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Spielberg v. Carlsen

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Oct 13, 2011
E051167 (Cal. Ct. App. Oct. 13, 2011)

Opinion

E051167 Super.Ct.No. CIVVS806692 E051917

10-13-2011

FRANK SPIELBERG et al., Plaintiffs and Respondents, v. RAINIER CARLSEN, Defendant and Appellant. RAINIER CARLSEN, Cross-complainant and Appellant, v. FRANK SPIELBERG et al., Cross-defendants and Respondents.

Rainier Carlsen, in pro. per., for Defendant, Appellant and Cross-complainant. James R. Baxter for Plaintiffs, Respondents and Cross-defendants.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.


OPINION

APPEAL from the Superior Court of San Bernardino County. Kirtland L. Mahlum, Temporary Judge, and John B. Gibson, Judge. Affirmed.

Rainier Carlsen, in pro. per., for Defendant, Appellant and Cross-complainant.

James R. Baxter for Plaintiffs, Respondents and Cross-defendants.

In this appeal, defendant, appellant and cross-complainant Rainier Carlsen (defendant), appeals from the default judgment entered against him and in favor of plaintiffs, respondents and cross-defendants Frank and Gilda Spielberg (plaintiffs), on their complaint to quiet title to a piece of real property located near Apple Valley. After the trial court struck defendant's cross-complaint, which defendant filed after plaintiffs' had submitted their documents to obtain defendant's default, defendant also purported to appeal that order. We consolidated the appeals for resolution in a single opinion. We conclude defendant's claims are meritless and therefore we will affirm.

Defendant did not include the complaint in the record on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Our statement of the pertinent factual and procedural details is taken almost entirely from the register of actions because defendant requested that only a few documents, and then only ones he filed, be included in the clerk's transcript.

In November 2008, plaintiffs filed a complaint against various people, including defendant, to quiet title to real property located near Apple Valley. Defendant, who represented himself in the trial court and also represents himself in this appeal, filed a demurrer to the complaint in which he asserted, apparently by way of a supporting affidavit, that he did not have any interest in the real property that is the subject of plaintiffs' complaint. The trial court overruled defendant's demurrer at a hearing on March 20, 2009. On July 24, 2009, plaintiffs filed their request to enter defendant's default after he failed to file his answer to their complaint. At plaintiffs' default prove-up hearing on May 18, 2010, the trial court noted, according to the court's records, that defendant's default had never actually been entered. On plaintiffs' representation that they had a conformed copy of the request to enter default but did not have the document with them, the trial court continued the prove-up hearing. At the continued hearing on May 20, 2010, plaintiffs provided the trial court with what the trial court described as "the court copy" of the default filings, which apparently had been given to plaintiffs instead of retained by the court clerk. The trial court entered defendant's default effective July 24, 2009, and then entered a default judgment against defendant quieting title to the real property in plaintiffs. The trial court advised defendant that he could file a motion to set aside the default.

According to the register of actions, defendant filed a motion to set aside his default on March 25, 2010, before the default prove-up hearing.

Because the court clerk had not entered defendant's default on July 24, 2009, defendant was able to file an answer to plaintiffs' complaint, and then later a cross-complaint against plaintiffs. At the prove-up hearing on defendant's default, the trial court ordered defendant's answer stricken because it was filed after defendant's default should have been entered. After plaintiffs obtained their default judgment against defendant, defendant apparently took plaintiffs' defaults on his cross-complaint. On August 24, 2010, plaintiffs moved to set aside the defaults and to strike defendant's cross-complaint. The trial court granted both motions.

In the meantime, defendant's uncle, Kurt Carlsen, claimed to hold title to the real property that is the subject of plaintiffs' quiet title action through an unrecorded quitclaim deed from defendant. Based on that claim, he attempted to "intervene" or "join" plaintiffs' lawsuit, presumably as a defendant. The trial court denied that motion. Undeterred, defendant's uncle filed additional motions and purported cross-complaints naming as cross-defendants not only plaintiffs but also the trial court bench officers who made rulings unfavorable to him. In fact, defendant's uncle, rather than defendant, appeared at the August 24, 2010, hearing on plaintiffs' motion to set aside the default on defendant's cross-complaint and to strike that pleading. The uncle identified himself to the court as "Kurt Carlsen, plaintiff." When the trial court asked the uncle if he had any argument, plaintiffs' attorney pointed out that the uncle is not a party to the action, that he has just "interjected himself" in the lawsuit after the trial court denied his motion to "intervene."

Defendant appeals from the default judgment and the order striking his cross-complaint.

DISCUSSION

Defendant contends in this appeal as he did in the trial court that he does not have any interest in the real property that is the subject of plaintiffs' quiet title action. Why, if he has no interest in the real property, is defendant expending so much effort to oppose plaintiffs' lawsuit and have the judgment against him set aside? Defendant cannot be motivated by a desire to avoid costs because plaintiffs waived them. Moreover, a defendant in a quiet title action who either disclaims any interest in the real property or allows a judgment to be taken without filing an answer, i.e., by default, is not liable for costs. (See Code Civ. Proc., § 761.030, subd. (b).) The issue of defendant's motivation aside, his claims on appeal, like those he raised in the trial court, involve purported procedural errors.

