Filed 1/30/20 Pipitone v. Noorasmai CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PAM PIPITONE,

Plaintiff and Respondent,

v.

HABIB NOORASMAI,

Defendant and Appellant.

H045821

(Monterey County

Super. Ct. No. M114411)

Respondent Pam Pipitone brought suit against appellant Habib Noorasmai for conspiracy in the wrongful death of her daughter. Although Noorasmai answered Pipitone’s complaint, he subsequently elected to represent himself in the litigation and stopped participating in it. Several years after Pipitone secured a substantial default judgment against him, Noorasmai hired a lawyer and moved to set aside the default judgment. Due to the lapse of time and Noorasmai’s inability to show any fraud preventing him from participating in the litigation leading up to the default judgment, the trial court denied Noorasmai’s set-aside motion.

Noorasmai appeals, arguing the trial court erred in entering the default judgment against him and in its postjudgment order. Concluding we have no jurisdiction to review the original default judgment and finding no abuse of discretion in the trial court’s refusal to set it aside, we dismiss Noorasmai’s appeal of the default judgment and affirm the trial court’s order denying Noorasmai’s set-aside motion.

I. FACTS AND PROCEDURAL BACKGROUND

In 2010, Pipitone’s daughter was murdered. Pipitone’s son-in law was charged with the crime but committed suicide in jail prior to his trial. In 2011, Pipitone brought a civil suit against five individuals, including Noorasmai, in Monterey County Superior Court (trial court). This appeal involves only Pipitone’s suit against Noorasmai.

Pipitone’s complaint alleged a cause of action against Noorasmai titled “Conspiracy to Commit Murder” in which she alleged that Noorasmai and two other individuals, in furtherance of their “common plan” and “conspiracy” to murder her daughter, helped the murderer conceal, transport, hide, dismember, and dispose of her daughter’s body. Noorasmai, represented by counsel, answered Pipitone’s complaint in 2012 and denied all allegations. In 2013, Noorasmai filed in the trial court a substitution of attorney form indicating he was now representing himself. Noorasmai listed on the form a mailing address on Bluebird Loop in Fremont, California.

Pipitone served Noorasmai with all subsequent papers at the Fremont address. Noorasmai did not respond to any discovery requests from Pipitone, despite a court order that he do so. Ultimately, Pipitone moved in the trial court for an order imposing sanctions on Noorasmai, striking Noorasmai’s answer, and entering a default against him. The trial court heard Pipitone’s motion in April 2014. Noorasmai did not respond to the motion or appear in court. In May 2014, the trial court issued an order granting Pipitone’s motion to strike Noorasmai’s answer and ordered the clerk of the court to enter a default against him.

Two years later, in February 2016, the trial court conducted a default prove-up hearing. Noorasmai did not appear at the hearing, and he did not file any papers in connection with it. Pipitone, who was then 53 years old, testified about the loss of emotional and financial support caused by her daughter’s death. At the hearing, Pipitone’s counsel cited the loss calculations contained in the declaration of Pipitone’s expert, which were $40,205 in economic loss, and $800,000 for loss of support and solace (calculated by multiplying $25,000 per year by 32 years, based on projections of Pipitone’s life expectancy). The trial court granted “judgment as prayed, $840,205.” At the prove-up hearing, the trial court did not ask Pipitone or her counsel any questions about the cause of action against Noorasmai and did not make any findings that Pipitone had properly pleaded a cause of action against him. On March 1, 2016, Pipitone’s counsel filed a notice of entry of judgment with the trial court.

Prior to the February 2016 prove-up hearing for Pipitone’s default judgment against Noorasmai, in 2014 and 2015 the trial court had granted summary judgment to Noorasmai’s codefendants Crow, Williams, and Donovan. Unlike Noorasmai, these codefendants participated in the litigation in the trial court, where they were represented by counsel.

