Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C0303013
Richman, J.
Plaintiff Marvin Remmich brought this action in 2003 to enforce a 1993 default judgment awarding him $26,340 in damages. The original action began as an unlawful detainer action seeking possession of an office. Defendant Mario M.S.B. Feusier answered the unlawful detainer complaint, but vacated the office. Remmich leased the office to new tenants, and also amended the complaint to state a new cause of action, seeking different, and substantially greater, damages than in the unlawful detainer complaint. Feusier never answered the amended complaint, and a default judgment was entered.
Some 10 years later the within action was brought, seeking to enforce the default judgment. The trial court found that Feusier had never been served with the amended complaint in the original action, and therefore concluded that the default judgment was void and unenforceable. The trial court also awarded Feusier attorney fees as the prevailing party in the enforcement action.
Remmich filed two separate appeals. In the first appeal, which is from the September 14, 2006 judgment in Feusier’s favor, Remmich makes three arguments: (1) the amended complaint was validly served; (2) alternatively, even if service was invalid, the default judgment was not void, merely voidable, and the time for setting it aside has passed; and (3) judicial estoppel bars Feusier from contesting service of process of the amended complaint. In the second appeal, which is from the October 4, 2006 order awarding Feusier attorney fees, Remmich argues that neither the attorney fees clause in the lease nor any statute provided the trial court with a legal basis to award fees. On our own motion, we have consolidated Remmich’s appeals. (See Sampson v. Sapoznik (1953) 117 Cal.App.2d 607, 609.) We conclude that none of Remmich’s arguments has merit, and affirm both the judgment and the order awarding attorney fees.
BACKGROUND
I. The Default Judgment
On February 1, 1992, Feusier, a realtor, entered into a commercial lease with Remmich for an office in Walnut Creek. Feusier was to use the office for a residential real estate and mortgage brokerage. The lease indicated that Feusier’s home address was on Corte del Caballo in Moraga (Moraga address).
On October 28, 1992, Remmich filed an unlawful detainer action against Feusier for failing to pay rent for the office, seeking $4,200 in past due rent. The process server unsuccessfully attempted to serve Feusier at the Moraga address four times. On November 5, 1992, service of the summons and complaint was accepted at the office by Jerald Edwin Heath, Feusier’s subtenant. On November 16, 1992, Heath intervened in the unlawful detainer action as a co-defendant by filing a prejudgment claim of right to possession. Heath indicated on this filing that his residential address was on Moraga Way in Orinda (Orinda address).
On December 3, 1992, Heath, acting in propria persona, filed an answer to the unlawful detainer complaint using a Judicial Council form. Heath placed his name and the Orinda address in the caption on the form answer, but listed Feusier as well as himself on the form as “Defendants” in item 2. Both Feusier and Heath signed the form answer. They admitted the complaint’s allegations, but claimed they were entitled to a credit for deposits. The Moraga address does not appear anywhere on the answer. As will become apparent below, after Feusier and Heath filed this answer, all papers in the action directed at Feusier were sent to the Orinda address.
By December 12, 1992, Feusier and Heath had already quit the office. On that date, Heath sent Remmich’s counsel a letter offering to settle the dispute by paying $5,000. On December 15, 1992, Remmich mailed to Feusier and Heath at the Orinda address a memorandum to set the case for trial. On December 24, 1992, the clerk of the court sent a notice of trial to both Heath and Feusier at the Orinda address. Feusier testified below that he never received this notice.
Feusier testified at trial that he never saw Heath’s settlement proposal and did not remember agreeing to pay $5,000 to settle the case.
On June 8, 1993, after Remmich had leased the office to new tenants, he moved to amend the unlawful detainer complaint pursuant to Civil Code section 1952.3, to state a new cause of action for damages based on breach of the lease, damages to the premises, and unpaid rent. The amended complaint sought among other damages $21,055 for “lost rent and reasonable rental value” of the office during an eight-and-a-half month period. Remmich served the motion to amend the complaint on Feusier and Heath at the Orinda address. The motion went unopposed, and was granted on July 21, 1993.
Civil Code section 1952.3 provides in relevant part that “if the lessor brings an unlawful detainer proceeding and possession of the property is no longer in issue because possession of the property has been delivered to the lessor before trial . . ., the case becomes an ordinary civil action in which: [¶] (1) The lessor may obtain any relief to which he is entitled . . .; but, if the lessor seeks to recover damages . . . not recoverable in the unlawful detainer proceeding, the lessor shall first amend the complaint pursuant to Section 472 or 473 of the Code of Civil Procedure so that possession of the property is no longer in issue and to state a claim for such damages and shall serve a copy of the amended complaint on the defendant in the same manner as a copy of a summons and original complaint is served.” (Civ. Code, § 1952.3, subd. (a)(1).)
On August 19, 1993, Remmich attempted to serve a new summons and the amended complaint on both Feusier and Heath at the Orinda address. According to the proofs of service and declarations of diligence prepared by the process server, substitute service was accepted for both Feusier and Heath at the Orinda address by a “[m]ember of the household over eighteen years” named “June Conarese.” There is no indication in the declarations of diligence that the process server ever attempted to serve the new summons and amended complaint on Feusier at the Moraga address.
Neither Feusier nor Heath filed an answer to the amended complaint, and Remmich requested entry of default. On November 19, 1993, a default judgment was entered against both Feusier and Heath awarding Remmich $26,340. An abstract of judgment was issued in December 1993. Notice of entry of default and of the default judgment were sent to the Orinda address.
