Buckley v. Obeng CA2/7 ( 2023 )

Filed 5/19/23 Buckley v. Obeng CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JENNIE BUCKLEY et al., B318104
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No.
v. 20STCV26441)
MICHAEL K. OBENG et al.,
Defendants and Appellants.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Michael P. Linfield, Judge. Affirmed.
Law Offices of Levi Reuben Uku and Levi Reuben Uku for
Defendants and Appellants Michael K. Obeng and Miko Surgery
Center, Inc.
Lawson Law Offices, Antonio Lawson, Debra Lawson; Law
Offices of Kendra Tanacea and Kendra Tanacea for Plaintiffs and
Respondents Jennie Buckley and John Buckley.
______________________
Dr. Michael K. Obeng and Miko Surgery Center, Inc.
appeal the order denying their joint motion to vacate a default
and default judgment pursuant to Code of Civil Procedure
1
section 473, subdivision (d), primarily contending they were
never served with the summons and complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
The July 14, 2020 complaint filed by Jennie Buckley and
her husband, John Buckley, alleged Dr. Obeng is a board certified
plastic surgeon; Miko is a California corporation engaged in the
business of plastic and aesthetic surgery; and Dr. Obeng is the
2
sole officer and director of Miko. In early March 2019 Dr. Obeng
3
performed cosmetic and reconstructive surgery on Jennie.
Without Jennie’s knowledge or consent, Dr. Obeng posted
photographs of Jennie’s nude body on his and Miko’s social media
accounts, along with a description that, according to the
Buckleys, left little doubt the photographs were of her. When the
Buckleys’ friends and colleagues alerted the couple to the
photographs, Jennie was humiliated. Through her counsel,
Jennie demanded that Dr. Obeng remove the photographs from
all social media sites on which he posted. After the couple made
1
Statutory references are to this code unless otherwise
stated.
2
The complaint also alleged Dr. Obeng was doing business
as Miko Plastic Surgery. We adopt the usage of the parties and
refer simply to Dr. Obeng.
3
Because Jennie and John share the same surname, we
refer to them by their first names for clarity.
2
several demands over a three-week period, Dr. Obeng finally took
the photographs down; but, by then, the damage had been done.
Jennie and John suffered extreme emotional distress and mental
anguish as well as damage to their intimate relationship.
Jennie alleged causes of action for invasion of privacy in
violation of article 1, section 1 of the California Constitution,
violation of the Confidentiality of Medical Information Act (Civ.
Code, § 56 et seq.), breach of fiduciary duty, negligence per se and
misappropriation of likeness. John alleged a cause of action for
loss of consortium. Both Jennie and John sought compensatory
damages “in an amount according to proof,” plus punitive
damages and attorney fees pursuant to Civil Code section 3344,
subdivision (a).
2. The Default and Default Judgment
Neither Dr. Obeng nor Miko responded to the complaint.
On November 6, 2020 the Buckleys filed a request to enter
default that included proofs of service signed by a registered
process server under penalty of perjury attesting he had
personally served Dr. Obeng with the summons and complaint on
July 30, 2020 at 1:10 p.m. at Miko’s Beverly Hills address and
had personally served the same documents on Dr. Obeng as “a
person authorized to accept service of process” for Miko. A copy
of the summons and complaint was also mailed to Dr. Obeng and
Miko at the same address on August 14, 2020.
Two additional proofs of service signed by a registered
process server attested that he personally served Dr. Obeng with
a statement of damages, and personally served the same on
3
Joshua Richman, a person authorized to accept service of process
4
for Miko, on September 21, 2020.
Dr. Obeng’s and Miko’s defaults were entered on
November 6, 2020.
