People v. Mirsky CA2/7 ( 2021 )

Filed 9/21/21 P. v. Mirsky CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PEOPLE OF THE STATE OF B297321
CALIFORNIA, ex rel.
INTERINSURANCE (Los Angeles County
EXCHANGE OF THE Super. Ct. No. BC211613)
AUTOMOBILE CLUB OF
SOUTHERN CALIFORNIA,
Plaintiff and Respondent,
v.
ALEX SEMYON MIRSKY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Edward B. Moreton, Jr., Judge. Affirmed.
Law Offices of John T. Schreiber and John T. Schreiber for
Defendant and Appellant.
Wallin & Russell, Michael A. Wallin and John C. Russell
for Plaintiff and Respondent.
_____________________________
Alex Semyon Mirsky appeals from the superior court’s
denial of a motion to vacate a 2013 renewal of a default judgment
and the underlying default judgment. In 2003 the superior court
entered a default judgment of over $7.8 million against Mirsky.
Interinsurance Exchange of the Automobile Club of Southern
California (Interinsurance Exchange) renewed the judgment in
2013, and in 2018 it mailed notice of the renewal to Mirsky at an
address Interinsurance Exchange claimed was Mirsky’s last
known address. On January 22, 2019 Mirsky filed a motion to
vacate the renewal of judgment, or, in the alterative, vacate the
default judgment under Code of Civil Procedure section 473,
subdivision (d).1 The trial court denied the motion, concluding
Mirsky’s motion to vacate the renewal of judgment was untimely
and Mirsky failed to meet his burden to show the default
judgment was void.
On appeal, Mirsky contends the trial court abused its
discretion in denying his motion to vacate. Mirsky argues the
notice of renewal of judgment was sent to the wrong address and
the default judgment was void because Interinsurance Exchange
failed to personally serve him with the second amended
complaint in light of substantive changes from the prior
complaints. We affirm.
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Criminal Actions for Fraud and Conspiracy
In 1998 Mirsky was charged in an information filed in
federal court with three counts of mail fraud and conspiracy “to
defraud and to obtain money and property from various
insurance carriers by means of false and fraudulent pretenses,
representations and promises.” The information alleged Mirsky
invested in a Texas law office and used the office “to prepare and
submit fraudulent medical and property damage insurance
claims made by individuals who engaged in staged or fabricated
automobile accidents. Also in furtherance of the scheme to
defraud, defendant Mirsky recruited personal injury cases from
cappers and other individuals who conducted staged and
fabricated automobile accidents and referred them to the medical
clinic and law offices in exchange for 50% or more of the
fraudulent legal and medical payments.”
In 1999 Mirsky was charged in a felony complaint filed in
the Los Angeles Superior Court with insurance fraud (Pen. Code,
§ 550, subd. (a)(1)) and conspiracy to commit the crime of capping
(Pen. Code, § 182, subd. (a)(1); Ins. Code, § 750.)2 The complaint
alleged Mirsky “did unlawfully and knowingly present and cause
2 Insurance Code section 750, subdivision (a), provides in
relevant part, “ any person acting individually or through his or
her employees or agents, who engages in the practice of
processing, presenting, or negotiating claims, including claims
under policies of insurance, and who offers, delivers, receives, or
accepts any rebate, refund, commission, or other consideration,
whether in the form of money or otherwise, as compensation or
inducement to or from any person for the referral or procurement
of clients, cases, patients, or customers, is guilty of a crime.”
3
to be presented a false and fraudulent claim for the payment of a
loss and payment of a loss under a contract of insurance” and “did
unlawfully conspire . . . to commit the crime of capping.”
Mirsky entered into a negotiated plea of guilty to the
charges in the federal and state actions. On July 13, 1999 the
superior court sentenced Mirsky to five years formal probation on
the condition he serve a year in state prison (to run concurrent
with his federal prison sentence) and to pay $20,000 in
restitution. On July 12, 1999 the federal court sentenced Mirsky
to 21 months in federal prison.
B. The Civil Action and Default Judgment
On June 8, 1999 Interinsurance Exchange filed a qui tam
action on behalf of the State of California against Mirsky and 26
other defendants for violation of the Insurance Fraud Prevention
Act (Ins. Code, § 1871.7).3 The complaint also asserted claims for
constructive trust, equitable lien, restitution, and unfair business
practices. The complaint alleged Mirsky operated a ring of law
offices, attorneys, medical doctors, and medical billers who would
stage automobile accidents for the purpose of making fraudulent
insurance claims. Further, “[t]he ring knowingly and
intentionally caused approximately 475 alleged automobile
3 Insurance Code section 1871.7, subdivision (a), provides, “It
is unlawful to knowingly employ runners, cappers, steerers, or
other persons to procure clients or patients to perform or obtain
services or benefits pursuant to Division 4 (commencing with
Section 3200) of the Labor Code or to procure clients or patients
to perform or obtain services or benefits under a contract of
insurance or that will be the basis for a claim against an insured
individual or his or her insurer.”
