Moreno v. Bander CA2/8 ( 2024 )

Filed 10/23/24 Moreno v. Bander CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
EVELYN MORENO, B332564
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 18STCV07163)
v.
JOEL BANDER, as Trustee, etc.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Law Offices of Scott E. Schutzman and Scott E. Schutzman
for Defendant and Appellant.
Chaleff Rehwald Peterson and Lauren J. Peterson for
Plaintiff and Respondent.
_________________________
Respondent Evelyn Moreno (Moreno) filed a civil complaint
for back wages against Jewel Mehlman (Mehlman), now
deceased, and her daughter Felicia Bander. A default judgment
for $376,875.31, plus attorney fees and costs was ultimately
entered against appellant Joel Bander (Bander) in his capacity as
trustee of the Mehlman Family Trust. Bander appealed. We
affirm.
A. Factual Allegations
According to the operative Second Amended Complaint
(SAC), Moreno was a domestic caregiver for Mehlman from 2006
to June 15, 2018. She qualified as a domestic work employee
under the Domestic Worker Bill of Rights (DWBR)1 (Lab. Code,
§ 1450 et seq.) which became effective on January 1, 2014.
Mehlman “suffered from severe dementia, seizures, erratic
blood pressure, and a dangerous fainting disorder.” Because of
Mehlman’s serious medical and health conditions, Moreno was
prohibited from leaving Mehlman alone in her home at any time
during her scheduled work shifts. Moreno was only relieved of
her caregiving duties if defendant Felicia Bander or another
relief caregiver came to supervise and care for Mehlman. Moreno
1 “ ‘Domestic work’ means services related to the care of
persons in private households or maintenance of private
households or their premises. Domestic work occupations include
childcare providers, caregivers of people with disabilities, sick,
convalescing, or elderly persons, house cleaners, housekeepers,
maids, and other household occupations.” (Lab. Code., § 1451,
subd. (a)(1).) “ ‘Domestic work employee’ means an individual
who performs domestic work and includes live-in domestic work
employees and personal attendants.” (Lab. Code, § 1451,
subd. (b)(1).) These provisions are part of the DWBR.
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was required to be available at all hours of the day and night to
attend to Mehlman’s needs whenever they occurred. As a result,
Moreno had to attend to Mehlman’s needs several times a night.
And because Mehlman’s care needs increased during the last
year of Moreno’s employment, Moreno occasionally got little or no
sleep during the night.
Moreno generally worked 20 or 24 hours a day for five days
a week. Her duties consisted of, but were not limited, to assisting
Mehlman with bathing, dressing, grooming, feeding, continence,
medication dispensation, meal preparation, and using the
restroom.
Moreno was paid a daily salary of $120 to $160 per day
throughout her employment. This is approximately $6.25 to
$6.67 per hour for 24 hours of work. Her salary compensated her
for her regular hours only.2 Under Labor Code section 1454, she
was entitled to overtime pay.3
Moreno contended her salary fell short in two ways. She
was paid less than the minimum wage and she was not paid for
overtime.
2 “Payment of a fixed salary to a nonexempt employee shall
be deemed to provide compensation only for the employee’s
regular, nonovertime hours, notwithstanding any private
agreement to the contrary.” (Lab. Code, § 515, subd. (d)(2).)
3 “A domestic work employee who is a personal attendant
shall not be employed more than nine hours in any workday or
more than 45 hours in any workweek unless the employee
receives one and one-half times the employee’s regular rate of pay
for all hours worked over nine hours in any workday and for all
hours worked more than 45 hours in the workweek.” (Lab. Code,
§ 1454.)
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B. Procedural History
Moreno’s action against Mehlman and her daughter Felicia
Bander was filed on December 4, 2018. The SAC was filed on
August 4, 2020.
The SAC alleges five causes of action. The first cause of
action is for overtime pay in the amount of $296,062.11. The
second cause of action is for failure to pay minimum wages. The
damages sought were $85,517.50, interest thereon, costs, and
attorney fees. The third cause of action is for liquidated damages
under Labor Code section 1194.2.4 The fourth cause of action is
based on Labor Code sections 202 and 203 which respectively
provide that wages become due and payable 72 hours after an
employee quits employment and that unpaid wages due to an
employee who is discharged or who quits continue as a penalty
until paid. The fifth cause of action is based on Business and
Professions Code section 17200 for failure to pay minimum wages
and for overtime.