In February 2018, Noorasmai served on Pipitone’s counsel and counsel for codefendants Donovan and Williams a substitution of attorney showing that he had hired an attorney to represent him in the litigation. Now represented by counsel, on February 5, 2018, Noorasmai filed a motion to set aside the default and default judgment that had been entered approximately two years earlier. In his set-aside motion, Noorasmai contended he had not been served with “the statement of damages” and “the default judgment prove-up packet” and had only learned about the judgment “recently.” The parties filed various documents in the trial court supporting and disputing Noorasmai’s contention that he had not been properly served with the relevant filings.

On March 2, 2018, the trial court heard Noorasmai’s motion to set aside the default and default judgment. The trial court noted it was struggling with “the period of time that has gone by” and the fact that “the only way that we know that defendant could have been contacted is by the address [in Fremont] that he has on file with the court, following the substitution of attorney, back in 2012.” The trial court observed “it’s now been two years since the Entry of Default was served on the defendant, with the amounts and everything in that order.” The trial court stated that Noorasmai had filed an answer and then “basically ignored all this paperwork that was served on him.”

Noorasmai’s counsel responded that he understood that “the time is an issue” and “the Court is correct in a sense” but asserted that the trial court had “inherent power” that did not require a time period if it was “dealing with, quote, ‘fraud and mistake,’ unquote, which is broadly construed.” When questioned about the basis for Noorasmai’s claim of extrinsic fraud, Noorasmai’s counsel contended “plaintiff or plaintiff’s counsel should have been candid with the court and said, ‘We have two coconspirators.’ [¶] Donovan, which is the girlfriend of the – of Mr. Crow, who murdered his wife. And they had no evidence of conspiracy that Donovan, the ex-girlfriend—the girlfriend, participated in the murder.” The trial court had granted summary judgment in favor of Donovan and in the “same way” there was “absolutely no evidence” that Noorasmai was liable.

At the conclusion of the March 2, 2018 hearing, the trial court denied Noorasmai’s motion to set aside the default judgment. The court noted that its decision was “based on the fact that, giving all credence to defendant’s arguments, with respect to allowing an argument for mistake or fraud at this late date, the Court would, based on the law and the case law, would find that mistake or fraud really goes to mistake or fraud in responding to the documents, the Entry of Default Judgment, the hearing, the Motion to Compel Discovery, where the Answer was stricken. [¶] If there had been some fraud or mistake which could be shown, that defendant was unable to respond for that reason, the Court would consider that. [¶] The Court does not consider the argument that he was not at the address that he gave to the court. It’s the only address of record that we have for the defendant. It’s the only address of record that plaintiff’s counsel has.” The trial court thus rejected by implication Noorasmai’s argument that the default judgment was “void” based on lack of service or any other grounds.

The trial court also impliedly rejected Noorasmai’s argument that, by failing to discuss the summary judgment proceedings involving the other codefendants, Pipitone’s counsel had committed extrinsic fraud, justifying a set aside of the default judgment. The trial court stated, “It’s now March 2018. The motion was filed within two years. But there really is just no explanation for the defendant’s delay in responding to any of these documents over the last now six years.” On April 11, 2018, the trial court issued its written order denying Noorasmai’s motion to set aside the default and default judgment.

On appeal, Noorasmai argues that the trial court erred in entering the default judgment in 2016, asserting that it failed in its duty “to act as a gate keeper” because the complaint failed to plead a cognizable legal claim of conspiracy, and the trial court had before it no evidence of Noorasmai’s liability. Noorasmai also challenges the trial court’s 2018 order denying his motion to set aside the default judgment. Noorasmai contends the trial court abused its discretion by not setting aside the judgment on equitable grounds, arguing there was no evidence he conspired to commit murder and the underlying judgment was procured through “fraud upon the court.” Specifically, Noorasmai argues “the fraud consisted of the plaintiff’s attorneys misleading the court and obtaining a huge judgment when they knew that [Noorasmai] (just like co-conspiratory [sic] Donovan) did not conspire to murder” the victim. Noorasmai maintains it was a “manifest injustice” not to set aside the judgment, notwithstanding that his set-aside motion was “late,” because “there was no evidence that [Noorasmai] conspired with [Pipitone’s son in law] to murder [the victim].”