II. The Enforcement Action
More than ten years after entry of the default judgment, on December 4, 2003, Remmich filed the instant action to enforce the default judgment against Feusier and Heath. By this time, Remmich alleged that the default judgment was worth $52,689. On August 19, 2004, Remmich served the summons and complaint in this enforcement action on Feusier by substituted service at Feusier’s new business address.
“A money judgment is enforceable for 10 years from the date of its entry.” (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200.) However, a judgment creditor may extend the life of a money judgment by filing “a separate action on the judgment. A judgment creditor may bring an independent action on a judgment even after the 10-year enforceability period has expired if the 10-year statute of limitations in [Code of Civil Procedure] section 337.5 has not yet run. [Citations.] . . . ‘The statute of limitations commences to run when the judgment is final . . . .’ ” (Id. at pp. 200-201.)
On March 16, 2005, the court filed an order for service of summons by publication against Heath after concluding that Heath could not be served with reasonable diligence in any other manner.
On March 9, 2005, the court entered default against Feusier for failure to respond to the complaint. On May 11, 2005, the court ordered the default set aside per the stipulation of the parties. On May 13, 2005, Feusier filed his answer and, among other defenses, alleged that the underlying default judgment had been procured by fraud and deceit and was thus void and unenforceable.
The case went to trial on February 2, 2006. The main issue at trial was whether the underlying default judgment was valid and enforceable.
A. Feusier’s Trial Testimony
Feusier testified that from 1993 to 1997 he lived at the Moraga address. He did not live at the Orinda address in August 1993, never used that address as a business address, and never received mail at that address. He also never authorized Heath to accept mail or papers at the Orinda address, and never authorized Heath’s wife, June Canaris, to accept service of process or receive mail for him.
Feusier testified that he was never served with, and never received, the amended complaint. Even though Feusier had purchased and mortgaged property in Contra Costa County in subsequent years, no judgment lien ever “came up.” And no abstract of judgment appeared or affected his credit. Feusier first learned of the amended complaint after the enforcement action was filed.
Feusier testified that Heath helped him out with the unlawful detainer action, and he authorized Heath to speak with Remmich’s attorney about settling the unlawful detainer action. Feusier also spoke directly with Remmich’s attorney, who told Feusier that Remmich would “go easy” on Feusier and Heath if they vacated the office, surrendered the keys, and forfeited the security deposit. Feusier assumed that doing these things would end the litigation, and nothing indicated to him that this assumption was wrong. Accordingly, Feusier and Heath vacated the office and turned over the keys in November 1992. By then, Feusier had relocated his business to Moraga.
Feusier admitted the signature on the form answer to the unlawful detainer complaint was his, but testified that the Orinda address in the answer’s caption was Heath’s home address, not Feusier’s. When asked whether he ever filed a notice of change of address in the unlawful detainer action, Feusier replied, “I wasn’t aware that I had to file anything because my address hasn’t changed.”
B. Other Relevant Trial Testimony
a. June Canaris
Heath’s wife, June Canaris, testified for Feusier. Canaris and Heath had lived at the Orinda address since August 1992. Canaris had known Feusier for about as long, but Feusier never lived in her home, never conducted business there, and never spent the night there. Feusier visited “maybe once or twice” during the period from September 1992 to December 1993, but not on a “regular basis.”
According to Canaris, Heath and Feusier were “business acquaintances.” They did not have an employee-employer relationship or a partnership. Canaris did not know precisely what business relationship Heath and Feusier had, but it was her understanding that Heath had sold repossessed property from a list furnished by Feusier.
Canaris testified that Feusier never authorized her to receive mail or accept service of process for him. She did not recall ever receiving any mail for Feusier, nor did she recall anyone ever coming around to serve documents or papers on him at her house. She did not recall a process server coming to her house at all in 1993, but admitted that it could have happened. As far as she knew, her husband had never received any correspondence for Feusier at the Orinda address.
b. Remmich
After testifying regarding Feusier’s failure to satisfy the default judgment, Remmich said that he did not know Feusier’s home address and did not know how the process server obtained the Moraga address in order to attempt to serve Feusier with the original unlawful detainer complaint there in November 1992.
C. Decision
The trial court’s decision concluded that the “weight of the evidence” showed that Feusier “was not served with the Amended Complaint and, therefore, the Default Judgment obtained against him . . . is void.” The decision does not contain any additional findings.
No party requested a statement of decision. Consequently, the trial court was not required to provide any written findings of fact or conclusions of law. (Code Civ. Proc., § 632.)
Remmich objected to the proposed form of judgment, principally on the ground that it omitted Heath. On June 28, 2006, judgment was entered consistent with the court’s decision and only with respect to Feusier.
D. Attorney Fees Award
On August 8, 2006, the trial court granted Feusier’s motion for attorney fees. An amended judgment reflecting this award was filed on September 14, 2006. On October 4, 2006, after the court denied Remmich’s motion for reconsideration, the court filed an order awarding Feusier $15,475 based on the lease’s attorney fees clause and the court’s finding that Feusier was the prevailing party in the enforcement action.
