Opinion
F049063
12-12-2006
ADEBOWALE O. OSIJO, Plaintiff and Appellant, v. ROGER A. SEVIGNY, as Insurance Commissioner etc., et al., Defendants and Respondents.
Adebowale O. Osijo, in pro. per., for Plaintiff and Appellant. Greenan, Peffer, Sallander & Lally, James S. Greenan and Enoch Wang for Defendant and Respondent Roger A. Sevigny. Burnham Brown, Robert M. Bodzin and Jennifer R. Thomas for Defendant and Respondent Burnham Brown. Georgia Ann Michell-Langsam, for Defendants and Respondents Michell-Langsam and Georgia Ann Michell-Langsam.
This is the latest in a series of lawsuits brought by plaintiff Adebowale O. Osijo in connection with a personal injury claim settled in 1991. Plaintiff became dissatisfied with the settlement agreement the day after it was executed and has sought its invalidation ever since. In this case, he sued Georgia Ann Michell-Langsam (Michell-Langsam), the attorney who represented him in the settlement, Burnham Brown, the law firm that represented the insurer funding the settlement, and the Insurance Commissioner of the State of New Hampshire (currently Roger A. Sevigny), who is the liquidator of that now-insolvent insurer. The trial court dismissed Burnham Brown on res judicata grounds; plaintiff had sued the firm unsuccessfully in previous actions. The court also dismissed the Insurance Commissioner. It relied on the doctrine of comity and took account of the liquidation proceedings in New Hampshire, in which an order abating other litigation had issued. Finally, as to Michell-Langsam, the court quashed service of summons and vacated a default entered against her, ruling that she had never been properly served. We perceive no error and affirm these dispositions.
FACTUAL AND PROCEDURAL HISTORIES
A longer account of the underlying facts may be found in our unpublished opinion affirming the judgment in one of plaintiffs previous cases, Osijo v. Home Insurance Company (Sept. 7, 2004, F042329, F043325), and the First District Court of Appeals unpublished opinions in Osijo v. Housing Resources Management, Inc. (Jul. 16, 1992, A055045) and Osijo v. Ganong and Michell (Apr. 12, 1996, A068661). A shorter version will suffice for purposes of this appeal.
In 1988, plaintiff was working as a security guard at an apartment complex in Oakland. While on duty, he was shot multiple times by an assailant or assailants with semi-automatic rifles. Plaintiff sued the owners of the apartment complex and his employer, a security guard company. Among other things, his complaint alleged that the assailants had a confrontation with other security guards at the complex earlier in the day and that no one had warned plaintiff about them. The company was insolvent and uninsured, but the apartment complex owners, though also insolvent, had insurance. After a mediation held under the auspices of the Judicial Arbitration and Mediation Service (JAMS), the parties executed a settlement agreement on July 25, 1991, under which plaintiff and his counsel received $ 250,000. In these proceedings, plaintiff was represented by Michell-Langsam. The insurer, Home Insurance of America (Home), was represented by a law firm called Larson and Burnham, now known as Burnham Brown.
On July 26, 1991, the day after he signed the settlement agreement, plaintiff became dissatisfied and informed Michell-Langsam that he wanted to withdraw from it. The owners of the apartment complex filed a motion to enforce the agreement. The superior court heard plaintiffs objections and granted the motion to enforce in spite of them. The Court of Appeal affirmed, rejecting plaintiffs principal claim that the agreement was unenforceable because the JAMS mediator was not a current member of the State Bar.
In the succeeding years, plaintiff filed a series of lawsuits against Michell-Langsam, Burnham Brown, Home, and a variety of other parties. In the first of these, plaintiff recovered $ 12,500 against Michell-Langsam for withholding as fees more of the settlement proceeds than her retainer agreement permitted. There is no indication in the record that plaintiff recovered anything in any of the other cases. In a malicious prosecution action in Fresno County Superior Court (Michell v. Osijo (Super. Ct. Fresno County, 2004, No. 02 CE CG 00003)), Michell-Langsam obtained a judgment against plaintiff of more than $165,000 based on his actions in two previous cases.
Acting in propria persona, plaintiff filed the operative first amended complaint in this case on September 16, 2004. The first cause of action is titled "Void Judgment." It alleges that the order enforcing the settlement agreement is void because of an attorney conflict of interest. Home was both the insurer of the apartment complex and Michell-Langsams malpractice insurer. Burnham Brown represented Home in plaintiffs original personal injury case and defended Michell-Langsam in plaintiffs malpractice suit against her. Plaintiff claims that Michell-Langsam connived with Burnham Brown to settle the personal injury case, receiving her contingent fee, and in return providing Burnham Brown with confidential information about plaintiff, presumably for use against him in the malpractice case (which, however, was not filed until later). According to the complaint, these allegations show that the superior court lacked jurisdiction to enforce the settlement agreement and that plaintiff was deprived of his due process rights under the Fourteenth Amendment.
