Sapan v. Braun CA4/1

Filed 1/22/16 Sapan v. Braun CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JONATHAN J. SAPAN, D067414
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2011-00087692
CU-MC-CTL)
CONRAD J. BRAUN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Conrad J. Braun, in pro. per., for Defendant and Appellant.
Law Offices of David C. Beavans, David C. Beavans and John T. Sylvester, for
Plaintiff and Respondent.
Conrad J. Braun, a self-represented litigant, appeals from a default judgment in
favor of Jonathan J. Sapan. He contends the trial court erred in denying his motion to set
aside the default judgment because he lacked actual notice of the lawsuit and service
upon him was obtained through fraud. We reject Braun's arguments and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2011, Sapan sued Braun and Homeytel, Inc. (Homeytel; together with
Braun, Defendants) for Telephone Consumer Protection Act (TCPA) violations,
deceptive practices, trespass to chattel, and unfair business practices. Sapan based his
claims on allegations that he received prerecorded telemarketing calls on his residential
telephone number from Defendants.
Sapan's attorney, Christopher Reichman, hired a process server and investigator to
serve Defendants at Homeytel's business office. The process server was unable to
effectuate personal or substituted service because Homeytel's office was closed during
service attempts. The investigator also tried to personally serve Defendants multiple
times at Homeytel's business address, but was unsuccessful. The investigator attempted
to locate alternative addresses for Defendants.
Reichman attempted to serve Defendants by sending them, via certified mail, the
summons, complaint, and notice and acknowledgment of receipt forms. Reichman sent
those items to Defendants at their principal place of business, where Reichman had
successfully sent mail before. The certified mail attempts were returned as "[r]efused."
In September 2011, Sapan applied for an order to serve the summons by
publication. The trial court granted the application and ordered Sapan to serve
Defendants by publication in a newspaper once a week for four weeks. Sapan
subsequently served Defendants by publication and filed a certificate of service.
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In January 2012, Sapan requested entry of default against Defendants, which the
clerk of court granted. In June 2012, Sapan requested that the court enter default
judgments against Defendants. The court notified Sapan that it was unable to enter
default judgment and requested further prove-up information.
In December 2012, Braun moved to set aside the default against him and for leave
to defend the action pursuant to Code of Civil Procedure section 473.5. (Undesignated
statutory references are to the Code of Civil Procedure.) In support of his motion, Braun
stated he became aware of the case on December 26, 2011, and regularly monitored the
progress of the case. Braun explained that he "does not accept registered mail from
private parties due to TCPA abuse in California courts." Braun was in "no hurry" to
answer Sapan's complaint but was curious to see how Sapan would proceed as Sapan's
actions strengthened Braun's eventual defense and cross-claim. Braun claimed he was
not aware of the difference between a default and default judgment, and as of December
2012, believed default had not been entered.
In February 2013, the trial court denied Braun's motion to set aside the default
because Braun admitted that he knew of the action in December 2011, which was a
month prior to entry of default. The court concluded Braun failed to demonstrate that
service of the summons did not result in actual notice to him in time to defend the action.
Lastly, the court found Braun did not bring his motion within a reasonable time.
In June 2013, Sapan requested entry of default judgment against Defendants for
the second time. The court again declined to enter judgment by default and outlined the
deficiencies in Sapan's prove-up.
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In January 2014, Braun filed a motion to dismiss for failure to obtain judgment
within 45 days of default and to declare the judgment void pursuant to section 473,
subdivision (d) as it was procured by fraud. The trial court denied Braun's motion,
finding Braun failed to demonstrate relief was appropriate under section 473, subdivision
(d), and judgment had not yet been entered.
In December 2014, the court entered default judgment against Defendants in the
amount of $30,346.98.
DISCUSSION
I. Motion to Augment
Braun moved to augment the record on appeal with: (1) his December 2012
motion to set aside the default against him, (2) his answer to the complaint, (3) his cross-
complaint, (4) a motion for temporary injunctive relief, (5) his amended motion to set
aside the default judgment, (6) a motion for immediate hearing for temporary declaratory
relief, and (7) his response to Sapan's opposition to the amended motion to set aside
default.
Braun acknowledges that the second, third, fourth, and sixth items on his augment
request were not part of the trial court record. "Augmentation does not function to
supplement the record with materials not before the trial court." (Vons Companies, Inc.
v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 444, fn. 3.) "[N]ormally 'when reviewing
the correctness of a trial court's judgment, an appellate court will consider only matters
which were part of the record at the time the judgment was entered.' " (Ibid.) Braun has
failed to show exceptional circumstances that would justify deviating from this rule.
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Accordingly, we deny Braun's request to augment the record with the second, third,
fourth and sixth items on his list.
The parties do not dispute that the remaining items in Braun's request to augment
(items 1, 5, and 7) were part of the superior court record. After Braun designated his
record on appeal, the superior court clerk notified him that these items were not in the file
and requested that Braun provide conformed copies. Braun apparently did not provide
the superior court with conformed copies. In any event, in the interests of justice and in
order to resolve Braun's appeal, we exercise our discretion to augment the record with
items 1, 5, and 7 as they were part of the superior court record. (California Rules of
Court, Rule 8.155(a)(1)(A).)
II. Service
Braun argues the judgment against him is void because he lacked actual notice of
the lawsuit and service upon him was obtained through fraud. He contends Sapan served
him "through a criminal extortion letter disguised as a 'demand letter' " and thus the
service was fraudulent. We reject these arguments.
