Braugh v. Dow ( 2023 )

Filed 7/3/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHTH
JANE BRAUGH, B311859
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC703616)
v.
ROY H. DOW,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Rafael A. Ongkeko, Judge. Affirmed.
Gerald Peters; Greines, Martin, Stein & Richland, Cynthia
E. Tobisman and Tina Kuang for Plaintiff and Appellant.
Mark MacCarley for Defendant and Respondent.
_________________________
INTRODUCTION
This appeal arises from a partition action by Jane Braugh
(Braugh) against her former significant other Roy H. Dow (Dow).
The trial court entered default and a default judgment against
Dow. Nearly two years later, Dow moved to vacate the default
and resulting judgment, alleging he was never effectively served
with the summons and complaint. The trial court granted the
motion.
On appeal, Braugh argues the trial court should not have
granted Dow set aside relief under Code of Civil Procedure1
section 473, subdivision (d). She argues her personal service of
the summons and complaint on Dow was proper and section 473,
subdivision (b) applies instead, rendering Dow’s motion
“untimely.” Braugh also argues the trial court abused its
discretion in not considering the estoppel doctrine when making
its ruling.
We disagree with Braugh and affirm the trial court’s order
granting the motion to set aside.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background Information
Braugh and Dow, “formerly, an unmarried couple,” owned a
family home located at 8902 Wheatland Avenue in Sun Valley,
California (the Property).2 They ended their relationship in 2013.
1 Undesignated statutory references are to the Code of Civil
Procedure.
2 The legal description of the Property is as follows:
2
They share a minor daughter, for whom they were embroiled in a
“contentious custody battle” throughout 2018 and 2019.
Braugh is an attorney licensed in California.
B. Braugh’s Civil Complaint
On April 24, 2018, Braugh filed a complaint against Dow
alleging three causes of action: 1) partition; 2) accounting and
compensatory adjustments; and 3) injunctive relief. The subject
of this action was the Property. Braugh alleged the following:
Braugh and Dow are the owners of the Property; they hold
title as joint tenants with right of survivorship. Braugh sought a
“THE LAND REFERRED TO HEREIN IS SITUATED IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND
IS DESCRIBED AS FOLLOWS:
“THE SOUTHERLY 130 FEET OF LOT 15 OF TRACT NO. 482,
IN THE CITY OF LOS ANGELES, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 15 PAGE 86 OF MAPS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY.
“EXCEPT THE WEST 159 FEET OF THE NORTHERLY
120 FEET THEREOF.
“ALSO EXCEPT THAT PORTION OF SAID LAND LYING
SOUTHEASTERLY OF THE MOST NORTHEASTERLY LINE
OF THE LAND CONDEMNED FOR FLOOD CONTROL
PURPOSES BY DECREE OF CONDEMNATION IN THE
SUPERIOR COURT, LOS ANGELES, CASE NO. 597191, A
COPY OF SAID DECREE BEING RECORDED IN BOOK 43571
PAGE 207, OFFICIAL RECORDS.
“ASSESSOR’S PARCEL NUMBER: 2404-003-010”
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partition of the Property because Dow had not paid on the
mortgage and other liens since November 1, 2004; he also refused
to pay for necessary repairs and improvements that enhance the
value of the Property. Due to Dow’s “refusal to make an
accounting and/or pay to [Braugh] compensatory adjustments or
. . . the sums due, . . . the proceeds from future rents and profits
of [the Property] are in danger of being lost, diminished or
misappropriated by [Dow].”
Braugh “is entitled to an accounting and compensatory
adjustments for expenditures in excess of her fractional share for
necessary repairs, improvements that enhance the value of the
[P]roperty, taxes, payments of principal and interest on
mortgages and other liens, insurance for the common benefit and
protection and preservation of title.” Dow’s “wrongful conduct,
unless and until enjoined and restrained by order of this court,
will cause great and irreparable injury” to Braugh and loss and
damage to the Property. Braugh “has been damaged in the sum
of approximately $600,000” and will continue to incur further
damage so long as Dow’s conduct continues. Braugh requested
that the court quiet title of the Property and determine that Dow
“is owed nothing”; in the alternative, she requested the sale of the
Property.
On May 29, 2018, Braugh filed a proof of service of
summons, stating she herself served a copy of the summons and
complaint on Dow at the Property’s address on May 2, 2018 at
8:00 p.m. via personal service. Braugh signed the proof of service
of summons declaring under penalty of perjury that “[a]t the time
of service [she] was at least 18 years of age and not a party to this
action.” (Italics added.)
