Opinion
B225940
10-31-2011
OLETHA PIPES, Plaintiff and Respondent, v. ROBERT EARL PIPES, Defendant and Appellant.
Robert Earl Pipes, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TC021822)
APPEAL from a judgment of the Superior Court of Los Angeles County, Rose Hom, Judge. Affirmed.
Robert Earl Pipes, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Defendant Robert Earl Pipes appeals from a judgment entered in favor of plaintiff Oletha Pipes following an order denying his motion to vacate entry of judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 2008, plaintiff filed a complaint against her husband, Robert Pipes (Robert), and his two sons, defendant and Larry Pipes (Larry), for breach of fiduciary duty, elder abuse, request for restraining order, temporary and permanent injunction. On November 3, 2008, a notice and acknowledgement of receipt of summons and complaint was signed by defendant's attorney, Eliot F. Krieger of Jarvis & Krieger, on behalf of defendant. On July 14, 2009, Krieger filed an answer to the complaint on behalf of defendant, Robert and Larry.
Robert and Larry are not parties to this appeal.
On July 20, 2009, attorney Krieger filed a written motion to be relieved as counsel for defendant, Robert and Larry based on a breakdown in the attorney-client relationship. On August 11, 2009, the motion was granted.
On December 3, 2009, a proof of service of the order granting the motion to be relieved as counsel was filed, stating that the order had been served by mail on all three defendants on August 13, 2009.
On August 17, 2009, Karen B. Fehlker, an attorney with Jarvis & Krieger, filed a notice of status conference hearing, to be held on September 3, on behalf of defendant, Robert and Larry.
Trial was set for October 8, 2009. On October 8, plaintiff filed an ex parte motion to continue the trial date and reopen discovery. The motion apparently was granted, as on December 4, 2009, plaintiff served notice that the trial would be held on December 7 on defendant, Robert, Larry and attorney Krieger.
A bench trial was held on December 7, 2009. None of the defendants appeared at trial. The court issued its statement of decision on February 9, 2010, and filed a judgment in favor of plaintiff on March 8, 2010.
Defendant, in pro.per., filed a motion under Code of Civil Procedure section 473 to vacate "the Entry of Default and Default Judgment entered against him on March 8, 2010." In his supporting declaration, defendant stated that he knew nothing about the action until March 12, 2010, when he received a copy of the statement of decision. He never retained or authorized attorney Krieger to represent him. He never received notice of trial because it was mailed to his late father's address. He received the statement of decision when his cousin sent it to his post office box. Defendant included with his motion a proposed answer to the complaint.
In fact, there was no default or default judgment, since an answer was filed on defendant's behalf and the judgment was entered after a court trial.
At the hearing on defendant's motion, he told the court, "The only times I've come here, my brother said, come, go with me to the court. I'm not aware that I'm a party to any judgment." He then proceeded to argue the merits of the lawsuit.
Plaintiff's counsel stated that plaintiff confirmed that defendant was in court with attorney Krieger on one occasion and with Larry on two occasions. The court stated that it remembered defendant appearing in court.
Defendant responded that he came to court because his brother asked him to do so, and he wanted to be supportive. "But the attorney representing me, there was never an agreement on my part. My brother had this attorney handling some other personal matters for my dad and had him deal with those issues. I'm not a party. In my mind, I was never a party of a suit, because I've never been engaged in handling any of my dad's affairs."
The court responded, "It's hard for me to believe—and I know that things can be misunderstood. But it's hard for me to believe that you did not understand that Mr. Krieger was not only representing you but was representing your father and your brother where your mother was suing all three of you for financial abuse, financial elder abuse.
And it appears that notices were sent to the address that you listed on your pleadings as where you live. So you listed that address. Then you said later, that's not my address, for today's hearing. [¶] So it's hard for me to believe that you did not receive notice, sir." The court declined to set aside the judgment but it encouraged him to try to resolve the matter with plaintiff's counsel, who was willing to try to resolve it in a matter satisfactory to both sides.
