Endrawes v. Mitchell CA2/6 ( 2024 )

Filed 7/16/24 Endrawes v. Mitchell CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MAYA ENDRAWES, 2d Civ. No. B330916
(Super. Ct. No. 56-2021-
Plaintiff and Appellant, 00555367-CU-PA-VTA)
(Ventura County)
v.
BRIAUNNA MITCHELL,
Defendant and Respondent.
In this personal injury action, Maya Endrawes appeals
from the trial court’s order denying her motion to vacate a
stipulated judgment in her favor that was entered against
respondent Briaunna Mitchell. The judgment was based on
respondent’s purported acceptance of appellant’s offer to
compromise pursuant to Code of Civil Procedure section 998.1
Appellant claims the trial court erred because the judgment is
All undesignated statutory references are to the Code of
1
Civil Procedure.
void on its face. We agree. Instead of accepting appellant’s offer,
respondent made a counteroffer. Accordingly, we reverse.
Factual and Procedural Background
While driving a motor vehicle, appellant was involved in a
collision with another vehicle. Respondent was the driver of the
other vehicle. Respondent’s parents, Harold and Tonia Mitchell,
owned the other vehicle.
Appellant filed a complaint for damages against respondent
and her parents. Respondent and her father, Harold Mitchell,
jointly filed an answer to the complaint. Respondent’s mother
did not file an answer.2
On June 3, 2022, appellant made a section 998 offer to
compromise her action against respondent in exchange for a
$210,000 judgment against respondent. Appellant did not make
an offer to compromise her action against respondent’s parents.
Appellant’s offer to compromise included a statement of
acceptance to be signed by respondent or her attorney. “If the
offer is not accepted . . . within 30 days after it is made, . . . it
shall be deemed withdrawn . . . .” (§ 998, subd. (b)(2).) On the
28th day after the offer was made, respondent’s counsel signed
the statement of acceptance. On the same date, counsel signed
and filed a separate document that he had prepared. This
document is entitled, “NOTICE OF ACCEPTANCE OF
OFFER TO COMPROMISE (CCP SECTION 998)” (hereafter
“notice of acceptance”). The notice of acceptance stated:
“[Respondent] accepts [appellant’s] offer to [compromise] . . . in
satisfaction of all of [appellant’s] claims . . . arising out of, related
2In her appellate brief respondent alleges, “Since Appellant
has not yet served Mrs. Mitchell, Mrs. Mitchell has not filed an
Answer and she has not yet appeared in this action.”
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to or in any way connected with interest in this action. Whereby
[appellant] and her successors hereby release, acquit and forever
discharge [respondent] . . . and any and all other persons . . .
whatsoever, from any and all claims . . . whatsoever, both known
and unknown, specifically including but not limited to, any and
all claims in this matter and any related matter.” (Italics added.)
Counsel signed the notice of acceptance as the attorney for both
respondent and her father, Harold Mitchell.
Eleven days after respondent’s counsel had signed and filed
the notice of acceptance, appellant filed objections to it.
Appellant contended: “[Respondent’s] notice of acceptance
actually set forth a counteroffer – not an acceptance – and thus
did not constitute proof of acceptance under section 998.” “Not
only did [respondent] fail to unequivocally accept the offer, but it
is also now too late to do so given that the offer has expired. . . .
Therefore, there is no settlement and the case is still pending.”
In a minute order, the trial court “sustained” appellant’s
objection “to the form of the Judgment submitted by Defendants
Briaunna Mitchell and Harold Mitchell.” It ordered “[t]he parties
. . . to meet and confer and to submit a stipulated form of
Judgment.” The court said: “Defendants’ acceptance of the 998
offer is not in question. The form of the Judgment is what is in
issue.”
At a hearing conducted on December 5, 2022, the parties
informed the court that they had been unable to agree on how to
proceed in the matter. The court “order[ed] each side to submit
their (last and best proposal) form of judgment on or before
12/16/2022.”
Appellant filed an objection to the trial court’s December 5,
2022 order. Appellant protested: “There can be no judgment
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because [respondent] rejected [appellant’s] offer by making a
counteroffer. The most equitable result is for the court to void
both the offer and the purported acceptance.”