4
collisions to be reported to The Exchange as incidents which
caused bodily injury. These collisions involved approximately
855 separate claimants. On information and belief each of these
claimants was referred to one or more of the ‘law office
defendants’ and ‘medical defendants’ in return for a fee,
constituting capping.” Interinsurance Exchange sought damages
“in an amount equal to three times the amount of each claim for
compensation by the defendants, plus a civil penalty of $10,000
for each violation of California Insurance Code § 1871.1.”
Interinsurance Exchange filed a statement of damages seeking
$15,674,374.50 from Mirsky.
On August 9, 1999 the complaint, summons, and statement
of damages were served on Mirsky by substituted service on
Mirsky’s mother at Mirsky’s home address at 1411 Fuller
Avenue, Apartment 206, in Hollywood, California, with a copy
mailed to the same address. Mirsky did not respond to the
complaint. According to Mirsky’s opening brief, Mirsky
surrendered himself one month after service of the complaint to
federal authorities to begin his 21-month federal prison sentence.
On January 10, 2000 the trial court sustained a demurrer
brought by a codefendant as to the claims alleging fraud (and the
related remedies), allowing “leave to amend with a representative
sample of the facts underlying the accidents and claimants . . .
From the complaint in this case, it doesn’t seem possible for the
defendant to know what he is accused of having done. A
complaint must at least give some notice as to this.” The court
overruled the demurrer as to the unfair competition claim, as to
which “[a] valid claim under Business & Professions Code
Section 17200 is stated.”
5
On May 9, 2000 Interinsurance Exchange filed its first
amended complaint. Mirsky was served with the first amended
complaint by mail at the Fuller Avenue address. On July 21,
2000 Interinsurance Exchange filed a second amended complaint,
which generally contained the same allegations and prayer for
relief, but it attached 27 exhibits identifying each of “the claims
submitted to the Exchange for which a defendant is individually
liable to the Exchange.” As to Mirsky, Exhibit A identified 318
separate claims for which Interinsurance Exchange sought
$15,674,374.50.4 The second amended complaint was also served
by mail on Mirsky at his Fuller Avenue address.
On February 15, 2001 Interinsurance Exchange filed a
request for entry of default. Interinsurance Exchange served
Mirsky by mail at the federal prison in Nevada. On February 20,
2001 the superior court clerk entered Mirsky’s default.
On March 12, 2001 Mirsky, representing himself, filed and
served Interinsurance Exchange with an application for order
extending time to answer.5 He listed his address on the
application as “1411 N. Fuller” in Los Angeles. In his
application, Mirsky stated he “was served with the ‘second
4 Exhibit A calculated the total amount of penalties and
damages by multiplying a civil penalty of $10,000 (under
Insurance Code section 1871.7, subdivision (b)), times 318 claims,
for a total of $3,180,000, plus $12,494,374.50 in treble damages
($4,164,791.50 tripled), for total damages and penalties of
$15,674,374.50.
5 On our own motion we augment the record with a file-
stamped copy of Mirsky’s application, dated March 12, 2001.
(Cal. Rules of Court, rule 8.155(a)(1)(A).) The appellate record
does not contain a ruling on Mirsky’s application.
6
amended complaint’ on December 14th 2000 while [he] was
incarcerated at United States Prison Camp Nellis, Nevada,” and
he has “not willfully failed to file a responsive pleading as the
[p]laintiff in this case [as] alleged in their ‘[r]equest for [e]ntry of
[d]efault.’ Unfortunately, because of my incarceration, I was
unable to timely respond.” Mirsky requested “[a]n extension of
30 days . . . in order to prepare and file the answer and to avoid a
default.”
On August 31, 2001 Interinsurance Exchange took Mirsky’s
deposition in this action in Los Angeles.6 Mirsky invoked his
Fifth Amendment privilege against self-incrimination as to all
questions.
C. Entry of Default Judgment
On January 9, 2003 Interinsurance Exchange filed a
request for default judgment against Mirsky. Interinsurance
Exchange served Mirsky with the request, supporting
declarations, and a supplemental memorandum by first-class
mail at the Fuller Avenue address. Daniel Brogdon, the assistant
group manager for Interinsurance Exchange, stated in his
declaration that “Mirsky’s total statutory liability is
$8,997,548.99. The liability amounts are calculated pursuant to
the factors established by Insurance Code section 1871.1 . . . .
With a total of 176 claims submitted by Mirsky, and an aggregate
amount of the claims at $2,412,516.33, Mirsky is liable to the
Exchange for not less than $8,997,548.99.”
