Rosas v. Kensington Caterers CA2/3 ( 2020 )

Filed 12/29/20 Rosas v. Kensington Caterers CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROSA ROSAS et al., B299784
Plaintiffs, (Los Angeles County
Super. Ct. No. BC507797)
v.
KENSINGTON CATERERS, INC.,
et al.,
Defendants and Respondents;
WILLIE McMULLEN,
Claimant and Appellant.
PURPORTED APPEAL from an order of the Superior
Court of Los Angeles County, Mel Red Recana, Judge.
Dismissed.
Willie McMullen, in pro. per., for Claimant and Appellant.
Law Offices of Cruz & Del Valle, Leonard G. Cruz and
Sonia H. Del Valle for Defendants and Respondents Kensington
Caterers, Inc. and Richard Mooney.
_________________________
Claimant and appellant Willie McMullen (McMullen)
purports to appeal a postjudgment order denying his motion
under Code of Civil Procedure section 473, subdivision (d), to
vacate a 2015 order that relieved defendants and respondents
Kensington Caterers, Inc. (Kensington) and Richard Mooney
(Mooney) (sometimes collectively referred to as Kensington) of
defaults and default judgments that had been entered against
them.1
We conclude the appeal must be dismissed because the July
30, 2019 order which is the subject of this appeal is not
appealable as a postjudgment order. (§ 904.1, subd. (a)(2).)
Further, even if we were to reach the merits of McMullen’s
appeal, we would affirm the trial court’s order denying
McMullen’s motion to vacate the 2015 order, as that order is not
void.
FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiffs obtain default judgments and assign them to
McMullen for collection.
On May 3, 2013, Rosa Rosas and Julio Casas (Plaintiffs)
(not parties to this appeal) filed an employment action against
Kensington and Mooney. On March 19, 2015, each of the
1 All unspecified statutory references are to the Code of Civil
Procedure.
2
Plaintiffs obtained a default judgment of $250,585 against both
Kensington and Mooney. On March 26, 2015, Plaintiffs executed
written assignments of their default judgments, for purposes of
collection, to McMullen, doing business as Strategic Collections.
On July 22, 2015, pursuant to a writ of execution, McMullen
levied on $293,896.07 in accounts belonging to Kensington.
2. Kensington successfully moves to vacate the default
judgments; the order granting Kensington’s motion to vacate is
affirmed on appeal.
On September 4, 2015, Kensington and Mooney filed an ex
parte application for an order shortening time and a motion to
vacate the defaults and default judgments, contending, inter alia,
the court lacked jurisdiction because the judgments were
procured by a false affidavit of service, and due process was
violated because the judgments exceeded the amount demanded
in the complaint.
On September 4, 2015, and September 25, 2015,
respectively, McMullen filed opposition to Kensington’s ex parte
application and its motion to vacate, although McMullen had not
been involved in securing the entries of default or default
judgments.2
On October 7, 2015, McMullen assigned all of his rights,
title and interest in the judgments back to Plaintiffs.
After repeated continuances of the hearing, on November
24, 2015 the court granted Kensington’s motion on all grounds
asserted in the moving papers, and deemed the proposed answer
filed and served. On November 30, 2015, Kensington’s counsel
2 The court denied the application for an order shortening
time and directed Kensington to bring the matter as a regularly
noticed motion.
3
gave McMullen notice of the trial court’s ruling and demanded
immediate return of the seized funds.
On December 18, 2015, the trial court entered a formal
order vacating the defaults and default judgments, and recalling
the writ of execution.
On March 2, 2016, the trial court granted a motion by
Kensington for an order compelling Plaintiffs, their counsel, and
McMullen to return the seized funds. McMullen was served with
notice of the ruling that same day.
Plaintiffs appealed. In an unpublished opinion, this court
affirmed the December 18, 2015 order granting Kensington’s
motion to vacate. (Rosas v. Kensington Caterers Inc. (Apr. 14,
2017, B270721) [nonpub. opn.] (Rosas I).) We concluded, inter
alia, “the trial court found that [Kensington and Mooney] were
not served with the summons and complaint, and we defer to the
trial court’s determination as to credibility.”
3. McMullen’s first motion to vacate.
On August 24, 2017, McMullen filed a motion to vacate as
void the March 2, 2016 restitution order, an April 5, 2016 order
granting Kensington leave to file a cross-complaint against
McMullen, and the summons on the cross-complaint issued on
April 19, 2016. McMullen argued that the trial court lacked
personal jurisdiction over him because he was not a party to the
action and had not been served with a summons or complaint.