The second cause of action is titled "Void Settlement Agreement." It asserts that the settlement agreement is unenforceable because of the conflict of interest alleged in the first cause of action. The third cause of action, "Void Subsequent Judgments," asserts that various judgments and orders of various courts are void because they gave effect to or declined to invalidate the allegedly void settlement agreement and the judgment enforcing it. The fourth cause of action, "Disgorgement of Misappropriated Funds," claims that Michell-Langsam should be compelled to return the contingent fee she collected when the personal injury case settled.
Burnham Brown demurred, arguing that plaintiffs effort to invalidate the settlement was barred by the doctrine of res judicata because it was an attempt to relitigate claims that had been decided against plaintiff in prior actions. The trial court agreed, sustained the demurrer without leave to amend, and entered a judgment of dismissal in favor of Burnham Brown.
The Insurance Commissioner moved to dismiss the action on several grounds, including an argument that, under the doctrine of comity, the court should dismiss plaintiffs claims because proceedings to liquidate the insolvent insurer had been instituted in a New Hampshire state court. These are the same liquidation proceedings we discussed in our opinion in Osijo v. Home Insurance Company, supra, F042329, F043325. The insurer was declared insolvent in an action in New Hampshire Superior Court. That court issued an order of liquidation on June 13, 2003, appointing the Insurance Commissioner as liquidator, abating all other actions and proceedings against the insurer and requiring all claims against it to be processed via the liquidation. (Osijo v. Home Insurance Company, supra, at p. 8.) The trial court granted the motion. It stated that it was relying on grounds of inconvenient forum, but in substance its order dismisses the action for reasons of comity. Subsequently, the court entered a judgment of dismissal in favor of the Insurance Commissioner.
Michell-Langsam moved to quash service of summons and to vacate a default that had been entered by the clerk. The trial court ruled that Michell-Langsam was never properly served and granted the motion.
Plaintiff appeals from these rulings. Additional factual and procedural details will be set forth in our discussion below.
DISCUSSION
I. Burnham Brown and res judicata
Plaintiff contends that the trial court erred in sustaining Burnham Browns demurrer. We recently restated the pertinent standard of review:
"In an appeal from a judgment dismissing an action after a general demurrer is sustained without leave to amend, our Supreme Court has imposed the following standard of review. `The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.] [Citations.]" (Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)
We hold that the trial court was correct in sustaining the demurrer without leave to amend on res judicata grounds.
The doctrine of res judicata is divided into two parts. The first part, called claim preclusion (or res judicata), bars a party to an action in which final judgment has been obtained from bringing a new action against the same opposing party and seeking a recovery based on the same cause of action as that relied on in the first action. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 (Mycogen).) "Cause of action" in this context does not mean "legal theory." It means "primary right," a concept we discuss further below. (Id. at p. 904; Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) Claim preclusion only applies if the parties to the new action are identical with or in privity with the parties to the prior action. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828-829; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951.) Privity exists if the party to the new action is "`" ... so identified in interest with [a party to the prior action] that he represents the same legal right."" (Armstrong v. Armstrong, supra, at p. 951.)
The second part, called issue preclusion or collateral estoppel, bars a party from relitigating in a new action an issue that was actually litigated and decided in a prior action. (Mycogen, supra, 28 Cal.4th at p. 896; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) A party in the new action may advance collateral estoppel as a defense against a party who previously litigated the same issue in a prior action even if the party advancing collateral estoppel was a stranger to the prior action. (Vandenberg v. Superior Court, supra, 21 Cal.4th at pp. 828-829; Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812-813; Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 417.)
The difference between a primary right, which may not be reasserted under claim preclusion, and an issue, which may not be relitigated under issue preclusion, is important. A primary right may include several issues, none of which may be raised again if claim preclusion applies, even those that were not raised in the prior action. (Mycogen, supra, 28 Cal.4th at p. 904; Slater v. Blackwood, supra, 15 Cal.3d at p. 795.) An attempt to raise in the new action an issue that is within the primary right advanced in the prior action but not actually litigated in that action is called "`claim splitting," and is not permitted under claim preclusion. (Mycogen, supra, at pp. 900, 903; Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) Under issue preclusion, by contrast, a party is barred from raising an issue only if it was actually litigated and decided in the prior action. (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 346.)