First, defendant questions whether his default could be entered without the affidavit of mailing required under Code of Civil Procedure section 587. Defendant did not include the default documents in the record on appeal. As previously noted, he designated only his own filings to be included in the clerk's transcript. Because he has not included the necessary trial court filings, he has not demonstrated that his default was entered without the required affidavit of mailing. It is the appellant's burden to provide a record which affirmatively demonstrates reversible error. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) Defendant has provided only that portion of the record that supports his claims. In doing so, he has not demonstrated that error occurred.

Defendant poses each of his issues in the form of a question.
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More importantly, we granted plaintiffs' request to augment the record on appeal to include various trial court filings, one of which is their Request for Entry of Default on the form approved for mandatory use by the Judicial Council of California. That form bears a filing date of July 24, 2009, and includes the declaration, or affidavit, of mailing required by Code of Civil Procedure section 587. The declaration is signed under penalty of perjury by Joyce M. Porter and shows that a copy of the Request for Entry of Default was served on defendant by first class mail on July 24, 2009.

The affidavit of mailing included in the augmented record on appeal also resolves defendant's next question, which is whether Commissioner Mahlum could lawfully strike defendant's answer absent the certificate of mailing. The augmented record on appeal not only includes the certificate of mailing, but as previously discussed, also discloses that at the prove-up hearing, Commissioner Mahlum found the clerk of the court should have entered defendant's default on July 24, 2009. "[A] plaintiff is entitled to the entry of default on the date he requests it if there is then no responsive pleading by the defendant on file; and . . . the plaintiff cannot be deprived of his right to the entry of a default merely because the clerk erroneously fails to perform his ministerial duty and does not enter it when requested. [Citation.]" (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 142, citing W. A. Rose Co. v. Municipal Court (1959) 176 Cal.App.2d 67, 72.) If defendant's default had been entered as it should have been on July 24, 2009, defendant could not have filed his answer, because entry of a defendant's default precludes that defendant from further participation in the litigation. (Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479.) Therefore, the trial court properly struck defendant's answer to plaintiffs' complaint.

Next defendant asks whether the trial court can enter a default judgment against him "once jurisdictional presumptions are rebutted?" The quoted phrase evidently refers to the fact that defendant presented evidence in the form of an affidavit in support of his motion to set aside the default judgment to show that he did not own the real property that is the subject of plaintiffs' lawsuit. Defendant apparently views his disavowal of an interest in the real property as divesting the trial court of jurisdiction either over him or over the real property, or both. Defendant is mistaken. The trial court could have, and probably should have, construed defendant's affidavit as a disclaimer of interest in the real property under Code of Civil Procedure section 761.030, subdivision (b), in which case plaintiffs would have been entitled to a judgment against defendant, without costs. (Bulwer Consol. Mining Co. v. Standard Consol. Mining Co. (1890) 83 Cal. 589, 597 ["[W]hen, in an action to quiet title to land, the defendant disclaims any interest or estate in the premises, it is immaterial whether or not he had ever before claimed an interest or estate therein adversely to the plaintiff; for in either event the plaintiff would be entitled simply to a judgment quieting his title, without costs."].) In short, whether by default or by disclaimer, plaintiffs were entitled to judgment against defendant in this action.

Defendant also questions whether as a result of his disavowal of an interest in the real property, the trial court had "jurisdictional standing." Again, defendant misperceives the effect of his affidavit. By disavowing an interest in the real property, defendant did not divest the trial court of jurisdiction. His disavowal simply entitled plaintiffs to a judgment against defendant.

Finally, defendant questions whether the trial court can grant a motion to strike without notice and an opportunity to be heard. The short answer is yes, a trial court "may . . . at any time in its discretion" strike "any pleading not drawn or filed in conformity with the laws of this state." (Code. Civ. Proc., § 436, subd. (b).) Defendant's question refers to the trial court's order dated September 14, 2010, striking his cross-complaint. That cross-complaint was filed after defendant's default should have been entered, and thus after defendant could no longer participate in the litigation. Therefore, defendant's cross-complaint was not filed in conformity with the laws of this state and the trial court on its own motion properly struck that pleading.

DISPOSITION

The judgment is affirmed; the order striking defendant's cross-complaint is affirmed. Plaintiffs are awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKinster

Acting P.J.

We concur:

Richli

J.

Codrington

J.


Summaries of

Spielberg v. Carlsen

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Oct 13, 2011
E051167 (Cal. Ct. App. Oct. 13, 2011)
Case details for

Spielberg v. Carlsen

Case Details

Full title:FRANK SPIELBERG et al., Plaintiffs and Respondents, v. RAINIER CARLSEN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Oct 13, 2011

Citations

E051167 (Cal. Ct. App. Oct. 13, 2011)