6 According to Mirsky, he was released from prison in
June 2001.
7
After a hearing on January 29, 2003, the trial court (Judge
Carolyn B. Kuhl) granted Interinsurance Exchange’s request for
a default judgment against Mirsky and others. Mirsky did not
appear at the hearing. On February 20 the court entered a
default judgment against Mirsky in the amount of $7,131,333.99
in penalties under Insurance Code section 1871.7, plus attorneys’
fees of $739,223.90, for a total of $7,870,557.89. On April 9, 2003
Interinsurance Exchange served Mirsky with notice of entry of
court judgment by first-class mail at his Fuller Avenue address.
D. Renewal of Court Judgment
On February 15, 2013 Interinsurance Exchange filed an
application for and renewal of judgment against Mirsky. The
application listed Mirsky’s “last known address” as 3336 Dona
Rosa Drive in Studio City, California. Interinsurance Exchange
requested $15,728,207.88, including postjudgment interest. The
same day the superior court entered the renewal and issued a
notice of renewal of judgment, which provided: “1. This renewal
extends the period of enforceability of the judgment until 10
years from the date the application for renewal was filed. [¶]
2. If you object to this renewal, you may make a motion to vacate
or modify the renewal with this court. [¶] 3. You must make
this motion within 30 days after service of this notice on you.”
Interinsurance Exchange’s attorney (Michael Wallin) averred in
his declaration that the application for renewal and court’s notice
of renewal were mailed to Mirsky. However, the appellate record
does not contain a proof of service.
8
E. Judgment Debtor Examination of Mirsky
On June 6, 2018 Wallin served Mirsky again with the
application and notice of renewal of judgment by first-class mail
to the Dona Rosa address. It was not returned as undeliverable.
On August 16, 2018 the superior court ordered Mirsky to
appear for a judgment debtor examination on October 19. In
September 2018 Wallin mailed the court order scheduling
Mirsky’s debtor examination to Mirsky at the Dona Rosa address.
On September 24 Wallin received a voicemail message from
attorney Victor Sherman stating he represented Mirsky, he
understood Wallin was trying to serve Mirsky, and he agreed to
accept service on Mirsky’s behalf. Wallin emailed the court’s
examination order to Sherman the same day.
On October 17, 2018 Wallin sent an email to Sherman
reminding him of the upcoming examination. Sherman advised
Wallin that Mirsky would be asserting his Fifth Amendment
privilege against self-incrimination, and Mirsky did not want to
appear at the examination because he had not been properly
served with the notice of renewal of judgment. Another attorney
representing Mirsky, Y. Gina Lisitsa, also stated to Wallin that
Mirsky had not been properly served with the application for and
notice of renewal of default judgment. In response, on October 18
Wallen emailed the application, notice of renewal, and proof of
service to Lisitsa.
On October 19, 2018 Mirsky appeared in court for his
examination. The trial court, over Mirsky’s objection, ordered the
examination to go forward. Mirsky invoked his Fifth Amendment
privilege against self-incrimination.
9
F. Motion To Vacate Renewal of Judgment, or
Alternatively, the Default Judgment
On January 22, 2019 Mirsky filed a motion under
section 683.170 for an order vacating the renewal of judgment, or,
in the alternative, a motion under section 473, subdivision (d),7
for an order vacating the default judgment. The motion asserted
the renewal of judgment should be vacated because Mirsky did
not reside at the Dona Rosa address where Interinsurance
Exchange had mailed the notice of renewal. Mirsky stated in his
supporting declaration, “I did not live at 3336 Dona Rosa Drive,
Studio City, California 91604 specifically on June 6, 2018 or for
many years prior to the present. . . . [¶] . . . [¶] 7. I was not
served with the Notice of Renewal of Judgment at that time or at
any time. [¶] 8. I did not receive the Notice of Renewal of
Judgment at that time or any time.” As to the default judgment,
Mirsky argued the judgment was void because it was
substantively different from the initial and first amended
complaint and, therefore, service by mail was not sufficient to
support entry of the judgment.
In its opposition, Interinsurance Exchange argued the
motion to vacate the renewal of judgment was untimely under
section 683.170, subdivision (b), which requires the motion be
filed “[n]ot later than 30 days after service of the notice of
renewal pursuant to [section] 683.160.” Interinsurance Exchange
asserted that even using the later service date on June 6, 2018 of
the notice of renewal of judgment, Mirsky was required to file his
7 Section 473, subdivision (d), provides “[t]he court may, . . .
on motion of either party after notice to the other party, set aside
any void judgment or order.”
10
motion 30 days later, by July 6, 2018, but waited until January
22, 2019 to file his motion.
Interinsurance Exchange also argued the notice of renewal
of judgment was properly served by first-class mail at Mirsky’s
last known address pursuant to section 683.160, subdivision (a),
which provides for service of the notice of renewal on the
judgment debtor “personally or by first-class mail.”