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C. Entry of Default and Default Judgment
On June 18, 2018, Braugh filed a request for entry of
default, which the court immediately granted. The court
scheduled a default prove-up hearing for September 14, 2018,
and ordered Braugh to provide the court with “a proposed
judgment conforming to her claims” on the hearing date.
At the default prove-up hearing set September 14, 2018,
Braugh represented herself and presented argument. The court
continued the hearing to allow Braugh time to submit a proposed
judgment and order.
On September 24, 2018, the court quieted title to the
Property and ordered the transfer of Dow’s interest in the
Property to Braugh, so that “title will now be held solely by
[Braugh].” On October 12, 2018, a grant deed was recorded to
that effect.
D. Dow’s Motion to Set Aside Default Judgment
One year and nine months later, on July 21, 2020, Dow
filed a motion to set aside the default and default judgment. He
argued the default and default judgment were void as a matter of
law pursuant to section 473, subdivision (d), because service of
the summons was defective as Braugh, a party to the action,
personally served the moving papers on Dow, in violation of
section 414.10. Dow argued this resulted in a lack of personal
jurisdiction over him, rendering the default and default judgment
void. He argued, in the alternative, that the court set aside the
default and default judgment under section 473, subdivision (b).
Dow provided a declaration in support of the motion, which
alleged the following:
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Sometime in April 2018, Braugh provided Dow’s (now
former) family law attorney in the custody matter with a copy of
a “draft complaint.” The attorney did not accept service on behalf
of Dow, as he was retained as counsel solely for the family law
matter. Then, on May 2, 2018, Braugh “entered the Subject
Property while [Dow] was at home and personally served [him]
with the Summons and Complaint.”
It was not until October 2019 that Dow and his new family
law counsel Philip Marr (Marr) realized Braugh had entered a
default judgment.
Dow argued “it is immaterial whether [he] actually received
the Summons and Complaint because Braugh failed to comply
with . . . section 414.10” which resulted in a lack of personal
jurisdiction. He also argued Braugh “does not stand to be
prejudiced if the default judgment and entry of default . . . are set
aside” because she “has not taken any depositions, conducted any
discovery, or otherwise expended any resources.” Braugh is “a
California attorney” and “knew that such service was in violation
of . . . section 414.10.” Conversely, Dow will be “severely
prejudiced” if he is unable to defend himself and have this case
decided on the merits “[g]iven the damages sought” by Braugh,
including “his family home [and] substantial sums of money.”
Dow provided as an exhibit a copy of the Answer he
planned to file should the court grant his set aside request.
E. Braugh’s Opposition to the Motion to Set Aside
On August 21, 2020, Braugh filed her opposition to the
motion to set aside. She argued that Dow admitted in his moving
papers that he was personally served on May 2, 2018 with the
moving papers at the Property, resulting in “actual notice of the
lawsuit”; however, “neither he nor his lawyers did anything.”
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Braugh also points out that despite Dow having learned about
the default judgment in October 2019, he did not file his set aside
motion until July 21, 2020, and provided “no legal grounds
excusing his inaction.”
Braugh submitted a supporting declaration, stating the
following:
Braugh tried “to settle this matter without court
intervention and supplied [Dow’s (now former) family law
counsel] with a copy of a draft Property lawsuit pre-filing on
April 16, 2018” via email. She included the email as an exhibit,
which provides: “Attached is the draft Complaint for Partition as
a courtesy copy. I will be filing this lawsuit this week and
sending out subpoenas.”
Braugh emailed Dow on July 12, 2018 and informed him,
“you are in default.” She emailed Dow again on July 17, 2018
and said, “Not having heard back from you I can only assume
that you do not wish to negotiate further and wish for me to
proceed with obtaining a Judgment against you instead.” She
provided as exhibits these email communications.
On July 27, 2018, Braugh received an email from Michael
Murphy (Murphy), an attorney purporting to be Dow’s attorney.
Murphy’s email provides: “This law firm represents [Dow] with
respect to a dispute that exists between him and you involving
your joint ownership of the [Property]. It would be appreciated if
you would direct any future communications you may want to our
client directly to us.” “You could proceed with a partition lawsuit.
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I saw the draft of your complaint. It will have to be litigated in
Los Angeles Superior Civil Court.”3 (Italics added.)
Braugh responded via email on July 30, 2018 and stated: “I
don’t see a demand in here. [¶] If you wish to resolve something,
please work off my last email(s) to [Dow]. I am not going to argue
any ‘facts’ with you, but just know that you have been offered a
very skewed version of them. All the compensatory adjustments
come my way. [¶] Re: settlement, I will not sell the property . . . .