McMullen also argued that the trial court lacked subject matter
jurisdiction when it granted Kensington leave to file a cross-
complaint against him because jurisdiction was vested in the
appellate court, due to the pendency of Rosas I, at the time the
trial court granted Kensington leave to file a cross-complaint.
4
On September 29, 2017, the trial court denied McMullen’s
motion to vacate, and subsequently denied a motion for
reconsideration of that order.
4. The decision on the prior appeal, which rejected
McMullen’s arguments that the trial court lacked personal
jurisdiction and subject matter jurisdiction.
McMullen appealed the September 29, 2017 order denying
his motion to vacate the March 2, 2016 restitution order.
McMullen contended the trial court never acquired personal
jurisdiction over him and therefore could not order him to return
the funds to Kensington and Mooney. He also contended that
during the pendency of the previous appeal by Plaintiffs, Rosas I,
the trial court was divested of subject matter jurisdiction and
therefore had no authority to grant leave to Kensington and
Mooney to file a cross-complaint against him.
In another unpublished opinion, this court affirmed the
order denying McMullen’s motion to vacate. (Rosas v. Kensington
Caterers Inc. et al. (Mar. 26, 2019, B286505) [nonpub. opn.]
(McMullen I).) This court rejected McMullen’s contention that
the trial court lacked personal jurisdiction over him on March 2,
2016, when it entered the order requiring him to return the funds
he had seized from Kensington’s accounts. We stated:
“McMullen, who had not been named as a party, made a general
appearance in September 2015 when he began participating in
the action by filing opposition to Kensington’s and Mooney’s
motion to set aside the default judgments. In doing so, McMullen
recognized the authority of the court to proceed and thereby
waived any objection based on lack of personal jurisdiction.
Because McMullen had submitted to the trial court’s jurisdiction,
the court had jurisdiction to enter the March 2, 2016 order
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directing him to return the funds to Kensington and Mooney.
Accordingly, McMullen’s motion to vacate the March 2, 2016
order, which was predicated on the trial court’s alleged lack of
personal jurisdiction over him, was meritless and properly was
denied.”
We also rejected McMullen’s contention that the trial court
was divested of subject matter jurisdiction during the pendency of
Plaintiffs’ appeal in Rosas I. We explained: “Only a valid notice
of appeal divests the trial court of jurisdiction. (People v. Perez
(1979) 23 Cal.3d 545, 554.) Conversely, ‘[a]n appeal from a
nonappealable order does not divest the trial court of jurisdiction.
[Citations.]’ (Holloway v. Quetel (2015) 242 Cal.App.4th 1425,
1431, fn. 6.) . . . [T]his court held in Rosas I that because
[Plaintiffs’] notice of appeal improperly specified the
nonappealable February 9, 2016 order denying reconsideration,
rather than the underlying order vacating the default judgments,
[Plaintiffs] failed to perfect an appeal from the order granting
Kensington’s and Mooney’s motion to vacate. This court further
held that [Plaintiffs] lacked standing to appeal the March 2, 2016
order directing their counsel to return seized funds to Kensington
and Mooney. Because [Plaintiffs] had failed to bring a proper
appeal, the pendency of Rosas I did not divest the trial court of
jurisdiction. [¶]] Additionally, McMullen was not a party to
[Plaintiffs’] appeal in Rosas I. Therefore, the pendency of Rosas I
did not divest the trial court of jurisdiction to allow the filing of
the cross-complaint against McMullen. (See LAOSD Asbestos
Cases (2018) 28 Cal.App.5th 862, 876 [the pendency of an appeal
‘does not remove the trial court’s jurisdiction to conduct litigation
of claims outside the scope of that judgment, that is, involving
other parties’].)”
6
Therefore, we concluded there was no merit to McMullen’s
contention that the trial court erred in refusing to vacate the
March 2, 2016 restitution order and the order allowing
Kensington to proceed with the cross-complaint against
McMullen.
The remittitur in McMullen I issued on May 30, 2019.
5. McMullen’s second motion to vacate.
Less than three weeks after the issuance of the remittitur,
McMullen filed another motion in the trial court “to vacate void
order[s].” The trial court’s order denying this motion is the
subject of the instant appeal.