In this case, so far as the claims against Burnham Brown are concerned, there is identity of parties. Osijo unsuccessfully sued Burnham Brown in a previous case, a decision we affirmed in Osijo v. Home Insurance Company, supra, F042329, F043325. Therefore we proceed to analyze the case under claim preclusion.
Claim preclusion bars a lawsuit if (1) it advances the same cause of action that was advanced in a prior action; (2) the prior action resulted in a final judgment on the merits; and (3) the parties to the present action are the same as, or in privity with, the parties to the prior action. (Busick v. Workmens Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974; Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.) Here, the parties are the same, as we have just said, and there is no doubt that the previous case resulted in a final judgment on the merits. The only question is whether Osijo advances the same cause of action here as he advanced previously.
Under California law, for res judicata purposes, a single cause of action arises from the invasion of a single primary right. (Slater v. Blackwood, supra, 15 Cal.3d at p. 795.) "[T]he primary right is simply the plaintiffs right to be free from the particular injury suffered." (Crowley v. Katleman, supra, 8 Cal.4th at pp. 681-682.) Multiple legal theories and multiple remedies can be based on a single injury, and a failure to assert any of the available theories or claim any of the available remedies in an action based on the injury means those theories and remedies are barred by claim preclusion in subsequent litigation. (Mycogen, supra, 28 Cal.4th at pp. 904-906, 907 [judgment granting specific performance of breached license agreement barred later action for damages for breach of same agreement]; Slater v. Blackwood, supra, 15 Cal.3d at p. 795.) On the other hand, the fact that the two lawsuits are premised on the same set of facts does not necessarily mean they assert the same primary right. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955 [prior judgment for employer in racial discrimination suit brought under federal civil rights law was not res judicata with respect to employees subsequent suit, based on same termination of employment, for defamation and intentional infliction of emotional distress], overruled on other grounds by White v. Ultramar, Inc. (1999) 21 Cal.4th 563.)
The complaint in this case is based on an injury that was asserted in the prior action. In that case, plaintiff sued Burnham Brown, Michell-Langsam, Home, and several other parties. He alleged that Burnham Brown committed fraud in obtaining the settlement in the original personal injury action and violated his privacy rights with respect to his legal and medical files. (Osijo v. Home Insurance Company, supra, F042329, F043325, at p. 5.) The trial court granted Burnham Browns motion for summary adjudication on the fraud claim, finding it was barred by the litigation privilege and the statute of limitations. It also granted judgment on the pleadings on the privacy-rights claim, ruling that, because Burnham Brown was entitled to the information in the files as defense counsel in the original lawsuit, the claim failed to state a cause of action. After plaintiff amended his complaint in an attempt to allege the privacy claim adequately, the trial court sustained Burnham Browns demurrer without leave to amend. (Id. at p. 6.)
Defendant relies on the same primary right in the present case. The legal theories are different—previously he asserted fraud and now he asserts an attorney conflict of interest—but the injury he claims is the same: that his agreement to settle the personal injury case was obtained improperly through the misconduct of his counsel and opposing counsel. His attempt to litigate the same primary right a second time in a second lawsuit under a different legal theory constitutes claim splitting and is barred by the doctrine of claim preclusion.
In arguing against the trial courts conclusions in this case, plaintiff relies on the principle that a void judgment has no res judicata effect in subsequent litigation (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1100; Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239-1240) and may be attacked at anytime by way of an independent action in equity (Rochin, supra, 67 Cal.App.4th at p. 1239). His argument may be summarized as follows: (1) In this case, the trial court relied on the judgments in his previous cases, including the one reviewed by this court, Osijo v. Home Insurance Company, supra, F042329, F043325, when it ruled that the present action was barred by res judicata. (2) The previous judgments in turn relied on the original order enforcing the settlement agreement. (3) The order enforcing the settlement agreement is void. (4) A void judgment cannot be the basis of a ruling barring a lawsuit under res judicata principles. Therefore (5), the present suit cannot be barred on res judicata grounds.
This argument is incorrect for at least two reasons. First, although the case we previously reviewed rejected plaintiffs request to invalidate the judgment enforcing the settlement agreement, it did not rely on that judgment. Burnham Brown did not win there because that prior judgment existed. Instead, the trial court granted summary adjudication on plaintiffs fraud claim based on the litigation privilege and the statute of limitations and granted judgment on the pleadings on plaintiffs invasion-of-privacy claim because Burnham Brown was entitled to the records in question. We agreed. In other words, plaintiff lost in the previous case not merely because the judgment enforcing the settlement agreement was already on the books, but because the legal theories plaintiff advanced in attacking that judgment lacked merit. When the trial court barred the present action based on res judicata, consequently, its decision was based only on the judgment we previously reviewed in Osijo v. Home Insurance Company, supra, F042329, F043325, and not on the judgment enforcing the settlement agreement.