Interinsurance Exchange argued it diligently searched for
Mirsky’s address in 2013 and 2018, and its investigator, Scott
Shaw, previously met with Mirsky at the Dona Rosa address.8 In
addition, Interinsurance Exchange submitted evidence that
Mirsky transferred the house on Dona Rosa Drive to his then-
wife Yelena in 1997 as part of the marital dissolution action, and
the utilities were in Yelena’s name.9 Further, Mirsky had notice
at least by October 2018, when Wallin emailed to Lisitsa and
Sherman a copy of the application for renewal of judgment, notice
of renewal of judgment, and proof of service.
As to the motion to vacate the default judgment,
Interinsurance Exchange disputed it was required to personally
serve Mirsky with the second amended complaint, asserting the
second amended complaint was “nearly identical to the [o]riginal
[c]omplaint and the [first amended complaint]. The amendments
did not increase the amount of damages sought in the [o]riginal
[c]omplaint, nor did they add any new theories of liability on
which the [j]udgment is based.” In addition, Interinsurance
8 Shaw stated in his declaration that he met with Mirsky in
1997 at Mirsky’s residence, but the declaration does not specify
the address.
9 We refer to Yelena Mirsky as Yelena to avoid any
confusion.
11
Exchange argued the motion to vacate was untimely under
section 473.5, subdivision (a), which requires a motion to vacate
for lack of actual notice of service of the complaint “be served and
filed within a reasonable time, but in no event exceeding the
earlier of: (i) two years after entry of a default judgment against
him or her; or (ii) 180 days after service on him or her of a written
notice that the default or default judgment has been entered.”
Mirsky in his reply argued the Dona Rosa property had
been sold to a developer in December 2017, and therefore, it was
no longer Mirsky’s correct address. Mirsky submitted a
supplemental declaration attaching a grant deed transferring the
property to The Fredonias LLC on November 13, 2017. He
averred that by 2018 the property had been demolished, leaving
only four walls standing.
G. The Hearing and Denial of Mirsky’s Motion
At the March 20, 2019 hearing, Lisitsa argued there was
not effective service of the notice of renewal because “it was
mailed to an address where defendant did not live for years.”
Wallin responded that the notice of renewal was mailed to
Mirsky’s “last known address,” and Mirsky “could have very
easily provided the Automobile Club with something that says
here’s my address and, by the way, I don’t live there anymore.
He did not do so.” Wallin also referred to his “diligent”
investigation in 2013 and 2018 to locate Mirsky’s address.10
10 Although Wallin repeatedly argued his firm conducted a
diligent search to determine Mirsky’s last known address,
Interinsurance Exchange did not submit a declaration explaining
its diligent search and, as discussed, the Interinsurance
Exchange’s evidence of ownership of the Dona Rosa house shows
12
Further, Mirsky’s attorney contacted Wallin after Mirsky was
served in 2018 at the Dona Rosa address with the order
scheduling the debtor examination, which was circumstantial
evidence Mirsky lived at the address. In addition, Mirsky had
actual notice of the renewal of judgment by October 2018 when
Wallin emailed the notice of renewal of judgment to Lisitsa and
Sherman.
Lisitsa also argued the last known address was the Fuller
Street address that was listed on Mirsky’s application for order
extending time to answer filed in March 2001. Wallin responded
that it appeared Mirsky’s application was never filed in the trial
court (as noted, it was), and in any event the address was 17
years old.
The superior court denied the motion to vacate the renewal
of judgment as untimely, explaining, “I think that there is
sufficient evidence that it was reasonable for the Interinsurance
Exchange to conclude that this was—to support their assertion
this was . . . the last known address that they had for Mr. Mirsky.
So I think that they complied with the service requirements by
serving it to that location.” The court added, “I’m particularly
comfortable with making that ruling because there is no due
process concern here, because it is undisputed that, in fact,
Mr. Mirsky received notice of the renewal.”
With respect to Mirsky’s argument the default judgment
was void, Lisista argued the second amended complaint should
have been personally served because its inclusion of the exhibits
substantially changed the allegations, and further, the judgment
that Mirsky transferred the house to Yelena in 1997 and the
utilities were in the name of Yelena, not Mirsky.
13
exceeded the prayer for relief in the complaint. The trial court
found in response that “there’s no substantial difference between
the original complaint which clearly was served and the first and
then second-amended complaints.” Further, the court found the
prayer for relief in the second amended complaint was adequately
alleged, although it “requires some math.” After taking the
matter under submission, the trial court denied Mirsky’s motion,
explaining, “The motion is not timely under [section] 683.170.