[¶] If he wants off title and loan[,] I don’t see why we couldn’t
accomplish that, but again, I need to see a demand. Last I heard
his strategy was to ‘bankrupt’ me which he told me and various
3rd parties he was trying to do. . . . [¶] So, I am not going to
spend a great deal of extra time or energy here unless I see a
good faith and reasonable negotiation forming. I hope you
understand.”
Braugh “never heard from” Murphy again.
F. Hearings and Further Briefing
The minute order on the September 3, 2020 hearing
provides that the trial court “continue[d] the matter to allow
[Braugh] to file supplemental briefing and further argument.”
We were not provided a reporter’s transcript of this hearing.
The minute order on the October 6, 2020 hearing provides
that the trial court “heard argument from the parties” and then
“withdr[ew] its tentative ruling [granting the motion] and
recite[d] its oral findings denying [Dow’s] motion.” Braugh was
3 We note the case summary for the partition case shows no
“substation of attorney” was ever filed indicating Dow retained
Murphy (or anyone) as counsel at this time.
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“directed to prepare a proposed order with detailed findings
consistent with the court’s findings.” We were not provided a
reporter’s transcript of this hearing nor the tentative ruling
mentioned in the minute order.
The minute order on December 7, 2020 hearing provides
that the trial court set an order to show cause (OSC) as to “why
the court should not reconsider its oral ruling made on
10/06/2020 denying the motion to set aside . . . and instead
grant[] the motion.” It scheduled an OSC hearing for January 28,
2021.
G. Trial Court’s Hearing and Ruling
Prior to the January 28, 2021 hearing, the trial court
issued a tentative ruling granting Dow’s motion to set aside: “As
the parties know, the court has twice issued a tentative ruling in
[Dow’s] favor granting the motion to set aside the default
judgment. At [Braugh’s] request for supplemental briefing,
which the court allowed several times, and given [Braugh’s] oral
argument at the October 6, 2020 hearing, the court was
persuaded by [Braugh’s] equitable pleas to change its mind and
rule in [her] favor . . . . Upon further reflection and analysis of
the applicable law, however, the court has returned full circle to
its original inclination—the entry of default itself was void on its
face.” It found that “contrary to [Braugh’s] argument, the default
judgment is void—not voidable.” The court further found the
“finding that ‘Plaintiff, having properly pled and served the
Complaint’ in the [default] judgment is, therefore, erroneous, on
its face, based on the court record without consideration of
extrinsic evidence.” The court “lacked jurisdiction and authority
to act to enter the judgment in the first place.” The tentative
further provides, “As inequitable as the result here may be, as
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shown by the courts changing its mind in [Braugh’s] favor, the
default should not have been entered on 6/18/18 based on the
defective proof of service.”
On January 28, 2021, the hearing on the OSC took place.
Dow submitted on the court’s tentative. The court heard
argument from Braugh. She argued there was substantial
compliance with service of process rules, and thus, the default
judgment is not void but rather voidable—meaning, section 473,
subdivision (b) applies and not subdivision (d). She further
argued that because section 473, subdivision (b) applies, Dow’s
motion to vacate was untimely filed, as it was filed after the
expiration of the six-month window.
The trial court adopted its tentative and granted Dow’s
motion to vacate the default and default judgment. The trial
court explained that the “proof of service, while it should have
been picked up as a noncompliance, it doesn’t get you to
jurisdiction . . . on [Dow] and, you know, unfortunately
notwithstanding all the work that we all put in on the prove-up,
we have to get back to the basics of jurisdiction, and
unfortunately, that’s where we’re at. You know, a party cannot
serve a summons and complaint. And, you know, default should
not have been entered and can be set aside now as void.” The
court found “[o]n reconsideration, I just don’t think we can do it;
so that’s really what happened with the change and there’s—you
know, we’ve gone round and round on this issue, and you have
the tentative, and that’s going to be the ruling, and I’ll adopt that
in full today. [¶] Okay. So I’m granting the motion to set aside.”
Dow’s proposed Answer “is deemed served this date.”
Braugh timely appealed.
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DISCUSSION4
Braugh primarily argues Dow’s motion to set aside the
default and default judgment was untimely filed. Second, she
argues the trial court “abused its discretion in failing to consider
whether Dow was estopped, by his conduct, from setting aside the
default and default judgment.” She requests that we reverse the
trial court’s order granting Dow’s motion and reinstate the
default and default judgment.
A. Standard of 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; inclusion 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. (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 that is not void. (Cruz, at pp. 495–496.) The trial
court’s determination whether a judgment is void is reviewed de
novo; its decision whether or not 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; Pittman v. Beck Park
4 We have reviewed Braugh’s request for judicial notice filed
on July 13, 2022. The five documents attached to her request are
all pleadings filed in the parties’ family law parentage case
regarding their daughter (Los Angeles Sup. Ct. case
No. 18PDPT00070). We find they bear no relevance to the issues
presented in this appeal and deny the request.