Despite appellant’s objection, on December 29, 2022, the
trial court signed a “Judgment On Stipulation.” The judgment
showed that it had been prepared by counsel for “Defendants
Briaunna J. Mitchell & Harold R. Mitchell.” The judgment notes:
“Plaintiff and defendant agreed (stipulated) that a judgment be
entered in this case. The court approved the stipulated judgment
and the signed written stipulation was filed in the case.” The
judgment required respondent to pay appellant $210,000 “on the
complaint.”
The judgment was entered on January 3, 2023. On April
7, 2023, respondent served appellant with notice of entry of the
judgment. On April 27, 2023, appellant filed a motion to vacate
the judgment. The motion stated “that judgment was improperly
entered by the court because [respondent] did not clearly and
unequivocally accept [appellant’s] Code of Civil Procedure § 998
offer and instead responded to said offer with a counteroffer.”
In a minute order dated June 12, 2023, the trial court
denied appellant’s motion to vacate.3 The trial court reasoned:
“The motion to vacate is based on CCP section 663 and CCP
section 473(d). Notice of Entry of the Judgment had been made
on April 7, 2023. [¶] After entry of judgment, a trial court’s
ability to change the judgment is largely limited to statutory
grounds. [Citation.] CCP section 1663 authorizes setting aside
3We grant respondent’s motion to augment the record to
include a “Certificate of Mailing” showing that on June 12, 2023,
the superior court clerk mailed a copy of the court’s order to
appellant.
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or vacating a judgment, but the notice to do so must be given
within l5 days of the date of mailing notice of entry of judgment
by the clerk of the court, or by any party . . . . In this case, Notice
of Entry was mailed on April 7th, and the motion was filed [20
days later] on April 27th. It is late. [¶] CCP section 473(d)
allows the court to set aside a void judgment. A judgment is
‘void’ when the court entering the judgment lacked jurisdiction to
do so. That is not the case here. The judgment may have been
voidable due to the form of defendant’s acceptance of the [section]
998 offer to compromise, but the court had jurisdiction to enter it.
As such, no relief is possible under CCP section 473.”
On August 10, 2023, appellant timely filed a notice of
appeal from the “order denying [her] motion to vacate judgment.”
(See Cal. Rules of Court, rule 8.104(a), (e); Prieto v. Loyola
Marymount University (2005) 132 Cal.App.4th 290, 294, fn. 4 [“an
order denying a statutory motion under section 473 to vacate the
judgment is appealable as an order after judgment”].)
Section 473, Subdivision (d)
Section 473, subdivision (d) provides that the court “may,
on motion of either party after notice to the other party, set aside
any void judgment or order.” “To determine ‘whether an order [or
judgment] is void for purposes of section 473, subdivision (d),
courts distinguish 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. . . .’ 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.’” (Kremerman v. White (2021)
71 Cal.App.5th 358, 370 (Kremerman), bracketed material in
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original.) “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.” (Braugh v.
Dow (2023) 93 Cal.App.5th 76, 87.) “Generally, defendants have
six months from entry of judgment to move to vacate. [Citation.]
But, if ‘the judgment is void on its face, then the six months limit
set by section 473 to make other motions to vacate a judgment
does not apply.’” (Id. at p. 86.)
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. [Citation.] However, the trial court has no
statutory power under section 473, subdivision (d) to set aside a
judgment that is not void. [Citation.] Thus, the reviewing court
faces two separate determinations when considering an appeal
founded on section 473, subdivision (d): whether the judgment is
void and, if so, whether the trial court properly exercised its
discretion in setting (or not setting) it aside. [Citation.] 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. [Citations.]” (Kremerman,
supra, 71 Cal.App.5th at p. 369.)
As a Matter of Law, the Judgment is Void on Its Face
“To form a binding settlement, an offeree’s acceptance of a
section 998 offer must be ‘“absolute and unqualified.”’
[Citations.] A qualified or conditional acceptance does not form a
contract, but constitutes a counteroffer. (Civ. Code, § 1585.) At
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common law, such a counteroffer terminates the offer; in the
section 998 context, however, the statute’s prosettlement purpose
dictates that a counteroffer does not terminate a section 998 offer
but leaves the offer in effect until it expires or is revoked.” (Siri
v. Sutter Home Winery, Inc. (2022) 82 Cal.App.5th 685, 691.)
