Rios v. Singh CA3

Filed 5/25/21 Rios v. Singh CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
JOHN RIOS, JR.,
Plaintiff and Respondent, C086959
v. (Super. Ct. No. 34-2015-
00180028-CU-PO-GDS)
RAGHVENDRA "RAJ" SINGH,
Defendant and Appellant.
Raghvendra “Raj” Singh, representing himself, appeals from the default judgment
entered in favor of John Rios, Jr., and against Singh and other defendants and the orders
denying Singh’s motions to set aside the default. Singh now contends (1) the trial court
lacked personal jurisdiction because Rios did not properly serve the summons and
complaint; (2) default was improperly entered because defendants filed an answer or
reply on November 2, 2015; (3) the trial court erred in denying him relief under Code of
Civil Procedure section 473.5;1 (4) the trial court erred in awarding Rios damages where
the complaint did not state the amount of damages; (5) Rios’s counsel should have
disclosed to Singh during their communications that Rios had filed documents in support
of a request for entry of judgment; and (6) there are a number of defenses to the
complaint.
1 Undesignated statutory references are to the Code of Civil Procedure.
1
We conclude (1) the trial court did not err in granting Rios’s application for an
order of service by publication and Singh fails to show that the service by publication
here did not comply with section 415.50; (2) Singh’s November 2, 2015 motion was not
an answer and did not preclude the entry of default; (3) Singh did not satisfy the
requirements for relief under section 473.5; (4) publication of the statement of damages
provided Singh notice of the amount of damages Rios sought; (5) Singh was not entitled
to further notices after the entry of default; and (6) we do not consider Singh’s
contentions on the merits because he has not shown that default was improperly entered.
We will affirm the judgment.
BACKGROUND
Rios filed a complaint for premises liability against Singh, Kiran Rawat, and Singh
and Rawat as trustees of The Ram Sita Trust. The complaint alleged defendants
negligently owned, leased, occupied, controlled, repaired, maintained, inspected and/or
managed certain real property located on Stockton Boulevard in Sacramento such that a
fire broke out at the property and injured Rios.
In support of an ex parte application pursuant to section 415.50 for an order
permitting service of a summons by publication in The Sacramento Bee newspaper, Rios
declared that Singh, who Rios believed owned the Stockton Boulevard property, gave
Rios and his fiancée permission to live in the house at the property in exchange for
helping make repairs. Rios’s fiancée died in a fire at the house, and Rios had burns on
over 46 percent of his body.
Also in support of the ex parte application for service by publication, Rios’s
attorney Anthony Ontiveros declared that he hired private investigator Rick Rogers to
identify the owner of the Stockton Boulevard property. Rogers’s investigation showed
that The Ram Sita Trust owned the property and Singh and Rawat were the trustees of the
trust. Rogers provided Ontiveros with a post office box address in Sacramento for the
trust. Ontiveros later asked Rogers to serve Singh and Rawat at an address on 28th Street
2
in Sacramento, which Rogers’s investigation found was the last known physical address
for Singh and Rawat. Service at that address was unsuccessful.
A man identifying himself as Singh called Ontiveros about a month after Rios
filed his complaint. Singh said he was aware of Rios’s lawsuit, he had information about
Rios which he would use if the lawsuit continued, and Ontiveros should drop the lawsuit
against defendants and sue Sacramento County instead. Ontiveros tried to get Singh to
meet Rogers but Singh refused any contact except by telephone.
Rogers passed away shortly thereafter, and Ontiveros hired private investigator
Tom Campbell to find and serve process on defendants. In support of the ex parte
application for service by publication, Campbell declared that he had learned that Singh
and Rawat operated a business on 51st Avenue in Sacramento. Campbell’s research
showed that The Sitaram Trust, another trust associated with Singh and Rawat, owned the
51st Avenue property.