McMullen’s second motion to vacate, brought pursuant to
section 473, subdivision (d), sought to vacate as void the following
orders: (1) an order entered on November 17, 2015 (an order
continuing the hearing on Kensington’s motion to set aside the
default judgments to November 24, 2015); (2) an order entered on
November 24, 2015 (the minute order granting Kensington’s
motion to vacate the default judgments and deeming its proposed
answer to have been filed and served); and (3) an order entered
on December 18, 2015 (the formal order setting aside the entries
of default and default judgments and recalling the writ of
execution).
McMullen moved to vacate the above orders as void on the
following grounds: (1) failure to comply with the court’s October
2015 order to give him notice of the November 17, 2015 hearing;
(2) failure to give him notice of the hearing being continued to
November 24, 2015; (3) failure to comply with the court’s
November 24, 2015 order by not serving him with notice of ruling
and with the proposed order; and (4) failure to comply with
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California Rules of Court, rule 3.1312, regarding service of the
proposed order.
In opposition, Kensington argued, inter alia: the December
18, 2015 order vacating the defaults and default judgments was
final and nonreviewable; McMullen lacked standing to challenge
the order vacating the defaults and default judgments because he
assigned his rights in the judgments back to Plaintiffs on October
7, 2015; and the appellate court, in McMullen I, already had
rejected McMullen’s contentions that the trial court lacked
jurisdiction to enter the challenged orders.
On July 30, 2019, after hearing the matter, the trial court
denied McMullen’s second motion to vacate the allegedly void
orders, stating: In McMullen I “the Court of Appeal affirmed the
court’s finding that it has jurisdiction over McMullen. ‘Because
McMullen had submitted to the trial court’s jurisdiction, the
court had jurisdiction to enter the March 2, 2016 order directing
him to return the funds to Kensington and Mooney. Accordingly,
McMullen’s motion to vacate the March 2, 2016 order, which was
predicated on the trial court’s alleged lacked of personal
jurisdiction over him, was meritless and properly denied.’ . . . .
Thus, McMullen fails to establish that the court’s orders at issue
are void for lack of jurisdiction or an absence of power to hear or
determine the case.
“As to McMullen’s argument that the court’s orders are
void because the court acted in excess of its jurisdiction when
[Kensington] failed to provide proper notice to McMullen, the
court finds this argument is without merit. [W]hen a court acts
in excess of jurisdiction, an ensuing judgment or order is merely
voidable, not void. (Lee [v. An (2008)] 168 Cal.App.4th [558,] 565
[(Lee)] [‘A court can lack fundamental authority over the subject
8
matter, question presented, or party, making its judgment void,
or it can merely act in excess of its jurisdiction or defined power,
rendering the judgment voidable.’].) Here, McMullen fails to cite
any authority establishing [Kensington’s] alleged failure to
provide notice of the matters discussed above rendered the court’s
orders void, not merely voidable. The case law on point suggests
otherwise, as the Court in Lee held that ‘[w]here . . . the court has
jurisdiction over the party and the questions presented, but acts
in excess of its defined power, the judgment is voidable, not void.’
(Id. at 566.)
“Here, even assuming arguendo, that [Kensington] failed to
provide proper notice of the matter[s] discussed above, such
errors at most would render the court’s orders voidable, not void.
(See Lee, supra, 168 Cal.App.4th at 565 [‘In this case, the court
had fundamental jurisdiction over the parties and the subject
matter, but acted in excess of its jurisdiction by imposing
terminating sanctions without adequate prior notice.’].) As such,
McMullen had to move to set aside the orders within the six-
month limitations period of CCP § 473. (See id. at 563 [‘As we
explain, the judgment in this case was not void, but voidable, and
thus not subject to being set aside beyond the six-month time
limit of section 473.’].) McMullen’s instant motion is almost four
years after the court’s orders, which is well beyond the CCP
§ 473(b) six-month limitations period, and McMullen does not
show that he ever acted with reasonable diligence to set aside the
orders.”
On August 7, 2019, McMullen filed a notice of appeal from
the July 30, 2019 order denying his second motion to vacate.
9
CONTENTIONS
McMullen contends: the trial court’s ruling should be
reviewed de novo; the trial court erred in stating his contentions
in its order denying his motion to vacate; if the trial court’s
orders are voidable, he properly acted within the six-month
limitations period of section 473, subdivision (b); the November
and December 2015 orders are void due to lack of jurisdiction and
denial of due process; and Kensington’s counsel misled the trial
court at the November 24, 2015 hearing as to whether McMullen
had been given notice of the hearing.
