Opinion
D069683
02-24-2017
SIMONA BAKKER et al., Plaintiffs and Appellants, v. JP MORGAN CHASE BANK, N.A. Defendant and Respondent.
Simona Bakker and Karinna Baker, in pro. per., for Plaintiffs and Appellants. Bryan Cave, Glenn J. Plattner and Deborah P. Heald for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00023393-CU-FR-NC) APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed. Simona Bakker and Karinna Baker, in pro. per., for Plaintiffs and Appellants. Bryan Cave, Glenn J. Plattner and Deborah P. Heald for Defendant and Respondent.
Simona Bakker and Karinna Bakker (collectively Bakker) filed a lawsuit against JP Morgan Chase Bank, N.A. (Chase) and other defendants alleging causes of action arising out of the origination of home loans by Washington Mutual Bank in 2005. Bakker appeals from orders (1) granting Chase's motion to set aside its default, and (2) sustaining Chase's unopposed demurrer without leave to amend.
In the opening brief, Bakker contends the trial court (1) lacked jurisdiction to issue these orders, and (2) abused its discretion in setting aside Chase's default. For the first time in the reply brief, Bakker also contends the judgment "is constitutionally invalid because of judicial bias." We reject these contentions, deem the order sustaining the demurrer without leave to amend to include a judgment of dismissal, and affirm the judgment.
Apart from these arguments, Bakker does not contend the court erred in sustaining Chase's demurrer without leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
A. Bakker Sues Chase and Others
On July 15, 2015, Bakker, representing themselves, filed a 73-page verified complaint against Chase and eight other defendants arising out of a home loan by Washington Mutual Bank in 2005 to Simona Bakker's late husband, Theodorus Bakker. They alleged causes of action for fraud, unfair competition, wrongful foreclosure, and elder abuse. The register of actions shows the case was assigned to the Honorable Robert P. Dahlquist for all purposes on the same day.
B. Service of Process and Entry of Default
To effect service, the summons and complaint were hand delivered to Arthur Mendez, a manager of a Chase branch, on July 17, 2015. Within 10 days, on July 27, 2015, Chase retained the Bryan Cave law firm to represent it in Bakker's action. Mendez told Bryan Cave attorney Joshua Mountain he was personally served "by a woman who identified herself as Simona Bakker."
On August 10, 2015, Bakker exchanged e-mails with Chase's attorney, Mountain, regarding settlement negotiations.
Despite knowing Chase was represented by the Bryan Cave firm, on August 18, 2015, Bakker filed a request for entry of default against Chase, together with a proof of service showing the summons and complaint was served on Mendez by Agustin Fonseca, who is not a registered California process server.
However, the clerk refused to enter Chase's default because Bakker's request form was incomplete and contained errors. Two days later, Bakker filed another request for entry of default, but the clerk rejected this one too because it was incomplete.
On August 24, 2015, Bakker successfully filed a request for entry of default against Chase, and the clerk entered Chase's default the same day.
Four days later, Bakker voluntarily dismissed the entire action without prejudice against all defendants, "except as to" Chase.
C. Motion for Relief from Default
On October 8, 2015, Chase filed a motion for relief from default under Code of Civil Procedure section 473, subdivision (b). Chase asserted service was improper because the summons and complaint were served by a party, Simona Bakker. Alternatively, Chase asserted, "if the [c]ourt determines service was proper, a response was not filed due to counsel's mistake, inadvertence, surprise and excusable neglect" in believing service was improperly effected by a party to the action.
Unless otherwise specified, all statutory references are to the Code of Civil Procedure. Section 414.10 provides: "A summons may be served by any person who is at least 18 years of age and not a party to the action."
Chase supported its motion with a declaration from Mendez, who stated, "I was personally served with the [summons and complaint] . . . by a woman who identified herself as Simona Bakker." Mendez also stated, "I was not personally served with a copy of the [s]ummons and [c]omplaint by Agustin Fonseca . . . ."
In a declaration, Chase's lawyer, Mountain, explained he failed to timely file a responsive pleading to Bakker's complaint because his client stated service was effected by Bakker, a party. Wanting to "move this case forward without unnecessary delay," Mountain stated he decided to prepare a demurrer rather than a motion to quash service. He did not file the demurrer by August 17, 2015, stating he "believed Ms. Bakker's service of the summons and complaint was improper." He stated he "regularly checked the court docket and did not see a copy of [Bakkers'] proof of service prior to their request for default." On August 20, 2015, Mountain received Bakker's first request for entry of default, checked the court docket, and saw the clerk had rejected the request for entry of default. He assumed it was rejected because of improper service. A week later, on August 27, 2015, his office calendared the hearing date for Chase's demurrer. Later that same day, August 27, he received a letter from Bakker stating the court had entered Chase's default. Mountain accompanied his declaration with a proposed demurrer to the complaint.