Subsequent to the filing of defendant's brief in this case, we were notified that defendant passed away on September 2, 2011. On October 4, we wrote to plaintiff's counsel stating that it did not appear that a motion substituting parties would be filed and asking if counsel knew of any reason why we should not dispose of the appeal on its merits by written opinion. Having received no response, we proceed to issue this opinion.
--------
DISCUSSION
Defendant first contends the judgment is void for lack of personal jurisdiction, in that he was not properly served with the summons and complaint. We disagree.
Defective service of the summons and complaint "is not fatal to personal jurisdiction if the defendant consents to jurisdiction over him or her by making a general appearance in the action. [Citations.]" (In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135.) A general appearance is one in which "the defendant takes part in the action and 'in some manner recognizes the authority of the court to proceed.' [Citations.]" (Ibid.) If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one. (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756-1757.)
Here, defendant did not merely seek to set aside the judgment based on lack of personal jurisdiction. He sought permission "to file his answer so as to have a complete determination of his defenses on [their] merits." At the hearing on his motion to set aside the judgment, he argued the case on its merits. By seeking a determination of the case on its merits, rather than a dismissal for lack of personal jurisdiction, he recognized the authority of the court to proceed in the action and therefore made a general appearance. (In re Vanessa Q., supra, 187 Cal.App.4th at p. 135; Mansour v. Superior Court, supra, 38 Cal.App.4th at pp. 1756-1757.)
Defendant also contends that the documents submitted in opposition to his motion to vacate do not prove that he consented to be represented by Jarvis & Krieger. It was not plaintiff's burden to demonstrate that he consented to the representation, however. Rather, the burden was on him to demonstrate that he was entitled to relief.
Code of Civil Procedure section 473, subdivision (b) (section 473), provides that "[t]he court may, upon any terms as may be just, relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." A motion for relief from judgment under this section lies within the sound discretion of the trial court. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) This discretion "must be '"exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice."' [Citations.]" (Ibid.) However, before relief may be granted, the party seeking relief must demonstrate that the judgment was taken against him or her through mistake, inadvertence, surprise or excusable neglect. (See id. at p. 234.)
We review the trial court's ruling on the motion for abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) Discretion is abused when a trial court's ruling exceeds the bounds of reason, i.e., when it is not supported by substantial evidence. (Id. at pp. 478-479.) In determining whether the ruling is supported by substantial evidence, we must defer to the factual findings of the trial court; the evidence and inferences reasonably drawn therefrom must be viewed in the light most favorable to the ruling. (Ibid.; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.) We find no abuse of discretion.
The record belies defendant's claim that the trial court abused its discretion in denying his motion. Even if we accept his assertion that he never authorized Jarvis & Krieger to represent him and he didn't receive any notices that were mailed to his father's address, he does not satisfactorily rebut the record that he personally appeared in the proceedings, both with attorney Krieger and with his brother, Larry. The trial court, which observed his appearances in the courtroom and later ruled on his motion to set aside the judgment, found it "hard for me to believe that you did not understand that Mr. Kreiger was not only representing you but was representing your father and your brother where your mother was suing all three of you for financial abuse, financial elder abuse.
And it appears that notices were sent to the address that you listed on your pleadings as where you live. So you listed that address. Then you said later, that's not my address, for today's hearing. [¶] So it's hard for me to believe that you did not receive notice, sir."
In order to obtain relief under section 473, a party must demonstrate ordinary prudence. "'It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied.'" (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 158, pp. 53-754.)
Defendant was present at the proceedings in the matter with the attorney who purported to be representing him, as well as proceedings after counsel was relieved. Under the circumstances, "[t]he trial court was well within its discretion when it concluded [defendant] did not carry [his] burden of showing [his] neglect was excusable or [his] 'surprise' was caused 'without any default or negligence of [his] own, which ordinary prudence could not have guarded against.'" (Eigner v. Worthington (1997) 57 Cal.App.4th 188, 199.)
DISPOSITION
The judgment is affirmed. Defendant is to bear his own costs on appeal.
JACKSON, J. We concur: WOODS, Acting P. J. ZELON, J.