A. Actual Notice
Section 473.5, subdivision (a) provides: "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." If the court finds the motion was made in a timely manner and the moving
defendant's lack of actual notice in time to defend the action was "not caused by his or
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her avoidance of service or inexcusable neglect, it may set aside the default or default
judgment on whatever terms as may be just and allow the party to defend the action."
(§ 473.5, subd. (c).) A motion to set aside a default and default judgment is addressed to
the sound discretion of the trial court. (Weitz v. Yankosky (1966) 63 Cal.2d at p. 854; Lint
v. Chisholm (1981) 121 Cal. App. 3d 615, 619-620.)
In contrast, section 473, subdivision (d), provides that "[t]he court may . . . on
motion of either party after notice to the other party, set aside any void judgment or
order." "A judgment may be void due to improper service of summons." (Sakaguchi v.
Sakaguchi (2009) 173 Cal. App. 4th 852, 858.) "Whether a judgment is void due to
improper service is a question of law that we review de novo." (Ibid.)
Preliminarily, we note that in his briefs, Braun discusses at length the merits of
Sapan's TCPA claims. Although a default judgment is reviewable on appeal the same as
any other civil judgment (Misic v. Segars (1995) 37 Cal. App. 4th 1149, 1153-1154), a
defendant may not contest the merits of the case on appeal from a default judgment.
(Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal. App. 4th 813, 823-824 [a
default operates as an express admission of well-pleaded factual allegations in the
complaint].) Instead, the defendant may contest only whether the court had jurisdiction
over the defendant, sufficiency of the pleadings, and whether the relief granted exceeds
that sought in the pleadings, or any procedural issues relating to the entry of default, the
default judgment and motions for relief from such default. (Id. at p. 824; see also W.A.
Rose Co. v. Municipal Court (1959) 176 Cal. App. 2d 67, 71 [entry of default ousts the
court of jurisdiction to consider any motion other than a motion for relief from default].)
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Here, Braun asserts Sapan improperly served him through a demand letter. Braun
ignores that the trial court ordered service by publication and that he was served in that
manner. Moreover, Braun admitted that he had actual notice of Sapan's lawsuit.
Specifically, Braun stated that he became aware of the lawsuit in December 2011,
approximately one month before the court entered default against him. Rather, than
responding to Sapan's complaint, Braun "regularly monitored [the case's] progress with
great interest" and was in "no hurry" to respond. Braun wanted to give Sapan "as much
rope as possible" because Braun believed Sapan's actions were strengthening Braun's
defenses and cross-claims. Braun did not do anything for approximately 11 months after
the court entered default against him at which time he requested for the first time that the
court set aside the default. Braun's actions were calculated, voluntary and inexcusable.
Additionally, the record indicates that Braun avoided Sapan's attempts to provide
Braun with actual notice. Specifically, Sapan attempted to serve Braun numerous times
at his business office but was unsuccessful because the office was closed. Sapan also
attempted to perfect service by sending Braun the summons, complaint, and notice and
acknowledgement of receipt forms via certified mail. However, the certified mail was
returned as "refused."
Based on the foregoing, we conclude the trial court did not abuse its discretion in
denying Braun's request to set aside the default judgment under section 473.5. Based on
our independent review, we also conclude Braun failed to establish that he was entitled to
relief under section 473, subdivision (d). Specifically, Braun has not demonstrated that
the judgment is void based on improper service of the summons.
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B. Extrinsic Fraud
Braun also contends service of process was fraudulent because it was made
through a demand letter. We reject this argument.
"It is well settled that equity will relieve an injured party from the effect of a
judgment procured by extrinsic fraud, mistake or excusable neglect which was not the
result of negligence or laches on the part of the complainant." (Smith v. Busniewski
(1952) 115 Cal. App. 2d 124, 127.) "Fraud or mistake is extrinsic when it deprives the
unsuccessful party of an opportunity to present his case to the court. . . . A party who
has been given proper notice of an action . . . and who has not been prevented from full
participation therein, has had an opportunity to present his case to the court . . . ."
(Westphal v. Westphal (1942) 20 Cal. 2d 393, 397.)
Braun's claim is flawed because service of process was obtained through
publication, not a demand letter. Further, nowhere does Braun contend that he lacked
notice of Sapan's lawsuit or was deprived of the opportunity to defend himself or
otherwise participate in the proceedings. Nor could he make such a showing, as the
record reveals that he was aware of the lawsuit, regularly monitored its progress, and
voluntarily chose not to participate. "A party who has been given proper notice of an
action . . . and who has not been prevented from full participation therein, has had an
opportunity to present his case to the court and to protect himself from any fraud
attempted by his adversary. . . . Fraud perpetrated under such circumstances is intrinsic,
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even [if] the unsuccessful party does not avail himself of his opportunity to appear before
the court." (Westphal v. Westphal, supra, 20 Cal.2d at p. 397.)
Because Braun had knowledge of the action and an opportunity to defend himself,
but voluntarily chose not to, there was no extrinsic fraud. Thus, Braun was not entitled to
equitable relief on that basis. Further, he was not entitled to relief under section 473,
subdivision (d), due to allegedly fraudulent service.
DISPOSITION
The judgment is affirmed. Sapan is entitled to costs on appeal.
McINTYRE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
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