Nearly two months after Rios filed the complaint and the day before Campbell
attempted to serve defendants at the 51st Avenue property, Ontiveros received a
document titled “Notice and Request to Withdraw Frivolous Filing” and a letter by
facsimile. The request contained the title and case number for Rios’s complaint and
purported to be signed by “Karen Singh,” whose address was the same post office box
address as for The Ram Sita Trust.2 The request stated, “We heard that you filed above
stated lawsuit. You are notified pursuant to California Civil Procedure Code sections
128.5 and 128.7 that we will request for sanctions and for damages against you if you do
not withdraw the complaint in the above captioned case within 30 days. The complaint in
the above captioned case is frivolous, is for improper purpose, and is filed to harass or to
cause unnecessary delay or needless increase in the cost of litigation. Karen Singh never
2 It appears that Karen Singh is Kiran Rawat.
3
had any contact with John Rios. So, Karen Singh can never be liable. The house was not
under the control of defendants at the time of incident. Notices and the Sheriff clarified
to everyone on several occasions that it was a crime to stay in the house at the time of
incident. So, plaintiff should be behind bars for trespassing, living in inhabitable [sic]
house and other crimes. Defendants believe that plaintiff conspired with others to burn
the house.”
The accompanying letter was addressed to the “[a]ttorney for the welfare of John
Rios.” It was unsigned. The letter threatened to request sanctions and initiate a
malpractice lawsuit against Rios’s attorney and to disclose Rios’s criminal activities if the
lawsuit was not dismissed.
Campbell attempted to serve Singh and Rawat at the 51st Avenue property on
July 29, 2015. It was an industrial and commercial property with an office building set
back about 75 yards from a locked gate. Campbell spoke to a black male who was inside
the fenced area and who appeared to be guarding the premises. That person said Singh
should be there within the next few hours. Campbell saw the man again when he
returned to the property about two hours later. The person said Singh was regularly at
that site, mostly during mid-day. The gate remained locked. Campbell did not see any
activity at the office.
Singh called Ontiveros later that afternoon and left messages asking for a return
call. When Campbell returned Singh’s calls, Singh told Campbell he would not
cooperate with attempts to serve him.
Campbell returned to the 51st Avenue property on August 5, 2015. The gate
remained locked and there was no one at the property except for the man who appeared to
be a guard. The man again told Campbell that Singh came to the property most days at
mid-day. Campbell again returned to the property at about 1 p.m. the next day. The gate
was locked and he did not see anyone on the premises.
4
Ontiveros sent the summons, complaint and an acknowledgment of receipt of the
summons to Singh at the post office box address for The Ram Sita Trust on August 24,
2015. The same documents were sent the same day to the post office box, addressed to
Rawat. Ontiveros received no response from Singh or Rawat.
Three months after he filed his complaint, Rios filed the ex parte application for
service by publication on the ground that defendants were evading service of process.
The trial court granted the application, ordering that the summons be served by
publication in The Sacramento Bee once a week for four weeks. Rios subsequently filed
a declaration of publication showing compliance with the order.
Singh filed a motion to set aside all rulings by the trial court and a document titled
“reply” on November 2, 2015. Those papers showed that Singh’s address was the same
post office box as for Rawat and The Ram Sita Trust. Singh asserted that Judge Cadei,
who signed the order for publication, was biased against defendants. He also claimed
Rios did not authorize the lawsuit; Rios caused the fire; and Rios was a career criminal
and had committed many crimes on the property. No declaration accompanied the
motion and reply.
The trial court noted that the only order it had granted was the order permitting
service of the summons by publication and Singh did not explain why that order should
be set aside. Therefore, the trial court refused to set aside its order for service by
publication.
More than five months later, Rios filed a request for entry of default, seeking a
judgment of $4,803,764 including costs of $3,764 against defendants. A copy of the
request was sent by mail to Singh, Rawat and The Ram Sita Trust at their post office box
address. Default was entered the same day.
Singh and Rawat filed a motion to set aside the default and for other relief and a
document titled “reply” shortly thereafter. They argued that the default was improperly
entered because defendants had filed an answer on November 2, 2015. They further
5
asserted that service by publication was improper because Rios knew their address but
did not serve them there; the service by publication did not disclose the content of the
complaint; and they did not see any publication. Singh and Rawat sought relief under
sections 473 and 473.5. Their “reply” attacked the complaint and asserted various
defenses.
