Durant Harvesting, Inc. v. Angelina Dettamanti, etc., et al.
Case No: 18CV06350
Hearing Date: Mon Jun 03, 2019 9:30

Nature of Proceedings: Motion to Quash Service and Vacate Orders

Durant Harvesting, Inc., v. Angelina Dettamanti, etc., et al. (Judge Sterne)

Case No. 18CV06350

Hearing Date: June 3, 2019

HEARING:

Motion of Defendant Angelina Dettamanti to Quash Service and to Vacate Orders

ATTORNEYS:

For Plaintiff Durant Harvesting, Inc.: Rafael Gonzalez, Jana Johnston, Mullen & Henzell, L.L.P.

For Defendant Angelina Dettamanti: Marc E. Angelucci

For Defendant David Farmer, Trustee: James C. Buttery, Elizabeth A. Culley, Andre, Morris & Buttery

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant Angelina Dettamanti to quash service and to vacate orders is denied. Counsel for the parties are to be prepared to discuss the issue of mootness at the hearing of this motion as identified by the court.

Background:

This civil interpleader action is related to five probate matters—case numbers 16PR00195, 18PR00182, 18PR00334, 18PR00597, and 18WILL0339. All actions were filed and originally pending in North County.

On December 27, 2018, plaintiff Durant Harvesting, Inc., (Durant) filed its original complaint in interpleader seeking to determine defendants’ rights in and to rent in the amount of $110,000 that Durant is obligated to pay pursuant to an Agricultural Lease (Lease). (Complaint, ¶ 12.) As alleged in the complaint, the Lease is between Durant and Joe F. Carrari, trustee of the Joe and Phyllis Carrari Family Trust (Trust). (Ibid.) Joe Carrari died and there are competing claims regarding the proper successor trustee. (Complaint, ¶ 13.)

On December 28, 2018, the court ordered the clerk of the court to accept the deposit of the $110,000. (Order, filed Dec. 28, 2018.)

On January 22, 2019, David Farmer appeared in this action, identifying himself as the court-appointed temporary trustee of the Trust. (Notice of Appearance, filed Jan. 22, 2019.)

On January 25, 2019, Durant filed an amendment to the complaint identifying “Doe 1” as David Farmer, trustee of the Trust.

On January 29, 2019, Farmer filed an ex parte application. The notice of the application states that Farmer applies “for an Order allowing the release of $110,000 of the interpled funds in the above-entitled matter to the Temporary Trustee to secure Trust property and remove unauthorized occupants who are denying the Temporary Trustee physical access to the property and refusing to identify themselves. In addition, the Temporary Trustee has an immediate need to retain counsel to assist in not only the matters mentioned herein but also to enter an appearance in matters now pending in … both the Superior Court and the Court of Appeals, 2nd Division ….” (Notice, filed Jan. 29, 2019.)

The concurrently-filed declaration of David Farmer stated on information and belief that, at the hearing in which Farmer was appointed as the temporary trustee of The Carrari Family Trust dated February 28, 2002, Rodney Lee appeared telephonically and represented to the court that his firm, Loeb and Loeb, had been retained by defendant Dettamanti as her attorney and that he was authorized to accept service on behalf of Dettamanti. (Farmer decl., filed Jan. 29, 2019, ¶ 5.)

The concurrently-file declaration of attorney James C. Buttery, counsel for Farmer, states that he was informed that Rodney Lee, of Loeb & Loeb, had appeared telephonically at the January 15, 2019, hearing by which Farmer was appointed temporary trustee and that Lee informed Judge Staffel that he represented Dettamanti and would receive process at his office in Los Angeles or through his email address disclosed on Loeb & Loeb’s website. (Buttery decl., filed Jan. 29, 2019, ¶ 4.) Buttery also states that on January 29, 2019, Buttery called Lee at 8:05 a.m. and left him a voice mail message informing Lee that Buttery was filing an ex parte application in this action “for an Order to release $110,000 of the interpleaded funds” and of the place, date, and time of the hearing. (Buttery decl., ¶¶ 11, 12.) Buttery caused an email to be sent to Lee summarizing the notification. (Buttery decl., ¶ 13.) The email states that “The ex parte application seeks the release to Mr. Farmer’s Trust Account of the $110,000 in funds now on deposit with the County of Santa Barbara.” (Buttery decl., ¶ 13 & exhibit 10, p. 1.) Buttery also called the cell phone number that Dettamanti identified in a related case as her number, but Dettamanti did not answer and her voicemail was full. (Buttery decl., ¶ 14.) Buttery caused a similar email to be sent to Dettamanti summarizing the notification to the email address noted in the proof of service. (Ibid.) The email begins with the following introduction: “Ms. Dettamanti—I called Rodney Lee on the belief that he may be representing you in Durant Harvesting, Inc. v. Angelina Dettamanti Case No. 18CV06350. I just tried your cell phone at 8 am, but your voice mail box was full. Please be advised that I would have left the following message ….” (Buttery decl., ¶ 14 & exhibit 10, p. 2.)

