California Court of Appeal Nov 26, 2014 No. E058508Unpublished
Filed 11/26/14 Brown v. Anderson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
MARLENE BROWN,
Plaintiff and Respondent, E058508
v. (Super.Ct.No. CIVRS1111098)
JOHN ANDERSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Keith D. Davis,
Judge. Affirmed.
Ritchie, Klinkert & McCallion, James E. Klinkert and Paul J. Gutierrez for
Defendant and Appellant.
Prenovost, Normandin, Bergh & Dawe, Tom R. Normandin and Nichole M. Wong
for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant and appellant, John Anderson (Anderson), appeals from the trial court’s
order denying his motion to set aside default and default judgment entered in favor of
plaintiff and respondent, Marlene Brown (Brown). Anderson contends: (1) the default
judgment was entered as a result of mistake, inadvertence, surprise, or excusable neglect
and the trial court abused its discretion by denying his motion to set aside the default
judgment under Code of Civil Procedure section 473, subdivision (b);1 (2) the service of
the summons did not result in actual notice to Anderson and the trial court abused its
discretion by denying his motion to set aside the default judgment under section 473.5;
(3) the default judgment was void for Brown’s failure to serve a statement of damages as
required by sections 425.11 and 425.115; (4) the amended default judgment improperly
authorizes self-help, granting Brown the power to act outside the law; and (5) the
amended default judgment is fatally vague. We reject these arguments and affirm the
court’s order.
II. STATEMENT OF FACTS
Brown and Anderson are tenants in common of certain commercial real property
located in Upland (the Property). Anderson has allegedly occupied and used a portion of
the Property to stockpile tractor trailers, vehicles, mechanical equipment, oils, chemicals,
and rubbish. According to Brown, such use violates certain provisions of the Upland
1All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
2
Municipal Code and constitutes a nuisance. In February 2008, Brown received a notice
of the code violations from the Upland Police Department.
On November 22, 2011, Brown’s attorney, Nichole M. Wong, sent Anderson a
letter informing him that his storage of vehicles, equipment, oils, chemicals, and rubbish
on the Property constituted a nuisance, and that the City of Upland had demanded that the
items be cleared. Wong also demanded that Anderson remove all illegally stored items
from the Property. She further stated that a lawsuit would be filed if there was no
response to her letter within 30 days. The letter was addressed to Anderson at the
Property and sent certified mail, return receipt requested. Anderson signed the undated
receipt.
Brown filed a verified complaint commencing the underlying action on December
29, 2011. The complaint includes a single cause of action described as “Damages
Preliminary and Permanent Injunction (Nuisance).” Brown alleged she and Anderson
were tenants in common of the Property, Anderson’s unlawful use of the Property, the
City of Upland’s notice of code violations, her demand that Anderson abate the nuisance
he had caused on the Property, and Anderson’s refusal to do so. Brown’s prayer for relief
included: (1) “a preliminary and a permanent injunction enjoining Anderson . . . from
maintaining any items on the premises”; (2) general damages; (3) punitive damages; (4)
attorney fees and costs of suit; and (5) “such other and further relief as the Court may
deem proper.”
3
On January 12, 2012, Attorney James E. Klinkert sent a letter to Wong stating that
he represented Anderson and had received Wong’s November 22 letter. Klinkert stated
that Anderson “undertook clean-up activities at his own expense” in response to an
earlier notice of violation in 2008 and that there were no code enforcement actions
pending. Klinkert further stated that Anderson had requested that further
communications be sent to Klinkert.
Wong contacted Klinkert to discuss the matter and asked if he would accept
service of the complaint on behalf of Anderson. Klinkert refused, but asked Wong to e-
mail a copy of the complaint to him.
On March 20, 2012, Wong sent Klinkert an e-mail attaching the summons and
complaint, and asking if he would accept service on Anderson’s behalf by notice and
acknowledgment. Klinkert did not respond.
Between February 28, 2012 and April 13, 2012, a process server made 17
unsuccessful attempts to personally serve the summons and complaint on Anderson at the
Property. The efforts included a three-hour stakeout at the Property on April 7, 2012, and
a two-hour stakeout on April 13, 2012. A skip tracer conducted an investigation to locate
another address for Anderson. The skip tracer concluded that Anderson’s only address
was the address for the Property.
