Filed 4/3/20 Albert v. Boger CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

RICHARD L. ALBERT,

Plaintiff and Respondent,

v.

HENRY BOGER,

Defendant and Appellant.

B297097

(Los Angeles County

Super. Ct. No. BC518352)

APPEAL from an order of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.

Wolf, Rifkin, Shapiro, Schulman & Rabkin, and Mark J. Rosenbaum for Plaintiff and Respondent.

Henry Boger, in pro. per., for Defendant and Appellant.

_________________________

Defendant and appellant Henry Boger (Boger), in propria persona, appeals an order denying his motion to set aside a default judgment obtained by Hollywood Sky Entertainment, Inc. (Sky).

Boger previously moved to set aside the default judgment pursuant to Code of Civil Procedure section 473, subdivision (d), on the ground it was void because the summons and complaint were not properly served on him. The trial court denied that motion, and in a prior opinion this court affirmed that order. (No. B276542, filed Jan. 25, 2018 [nonpub. opn.] (Boger I).) Following the issuance of the remittitur in Boger I, Boger filed another motion in the superior court, contending that the default judgment must be vacated as void, pursuant to section 473, subdivision (d), because the complaint failed to state a cause of action against him.

The alleged errors now being asserted by Boger, namely, the failure of the complaint to state a cause of action and the insufficiency of the evidence to support the default judgment, even if established, would amount merely to nonjurisdictional errors and therefore would not render the default judgment void. Accordingly, the trial court did not err in denying Boger’s motion to vacate the default judgment pursuant to section 473, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

1. Events leading up to entry of the default judgment against Boger.

On August 15, 2013, Sky filed suit against Boger, GGG Films LLC (GGG), and various other defendants, alleging, inter alia, that Sky was fraudulently induced to invest $398,500 in a motion picture and was not paid any share of the picture’s revenues. Boger allegedly was the sole owner of GGG.

Proofs of service filed September 24, 2013 indicated that Boger individually, and as GGG’s agent for service of process, was served on September 17, 2013, by substituted service on a competent member of his household, and thereafter copies of the documents were mailed to the same address. On November 5, 2013, the clerk entered the defaults of Boger and GGG, as requested.

The matter proceeded to a default proveup on Sky’s written declaration, and on March 10, 2015, the trial court entered a default judgment against Boger and GGG. The trial court awarded Sky damages of $398,500, plus prejudgment interest and costs, for a total of $532,553.42. Sky assigned the judgment to Richard L. Albert (Albert).

2. Boger’s first motion to set aside the default judgment.

On May 13, 2016, Boger filed a motion to set aside the default judgment on the grounds that: service of summons did not result in actual notice (§ 473.5); the clerk improperly entered default and the default was void because Sky did not serve a statement of damages (§ 425.11); and he was entitled to relief under section 473, subdivision (b), on the basis of excusable neglect because the default was entered as a result of his mistaken belief that no default would be entered absent proper service of summons and/or proper service of a statement of damages.

3. Sky’s opposition to the motion to vacate the default judgment.

On June 23, 2016, Sky filed opposition to Boger’s motion, arguing, inter alia, that the motion was untimely under sections 473 and 473.5. Sky contended that Boger had actual notice of the lawsuit because he sat for his deposition in the matter on June 11, 2014. Sky also argued that Boger’s motion to vacate the default was defective because it was not accompanied by a supporting declaration showing any grounds for vacating the judgment, and that Boger had failed to satisfy the requirement of attaching a copy of a proposed answer to his motion for relief.

4. Trial court’s ruling denying Boger’s motion to set aside the default judgment.

On July 12, 2016, after hearing the matter, the trial court entered an order denying Boger’s motion. The trial court noted, inter alia, that the motion was not accompanied by a responsive pleading or a supporting declaration from Boger.