DISCUSSION
I. Service of the Amended Complaint
The material facts regarding service of the amended complaint are not in dispute, and we are asked to interpret the statutes governing service of process. Consequently, as Remmich correctly asserts, our review is de novo. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-800 [“When the decisive facts are undisputed, we are confronted with a question of law and are not bound by the findings of the trial court”]; compare Donel, Inc. v. Badalian (1978) 87 Cal.App.3d 327, 333-334 [where the facts were “undisputed” regarding a motion to vacate the judgment for lack of personal jurisdiction, the question was whether “as a matter of law, [plaintiff] failed to exercise” sufficient diligence to justify service by publication].)
Feusier asserts that the factual allegations of the process server’s return were disputed by Feusier and Canaris’s testimony. But the only portion of this testimony contradicting the process server’s return was Canaris’s testimony that (1) she did not recall anyone ever coming around to serve documents or papers on Feusier at her house; and (2) she did not recall a process server coming to her house at all in 1993 (although she admitted that it could have happened). We reach the same conclusions whether we credit this portion of Canaris’s testimony or not. (See Ghirardo v. Antonioli, supra, 8 Cal.4th at pp. 800-801 [applying the de novo standard of review to an issue which was a mixed question of fact and law, but noting the substantial evidence standard would have produced the same result].)
As noted above, Remmich amended the unlawful detainer complaint pursuant to Civil Code section 1952.3 to state a new cause of action for damages after he had leased the office to new tenants. Where an unlawful detainer complaint has been so amended, the plaintiff must serve the amended complaint in the same manner as the original summons and complaint. (Code Civ. Proc., § 1952.3, subd. (a)(1).) Remmich argues that he complied with this requirement by following the requirements either of Code of Civil Procedure section 416.90 (service upon an agent) or Code of Civil Procedure section 415.20(b) (substituted service). We are not persuaded.
a. Service Upon an Agent (Code Civ. Proc., § 416.90)
Code of Civil Procedure section 416.90 provides for service of the summons and complaint by delivering them either to the person to be served “or to a person authorized by him to receive service of process.” (Ibid.) There is no evidence in the record that Feusier ever authorized Canaris to accept service of process on his behalf. Faced with this, Remmich asserts that Canaris “had ostensible authority to accept service,” in claimed support of which he relies on the following facts: (1) the Orinda address appears in the caption on Feusier’s answer to the unlawful detainer complaint; (2) Canaris was “a member of the household at” the Orinda address; and (3) Canaris is the wife of co-defendant Heath. We conclude these facts are insufficient to establish Canaris’s ostensible authority.
“Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.” (Civ. Code, § 2317.) A principal is bound by acts of his agent made under ostensible authority only with respect to persons who have reasonably relied upon the representation of authority. (Civ. Code, § 2334; Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 780 (Pasadena Medi-Center).) In Pasadena Medi-Center, relied upon by Remmich, the Supreme Court held that service upon a person with ostensible authority to accept service of process on behalf of a corporation was sufficient to establish personal jurisdiction over the corporation. There, the summons and complaint were served on a person believed to be the corporation’s secretary-treasurer. The corporation had represented on an application it filed with the Commissioner of Corporations that the person served was the corporation’s secretary-treasurer, although in reality he was not. (Pasadena Medi-Center, supra, 9 Cal.3d at pp. 775-776.) The Supreme Court concluded that by designating this person as the secretary-treasurer, the corporation had exercised “want of ordinary care,” as provided in Civil Code section 2317, causing or allowing plaintiff to believe that this person “possessed the authority of a corporate officer.” (Id. at p. 780.) The court further concluded that it was reasonable for plaintiff’s counsel to “rely on a list of officers prepared by defendant corporation which bore no indicia of error or mistake.” (Ibid.)
Unlike the defendant in Pasadena Medi-Center, Feusier did not represent anywhere that Canaris had authority to accept service of process on his behalf. Moreover, and contrary to Remmich’s assertions, Feusier did not represent that the Orinda address was his mailing address by merely signing the answer to the unlawful detainer complaint. The form answer which both Feusier and Heath signed instructs that “[e]ach defendant for whom this answer is filed must be named in item 2 and must sign this answer unless represented by an attorney.” However, nowhere on the form does it indicate that each defendant must provide an address in the answer, and there is only room in the caption for a single address.
Furthermore, reliance on the address on the answer would not have been reasonable, given the information available to Remmich. Feusier’s home address in Moraga appeared on the lease for the Walnut Creek office. Remmich had attempted, albeit unsuccessfully, to serve Feusier with the original summons and unlawful detainer complaint at that address. And before Feusier and Heath filed their answer, Heath filed a prejudgment claim of right to possession which indicated that the Orinda address was Heath’s home address.
Remmich attached a copy of the lease to the unlawful detainer complaint and also to the amended complaint.
Nor was it reasonable for Remmich to conclude that a member of the household at the Orinda address or the co-defendant’s wife had authority to accept service of process on Feusier’s behalf. The process server could have easily ascertained from Canaris that (1) Feusier did not live at the Orinda address and (2) Feusier had not given Canaris authority to accept service of process on his behalf. There is no evidence in the record that the process server ever asked Canaris these simple and obvious questions. (See Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399 [“ ‘the third person relying on the agent’s apparent authority must not be guilty of negligence’ ”].)
b. Substituted Service (Code Civ. Proc., § 415.20, subd. (b))
Code of Civil Procedure section 415.20 provides in relevant part that if “a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . ., a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address . . ., in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . ., at least 18 years of age . . . .” (Code Civ. Proc., § 415.20, subd. (b).) The declaration of diligence indicates that the process server relied on substituted service when he or she left the summons and amended complaint with Canaris, whom the process server described as a “[m]ember of the household over eighteen years.” Remmich argues that, although the Orinda address may not have been Feusier’s actual home or work address, Feusier “declared in his Answer that [the Orinda address] was his mailing address” and he had an obligation to provide “an alternative or forwarding address.” We conclude Remmich did not properly serve Feusier under the substitute service statute.