On January 30, 2019, the court, the Hon. Timothy J. Staffel, Judge, presiding, entered an order (the January 30 Order) following the hearing on the ex parte application. The court signed an interlineated version of the order presented by Farmer. On January 31, 2019, the court entered an amended order (Amended Order) which appears to have incorporated and typed the interlineations on the January 30 Order with an additional sentence. The first numbered paragraph of the Amended Order orders release of the $110,000 to Farmer for use to secure Trust property, remove unauthorized occupants, retain counsel and enter appearances in pending court matters involving the Trust. The second numbered paragraph of the Amended Order rescinds an order of the court dated December 3, 2018, which permitted defendant Angelina Dettamanti to remain residing at the Ranch Property. The Amended Ordered added a final sentence to the January 30 Order which states: “To the extent Angelina Dettamanti needs access to the Ranch Property to obtain her personal belongings, she must be accompanied by the Sheriff and the Temporary Trustee, David Y. Famer.” Both the January 30 Order and the Amended Order reflect that there was no appearance by Dettamanti at the January 30 hearing; the court’s minute order for the hearing on the ex parte application on January 30, 2019, states: “Mr. Buttery represents he has not had any communication from Mr. Lee, Ms. Dettamanti’s attorney.” The proposed Amended Order was served on January 30, 2019, on Lee and on Dettamanti by mail. (Amended Order, proof of service.)

On February 7, 2019, Dettamanti, by her counsel, attorney Marc E. Angelucci, filed an ex parte application to vacate or reconsider that part of the Amended Order that Dettamanti vacate her residence. The ex parte application argued that Dettamanti was not given notice of the ex parte application and Dettamanti was never properly served with the summons in this action.

On February 8, 2019, the court heard Dettamanti’s ex parte application. After a lengthy hearing, the court ordered that all current orders would remain in effect until the next hearing on February 15. (Minute Order, Feb. 8, 2019.) A notice of this ruling was filed and served on February 11.

On February 13, 2019, Dettamanti filed a “Status Update and Notice of 12/4/17 Amendment to Trust.” This status update indicated that Dettamanti had filed a petition for writ with the Court of Appeal.

On February 14, 2019, the order of the Court of Appeal was filed summarily denying the petition for writ and request for stay.

On February 15, 2019, the court held an evidentiary hearing on Dettamanti’s ex parte application to vacate a portion of the Amended Order. (Minute Order, Feb. 15, 2019.) Following the taking of evidence, the court made multiple rulings after which the matter was continued to February 21.

At the February 21, 2019, hearing Judge Staffel recused himself.

On March 4, 2019, Dettamanti filed a notice of appeal identifying the orders appealed from as the orders dated January 30, 2019, and February 15, 2019.

On March 7, 2019, following disqualification of Judges Rigali and Beebe, the case was transferred to Santa Barbara.

On March 14, 2019, an order of the Court of Appeal was filed summarily denying another petition for writ and request for stay.

On March 22, 2019, Dettamanti filed this motion to quash service of summons pursuant to Code of Civil Procedure section 418.10 and to set aside the January 30 Order and the Amended Orders on the grounds the orders are void for lack of service and required notice and that the orders are improper within this interpleader action.

The motion is opposed by Farmer on multiple grounds.

Analysis:

(1) Jurisdiction

When this matter was originally set for hearing on April 29, 2019, the court identified the issue of whether this court has jurisdiction to address the merits of the motion because of the pending appeal.