In addition, the trial court found the motion was untimely “under either CCP §§ 473.5 and/or 473(b). Defendant Boger’s default was entered on November 5, 2013; a copy of the ‘Request for Entry of Default’ had been mailed to him on November 1, 2013. On December 16, 2013, plaintiff’s application for default judgment was filed and served by mail on Defendant Boger. . . . On June 11, 2014, Defendant Boger sat for his deposition in this action (i.e., a fact which obviously belies his ‘lack of actual notice’ argument). . . . On March 10, 2015, default judgment was filed against Defendant Boger. . . . On November 3, 2015, [Sky] assigned the rights and title to the judgment to Albert; notice of said assignment was mailed to [Boger on] November 2, 2015. Albert attests that ‘[n]one of the documents mailed to Boger by me or my office at any time to the Property, or mail served on Boger, were returned as undeliverable by the U.S. Post Office.’ ”

The trial court continued, “Defendant Boger alternatively contends that the summons and complaint was not properly served upon him, which is a CCP § 473(d) argument: ‘[w]here service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default or default judgment. [CCP § 473.5]. This section is designed to provide relief where there has been proper service of summons (e.g., by substitute service or by publication) but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication. [See Randall v. Randall (1928) 203 Cal. 462, 464–465; Trackman v. Kenney (2010) 187 C.A.4th 175, 180]. Compare -­ improper service of summons: If the summons was not properly served, relief from default or default judgment should be sought under CCP § 473(d) (relief from void judgments).’ Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) 5:420 (emphasis theirs).

“Defendant Boger, however, is not entitled to CCP § 473(d) relief, inasmuch as the evidence reflects that he was properly served with the summons and complaint. . . . [¶] . . . [¶] The proof of service filed by plaintiff on September 24, 2013 reflects that Defendant Boger was sub-served with the summons and complaint on September 17, 2013. The proof of service also indicates the process server mailed a copy of the summons and complaint to the same address. Service by a registered process server creates a presumption which Defendant Boger must overcome by admissible evidence, which he has failed to do. See Evidence Code § 647.”

Finally, the trial court noted that at the time of oral argument, Boger “admitted to living at the address [where service was made] at the time service was made.”

Boger appealed the July 12, 2016 order.

5. In Boger I, this court affirmed the July 12, 2016 order denying relief under section 473, subdivision (d).

In Boger I, Boger’s opening brief did not discuss section 473, section 473.5, or section 425.11, the statutory grounds on which he relied in the trial court. We therefore deemed those issues to have been forfeited. (Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 295 [failure to raise a claim of error in the opening brief forfeits the argument].)

Instead of addressing the arguments that he raised in the court below, Boger contended on appeal that the trial court never acquired jurisdiction over him “ ‘because he was never served with a summons and complaint[,] contrary to the fraudulent representation of the process server’s return, and therefore, the judgment is void.’ ” Boger “ ‘request[ed] review, de novo, of the isolated documents on page 93, page 85, page 82, and page 63’ ” of the clerk’s transcript, and he contended those four documents “ ‘speak for themselves as insufficient’ ” and therefore the motion to set aside the default was erroneously denied. He asserted “ ‘[a] sleuth may observe that the “file stamp” at the top right of the first page of each Proof-of-Summons document and the “signature” at the bottom of the second page of each are indeed a machine copy of the other.’ ”

We rejected Boger’s arguments as improper because they were not presented to the trial court in the first instance, and the arguments concerning the genuineness of the proofs of service could not be raised for the first time on appeal because they did not present a pure question of law based on undisputed facts.

We concluded “the face of the documents does not compel the conclusion that they were fabricated. Because the proofs of service in the clerk’s transcript fail to unequivocally establish that Boger was not served with the summons and complaint, he is not entitled to reversal of the order denying his motion to set aside the default judgment.”

Following the filing of Boger I, the remittitur issued on March 27, 2018.

6. Boger’s second motion to vacate the default judgment as void, pursuant to section 473, subdivision (d).

On October 22, 2018, Boger filed another motion in the superior court seeking to vacate the entry of default and default judgment that had been entered against him. Boger moved for relief pursuant to section 473, subdivision (d), on the ground that the default was void because the court lacked personal jurisdiction over him.

In this motion, Boger did not contend that he had not been properly served in the action. Instead, he asserted the March 10, 2015 default judgment was void because, after the trial court entered his default on the original complaint on November 5, 2013, the trial court sustained demurrers by his codefendants on October 15, 2014 to Sky’s second amended complaint without leave to amend. Thus, “when the default judgment was entered against Defendant Boger, it was entered on a complaint that was then extinguished by the sustaining of the demurrers. Therefore, this judgment against Defendant Boger was void at its inception.”