11
Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020 (Pittman); see
also Cruz, at p. 496.)
B. Applicable Law
“The court may . . . on motion of either party after notice to
the other party, set aside any void judgment or order.” (§ 473,
subd. (d).) Generally, defendants have six months from entry of
judgment to move to vacate. (Id., subd. (b).) But, if “the
judgment is void on its face, then the six month limit set by
section 473 to make other motions to vacate a judgment does not
apply.” (National Diversified Services, Inc. v. Bernstein (1985)
168 Cal.App.3d 410, 414.)
“ ‘A judgment or order is said to be void on its face when the
invalidity is apparent upon an inspection of the judgment-roll.’ ”
(Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th
1426, 1441 (Dill).) This inquiry, however, “does not hinge on
evidence: A void judgment’s invalidity appears on the face of the
record.” (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 181.)
The due process clauses of the United States and California
Constitutions require that a party be given reasonable notice of a
judicial action or proceeding. (In re Marriage of Goddard (2004)
33 Cal.4th 49, 54 (Goddard).) To establish personal jurisdiction,
compliance with statutory procedures for service of process is
essential; if a default judgment was entered against a defendant
who was not served with a summons as required by statute, the
judgment is void, as the court lacked jurisdiction in a
fundamental sense over the party and lacked authority to enter
judgment. (OC Interior Services, LLC v. Nationstar Mortgage,
LLC (2017) 7 Cal.App.5th 1318, 1330–1331.)
To determine “whether an order [or judgment] is void for
purposes of section 473, subdivision (d), courts distinguish
12
between orders [or judgments] that are void on the face of the
record and orders [or judgments] that appear valid on the face of
the record but are shown to be invalid through consideration of
extrinsic evidence. ‘This distinction may be important in a
particular case because it impacts the procedural mechanism
available to attack the judgment [or order], when the judgment
[or order] may be attacked, and how the party challenging the
judgment [or order] proves that the judgment is void.’ ” (Pittman,
supra, 20 Cal.App.5th at p. 1020.) A judgment “is considered 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.” (Id. at p. 1021.) When a
default judgment has been taken, the judgment roll consists of
“the summons, with the affidavit or proof of service; the
complaint; the request for entry of default . . . , and a copy of the
judgment.” (§ 670, subd. (a).) If the invalidity can be shown only
through consideration of extrinsic evidence, such as declarations
or testimony, the order/judgment is not void on its face.
(Pittman, at p. 1021.)
Our Supreme Court has observed that although “the term
‘jurisdiction’ is sometimes used as if it had a single meaning, we
have long recognized two different ways in which a court may
lack jurisdiction.” (People v. Ford (2015) 61 Cal.4th 282, 286
(Ford).) “A court lacks jurisdiction in a fundamental sense when
it has no authority at all over the subject matter or the parties, or
when it lacks any power to hear or determine the case.” (Ibid.)
Even when a court has fundamental jurisdiction, however,
the Constitution, a statute, or relevant case law may constrain
the court to act only in a particular manner, or subject to certain
limitations. (Ford, supra, 61 Cal.4th at pp. 286–287.) When a
13
trial court has fundamental jurisdiction but fails to act in the
manner prescribed, it is said to have acted “ ‘in excess of its
jurisdiction.’ ” (Id. at p. 287.) Because an ordinary act in excess
of jurisdiction does not negate a court’s fundamental jurisdiction
to hear the matter altogether, such a ruling is treated as valid
until set aside. (Ibid.) A party may be precluded from seeking to
set aside such a ruling because of waiver, estoppel, or the passage
of time. (Ibid.) Thus, error in rendering a judgment or order
generally falls into two categories: “A court can lack fundamental
authority over the subject 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.”
(Goddard, supra, 33 Cal.4th at p. 56.)
C. Dow’s Motion to Set Aside was Timely Filed
Braugh argues she “substantially complied with the
service-of-process rules” when she personally served Dow with
the summons and complaint. She contends this provided Dow
with “actual notice” of the partition case and that “who served
Dow is a mere technicality that did not render personal service
void.” She concludes that because “service was valid,” section
473, subdivision (b) applies, making Dow’s motion to set aside
“untimely.”
We disagree. This is not a “mere technicality” as Braugh
would like us to hold; this is an issue of fundamental jurisdiction.
By merely looking at the judgment roll, primarily Braugh’s proof
of service of summons, we conclude the trial court acted without
authority in entering default and default judgment against Dow.