II. DISCUSSION

A. Appeal of the 2016 Default Judgment

Noorasmai contends the trial court erred in 2016 by entering the default judgment against him. In particular, Noorasmai argues the trial court committed error because it was required, before entering the default judgment, to fulfill its “gatekeep[ing]” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1012), role by finding the complaint was “ ‘well pleaded.’ ” (Id. at p. 1015; see also Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282 [noting “if the well-pleaded allegations of the complaint do not state any proper cause of action, the default judgment in the plaintiff’s favor cannot stand”].) Noorasmai maintains the complaint was not well pleaded because conspiracy does not state a cause of action, and the complaint contained no allegation that Noorasmai did anything other than help dispose of the victim’s body which, on its face, is insufficient to constitute a conspiracy to murder. (See Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511 [“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration.”].)

Whatever the merits of these contentions, we lack jurisdiction to consider them in light of the two-year delay between the trial court’s entry of default judgment and Noorasmai’s filing of his notice of appeal on May 4, 2018. (See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137 (Shapiro) [concluding that this court had jurisdiction to review an order conditionally granting relief from default but that the appeal as to the underlying judgment was not timely].)

We turn to the California Rules of Court for the applicable time in which to file an appeal. Rule 8.104 provides that “a notice of appeal must be filed on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “ ‘Notice of Entry’ ” of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “ ‘Notice of Entry’ ” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.” (Rule 8.104.) This rule is jurisdictional. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372–373; Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 [noting in the context of an appeal from a default judgment, “[i]f the appeal is untimely, this court has no jurisdiction to consider it, and it must be dismissed”].)

There is no evidence in the record that the superior court clerk served the judgment on Noorasmai, and the record does not establish when Pipitone served the notice of entry of judgment on him. Therefore, we apply rule 8.104(c) and conclude that Noorasmai had 180 days after the entry of the default judgment on February 25, 2016, to file his notice of appeal from it. Noorasmai’s time to appeal the default judgment expired on August 23, 2016.

Noorasmai’s notice of appeal of the default judgment, filed on May 4, 2018, was manifestly untimely. As Noorasmai’s time to appeal the default judgment has long expired, we lack jurisdiction to consider it. We therefore do not reach the merits of Noorasmai’s claims that the trial court erred when it entered the default judgment against him, including his assertion that the trial court erred by failing to consider whether Pipitone’s cause of action against Noorasmai stated a legal claim.

In a supplemental letter brief filed with the court, Noorasmai contends his appeal of the default judgment is timely. He asserts “[t]he motion to set aside the default judgment was filed within 2 years of its entry. [Citation.] That extends the time to file the appeal for the underlying judgment.” Noorasmai cites no authority for this proposition, and the deadlines set forth in the rules provide no such exception.

Noorasmai attempts to distinguish the decision in Shapiro, in which this court held it had no jurisdiction to review a default judgment from which the appellant filed an untimely notice of appeal. (Shapiro, supra, 164 Cal.App.4th at p. 1137.) Noorasmai’s arguments against the applicability of Shapiro are unavailing, because they rest on legal and factual distinctions not relevant to this court’s jurisdictional analysis.

For these reasons, we conclude Noorasmai did not timely appeal the 2016 default judgment, and therefore we do not have jurisdiction to consider Noorasmai’s contentions of error related to it. We dismiss Noorasmai’s appeal of the default judgment.

B. Appeal of the 2018 Order Denying Relief from the Default Judgment

We do have jurisdiction to review the trial court’s April 2018 order denying Noorasmai’s motion to set aside the default and default judgment. This postjudgment order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2) (see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea)), and Noorasmai filed a timely notice of appeal. We therefore consider the merits of his contentions.