Kensington, in turn, urges affirmance of the July 30, 2019
order denying the second motion to vacate. Alternatively,
Kensington argues that the appeal should be dismissed because
it is frivolous, and because McMullen’s refusal to comply with the
March 2, 2016 restitution order warrants dismissal of the appeal
under the disentitlement doctrine.
DISCUSSION
1. Appealability; the July 30, 2019 order that is the subject
of the appeal is not appealable as a postjudgment order.
McMullen’s notice of appeal specified that the appeal is
taken from the order entered on July 30, 2019. That order denied
McMullen’s motion to vacate the December 18, 2015 order that
granted a motion by Kensington and Mooney to vacate defaults
and default judgments that had been entered against them, to
recall the writ of execution, and to deem their proposed answer to
have been served and filed.
The right to appeal is wholly statutory. (Dana Point Safe
Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.)
McMullen’s Civil Case Information Statement asserts the July
30, 2019 order is appealable as an order after judgment. (Code
10
Civ. Proc., § 904.1, subd. (a)(2).) Thus, the threshold issue before
us is whether the July 30, 2019 order is appealable on that basis.3
“Under section 904.1, subdivision (a)(2), an appeal may be
taken from an order made after an appealable judgment.” (SCC
Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741,
748; see generally, Eisenberg et al., Cal. Prac. Guide: Civil
Appeals & Writs (The Rutter Group 2020) ¶] 2:150 et seq. [on
appeal from postjudgment order the underlying judgment must
be appealable under Code Civ. Proc. § 904.1, subd. (a)(1)].)
Here, however, there is no underlying appealable
judgment. Preceding the July 30, 2019 order is the December 18,
2015 order that relieved Kensington and Mooney of the defaults
and default judgments and allowed them to defend against the
lawsuit that had been brought by Plaintiffs. The effect of the
December 18, 2015 order “is to create a situation where no
judgment is deemed to have been entered.” (Apex LLC v.
Korusfood.com (2013) 222 Cal.App.4th 1010, 1015.)
Therefore, the July 30, 2019 order denying McMullen’s
motion to vacate the December 18, 2015 order that relieved
Kensington and Mooney of the defaults and default judgments is
not directly appealable under Code of Civil Procedure section
904.1, subdivision (a)(2), as “an order made after a judgment
made appealable by paragraph (1).”
3 This court requested supplemental letter briefs on the issue
of appealability (Gov. Code, § 68081), and has read and
considered the parties’ submissions.
11
Because the appeal was taken from a nonappealable order,
it must be dismissed.4
2. Trial court properly denied McMullen’s second motion to
vacate.
Even if we were to reach the merits of McMullen’s appeal,
we would affirm the trial court’s July 30, 2019 order denying
McMullen’s second motion to vacate that he brought pursuant to
section 473, subdivision (d) because the underlying December 18,
2015 order that relieved Kensington and Mooney of the defaults
and default judgments is not void.
a. Limitations on setting aside a judgment under
section 473, subdivision (d); standard of appellate review.
“Section 473, subdivision (d), provides a trial court ‘may, on
motion of either party after notice to the other party, set aside
any void judgment or order.’ ‘[I]nclusion of the word “may” in the
language of section 473, subdivision (d) makes it clear that a trial
court retains discretion to grant or deny a motion to set aside a
void judgment [or order].’ (Cruz v. Fagor America, Inc. (2007) 146
Cal.App.4th 488, 495 [(Cruz)].) However, the trial court ‘has no
statutory power under section 473, subdivision (d) to set aside a
judgment [or order] that is not void . . . .’ (Id. at pp. 495–496.)
Thus, the reviewing court ‘generally faces two separate
determinations when considering an appeal based on section 473,
subdivision (d): whether the order or judgment is void and, if so,
4 In his supplemental letter brief on the issue of
appealability, McMullen acknowledges, “[i]f upon review, the
court finds that the December 18, 2015 order is valid, then the
July [30], 2019 order is not directly appealable under section
904.1.”
