Floyd v. Wilson CA2/1 ( 2020 )

Filed 12/17/20 Floyd v. Wilson CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
DAN BRYAN FLOYD, as Trustee, B301997
etc.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. PC053448)
v.
ELIZABETH WILSON,
Defendant and Respondent.
APPEAL from an order and a judgment of the Superior
Court of Los Angeles County, Stephen P. Pfahler, Judge.
Affirmed.
Law Offices of James W. Bates and James W. Bates for
Plaintiffs and Appellants.
Lex Law Corp. and Lisa Miller for Defendant and
Respondent.
____________________________
This case involves principles evocative of a law student’s
first lessons. For example, “[a] summons is the process by which
a court acquires personal jurisdiction over a defendant in a civil
action.” (MJS Enterprises, Inc. v. Superior Court (1984)
153 Cal. App. 3d 555, 557.) “[C]ompliance with the statutory
procedures for service of process is essential to establish personal
jurisdiction. [Citation.] Thus, a default judgment entered
against a defendant who was not served with a summons in the
manner prescribed by statute is void.” (Dill v. Berquist
Construction Co. (1994) 24 Cal. App. 4th 1426, 1444 (Dill).) A
trial court may set aside a default judgment that is void due to
improper service. (Ellard v. Conway (2001) 94 Cal. App. 4th 540,
544.)
It is undisputed that plaintiffs Loretta M. Coha (Coha) and
Equity Trust Company (Equity) did not serve defendant
Elizabeth Wilson (Wilson) at the correct address in August 2012.1
In April 2019, the trial court granted Wilson’s motion to quash
service of summons and simultaneously vacated the default
judgment previously entered against Wilson based on that
improper service. Shortly thereafter, plaintiffs served Wilson,
this time at the proper address. Wilson then moved to dismiss
the lawsuit because that service was outside the three-year
period for service mandated by Code of Civil Procedure
section 583.210, subdivision (a).2 The trial court granted the
motion.
1 Coha is now deceased. Dan Bryan Floyd has substituted
in as her successor in interest.
2Undesignated statutory citations are to the Code of Civil
Procedure.
2
On appeal, plaintiffs argue that (1) even if they served
Wilson improperly in 2012, Wilson’s purported general
appearance at a debtor’s examination in January 2019 conferred
personal jurisdiction over her; (2) Wilson’s motion to quash the
2012 service was untimely; and (3) the trial court erred in
entertaining Wilson’s motion to quash the 2012 service and
motion to dismiss for violation of the three-year rule because
Wilson did not first move to vacate the default judgment.
Assuming arguendo that Wilson made a general appearance at
the debtor examination, it was too late to confer personal
jurisdiction over her because the three-year period for service had
already expired. Plaintiffs’ challenge to the timeliness of Wilson’s
motion to quash incorrectly presumes that plaintiffs properly
served Wilson in August 2012, which service plaintiffs
acknowledge on appeal was not proper. Even if Wilson did not
properly stylize her motion as a motion to vacate the default
judgment, plaintiffs demonstrate no error in the trial court’s
conclusion that it should vacate the default judgment. We thus
affirm the judgment of dismissal.3 We also affirm the order
granting Wilson’s motion to quash and vacating the default
judgment.
BACKGROUND
1. Complaint
On July 31, 2012, plaintiffs sued Sirius Financial, Mary
Burak, Victoria Burak, and Elizabeth Wilson alleging causes of
3 The judgment dismisses only defendant Wilson.
Although there were other defendants in the lawsuit, the trial
court did not vacate the default judgment with respect to them.
3
action for breach of contract, fraud, and money had and received.
According to plaintiffs, “Equity serves only as custodian of the
assets of the account and has no discretionary authority for the
management, use and disposition of such property.” Plaintiffs
alleged that there was a unity in interest between Sirius, Mary
Burak, Victoria Burak, and Wilson.
Plaintiffs further alleged that Mary Burak represented
Coha in the sale of a residential property. Mary Burak
persuaded Coha to invest in a business formed by Mary and her
daughters Victoria Burak and Wilson. In return for Coha’s
investment, Mary Burak signed a promissory note stating that
“in exchange for Equity lending Defendants two hundred seventy
four thousand three hundred ninety dollars and twenty seven
cents ($274,390.27) Equity will be repaid with interest from
May 1, 2009 until paid, at the rate of fifteen percent (15%), per
annum, payable in yearly installments of forty one thousand one
hundred fifty eight dollars and zero cents ($41,158.00) beginning
on May 1, 2010 and continuing until April 30, 2011 at which time
the entire unpaid principal balance and accrued interest shall
become due and payable in full.” (Some capitalization omitted.)