Mehlman died on March 12, 2021, seven months after the
SAC was filed. Six weeks after Mehlman’s death, on April 27,
2021, Bander, Mehlman’s son-in-law and trustee of the Mehlman
Family Trust, filed a notice to creditors under Probate Code
section 19003. On June 21, 2021, Moreno filed a creditor’s claim
4 “In any action . . . to recover wages because of the payment
of a wage less than the minimum wage fixed by an order of the
commission or by statute, an employee shall be entitled to recover
liquidated damages in an amount equal to the wages unlawfully
unpaid and interest thereon. Nothing in this subdivision shall be
construed to authorize the recovery of liquidated damages for
failure to pay overtime compensation.” (Lab. Code, § 1194.2,
subd. (a).)
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in response to the notice she received. On July 19, 2021, Bander
rejected Moreno’s claim.
On August 2, 2021, Moreno amended the complaint by
naming Bander as a defendant in lieu of DOE 1. Moreno then
attempted to serve Bander. Her efforts are chronicled in the
February 16, 2023 minute order of the trial court: “Plaintiff made
numerous efforts to serve Joel Bander. Plaintiff filed a
Declaration of Non-Service completed by Mark James Diaz, a
registered process server. (See Declaration of Non-Service, filed
on November 12, 2021.) The declaration states that Mr. Diaz
attempted to serve Defendant Joel Bander at 1300 Adams
Avenue, Apartment #15J in Costa Mesa, California on six
occasions between October 23 and November 5, 2021. (Ibid.) The
declaration states that on two occasions, people were home, but
no one answered the door. (Ibid.) The declaration states that on
one occasion, a man was home but he did not open the door.
(Ibid.) The application was rejected. (See Court’s Order, dated
November 22, 2021.) [¶] Plaintiff's counsel made additional
efforts to serve Joel Bander, using a different process server.
Plaintiff filed a Declaration of Non-Service completed by Frank
Harrigan, a registered process server. (See Declaration of Non-
Service, filed on February 23, 2022.) The declaration states that
Mr. Harrigan attempted to serve Defendant Joel Bander at 1300
Adams Avenue, Apartment #15J in Costa Mesa, California on
five occasions between February 12 and February 19, 2022.
(Ibid.) [¶] Plaintiff’s counsel made additional efforts to serve Joel
Bander. Plaintiff filed another Declaration of Non-Service
completed by Mr. Harrigan. (See Declaration of Non-Service,
filed on March 24, 2022.) The declaration states that Mr.
Harrigan attempted to serve Defendant Joel Bander at 1300
5
Adams Avenue, Apartment #15J in Costa Mesa, California on
five occasions between March 10 and March 23, 2022. (Ibid.)”
Moreno was never able to personally serve Bander. She
requested an order authorizing service by publication. On
August 18, 2022, the court entered an order for service of the
summons and complaint by publication.
On November 4, 2022, Bander filed a motion to vacate the
order authorizing service by publication and to quash service of
the summons and complaint.
In denying the motion to quash, the court found process
server Harrigan’s declarations credible and Bander’s declaration
not credible: “The Court finds that Harrigan’s declarations are
credible. By contrast, the Court finds that Defendant Joel
Bander’s declaration is not credible and finds that he was
intentionally evading service for several reasons. First, the
declaration of Joel Bander appears to be contrived given the level
of detail in attempting to establish that he was home on dates
when the process server arrived. As Queen Gertrude said in
Hamlet: ‘The [gentleman] doth protest too much, methinks.’
Moreover, it is not credible to believe that numerous attempts to
serve him were contrived by a registered process server, who is
not a potential party and has no personal interest in this case.
Nor is it credible when Defendant Joel Bander states that he has
‘no reason to avoid service of process’ when he now controls the
trust holding the assets of Jewel Mehlman. To the contrary,
Defendant Joel Bander has a motive to evade service, i.e., to
protect the assets of the trust, and he does not deny knowing
about this litigation before Harrigan attempted to serve him.
Nor could he do so credibly, given that Felicia Bander [Joel
Bander’s wife] has been a defendant for years. Finally, even now,
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Joel Bander, an attorney who now clearly has notice of these
proceedings, has not agreed to simply accept service through his
counsel or via email. Instead, he seeks to quash service of the
summons and complaint and require Plaintiff to serve him
personally when past efforts have been futile. These are not the
actions of someone who is willing to be served in this manner and
calls into question his assertions to that effect.”