Moving Party did not demonstrate that the default judgment is
void.” Mirsky timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying
Mirsky’s Motion To Vacate the Renewal of the Judgment
1. Renewal of Judgments
“Before the 1982 enactment of the Enforcement of
Judgments Law (§ 680.010 et seq.), the sole method by which a
judgment creditor could extend the enforcement period of a
money judgment was by obtaining a new judgment against the
judgment debtor in an independent action based on the
judgment.” (Goldman v. Simpson (2008) 160 Cal.App.4th 255,
260 (Goldman); accord, Altizer v. Highsmith (2020)
52 Cal.App.5th 331, 338 (Altizer).) Under the Enforcement of
Judgments Law, a money judgment is enforceable for 10 years
from the date it is entered. (§ 683.020; Altizer, at p. 338;
Goldman, at p. 260.) The law created a summary procedure for
renewal of the judgment by the creditor by filing an application
for renewal with the clerk of the court before expiration of the
14
10-year period. (§ 683.130, subd. (a); Altizer, at p. 338; Goldman,
at p. 260.)
“The renewal process is simple. The creditor seeking
renewal files an application with the court which entered
judgment. The application must contain information necessary
to compute the amount of the judgment as renewed. (§§ 683.120,
subd. (a), 683.140, subd. (d).) Simply filing the application
renews the judgment in the new amount. (§§ 683.120, subd. (b),
683.150, subd. (a).).” (In re Marriage of Thompson (1996)
41 Cal.App.4th 1049, 1057; accord, Goldman, supra,
160 Cal.App.4th at p. 260.) After judgment is renewed, the notice
of renewal must be served on the judgment debtor. As
section 683.160 provides, “(a) The judgment creditor shall serve a
notice of renewal of the judgment on the judgment debtor.
Service shall be made personally or by first-class mail and proof
of service shall be filed with the court clerk.”
However, “[t]he renewal of a judgment pursuant to this
article may be vacated on any ground that would be a defense to
an action on the judgment.” (§ 683.170, subd. (a).) Thus, failure
to serve the summons and complaint “is a defense which may be
raised on a motion to vacate renewal of a judgment.” (Fidelity
Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203
(Fidelity); see Goldman, supra, 160 Cal.App.4th at p. 262 [“[I]n
making a statutory motion under section 683.170, subdivision (a),
to vacate a renewal of judgment, the debtor may contend that the
court lacked personal jurisdiction at the time of the initial
judgment.”].) As the Fidelity court explained, “When a party
concedes that a judgment, even if valid on its face, is invalid for
lack of proper service, this court must conclude the judgment is
void,” which provides a basis for a motion to vacate the renewal of
15
a judgment. (Fidelity, at p. 207; see Hill v. City Cab & Transfer
Co. (1889) 79 Cal. 188, 190-191 [where trial court found
defendant had not been served with summons and complaint,
although the judgment was valid on its face, it was void, and an
action may not be maintained on the judgment].)
Any motion to vacate the renewal of a judgment must be
filed “[n]ot later than 30 days after service of the notice of
renewal.” (§ 683.170, subd. (b).) “A successful motion under
section 683.170 does not affect the validity of the default or the
default judgment. [Citation.] A successful motion under
section 683.170 vacates only the renewal of the judgment thereby
precluding its extended enforceability under section 683.120.”
(Fidelity, supra, 89 Cal.App.4th at pp. 203-204.) Where the
defendant moves to vacate the renewal of judgment, the 30-day
deadline applies, but not the deadline for filing a motion to vacate
a default or default judgment under section 473.5. (Fidelity, at
p. 204.)
“The judgment debtor bears the burden of proving, by a
preponderance of the evidence, that he or she is entitled to relief
under section 683.170. [Citations.] On appeal, we examine the
evidence in a light most favorable to the order under review and
the trial court’s ruling for an abuse of discretion.” (Fidelity,
supra, 89 Cal.App.4th at p. 199; accord, Rubin v. Ross (2021)
65 Cal.App.5th 153, 161.) To the extent the trial court’s
resolution of the motion to vacate the renewal of judgment
requires determination of a question of law, we review the trial
court’s ruling de novo. (Rubin, at pp. 161-162.)
16
2. Mirsky’s motion to vacate the renewal of judgment
was timely
It is undisputed that the renewal of judgment was entered
on February 15, 2013, and on June 6, 2018 notice was mailed to
Mirsky at the Dona Rosa address. Thus, if service was proper,
Mirsky’s filing of a motion to vacate the renewal of the judgment
under section 683.170 on January 22, 2019—over seven months
later—was untimely. Mirsky contends his motion was timely
because “service was at an address that Mirsky had not resided
at for many years.” Interinsurance Exchange argues service of
the motion was untimely because Interinsurance Exchange
properly served Mirsky at his last known address, which was the
Dona Rosa address. Mirsky has the better argument.