To put the same point another way, plaintiff had and took an opportunity to litigate his claim against Burnham Brown that the judgment enforcing the settlement agreement should be invalidated in Osijo v. Home Insurance Company, supra, F042329, F043325. His claims did not prevail and, under res judicata, he is not entitled to another try.
Plaintiff appears to believe that the judgment in Osijo v. Home Insurance Company, supra, F042329, F043325, can act as a bar to the present suit only if our opinion in that case "upheld the validity of the underlying personal injury judgment ...." He criticizes the trial court for not telling him, when he asked, on what page our opinion did this. There is no such requirement, however. As we have said, the point is that plaintiffs claims against Burnham Brown were decided on their merits in the previous case and he is not entitled to relitigate them under a new legal theory.
Second, the claims plaintiff advances in the present case cannot show that the judgment enforcing the settlement agreement is void in any event. According to Witkin, the exception to res judicata for void judgments applies where the judgment is "wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud." (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 286, p. 828.) Plaintiff says the judgment enforcing the settlement is void because of the alleged conflict of interest and because the judgment was executed by means of a rubber-stamp replica of the judges signature rather than an actual signature. Neither claim can establish that the judgment is void.
First, even if plaintiffs suit against Burnham Brown were not barred in its entirety by claim preclusion, his conflict-of-interest claim would be barred by issue preclusion and for that reason could not be used to show that the judgment enforcing the settlement agreement is void. Plaintiff litigated the same claim to a final judgment in his malpractice suit against Michell-Langsam, Osijo v. Ganong and Michell, supra, A068661. There, plaintiff contended that a conflict existed because Michell-Langsams malpractice insurer was Home, to which plaintiff was adverse in the personal injury suit, and whose counsel, Larson and Burnham (now Burnham Brown), later also defended Michell-Langsam against plaintiff. The trial court granted summary adjudication on this issue. The Court of Appeal affirmed, observing that, during Michell-Langsams representation of plaintiff, plaintiff had not yet asserted a malpractice claim against Michell-Langsam or her insurer, so a conflict of interest could not yet have been created. The court also stated that there was no evidence in the record of an actual conflict between Michell-Langsams "duty to Osijo and her own later defense by Home and the Larson firm." (Osijo v. Ganong and Michell, supra, at p. 9 & fn. 3.) Plaintiff further contended that Michell-Langsam had a conflict of interest with him arising from her desire to proceed with the settlement after he told her he wanted out. (Michell-Langsam went so far as to attempt to file an amicus brief against plaintiff in the Court of Appeal when plaintiff appealed from the judgment enforcing the settlement agreement.) The Court of Appeal upheld summary adjudication for Michell-Langsam on this claim based on the statute of limitations. (Id. at pp. 9-10.) In asserting that the judgment enforcing the settlement agreement is void because of the same alleged conflicts, plaintiff attempts to relitigate against Burnham Brown an issue he has already unsuccessfully litigated to a final judgment in the malpractice case against Michell-Langsam. Under issue preclusion, he is not entitled to do this.
Second, there is nothing wrong with a judge instructing his staff to use a rubber stamp to indicate his approval of judgments and other documents instead of signing them himself by hand. The practice is commonplace. It does not constitute "forgery" and does not need to be approved by local rule, as plaintiff contends. Plaintiff does not claim the rubber stamp was used without the judges permission.
Plaintiff also argues that the judge in question, Judge Sutter, was the wrong judge to execute the settlement agreement. He cites Williams v. Superior Court (1939) 14 Cal.2d 656, 662 for the proposition that when a case has been assigned to one department and not reassigned, other departments lack jurisdiction to "`interfere with the exercise of the power of the department to which the proceeding has been so assigned." Plaintiff says the "personal injury case was not assigned to Judge Sutter and Department 18, nor, was it the Law & Motions Department of the Alameda County Superior Court. The Law & Motion Department was Department 19, with Judge Dawn Girard, presiding, which was not unavailable to entertain the motion to enforce. The case was assigned to Department 12, with Judge Demetrios Agretelis, presiding, which was not unavailable to entertain the motion to enforce." These claims are not accompanied by any citations to the record. Our own examination of the record on appeal has revealed nothing indicating that the matter was not properly before Judge Sutter or that the judgment interfered with any act of any other department.