The trial court denied Singh and Rawat’s motion, noting that no answer had been
filed and that defendants did not submit a declaration or any evidence supporting their
claims regarding improper service.
Singh and Rawat filed a motion for reconsideration, repeating many of the same
arguments raised in their set-aside motion. Singh submitted a supporting declaration
asserting the following: Rios knew defendants’ address but did not serve them there.
Defendants did not notice any publication about this case. Rios did not inform
defendants of the action. Rios told Singh that Rios did not file the action. And Singh
told Rios’s attorney that Singh would welcome service if the attorney confirmed that Rios
was really a plaintiff.
The trial court denied the unopposed motion for reconsideration because the
motion repeated the same arguments made in the prior set-aside motion and provided no
new or different facts, circumstances or law.
Singh filed a third motion to set aside the default and for other relief about two
months later, repeating arguments he had previously made and raising new arguments
which he reiterates on appeal. The trial court denied that unopposed motion. It ruled that
service on a post office box was not permitted under section 415.20, subdivision (a); in
any event, Rios sent the summons, complaint and a notice and acknowledgment to
defendants at their post office box address by mail. It found that Singh was not present at
the 51st Avenue location when Campbell visited it four times, and Singh told Ontiveros
that Singh would not cooperate with the service of process. It denied Singh’s motion for
6
relief under section 473.5 because Singh did not submit a copy of the answer or other
pleading proposed to be filed in the action.
Singh filed a fourth motion to set aside the default and for other relief about 11
months later. He repeated the arguments made in the prior set-aside motion and also
argued defendants could not be liable to Rios because the trial court had appointed a
receiver for the Stockton Boulevard property and Rios had been evicted and cited for
trespassing on the property. The trial court treated Singh’s motion as an untimely motion
for reconsideration under section 1008, subdivision (a) and denied it because Singh
provided no new or different facts, circumstances or law.
Singh filed a fifth set-aside motion 23 days later, again repeating many of the
arguments he had previously made and also arguing that the complaint did not state the
amount of damages; the receiver and Sacramento County were necessary parties; Rios’s
attorney did not tell Singh that Rios had filed documents for a default judgment; and Rios
assumed the risk of injury.
Following a default prove-up hearing, which was set to take place before the
hearing on Singh’s fifth set-aside motion, the trial court entered judgment in favor of
Rios and against Singh and Rawat in the amount of $1,782,793.06 in special damages,
$3 million in general damages, and $3,764 in costs, for a total judgment of
$4,786,497.06. The trial court later continued the hearing on Singh’s set-aside motion
because it was concerned that Singh had not actually served Rios with the motion. It
directed the court clerk to serve Rios’s counsel with a copy of its minute order so that
counsel might file and serve an opposition to Singh’s motion. Rios filed an opposition
to the set-aside motion. His attorney averred that Rios did not receive notice of Singh’s
set-aside motion nor the prior set-aside motions and orders denying those prior motions.
The trial court dropped Singh’s motion from its calendar due to the lack of notice.
7
DISCUSSION
I
Singh argues the trial court lacked personal jurisdiction because Rios did not
properly serve the summons and complaint; therefore, all orders by the trial court are
void.
“ ‘[C]ompliance with the statutory procedures for service of process is essential to
establish personal jurisdiction. [Citation.] . . . [A] default judgment entered against a
defendant who was not served with a summons in the manner prescribed by statute is
void.’ ” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544 (Ellard); accord Calvert v.
Al Binali (2018) 29 Cal.App.5th 954, 961-962; Carr v. Kamins (2007) 151 Cal.App.4th
929, 936-937.) Whether a judgment is void for lack of proper service is a question of law
that we review de novo. (Calvert, at pp. 961-962; Giorgio v. Synergy Management
Group, LLC (2014) 231 Cal.App.4th 241, 247 (Giorgio).)
Section 415.10 et seq. governs the manner of service of a summons. A summons
may be served by various methods. If service of a summons by other means proves
impossible, service may be effected by publication, upon the trial court’s approval.