“Under [Code of Civil Procedure] section 916, ‘the trial court is divested of’ subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. [Citation.] ‘The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court….’ [Citation.] Thus, ‘that court is without power to proceed further as to any matter embraced therein until the appeal is determined.’ [Citations.] And any ‘proceedings taken after the notice of appeal was filed are a nullity.’ [Citations.] This is true even if the subsequent proceedings cure any purported defect in the judgment or order appealed from. [Citations.] [¶] … The purpose of the automatic stay under section 916 is to preserve ‘the status quo until the appeal is decided’ [citation], by maintaining ‘the rights of the parties in the same condition they were before the order was made’ [citation]. Otherwise, the trial court could render the ‘appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-198, fn. omitted.)

The court requested briefing on this issue and both parties provided helpful responses to the court’s inquiry. Both parties agree that the court has jurisdiction to vacate a void order notwithstanding a pending appeal. (Dettamanti supp. brief, p. 2; Farmer supp. brief, p. 2.) Both parties cite Svistunoff v. Svistunoff (1952) 108 Cal.App.2d 638, 641-642, which provides in relevant part (citations omitted):

“Plaintiff contends that the appeal from the first order deprived the trial court of jurisdiction to act in any respect concerning that order. While this is the general rule, in this case, since the order was void for lack of proper notice and jurisdiction, a different situation exists from the usual case of mere error. The court could have either disregarded it entirely and considered the new motion to set aside the default, or could have set it aside of its own motion, or, as here, on motion of defendant. … ‘An order made by a court or judge wholly without jurisdiction is void and of no force or effect. … A void order … remains without effect as completely as if never entered.’ … ‘However, a court may set aside a void order at any time. An appeal will not prevent the court from at any time lopping off what has been termed a dead limb on the judicial tree—a void order.’ … ‘An appeal does not deprive the trial court of jurisdiction to vacate a void order. If it is void upon its face, it may be set aside at any time. If it is void in fact for want of jurisdiction, but not void upon its face, a separate action of attack is the preferable procedure [citation], but if there is an absence of jurisdiction and this becomes certain from an inspection of the entire record, the trial court is not precluded from taking proper action though an appeal is pending.’ [Citation.] In our case, that the court had no jurisdiction to make the order appears on the face of the record, as it shows that the notice required by law was not given.”

The court concludes that it has jurisdiction to determine whether the order of January 31, 2019, was void and, if so, to vacate that order.

(2) Motion to Quash Service

The first part of Dettamanti’s motion is to quash service pursuant to Code of Civil Procedure section 418.10. “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a).)

This action is an interpleader action relating to the disposition of rent pursuant to an agricultural lease. (Complaint, ¶ 12.) This action is related to the probate matters identified above. It is important first to establish that the relatedness of the actions does not itself resolve issues of service or notice.

“A pending civil case is related to another pending civil case, or to a civil case that was dismissed with or without prejudice, or to a civil case that was disposed of by judgment, if the cases:

“(1) Involve the same parties and are based on the same or similar claims;

“(2) Arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact;

“(3) Involve claims against, title to, possession of, or damages to the same property; or

“(4) Are likely for other reasons to require substantial duplication of judicial resources if heard by different judges.” (Rules of Court, rule 3.300(a).)

Cases are related to provide efficiencies in case management. The relation of cases for case management purposes is different from consolidation of cases. “Code of Civil Procedure section 1048, subdivision (a), authorizes the trial court, when appropriate, to ‘order a joint hearing or trial’ or to ‘order all the actions consolidated.’ Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment.” (Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147.) This interpleader case is not consolidated with any of the probate actions.

In Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391 (Sanchez), the court addressed the requirement of service in actions consolidated for purposes of trial only. Sanchez arose out of an automobile accident in which all occupants of a vehicle were killed. (Id. at p. 1394.) The first action was filed by one family of occupants against the driver of the vehicle and against the owner and driver of a truck that was also involved in the accident. (Ibid.) The second action was filed by another family of occupants against the same defendants (Ibid.) The plaintiffs in the first action filed a motion to consolidate the first and second action, which motion was granted by the trial court and the cases were consolidated for trial. (Id. at p. 1395.) After three years, the defendants moved to dismiss the second action for failure to serve the second action. (Ibid.) The trial court denied the motion, finding that conduct of defendants had constituted a general appearance by their participation in discovery. (Ibid.)