Finally, at oral argument, plaintiff called our attention to In re Marriage of Deffner (2006) 143 Cal.App.4th 662, a copy of which he had provided to us before. Deffner does not alter our analysis. In it, the Court of Appeal affirmed a trial courts decision to set aside its own judgment approving a marital settlement agreement because the judgment was obtained, in part, by the husbands attorneys filing of papers in which he claimed to be the wifes attorney. The Court of Appeal held that this constituted a fraud upon the trial court and justified setting the judgment aside even though that action otherwise would have been time-barred. We do not disagree that a judgment can be set aside under circumstances of that kind. Deffner does not support plaintiffs position here for the two reasons we have just stated: (1) the trial courts res judicata ruling did not depend on the judgment enforcing the settlement agreement; and (2) even if it did, plaintiffs arguments do not establish that that judgment is void.
For all these reasons, we conclude that Burnham Browns demurrer was properly sustained as to all causes of action without leave to amend. The judgment we reviewed and affirmed in Osijo v. Home Insurance Company, supra, F042329, F043325, bars the present action against Burnham Brown.
II. The Insurance Commissioner and comity
The Insurance Commissioners motion to dismiss made several arguments: the trial court lacked personal jurisdiction over the Commissioner; the doctrine of comity required the court to give effect to a liquidation order entered in a New Hampshire state court, abating all other litigation advancing claims against Home and its successors; reciprocity provisions of the California Insurance Code required the court to defer to the New Hampshire liquidation proceedings; and the full faith and credit clause of the federal Constitution required the court to enforce the New Hampshire liquidation order. The Insurance Commissioner added an alternative claim that the action should be stayed or dismissed on forum non conveniens grounds.
In granting the motion, the trial court stated that it was relying on the ground of inconvenient forum. It explained, however, that the doctrine of comity and the reciprocity provisions of the Insurance Code were what made the alternate forum in New Hampshire appropriate.
Plaintiff responded to the ruling by filing a document he called a motion to vacate judgment. This motion argued that the courts order granting the motion to dismiss was "a nullity and prima facie void" because it "either wittingly or unwittingly ... gave effect to the underlying prima facie void judgment" that enforced the settlement agreement. The judgment enforcing the settlement agreement was void, plaintiff argued, because of the alleged conflict of interest and the rubber stamp. The trial court denied the motion.
Plaintiff states that his appeal is from the denial of his motion to vacate and contends that the motion should have been granted because the liquidation proceedings in New Hampshire do not constitute an appropriate alternative forum. We will treat the appeal as if it is from both the order denying the motion to vacate the dismissal and the dismissal itself.
The motion to vacate was properly denied. Plaintiffs claims cannot show that the judgment enforcing the settlement agreement is void. His contention that a rubber stamp of the judges signature should not have been used on the judgment is without merit for the reasons we have already stated. Issue preclusion bars relitigation of the conflict-of-interest claim here just as it bars relitigation of that claim against Burnham Brown. Further, even if the judgment enforcing the settlement agreement were void, we agree with the trial courts conclusion that its dismissal of plaintiffs claim against the Insurance Commissioner did not give effect to the judgment enforcing the settlement agreement. The judgment enforcing the settlement agreement is not rendered effective, or affected in any other way, by an order directing that a claim against the Insurance Commissioner should be brought in the New Hampshire liquidation proceedings. Plaintiffs view seems to be that any ruling denying him relief against any party gives effect to the judgment enforcing the settlement agreement, but this is not so.
The motion to dismiss was granted, according to the trial courts order, on grounds of inconvenient forum, but the real substance of the courts ruling was that dismissal was justified by the doctrine of comity. The court reasoned:
"Deferring to the New Hampshire courts jurisdiction and giving effect to its liquidation order (which abates all actions against Home and its liquidator) under principles of comity would promote Californias interests in preserving the insolvent insurers assets for orderly disposition, and eliminating the risk of conflicting rulings, piecemeal litigation of claims, and unequal treatment of claimants."