(Watts v. Crawford (1995) 10 Cal.4th 743, 748-749 and fn. 5 (Watts).) Section 415.50
governs this method of service. Subdivision (a) of the statute provides, in pertinent part,
“A summons may be served by publication if upon affidavit it appears to the satisfaction
of the court in which the action is pending that the party to be served cannot with
reasonable diligence be served in another manner specified in [section 415.10 et seq.] and
that . . . [¶] . . . [a] cause of action exists against the party upon whom service is to be
made or he or she is a necessary or proper party to the action.”
A number of honest attempts to learn the defendant’s whereabouts through inquiry
and investigation generally are sufficient. (Watts, supra, 10 Cal.4th at p. 749, fn. 5.) A
plaintiff must show such efforts because it is generally recognized that service by
publication rarely results in actual notice. (Ibid; accord Donel, Inc. v. Badalian (1978)
8
87 Cal.App.3d 327, 332 (Donel); Sanford v. Smith (1970) 11 Cal.App.3d 991, 1001
(Sanford).) Whether the plaintiff exercised the diligence necessary to justify resort to
service by publication depends on the facts of the case. (Donel, at p. 333.) The question
is whether the plaintiff took the steps a reasonable person who truly desired to give notice
of the action would have taken under the circumstances. (Ibid.) We review a trial court’s
finding that the defendant could not with reasonable diligence be served by a means
superior to publication for substantial evidence. (Giorgio, supra, 231 Cal.App.4th at
p. 248.)
Here, substantial evidence supports the trial court’s finding that Rios could not
with reasonable diligence serve the summons and complaint on defendants by a means
superior to publication. Ontiveros hired Rogers and later Campbell to locate and serve
the owners of the property where Rios was injured, and they made numerous attempts to
effectuate service. While section 415.20, subdivision (b) authorizes substitute service by
leaving a copy of the summons and complaint at a party’s “usual place of business” in the
presence of “a person apparently in charge of his or her office, [or] place of business, . . .
at least 18 years of age,” Campbell did not see anyone at the premises when he made his
fourth and last attempt to personally serve Singh and Rawat at the 51st Avenue location.
And substitute service under section 415.20 may not be effected at the only other address
Ontiveros had for defendants: a United States Postal Service post office box. (§ 415.20,
subd. (a), (b); cf. Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201-1203 [approving
service on a clerk at a private post office box business, as opposed to a United States
Postal Service, post office box address]; Ellard, supra, 94 Cal.App.4th at pp. 545-546
[approving service on the manager of a private post office box where no facts suggested
that service was available at any other address for the defendant].)
Ontiveros also attempted to serve Singh and Rawat with the summons and
complaint by mail pursuant to section 415.30. Service under that section is deemed
complete on the date a written acknowledgment of receipt of the summons is executed, if
9
the acknowledgment is returned to the sender. (§ 415.30, subd. (c).) Ontiveros served a
set of the summons, complaint and acknowledgment of receipt on Singh and Rawat,
separately, by certified mail to the post office box address shown on a motion he received
from Rawat and which investigation showed was the address for the owner of the
property where Rios was injured. That post office box address is the same address Singh
provided on the motions he filed in the trial court and on his appellate brief. But
defendants did not return a signed acknowledgement of receipt of the summons.
Singh argues Rios was required to serve defendants by mail at least three times,
but he cites no legal authority in support of his assertion. An appellate brief must support
each point by argument and, if possible, by citation of authority and to provide a citation
to the record for a factual assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) &
(a)(1)(C).) We treat Singh’s claim as forfeited because he fails to support it by citation to
legal authority. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 (Tanguilig); Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14 (Nwosu); Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785 (Badie).)
Singh also challenges the declarations filed in support of Rios’s application for
publication. A declaration supporting a section 415.50 application must state probative
facts based on personal knowledge rather than hearsay or legal conclusion. (Sanford,
supra, 11 Cal.App.3d at pp. 998-1000; Miller v. Superior Court (1961) 195 Cal.App.2d
779, 783-784; accord Olvera v. Olvera (1991) 232 Cal.App.3d 32, 42 (Olvera).) Singh
summarily asserts that Campbell’s declaration was fraudulent and insufficient for an
order for publication and that unspecified declarations were not based on personal
knowledge. We do not consider undeveloped claims. (Badie, supra, 67 Cal.App.4th at
pp. 784-785; Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985.)