First, there is no indication that Feusier could not have been personally served at the Moraga address. That address was on the lease and Remmich attempted to serve Feusier there with the original summons and unlawful detainer complaint some months earlier. Because Remmich did not first attempt to serve Feusier at the Moraga address, it cannot be said that the amended complaint could not have been personally delivered to Feusier “with reasonable diligence.” (Code Civ. Proc., § 415.20, subd. (b); see also Donel, Inc. v. Badalian, supra, 87 Cal.App.3d at pp. 333-334 [plaintiff did not “exercise reasonable diligence” in locating the defendant by failing to contact defendant’s attorney].)
Second, it is undisputed that the Orinda address was not Feusier’s “dwelling house, usual place of abode, usual place of business, or usual mailing address . . . .” (Code Civ. Proc., § 415.20, subd. (b).)
The three cases upon which Remmich relies do not support a contrary conclusion. The first two cases—Bethlahmy v. Customcraft Industries, Inc. (1961) 192 Cal.App.2d 308 (Bethlahmy) and Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1 (Westervelt)—are distinguishable because each involved the service of a notice of trial by mail, not substitute service of a summons or complaint. In Bethlahmy the issue was whether the notice of trial had been properly served on the defendant by mail when it was sent to his business address instead of to his residence. (Bethlahmy, supra, 192 Cal.App.2d at pp. 309-310; see Code Civ. Proc., § 1013 [service by mail].) Defendant argued that an earlier version of Code of Civil Procedure section 1013 required that the notice of trial “be sent to his residence unless he personally filed or served a document on his opponent which indicated his business address.” (Bethlahmy, supra, 192 Cal.App.2d at p. 310.) The court concluded that the notice was properly sent to defendant’s business address as indicated in the motion to withdraw filed with the court by defendant’s attorney. The court also noted that “[i]n any event, the ‘person to be served’ has the burden of notifying the court of any change of address, and failure so to do does not enable him to claim improper notice.” (Ibid.)
In Westervelt the notice of trial had been sent to the address of the rental premises, which was the address the defendants used in their answer to the complaint. (Westervelt, supra, 122 Cal.App.3d Supp. at p. 6.) The defendants later submitted declarations indicating that they had vacated the premises. (Id. at p. 7.) The court held that “the person to be served under” the statutes governing service by mail and service of the notice of trial (Code Civ. Proc., §§ 1013, subd. (a) and 594, subds. (a) and (b)) “has the burden of notifying the court of any change of address; failure to do so does not enable him to claim improper notice.” (Id. at p. 8.)
As discussed above, based on the lease and prejudgment claim of right to possession, Remmich either already knew, or at least should have known, that the Moraga address was Feusier’s residence and that the Orinda address was Heath’s residence. And as Feusier testified at trial, he was not aware that he had to file a notice of change of address because his address had not changed. (Cf. Cal. Rules of Court, rule 2.200 [a party must “file a written notice of the change of address” only when the party’s “address changes while an action is pending”].) Thus, there was no reason for Feusier to provide an alternative or forwarding address.
In Ellard v. Conway (2001) 94 Cal.App.4th 540 (Ellard), the third case Remmich cites, the Court of Appeal upheld substituted service by delivery to a private post office box. Plaintiffs’ process server unsuccessfully attempted to serve defendants at their residence, and was told afterwards by the gate guard that defendants had moved. Plaintiffs then contacted the United States Postal Service and were told that defendants’ forwarding address was a post office box at the Postal Annex. The manager at the Postal Annex told the process server that defendants did in fact receive mail there. (Id. at p. 543.) Defendants argued service was improper because Code of Civil Procedure section 415.20 “does not authorize substitute service on a private/commercial post office box, and the Postal Annex manager was not a person ‘apparently in charge’ of their post office box.” (Id. at p. 545.) The Court of Appeal rejected this argument, reasoning that defendants had made the Postal Annex their “ ‘usual mailing address’ ” by notifying “the United States Postal Service it was their forwarding address.” (Id. at p. 546.) The court emphasized that “[n]o facts suggest personal or substitute service was available at any other address or on any other individual.” (Ibid.)
As discussed above, Feusier did not represent that the Orinda address was his usual mailing address. In fact, the addresses which appeared on the lease and the prejudgment claim of right to possession suggested otherwise. It was Remmich’s burden to effect “service in a manner designed to afford the defendant with ‘actual notice . . . in time to defend the action.’ ” (Kodiak Films, Inc. v. Jensen (1991) 230 Cal.App.3d 1260, 1264.) Contrary to what Remmich argues, service on co-defendant Heath’s wife at Heath’s home was not reasonably calculated to result in actual notice to Feusier. (See id. at p. 1265 [affirming an order granting a motion to set aside a default judgment where the plaintiff effected substitute service on the defendant’s girlfriend at an address at which the defendant had not lived for several months].) And there is no evidence that Feusier ever received actual notice until after the enforcement action was filed. (Cf. Ellard, supra, 94 Cal.App.4th at p. 544 [“Statutes governing substitute service shall be ‘liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant . . . .’ ” italics added].)