Bakker opposed Chase's motion, asserting (1) Chase's lawyer had already made a general appearance by opposing Bakker's prior request for a temporary restraining order, (2) there were no grounds for granting mandatory relief under section 473, subdivision (b), and (3) Chase failed to show excusable mistake warranting discretionary relief under section 473, subdivision (b).
Bakker accompanied the opposition with Fonseca's declaration. Fonseca stated he and Simona Bakker met at a Chase branch on July 17, 2015. Bakker gave him the summons, complaint, and some other documents in a large envelope. Simona Bakker called out, "Art Mendez." After Mendez responded, "Yes," Bakker instructed Fonseca to hand Mendez the envelope. Fonseca's declaration states, "I did as instructed. Mr. Mendez took to [sic] envelope. As soon as the envelope was in Mr. Mendez['s] hands, Ms. Bakker informed him that he had just been served with legal documents on behalf of [Chase]."
D. Peremptory Challenge to the Judge
While the motion for relief from default was pending but before it was heard, on October 16, 2015, Bakker filed a "motion for premptory [sic] disqualification" of Judge Dahlquist under section 170.6. Bakker's peremptory challenge was filed three months after the case had been assigned to Judge Dahlquist and more than two months after he had denied Bakker's application for a temporary restraining order in this case. Bakker accompanied the peremptory challenge with a declaration of Simona Bakker, who stated she believed she could not have a fair and impartial hearing before Judge Dahlquist. On the same day, Judge Dahlquist denied the peremptory challenge as untimely.
Section 170.6, subdivision (a)(2) provides that if directed to a judge assigned for all purposes, the peremptory challenge must be made "within 15 days after notice of the all purpose assignment . . . ." Bakker had notice of the all purpose assignment to Judge Dahlquist no later than July 26, 2015, which is the date on the proof of service Bakker later filed, showing service of the summons, complaint, and "notice of case assignment" on Chase.
E. Relief from Default
On November 13, 2015, after conducting a hearing, the court granted Chase's motion for relief from default. The court determined the default was taken as a result of "mistake, inadvertence, surprise, or excusable neglect."
F. Writ Petition on the Peremptory Challenge Denial
On November 18, 2015, Bakker filed a writ petition in this Court, challenging the order denying her peremptory challenge. (Bakker v. Superior Court/JP Morgan Chase Bank, N.A., D069242.) This court summarily denied Bakker's writ petition by order dated November 20, 2015. Bakker subsequently petitioned the California Supreme Court for review. The California Supreme Court denied review on January 13, 2016. (Bakker v. Superior Court/JP Morgan Chase Bank, N.A., S230953.)
G. Bakker Files a Notice of Appeal from the Order Granting Relief from Default
On January 4, 2016, Bakker filed a notice of appeal from the order granting relief from default.
H. The Court Sustains Chase's Unopposed Demurrer, Bakker Appeals
On January 22, 2016, the court granted Chase's unopposed demurrer without leave to amend. The minute order directed Chase's attorney to prepare a proposed judgment and submit it to the court. However, before Chase's lawyer did so, on January 28, 2016, Bakker filed a notice of appeal from this order.
DISCUSSION
I. APPELLATE JURISDICTION
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)
"'An order granting a motion to set aside a default before a judgment has been entered is a nonappealable order.'" (Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 122 (Davis).) Accordingly, Bakker's purported appeal from the order granting Chase relief from default does not confer appellate jurisdiction.
Bakker also filed a notice of appeal from the order sustaining Chase's demurrer without leave to amend. However, the record contains no judgment of dismissal. "'An order sustaining a demurrer without leave to amend is not appealable, and an appeal is proper only after entry of a dismissal on such an order.'" (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527, fn. 1.) Nevertheless, "'when the trial court has sustained a demurrer to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment.'" (Ibid.) Such is the case here. "We will accordingly deem the order on the demurrer to include a judgment of dismissal." (Ibid.) Bakker's challenge to the order granting relief from default may be reviewed on appeal from this judgment of dismissal. (See Velicescu v. Pauna (1991) 231 Cal.App.3d 1521, 1523, fn. 1.)