We applied the same reasoning in Osijo v. Home Insurance Company, supra, F042329, F043325, in which plaintiff asserted a claim against Home and a successor company. We explained that comity is a doctrine under which the laws of one state are permitted by the courtesy of another to operate in the latter for the promotion of justice and for mutual utility and advantage. (Advanced Bionics Corp. v. Medtronic, Inc. (2002) 29 Cal.4th 697, 707.) The doctrine was applicable in that case, even though California law and the full faith and credit clause did not compel deference to the New Hampshire liquidation order, because the principles underlying Californias own insolvent-insurer liquidation scheme supported discretionary deference to the operation of a similar scheme in another state. We observed that under section 1020 of the Insurance Code, our states Insurance Commissioner may institute proceedings to dispose of the assets of an insolvent insurer and may cause the abatement of all other claims and proceedings against the insurer. The purpose of this, we further stated, is to ensure the orderly disposition of the insurers assets and protect policyholders, creditors, and the public. Since the New Hampshire scheme serves the same purposes, we granted Homes motion to dismiss plaintiffs appeal. (Osijo v. Home Insurance Company, supra, F042329, F043325, at pp. 9-10.)
Precisely the same rationale justifies affirming the trial courts disposition in this case. Plaintiff cannot avoid the application of the comity doctrine by merely substituting the Insurance Commissioner for Home and its successor. The only conceivable reason for naming the Insurance Commissioner as a defendant is to attempt to obtain an order against the Commissioner dealing with a claim against the insolvent insurers assets. Deference to the New Hampshire order therefore is as appropriate here as it was in the previous case.
Seizing upon the trial courts inconvenient-forum language, plaintiff asserts that a dismissal on those grounds was not proper because the New Hampshire liquidation proceedings did not constitute a suitable alternative forum. A court deciding a motion to dismiss on forum non conveniens grounds must first determine whether the alternative forum proposed by the moving party is a "`suitable" place for trial. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.) This threshold requirement is satisfied if the defendant is subject to or agrees to submit to the jurisdiction of the alternative forum, the statute of limitations has not expired in the alternative forum or the defendant agrees not to rely on it, and some remedy is available in the alternative forum. (Id. at pp. 752, 753; Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186.) The courts determination on this issue is reviewed de novo. (Roulier v. Cannondale, supra, at p. 1186.) Plaintiff says the liquidation proceedings do not provide a suitable forum because they cannot decide whether the judgment enforcing the settlement agreement is void or not and do not have jurisdiction to enter a judgment against the Insurance Commissioner.
Plaintiff is in error. The purpose of the liquidation proceedings is to adjudicate claims against the insolvent insurer and distribute its assets. As we have said, plaintiffs only possible purpose in naming the Insurance Commissioner as a party is to assert a claim against the insolvent insurer. The liquidation proceedings were instituted for the purpose of deciding these claims. The assertion that making a claim in the liquidation proceedings will not result in a judgment against the Insurance Commissioner is thus irrelevant. Further, as plaintiff has not made any claim in this case that would entitle him to an order invalidating the judgment enforcing the settlement agreement, the fact that plaintiff would be unlikely to obtain that relief in the liquidation proceedings does not show that they would be an inferior forum for him.
For all these reasons, we affirm the trial courts judgment of dismissal of plaintiffs claims against the Insurance Commissioner and its denial of plaintiffs motion to vacate that judgment. The court applied the law correctly.
III. Michell-Langsam, service of summons, and default
Plaintiff has pending a request for judicial notice of a Stipulation in Lieu of Discipline entered into between Georgia Ann Michell-Langsam and the State Bar in connection with a complaint plaintiff made against her. Georgia Ann Michell-Langsam opposed the request, arguing that the stipulation is confidential. Judicial notice of this document is not required under Evidence Code section 451 and we need not decide whether it is subject to permissive judicial notice under Evidence Code section 452. We have reviewed the document and conclude that it would have no effect on the outcome of this appeal if noticed, and we deny the request on that ground.
Finding that Michell-Langsam was never properly served with the summons and complaint, the trial court granted her motion to (1) vacate a default the clerk had entered against her and (2) quash service of summons. In reviewing the order quashing service of summons, we decide whether the trial courts factual findings were supported by substantial evidence and determine independently the ultimate question of whether service was sufficient to secure personal jurisdiction over defendant. (See F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 795; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 111.) We review the order granting relief from default for abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Because plaintiff did not submit a statutorily adequate proof of service, we affirm the order quashing service of summons. We affirm the order vacating Michell-Langsams default because of plaintiffs failure to prove service in the manner required by statute.