Brown applied for an order permitting service by publication. The court granted
the application on May 24, 2012. Service on Anderson by publication was completed on
July 4, 2012. Anderson did not file a response to the complaint.
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On August 20, 2012, the trial court granted Brown’s request to enter Anderson’s
default.
A default prove-up hearing was held on January 11, 2013. Following the hearing,
judgment was entered in favor of Brown and against Anderson. The judgment provided
that Anderson was “required to remove all items of any kind including but not limited to:
trailers, vehicles, scrap metal, building material, etc. from all unpaved areas on the
[Property].” It further required Anderson “to maintain all unpaved areas of the Property
in a condition that is clear of all items of any kind including but not limited to: trailers,
vehicles, scrap metal, building material, etc., at all times henceforward.” The judgment
did not provide for an award of damages.
On January 22, 2013, Klinkert filed on Anderson’s behalf a motion to set aside the
default and judgment. In addition to relying on sections 473, subdivision (b), and 473.5,
Anderson argued that the judgment was void because Brown never served a statement of
damages pursuant to sections 425.11 and 425.115. In support of his motion, Anderson
submitted a declaration stating: “Even though I have been generally available at the
address of the subject property during this past year, I was never served with any
summons and complaint, statement of damages or any other papers in connection with
this matter. Likewise, I was not aware of any service by publication until after I received
the Request for Entry of Default.” Klinkert submitted his own declaration stating that the
“delay in bringing this motion is my fault . . . .” However, he did not indicate that the
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entry of default or the default judgment was due to his mistake, inadvertence, surprise, or
neglect.
Three days after the set-aside motion was filed, Wong filed a declaration in
support of an amended judgment. According to Wong, “additional relief was needed in
the judgment in order to ensure that the items creating the violation of the City of
Upland’s Municipal Code were removed from the unpaved areas of the [Property].”
Rather than seeking a contempt order against Anderson for failure to remove the items,
Wong believed “it would be best to provide for notice and a specific time for Mr.
Anderson to remove the items, the expiration of which would create a right in [Brown] to
have the items removed . . . .” Wong submitted a proposed amended judgment adding a
provision that would permit Brown to “use any means necessary to remove and dispose
of all items from the unpaved areas of the Property” if Anderson is served with the
amended judgment and fails to remove “all of his items from all unpaved areas of the
Property within ninety (90) days . . . .” The court signed and entered the amended
judgment as proposed on January 28, 2013.
Anderson’s motion to set aside the default and judgment was heard on March 6,
2013. At the hearing, the court stated that Anderson’s statement of general availability
did “not seem . . . to comport” with the numerous attempts to serve Anderson at the
Property.2 The court also observed that Anderson’s declaration was silent as to where
2 The court stated that the process server went out to the Property to serve Anderson on 20 different occasions. Although the process server’s declaration includes 20 events, three of them refer to a single, three-hour stakeout and two refer to a different, [footnote continued on next page]
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Anderson might have been on the dates the process server appeared at the Property to
serve him. Anderson, in short, failed to satisfy his burden under sections 473,
subdivision (b), and 473.5 of demonstrating that his lack of actual notice was a result of
mistake, inadvertence, surprise, or excusable neglect.
The court also rejected Anderson’s argument, under section 473, subdivision (d),
that the judgment was void for failure to serve a statement of damages, stating: “This is
not a matter in which damages were sought either in reviewing the initial complaint or
the matter in which ultimately damages were awarded.”
At the hearing, Klinkert raised another “problem with the judgment.” He asserted
that the language added in the amended judgment suggested that Brown could unlawfully
engage in self-help by removing items from the Property herself. The court declined to
address the argument because it had not been raised in Anderson’s moving papers.3
The record is silent as to whether Brown has begun enforcement of the judgment.
[footnote continued from previous page] two-hour stakeout. The declaration actually refers to 17 different occasions when the process server went to the Property.
3 At the time Anderson filed his motion, the amended judgment with the offensive self-help provision had not yet been proposed or filed. Anderson could not, therefore, have raised the argument at that time. After the amended judgment was filed, Anderson did not file a new or supplemental motion alleging self-help as a ground for relief.