Section 683.160, subdivision (a), provides for service of the
renewal of judgment “personally or by first-class mail.”
Section 684.120, subdivision (a), provides, in turn, “Except as
otherwise provided in this title, if a writ, notice, order, or other
paper is to be served by mail under this title,[11] it shall be sent
by first-class mail (unless some other type of mail is specifically
required) . . . , in a sealed envelope, with postage paid, addressed
as follows: [¶] (1) If an attorney is being served in place of the
judgment creditor or judgment debtor as provided in
Section 684.010 or 684.020, to the attorney at the last address
given by the attorney on any paper filed in the proceeding and
served on the party making the service. [¶] (2) If any other
person is being served, to such person at the person’s current
mailing address if known or, if unknown, at the address last
11 Sections 683.160 and 684.120 are both within Title 9 of
Part 2 of the Code of Civil Procedure.
17
given by the person on any paper filed in the proceeding and
served on the party making the service. [¶] (3) If the mailing
cannot be made as provided in paragraph (1) or (2), to the person
at the person’s last known address.”
Under section 684.120, subdivision (a), because service was
not on an attorney for Mirsky, service was required “at the
address last given by the person on any paper filed in the
proceeding and served on the party making the service.”
(§ 684.120, subd. (a)(2).) The only address given by Mirsky in
this action is the Fuller Avenue address listed on Mirsky’s
March 12, 2001 application. Thus, service on Mirsky’s “last
known address” under section 684.120, subdivision (a)(3), was not
proper because that subdivision only applies where “the mailing
cannot be made as provided in paragraph (1) or (2),” which is not
the case here.12
At the hearing on Mirsky’s motion to vacate the renewal of
judgment, Interinsurance Exchange argued Mirsky never filed
12 Further, substantial evidence did not support the superior
court’s finding that the Dona Rosa address was Mirsky’s last
known address. Wallin argued at the hearing that
Interinsurance Exchange had presented evidence that (1) Mirsky
or his wife owned the Dona Rosa house from 1997 to 2013; (2) the
utilities were in Mirsky’s or Yelena’s name; (3) investigator Shaw
met with Mirsky in the Dona Rosa house in 1997; and
(4) Interinsurance Exchange’s diligent public records search
showed Mirsky lived at the Dona Rosa address. But the evidence
showed that after 1997 the house and utilities were in Yelena’s
name, who by then was Mirsky’s ex-wife, and no evidence was
submitted showing a public records search by Interinsurance
Exchange or that Shaw’s interview of Mirsky was in the Dona
Rosa house.
18
his March 12, 2001 application for an order extending the time
for him to file an answer to the complaint. And the superior
court apparently was not aware that the application had been
filed. In light of our augmentation of the record with the filed
application, service on the Dona Rosa address was not effective
service. Thus, Mirsky’s motion to vacate the renewal of judgment
was timely. (See § 683.170, subd. (b) [Any motion to vacate the
renewal of a judgment must be filed “[n]ot later than 30 days
after service of the notice of renewal.”]; Altizer, supra,
52 Cal.App.5th at p. 339 [“Once the notice of renewal is served,
the debtor has 30 days to make a motion to vacate or modify the
renewal.”].)
3. The superior court did not abuse its discretion in
denying the motion to vacate the renewal of judgment
Although we have concluded Interinsurance Exchange did
not properly serve Mirsky with the notice of renewal of judgment,
it does not follow that the renewal of judgment was subject to
attack for lack of proper service. As the Court of Appeal
explained in Goldman, supra, 160 Cal.App.4th at page 262,
footnote 4, “there is no statutory requirement that the notice of
renewal be served on the judgment debtor in order for the
renewal to be effective. (See § 683.160.) ‘Service on the judgment
debtor is not necessary to renew the judgment. However, no writ
of execution can issue on the renewed judgment until proof of
service of the Notice has been filed with the court clerk. Nor,
pending filing of proof of service, may the judgment creditor
commence any other enforcement proceeding (e.g., examination of
judgment debtor), unless it would have been available under the
nonrenewed original judgment. [Citations.] Thus, there is no
19
specified time period within which the renewal of judgment must
be served on the judgment debtor.” (Accord, Altizer, supra,
52 Cal.App.5th at p. 339; see § 683.160, subd. (b) [“Until proof of
service is filed pursuant to subdivision (a), no writ may be issued,
nor may any enforcement proceedings be commenced to enforce
the judgment, except to the extent that the judgment would be
enforceable had it not been renewed.”].)