II. THE TRIAL COURT'S ORDERS ARE NOT VOID FOR LACK OF JURISDICTION
A. Bakker Is Precluded from Relitigating the Denial of the Peremptory Challenge to Judge Dahlquist
Bakker contends the orders granting relief from default and sustaining Chase's demurrer are void for lack of jurisdiction. Specifically, Bakker contends that upon the filing of the peremptory challenge against Judge Dahlquist, "immediate disqualification is mandatory" and Judge Dahlquist had "no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the[ peremptory challenge]." Asserting the peremptory challenge was timely filed, Bakker contends Judge Dahlquist should have been disqualified and, as a result, the order denying the disqualification motion was "void from its inception," as were the subsequent orders granting Chase relief from default and sustaining Chase's unopposed demurrer. As explained post, Bakker's contention is untenable because it has already been conclusively established that Judge Dahlquist properly denied Bakker's peremptory challenge, and therefore he was not disqualified.
An order denying a motion to disqualify a judge is not an appealable order. (§ 170.3, subd. (d).) The exclusive means of obtaining appellate review of such an order is by filing a petition for a writ of mandate within 10 days after notice of the order. (Ibid.)
Section 170.3 subdivision (d) provides in part: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ shall be filed and served within 10 days after service of written notice of entry of the court's order determining the question of disqualification."
Particularly significant here, unlike most pretrial writ petitions, summary denial of a petition for writ of mandate to review the ruling on a disqualification motion "is on the merits and constitutes law of the case." (Frisk v. Superior Court (2011) 200 Cal.App.4th 402, 415 (Frisk).) Accordingly, the denial is binding on the parties "and cannot be revisited on a subsequent appeal." (Ibid.) When a writ petition is the exclusive means of obtaining appellate review of an order, "an appellate court must judge the petition on its procedural and substantive merits, and a summary denial of the petition is necessarily on the merits." (Leone v. Medical Board (2000) 22 Cal.4th 660, 670.)
Therefore, this Court's denial of Bakker's writ petition, upheld when the California Supreme Court denied Bakker's petition for review, is a final determination establishing Judge Dahlquist was not disqualified in this case. Bakker is precluded from challenging that ruling again here. (See Frisk, supra, 200 Cal.App.4th at p. 415 ["Because writ relief is the only authorized mode of appellate review for peremptory challenges [under section 170.6], our decision, in contrast to routine summary denials, is binding on the parties and cannot be revisited on a subsequent appeal.].") Accordingly, because it has been conclusively established in this case that Judge Dahlquist was not disqualified, the trial court had jurisdiction to issue the orders Bakker contends are void for lack of jurisdiction.
For the first time in the reply brief, citing People v. Brown (1993) 6 Cal.4th 322 (Brown), Bakker contends these preclusive rules do not apply to a "nonstatutory claim[] that a final judgment is constitutionally invalid because of judicial bias." It is true, as Bakker asserts, that although a ruling on a statutory motion to disqualify a judge is reviewable only by a writ of mandate, a party may assert on appeal from a final judgment or other appealable order that the judgment or order is constitutionally invalid because of judicial bias. (Id. at p. 335.)
However, Bakker made no due process claim in her opening brief, which does not cite Brown, supra, 6 Cal.4th 322, or contain any argument heading or text making a constitutional argument about judicial bias or unfairness. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Accordingly, Bakker has forfeited the issue. "'"Obvious considerations of fairness in argument demand that the appellant present all of his [or her] points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his [or her] opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before."'" (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 (Doe).) Bakker makes no showing as to why they could not have raised this issue in the opening brief, and thus we deem it forfeited.
In any event, even if we were to consider Bakker's constitutional claim on its merits, we would reject it. To establish such a due process violation, actual bias need not be proved; however, "based on an objective assessment of the circumstances in the particular case, there must exist '"the probability of actual bias on the part of the judge . . . [that] is too high to be constitutionally tolerable."'" (People v. Freeman (2010) 47 Cal.4th 993, 996.) Under this objective standard, "only the most 'extreme facts' would justify judicial disqualification based on the due process clause." (Ibid.) The due process clause does not require judicial disqualification based on the mere appearance of bias. (Id. at pp. 1000, 1006.)
Here, in her declaration filed "in support of motion for peremptory challenge", Simona Bakker stated, "I believe that I cannot have a fair and impartial hearing . . . before Judge Dahlquist . . . based on the following: Comments the judge made at two TRO [temporary restraining order] hearings, his declared policy to not grant TROs, his admission that without having read the moving papers on the pending [m]otion to [s]et [a]side the [d]efault, and based on his assertion that 90% of such motions are granted by the courts, he announced that it is highly likely he would grant the pending motion; and his attitude." Bakker further stated Judge Dahlquist overruled her objections, denied her motion for a temporary restraining order, and had "outright disregard" for legal precedent.