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III. DISCUSSION
A. Anderson’s Motion to Set Aside the Default Judgment Was Properly Denied Under
Sections 473, Subdivision (b) and 473.5
Anderson contends the court erred in denying his motion to set aside the judgment
under sections 473, subdivision (b) and 473.5. Because the trial court’s ruling was not an
abuse of discretion, we reject his arguments.
Section 473, subdivision (b) provides, in pertinent part: “The court may, upon any
terms as may be just, relieve a party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.” “‘The only occasion for the application of
section 473 is where a party is unexpectedly placed in a situation to his injury without
fault or negligence of his own and against which ordinary prudence could not have
guarded.’ [Citation.]” (Hearn v. Howard, supra, 177 Cal.App.4th at p. 1206, italics
added.) Under section 473.5, a default judgment may be set aside when the service of the
summons did not result in actual notice to a party (§ 473.5, subd. (a)); the party seeking
relief must “provide an affidavit showing under oath that his or her lack of actual notice
in time to defend was not caused by inexcusable neglect or avoidance of service.”
(Anastos v. Lee, supra, 118 Cal.App.4th at p. 1319.)
While the requirements to set aside a default judgment under section 473,
subdivision (b) vary somewhat from that required under section 473.5, we address them
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together because the basic showing by Anderson under both statutes is one of “excusable
neglect.”
“‘[B]ecause the law strongly favors trial and disposition on the merits, any doubts
. . . must be resolved in favor of the party seeking relief from default [citations].’
[Citations.] For that reason, ‘a trial court order denying relief is scrutinized more
carefully than an order permitting trial on the merits.’ [Citation].” (Huh v. Wang (2007)
158 Cal.App.4th 1406, 1419-1420.) Both statutes are to be liberally applied to carry out
the policy of permitting trial on the merits. (8 Witkin, Cal. Procedure (5th ed. 2008)
Attack on Judgment in Trial Court, § 144, pp. 735-737; Ramos v. Homeward Residential,
Inc. (2014) 223 Cal.App.4th 1434, 1444.)
The party seeking relief bears the burden of proof in establishing a right to relief.
(Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1205; see Ramos v. Homeward
Residential, Inc., supra, 223 Cal.App.4th at p. 1444 [noting that when a party in default
moves promptly to seek relief under § 473.5, very slight evidence is required to justify a
trial court’s order setting aside a default].) Under section 473, subdivision (b), the
moving party “‘“must show a satisfactory excuse for his default . . . .”’” (Huh v. Wang,
supra, 158 Cal.App.4th at p. 1420.) Under section 473.5, the moving party must show
“that his or her lack of actual notice in time to defend was not caused by inexcusable
neglect or avoidance of service.” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1319.)
Whether the moving party has successfully carried his burden under the two
statutes is a question entrusted in the first instance to the discretion of the trial court; its
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ruling will not be disturbed in the absence of a demonstrated abuse of that discretion.
(Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 534-535; Shapiro v. Clark (2008) 164
Cal.App.4th 1128, 1139-1140.) “The appropriate test for abuse of discretion is whether
the trial court exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no authority to substitute
its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-
479.)
Clearly, one who avoids service cannot claim excusable neglect. In Khourie,
Crew & Jaeger v. Sabek, Inc. (1990) 220 Cal.App.3d 1009, the court affirmed the trial
court’s denial of relief under section 473 for a party that avoided service by refusing to
allow the process server through a locked door. The court stated: “It is established that a
defendant will not be permitted to defeat service by rendering physical service
impossible.” (Id. at p. 1013.)
Here, the trial court did not abuse its discretion in determining that Anderson
failed to demonstrate excusable neglect or that his lack of actual knowledge of the
pending litigation was not the result of his avoiding service of process. The service by
publication was supported by 17 specific instances of attempted personal service on
Anderson at the Property, including two instances of multiple hour stakeouts. These
attempts occurred over a 10-week time span. As the trial court indicated, the evidence
demonstrated a pattern of not responding to or answering the process server. As the trial
court also stated, Anderson failed to specifically address why he was unavailable on the
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occasions when the process server attempted service despite being “generally available at
the address” during that period of time. Based on the evidence of the process server’s
numerous attempts and Anderson’s failure to explain his unavailability during that time
span, the court could reasonably conclude that Anderson failed to meet his burden to
obtain relief under sections 473, subdivision (b), and 473.5. The court did not, therefore,
abuse its discretion in denying Anderson’s motion.