A summons may be served on an individual defendant by delivering it to the defendant personally or to a person authorized by the defendant to receive it. A copy of the complaint must be included. (Code Civ. Proc., §§ 415.10, 416.90.) If the summons and complaint cannot with reasonable diligence be delivered to an individual defendant personally, they may be served by leaving them at the defendants usual place of business in the presence of a person 18 years of age or older and apparently in charge, telling that person what they are, and then mailing them to the same place. (Code Civ. Proc., § 415.20, subd. (b).) This procedure is known as substitute service. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 4:193, p. 4-29 (rev. # 1, 2006).) Two or three unsuccessful attempts at personal service at the defendants usual place of business typically constitute sufficient diligence to justify resorting to substitute service. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182; Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392; Weil & Brown, supra, ¶ 4:198, p. 4-30.) Although a defendant is under no duty to respond to a defectively served summons—even a defendant with actual knowledge of the lawsuit (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808; Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466)—substantial compliance with the service-of-summons statutes is sufficient to defeat a motion attacking a judgment based on improper service. (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.)
In this case, plaintiff described his efforts to serve Michell-Langsam in a declaration he filed in support of his motion for a default judgment against her. He traveled with a companion, Jhoe Ajayi, from Fresno to Michell-Langsams Walnut Creek office on September 13, 2004. Carmelita Torres, the receptionist, told Ajayi that Michell-Langsam was not in the office and that she, Torres, was not authorized to receive service of process. Ajayi gave Torres two copies of the summons and original complaint and then mailed additional copies to the office.
On October 18, 2004, plaintiff sent a registered process server, Roman Edwards, to Michell-Langsams office. Edwards delivered the summons and a second amended complaint to a person at the office and subsequently mailed the documents to the office. The second amended complaint was subsequently stricken because it was filed without leave.
On June 29, 2005, plaintiff again traveled to Michell-Langsams office, this time with a companion named Eugene Maduakor. Again Torres said she was not authorized to accept service of process and that Michell-Langsam was out of the office. Soon, Jean Michell, Michell-Langsams mother and office manager, appeared. Maduakor gave two copies of the summons, original complaint, and first amended complaint to Jean Michell and then mailed additional copies to the office. Plaintiff filed a proof of substitute service based on these facts in the superior court.
Plaintiff does not claim that Michell-Langsam was ever served personally, so if service was effected, it either was via substitute service after reasonably diligent efforts at personal service or was upon a person actually authorized by Michell-Langsam to receive it. We address these two possibilities in turn.
Plaintiff did not submit an adequate proof of service to show substitute service after reasonably diligent attempts at personal service. Code of Civil Procedure section 417.10, subdivision (a), provides that proof of service of a summons shall be made "by the affidavit of the person making such service showing the time, place, and manner of service and facts showing that such service was made in accordance with this chapter." The only proof of service of summons included in the appellate record is one executed by Eugene Maduakor for the service of June 29, 2005. To show that substitute service was made in accordance with statute, it is necessary to show that reasonably diligent attempts were made at effecting personal service. In Maduakors proof of service, a box is checked saying, "I attach a declaration of diligence station actions taken first to attempt personal service." No such declaration by Maduakor is attached to the copy in the appellate record. Plaintiffs own declaration describes the prior attempts we have summarized, but that declaration is not a permitted form of proof under the statute. The affidavit must be that "of the person making [the] service" (Code Civ. Proc., § 417.10, subd. (a)), and service must be made by a person who is "not a party to the action" (Code Civ. Proc., § 414.10).
The record contains conflicting evidence on the subject of whether service was ever made on a person actually authorized to receive it. Plaintiffs declaration states that Carmelita Torres said that Jean Michell was authorized to receive service of process. Jean Michells declaration states that Michell-Langsam never authorized her to receive service of process on Michell-Langsams behalf. Michell-Langsams declaration states that no one in her office is authorized to accept service of process on her behalf. The trial court implicitly resolved this factual issue in favor of Michell-Langsam and its finding is supported by substantial evidence. We would, therefore, be bound to uphold that finding even absent the problem regarding the form of proof.
Plaintiff argues that the court had personal jurisdiction over Michell-Langsam even if she was never properly served because she made a general appearance in the case by filing a case management statement. He contends that filing this document constituted "participat[ing] in an action in some manner which recognizes the authority of the court to proceed," and therefore is a general appearance. (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756.) We disagree. In Mansour, the Court of Appeal held that two parties made a general appearance when their attorneys attended and actively participated in a case management evaluation conference and prepared a case management statement that stated the discovery they planned to take. At the time of the conference, one partys attorney had already conducted nonjurisdictional discovery. The other partys attorney suggested the date for which the mandatory settlement conference was set. (Id. at p. 1757.) Here, by contrast, there is no allegation that a case management conference took place, and Michell-Langsams case management statement indicated that no discovery was anticipated. Significantly, her case management statement also stated that she was never personally served. Michell-Langsam listed dates on which she would not be available for trial; stated an estimated length of trial; asserted that alternative dispute resolution would be a waste of time and that a settlement conference would not be fruitful; and expressed her intention to move to set aside any default that might have been entered against her. We conclude that, on the whole, Michell-Langsams case management statement did not raise "`any [nonjurisdictional] question, or [ask] for any relief which can only be granted upon the hypothesis that the court has jurisdiction of [her] person," and therefore did not constitute a general appearance. (California Overseas Bank v. French American Banking Corp. (1984) 154 Cal.App.3d 179, 184.)