7. Opposition to Boger’s second motion to vacate the default judgment.

Albert, Sky’s assignee, filed opposition to Boger’s motion, including an extensive request for judicial notice of the court records in the matter.

Albert contended that Boger’s new motion was untimely because the issues to be adjudicated had already been presented to the appellate court and had been resolved by Boger I. Although a judgment absolutely void on its face may be attacked at any time, the validity of the default judgment had already been decided by Boger I. Further, at the time Boger filed the first motion and the subsequent appeal, “he was required to assert each and every argument that the judgment was void.” Here, the validity of the judgment presented itself, at the very latest, prior to the time Boger filed the first motion to vacate, when he reviewed the court documents and would have been aware that his codefendants had obtained a dismissal following the sustaining of their demurrers to the second amended complaint without leave to amend.

Albert additionally argued that neither the first nor second amended complaints, filed after entry of Boger’s default on the original complaint, altered the allegations, claims or damages sought against Boger. The allegations against Boger never changed. The amended pleadings related solely to additional allegations of alter ego and conspiracy against the other defendants. Therefore, the filing of amended pleadings against the other defendants did not preclude the trial court from entering a default judgment against Boger on the allegations of the complaint.

8. Boger’s reply papers.

In his reply, Boger argued that a defective pleading deprives the trial court of lawful jurisdiction, and that the second motion to vacate was timely pursuant to section 473, subdivision (d), because there is no time limit for a motion for relief when it is clear from the face of the record that the judgment is void on its face and should not have been entered.

9. Trial court’s ruling.

On March 1, 2019, the matter came on for hearing. After considering the matter, the trial court denied Boger’s motion to vacate the default and default judgment. On April 22, 2019, Boger filed a timely notice of appeal from the order.

CONTENTIONS

Boger contends the trial court erred in denying his second motion to vacate the default judgment under section 473, subdivision (d), because the judgment is void on its face, the motion was timely, and the motion was not precluded by the prior proceedings.

DISCUSSION

1. Governing law and standard of appellate review.

“Section 473, subdivision (d), provides a trial court ‘may, on motion of either party after notice to the other party, set aside any void judgment or order.’ ‘[I]nclusion of the word “may” in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].’ (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495 [(Cruz)].) However, the trial court ‘has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void . . . ’ (Id. at pp. 495-496.) Thus, the reviewing court ‘generally faces two separate determinations when considering an appeal based on section 473, subdivision (d): whether the order or judgment is void and, if so, whether the trial court properly exercised its discretion in setting [or not setting] it aside.’ (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822.) The trial court’s determination whether an order is void is reviewed de novo; its decision whether to set aside a void order is reviewed for abuse of discretion. (Ibid.; see also Cruz, at p. 496.)” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020, italics added.)

In determining “whether an order is void for purposes of section 473, subdivision (d), courts distinguish between orders that are void on the face of the record and orders that appear valid on the face of the record but are shown to be invalid through consideration of extrinsic evidence. ‘This distinction may be important in a particular case because it impacts the procedural mechanism available to attack the judgment [or order], when the judgment [or order] may be attacked, and how the party challenging the judgment [or order] proves that the judgment [or order] is void.’ [Citation.]” (Pittman, supra, 20 Cal.App.5th at pp. 1020-1021.)

As explained in Pittman, an order “is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence. (OC Interior Services, [LLC v. Nationstar Mortgage, LLC (2017)] 7 Cal.App.5th [1318,] 1327 [‘[t]o prove that the judgment is void [on its face], the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence is allowed’]; [citation].) There is no time limit to attack a judgment void on its face. [Citations.] If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face. Such an order must be challenged within the six-month time limit prescribed by section 473, subdivision (b), or by an independent action in equity. [Citations.]” (Pittman, supra, 20 Cal.App.5th at p. 1021, italics added.)

2. The default judgment in this case is not void and therefore was not subject to being set aside pursuant to section 473, subdivision (d).

