Case Number: MC014193    Hearing Date: July 24, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

GABRIELA C. BIBIAN, )
) Case Number MC 014193
Plaintiff, )
) ORDER AFTER HEARING
vs. )
) Date of Hearing:
MICHAEL BOOTH, ) July 24, 2014
) Dept. A-11
Defendant. ) Judge Randolph A. Rogers
____________________________________)

The application of Defendant Michael Booth to vacate renewal of judgment came on for hearing on July 24, 2014. Plaintiff Gabriela C. Bibian appeared through her counsel of record, _______________. Defendant Michael Booth [ ] appeared [ ] failed to appear in pro per. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The application of Defendant to vacate renewed judgment is GRANTED and the renewed judgment is VACATED.

SO ORDERED this the _____ day of July, 2014.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

GABRIELA C. BIBIAN, )
) Case Number MC 014193
Plaintiff, )
) STATEMENT OF DECISION
vs. )
) Date of Hearing:
MICHAEL BOOTH, ) July 24, 2014
) Dept. A-11
Defendant. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The underlying case, an action to specifically enforce an agreement to purchase real property, was filed in November 8, 2002 by Plaintiff Gabriela Bibian (“Plaintiff”) against Defendant Michael Booth (“Defendant”).

2. On June 9, 2003, Plaintiff filed a Request for Entry of Default on the pertinent Judicial Council Form, which form specifically states, “Form Adopted for Mandatory Use Judicial Council of California 982(a)(6) [Rev. July 1, 2000].” Default was duly entered by the Clerk of the Court against Defendant on June 9, 2003. Under ¶2, entitled “Judgment to be entered”, at subparagraph a, “Demand of complaint”, Plaintiff entered “TO BE DETERMINED AT HEARING”; under subparagraph d, “Costs”, Plaintiff entered “717.23”; and under subparagraph e, “Attorney fees”, Plaintiff entered “0.00”.

3. Plaintiff submitted her Brief in Support of Default Prove Up (“Brief”) on June 25, 2003, seeking an order for “Plaintiff’s attorney fees and costs be offset against the purchase price of the property.” Brief at 5:26-27. The precise amount claimed is unclear, Brief at Exhibit G, but an interlocutory order dated June 25, 2003, awarded $9,698.08 in attorney’s fees to Plaintiff, requiring it to be offset against the purchase price of the underlying case.

4. On October 20, 2003, Plaintiff procured a Second Interlocutory Judgment for Specific Performance, by which the Court Ordered to Clerk of the Court to execute a Grant Deed on behalf of Defendant in favor of Plaintiff of the subject real property and further awarded an increase the attorney’s fee award of $3,210.61, to a total of $12,908.69.

5. On August 19, 2004, Plaintiff secured a Final Judgment which noted that title to the subject real property had been conveyed to the Plaintiff through escrow and awarding her an additional $5,729.16 in attorney fees and costs, for total award of attorney’s fees and costs of $18,637.85. The Final Judgment further states that prior award of $12,908.69 had already paid through escrow by deducting it from the purchase price, leaving a balance owed by Defendant to Plaintiff of $5,729.16.

6. On November 19, 2013, Plaintiff filed an application for renewal of judgment, seeking to renew the judgment for $5,729.16, as well as claiming interest after judgment of $5,303.79 and the $30.00 filing fee.

7. On May 12, 2014, Defendant filed a motion to vacate renewal of judgment. The motion was refiled on May 28, 2014. Plaintiff filed her Opposition on May 23, 2014 by fax, with original copies received and filed on May 27, 2014.

8. Code of Civil Procedure §683.170 provides that a renewal may be vacated on any ground that would be a defense to an action on the judgment. CCP §683.170(a).

9. As set forth in California Rule of Court 3.1800 [formerly Rule 388, effective July 1, 2000], the first step to taking a default judgment is filing a Request for Entry of Default on the mandatory Judicial Council form, then form 982(a)(6), now form CIV-100. Of particular importance is what is currently codified as Rule of Court 3.1800(a)(1), which requires that the Request for Entry of Default include “[A] brief summary of the case identifying the parties and the nature of plaintiff’s claim”; subparagraph (a)(6) which requires submission of “A proposed form of judgment”; and subparagraph (a)(9), which requires that the Request for Entry of Default include “A request for attorney fees if allowed by statute or by the agreement of the parties.” [A review of the history of Rule 3.1800 reveals that the aforesaid provisions were carried forward from former Rule 388].