Defendants never paid Coha or Equity the amounts due under
the loan. Plaintiffs further alleged that defendants knew that
their representations were false at the time they promised to
repay the money.
Plaintiffs attached to the complaint a promissory note,
signed by Mary Burak on behalf of Sirius. The note provides:
“Should suit be commenced or an attorney employed to enforce
the payment of this note, I agree to pay such additional sum as
the court may adjudge reasonable as attorney’s fees in said suit.”
4
Plaintiffs attached a proof of service for the complaint on
Wilson as “substituted service” on Wilson’s mother (Mary Burak)
at an address on Nevada Avenue in Chatsworth. The proof of
service indicates that the process server served the complaint on
August 10, 2012 and mailed the complaint to the same address
the next day. On appeal, it is undisputed that Wilson did not live
at the Chatsworth address at the time the process server served
her there.
2. Entry of default
In November 2012, plaintiffs requested the entry of a
default judgment. The trial court entered judgment by default in
the amount of $448,255.65. The judgment was against all
defendants including Wilson.
3. Wilson is served with notice to appear at a debtor’s
examination and appears at the debtor’s examination
On September 24, 2018, plaintiffs filed an order for Wilson
to appear at a debtor’s examination. Plaintiffs served the order
on Wilson on December 23, 2018 at her personal residence in Van
Nuys, not at the Chatsworth location where plaintiffs had served
the summons and complaint.
Wilson appeared in propria persona for the debtor’s
examination on January 11, 2019. No reporter was present. A
minute order states: “The matter is called for hearing. [¶]
Elizabeth Wilson is duly sworn and examination begins. [¶] The
matter is continued for further examination by stipulation of all
parties to February 8, 2019 . . . .”
5
4. Motion to quash service of summons
On March 27, 2019, Wilson, now represented by counsel,
filed a motion to quash service of summons. Wilson argued that
the default judgment against her was predicated on substituted
service on August 11, 2012. Wilson argued that she had not lived
at the address where substitute service was made since April 1,
2000. Wilson stated that she was not aware of the lawsuit or the
default judgment until she was served with a copy of an order of
appearance for a debtor’s examination in December 2018. Wilson
argued that because service of the summons was improper, the
court did not have jurisdiction over her.
Plaintiffs opposed Wilson’s motion to quash. Plaintiffs
argued that: The trial court should presume the service was
proper; Wilson’s motion to quash was untimely; and Wilson
forfeited any objection to service by appearing at the debtor’s
examination. Plaintiffs also argued that “[t]his is not a motion to
set aside default and default judgment pursuant to Code of Civil
Procedure § 473.” Plaintiffs did not dispute that in August 2012,
Wilson lived in Van Nuys, not Chatsworth where her mother
lived.
The hearing on Wilson’s motion to quash was not reported.
By minute order dated April 26, 2019, the trial court found
plaintiffs did not properly serve Wilson. The court explained that
the address for substituted service was not Wilson’s residence
and thus, service was invalid. The trial court further concluded
that because Wilson was not served, the court did not have
personal jurisdiction over her and the resulting default judgment
was void. The court explained: “ ‘[A] judgment or order that is
invalid or void on its face for lack of personal jurisdiction may be
directly or collaterally attacked at any time.’ ” The court also
6
concluded that a default judgment entered against a person who
was not properly served with the summons is void.
The court also found that Wilson’s appearance at the
debtor’s examination was not a general appearance for purposes
of enforcing a judgment. The trial court vacated the default
judgment as to Wilson only.4 The trial court ordered that
“Plaintiff[s] may either proceed with an effort for new service o[f]
process or dismiss Elizabeth Wilson.”
On April 26, 2019, the court clerk filed the order. On
April 27, 2019, the clerk served the order with a certificate of
mailing. The certificate of mailing did not attach a file-stamped
copy of the minute order. On May 23, 2019, plaintiffs’ counsel
served a notice of ruling of the court’s April 26, 2019 minute
order.