II. The Unenforceability of the Default Judgment as Either Void or Voidable
Feusier argues that because the amended complaint was not properly served, as we held above, the default judgment is void for lack of personal jurisdiction, and the trial court thus had the power to declare it so more than ten years after its entry. (See People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American Contractors) [“When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any time’ ”].) On the other hand, Remmich asserts that the trial court acquired personal jurisdiction when Feusier filed his answer to the unlawful detainer complaint, and consequently, any defect in serving the amended complaint rendered the default judgment voidable, but not void. Because the time to appeal from or otherwise move to set aside the default judgment had long since passed, Remmich contends that the default judgment is now immune to collateral attack. (See id. at p. 657 [“collateral attack on a voidable but final judgment is not available absent unusual circumstances . . . that precluded earlier challenge of the judgment”].) We conclude that the trial court properly entered judgment in Feusier’s favor based on the lack of service of the amended complaint.
Although Remmich did not make this voidability argument in his opening brief, Feusier raised the issue in his respondent’s brief by asserting the default judgment was void. Moreover, Remmich made a similar argument below in both his opposition to Feusier’s summary judgment motion, and during trial.
In general, “the court in which an action is pending has jurisdiction over a party from the time summons is served on him . . . . A general appearance by a party is equivalent to personal service of summons on such party.” (Code Civ. Proc., § 410.50, subd. (a); see also Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150 [“fulfilling the statutory requirements of service of process—i.e., service of a summons—is necessary to obtain personal jurisdiction over a party”].) In this case, there is no issue regarding the propriety of the service of the original summons and unlawful detainer complaint, and Feusier made a general appearance by answering the unlawful detainer complaint. (Code Civ. Proc., § 1014 [“A defendant appears in an action when the defendant answers”].) However, after Feusier and Heath vacated the Walnut Creek office, Remmich amended the complaint pursuant to Civil Code section 1952.3, to state a new cause of action for damages. Remmich was then required to serve the amended complaint in the same manner as the original summons and complaint. (Civ. Code, § 1952.3, subd. (a)(1); compare Code Civ. Proc., § 471.5 [service of an amended complaint generally].) As shown above, Remmich did not satisfy this requirement. According to Remmich, “[t]he issue is [thus] whether this error rendered the [default] judgment voidable or void, and whether, if it is merely voidable, it was subject to collateral attack long after the [default] judgment was final.” (American Contractors, supra, 33 Cal.4th at p. 660.)
Code of Civil Procedure section 471.5 provides in relevant part that if a “complaint is amended, a copy of the amendments shall be filed, or the court may, in it is discretion, require the complaint as amended to be filed, and a copy of the amendments or amended complaint must be served upon the defendants affected thereby.” (Code Civ. Proc., § 471.5, subd. (a).)
A good argument can be made that the default judgment here is void, as opposed to merely voidable. However, we need not reach this conclusion in order to determine that the trial court properly refused to enforce that judgment based on the inadequate service of the amended complaint. Put another way, the trial court’s decision was right even if the judgment were only voidable.
When, after delivery of possession of the property to the lessor, the lessor elects to amend his or her unlawful detainer complaint to seek damages not recoverable in the unlawful detainer proceeding, the lessor loses the right to bring a separate action for such relief. (Legis. Com. com., 10 pt. 4 West’s Ann. Civ. Code (1985 ed.) foll. Civ. Code, § 1952.3, pp. 372-374.) Consequently, amending the complaint pursuant to section 1952.3 is an alternative to bringing a new action. Because filing the amended complaint is akin to bringing a new action for damages not sought in the original unlawful detainer complaint, it makes sense that section 1952.3 requires more than Code of Civil Procedure section 471.5—section 1952.3 requires that the amended complaint be served in the same manner as the summons and original complaint. (Civ. Code, § 1952.3, subd. (a)(1).) Given the nature of an amended complaint filed pursuant to section 1952.3, a court could reasonably conclude that failure to comply with section 1952.3’s service requirement deprives the court of fundamental jurisdiction over a defendant, thus rendering a subsequent default judgment void and not merely voidable. (See American Contractors, supra, 33 Cal.4th at pp 660-661.)
“There is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.” (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568.) Or, as Witkin puts it, “If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §340, p. 382.)
As our Supreme Court has explained, a voidable judgment “is valid until it is set aside, and a party may be precluded from setting it aside by ‘principles of estoppel, disfavor of collateral attack or res judicata.’ [Citation.] Errors which are merely in excess of jurisdiction should be challenged directly, for example, by motion to vacate the judgment, or on appeal, and are generally not subject to collateral attack once the judgment is final unless ‘unusual circumstances were present which prevented an earlier and more appropriate attack.’ ” (American Contractors, supra, 33 Cal.4th at p. 661, italics added.) Such “ ‘unusual circumstances’ ” include “ ‘constitutional infirmities’ ” such as lack of notice of the entry of the judgment or of the amount of the judgment. (Id. at pp. 662-663; compare Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 120, fn. 25 [finding “no such constitutional infirmities” where the plaintiff received “notice of the full amount sought in the [defendant’s] action”].) There were such unusual circumstances here.