The trial court also noted that Bander never requested an
evidentiary hearing on his motion and so did not cross-examine
the process servers. On February 16, 2023, the court denied
Bander’s motion to quash.
On July 7, 2023, Moreno filed her brief in support of entry
of a default judgment in the amount of $376,875.31, plus
$180,997.05 in interest, $7,494.79 in attorney fees and $2,668.57
in costs. Moreno’s brief was comprehensive and supported by
multiple exhibits. Bander did not file an opposition or a reply,
leaving the damage calculations uncontested.
On August 14, 2023, the trial court entered judgment for
$376,875.31, together with interest thereon as provided by law,
attorney fees of $7,494.79, and costs of $2,668.57.
This appeal followed.
C. Creditor’s Claims Procedure
There are two ways by which a claim may be asserted
against individuals after they die. One is the claims procedure
used when there is a probate of an estate. The other is the one
employed in this case when there is no probate estate, but there
is a trust.
“Beginning with section 19000, the Probate Code sets forth
a series of provisions for payment of claims, debts and expenses
from the assets of a revocable trust of a deceased settlor. These
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provisions nearly parallel the claims procedure for probate
estates. The trust claims procedure is very similar to the probate
claims procedure regarding, for example, the manner of giving
notice to potential creditors, provisions for filing claims,
restrictive time periods for filing claims, the approval,
acceptance, rejection or settlement of claims, and the like. As
with the probate estate claims procedure, if a creditor does not
file a timely claim in the trust proceedings in response to a
notice, the creditor’s cause of action against the assets of the
trust are barred. Also similar to the probate claims procedure, if
the trustee rejects a creditor’s claim, the creditor must file an
action on the claim within 90 days after notice of rejection.”
(Dobler v. Arluk Medical Center Industrial Group, Inc. (2001)
89 Cal.App.4th 530, 537–538, fn. omitted (Dobler).)
Moreno’s action against Mehlman was pending at the time
of Mehlman’s death. Probate Code section 9370 provides that an
action against the decedent’s personal representative cannot
proceed unless a claim is first filed, the claim is rejected, and
“[w]ithin three months after the notice of rejection is given, the
plaintiff applies to the court in which the action or proceeding is
pending for an order to substitute the personal representative in
the action or proceeding.” (Prob. Code, § 9370, subd. (a)(3).)
Bander denied Moreno’s creditor’s claim on July 19, 2021.
In response, Moreno amended the complaint on August 2, 2021
by naming Bander as a defendant in lieu of DOE 1.
Bander, as trustee of the Mehlman Family Trust, became a
party to Moreno’s action in his capacity as trustee. However, as
the trial court found, Bander deliberately avoided personal
service of process. This led to the order for service by publication
and ultimately to the default judgment. We find the court and
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Moreno complied with all applicable statutes and regulations in
entering the default judgment. Bander’s arguments to the
contrary are without merit. The facts relevant to Bander’s
appellate challenges are undisputed. We review de novo whether
Bander was properly added to the civil action. (Cf. Embree v.
Embree (2004) 125 Cal.App.4th 487, 491 [where facts are
undisputed, whether a party is barred from pursuing trust
property to satisfy a creditor’s claim is a legal issue subject to de
novo review].)
D. Analysis
First, Bander contends the trial court did not separately
rule on his request to vacate the publication order. The propriety
of the service by publication order was necessarily subsumed in
Bander’s motion to quash service of process. Had there been a
substantive defect in the service by publication order, the trial
court would have had to grant the motion to quash. A separate
ruling addressing whether to vacate the service by publication
order was unnecessary.
Next, Bander contends there is no cause of action against
him nor is there a showing that he is a necessary party. Bander
in his capacity as trustee became party to Moreno’s action by
virtue of Probate Code section 9370, which made him a necessary
party. While Moreno has no cause of action against Bander
personally, she has a cause of action against Bander in his
capacity as trustee of the Mehlman Family Trust.
Third, Bander contends the trial court erroneously
permitted Moreno to use the DOE amendment procedure to add
Bander to the action in his capacity as trustee for the Mehlman
Family Trust. Bander contends the trial court instead should
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have compelled Moreno to file a noticed motion for leave to
substitute Bander in place of Mehlman as a defendant.