10. As stated by the Court:

“[A] party seeking entry of a default judgment must apply for all of the relief sought – including attorney fees – when application is made for entry of default. [Emphasis added]. This mandate is reflected in rule 3.1800. Rule 3.1800 sets forth the requirements when a party … seeks a default judgment on declarations, as permitted under section 585, subdivision (d). The rule provides that the party must use the mandatory form Request for Entry of Default (Application to Enter Default) (form CIV–100), and must include several items “in the documents filed with the clerk.” (Rule 3.1800(a).) One of those required items is “[a] request for attorney fees if allowed by statute or by the agreement of the parties.” (Rule 3.1800(a)(9).)
….
In short, a default judgment is intended to include all relief sought in the complaint and established by the plaintiff. Therefore, a plaintiff seeking an award of attorney fees from a defaulting defendant must request those fees at the time the plaintiff requests entry of default.”

See, Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479-1480.

11. Here, the Request for Entry of Default filed and served by Plaintiff was defective in at least two particulars: a) It failed to state or otherwise give notice by attaching a proposed judgment that Plaintiff sought a judgment for specific performance of a contract of sale of the subject real property from Defendant to Plaintiff and instead nonsensically stated that the “Demand of the Complaint” was “TO BE DETERMINED AT HEARING”; and b) It failed to include a claim for attorney’s fees and, in fact, affirmatively represented that the amount of attorney’s fees claimed was “0.00”.

12. As stated by the Court:

“Where, as here, a motion to vacate is made more than six months after entry of a judgment, a trial court may grant a motion set aside that judgment as void only if the judgment is void on its face. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441, 29 Cal.Rptr.2d 746; § 473, subd. (d).) “ ‘A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll’. [Citation.]” (Dill v. Berquist Construction Co., supra, at p. 1441, 29 Cal.Rptr.2d 746.

When a judgment by default has been entered, the judgment-roll is limited to the: summons, proof of service of the summons, complaint, request for entry of default, copy of the judgment, notice of any ruling overruling a demurrer interposed by the defendant and proof of service thereof, and, if service was by publication, affidavit for publication and order directing it. ([CCP] § 670, subd. (a).)”

See, Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440, 168 Cal.Rptr.3d 114, 118-119.

13. Inasmuch as the defects recited above are evident from the judgment roll, the default judgment entered herein is void on its face.

14. Furthermore, the Request for Entry of Default filed by Plaintiff is predicated upon a Proof of Service by Publication as authorized by entry of an Order authorizing service by publication entered March 24, 2003. Plaintiff’s Application for Order for Publication of Summons, as filed March 24, 2003, reflects that Notice and Acknowledgment of Receipt, together with the Summons and Complaint, had been mailed to Defendant by certified mail and signed for, but Defendant never returned the acknowledgement of service. The property at issue was occupied by Defendant’s tenants who declined to provide a physical address for Defendant.

15. Inasmuch as the Request for Entry of Default is predicated upon Proof of Service by Publication, Plaintiff could only proceed to actual judgment by procuring a court judgment. As stated by CCP§585(c):

“In all actions where service of the summons was by publication, upon expiration of the time for answering, and upon proof of publication and that not answer [or other responsive pleading] … has been filed, the clerk, upon written application of the plaintiff, shall enter the default of the defendant. The plaintiff thereafter may apply for the relief demanded in the complaint (emphasis added); and the court shall hear the evidence offered by the plaintiff, and shall render judgment in the plaintiff’s favor for that relief, not exceeding the amount stated in the complaint, in the statement required by Section 425.11 [statement of damages in a PI or wrongful death action], or in the statement provided for in Section 425.115 [statement of punitive damages], as appears by the evidence to be just.”

16. The mechanism by which the Plaintiff applies for the relief demanded in the complaint in such a case is the same Judicial Council Form that is used to request entry of default. As stated by a leading authority: “The application for a default judgment is made on the same form as the request for entry of default.” 6 Witkin, Cal. Proc. 5th (2008) PWT, §164. Because the Judicial Council Form includes a requirement that the Defendant be served therewith by mail, Plaintiff was required to not only file, but also serve a Request for Entry of Court Judgment as a predicate for procuring a default judgment in this action. The file does not reflect that Plaintiff ever did so. For this reason also, the judgment at issue is either void or voidable.

17. As stated by the Court:

“Default judgment is a procedural device designed to clear the court’s calendar and files of those cases which have no adversarial quality. In order to reach the default stage, a party must follow certain well-defined rules which ensure that a defendant has sufficient knowledge of the pending action. Of course, a defendant may choose to vigorously defend or simply ignore the plaintiff’s claims. The rules governing default judgment provide the safeguards which ensure that defendant’s choice is a fair and informed one.

Because default judgment ends the controversy, the rules leading to it are precise and should be followed to the letter. Where a plaintiff fails to adhere to those rules, a defendant need not suffer the consequences a default judgment brings.”

See, Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 928, 206 Cal.Rptr. 924, 927.

18. Accordingly, Defendant’s motion to vacate renewed judgment is GRANTED, and the renewed judgment is VACATED and of no further force or effect.

SO ORDERED AND ADJUDGED this the ______ day of July, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE