Opinion
G054042
01-04-2018
CADLES OF GRASSY MEADOWS II, LLC, Plaintiff and Appellant, v. ROBERT W. BLACKBURN et al., Defendants and Respondents.
Verus Law Group, Holly Walker and Mark N. Strom for Plaintiff and Appellant. Czech & Howell, Jeffery J. Czech and Jonathan A. Howell for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2010-00394611) OPINION Appeal from an order of the Superior Court of Orange County, Robert James Moss, Judge. Reversed and remanded. Verus Law Group, Holly Walker and Mark N. Strom for Plaintiff and Appellant. Czech & Howell, Jeffery J. Czech and Jonathan A. Howell for Defendants and Respondents.
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Plaintiff Cadles of Grassy Meadows II, LLC (Cadles), appeals from an order granting the motion by defendants Robert W. Blackburn and Dianne M. Blackburn (collectively, the Blackburns) to set aside a default and default judgment pursuant to Code of Civil Procedure section 473, subdivision (d). Though acknowledging a lack of case law support for its determination, the trial court concluded the default and default judgment were void because the request for entry of default, and the default itself, listed the filing date of a version of the complaint which was no longer operative at the time.
All further statutory references are to the Code of Civil Procedure.
Cadles contends the trial court lacked the authority to grant the motion because the date discrepancy did not render the default or the default judgment legally void. We agree, and, therefore, reverse the order and remand with directions to enter a new order denying the motion.
FACTS
Attempting to void alleged fraudulent transfers of real property made by the Blackburns, Cadles's predecessor in interest, Brown Bark II, L.P. (Brown Bark), commenced this case in late July 2010. The verified complaint (original complaint) contained one cause of action and sought a variety of relief.
Approximately two weeks after filing the original complaint, and prior to serving it on the Blackburns, Brown Bark filed an amended verified complaint (amended complaint). The amended complaint contained two additional "causes of action," titled "conspiracy" and "injunctive relief," and an amended prayer for relief.
At the end of September 2010, the Blackburns were each served with the summons, the original complaint, and the amended complaint as one package. The proofs of service were filed with the court within days thereafter.
In May 2011, with nothing having been filed by the Blackburns, Brown Bark filed a request for entry of default using the relevant Judicial Council form. It asked for default to be entered "[o]n the complaint . . . filed" on July 29, 2010—the filing date of the original complaint. The clerk entered such default against the Blackburns on May 31, 2011.
Several months later, with still no documents filed by the Blackburns, Brown Bark filed three separate requests with the court: one for dismissal of its injunctive relief cause of action, one for dismissal of all doe defendants, and one for a court default judgment against the Blackburns. The Judicial Council form used to request the latter indicated the request was as to the complaint filed on July 29, 2010—the filing date of the original complaint. Accompanying the default judgment request was a supporting declaration, a summary of the case and a proposed judgment.
The clerk entered the dismissals the same day they were requested, and on January 25, 2012, the court entered a default judgment against the Blackburns. Brown Bark later assigned its rights under the default judgment to Cadles.
More than four years later, in April 2016, the Blackburns moved to set aside the default and default judgment pursuant to section 473, subdivision (d). They argued the default entered by the clerk in May 2011 was void because it was entered as to the original complaint, which was no longer operative at that time because Brown Bark had filed an amended complaint. They also asserted the default judgment on the amended complaint was void because default was never entered as to that complaint.
Section 473, subdivision (d), provides in relevant part: "The court . . . may, on motion of either party, after notice to the other party, set aside any void judgment or order."
Following briefing by the parties and a hearing, the court granted the Blackburns' motion. It acknowledged the circumstances were unusual, and expressed its belief that "[t]here was no real guiding case law on" the issue. Because default was entered as to the original complaint, which was then no longer an operative pleading, the court determined both the default and the default judgment were void and needed to be set aside. Cadles timely appealed.
DISCUSSION
Cadles contends the court erred in granting the Blackburns' motion under section 473, subdivision (d), because neither the default nor the default judgment were void. We agree.
"'A trial court has no statutory power under section 473, subdivision (d) to set aside a judgment that is not void: Once six months have elapsed since the entry of a judgment, "a trial court may grant a motion to set aside that judgment as void only if the judgment is void on its face."'" (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146 (Talley).) "'"[On] its face"'" means the invalidity is "'"apparent upon an inspection of the judgment-roll."'" (Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1440.) When a complaint has not been answered by the defendants, the judgment-roll is limited to the summons, proof of service of the summons, the complaint, the request for entry of default with an indorsement thereon that default was entered, and a copy of the judgment. (§ 670.) "'We review de novo a trial court's determination that a judgment is void.'" (Talley, at p. 146.)
Of importance is the distinction between a "void" judgment, which is subject to being set aside under section 473, subdivision (d), and a "voidable" judgment, which is not subject to being set aside under that subdivision. "The distinction . . . is frequently framed in terms of the court's jurisdiction. 'Essentially, jurisdictional errors are of two types. "Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties." [Citation.] When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and "thus vulnerable to direct or collateral attack at any time." [Citation.]' [Citation.] For example, if a defendant is not validly served with a summons and complaint, the court lacks personal jurisdiction and a default judgment in such action is subject to being set aside as void." (Lee v. An (2008) 168 Cal.App.4th 558, 563-564 (Lee).)
In contrast, voidable judgments arise from a court acting in excess of its jurisdiction even though it has jurisdiction over the subject matter and the parties in the fundamental sense. (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 (American Contractors Indemnity); Lee, supra, 168 Cal.App.4th at p. 564.) For example, when a court has no power to act except in a certain manner, to give certain types of relief, or to follow certain procedural prerequisites, the court exceeds its authority (i.e., jurisdiction) if it acts to the contrary. (American Contractors Indemnity, at p. 661.) "'Errors which are merely in excess of jurisdiction should be challenged directly, for example by motion to vacate the judgment, or on appeal . . . ,' and generally are not subject to collateral attack once the judgment is final . . . ." (Lee, at p. 564.)
Here, there is no dispute about the trial court's subject matter jurisdiction over this matter or personal jurisdiction over the parties. Rather, the sole contention by the Blackburns in seeking to set aside the default and default judgment hinged on the dates specified in Brown Bark's requests and the clerk-entered default. They asserted, as they continue to do on appeal, the reference in those documents to the date of the then non-operative original complaint, rather than the operative amended complaint, rendered the default and default judgment void. Such assertion lacks authority and merit.
Beginning with the judgment, although the date stated in the request for default judgment was that of the original complaint, nowhere in the judgment itself does it state, as the Blackburns suggest, that judgment was entered as to the original complaint. Rather, the document indicates default judgment was being entered pursuant to a declaration filed by Brown Bark in support of its request, as well as "the papers, pleadings and records on file [in the case]." The "pleadings" include the amended complaint. Hence, the clerk's corresponding docket entry which states: "The Court enters judgment as to Amended Complaint."
Further, there is a reason the Blackburns failed below, and fail on appeal, to provide any authority for the proposition that inclusion of the filing date of the original complaint rather than the operative one in a request for default judgment somehow affects the court's fundamental jurisdiction over the matter. No such authority exists. The cases cited by the Blackburns concerning default judgments exceeding damage amounts requested in a complaint, or entered after an answer has been filed, are inapposite.
As for the default entered by the clerk, inclusion of the date of the original complaint does not impact its underlying validity either. When no answer or other qualifying pleading has been filed by a defendant and the clerk receives a request for default, the clerk has a ministerial duty to enter the default of the defendant. (§ 585, subd. (b); Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 99; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 533-534.) Part of that process involves the clerk signing the Judicial Council form on which the request was made and indicating the date on which default was entered. Because of the ministerial nature of the clerk's task, no further alterations are made to the document.
The above-described process is similar in nature to when a party files a proposed order, and the court reviews and signs it. If an error appears in the signed order and it does not relate to a discretionary aspect of the order, it may be deemed a "clerical error." (Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034.) Clerical errors do not render an order void and may be corrected fairly easily. (§ 473, subd. (d); Ames v. Paley (2001) 89 Cal.App.4th 668, 672-673; Muller v. Municipal Court (1959) 176 Cal.App.2d 156, 160 ["The court has inherent power to correct at any time a clerical misprision."].) The same is true when the error stems from a drafting mistake of a party or its attorney. (Russell v. Superior Court (1967) 252 Cal.App.2d 1, 8.)
In this case, the date discrepancy on the clerk-entered default is, at most, a clerical error. There may only be one operative complaint at a given time. (Cohen v. Superior Court (1966) 244 Cal.App.2d 650, 656.) Here, at the time of the request for default and entry of default, it is undisputed it was the amended complaint. The complaint and amended complaint had been served on the Blackburns, proofs of service were on file with the court, the Blackburns had not filed anything in the case, and the deadline for filing an answer or other responsive pleading had lapsed. These are circumstances in which default may be requested and ministerially entered by the clerk.
Because the amended complaint was filed and served long before the clerk's entry of default, we need not address the issue discussed by the parties of the effect of a subsequent amendment to a complaint on a prior entry of default. --------
Even if we were to find the default void, it would have no impact on our conclusion concerning the default judgment. It is well established that entry of default is not an absolute prerequisite to entry of a default judgment. (Crouch v. H.L. Miller & Co. (1915) 169 Cal. 341, 345-346; Drake v. Duvenick (1873) 45 Cal. 455, 462; Norman v. Berney (1965) 235 Cal.App.2d 424, 429-430; Lunnun v. Morris (1908) 7 Cal.App. 710, 715-716.) Entry of default acts to benefit the plaintiff by "terminat[ing] a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered." (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) Without it, a defendant may still file a responsive pleading and, thereby, preclude entry of a default judgment. (Baird v. Smith (1932) 216 Cal. 408, 409-410.) Absence of it, however, does not remove the court's fundamental jurisdiction to enter a default judgment as it does not affect subject-matter jurisdiction or jurisdiction over the parties. (See Johnson v. E-Z Ins. Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98-99 [default judgment not void because court had fundamental jurisdiction over parties and subject matter]; Lee, supra, 168 Cal.App.4th at pp. 563-564 [explaining difference between void and voidable default judgments].)
Because neither the default nor the default judgment were void, the trial court erred in granting the Blackburns' motion to set them aside. (Talley, supra, 191 Cal.App.4th at p. 146.)
DISPOSITION
The order is reversed and the matter remanded. On remand, the trial court is directed to vacate its order granting the motion to set aside default and default judgment, and enter a new order denying that motion. Cadles of Grassy Meadows II, LLC, shall recover its costs on appeal.
IKOLA, J. WE CONCUR: FYBEL, ACTING P. J. THOMPSON, J.