Service Done Self Is Not Service Done Right

Braugh v. Dow, No. B311859 (D2d8 Jul. 3, 2023)

In this case, the plaintiff, who is an attorney, got a default judgment. Service was based on her handing the complaint packet to the defendant. Although her proof of service recited the fact that she was not a party to the action, it made clear that she was the one who did the handing. Years later, the defendant found out about the judgment and moved to vacate under Code of Civil Procedure § 473(d). The trial court granted the motion.

Under § 473(d), a facially void judgment can be vacated without limitation to time. That includes a judgment that is void for lack of valid service of process. And in the default context, “facially” is a bit of a term of art. Because it includes not just the judgment itself, but the whole judgment roll, which also includes the “affidavit or proof of service; the complaint; [and] the request for entry of default.” See § 670(a). Here, the proof of service says that the plaintiff herself personally served the complaint on the defendant. That violated § 414.10, which says “[a] summons may be served by any person who is at least 18 years of age and not a party to the action.” 

Plaintiff tries to argue that she substantially complied because defendant had actual notice. Thus, she says, the unlimited time under§ 473(d)’s facially void rule should not apply. Instead, defendant should have availed himself of § 473(b) which permits vacation of a judgment based on mistake or excusable neglect. And because § 473(b) has time limits, says plaintiff, defendant’s motion to vacate was too late and should have been denied.

The Court of Appeal disagrees. Because they create the fundamental jurisdiction of the court, to justify a default judgment, the service of process statutes must be strictly complied with. (At least until they become a non-issue after a defendant makes a general appearance that waives defects in service.) If the POS admits facts showing non-compliance with the rules, a default cannot be premised on that service. And as such, it is void, forever.

Affirmed.

Bait and Switch on Time to Appeal

Meinhardt v. City of Sunnyvale, No. D079451 (D4d1 Mar. 9, 2022)

This is a bad decision on what constitutes a judgment in an administrative mandate case. The court says isn’t not the actual judgment submitted by the parties and entered by the court. Instead, it is the court’s prior order denying the petition. So since the plaintiff relied on the court’s entry of an actual judgment in computing the time to appeal, his appeal was too late.

Appeal dismissed. 

I was so bothered by this one I agreed to represent the plaintiff pro bono in a petition for review. Wish us luck! 

Update: ***REVIEW GRANTED!!***

Government Immunity Is an Affirmative Defense that Must Be Plead

Quigley v. Green Mt. Fire Protection Dist., No. S242250 (Cal. Jul. 15, 2019)

The Supreme Court holds that the governmental tort immunities in the Government Claims Act (Gov. Code § 810, et seq.) are non-jurisdictional affirmative defenses that can be forfeited* if not alleged in the defendant’s answer. That seems pretty straightforward.

In the case, the Defendant had plead a generic affirmative defense that it was immune as a government entity, and then made reference to the entire GCA. It did not, however, specifically reference Gov. Code § 850.4, an immunity for firefighting that seemingly applied to the facts of the case. The case was then litigated for four years and went to trial. Defendants first referenced § 850.4 in a nonsuit motion at the end of Plaintiff’s opening statement. The trial court erroneously held that the immunity was jurisdictional and could be raised at any time.

Other than the jurisdiction issue, the Supreme Court does not want to deal with any of that. So on remand, the Court of Appeal needs to decide if the reference to the whole act was adequate to allege the basis of an “intelligibly distinguished” affirmative defense under Code of Civil Procedure § 431.30(g). And if not, it needs to decide if the trial court abused its discretion by permitting Defendant to first raise an unplead affirmative defense after the onset of trial.

Reversed.

*Footnote 4 makes a nomenclature point about the difference between a forfeiture and a waiver. A forfeiture is the sacrifice of a right by failing to timely raise it. A waiver, on the other hand, is the intentional surrender of a known right. For instance, a failure to object to evidence is a forfeiture, but a guilty plea is a waiver. People frequently, however, refer to forfeiture scenarios as waivers. Even the Courts and the Legislature. But California courts have recently been pointing out the distinction, so it would do well to be more precise in our terminology.

Don't Shortcut CCP § 664.6

Mesa RHF Partners, et al. v. City of L.A., No. B288335 (D2d1 Mar. 29, 2019)

Code of Civil Procedure § 664.6 permits parties to stipulate to a court’s entry of judgment on the terms of a settlement—including a judgment of dismissal. It further permits the parties to request that the court retain jurisdiction over any enforcement. But both the settlement and request need to be signed by the parties themselves, not just their lawyers. 

The parties (or maybe the lawyers) in these three zoning cases messed that up. They got client-signed settlement agreements, which included an agreement to continuing jurisdiction. But instead of stipulating to have the settlements entered as judgments of dismissal with retained jurisdiction, they tried to take shortcuts. They filed standard forms requesting voluntary dismissals, which referenced that they wanted the court to retain jurisdiction, but did not attach the agreements or request that the court enter judgment. The clerk then dismissed the cases.