Feusier did not receive notice of the amended complaint, notice of entry of default, or notice of entry of the default judgment until after this enforcement action was filed. As we discuss above in the context of Canaris’s alleged ostensible authority to accept service, Feusier did not represent that the Orinda address was his mailing address by merely signing the answer to the unlawful detainer complaint, and there is no other evidence that Feusier was responsible for his lack of notice. Consequently, Feusier could not challenge the default judgment any earlier than he did because he was not aware of its existence. Moreover, although Feusier received notice of the original unlawful detainer complaint, the amended complaint sought significantly different—and substantially greater—damages. There is nothing in the record to indicate that Feusier knew, or even suspected, that Remmich was going to file an amended complaint and seek these new damages. Indeed, the evidence is to the contrary, as Feusier testified that he believed the litigation would end once he and Heath vacated the premises, surrendered the keys, and forfeited the security deposit. Because Feusier never received notice due to Remmich’s inadequate service, and because the amended complaint sought significantly different and substantially greater damages than those sought in the original unlawful detainer complaint, enforcement of the default judgment against Feusier would violate principles of due process. (See Fidelity Creditor Service, Inc. v. Browne, supra, 89 Cal.App.4th 195, 205 [“ ‘Failure to give notice violates “the most rudimentary demands of due process of law” ’ ”].)
Remmich asserts that “little of the evidence presented by Feusier at trial corroborated his” testimony that he did not receive actual notice. Remmich notes that “[w]hile Ms. Canaris stated that she did not give papers to Feusier, her testimony did not preclude notice from another source, such as Mr. Heath.” This is pure speculation. Feusier’s testimony that he received no notice was not contradicted by any evidence at trial.
Because of the foregoing conclusions regarding the inadequacy of service of the amended complaint and the resulting unenforceability of the default judgment, we need not reach Feusier’s arguments that (1) the trial court could have set aside the default judgment based on fraud or mistake and that (2) Remmich has failed to demonstrate reversible error.
III. Judicial Estoppel
As Feusier correctly points out, one of Remmich’s main theories on appeal “is that Feusier’s signature on defendants’ joint answer constituted a binding, judicial admission that Heath’s mailing address was, for all intents and purposes, Feusier’s mailing address.” This theory is also the basis for Remmich’s judicial estoppel argument: that Feusier declared that the Orinda address was his address when he filed the joint answer to the unlawful detainer complaint, that in the enforcement action Feusier took a different position when he “introduced evidence contradicting his prior address,” and that Feusier is consequently estopped from contesting the validity of service of the amended complaint. Again, we are not persuaded.
“Judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, ‘ “prevents a party from ‘asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.’ ” ’ [Citation.] The dual purposes for applying this doctrine are ‘ “ ‘to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies.’ ” ’ [Citation.] Judicial estoppel ‘is intended to prevent litigants from “ ‘ “ ‘playing “fast and loose with the courts.” ’ ” ’ [Citation.]” [Citation.] It is an “ ‘extraordinary remed[y] to be invoked when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.’ ” ’ [Citation.] [¶] Judicial estoppel is an equitable doctrine and its application by the court is discretionary. [Citation.] Courts may decide to apply this doctrine against a [party’s] claims to prevent ‘judicial fraud from a litigant’s deceitful assertion of a position completely inconsistent with one previously asserted, thus compromising the integrity of the administration of justice by creating a risk of conflicting judicial determinations.’ [Citation.]” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1468 (Levin).)
Five conditions must be met for the doctrine of judicial estoppel to apply: “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
Application of these principles leads us to conclude that the trial court did not abuse its discretion when it implicitly found that Remmich’s judicial estoppel argument had no merit. (See In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928 [when no statement of decision was requested, the appellate court implies all findings necessary to support the judgment].) There is no evidence that, by testifying at trial about his home address after he had earlier signed the answer with Heath’s address on it, Feusier was playing fast and loose with the court or deceitfully asserting a position completely inconsistent with one he had previously asserted. (Levin, supra, 140 Cal.App.4th at p. 1468.) It is undisputed that the Moraga address was Feusier’s address: this was the address on the lease and the place where Remmich attempted to serve the unlawful detainer complaint. The form answer which both Feusier and Heath signed did not require each defendant for whom the answer was filed to provide an address, and there is only room in the caption for a single address. Also, Heath’s prejudgment claim of right to possession indicated that Heath’s home address was the Orinda address. And as Feusier testified at trial, he was not aware that he had to file a notice of change of address because his address had not changed. Given these facts, Feusier’s acts of signing the answer and later testifying regarding his home address were neither “ ‘deceitful’ ” (ibid) nor “totally inconsistent” (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 183) with each other. Any risk here of a miscarriage of justice or of “ ‘compromising the integrity of the administration of justice by creating a risk of conflicting judicial determinations’ ” (Levin, supra, 140 Cal.App.4th at p. 1468) was caused by Remmich’s failure to properly serve Feusier with the amended complaint.
IV. Attorney Fees Award
In determining whether Feusier is entitled to attorney fees, we examine the applicable statutes and provisions of the lease. Neither Remmich nor Feusier has offered any extrinsic evidence to interpret the lease, and the relevant facts are not in dispute. Consequently, we review the attorney fees award de novo. (Exxess Electronixx v. Heger Realty Corp. (1998) 64 Cal.App.4th 698, 705.)