Bakker's attempt to establish a due process violation is unavailing for at least two reasons. First, Bakker has not provided a reporter's transcript or a substitute for a reporter's transcript of any of these proceedings. Without a reporter's transcript, we are unable to determine—let alone objectively determine—any of the circumstances in Judge Dahlquist's courtroom during any of these hearings. There is nothing in the record Bakker has designated showing what occurred in the hearings on her applications for a temporary restraining order. Although we do have the court's orders granting relief from default and sustaining Chase's demurrer, neither order suggests, let alone establishes, bias. By failing to provide an adequate record, Bakker has not met their burden of establishing bias, prejudice, or hostility by Judge Dahlquist.
Moreover, Bakker's subjective perception of bias is insufficient to establish a constitutional violation, and the fact the court issued rulings adverse to Bakker on several matters in this case, even assuming one or more of those rulings were erroneous, does not indicate an appearance of bias, much less demonstrate actual bias. (See Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59-60 ["While we conclude the court erred in several respects, the leap from erroneous rulings to the appearance of bias is one we decline to make."].)
B. Bakker's Purported Appeal from the Order Granting Relief from Default Did Not Stay Proceedings in the Trial Court, Nor Deprive It of Jurisdiction
On January 4, 2016, Bakker filed a notice of appeal from the order granting Chase relief from default. Bakker contends the automatic stay on trial court proceedings resulting from that notice of appeal deprived the trial court of jurisdiction to rule on Chase's demurrer on January 22, 2016. In the reply brief, Bakker states that in reliance on such a stay being in effect, they failed to oppose Chase's demurrer. As explained post, Bakker's argument is flawed. There was no stay and the trial court had jurisdiction despite the filing of the notice of appeal from the order granting relief from default.
Under section 916, "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby." The purpose of this automatic stay is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The automatic stay prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.)
However, where an appeal is taken from a nonappealable order, the appellate court has no jurisdiction. And because the appellate court has no jurisdiction in such cases, there is no need for a stay on trial court proceedings. Thus, where an appeal has been taken from a nonappealable order, "filing a notice of appeal from such an order does not divest the trial court of jurisdiction over the issue." (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 663.)
Davis, supra, 218 Cal.App.2d 120 is particularly instructive on this issue because it involves a purported appeal from an order granting relief from default and a subsequent order striking a complaint. In Davis, the defendant cross-complained against the plaintiff. (Id. at p. 121.) Subsequently, a default was entered against the cross-defendants. (Ibid.) However, the court granted a motion for relief from default. (Id. at p. 122.) As Bakker did here, a notice of appeal from the order granting relief from default was filed. (Ibid.) Thereafter, the trial court entered an order striking the cross-complaint. (Ibid.)
As Bakker asserts here, the appellant in Davis asserted the notice of appeal from the order granting relief from default deprived the trial court of jurisdiction to enter the subsequent order, striking the cross-complaint. (Davis, supra, 218 Cal.App.2d at p. 124.) The Davis court rejected that argument. First, the court held that an order granting a motion to set aside a default before a judgment has been entered is a nonappealable order. (Id. at p. 122.) Next, the Davis court held a trial court does not lose jurisdiction by a purported appeal from a nonappealable order. (Id. at p. 124 ["The trial court is not divested of jurisdiction by an appeal from a nonappealable order.].)
Davis, supra, 218 Cal.App.2d 120 compels the same result here. The order granting Chase's motion to set aside its default is not an appealable order. (Id. at p. 122.) Bakker's purported appeal from that nonappealable order did not deprive the trial court of jurisdiction to rule on Chase's demurrer. (Id. at p. 124.)
Additionally, as Chase notes, the writ petition Bakker filed challenging the court's denial of the peremptory challenge also did not automatically stay proceedings in the trial court. (See In re Brandy R. (2007) 150 Cal.App.4th 607, 609-610.) --------
III. THE COURT DID NOT ABUSE ITS DISCRETION IN GRANTING
CHASE'S MOTION TO SET ASIDE ITS DEFAULT
A. Statutory Background
Section 473, subdivision (b) provides a means for relief from entry of default. First, this statute contains a discretionary provision: The court "may, upon any terms as may be just, relieve a party . . . from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Excusable mistake or neglect is generally defined as an error a reasonably prudent person under the same or similar circumstances might have made. (See Ambrose v. Michelin North America, Inc. (2015) 134 Cal.App.4th 1350, 1354.)