However, as discussed, a debtor may, as here, raise failure
to serve the summons and complaint as a defense in a motion to
vacate renewal of a judgment. (Fidelity, supra, 89 Cal.App.4th at
p. 203.) Because we conclude below that Interinsurance
Exchange properly served Mirsky with the summons and
complaint, as well as the second amended complaint, the superior
court did not abuse its discretion in denying the motion to vacate
the renewal of judgment.13
B. The Trial Court Did Not Err in Finding the Default
Judgment Was Not Void and Denying Mirsky’s Motion To
Vacate the Judgment
Mirsky does not challenge service of the initial complaint
by substituted service. Instead, Mirsky contends the default
judgment was void because Interinsurance Exchange was
13 Although the superior court denied the motion to vacate the
renewal of judgment based on the untimeliness of Mirsky’s
motion, the court also found the default judgment was not void.
Further, “it is a settled appellate principle that if a judgment is
correct on any theory, the appellate court will affirm it regardless
of the trial court’s reasoning.” (Young v. Fish & Game Com.
(2018) 24 Cal.App.5th 1178, 1192-1193; accord, Lunada
Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 479.)
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required to serve him by personal service with the second
amended complaint in light of substantive differences between
the initial and second amended complaint. Because the second
amended complaint was not substantively different from the
initial complaint in any significant respect, service by mail was
proper.14
“When a court lacks jurisdiction in a fundamental sense,
such as lack of authority over the subject matter or the parties,
an ensuing judgment is void. [Citation.] To establish personal
jurisdiction, it is essential to comply with the statutory
procedures for service of process. [Citation.] Accordingly, ‘“a
default judgment entered against a defendant who was not
served with a summons in the manner prescribed by statute is
void.”’” (OC Interior Services, LLC v. Nationstar Mortgage,
LLC (2017) 7 Cal.App.5th 1318, 1330-1331; accord, Calvert v.
Al Binali (2018) 29 Cal.App.5th 954, 961.)
“‘We review de novo the trial court’s determination that a
default judgment is or is not void.’” (Airs Aromatics, LLC v. CBL
Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013,
1018; accord, Pittman v. Beck Park Apartments Ltd. (2018)
20 Cal.App.5th 1009, 1020 (Pittman) [“The trial court’s
determination whether an order is void is reviewed de novo; its
decision whether to set aside a void order is reviewed for abuse of
discretion.”]; Nixon Peabody LLP v. Superior Court (2014)
230 Cal.App.4th 818, 822.) As the Pittman court explained,
“[T]he reviewing court ‘generally faces two separate
determinations when considering an appeal based on section 473,
14 Because we reach whether the default judgment was void
for purposes of Mirsky’s motion to vacate the renewal of
judgment, we do not reach whether his motion was untimely.
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subdivision (d): whether the order or judgment is void and, if so,
whether the trial court properly exercised its discretion in setting
it aside.’” (Pittman, at p. 1020.)
“After a defendant’s default has been entered, if ‘“a
complaint is amended in matter of substance as distinguished
from mere matter of form, the amendment opens the default, and
unless the amended pleading be served on the defaulting
defendant, no judgment can properly be entered on the default”’
and any judgment is thus void.” (Paterra v. Hansen (2021)
64 Cal.App.5th 507, 529 (Paterra); accord, Sass v. Cohen (2020)
10 Cal.5th 861, 880 [“It is true that amending complaints in this
fashion [to allege the amount of estimated damages] would open
the default and give defendants another opportunity to
respond.”].)
As the Court of Appeal explained in Engebretson & Co. v.
Harrison (1981) 125 Cal.App.3d 436, 442-443 (Engebretson),
“When a complaint is served, the defendant faces the decision to
contest the action (perhaps seeking to negotiate a settlement at
the same time) or to remain aloof and risk the entry of default. If
the defendant fails to appear in the action after valid service of
process, it is reasonable to assume the latter course has been
chosen. Thereafter, if the complaint is amended in a way which
would materially affect the defendant’s decision not to contest the
action, this new circumstance should be brought home to the
defendant with the same force as the notification of the original
action. If the amended complaint is merely served by mail, the
defendant may assume the papers thus received only catalog the
procedural steps taken by the plaintiff to obtain a default
judgment on the original complaint and the defendant may fail to
examine them with the care they deserve. . . . Service of the
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amended complaint in the manner provided for service of
summons is much more likely to result in actual notice to the
defendant that something has occurred requiring reassessment of
the decision not to contest the action.”
In contrast to Paterra, Sass, and Engebretson, Mirsky’s
default was entered after the second amended complaint was
filed. But even if the reasoning in Engebretson applies here (see
Engebretson, supra, 125 Cal.App.3d at pp. 441-442 [referring to
“the well-established rule, reflected in section 1010, that an
amendment of substance must be served before a valid default
may be entered”]; § 1010 [“No bill of exceptions, notice of appeal,
or other notice or paper, other than amendments to the pleadings,
or an amended pleading, need be served upon any party whose
default has been duly entered or who has not appeared in the
action or proceeding.” (italics added)], the second amended
complaint was not substantively different from the initial
complaint. “An amended complaint makes material changes
when it increases the damages sought, or adds or changes a cause
of action based on a different factual or legal theory. [Citations.]
