Etame v. Ermel CA2/8 ( 2024 )

Filed 10/29/24 Etame v. Ermel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
MARTIAL ETAME, B331773
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. BC679337)
WOLFRAM ERMEL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Yolanda Orozco, Judge. Affirmed.
Law Offices of Nathan Mubasher and Nathan Mubasher for
Defendant and Appellant.
Martial Etame, in pro. per., for Plaintiff and Respondent.
_________________________________
This is defendant and appellant Wolfram Ermel’s second
appeal from a default judgment entered in favor of plaintiff and
respondent Martial Etame. In the prior appeal, Ermel
challenged the trial court’s denial of his motion to set aside and
vacate the default judgment. The reviewing court found Ermel
failed to file a timely appeal and had not otherwise demonstrated
error. (Etame v. Ermel (Feb. 9, 2021, B303939) [nonpub. opn.]
(Etame I).)
After the first appeal was dismissed, Ermel moved again to
set aside the default and vacate the default judgment, arguing
the judgment was void on its face. The trial court denied the
motion again, and Ermel appealed again.
Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Etame I
The following procedural and factual background
information is taken from our prior opinion in Etame I.1
“On October 12, 2017, . . . Etame filed a complaint against
Ermel alleging causes of action for breach of contract, fraud, and
conversion. The complaint alleged Ermel and Etame formed a
business buying, selling, and restoring cars but the friends had a
falling out in August 2017. Etame alleged Ermel then unlawfully
converted five cars owned by Etame that were stored on Ermel's
property. Both Etame and Ermel were self-represented. Ermel
1 Etame requested judicial notice of the record and opinion
filed in Etame I, as well as our order denying Ermel’s petition
for rehearing and our Supreme Court’s order denying Ermel’s
petition for review. We deferred ruling on Etame’s request, and
now grant it. (See Evid. Code, § 452, subd. (d).)
2
filed a responsive pleading to the complaint on November 22,
2017, but thereafter failed to appear for a case management
conference and two order to show cause hearings without excuse.
As a result, the trial court struck his answer on October 30,
2018.” (Etame I, supra, B303939.)
“The court entered default against Ermel on January 28,
2019, but denied Etame’s application for default judgment
because he failed to properly plead specific damages. The order
specified the default would be effectively vacated if an amended
complaint were to be filed because it would allow Ermel an
opportunity to submit a responsive pleading. Etame filed a first
amended complaint alleging a cause of action for fraud and
specifying damages of $380,000. Ermel failed to respond and a
default was entered on the first amended complaint. Etame’s
subsequent application for default judgment proved damages
totaling $342,000 for the value of the cars and parts in Ermel’s
possession. On June 17, 2019, the trial court entered a default
judgment against Ermel for $342,000.” (Etame I, supra,
B303939.)
“On November 6 and 18, 2019, Ermel filed two sets of
papers to set aside or vacate the default judgment. Etame
opposed. The trial court observed the papers filed by Ermel were
disorganized and confusing, clearly violated the length
requirements set out in rule 3.1113 of the California Rules of
Court, contained numerous extraneous requests, and were
interspersed with irrelevant evidence, commentary, and statutes.
Noting that parsing the papers for properly raised evidence and
arguments was ‘beyond what the [c]ourt is obligated to do,’
the trial court nevertheless provided a thorough analysis of the
issues raised by Ermel in a five-page, single-spaced order. After
3
an extensive review of the proceedings, the trial court found
Ermel ‘clearly had notice of the suit and the hearings that led to
his dismissal, and simply chose to stop participating in misguided
protest.’ Further, Ermel filed the motion to vacate over five
months after the default was taken. He provided no explanation
for the delay. The trial court concluded there was no basis on
which Ermel could obtain relief from default. On January 10,
2020, it denied the motion to vacate, and Ermel appealed on
January 23, 2020.” (Etame I, supra, B303939.)
The Etame I court dismissed Ermel’s appeal as untimely
because his notice of appeal was filed over a month after the
deadline. (Etame I, supra, B303939.) Nevertheless, the Etame I
court also found that Ermel had otherwise failed to demonstrate
reversible error. (Ibid.) “[W]e cannot discern from Ermel’s
lengthy opening brief any cogent argument related to the order
denying the motion to vacate. It appears the bulk of his brief is
devoted to refuting the damages claimed by Etame, arguing
extraneous points, and summarizing the proceedings contained in
the three-volume clerk’s transcript. We thus treat Ermel’s
arguments, such as they are, as waived.” (Ibid.)
II. Ermel’s current motion and the trial court’s denial
On remand, Ermel retained counsel and filed another
motion to set aside and vacate the default judgment as void on its
face. The primary issue raised by Ermel was that the default
judgment previously rendered against him was void for lack of
jurisdiction. Ermel also argued the trial court failed to obtain
jurisdiction of him because he never made a general appearance,
and because Etame did not properly serve the first amended
complaint (FAC) and summons upon him. Additionally, Ermel
4
argued the FAC is invalid because Etame filed it without leave of
the court in violation of California Rules of Court, rule 3.1324.