Remmich does not challenge on appeal the amount of the fee award, but instead argues that there was no legal basis for it because Remmich sought to enforce the default judgment, not the lease. We conclude that Feusier was entitled to recover attorney fees as the prevailing party under the terms of the lease’s broadly worded attorney fees provision, as well as under applicable statutes and equitable principles.
A prevailing party is entitled as a matter of right to recover attorney fees when they are authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10); Santisas v. Goodin (1998) 17 Cal.4th 599, 606-607 (Santisas).) The lease contains the following attorney fees provision: “In any action or proceeding involving a dispute between Lessor, Lessee and/or Broker, arising out of the execution of this lease, or to collect commissions, or to enforce the terms and conditions of this lease, or to recover possession of the premises from Lessee, the prevailing party shall be entitled to receive from the other party a reasonable attorney’s fee, expert fees, appraisal fees and all other costs incurred in connection with such action or proceedings, to be determined by the court or arbitrator(s).” Remmich does not challenge the validity of this provision. Indeed, Remmich successfully relied upon it to obtain $1,200 in attorney fees as part of the default judgment. Having determined that the parties entered into an agreement that contains a facially valid and enforceable attorney fee provision, we proceed to decide whether, without considering potentially applicable statutes, this provision entitles Feusier to recover his attorney fees in the enforcement action. (See Santisas, supra, 17 Cal.4th at p. 608.)
In interpreting this provision, we note that its language is unambiguous and that we are not asked to consider any extrinsic evidence regarding its meaning. There is no indication that the parties intended the provision to have any technical or special meaning. Consequently, we rely upon the clear and explicit meaning of this provision, and interpret it in its ordinary and popular sense to the extent possible. (See Santisas, supra, 17 Cal.4th at p. 608.)
First, as the trial court found, Feusier is the prevailing party under the provision because judgment was entered in his favor. (See also Code Civ. Proc., § 1032, subd. (a)(4) [defining “prevailing party” to include “a defendant in whose favor a dismissal is entered, . . . and a defendant as against those plaintiffs who do not recover any relief against that defendant”]; Civ. Code, § 1717, subd. (b) [“the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract”].)
Second, we conclude, based on the provision’s language, that the enforcement action constitutes an “action . . . involving a dispute between” Remmich and Feusier “arising out of the execution of” the lease, and also qualifies as an action “to enforce the terms and conditions of this lease.” In Remmich’s view, the enforcement action did not arise from the lease but instead from the default judgment, and the lease does not provide for fees in a dispute not concerning the lease. Remmich emphasizes that he did not renew the default judgment pursuant to Code of Civil Procedure section 683.120, but instead brought “a new action to obtain a new, enforceable judgment.” According to Remmich, in his new action there was no issue regarding the lease, that he simply sought to prove that the default judgment had remained unsatisfied, and that Feusier attacked the jurisdictional basis for the original default judgment “but did not raise any claim or defense arising from the original lease contract.”
We do not construe the attorney fee provision here so narrowly. The provision states that it applies to any action or proceeding which involves a dispute between the lessor and lessee and, as applicable here, either (1) arises out of the execution of the lease, or (2) is an action to enforce the lease. Obviously, this enforcement action is an action involving a dispute between the lessor (Remmich) and lessee (Feusier). And this dispute arose entirely out of their execution of the lease, and is an action to enforce the lease based on Feusier’s alleged breaches of it.
The default judgment against Feusier was based entirely on Feusier’s alleged breaches of the lease, as set forth in the amended complaint. Indeed, in seeking entry of the default judgment, Remmich submitted a declaration which described the terms of the lease, attached a copy of the lease, and detailed Feusier’s breaches of the lease and the resulting damages suffered by Remmich. In turn, the enforcement action is based entirely on the default judgment and thus also arises out of the lease. In seeking to enforce the default judgment, Remmich in effect sought to enforce the lease. Without the lease, there would be no default judgment, and without the default judgment there would be no enforcement action. The fact that procedurally this is a new action because Remmich (1) never gave Feusier actual notice of the amended complaint and (2) waited more than ten years to enforce the judgment—inaction, we are constrained to note that is nowhere explained in the record—should not change the analysis.
On this point we note that, had there not been the delay and had Feusier attempted to enforce the default entry immediately after obtaining it, and Remmich were unsuccessful in setting it aside, Feusier would have been entitled to attorneys fees incurred in the enforcement proceedings. (Code Civ. Proc., §§ 685.040; 685.070(a)(6); Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 557-558.) Given that, it appears Remmich would have likewise been entitled to his fees if he were successful in resisting such enforcement. (Civ. Code, § 1717; see Cole v. BT&G, Inc. (1983) 141 Cal.App.3d 995 [debtor who successfully moved for vacation of confession of judgment entitled to attorneys’ fees when underlying contract provided for them].)
Which assumption might be problematic in light of the general policies governing defaults, (See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) §§ 5:71:5 [dealing with pro per defendants]; 5:401 [policy favoring relief from default, because “the law strongly favors trial and disposition on the merits.”].)
Ignoring Code of Civil Procedure, section 685.040, Remmich argues that the trial court lacked the power to award Feusier attorney fees under the lease because entry of the default judgment terminated any contract rights under the lease. Remmich relies on authority that a “judgment extinguishes all further contractual rights, including the contractual attorney fees clause.” (Berti v. Santa Barbara Beach Properties (2006) 145 Cal.App.4th 70, 77 (Berti).) “Thus, in the absence of express statutory authorization, . . . postjudment attorney fees cannot be recovered.” (Ibid.) However, “[f]ees authorized by statute do not present the same problem. A judgment does not act as a merger and a bar to statutory fees.” (Ibid.)