Eleven months later, on October 8, 2021, after the Buckleys
had submitted their trial brief, declarations and exhibits in
support of the prove-up hearing (all of which were also served by
mail on Dr. Obeng and Miko prior to the hearing), the court found
Dr. Obeng and Miko jointly liable for invasion of privacy and
awarded Jennie $500,000 in general damages (less than the
$700,000 she had requested) and nothing in special damages,
finding as to the latter claim that Jennie had presented no
evidence of her claim of $40,000 in medical damages. The court
awarded $100,000 in general loss-of-consortium damages to John
(less than the $200,000 he had requested). The court also
awarded the couple attorney fees of $7,890 and $2,456.61 in
costs. Judgment was entered on October 8, 2021.
3. Dr. Obeng’s and Miko’s Motion To Vacate the Default
and Default Judgment
On October 18, 2021 Dr. Obeng and Miko jointly moved to
5
vacate the default and default judgment, asserting neither
Dr. Obeng nor Miko had been served with the summons and
4
The proofs of service for the statement of damages are in
the record on appeal. The statement of damages is not.
5
Although styled in the caption as only a motion to vacate
default judgment, the notice of motion stated Dr. Obeng and
Miko sought an order vacating both the default and the default
judgment.
4
complaint and arguing the judgment was void under section 473,
subdivision (d).
In a supporting declaration included with the motion,
Dr. Obeng stated he had been in surgery at 1:10 p.m. on July 30,
2020 when the summons and complaint were purportedly served,
making service impossible and the proof of service false.
Dr. Obeng stated that he intended to separately lodge documents
with the court that would support his claim. (Those documents,
erroneously lodged with an incorrect caption that listed the
wrong parties, were ultimately excluded after the court sustained
the Buckleys’ hearsay and authentication objections.) Dr. Obeng
further explained he knew the serious consequences of a default
judgment and would not have failed to answer the complaint had
he been aware of it. He emphasized the proof of service of the
summons and complaint did not identify the physical
characteristics of the person allegedly served.
Dr. Obeng and Miko’s motion also sought relief based on
mistake or excusable neglect (§473, subd. (b)) and lack of actual
notice (§ 473.5) and included with their moving papers an answer
to the complaint. No attorney affidavit of fault was submitted.
The Buckleys’ opposition papers included a declaration
from their counsel and several proofs of service attesting to
personal service of the summons and complaint, personal service
of the statement of damages on Dr. Obeng and on Richman, as a
person authorized to accept service of process on Miko’s behalf, as
well as mail service of all other documents.
In reply counsel for Dr. Obeng and Miko submitted his own
declaration, attaching a document he obtained from the Secretary
of State’s website listing Richman as Miko’s authorized agent for
5
service of process and arguing in his declaration that Richman
had not been served with the summons and complaint.
4. The Court’s Ruling Denying the Motion To Vacate the
Default and Default Judgment
The court denied Dr. Obeng and Miko’s motion to vacate
the default and default judgment on December 9, 2021. The
court rejected Dr. Obeng and Miko’s contention the judgment was
void pursuant to section 473, subdivision (d), for lack of service of
process or under section 473.5 for lack of actual notice. The court
found Dr. Obeng’s declaration that he had not been served with
the complaint unpersuasive. Dr. Obeng did not dispute that he
had been personally served with a statement of damages before
the default judgment was entered (as well served by mail with a
number of other documents relating to the lawsuit), yet he did
nothing, suggesting that, despite his assertions to the contrary,
Dr. Obeng was content to ignore the litigation until he was
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subject to a substantial damage award.
As to Miko, the court pointed out the suggestion in
counsel’s declaration that the wrong person had been served with
the summons and complaint on Miko’s behalf had not been raised
as a ground for relief in the motion or even in the reply and
questioned whether it was properly before the court. In any
event, the court observed, Dr. Obeng had been personally served
with the summons and complaint and Richman had been
properly served with the statement of damages in September
6
The court also ruled there was no evidence of mistake or
excusable neglect to support relief under section 473,
subdivision (b), and did not reach the Buckleys’ arguments, made
in a supplemental opposition, that the section 473,
subdivision (b), motion was untimely.
6
2020, yet Miko, having actual notice of the lawsuit, still did
nothing for nearly a year until a substantial damage award had
been entered.