Singh also complains that defendants did not actually see the publication of the
summons. Although section 415.50 provides that the summons must be published in a
designated newspaper that is “most likely to give actual notice” to the defendant, it does
10
not require that the defendant actually see the publication. (§ 415.50, subd. (b); see
Watts, supra, 10 Cal.4th at p. 749, fn. 5; In re Emily R. (2000) 80 Cal.App.4th 1344, 1353
[for purposes of due process, actual receipt or actual knowledge is not required; notice by
means reasonably calculated to provide actual notice is sufficient].)
Moreover, the record shows that Singh and Rawat actually knew of Rios’s lawsuit
against them and the nature of Rios’s claim. Singh admitted to Ontiveros that he was
aware of Rios’s lawsuit, and Singh attempted to convince Ontiveros to dismiss the
lawsuit against defendants and to sue Sacramento County instead. Singh’s statement to
Ontiveros was an admission and was admissible to show actual notice of the complaint.
(See Langley v. Zurich General Accident & Liability Ins. Co. (1933) 219 Cal. 101, 103-
105 (Langley).) A few weeks after that telephone call, Ontiveros received a request from
Rawat to withdraw the complaint or face sanctions under sections 128.5 and 128.7.
Rawat correctly identified the case title and number for Rios’s lawsuit and the court in
which the action was pending. She referenced a house fire, which was the basis for
Rios’s lawsuit against defendants, and asserted reasons why Rawat was not liable to Rios.
Further, when Singh filed his November 2, 2015 set-aside motion, service of the
summons by publication was not yet complete under section 415.50, subdivision (c), and
defendants had time to file an answer or otherwise respond to the complaint.3 Singh’s
set-aside motion referred to a house fire and alleged defenses to Rios’s complaint against
defendants. The filing of the set-aside motion confirmed that Singh was aware of Rios’s
complaint in time to avoid the entry of a default.
3 Service of the summons by publication was complete on November 5, 2015, the
twenty-eighth day after the first date of publication. (§ 415.50, subd. (c); Gov. Code,
§ 6064.) The time for filing an answer expired on December 5, 2015. (§ 412.20,
subd. (a)(3).)
11
Singh next contends that Rios should have mailed defendants a copy of the
summons pursuant to section 415.50, subdivision (b). That subdivision provides, in
pertinent part, “The [trial court’s] order shall direct that a copy of the summons, the
complaint, and the order for publication be forthwith mailed to the party if his or her
address is ascertained before expiration of the time prescribed for publication of the
summons.” Singh fails to show what fact triggered mail service under section 415.50,
subdivision (b). Nothing in the record shows that Rios discovered an additional address
for Singh, Rawat and/or The Ram Sita Trust after the publication order issued. There is
no evidence in the record that Singh, Rawat and/or The Ram Sita Trust had any address
other than those where Ontiveros and his investigators had unsuccessfully attempted to
serve defendants, and Singh did not suggest any additional address in the documents he
filed in the trial court.
Singh also argues that Rios should have served the complaint by publication.
Section 415.50, subdivision (b) requires publication of the summons. It does not require
publication of the complaint. (§ 415.50, subd. (b).)
In addition, Singh complains that the publication order application was made ex-
parte. But an application for an order of publication of the summons may be made at an
ex parte hearing. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group June 2020) ¶¶ 4:427, 9:347; see Stern v. Judson (1912) 163 Cal. 726, 735
[affidavit for an order for the publication of summons is always ex parte].)
We conclude that Singh and Rawat’s failure to return signed acknowledgements of
receipt of the summons and Singh’s avoidance of the service of process, in particular his
refusal to meet with Ontiveros’s private investigator in person and statement to Campbell
that he would not cooperate with the service of process, together with Ontiveros’s
diligent efforts to serve the summons and complaint on Singh and Rawat, supported the
trial court’s conclusion that resort to service by publication was justified. (Langley,
supra, 219 Cal. At pp. 104-105; Miller, supra, 195 Cal.App.2d at p. 786; see Giorgio,
12
supra, 231 Cal.App.4th at pp. 248-249; cf. Olvera, supra, 232 Cal.App.3d at pp. 41-43;
Donel, supra, 87 Cal.App.3d at pp. 333-334.)