Rather than insisting that Moreno file a noticed motion, the
trial court found that adding Bander as DOE 1 in his capacity as
trustee of the trust satisfied the purpose of the statute. The court
gave three reasons for its ruling. First, adding Bander was
“ministerial in nature” and the court was required to allow the
action to continue against Bander under Code of Civil Procedure
section 377.41, which provides: “On motion, the court shall allow
a pending action or proceeding against the decedent that does not
abate to be continued against the decedent’s personal
representative.” (Code Civ. Proc., § 377.41.) Second, the court
relied on the principle that cases should be resolved on the
merits. Third, the court found Bander was not prejudiced
because he was being sued in his capacity as trustee and
therefore faced no personal liability.
There is a further reason why adding Bander as DOE 1
instead of filing a noticed motion for leave to add Bander is of no
moment. The trial court noted Probate Code section 9370 does
not limit how a plaintiff “applies” to substitute a personal
representative and it treated the substitution of Bander for DOE
1 as satisfying the requirement of section 9370, subdivision (a)(3),
to wit, that the “plaintiff appl[y] to the court in which the action
or proceeding is pending for an order to substitute the personal
representative in the action or proceeding.” (Ibid.) We agree
with this reasoning.
Alternatively, assuming error for purposes of argument, a
mere technical error that could not have had any substantial
effect on the merits may be disregarded on appeal. (Estate of
Cooper (1970) 11 Cal.App.3d 1114, 1121; see generally 9 Witkin,
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Cal. Procedure (6th ed. 2024) Appeal, § 448.) Indeed, where a
“minor misstep is of no legal significance,” it can be disregarded.
(Dobler, supra, 89 Cal.App.4th at p. 544 [disregarding the initial
incorrect filing of a petition for payment of a judgment as a
“minor misstep” because it had no legal significance]; Estate of
Heggstad (1993) 16 Cal.App.4th 943, 952 [rejecting formal
approach to claims of error in labeling petitions for probate court
instructions].) It is clear the trial court understood Bander was
named as DOE 1 in place and instead of Mehlman as the trustee
of her trust and not in his personal capacity. Bander has not
(and, we find, cannot) state how he as trustee is prejudiced by the
trial court’s decision to allow Moreno to substitute him through
the DOE amendment procedure rather than by noticed motion.
For example, he has not claimed that he was not permitted the
opportunity to submit evidence to counter the substitution or that
he was not permitted to object to being added to the lawsuit in
his capacity as trustee. Nor has he contended that the court’s
ruling would have been different if the noticed motion procedure
had been employed. Nor has Bander contended that he was
unaware of the litigation. Indeed, he cannot credibly do so, as he
was appointed Mehlman’s guardian ad litem in the civil action on
August 11, 2020, at the request of Mehlman’s counsel. If there
was error, we find it minor and harmless and disregard it on
appeal.
Bander invokes the rule that a summons and complaint
must be served within three years after commencement of a civil
action. That is, of course, generally true but it does not, and
cannot, be blindly applied to situations covered by Probate Code
section 9370, particularly where, as here, the trial court found
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that Bander was intentionally evading service of process, a
finding Bander does not contest on appeal.
Bander also contends Moreno failed to comply with Probate
Code section 9370 because she failed to substitute Bander within
three months after her creditor’s claim was denied. We reject
this inexplicable argument because Moreno’s creditor’s claim was
denied on July 19, 2021 and Bander was substituted as a
defendant on August 2, 2021.
Finally, Bander argues Moreno failed to comply with
Probate Code section 19255, which provides: “A rejected claim is
barred as to the part rejected unless the creditor brings an action
on the claim or the matter is referred to a referee or to
arbitration.” (Prob. Code, § 19255, subd. (a).) Section 19255 does
not apply because an action on Moreno’s claim against Mehlman
was already pending when Bander was added as a party
defendant.5
5 It has long been settled that points raised for the first time
in a reply brief will not be considered by the court. (Kahn v.
Wilson (1898) 120 Cal. 643, 644; Dameron Hospital Assn. v. AAA
Northern California, Nevada & Utah Ins. Exchange (2022)
77 Cal.App.5th 971, 982.) To the extent Bander raises new
arguments in his reply brief, we find no good cause to relax the
rule. (9 Witkin, Cal. Procedure (6th ed. 2024) Appeal, § 751 [rule
may be relaxed for good cause shown].)
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DISPOSITION
The judgment is affirmed. Respondent is to recover costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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