Finally, the court noted Dr. Obeng and Miko were not naïve
litigants. On its own motion the court took judicial notice that
Dr. Obeng and Miko had been parties in more than 30 other
lawsuits in the Los Angeles Superior Court over the preceding
eight years.
DISCUSSION
1. Standard of Review
Section 473, subdivision (d), grants a trial court discretion
7
to set aside a void judgment. (Pittman v. Beck Park Apartments
Ltd. (2018) 20 Cal.App.5th 1009, 1020 (Pittman); Cruz v. Fagor
America, Inc. (2007) 146 Cal.App.4th 488, 495.) The court has no
statutory power under section 437, subdivision (d), to set aside a
judgment that is not void. (Cruz, 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 of judgment is void and, if so, 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;
accord, Kremerman v. White (2021) 71 Cal.App.5th 358, 369.)
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. (Kremerman, at p. 369; Pittman,
at p. 1020; Nixon, at p. 822; Cruz, at p. 496.)
7
Section 473, subdivision (d), provides in part, “The court
may, . . . on motion of either party after notice to the other party,
set aside any void judgment or order.”
7
2. Dr. Obeng and Miko’s Motion To Vacate the Default
Judgment Pursuant to Section 473, Subdivision (d), Was
Timely
An order is void on its face “only when the invalidity is
apparent from an inspection of the judgment roll or court record
without consideration of extrinsic evidence.” (Pittman, supra,
20 Cal.App.5th at p. 1021; accord, OC Interior Services, LLC v.
Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326;
Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th
1434, 1440.) There is no time limit to attack on order that is
void on its face. (Pittman, at p. 1021; OC Interior Services, at
p. 1327.)
When, as here, a party moves under section 473,
subdivision (d), to set aside a judgment that, although valid on
its face, is void for lack of improper service, as demonstrated
through extrinsic evidence such as declarations and testimony,
the motion must be brought within the time limits specified in
section 473.5. (Bae v. T.D. Service Co of Arizona (2016)
245 Cal.App.4th 89, 87; Trackman v. Kenney (2010)
187 Cal.App.4th 175, 180; see Pittman, supra, 20 Cal.App.5th at
p. 1021.)
Section 473.5, in turn, permits a court to set aside a default
or default judgment if the defendant, through no inexcusable
fault of its own, received no actual notice of the action, provided
that the relief is requested “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.”
Dr. Obeng and Miko filed their motion to vacate on
October 18, 2021, within two weeks after the entry of the default
8
judgment. Although the Buckleys concede the motion to vacate
was timely as to the default judgment, they argue it was not
timely with respect to the entry of default because it was filed
substantially more than 180 days after service of written notice of
entry of default. And, they imply, setting aside the default
judgment without setting aside the default would be an “idle act.”
(Pulte Homes Corp. v. Williams Mechanical, Inc. (2016)
2 Cal.App.5th 267, 273.)
The Buckley’s first point is correct: The request to set aside
the default was untimely. The second point is not. Although a
party who is in default is barred from further participation in the
proceedings, including excepting to evidence at the prove-up
hearing (see, e.g., Siry Investment, L.P. v. Farkhondehpour (2022)
13 Cal.5th 333, 343), the defaulting defendant may still move for
a new trial based on errors in law (id. at pp. 344-345) or appeal
from the new default judgment if the challenged judgment is set
aside (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th
267, 282). Because some form of effective relief is theoretically
available to them, Dr. Obeng’s and Miko’s motion to vacate the
default judgment, timely brought, is properly considered on its
merits.
3. The Court Did Not Err in Denying the Motion To Vacate
the Default Judgment
In contending the judgment is void, Dr. Obeng and Miko
rely on Dr. Obeng’s declaration that he was in surgery on the
date and time listed in the July 30, 2020 proof of service and thus
could not have accepted service of the summons and complaint.
Although the return of a registered process server “establishes a
presumption affecting the burden of producing evidence of the
facts stated in the return” (Evid. Code, § 647), a party’s
9
declaration of nonservice, if credited, can rebut the presumption.
(See Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941.)