Plaintiff also argues that the court had personal jurisdiction over Michell-Langsam because she had actual notice of the lawsuit. Actual notice does not confer personal jurisdiction, however. A defendant is under no duty to respond to a defectively served summons, even a defendant with actual knowledge of the lawsuit, as we have said. (Ruttenberg v. Ruttenberg, supra, 53 Cal.App.4th at p. 808; Kappel v. Bartlett, supra, 200 Cal.App.3d at p. 1466.)
Apart from the question of whether Michell-Langsam was properly served as an individual, the parties dispute whether the Law Offices of Michell-Langsam has been properly served. We agree with the trial courts ruling that because the Law Offices of Michell-Langsam is a fictitious business name, not a corporate entity, it cannot be a party to the lawsuit. (See Pinkertons, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348.) Plaintiff argues that Michell-Langsam is estopped from asserting that the Law Offices of Michell-Langsam cannot be sued because she once filed a document in another case in which she purported to appear on behalf of herself and the Law Offices of Michell-Langsam. We agree with the trial courts conclusion that the document saying Michell-Langsam was appearing on behalf of herself and the Law Offices of Michell-Langsam did not constitute the assertion of any position about the status of the Law Offices of Michell-Langsam and therefore does not estop the assertion of any position.
Because the summons was not properly served, the trial court was also correct to set aside the default. A court may set aside a void judgment or order at any time. (Code Civ. Proc., § 473, subd. (d); see also Weil & Brown, supra, ¶ 5:485, p. 5-113.) Proper service is necessary to establish personal jurisdiction, so a default judgment entered in the absence of proper service is void. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) It follows that a default entered by the clerk is also void due to lack of personal jurisdiction if entered in the absence of proper service.
Plaintiff argues that the trial court should not have entertained Michell-Langsams motion to set aside the default because she made it as part of her motion to quash service of summons but did not mention it in the caption of the notice of that motion. He says this means the motion to quash was the only noticed motion and that Michell-Langsam was not entitled to make it, or any other motion, except a motion to set aside the default, so long as the default was in effect. (See Devlin v. Kearney Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.) He also argues that the motion to set aside the default was defective because Michell-Langsam did not attach a copy of the "answer, motion or other pleading proposed to be filed in the action" should the default be set aside and the defendant granted leave to defend the action. (Code Civ. Proc., § 473.5, subd. (b).)
Plaintiff is mistaken. Michell-Langsams motion included both a request to set aside the default and a request to quash service of summons. It was an appropriate vehicle to accomplish both ends. The trial court had discretion to entertain both parts of the motion even though only the request to quash service of summons was mentioned in the caption of the notice of motion; the notice of motion and the brief in support of it were served together and the latter discussed both requests. The requirement to attach an answer, motion, or other pleading proposed to be filed did not apply because Michell-Langsam was not seeking leave to defend the action. She was only seeking to show that personal jurisdiction over her was not established.
Finally, plaintiff argues that the court should not have denied the request for entry of judgment that he made after the clerk entered Michell-Langsams default. In light of our conclusion that Michell-Langsam was not properly served, this argument is moot. Any default judgment the court entered would have been void due to lack of personal jurisdiction.
DISPOSITION
The judgments dismissing Burnham Brown and the Insurance Commissioner and the orders quashing service of summons on Michell-Langsam, vacating the default taken against her, and denying plaintiffs request for entry of default judgment are affirmed. Plaintiffs request for judicial notice filed July 25, 2006, is denied with respect to the stipulation in lieu of judgment. The request is granted with respect to the Appellate Courts opinion in Osijo v. Ganong and Michell, supra, A068661.
Burnham Brown and the Insurance Commissioner shall recover their costs on appeal. Plaintiff and Michell-Langsam shall bear their own costs.
We Concur:
HARRIS, Acting P.J.
CORNELL, J.
Plaintiff also requests that we take judicial notice of the Appellate Courts opinion in Osijo v. Ganong and Michell, supra, A068661. The request is granted.