An application for an order of publication must be accompanied by an affidavit
stating facts from which the trial court can draw the conclusion that the plaintiff has a
cause of action against the defendant. (Olvera, supra, 232 Cal.App.3d at p. 42, fn. 9;
Harris v. Cavasso (1977) 68 Cal.App.3d 723, 726.) This is a jurisdictional prerequisite
to the issuance of an order of publication. (Ibid.; Islamic Republic of Iran v. Pahlavi
(1984) 160 Cal.App.3d 620, 628.) Singh further argues that Rios was not entitled to a
default judgment because the complaint failed to state a cause of action or did not support
the demand for relief. But here, the trial court could reasonably infer from Rios’s
averments and statement that he had a valid cause of action against defendants that
defendants’ conduct was a substantial factor in bringing about Rios’s harm. Rios’s
declaration satisfied the requirement in section 415.50 of an affidavit showing that Rios
had a cause of action against defendants. The trial court did not err in granting Rios’s
application for an order of service by publication.
II
Singh next asserts that default was improperly entered because defendants had
filed an answer or reply on November 2, 2015. Not so.
“In all actions where the service of the summons was by publication, upon the
expiration of the time for answering, and upon proof of the publication and that no
answer, demurrer, notice of motion to strike of the character specified in subdivision (f),
notice of motion to transfer pursuant to Section 396b, notice of motion to dismiss
pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8,
notice of motion to quash service of summons or to stay or dismiss the action pursuant to
Section 418.10, or notice of the filing of a petition for writ of mandate as provided in
Section 418.10 has been filed, the clerk, upon written application of the plaintiff, shall
enter the default of the defendant.” (§ 585, subd. (c).) The record does not show that, at
13
the time default was entered against defendants, any of them had filed a pleading, motion
or petition specified in section 585, subdivision (c).
The only motion filed by any defendant prior to the entry of default was Singh’s
November 2, 2015 motion, which was directed at the order of publication. Although
Singh now contends his motion constituted an answer, the motion expressly stated,
“Defendants will file their answer after defendants are served properly.” Additionally,
the motion was not titled “answer” or other motion or pleading specified in section 585,
subdivision (c), it did not contain any general or specific denial of the material allegations
of the complaint, and it did not separately number the defenses to the complaint.
(§ 431.30, subd. (b) [an answer to a complaint must contain the general or specific denial
of the material allegations of the complaint controverted by the defendant and a statement
of any new matter constituting a defense]; Cal. Rules of court, rule 2.112 [each separately
stated defense must specifically state its number]; see Goddard v. Pollock (1974) 37
Cal.App.3d 137, 143 [a court clerk may rely on the title of a pleading or motion to refuse
to enter a default].) We conclude that Singh’s November 2, 2015 motion was not an
answer or response to a complaint specified in section 585, subdivision (c).
III
Singh contends the trial court erred in denying him relief under section 473.5.
“When service of a summons has not resulted in actual notice to a party in time to
defend the action and a default or default judgment has been entered against him or her in
the action, he or she may serve and file a notice of motion to set aside the default or
default judgment and for leave to defend the action.” (§ 473.5, subd. (a).) A defendant
seeking to set aside a default or default judgment under section 473.5 must show, by
affidavit, that his or her lack of actual notice in time to defend the action was not caused
by his or her avoidance of service or inexcusable neglect. (§ 473.5, subd. (b).) The
defendant must also submit a copy of the answer, motion or other pleading proposed
to be filed in the action. (§ 473.5, subd. (b).) We review a trial court’s decision to grant
14
or deny relief under section 473.5 for abuse of discretion. (Sakaguchi v. Sakaguchi
(2009) 173 Cal.App.4th 852, 862 (Sakaguchi).)