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whether the trial court properly exercised its discretion in setting
it aside.’ (Nixon Peabody LLP v. Superior Court (2014) 230
Cal.App.4th 818, 822.) 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. (Ibid.; see also
Cruz, at p. 496.)” (Pittman v. Beck Park Apartments Ltd. (2018)
20 Cal.App.5th 1009, 1020, italics added.)
A judgment is void if the court “ ‘lack[s] fundamental
authority over the subject matter, question presented, or party.’ ”
(Lee, supra, 168 Cal.App.4th at p. 565, quoting In re Marriage of
Goddard (2004) 33 Cal.4th 49, 56; accord, People v. North River
Insurance Co. (2020) 48 Cal.App.5th 226, 233 [a judgment is void
only when the court entering that judgment lacked jurisdiction in
a fundamental sense due to the entire absence of power to hear or
determine the case resulting from the absence of authority over
the subject matter or the parties].) When the trial court “has
jurisdiction over the party and the questions presented, but acts
in excess of its defined power, the judgment is [merely] voidable,
not void. (In re Marriage of Goddard, supra, 33 Cal.4th [at p.]
56.)” (Lee, supra, 168 Cal.App.4th at p. 566.) When a judgment
is merely voidable, a party is not entitled to relief under section
473, subdivision (d). (Lee, at p. 566.)
13
b. The December 18, 2015 order that relieved
Kensington and Mooney of the default judgments is not void and
therefore is not subject to being set aside under section 473,
subdivision (d).
The December 18, 2015 order that relieved Kensington and
Mooney of the default judgments is not void for lack of subject
matter jurisdiction or personal jurisdiction, and therefore cannot
be set aside under section 473, subdivision (d).
Subject matter jurisdiction. There is no question that the
superior court had jurisdiction over the subject matter of this
civil action. Further, the superior court was not divested of its
jurisdiction on December 18, 2015 because, inter alia, Plaintiffs
did not file a notice of appeal in Rosas I until March 4, 2016.
Thus, the superior court had subject matter jurisdiction to enter
the December 18, 2015 order.
Personal jurisdiction. In McMullen I, which is law of the
case (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893), this court
stated: “McMullen, who had not been named as a party, made a
general appearance in September 2015 when he began
participating in the action by filing opposition to Kensington’s
and Mooney’s motion to set aside the default judgments. In doing
so, McMullen recognized the authority of the court to proceed and
thereby waived any objection based on lack of personal
jurisdiction.” Thus, it is established that the trial court had
personal jurisdiction over McMullen on December 18, 2015, when
it granted the motion by Kensington and Mooney to be relieved of
the default judgments.
Accordingly, the December 18, 2015 order could not be set
aside as void pursuant to section 473, subdivision (d).
14
c. The alleged defects raised by McMullen at most
would render the December 18, 2015 order voidable, not void, and
therefore not subject to being vacated under section 473,
subdivision (d).
As noted, McMullen’s second motion to vacate raised a
number of procedural issues. McMullen contended Kensington
failed to give him notice of the November 17, 2015 hearing, failed
to give him notice of that hearing being continued to November
24, 2015, failed to comply with the court’s November 24, 2015
order that directed McMullen to be served with notice of ruling
and with the proposed order, and failed to comply with California
Rules of Court, rule 3.1312, regarding service of the proposed
order.
As the trial court ruled, even assuming that Kensington
failed to give proper notice of the matters discussed above—a
conclusion that we do not reach—such errors at most would
render the December 18, 2015 order voidable, not void.
Lee is on point. There, the trial court “had fundamental
jurisdiction over the parties and the subject matter, but acted in
excess of its jurisdiction by imposing terminating sanctions
without adequate prior notice. The resulting default and default
judgment were thus voidable, not void.” (Lee, supra, 168
Cal.App.4th at p. 565.) Where a judgment or order is merely
voidable, rather than void, it is not subject to being set aside
beyond the six-month time limit of section 473, subdivision (b).
(Lee, at p. 563.)
Here, McMullen’s second motion to vacate, filed on June 17,
2019, was brought three and a half years after the December 18,
2015 order that relieved Kensington and Mooney of the default
judgments. Because the December 18, 2015 order was at most
15
voidable, not void, McMullen was required to bring any motion to
vacate that order within the initial six month period. (§ 473,
subd. (b).) Thus, the trial court properly denied McMullen’s June
17, 2019 motion to vacate the December 18, 2015 order, as it had
no statutory power to grant the motion. (Cruz, supra, 146
Cal.App.4th at pp. 495-496 [trial court has no statutory power
under § 473, subd. (d) to set aside a judgment or order that is not
void].)
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DISPOSITION
The purported appeal from the July 30, 2019 order is
dismissed. Respondents shall recover their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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