We review the trial court’s order denying relief from the default judgment for abuse of discretion. “On appeal from an order denying relief from default or a default judgment, we will not disturb the trial court’s factual findings where they are based on substantial evidence.” (Warren v. Warren (2015) 240 Cal.App.4th 373, 377.) We may not substitute our judgment for that of the trial court and must defer to the trial court’s express or implied findings if they are supported by substantial evidence. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143.) We are mindful that “[h]owever strong the preference for a trial on the merits, there are limits to that preference and however great is trial court discretion, there are bounds to that discretion.” (Iott v. Franklin (1988) 206 Cal.App.3d 521, 527.)

Noorasmai’s primary argument against the trial court’s order is that the court erred in its determination that the judgment should not be set aside due to extrinsic fraud. Before considering that contention, however, we briefly address Noorasmai’s assertion in his reply brief and supplemental letter brief that the default judgment was “void” under section 473, subdivision (d).

Section 473, subdivision (d), provides that “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” “ ‘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.’ ” (Lee v. An (2008) 168 Cal.App.4th 558, 565.) “ ‘The difference between a void judgment and a voidable one is that a party seeking to set aside a voidable judgment or order must act to set aside the order or judgment before the matter becomes final.’ ” (Id. at pp. 565–566.) “ ‘A trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void.’ ” (Id. at p. 563.)

Noorasmai contends that the default judgment was void because the judgment lacked evidentiary support, the complaint did not state a cause of action, and Pipitone did not file a statement of damages with the trial court. Even assuming for the sake of argument that these asserted claims of error have merit, none goes to the trial court’s “ ‘fundamental authority’ ” over the parties and the subject matter of the complaint. Therefore, these asserted procedural or legal errors render the default judgment voidable, not void. (See Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98 [failure to “follow proper procedure” by awarding terminating sanctions on an ex parte basis]; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950 [failure to state a cause of action and insufficiency of evidence].) Thus, the trial court did not err in impliedly concluding the default judgment was not “void” when it denied Noorasmai’s set aside motion.

Noorasmai’s principal contention on appeal is that the trial court erred in its order denying his motion to set aside the default judgment because the default judgment had been procured through “fraud on the court.” He asserts Pipitone’s lawyers lied to the court when they did not tell it that there was no evidence that Noorasmai had conspired in the victim’s wrongful death. According to Noorasmai, Pipitone’s counsel should have told the trial court (presumably when counsel was requesting entry of the 2016 default judgment) that the trial court had already granted summary judgment for a “similarly situated co-conspirator” (i.e. Donovan). Noorasmai claims this conduct constituted “extrinsic fraud” sufficient to overturn the default judgment, and the trial court abused its discretion in failing to do so.

A motion to set aside a default judgment based on extrinsic fraud “may be made at any time, provided the party acts with diligence upon learning of the relevant facts.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.) “We review for abuse of discretion the trial court’s decision whether to grant relief from default judgment under its inherent equity jurisdiction.” (Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 749 (Rodriguez).)

“[A]n otherwise valid and final judgment may only be set aside if it has been obtained through extrinsic, not intrinsic, fraud. [¶] Fraud is extrinsic where the defrauded party was deprived of the opportunity to present their claim or defense to the court, that is, where they were kept in ignorance or in some other manner, other than from their own conduct, fraudulently prevented from fully participating in the proceeding.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068.) “Relief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action.” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.) “Additionally, the party seeking equitable relief on the grounds of extrinsic fraud or mistake must show three elements: (1) a meritorious defense; (2) a satisfactory excuse for not presenting a defense in the first place; and (3) diligence in seeking to set aside the default judgment once discovered.” (Rodriguez, supra, 236 Cal.App.4th at p. 750.) Regarding the determination of extrinsic fraud, “a determination of extrinsic evidence is accepted on appeal if supported by substantial evidence [citation], in which case all reasonable inferences from substantial evidence are also drawn in favor of the judgment.” (Estate of Carter (2003) 111 Cal.App.4th 1139, 1154.)