The trial court denied the motion. It found Ermel was
served with the original complaint and made a general
appearance in the case. It cited to Ermel’s filings challenging the
merits of the underlying judgment and noted Ermel made
general appearances on November 6, 2019, and November 18,
2019. Further, because service of the original complaint was
proper, Ermel had notice of the case, Etame did not need to serve
a second summons for the trial court to obtain jurisdiction over
Ermel. With respect to whether Etame failed to comply with
California Rules of Court, rule 3.1324, the trial court found no
authority for Ermel’s argument that the FAC was inherently
invalid and the judgment is void for a failure to comply with
rule 3.1324.
Etame appealed.
DISCUSSION
Ermel argues the trial court erred in denying his motion on
several grounds. First, he argues the default judgment must be
set aside because the factual basis for Etame’s allegations were
fraudulent. Second, Ermel argues the record shows he was never
served with the FAC and therefore the judgment is void. Third,
Ermel argues his current challenge to the default judgment is not
barred by res judicata.
I. Governing law and standard of review
A “court may, upon any terms as may be just, relieve a
party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable
5
neglect.” (Code Civ. Proc.,2 § 473, subd. (b).) “Where, as here, a
motion to vacate is made more than six months after entry of a
judgment, a trial court may grant a motion to set aside that
judgment as void only if the judgment is void on its face.
[Citations.] ‘ “A judgment or order is said to be void on its face
when the invalidity is apparent upon an inspection of the
judgment-roll.” ’ ” (Ramos v. Homeward Residential, Inc. (2014)
223 Cal.App.4th 1434, 1440 (Ramos).) “This inquiry, however,
‘does not hinge on evidence: A void judgment’s invalidity appears
on the face of the record.’ ” (Kremerman v. White (2021)
71 Cal.App.5th 358, 370 (Kremerman), italics in original.) “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.’ [Citation.]
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.’ [Citation.] 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.” (Ibid.)
“Because any defect in service must appear on the face of
the judgment roll . . . , our review of a trial court’s order finding
such a facial defect is of necessity de novo.” (Ramos, supra,
223 Cal.App.4th at p. 1440.)
II. Ermel’s challenge to the sufficiency of allegations
Ermel’s first argument on appeal is a challenge to the
underlying allegations of Etame’s pleading. He asserts the
2 All further undesignated statutory references are to the
Code of Civil Procedure.
6
allegations that Etame owned certain vehicles are “a patent lie”
and that an “evidentiary hearing” would “set the record straight.”
Ermel has even gone so far as to attach potential exhibits to his
opening brief. Thus, Ermel’s challenge to the validity of the
default judgment is merely an attempt to discredit the
underlying allegations, and is based entirely on extrinsic
evidence. Because Ermel’s argument relies entirely on extrinsic
evidence, it is insufficient to show the judgment is void on its
face. (Kremerman, supra, 71 Cal.App.5th at p. 370.)
III. Ermel’s argument that he was not served with the
FAC and other challenges to the proof of service
Ermel next argues the judgment was void because he was
not served with the FAC. He asserts that various proofs of
service were fraudulent because he was out of the country when
service was effected and, in one instance, service was effected
upon “a random non-Defendant, Daniel Yosef” at the wrong
address.
With respect to Ermel’s contention that he was out of the
country when service was effected, this argument fails for the
same reasons as his challenge to the underlying allegations.
It requires consideration of extrinsic evidence, here, Ermel’s
declaration stating he was out of the country between certain
dates. Therefore, it is insufficient to show the judgment is void
on its face. (Kremerman, supra, 71 Cal.App.5th at p. 370.)
Ermel also argues that the default judgment is void
because he was never served with the first amended complaint.
Specifically, Ermel directs us to the case register, which shows
Etame filed a proof of personal service the same day he filed the
first amended complaint and then filed a proof of service by mail
several weeks later. With respect to the proof of personal service,
7
Ermel argues it must be fraudulent since the case register shows
the proof of service was filed before the filing of the first amended
complaint. With respect to the proof of service by mail, Ermel
argues it was mailed to the wrong person at the wrong address.
We are not persuaded either argument requires reversal here.
Assuming personal service was not effected here, because
Ermel had already made an appearance in the action, Etame was
permitted to serve the first amended complaint by mail. (See
Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d. 436, 441
[“[S]ervice of an amended complaint by mail under Code of Civil
Procedure section 1012 is sufficient where the defendant has
made an appearance in the action”].) Regarding whether the
amended complaint was mailed to the wrong person at the wrong
address, Ermel has not cited any evidence in support of this
assertion other than his own declaration in support of his motion
to vacate the default and the case register, which contains no
information on who was served. As such, Ermel has not
demonstrated that he was not validly served with the FAC such
that the default judgment is void.
Having found Ermel has not met his burden to demonstrate
error, we do not consider his third argument—whether or not
res judicata applies.3
3 Etame also filed a motion to dismiss the appeal on the
grounds Ermel’s arguments were already decided by the prior
appeal. While it is true some of Etame’s arguments may have
overlapped, the motion to vacate and set aside the default
judgment here was based on a different standard than in the
prior appeal. Now, having decided the current appeal on the
merits, we deny Etame’s motion to dismiss.
8
DISPOSITION
The judgment is affirmed. Respondent shall recover his
costs on appeal.
VIRAMONTES, J.
WE CONCUR:
GRIMES, Acting P. J.
WILEY, J.
9