Here, the judgment is void on its face because the judgment
roll shows that respondent’s acceptance of appellant’s offer to
compromise was not absolute and unqualified. The notice of
acceptance prepared by respondent’s counsel included a condition
that could be construed as releasing respondent’s parents from
liability for the collision. The notice of acceptance states that
“[appellant] and her successors hereby release, acquit and forever
discharge [respondent] . . . and any and all other persons . . .
whatsoever, from any and all claims . . . whatsoever, both known
and unknown, specifically including but not limited to, any and
all claims in this matter and any related matter.” (Italics added.)
Thus, respondent’s notice of acceptance constituted a
counteroffer. Appellant’s offer expired 30 days after it was made
on June 3, 2022. (§ 998, subd. (b)(2).)
Bias v. Wright (2002) 103 Cal.App.4th 811 (Bias), shows
that respondent’s notice of acceptance did not form a binding
settlement agreement. Wright orally accepted Bias’s offer to
compromise. The oral acceptance was followed by a written
notice of acceptance that “stated in relevant part: ‘MICHELLE D.
WRIGHT, defendant herein, hereby accepts the Offer to
Compromise to allow a judgment to be entered in plaintiff[]
[Bias’s] favor and against said defendant for the sum of
FIFTEEN THOUSAND DOLLARS ($15,000.00), each party to
bear their own respective costs.’” (Id. at p. 815, italics added.)
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“Wright’s notice of acceptance imposed the added condition
that the parties bear their own costs. Wright filed that notice as
proof of acceptance of Bias’s offer. Wright moved to enforce the
purported settlement agreement under section 998, and after
hearing argument and receiving evidence, the trial court granted
Wright’s motion and entered judgment.” (Bias, supra, 103
Cal.App.4th at p. 814.)
The Court of Appeal held, “[P]urported oral acceptance
evidenced by written notice of acceptance that includes an
additional term not present in a section 998 offer does not
communicate an absolute and unequivocal acceptance of the offer
as required by Civil Code section 1585 . . . .” (Bias, supra, 103
Cal.App.4th at p. 814.) The court noted that “Civil Code section
1585 provides in part: ‘An acceptance must be absolute and
unqualified . . . .’” (Italics added.)” (Id. at p. 817.)
The Court of Appeal continued: “Wright’s notice of
acceptance stated her acceptance was conditioned on the parties
bearing their own costs. Bias’s offer was silent as to costs. . . .
Wright’s notice of acceptance actually set forth a counteroffer—
not an acceptance—and thus did not constitute proof of
acceptance under section 998.” (Bias, supra, 103 Cal.App.4th at
p. 820.) “Wright did not accept the offer in a timely, absolute and
unqualified manner as required by section 998. Therefore, the
trial court erred by granting Wright’s motion and entering
judgment.” (Ibid.)
The Trial Court Abused Its Discretion in Denying
Appellant’s Motion to Vacate the Void Judgment
That the judgment is void on its face does not conclude the
matter. We must decide whether the trial court abused its
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discretion in denying appellant’s motion to vacate the void
judgment. (Kremerman, supra, 71 Cal.App.5th at p. 369.)
“[A] court abuses its discretion where no reasonable basis
for the action is shown.” (Coalition for a Sustainable Future in
Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513, 519.)
There is no reasonable basis for the denial of appellant’s motion
to vacate the void judgment. Appellant acted promptly and
diligently in objecting to the entry of judgment and in seeking to
vacate the judgment. Appellant filed her motion to vacate the
judgment 20 days after she had been served with notice of entry
of the judgment. Respondent has not shown that she was
prejudiced by the 20-day delay.
Disposition
The order denying appellant’s motion to vacate the
judgment is reversed. The matter is remanded to the trial court
with directions to enter a new order granting the motion.
Appellant shall recover her costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
CODY, J.
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Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
El Dabe Ritter Trial Layers and S. Edmond El Dabe,
Cynthia Goodman, for Plaintiff and Appellant.
MacDonald & Cody and Edye A. Hill, for Defendant
and Respondent.