the extent that counsel improperly advised Ripsime not to answer the complaint in joinder, that advice resulted from Ripsime’s misrepresentations to him that she had not been served. In that circumstance, relief was not warranted. “[A] party can rely on the mandatory provision of section 473 only if the party is totally innocent of any wrongdoing and the attorney was the sole cause of the default or dismissal.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1248.)
B. The Trial Court Did Not Abuse its Discretion in Striking Ripsime’s Answer to the Complaint in Joinder
The trial court has the power to exercise its discretion to strike any pleading not “filed in conformity with the laws of this state [or] a court rule.” (Code Civ. Proc., § 436, subd. (b).) This power includes the right to strike a pleading filed in an untimely manner. (See Collins v. Bicknell (1919) 41 Cal.App. 291, 292.) The trial court’s order striking a pleading pursuant to section 436 is reviewed for abuse of discretion. (Pacific Gas & Electric Co. v. Superior Court (2006) 144 Cal.App.4th 19, 23.) As appellant, it is Ripsime’s burden to establish such abuse. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.)
A party, like Ripsime, who is properly joined in an action “has 30 days after service within which to file an appropriate response.” (Cal. Rules of Court, rule 5.158(c); see also Code Civ. Proc., § 412.20, subd. (a)(3) [answer due within 30 days following service of complaint].) As explained above, Ripsime was properly served on both March 28, 2005 and May 23, 2005 but did not file her answer until August 29, 2006. The answer was patently untimely. Ripsime’s opposition to wife’s motion to strike her answer offered no explanation for the untimely filing; she simply observed (correctly) that the clerk had neglected to enter default. On appeal, Ripsime reiterates that point, noting that the clerk could not refuse to accept an answer because it was late. That, however, is not the point because the clerk did, in fact, accept the answer. The real issue is whether the trial court abused its discretion in striking an answer filed more than a year late. It did not because no justification exists for the delay. Ripsime’s mistaken belief that default had been entered does not constitute excusable neglect for her delay. Even a cursory review by her of the court records would have informed her that the clerk had not acted upon wife’s request to enter default. If Ripsime had exercised this minimal diligence, she would have learned that she could file a responsive filing. She did not. Instead, she proceeded to litigate the case, first in the trial court and then on appeal, for more than a year on the mistaken assumption that a default had been entered. On this record, Ripsime has failed to meet her burden of demonstrating that the trial court’s order striking her answer was an abuse of discretion.
DISPOSITION
The March 28, 2007 order striking Ripsime Tonoyan’s answer to the complaint in joinder and permitting the judgment of March 7, 2006 (as amended nunc pro tunc to include the property descriptions) to be entered against Ripsime Tonoyan is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.