On writ review in Sanchez, the court first noted that the two actions were consolidated for purpose of trial and not for all purposes. (Sanchez, supra, 203 Cal.App.3d at p. 1396.) Because the cases were not consolidated for all purposes, the cases retained their separate existence. (Ibid.) Consequently, the three year dismissal statute (Code Civ. Proc., § 583.250) applied separately to the second action. (Id. at pp. 1396-1397.) The Sanchez court further determined that the defendants did not make a general appearance in the second action by their participation in discovery in the first action. (Id. at pp. 1398-1399.) The court therefore issued a writ of mandate requiring the trial court to dismiss the second action. (Id. at p. 1401.)

The decision in Sanchez demonstrates that even in cases that are consolidated for trial, separate service—or the legal equivalent of service—is required in each action. Therefore, the fact that this action is related to other actions in which Dettamanti has appeared and participated provides no basis for asserting that Dettamanti has made a general appearance in this action.

The complaint in this action was filed on December 27, 2018. On January 23, 2019, Farmer filed a notice of appearance and thus appeared in this action. (See Code Civ. Proc., § 1014.) The complaint was amended to add Farmer as “Doe 1” on January 25, 2019. There is no proof of service of summons on Dettamanti as to this action in the court’s file.

Dettamanti moves to quash service by asserting that none of her actions in this action prior to the filing of this motion on March 22, 2019, constitute a general appearance. “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.” (Code Civ. Proc., § 1014.) “An appearance at a hearing at which ex parte relief is sought, or an appearance at a hearing for which an ex parte application for a provisional remedy is made, is not a general appearance and does not constitute a waiver of the right to make a motion under Section 418.10.” (Code Civ. Proc., § 418.11.)

“A general appearance is one in which the defendant participates in the action in a manner which recognizes the court’s jurisdiction. [Citation.] 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.” (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.)

Dettamanti’s ex parte application, filed February 7, 2019, sought to vacate that part of the Amended Order (repeated from the interlineations in the January 30 Order) rescinding a previous order (in a related case) which rescinding order had the effect of ordering that Dettamanti had no access to the ranch property where she resides. (Ex Parte Application, filed Feb. 7, 2019, p. 1.) Dettamanti stated the grounds for the ex parte application that Dettamanti was not given notice of the ex parte application, that Dettamanti cannot be ordered to leave her property by an order issued in an interpleader action (i.e., without an unlawful detainer action or other proceeding providing due process), that the interpleader action was mooted by the appointment of a temporary trustee, that Dettamanti was never served with summons, and that the law firm representing the plaintiff in this action has a conflict of interest.

In addition to addressing the jurisdictional issue discussed above, this court also requested that the parties provide supplemental briefing on the issue of whether actions taken by Dettamanti prior to the filing of this motion constituted a general appearance. In response to the court’s request, Dettamanti stated: “The ex parte application was initially heard on February 8, 2019, and then continued to February 15, 2019 for an evidentiary hearing on the issue. Dettamanti’s counsel agreed to accept service from February 8, 2019, forward, but did not agree to retroactive waive the lack of personal jurisdiction and void Order of January 31, 2019.” (Dettamanti supp. response, filed May 1, 2019, p. 3-4.) It was also pointed out that the court at the February 8 hearing confirmed counsel’s and Dettamanti’s agreements regarding service. (Culley decl., exhibit A, pp. 17-20.) Proof of service consistent with this agreement regarding service showed service of a notice of the court’s rulings from the February 8 hearing and notice of the evidentiary hearing on February 15, 2019.

The Dettamanti agreed to service and accepted service of documents in this action after February 8. Dettamanti thereafter fully participated in the February 15 evidentiary hearing. (See Minute Order, filed Feb. 15, 2019.) Assuming without deciding that the January 30 Order and Amended Order were issued at a time when the court did not have personal jurisdiction over Dettamanti and Dettamanti was not given notice of the orders that are challenged here, it is clear that Dettamanti made a general appearance at the February 15 evidentiary hearing without having first or contemporaneously made a motion to quash service. (See Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1757 [participation in proceedings without first properly challenging jurisdiction constitutes general appearance].) A defendant may not “take action which constitutes a general appearance and then negate the effect of that action by a subsequent motion to quash.” (Factor Health Management v. Superior Court, supra, 132 Cal.App.4th 246, 251-252.)