However, the court did not credit Dr. Obeng’s declaration. As
discussed, the court found Dr. Obeng’s claim he had not been
served with the summons and complaint and would have
responded if he had been was unpersuasive in light of his failure
to respond to the statement of damages personally served on him
prior to the entry of default or to the numerous other documents
8
mailed to him in advance of the hearing for a default judgment.
The court explained Dr. Obeng’s failure to respond evidenced his
intent to willfully ignore the lawsuit, at least until a substantial
damage award was entered against him. Given this credibility
evaluation by the trial court, amply supported by the record,
Dr. Obeng has not demonstrated that the judgment was void and
the court abused its discretion when it denied his motion to
vacate. (See id., at p. 940 [“[t]he denial of a motion to vacate is
reviewed for an abuse of discretion, and we defer to the trial
court’s resolution of any factual conflicts in the declarations”].)
Similarly claiming it had not been personally served with
the summons and complaint, Miko refers this court to evidence in
the record that Richman, not Dr. Obeng, was listed with the
Secretary of State as Miko’s designated agent for service of
process and urges us to reach the issue despite its failure to
properly raise that argument in the trial court. The argument
fails on its merits. Dr. Obeng does not dispute he was the sole
officer and director of Miko. As such, under section 416.10,
8
Dr. Obeng asserts the statement of damages was served
only on Miko, not on Dr. Obeng as an individual. The record
includes proofs of service attesting both were served.
10
subdivision (b), he was authorized to accept service of process on
9
its behalf.
Dr. Obeng and Miko make a number of additional
arguments why the judgment is void, all of which lack merit.
First, they contend the complaint included a prayer for damages
“according to proof,” without providing notice of the damages
sought. (See §§ 425.10, subd. (a)(2) [a complaint shall contain a
demand for judgment; if damages are demanded, “the amount
demanded shall be stated”].) As a result, they assert, the
judgment necessarily exceeded the “undisclosed” amount
demanded in the complaint. (See § 580, subd. (a) [when no
answer is filed, the relief granted to the plaintiff cannot exceed
that demanded in the complaint, in the statement required by
section 425.11 or in the statement provided for by
section 425.115].)
However, in personal injury actions the plaintiff is
prohibited from stating in the complaint the amount of damages
sought. (§ 425.10, subd. (b).) Instead, the plaintiff must serve a
statement of damages setting forth the nature and amount of
damages before a default may be taken. (§ 425.11, subd. (d)(1);
9
Section 416.10 provides in part, “A summons may be served
on a corporation by delivering a copy of the summons and the
complaint by any of the following methods: [¶] (a) To the person
designated as agent for service of process [as provided by
statute]. . . . [¶] (b) To the president, chief executive officer, or
other head of the corporation, a vice president, a secretary or
assistant secretary, a treasurer or assistant treasurer, a
controller or chief financial officer, a general manager, or a
person authorized by the corporation to receive service of
process.”
11
Rios v. Singh (2021) 65 Cal.App.5th 871, 885; Dhawan v. Biring
(2015) 241 Cal.App.4th 963, 968.)
Dr. Obeng and Miko do not challenge the court’s findings
the nature and amount of damages were properly identified in
the statement of damages or contend the damages awarded
exceeded the demand in the statement. They also concede that
Jennie’s action for invasion of privacy sounds in personal injury.
However, they argue the exception for stating the amount of
damages in a personal injury complaint does not apply here.
According to Dr. Obeng and Miko, what may have been pleaded
as a personal injury action became a “nonpersonal injury lawsuit”
when the case was reassigned after entry of default from a
“personal injury docket” to an independent calendar court for a
default prove-up hearing. Once this transformational
reassignment occurred, they assert, it was the Buckleys’
responsibility to amend their complaint to include a prayer for
damages, as is required in nonpersonal injury actions. The
contention, while creative, is devoid of any arguable merit. The
court’s reassignment of the case for case management purposes
did not alter the nature of the pleading.