“[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
14
not served with a summons in the manner prescribed by statute
is void.” (Dill, supra, 24 Cal.App.4th at p. 1444.) As mentioned
above, under section 473, subdivision (d), the court may “set aside
a default judgment which is valid on its face, but void, as a
matter of law, due to improper service.” (Ellard v. Conway (2001)
94 Cal.App.4th 540, 544.)
Section 414.10, entitled “Person permitted to serve,”
expressly provides who may serve the moving pleadings to a case:
“A summons may be served by any person who is at least 18 years
of age and not a party to the action.” (§ 414.10, italic added.)
Here, on the face of the proof of service of summons,
Braugh signed under penalty of perjury that she is “not a party to
this action” and attested to having personally served Dow on May
2, 2018 at the Property. It is undisputed that Braugh is a party
to the action. Service did not comply with the express
requirements of section 414.10. The intent of a statute
prohibiting personal service of process by parties is to discourage
fraudulent service by persons with an adversarial interest in a
legal action. (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 864
(Caldwell).) Accordingly, “the prohibition on service by the
opposing party is strictly enforced.” (Id. at p. 865; see Sullivan v.
Sullivan (1967) 256 Cal.App.2d 301, 304 (Sullivan) [motion to
vacate a default and judgment was proper where declarations
filed by the parties supported a finding that the summons and
complaint were served on defendant by plaintiff himself].) Thus,
“[w]hen a party has served notice on the opposing party, the court
lacks personal jurisdiction over the defendant.” (Caldwell, at
p. 865.)
15
During oral argument, Braugh maintained that even if we
find the judgment “facially void” due to the manner of service,
that we must also determine if she “substantially complied” with
the rules of service of process because “strict compliance . . . is not
required.” She contends her personal service on Dow should be
liberally construed to uphold jurisdiction because Dow was
provided “actual notice of the commencement of the action.” We
do not agree.
In Sullivan, “[p]laintiff [sought] to avoid the invalidity of
the service by pointing to the fact that defendant did in fact
receive the summons and complaint.” (Sullivan, supra,
256 Cal.App.2d at p. 304, italics added.) The court in Sullivan
rejected this argument and held, “This is the precise argument
found to be unavailing in Sternback v. Buck, 148 Cal.App.2d
829.” (Sullivan, at p. 304.) Braugh contends Sullivan does not
control, as that case was decided before the 1969 amendment to
the service of process statutes. However, other cases have
similarly held service ineffective despite actual notice to the
respondent/defendant after the 1969 amendment. For instance,
the court held in Caldwell that “[p]ersonal service by a party
renders any judgment or order arising from the proceeding void
despite the defendant’s actual notice.” (Caldwell, supra, 219
Cal.App.3d at p. 865, italics added.) We therefore hold that
“substantial compliance” does not apply where a party personally
serves its own summons and complaint. The cases relied upon by
Braugh are inapposite in that they do not present a similar
scenario where one party (let alone a self-represented attorney
like Braugh) personally served moving paperwork on another
party.
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As for the July 27, 2018 email Braugh received from
Murphy purporting to be Dow’s attorney, it did not show Dow
had notice that Braugh had indeed filed the partition complaint.
Murphy’s email provided that he “saw the draft of [Braugh’s]
complaint”; “You could proceed with a partition lawsuit.”
Moreover, section 410.10, which provides that a court may
exercise jurisdiction on any basis not inconsistent with the state
or federal Constitution, does not empower a court to treat a party’s
general appearance in an action as a waiver of a defective service
of summons on the party, nor to treat the general appearance as
curing the defects in service; the term “basis,” as used in the
statute, refers to the relationship between a court and a party
such that the court may bring that party within its authority and
thereafter make orders binding on the party. (See In re Marriage
of Smith (1982) 135 Cal.App.3d 543, 551–554.) Thus, even if Dow
had made an appearance in the partition action, that does not
empower to court to treat it as a waiver of a defective service.
(Ibid.)
We conclude the trial court did not abuse its discretion in
granting Dow’s motion to set aside the default and default
judgment. On this record, the trial court did not obtain personal
jurisdiction over Dow due to improper service of the summons
and complaint. Dow was “under no duty to act upon a defectively
served summons.” (Kappel v. Bartlett (1988) 200 Cal.App.3d
1457, 1466.) Because the court had no jurisdiction in light of
defective service, we do not address Braugh’s remaining
argument regarding equitable estoppel.
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DISPOSITION
The trial court’s order granting Dow’s motion to set aside
entry of default and the default judgment is affirmed. Dow is
awarded costs on appeal.
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
VIRAMONTES, J.
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