As we have explained, the record shows that Singh had actual notice of Rios’s
lawsuit in time to file an answer or other response to the complaint and avoid the entry of
a default. (See Ellard, supra, 94 Cal.App.4th at p. 548.) Even if he lacked actual notice
of the action in time to defend, Singh bore the burden of showing that his lack of actual
notice was not caused by his avoidance of service or inexcusable neglect (§ 473.5,
subd. (b)), but Singh’s declaration did not state any supporting facts. Singh did not
reference evidence that he avoided attempts to serve him. Singh’s conclusory declaration
does not satisfy his burden. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th
488, 509.) Additionally, the record does not show that Singh submitted a proposed
answer, motion or other pleading with his set-aside motions. (Sakaguchi, supra,
173 Cal.App.4th at p. 862 [finding no abuse of discretion in the denial of a motion to set
aside a judgment under section 473.5 where the defendant did not declare that he lacked
actual knowledge of the action, show that any lack of knowledge was caused by
excusable neglect and submit an answer, motion or other pleading with his motion].)
Because he did not satisfy the requirements for relief under section 473.5, we reject
Singh’s claim that the trial court erred in denying him relief under that statute.
IV
Singh also argues the trial court erred in awarding Rios damages because the
complaint did not state the amount of damages.
In personal injury actions, the plaintiff cannot state in the complaint the amount
of damages sought. (§ 425.10, subd. (b).) If the defendant does not request a statement
setting forth the nature and amount of damages being sought, the plaintiff must serve the
statement on the defendant before a default may be taken. (§ 425.11, subd. (c).) If the
defendant has not appeared in the action, the plaintiff must serve the statement of
damages in the same manner as the summons. (§ 425.11, subd. (d)(1).) A plaintiff who
15
has obtained an order for service of process by publication is not required to apply for a
second order to serve a statement of damages by publication. (Anastos v. Lee (2004)
118 Cal.App.4th 1314, 1318.)
Here, Rios filed a declaration showing publication of a statement of damages in
The Sacramento Bee on four dates over four successive weeks in March 2016. The
statement indicated that Rios sought over $4.8 million in general and special damages
from defendants. Singh’s challenge lacks merit.
V
Moreover, Singh complains that Ontiveros should have disclosed during their
January 27 to 30, 2018 communications that Rios had filed documents in support of a
request for entry of judgment.
After default was entered, Singh was no longer an active party in the litigation
and, thus, was not entitled to further notices. (Sporn v. Home Depot USA, Inc. (2005)
126 Cal.App.4th 1294, 1301.) Nevertheless, Singh knew the date of the default prove-up
hearing because he asked the trial court to continue that date. And Singh attended the
default prove-up hearing. Singh fails to demonstrate how he is entitled to any relief.
VI
Singh raises a number of defenses to the complaint. For example, he says he
cannot be liable for any incident after September 23, 2013, because he was not in control
of the property during that period and the receiver and Sacramento County, which had
control over and interest in the property, should have been joined as necessary parties.
He also says Rios should not have been on the property and Rios assumed the risk of
injury.
The entry of default bars Singh from advancing contentions on the merits.
(Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823.) A
default “cuts off the defendant from making any further opposition or objection to the
relief which plaintiff's complaint shows he is entitled to demand.” (Title Ins. & Trust Co.
16
v. King Land & Improvement Co. (1912) 162 Cal. 44, 46.) After a default, a defendant is
“ ‘out of court’ ” and cannot take any further steps in the cause affecting the plaintiff's
right of action until the default is set aside in a proper proceeding. (Ibid.; Devlin v.
Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) We cannot
consider Singh’s contentions because he has not shown that the default was improperly
entered.
Singh further urges that Rios was a criminal, wanted “to make millions illegally
in this case,” and Rios’s attorney claimed to have judges “on his payroll.” We do not
consider those claims because Singh fails to provide any reasoned argument showing
why reversal is required on those grounds, with citation to legal authority and to evidence
in the record supporting his factual assertions. (Tanguilig, supra, 36 Cal.App.5th at
p. 520; Nwosu, supra, 122 Cal.App.4th at p. 1245, fn. 14; Badie, supra, 67 Cal.App.4th
at pp. 784-785.)
DISPOSITION
The judgment is affirmed. Rios shall recover his costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1), (2).)
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
HOCH, J.
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