These authorities make clear that the threshold showing for equitable relief is whether the alleged fraud prevented the aggrieved party from participating in the action. Here, substantial evidence supports the trial court’s finding that Noorasmai did not make such a showing. Noorasmai filed an answer while represented by counsel and then elected to represent himself for several years. Noorasmai provided to the trial court an address in Fremont, at which, according to the declaration from Pipitone’s counsel, he was served with all filings and orders. While Noorasmai submitted a declaration in the trial court that he did not live in Fremont, the trial court implicitly did not credit the declaration when it denied Noorasmai’s motion, a credibility determination that we do not reweigh on appeal. As the trial court aptly observed when refusing to set aside the default judgment, Noorasmai filed an answer and then “basically ignored all this paperwork that was served on him.” Under these circumstances, Noorasmai did not carry his burden of showing extrinsic fraud that prevented his participation in the litigation.

Noorasmai argues that Pipitone’s counsel should have disclosed to the trial court in the default judgment prove-up hearing that the trial court had already granted summary judgment to his codefendants. Even assuming such a lack of candor towards the court occurred, Noorasmai does not explain how this fraud prevented him from participating in the proceeding or deprived him of the opportunity to present this argument. Moreover, at the default prove-up hearing, “evidence” of liability is immaterial. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 898 [“[I]n a default situation such as this, if the complaint properly states a cause of action, the only additional proof required for the judgment is that needed to establish the amount of damages.”].)

Noorasmai generally argues that he should be treated similarly as his codefendant Donovan, who received summary judgment in her favor. In his view, it was “manifest injustice to not apply the same logic, the same law and the same facts by ruling in favor of Appellant.” Noorasmai does not provide any authority supporting this contention or his request to unsettle a final judgment on this basis. Furthermore, in arguing he stands in the same shoes as his former codefendant Donovan, Noorasmai does not address the critical distinction between himself and his former codefendants Donovan, Crow, and Williams—namely that they participated in the civil action and complied with the judicial process. Noorasmai, on the other hand, ignored discovery (leading to the sanction of striking his answer) and thereafter ignored all the paperwork Pipitone served on him. That their judgments differ is a fate that Noorasmai has inflicted on himself by failing to respond to discovery and by refusing to participate in the civil process for several years. (McClain v. Kissler (2019) 39 Cal.App.5th 399, 423 (McClain).)

The California Supreme Court has stated that “[w]hen a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ‘[W]hen relief under section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ ” (Rappleyea, supra, 8 Cal.4th at pp. 981–982.) Noorasmai’s choice to act as his own attorney over the course of several years in the trial court does not afford him leeway to set aside the default judgment. In Rappleyea, the California Supreme Court also made clear “that mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Id. at pp. 984–985.)

We understand Noorasmai’s contention that it is unfair that only he among his codefendants should be liable for a large money judgment to Pipitone where the evidence against him was weak or (in his view) non-existent. Nevertheless, we decline to find on this basis that the trial court abused its discretion in denying Noorasmai relief. As the First District Court of Appeal observed recently in McClain, “[c]ountenancing a litigant’s blatant disregard of the judicial process and rules has serious downsides. It invites other litigants to ignore the laws and rules and renders the process unfair to most other litigants and counsel who endeavor to comply with them. It also undermines trial courts’ ability to manage their caseloads and, in turn, to serve other litigants in a timely way.” (McClain, supra, 39 Cal.App.5th at p. 424.)

For these reasons, we conclude the trial court did not abuse it discretion in denying the request to set aside the default judgment on equitable grounds.

III. DISPOSITION

The order denying relief from default and default judgment is affirmed. The appeal from the 2016 default judgment is dismissed. Respondent Pipitone is awarded her costs on appeal.
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H045821

Pipitone v. Noorasmai