B. Anderson’s Motion to Set Aside the Default Judgment Under Section 473, Subdivision
(d) Was Properly Denied
Anderson contends that both the judgment and amended default judgment are void
because he was not notified prior to the entry of default of the amount of damages being
sought by Brown. We reject the argument.
“The court may, upon motion of the injured party, or its own motion, . . . set aside
any void judgment or order.” (§ 473, subd. (d).) “[A] default judgment greater than the
amount specifically demanded is void as beyond the [trial] court’s jurisdiction.”
(Greenup v. Rodman (1986) 42 Cal.3d 822, 826.) Not only is a default judgment for an
amount greater than that specifically demanded void, but when a statement of damages is
required but not served, the underlying entry of default is invalid and subject to being set
aside. (See Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 434.)
Generally, the amount of damages must be stated in a complaint. (Code Civ.
Proc., § 425.10, subd. (a).) However, in a complaint for personal injury or wrongful
death, the amount of actual or punitive damages must not be stated. (Code Civ. Proc.,
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§ 425.10, subd. (b); Civ. Code, § 3295, subd. (e); Van Sickle v. Gilbert (2011) 196
Cal.App.4th 1495, 1521.) In that case, the plaintiff must provide a statement of damages
upon the defendant’s request or by serving the statement before the defendant’s default is
taken. (Code Civ. Proc., § 425.11, subd. (c).) The plaintiff’s right to punitive damages
can be preserved by serving a statement of such right prior to taking the defendant’s
addresses the “relief granted.” Here, the relief granted by the trial court did not include
any award of damages. Thus, the fact that damages were sought in the prayer is of no
moment; the relief granted did not include money damages. Therefore, the judgment is
not void.4
C. Self-help, Illegality, and Vagueness
Anderson contends the language of the amended judgment authorizing Brown to
“use any means necessary to remove and dispose of all items from the unpaved areas of
the Property” improperly authorizes self-help and grants Brown authority to act outside
4 Although the complaint includes a prayer for punitive damages, there is no requirement that all of the relief prayed for in the complaint be sought in the motion for default judgment or in the judgment. (See § 585, subd. (c).) Here, neither the original judgment nor the amended judgment includes any award of punitive damages. Presumably, no such damages were sought at the time of Brown’s default prove-up hearing. Therefore, Brown was not required to serve the section 425.115 statement.
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the law in enforcing the judgment. Anderson further contends the amended default
judgment is fatally vague. We reject these arguments.
1. Anderson’s Contention That the Amended Default Judgment Is Improper
Because It Authorizes Self-help Is Waived for Lack of Legal Argument or Citation to
Authority
When a brief on appeal fails to contain legal argument with citation of authorities
on points made, the court may treat any claimed error in the decision of the court as
waived or abandoned. (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 [Fourth
Dist., Div. Two].)
Here, Anderson fails to make a legal argument regarding his self-help contention.
Instead, he makes only a conclusory assertion that the amended default judgment
“improperly authorizes Brown to take matters into her own hands as far as enforcement
of the Amended Default Judgment goes.” Anderson refers to the Enforcement of
Judgments Law at section 680.010 et seq., but fails to cite a specific section that prohibits
self-help. Furthermore, Anderson fails to explain how the Enforcement of Judgments
Law is relevant to his argument. Therefore, in the absence of legal argument and citation
of authorities on point, Anderson’s self-help contention is deemed waived or abandoned.
Furthermore, the amended judgment does not authorize self-help. Statutes
prohibiting self-help “reflect a policy, with deep roots in English law, barring the use of
forceful self-help to enforce a right to possession of real property and requiring instead
the use of judicial process to gain possession.” (Glass v. Najafi (2000) 78 Cal.App.4th
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45, 48-49.) Here, Brown has used the judicial process to obtain the judgment. Her
lawful efforts to enforce the judgment cannot constitute self-help because the judgment
was obtained pursuant to the use of judicial process, not in lieu of it.