When disputes over the settlements later arose, Plaintiffs moved the court to enforce. Although both Plaintiffs and Defendants agree to that procedure, the trial court held, and the Court of Appeal affirms, that it had no authority to do so. The clerk had dismissed the cases before the trial court ordered jurisdiction retained, and at a time where no client-signed document had been submitted. That deprived the trial court of any jurisdiction to decide to retain jurisdiction. And thus without ongoing authority under § 664.6.

It’s not the end for Plaintiffs, though. They can enforce the settlements in a separate action for breach of contract.

Affirmed.

Writ Relief Has Come a Long Way in 80 Years

Shaw v. Superior Court, No. S221530 (Cal. Apr. 10, 2017)

Most of this Supreme Court opinion is about whether there is a statutory right to jury trial for a claim brought under Health & Safety Code § 1278.5(g), which prohibits certain kinds of retaliatory terminations. That’s too substantive for me.

There’s a gating issue, however, that is pure procedure: Is the denial of a jury trial right an appropriate subject for pre-trial writ relief? The answer is pretty clearly yes, and a series of Court of Appeal decisions bears that out. But there’s a very old Supreme Court case—Nessbit v. Superior Court, 214 Cal. 1 (1934)—that says it isn’t. Nessbit, however, relied on an old theory of mandamus as available only when a trial court acted for want of fundamental jurisdiction. Later cases changed that theory, re-characterizing the “jurisdictional” nature of the remedy to reach any act that was contrary to established statutes or standards, even if the trial court did, in fact, have jurisdiction over the matter in general. So the Supreme Court here overrules Nessbit to clarify that an erroneous denial of a jury trial right is an issue that can be addressed by a pre-trial writ of mandate.

Dead Men Don't Sit for Judgment Debtor Exams

Torjesen v. Mansdorf, No. B263377 (D2d4 Jul. 5, 2106)

To collect under California’s Enforcement of Judgments Law, you need to levy before the debtor dies. Otherwise, under Code of Civil Procedure § 686.020, your only recourse is in probate. Here, a creditor obtained a judgement before the debtor died, but did not levy debtor’s property until after he died. Some third party then made a claim to the levied property, which the trial court invalidated under the EJL. That order became final when the third party failed to appeal.

The third party now—two years later—seeks to invalidate the order, claiming that the creditor had no recourse to the EJL for a post-mortem levy. That might be true. But the order was only voidable, not void. While the statutory scheme clearly required the matter to be addressed in probate, it did not fundamentally deprive the trial court of subject matter jurisdiction. So the error was substantive, not jurisdictional. That made it erroneous or voidable, but not so void that it was subject to collateral attack after the judgment became final.

Affirmed.

Chin-ups on the Heck Bar

Brown v. County of L.A., No. B249825 (Aug. 29, 2014)

Chalk this one up as one of the more creative prisoner arguments I’ve seen in a while. Plaintiff is doing seventeen years to life for a murder he committed as a teenager. He claims that, because he was underage when he plead guilty, his plea agreement is voidable under Civil Code § 35, which allows minors to disaffirm contracts. Unfortunately for the plaintiff, you can’t use a civil suit to collaterally attack a criminal judgment. That’s what habeas is for. Further, although the plea bargain/contract analogy is oft drawn, criminal law does not wholesale import every aspect of civil contract law. While age is a recognized factor in measuring the voluntariness of a plea, there’s no bright line rule about minors like the one that applies to civil contracts.

Affirmed.

Public Prosecutor Exception to SLAPP Statute Applies to Appeals

People v. McGraw-Hill Companies, Inc., No. A140922 (D1d2 Aug. 18, 2014)

Section 425.16(d) of the Code of Civil Procedure exempts actions brought by public prosecutors from the ambit of the anti-SLAPP statute. The court here reads that to mean the whole anti-SLAPP statute, including § 425.16(i), which provides for an immediate interlocutory appeal. So the denial of the motion in this case, on § 425.16(d) grounds, was not appealable and the appeal needed to be dismissed for want of appellate jurisdiction.

Within the Jurisdiction . . .

Rebolledo v. Tilly’s, Inc., No. G048625 (D4d3 Aug. 6, 2014)

The court here holds that an arbitration clause’s exclusion of “any matter within the jurisdiction of the California Labor Commissioner” applies to wage claims brought in superior court when they could have been brought before the Labor Commissioner. Those matters are thus within the Commissioner’s concurrent jurisdiction, even if the plaintiff did not elect to bring them in that forum. So the employee can’t be compelled to arbitrate those claims.

Affirmed.