Based on the policies underlying the rule, ‘the test for what is
and is not a [material or] “substantive change” should focus on
whether the [change] might give rise to any different amount or
form of liability, or indicate the existence of any defense or ground
for avoiding liability, not reasonably disclosed in the original
complaint.’” (Paterra, supra, 64 Cal.App.5th at p. 530; accord,
Ostling v. Loring (1994), 27 Cal.App.4th 1731, 1744 [“An
amendment of the complaint is material if it subjects the
defendant to increased damages.”]; Ford v. Superior Court (1973)
34 Cal.App.3d 338, 343 [adding a new cause of action based on a
different legal theory is a material change to the complaint]; Leo
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v. Dunlap (1968) 260 Cal.App.2d 24, 27-28 [increasing amount of
damages is a substantive change].)
In this case, the second amended complaint did not
increase the amount of damages sought against Mirsky, add or
change a cause of action based on different facts or legal theory,
or indicate the existence of any defenses or grounds for avoiding
liability that were not already reasonably apparent from the facts
set forth in the initial complaint. The second amended
complaint, as did the initial complaint, described the fraudulent
conduct as consisting of a ring of law offices, attorneys, doctors,
and medical billers who staged automobile accidents for the
purpose of making fraudulent insurance claims. The second
amended complaint clarified these allegations by attaching
charts detailing what specific fraudulent claims were linked to
each of the 27 defendants. While the initial complaint alleged
there were 855 separate claimants, the second amended
complaint narrowed the scope of damages sought against Mirsky
by reducing the number of claimants to 318. Further, the initial
complaint sought damages in the amount of three times the
amount of each claim for compensation plus civil penalties of
$10,000 for each violation of the insurance code; the second
amended complaint likewise sought damages “in an amount
equal to three times the amount of each claim for compensation
by the defendants, plus a civil penalty of $10,000 for each
violation of California Insurance Code § 1871.7 or Penal Code
§§ 549 or 550.” And the statement of damages served on Mirsky
with the summons and initial complaint sought $15,674,374.50 in
damages, as did Exhibit A to the second amended complaint.
Mirsky’s reliance on Sheehy v. Roman Catholic Archbishop
of San Francisco (1942) 49 Cal.App.2d 537 is unavailing. In
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Sheehy, the father of a child who died at school as a result of
injuries inflicted by other students sued the church that
controlled operations of the school, the pastor, and others. (Id. at
p. 538.) The pastor defaulted on the initial complaint, then failed
to respond to an amended complaint that was not served on him.
The court of appeal concluded the trial court should have vacated
the default judgment against the pastor because there were
substantive changes to the complaint, specifically, that the initial
complaint alleged the child told the defendants his classmates
were playing roughly, then after a demurrer filed by
codefendants was sustained and the hearsay statements in the
complaint stricken, the amended complaint alleged it was the
father who told the defendants the classmates were playing
roughly. (Id. at p. 540.) The Court of Appeal concluded the
change was substantive because the father, by filing the second
amended complaint, admitted the allegations in the complaint
were not sufficient to state a claim. (Id. at pp. 540-541.) In
contrast to Sheehy, by filing the second amended complaint,
Interinsurance Exchange did not concede the factual allegations
of the complaint did not state a claim. Although the second
amended complaint provided additional specificity on which
fraudulent claims were made as to which defendants for purposes
of pleading the fraud claim, the unfair business claim was found
to be sufficient. And the allegations as to Mirsky’s leadership of a
ring to commit insurance fraud remained the same. Further,
Mirsky was well aware from the allegations in the initial
complaint (and the prior criminal actions) what constituted the
alleged fraudulent conduct for which Interinsurance Exchange
sought damages and penalties. Moreover, unlike Sheehy, Mirsky
was served with the second amended complaint and conceded in
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his March 2001 application filed in the superior court that he had
received it. Therefore, Mirsky’s contention he was not served
with the second amended complaint because he was in federal
prison in Nevada also fails. (See Liebovich v. Shahrokhkhany
(1997) 56 Cal.App.4th 511, 517 [“party’s acknowledgment or
admission of receipt by mail established or amounted to personal
service”]; Shearman v. Jorgensen (1895) 106 Cal. 483, 485
[defendant’s counsel admitted “he received the notice through the
post-office December 9th, and this in law amounted to a personal
service”].)
DISPOSITION
The order denying Mirsky’s motion to vacate the renewal of
judgment or the default judgment is affirmed. Interinsurance
Exchange is entitled to recover its costs on appeal.
FEUER, J.
We concur.
SEGAL, Acting P. J.
IBARRA, J. *
* Judge of the Santa Clara Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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