Second, Dr. Obeng and Miko contend the judgment is void
because the complaint failed to state a cause of action for
invasion of privacy as a matter of law. Had Dr. Obeng and Miko
appealed the default judgment, they could have attacked it on
that ground despite their failure to file a responsive pleading.
(See First American Title Ins. Co. v. Banerjee (2022)
87 Cal.App.5th 37, 45 (First American) [“had defendants directly
appealed from the default judgment they could have attacked the
complaint as not stating a cause of action”]; Kim v. Westmoore
Partners, Inc., supra, 201 Cal.App.4th at p. 282 [party may
12
directly appeal default judgment on ground complaint fails to
state a cause of action as a matter of law]; Vasey v. California
Dance Co. (1977) 70 Cal.App.3d 742, 745 [same].) Because
Dr. Obeng and Miko appealed only from the order denying the
motion to vacate the judgment, however, “[o]ur review is limited
to whether the trial court erred in finding the default judgment
was not void.” (First American, at p. 46; but see Grappo v.
McMills (2017) 11 Cal.App.5th 996, 1015 [a default judgment
“cannot stand” if it does not state a cause of action as pleaded;
accordingly the trial court did not err in granting motion to
10
vacate it].) The complaint set forth in plain terms Jennie’s
action for invasion of privacy in violation of the California
10
In Grappo v. McMills, supra, 11 Cal.App.5th 996 the
majority affirmed the trial court’s order granting relief from
default judgment under section 473, subdivision (d), on the
ground the complaint failed to state a cause of action. In
reaching this conclusion, the majority relied on cases reversing a
default judgment on direct appeal from the judgment. (See
Grappo, at p. 1015, citing Kim v. Westmoore Partners, Inc., supra,
201 Cal.App.4th 267 and Vasey v. California Dance Co. (1977)
70 Cal.App.3d 742.) Without addressing the compelling facts at
issue in Grappo or the different procedural posture in the court of
appeal, we find, on the question whether a default judgment can
be attacked collaterally as void on the ground the complaint fails
to state a cause of action, First American, supra, 87 Cal.App.5th
37 presents the better analysis. (See First American, at p. 46
[disagreeing with Grappo majority and agreeing with the Grappo
dissent; “a ‘default judgment cannot be attacked collaterally on
the ground the complaint fails to state a cause of action[;]
[judgment] is valid as long as the complaint is ‘sufficient to
apprise [the defendant] of the nature of the [plaintiff's]
demand’”].)
13
Constitution. Dr. Obeng and Miko do not contend the complaint
failed to apprise them of the nature of the invasion of privacy
action nor does the record remotely suggest as much.
Third, Dr. Obeng and Miko contend Jennie’s privacy claim
is barred by an unidentified one-year statute of limitations for
personal injury actions. Apart from whatever merit that
affirmative defense may have had had it been pleaded in the
answer or argued on demurrer, no such responsive pleadings
were filed. Dr. Obeng and Miko’s effort to raise the statutory bar
now is far too late and not properly before us on appeal. That a
cause of action may be time-barred does not make the judgment
void. (Cf. Davies v. Krasna (1975) 14 Cal.3d 502, 508 [failure to
timely raise applicable statute of limitations results in forfeiture
of that defense]; Area 55, LLC v. Nicholas & Tomasevic, LLP
(2021) 61 Cal.App.5th 136, 173-174.)
Finally, Dr. Obeng and Miko assert the court “fixated” on
their counsel’s errors rather than on the public policy promoting
merits-based decisions. In particular, in its written ruling the
trial court chastised counsel for moving and reply papers that
contained an improper caption and included arguments referring
to unknown parties and unpleaded causes of action and
characterized the effort as a sloppy “cut-and-paste job.” The
court’s observations about the quality of counsel’s work product,
although perhaps unnecessarily harsh, were accurate. But they
did not factor in the court’s decision, which was grounded in law
11
and evidence.
11
The Buckleys’ motion to admit new evidence on appeal
pursuant to section 909 and California Rules of Court, rule 8.252
is denied.
14
DISPOSITION
The order is affirmed. The Buckleys are to recover their
costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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