Code of Civil Procedure section 685.040 is intended to solve this “problem unique to a claim for postjudgment fees in actions based on contract” (Berti, supra, 145 Cal.App.4th at p. 77) by allowing for fees “incurred in enforcing a judgment . . . if the underlying judgment includes an award of attorney’s fees to the judgment creditor . . . .” (Code Civ. Proc., § 685.040.) Here, the underlying default judgment included an award of attorney’s fees to Remmich based on the lease’s attorney fees provision. Consequently, had Remmich been the prevailing party in the enforcement action, he would have been entitled to attorney fees under Code of Civil Procedure section 685.040.
It is true that Code of Civil Procedure section 685.040 applies only to “judgment creditors” who are “enforcing a judgment,” not judgment debtors like Feusier who have successfully defended an enforcement action. However, as explained by the Court of Appeal in Rainier National Bank v. Bodily (1991) 232 Cal.App.3d 83 (Rainier), Civil Code section 1717 and its underlying equitable principles address the merger problem raised by Remmich.
Civil Code section 1717 provides in relevant part that “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).)
Plaintiff in Rainier obtained a judgment against the defendants in Washington state, which judgment included an award of attorney fees based on a contractual attorney fee provision. Plaintiff then applied to enter the Washington judgment in California. However, after judgment was entered in California defendants successfully moved to vacate the judgment based in part on their claim that Washington lacked jurisdiction over them. However, when defendants then sought attorney fees based on the underlying contract, the trial court denied their request, reasoning that the action was on the judgment, not on the underlying contract, and holding the action was outside the provisions of Civil Code section 1717. (Rainier, supra, 232 Cal.App.3d at p. 85.)
The Court of Appeal reversed, holding that, because the Washington judgment included an award of attorney fees to plaintiff and because plaintiff had sought to enforce that award in California, the action was one to enforce the underlying contract, not merely the judgment, and that the equitable principles underlying Code of Civil Procedure section 1717 required that defendants receive attorney fees in their successful defense of that effort. (Rainier, supra, 232 Cal.App.3d at p. 86.) The court explained that Civil Code section 1717 provides for a fee award even when the prevailing party “wins on the grounds that the contract is inapplicable, invalid, unenforceable or nonexistent, so long as the party pursuing the lawsuit would have been entitled to attorney’s fees had it prevailed. [Citations.] The rationale is that Civil Code section 1717 is guided by equitable principles, including mutuality of remedy, and it would be inequitable to deny attorney’s fees to one who successfully defends simply because the initiating party filed a meritless case.” (Ibid.)
The Court of Appeal went on to reject plaintiff’s argument that the Washington judgment was “not a contract within the provisions of Civil Code section 1717,” concluding instead “that the original contract action instituted by [plaintiff], albeit a contract on which [defendants] were found to be not liable, controls under [Civil Code] section 1717. It is without question that: (1) the purported [contract] provided for attorney’s fees in the event of a legal action to enforce its terms; (2) [plaintiff] was awarded attorney’s fees by the Washington court; (3) [plaintiff] attempted to domesticate the entire Washington judgment; and (4) [defendants] are now the prevailing party. Had [plaintiff] initiated the litigation in California, it is indisputable that [defendants] would be entitled to an award of attorney’s fees under the authority of the previously cited cases. It matters little to [defendants’] pocketbook whether their attorney was employed to resist an action initially filed in California or to set aside a sister state judgment. [Plaintiff’s] argument also overlooks the fact that it actually received an award of attorney’s fees which it tried to enforce. To disallow attorney’s fees in this factual situation would reward [plaintiff] for selecting an improper forum and would be contrary to logic and to the spirit of Civil Code section 1717.” (Rainer, supra, 232 Cal.App.3d at p. 86; see also Berti, supra, 145 Cal.App.4th at p. 77 [“A judgment does not act as a merger and a bar to statutory fees”].)
The reasoning in Rainier applies with equal force here. Here, as there, (1) the lease “provided for attorney’s fees in the event of a legal action to enforce its terms”; (2) Remmich was awarded attorney fees in the default judgment; (3) Remmich sought to enforce the entire default judgment, including the award of attorney fees; and (4) Feusier is now the prevailing party. (Rainer, supra, 232 Cal.App.3d at p. 86.) To disallow attorney fees to Feusier in this situation would, as in Rainier, be contrary to the logic and spirit of Civil Code section 1717—not to mention general equitable principles. (See ibid.)
DISPOSITION
The September 14, 2006 judgment and the October 4, 2006 order awarding attorney fees are affirmed. Feusier shall recover his costs on appeal.
We concur: Haerle, Acting P.J., Lambden, J.
We also note that, contrary to what Feusier asserts, the abuse of discretion standard does not apply because we do not review an order setting aside a default judgment made pursuant to Code of Civil Procedure section 473. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118 [standard of appellate review of an order on a motion to set aside under section 473 is abuse of discretion]; cf. Fidelity Creditor Service, Inc. v. Browne, supra, 89 Cal.App.4th at p. 203 [“Section 473.5 is a procedural remedy by which a default or default judgment may be set aside; it is not a defense to an action on a judgment”].)