As indicated, Boger’s second motion to set aside the default judgment was brought pursuant to section 473, subdivision (d). Boger contends he is entitled to relief because the default judgment is void on its face “for lack of subject matter jurisdiction” and therefore the default judgment could be set aside at any time irrespective of any lack of diligence by him in seeking relief. Boger’s theory of voidness rests on his claim that the original complaint “failed to state facts sufficient to constitute a cause of action against [him] and neither of the subsequent [first or second amended complaints], which were not served on Boger, cure this defect.” Boger argues that the same allegations that the trial court found to be deficient in connection with the demurrers by the other defendants cannot legally be the basis for entering a default judgment against him.

Boger also contends, for the first time on appeal, that the default judgment is void because Sky failed to “offer any significant evidence to support it[s] damage claims.”

The problem for Boger is that these asserted claims of error, even if meritorious, would not render the judgment void, which is a prerequisite for setting aside a judgment under section 473, subdivision (d). (Pittman, supra, 20 Cal.App.5th at p. 1020.)

Boger’s arguments conflate legal error with jurisdictional error of the type that would render a judgment void. As the Supreme Court explained in In re Marriage of Goddard (2004) 33 Cal.4th 49 (Goddard), “it is helpful to observe that jurisdictional errors can be of two types. A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable. [Citations.] . . . [¶] . . . [M]ost procedural errors are not jurisdictional. [Citations.] Once a court has established its power to hear a case, it may make errors with respect to areas of procedure, pleading, evidence, and substantive law. (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 278, p. 843; see also Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control (1961) 55 Cal.2d 728, 731 [‘ “ ‘[j]urisdiction [over the subject], being the power to hear and determine, implies power to decide a question wrong as well as right’ ” ’]; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950 [‘Thus, a failure to state a cause of action [citations], insufficiency of evidence [citations], abuse of discretion [citations], and mistake of law [citations] have been held nonjurisdictional errors . . . .’].)” (Goddard, supra, 33 Cal.4th at p. 56, italics added.)

Consequently, the alleged errors now asserted by Boger, namely, the failure of the complaint to state a cause of action and the insufficiency of the evidence to support the default judgment, even if established by him, would merely amount to nonjurisdictional errors (Goddard, supra, 33 Cal.4th at p. 56), and therefore would not render the default judgment void. As discussed, a judgment is void only if the court “lack[s] fundamental authority over the subject matter, question presented, or party” (ibid.), and a trial court “ ‘has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.’ [Citation.]” (Lee v. Ann (2008) 168 Cal.App.4th 558, 563; accord, Pittman, supra, 20 Cal.App.5th at p. 1020.) Here, the default judgment could not be set aside as void because the trial court had personal jurisdiction over the parties, as established by Boger I, and also had jurisdiction over the subject matter of this civil action. Accordingly, the trial court did not err in denying Boger’s second motion to vacate the default judgment pursuant to section 473, subdivision (d).

3. Other issues not reached.

Because arguments concerning the inadequacy of the pleading or the insufficiency of the evidence do not implicate the trial court’s fundamental authority to decide the matter (Goddard, supra, 33 Cal.4th at p. 56), they are not cognizable on a motion to vacate a judgment as void pursuant to section 473, subdivision (d). Therefore, we do not reach those issues.

It also is unnecessary to address whether Boger’s second motion to vacate the judgment was barred by the trial court’s July 12, 2016 order denying Boger’s previous motion to vacate the judgment as void, and this court’s affirmance of that order in Boger I. We note, however, that “[t]he rule allowing an aggrieved party to challenge an order void on its face at any time does not mean a party may perpetually move to vacate the order until he or she receives a favorable ruling. ‘ “Somewhere along the line, litigation must cease.” ’ (Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.)” (Pittman, supra, 20 Cal.App.5th at p. 1021, fn. 13 [admonishing that any subsequent attempt by appellant to challenge the validity of the trial court’s order would run afoul of the principles of issue and claim preclusion and would expose appellant to sanctions under section 128.5].)

DISPOSITION

The March 1, 2019 order denying Boger’s motion under section 473, subdivision (d), to vacate the default judgment is affirmed. Albert shall recover his appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

DHANIDINA, J.