2. Anderson’s Contention That the Amended Default Judgment Grants Brown
Authority to Exceed the Bounds of the Law Is Not Ripe for Review
Anderson contends the amended default judgment is invalid because it allows
Brown to use “any means necessary” to remove Anderson’s property. He appears to
suggest that Brown may rely on this language to engage in unlawful means of removing
his property. He does not assert that Brown has begun enforcing the judgment.
A “‘controversy is “ripe” when it has reached . . . the point that the facts have
sufficiently congealed to permit an intelligent and useful decision to be made.’”
(Vandermost v. Bowen (2012) 53 Cal.4th 421, 452.) Here, our record does not indicate
whether Brown has undertaken enforcement of the amended default judgment by any
means, lawful or otherwise. This court need not entertain a hypothetical possibility of a
party’s future unlawful conduct. If Brown acts unlawfully in enforcing the amended
default judgment, Anderson may seek a remedy at that time. Because the issue is not
ripe, we will not address it.
3. The Amended Default Judgment Is Not Void for Vagueness
Anderson contends the amended default judgment is fatally vague. He relies on a
concurrence in Shriver v. Superior Court (1920) 48 Cal.App. 576, 585, and the opinion in
Johnson v. Farmer (1940) 41 Cal.App.2d 874, 882, for the proposition that a judgment
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must be sufficiently certain to permit enforcement, and serious uncertainty may be
reversible error. Shriver involved a money judgment that failed to indicate from whom
or to whom the judgment was to be paid. (Shriver v. Superior Court, supra, at p. 584.)
Johnson involved a judgment that required a party to follow the Unfair Practices Act
(Bus. & Prof. Code, § 17000 et seq.) generally and limited the price at which sales of
photographic engravings could be made based upon an indeterminate scale (Johnson v.
Farmer, supra, at pp. 881-882).
Here, the amended default judgment requires Anderson to “remove all items of
any kind . . . from all unpaved areas on the [identified] real property” and “maintain all
unpaved areas of the Property in a condition that is clear of all items of any kind . . . .”
Unlike Shriver, the judgment is certain as to whom it applies, identifying Anderson by
name under each order. The instant case is also distinguishable from Johnson because
the judgment is certain as to what conduct is required. Anderson need not ascertain what
items to remove or from where the items are to be removed because he is required to
remove all items from all unpaved areas on the Property.
Anderson’s contentions regarding uncertainty as to what Brown is required to do
in the event Anderson fails to remove his property from the unpaved areas need not be
addressed for the same reason listed above in part III.C.2. This court need not entertain a
hypothetical possibility of a party’s future unlawful conduct until such conduct has
occurred. If Anderson fails to comply with the amended default judgment by removing
items from the unpaved areas within 90 days of being served with the judgment, Brown
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may remove Anderson’s property. If Brown then engages in unlawful conduct to remove
Anderson’s property, Anderson may then seek a remedy at that time.
IV. DISPOSITION
The order denying Anderson’s motion to set aside default and default judgment is
affirmed. Respondent shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
RAMIREZ P. J.
RICHLI J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion to set aside a default judgment, finding that the defendant failed to demonstrate excusable neglect or that his lack of actual notice resulted from anything other than his own avoidance of service. The court further held that the judgment was not void for failure to serve a statement of damages because no damages were awarded, and that the defendant's challenges to the amended judgment's self-help provisions were either waived or not ripe for review.
Issues
Did the trial court abuse its discretion in denying the motion to set aside the default judgment under Code of Civil Procedure sections 473(b) and 473.5?
Was the default judgment void for failure to serve a statement of damages under sections 425.11 and 425.115?
Did the amended default judgment improperly authorize self-help or contain fatal vagueness?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The court could reasonably conclude that Anderson failed to meet his burden to obtain relief under sections 473, subdivision (b), and 473.5.”
“The relief granted by the trial court did not include any award of damages. Thus, the fact that damages were sought in the prayer is of no moment; the relief granted did not include money damages. Therefore, the judgment is not void.”
“This court need not entertain a hypothetical possibility of a party’s future unlawful conduct.”