The effect of granting a motion to quash is to determine that service is ineffective and the court has no present personal jurisdiction over the moving defendant. (See GMS Properties, Inc. v. Superior Court (1963) 219 Cal.App.2d 407, 410-411.) The court has present personal jurisdiction over Dettamanti based upon Dettamanti’s general appearance in this action at least as early as the February 15 evidentiary hearing. Any challenge to the present jurisdiction of the court by motion to quash has been waived by Dettamanti’s litigation conduct prior to the filing of this motion to quash. Accordingly, Dettamanti’s motion to quash service of summons will be denied.

(2) Motion to Vacate January 30 and Amended Order

Dettamanti also by this motion seeks to set aside the January 30 Order, the Amended Order, and “all orders and proceedings founded thereon.” (Notice, p. 4.) As discussed above, the court identified as an issue the question of jurisdiction of this court to rule on this motion in view of the pending appeal. The discussion above points out that the general rule is that the court has no jurisdiction to proceed further as to the matter under appeal. (See Waremart Foods v. United Food and Commercial Workers Union, Local 588 (2001) 87 Cal.App.4th 145, 154 [“where a preliminary injunction has been appealed to the Court of Appeal, the trial court is without jurisdiction to modify or dissolve the preliminary injunction during pendency of its appeal”].) The exception to the rule is where the order being challenged is void.

“Essentially, jurisdictional errors are of two types. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.] 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.’ [Citation.]” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660.) “However, ‘in its ordinary usage the phrase “lack of jurisdiction’ is not limited to these fundamental situations.’ [Citation.] It may also ‘be applied to a case where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no “jurisdiction” (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.’ [Citation] ‘[W]hen a statute authorizes [a] prescribed procedure, and the court acts contrary to the authority thus conferred, it has exceeded its jurisdiction.’ [Citation.] When a court has fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or 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.’ [Citations.]” (Id. at p. 661.)

Assuming without deciding that the January 30 Order and the Amended Order were entered without service on or notice to Dettamanti, such orders would be void as to Dettamanti. (See Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4 [an order is void as a matter of law, for example, “because the court lacked subject matter jurisdiction, or because the summons and complaint were not properly served, so that the court lacked personal jurisdiction over a defendant, or otherwise because the judgment or order violated a party’s due process rights to notice and an opportunity to be heard”].) However, the January 30 Order and the Amended Order were subject to later proceedings. On February 8, the court ordered that “All current orders shall remain in full force and effect until the next hearing.” (Minute Order, filed Feb. 8, 2019, p. 2.) The next hearing was the evidentiary hearing on February 15. (Ibid.)

As discussed above with respect to the motion to quash, Dettamanti had notice and made a general appearance at the February 15 hearing. At the February 15 hearing the court reaffirmed and modified its prior orders, superseding the January 30 Order and Amended Order. Consequently, the orders from the February 15 are not void for lack of personal jurisdiction over Dettamanti or for lack of sufficient notice. To the extent there was error in granting any part of the February 15 orders, those errors do make the judgment voidable, not void. This court’s jurisdiction pending appeal of the February 15 orders is limited to setting aside the orders as void. The court finds that those orders are not void and so this court (as opposed to the Court of Appeal) does not have jurisdiction to vacate the orders on a different ground. Accordingly, the motion to set aside orders founded upon the January 30 Order and Amended Order will be denied.

The court notes that Dettamanti also raises the issue of mootness. Because the court has already issued an order (apparently not subject to challenge) to permit the withdrawal of the interpleaded funds by the temporary trustee, and because the disposition of the funds are now subject to the court’s control over the temporary trustee in the probate action wherein the temporary trustee was appointed, there does not appear to be anything further to be resolved in this interpleader action. The parties are to be prepared to discuss at the hearing of this motion whether the interpleader action is moot, if the action is moot, what procedure is appropriate to conclude the interpleader action (i.e., a stipulation or motion to dismiss), and if there is a dispute over whether the action is moot, what procedure is appropriate to address the dispute.