5. Plaintiffs properly serve Wilson the summons and
complaint in May 2019
Plaintiffs served Wilson with the summons and complaint
on May 22, 2019 at her Van Nuys address. Wilson acknowledged
that this service was proper.
6. Wilson moves to dismiss the action because plaintiffs
failed to serve her within three years after filing the
complaint
On June 21, 2019, Wilson moved to dismiss the complaint
against her because plaintiffs failed to serve the summons within
three years of filing the complaint. Wilson stated that although
plaintiffs filed their complaint on July 31, 2012, plaintiffs did not
4 See footnote 3, ante.
7
serve her properly until May 21, 2019—after the three-year
deadline for service had expired.
Plaintiffs opposed Wilson’s motion to dismiss. They
contended they did not delay in service because they served her
shortly after the trial court quashed service of the original
summons. According to plaintiffs: “This case is not the type of
case that was envisioned by the Legislature when it created
Code of Civil Procedure § 583—Plaintiffs have not delayed service
of the Summons on Wilson in this action—it was only on April 26,
2019 that the court granted Wilson’s motion to quash service of
the summons served upon her on August 10, 2012.”
(Capitalization & underscoring omitted.)
On August 30, 2019, the trial court granted the motion to
dismiss. Citing sections 583.210 and 583.250, subdivision (a), the
trial court noted that plaintiffs had to serve the summons within
three years of the date on which the action was commenced.5 On
August 30, 2019, the court issued a signed order dismissing the
case without prejudice as to Wilson.6
On October 22, 2019 plaintiffs filed a notice of appeal
indicating that they were appealing from the April 26, 2019 and
the August 30, 2019 orders.7
5 Section 583.210, subdivision (a) states that for purposes
of computing the three-year period, an action is commenced “at
the time the complaint is filed.”
6 A signed order of dismissal constitutes a judgment.
(§ 581d.)
7 An order granting a motion to quash service of summons
is an appealable order. (§ 904.1, subd. (a)(3).)
8
DISCUSSION
A. The Appeal is Timely
California Rules of Court, rule 8.104(a) sets forth the
deadlines for appealing as follows: “(1) Unless a statute or rules
8.108, 8.702, or 8.712 provides otherwise, a notice of appeal must
be filed on or before the earliest of: [¶] (A) 60 days after the
superior court clerk serves on the party filing the notice of appeal
a document entitled “Notice of Entry” of judgment or a filed-
endorsed copy of the judgment, showing the date either was
served; [¶] (B) 60 days after the party filing the notice of appeal
serves or is served by a party with a document entitled “Notice of
Entry” of judgment or a filed-endorsed copy of the judgment,
accompanied by proof of service; or [¶] (C) 180 days after entry of
judgment.” (Italics added.)
In this case, neither the court clerk nor any party filed a
document entitled “notice of entry.” Wilson incorrectly argues
that a certificate of mailing and notice of ruling are the same as a
notice of entry. To start the clock for an appeal, the document
must be entitled notice of entry or include a file-stamped copy of
the order. (Alan v. American Honda Motor Co., Inc. (2007)
40 Cal. 4th 894, 902, 905; Sunset Millennium Associates, LLC v.
Le Songe, LLC (2006) 138 Cal. App. 4th 256, 260–261.) Because
neither the clerk nor any party served notice of entry and no
notice included a file-stamped copy of the order, plaintiffs had
180 days within which to appeal from the April 26, 2019 order.
Plaintiffs filed their appeal within the required 180 days. Wilson
does not dispute that plaintiffs timely filed their appeal from the
judgment of dismissal, and we agree that the appeal was timely.
9
B. Plaintiffs Demonstrate No Error on Appeal
A judgment or order challenged on appeal is presumed to
be correct, and the appellant must demonstrate error. (Denham
v. Superior Court (1970) 2 Cal. 3d 557, 564.) An appellant has the
burden not only to show error, but also to demonstrate prejudice
from that error. (Cal. Const., art. VI, § 13.) Absent satisfying
these burdens, the appeal fails. (Century Surety Co. v. Polisso
(2006) 139 Cal. App. 4th 922, 963.) “[W]e cannot presume
prejudice and will not reverse the judgment in the absence of an
affirmative showing there was a miscarriage of justice.
[Citations.] Nor will this court act as counsel for appellant by
furnishing a legal argument as to how the trial court’s ruling was
prejudicial.” (Ibid.)
As noted earlier, on appeal, plaintiffs raise three
arguments. Specifically, plaintiffs argue (1) Wilson generally
appeared on January 11, 2019 at the debtor examination, which
conferred personal jurisdiction over her in the trial court;
(2) defendant’s motion to quash service was untimely because
Wilson had to file her motion to quash within 30 days of the
August 10, 2012 service of process; and (3) Wilson could not file a
motion to quash or motion to dismiss without first moving to set
aside the default judgment.8
8 Although the standard of review of a motion to quash
depends on the nature of the appellate challenge, here plaintiffs
raise only legal arguments, which we review de novo. (See Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 449,
abrogated on other grounds by Bristol-Myers Squibb Co. v.
Superior Court (2017) __ U.S. ___, ___, [137 S. Ct. 1773, 1781.)
Wilson argues that the standard of review should be abuse of
10
Before considering plaintiffs’ arguments, we briefly
explain what is undisputed on appeal. By minute order dated
April 26, 2019, the trial court found that plaintiffs had not
properly served Wilson in August 2012. Plaintiffs do not
challenge that finding on appeal.9 In the same minute order, the
trial court concluded that a default judgment entered against a
defendant, who was not served with the summons in the proper
manner, is void. Plaintiffs do not challenge that conclusion on
appeal either.
Aside from arguing that Wilson made a general
appearance, plaintiffs do not challenge the trial court’s finding
that the dismissal of the lawsuit was mandatory because
plaintiffs did not serve Wilson within a three-year period.10
discretion, but she identifies no discretionary determination
challenged on appeal.
9 Section 415.20, subdivision (b) governs substitute service
and requires leaving the summons and complaint at the person’s
dwelling house and mailing a copy to the same address.
10 Section 583.210 provides in pertinent part: “The
summons and complaint shall be served upon a defendant within
three years after the action is commenced against the defendant.
For the purpose of this subdivision, an action is commenced at
the time the complaint is filed.” (§ 583.210, subd. (a).)
Section 583.240 provides: In computing the time within
which service must be made pursuant to this article, there shall
be excluded the time during which any of the following conditions
existed:
(a) The defendant was not amenable to the process of the
court.
11
Plaintiffs do not argue that the entry of the default judgment
tolled the three-year period in which they were required to serve
Wilson. (Dale v. ITT Life Ins. Corp. (1989) 207 Cal. App. 3d 495,
502–503 [entry of default judgment does not toll time period for
service of process].) We now turn to plaintiffs’ arguments, which
we discuss seriatim.
1. Even if Wilson’s appearance at the Debtor’s
Examination Were a General Appearance, the Trial
Court Did Not Obtain Jurisdiction Over Her Because
Any Such Appearance Was Outside the Three-Year
Mandatory Period For Serving Her
Plaintiffs argue that Wilson made a general appearance at
the debtor’s examination on January 11, 2019. According to
plaintiffs: “If Wilson believed that the trial court did not have
jurisdiction over her because of the issue of service of the
Complaint, she should not have appeared at the judgment debtor
examination hearing.” (Capitalization, boldface & underscoring
(b) The prosecution of the action or proceedings in the
action was stayed and the stay affected service.
(c) The validity of service was the subject of litigation by
the parties.
(d) Service, for any other reason, was impossible,
impracticable, or futile due to causes beyond the
plaintiff’s control. Failure to discover relevant facts
or evidence is not a cause beyond the plaintiff’s
control for the purpose of this subdivision.
Plaintiffs do not rely on any provision in section 583.240.
12
omitted.) Plaintiffs rely on the general principle that “ ‘[a]
defendant submits to the court’s jurisdiction by making a general
appearance in an action’ by ‘participat[ing] in the action in a
manner which recognizes the court’s jurisdiction.’ ” (State Farm
General Ins. Co. v. JT’s Frame, Inc. (2010) 181 Cal. App. 4th 429,
441 (State Farm); see also Factor Health Management v. Superior
Court (2005) 132 Cal. App. 4th 246, 250 [“A defendant submits to
the court’s jurisdiction by making a general appearance in an
action.”)
This principle does not apply to a defendant who generally
appears after the time for service of process has expired. “A
general appearance after the period for service has run does not
give the court jurisdiction over the defendant.” (Dale v. ITT Life
Ins. Corp., supra, 207 Cal.App.3d at pp. 499–500, fn. 4.) Notably,
our Supreme Court explained: “ ‘[A] general appearance after the
three years had run did not operate to deprive a defendant of his
right to a dismissal . . . .’ ” (Blank v. Kirwan (1985) 39 Cal. 3d
311, 333.)
We need not decide whether Wilson’s appearance at the
debtor’s examination was a general appearance. Assuming that
it was a general appearance, the appearance occurred after the
three-year period for service had expired. In short, plaintiffs
do not show that the trial court had personal jurisdiction over
Wilson.
Plaintiffs rely on State Farm, supra, to no avail. In that
case, Division Four of this court held an “order denying the
motion to quash is not appealable where, as here, the party
contesting jurisdiction enters a general appearance and litigates
the merits.” (181 Cal.App.4th at p. 433.) There, our colleagues
rejected the defendant’s contention that “as long as writ review of
13
the order denying a motion to quash is pending at the time of
final resolution of the case, a defendant who initially contests
jurisdiction and thereafter fully litigates the merits of the case
has never made a general appearance and therefore never waived
the alleged jurisdictional defect for purposes of seeking appellate
review.” (Id. at p. 440.)
Instead, our colleagues opined in a case in which defendant
had unsuccessfully challenged the trial court’s denial of its
motion to quash for lack of personal jurisdiction in a writ
proceeding: “Once the motion is denied or writ proceedings have
concluded, the actions undertaken by the defendant while the
motion or writ was pending that recognized the trial court’s
jurisdiction will be ‘deemed’ to constitute a general appearance,
and no further objection to jurisdiction will be permitted.
[Defendant] having participated fully in resolving the merits of
the litigation while the writ was pending, submitted itself to the
jurisdiction of the court and waived any further right to contest
personal jurisdiction.” (State Farm, supra, 181 Cal.App.4th at
p. 441.) We fail to discern the relevance of State Farm to the case
before us. State Farm did not consider the consequence of a
defendant entering a purported general appearance after the
time for service of process had expired.
2. Plaintiffs Do Not Demonstrate That Wilson’s Motion
to Quash Was Untimely
Plaintiffs argue that the trial court erred in granting
Wilson’s motion to quash because it was not timely under
section 418.10, subdivision (a). Specifically, they contend that
Wilson was served on August 10, 2012, and that the last day for
Wilson to serve a response was therefore on September 20, 2012.
14
Section 418.10, subdivision (a) provides in pertinent part:
“A defendant, on or before the last day of his or her time to plead
or within any further time that the court may for good cause
allow, may serve and file a notice of motion for one or more of the
following purposes: [¶] (1) To quash service of summons on the
ground of lack of jurisdiction of the court over him or her.”
The problem with plaintiffs’ argument is that it is based on
the false premise that plaintiffs served Wilson on August 10,
2012. As explained above, plaintiffs’ substitute service on Wilson
in 2012 was ineffective. (See Greene v. Municipal Court (1975)
51 Cal. App. 3d 446, 451–452 [trial court does not acquire
jurisdiction over parties served with defective summons].)
Plaintiffs did not effect service on Wilson until May 22, 2019, and
she timely filed her motion to quash based on that proper service.
Stated otherwise, Wilson filed her motion to quash less than 30
days after the summons was served on her on May 22, 2019.
(§ 412.20, subd. (a)(3) [defendant has 30 days to file a response to
a summons].) “Service of process, under longstanding tradition in
our system of justice, is fundamental to any procedural
imposition on a named defendant.” (Murphy Bros., Inc. v.
Michetti Pipe Stringing, Inc. (1999) 526 U.S. 344, 350; AO Alfa-
Bank v. Yakovlev (2018) 21 Cal. App. 5th 189, 202 [same].)
3. Plaintiffs Demonstrate No Error in the Trial Court’s
Order Vacating the Default Judgment
When it granted Wilson’s motion to quash, the trial court
also vacated the default judgment so far as it concerned Wilson.
Plaintiffs do not challenge the trial court’s conclusion that the
default judgment was void because of the defective service.
Instead plaintiffs make a procedural argument: Wilson had to
bring a motion to vacate the default judgment under sections 473,
15
subdivision (b) and 473.5 prior to filing a motion to quash or
motion to dismiss. Plaintiffs are technically correct that Wilson
filed her motion to quash before filing a motion to vacate the
default judgment although their authorities are not apposite.11
Where, as here, the trial court in fact vacated the default
judgment, any such technical error was harmless and a reversal
based on that harmless error would be an idle act.
Quoting Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc.
(1984) 155 Cal. App. 3d 381, 385–386 (Devlin), plaintiffs contend:
“Once a default has been entered against a defendant, a
defendant has no right to appear in court until either (a) its
default is set aside, or (b) a default judgment is entered.”
Plaintiffs also argue that Wilson first had to move to set aside the
default judgment.
In Devlin, supra, a defendant appealed twice. In the first
appeal, the appellate court rejected the defendant’s effort to
quash service of process and set aside a default judgment.
(155 Cal.App.3d at p. 384.) In the second appeal, the appellate
court considered whether the defendant could participate in
further proceedings regarding the amount of punitive damages.
(Ibid.) Noting that “a judgment hearing following default” was of
an “ex parte nature,” the court held that the defaulted defendant
could not participate in that hearing. (Id. at pp. 385–386.) In
contrast to the defendant in Devlin, who filed an unsuccessful
motion to quash, Wilson filed a successful motion to quash and
the trial court vacated the default judgment. Plaintiffs do not
explain how Devlin is instructive.
11 Wilson filed her motion to dismiss after the trial court
vacated the default judgment.
16
Plaintiffs also cite sections 473, subdivision (b) and 473.5,
but fail to explain how those statutes apply to the instant matter.
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
statute is not applicable here because Wilson did not seek to be
relieved from the default judgment on the ground of mistake,
inadvertence, surprise, or excusable neglect, but instead, lack of
personal jurisdiction based on ineffective service.
Section 473.5 provides in pertinent part: “When service of
a summons has not resulted in actual notice to a party in time to
defend the action and a default or default judgment has been
entered against him or her in the action, he or she may serve and
file a notice of motion to set aside the default or default judgment
and for leave to defend the action. The notice of motion shall 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.” (§ 473.5, subd. (a).) “ ‘ “[A]ctual notice” in
section 473.5 “means genuine knowledge of the party
litigant . . . .” [Citation.]’ ” (Ellard v. Conway, supra,
94 Cal.App.4th at p. 547.) A person may be properly served but
lack actual notice of the litigation. Here, the trial court did not
vacate the default judgment because Wilson did not receive notice
of the lawsuit. Instead, the trial court vacated the default
judgment because it concluded that the judgment was void for
ineffective service in the first place.
17
Finally, plaintiffs have failed to demonstrate prejudice from
Wilson’s failure to file a motion called a motion to vacate.
Plaintiffs identify no substantive challenge to the trial court’s
conclusion that it had to vacate the default judgment. Although
the trial court rendered that conclusion following a motion to
quash not a motion to vacate, we decline to remand the case to
require Wilson to file a motion stylized as a motion to vacate.
The law does not require idle acts. (Civ. Code, § 3532.)
Remanding this matter for Wilson to file a motion to vacate
would indeed be an exercise in futility because the trial court has
already found it had to vacate the default judgment because of
ineffective service, and on appeal plaintiffs have not identified
any error with that finding.
Dill supports the futility of a remand to enable Wilson to
file a motion denominated a motion to vacate the default
judgment against her. In Dill, the appellate court held that a
trial court impliedly granted a motion to vacate a default when it
dismissed a lawsuit for improper service (24 Cal.App.4th at
p. 1443), and observed that “[t]here is no reason to force the
defendants to such an expense [of filing a formal motion] when
the determinative legal issue has already been correctly decided
by the trial court.” (Id. at p. 1444.)
Here, we do not even have to imply that the trial court
intended to vacate the default judgment; it in fact did vacate the
default judgment against Wilson. Plaintiffs demonstrate no error
in the order vacating the default judgment and therefore fail to
demonstrate any error requiring reversal.12
12 In a supplemental letter brief, Wilson requested
sanctions, but failed to file a noticed motion as required by
California Rules of Court, rule 8.276. Although Wilson faults
18
appellant’s counsel for pursuing the appeal after Coha died,
counsel eventually substituted in a new plaintiff. (See fn. 1,
ante.)
19
DISPOSITION
The order quashing service is affirmed. The judgment of
dismissal of Elizabeth Wilson is affirmed. The parties shall bear
their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
20