"Section 473[, subdivision] (b) also contains a 'mandatory' or 'attorney affidavit' provision." (Henderson v. Pacific Gas and Electric Co. (2010) 187 Cal.App.4th 215, 225 (Henderson).) This statute provides in part: "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, in in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client . . . unless the court finds that the default . . . was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." "Under this provision, a party will be relieved if a default . . . is the result of its attorney's mistake, inadvertence, surprise, or neglect, without regard to whether the neglect is excusable." (Henderson, supra, 187 Cal.App.4th at p. 225.)
Here, the clerk entered Chase's default on August 24, 2015, and Chase filed its motion for relief from default on October 8, 2015, well within the six month period for both discretionary and mandatory relief under section 473, subdivision (b).
B. Factual Background
In its notice of motion, Chase stated it sought relief from default "pursuant to the court's lack of personal jurisdiction, or mandatory relief pursuant to . . . section 473 [, subdivision] (b)."
However, in the accompanying memorandum of points and authorities, Chase asserted its default should be set aside under both the mandatory and discretionary provisions in section 473, subdivision (b). Invoking the mandatory relief provisions, Chase argued, "[I]f the [c]ourt deems the service of the summons and complaint proper, the mandatory grounds for relief are met" because counsel believed his client's assertion that Bakker herself served process. Alternatively, Chase asserted the default was the result of counsel's "excusable neglect as set forth in the declaration of Mr. Mountain, attesting to his excusable neglect in delaying the filing of a demurrer . . . ." (Italics added.)
In an accompanying declaration, Chase's attorney, Mountain, stated he did not file a demurrer within 30 days after service of the summons and complaint "as I believed Ms. Bakker's service of the summons and complaint was improper." Mountain also stated that after receiving a copy of Bakker's first attempted request for entry of default, he checked the court docket and saw the clerk had rejected the attempted entry of default. Mountain explained, "The court docket did not indicate why the request for entry of default was rejected and I believed it was due to Plaintiffs' improper personal service." Mountain's declaration states he "regularly checked the court docket and did not see a copy of Plaintiffs' proof of service prior to their request for default." Mountain explained that on August 27, 2015, his office reserved a hearing date for Chase's demurrer.
After conducting a hearing, the court granted Chase's motion for relief from default based on the discretionary provisions in section 473, subdivision (b). The court's minute order states, "[Section] 473[, subdivision] (b) provides, in part: 'The 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 neglect.' [¶] The [c]ourt is persuaded that this standard is satisfied here. In addition, the law favors resolution of disputes on their merits, as opposed to resolution by default. Accordingly, the [c]ourt will exercise its discretion and set aside the default as to defendant [Chase]."
C. The Standard of Review
A trial court's ruling on a motion to set aside a default is reviewed for an abuse of discretion. The outcome of such a motion "'rests almost entirely in the discretion of the court below, and appellate tribunals will rarely interfere . . . unless it clearly appears that there has been a plain abuse of discretion.'" (City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 347.) "'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) A trial court's grant of such a motion promotes the public policy favoring trials on the merits and thus only "very slight evidence is required to justify a trial court's order setting aside a default." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
D. Grounds Not Raised in the Motion
Bakker contends the court abused its discretion in granting Chase's motion for relief from default because in the notice of motion, Chase stated it was seeking mandatory relief, but the court granted the motion based on different grounds—the discretionary relief provisions in section 473, subdivision (b). As explained below, we reject Bakker's argument because an omission in the notice of motion may be cured if the supporting papers make clear the grounds for relief sought. Such is the case here. Moreover, Bakker was not prejudiced by any defect in the notice of motion because her opposition repeatedly argued Chase was not eligible for discretionary relief.
A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. Section 1010 requires that a notice of motion must state "the grounds upon which it will be made." California Rules of Court, rule 3.1110(a) requires a notice of motion to state in its opening paragraph "the nature of the order being sought and the grounds for issuance of the order."
As a general rule, the trial court may consider only the grounds stated in the notice of motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545.) However, any omission in the notice of motion as to the grounds for the motion may be disregarded if other papers supporting the motion and identified in the notice show the grounds. (Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808 (Carrasco).) "Even though the notice of motion fails to state a particular ground for the motion, where the notice states . . . the motion is being made upon the notice of motion and accompanying papers and the record, and these papers and the record support that particular ground, the matter is properly before the court and the defect in the notice of motion should be disregarded." (Ibid.)
This rule—which allows omissions in the notice of motion to be cured by the incorporation of related papers—was applied in an analogous case involving a motion for relief from default, Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003 (Solv-All). There, the moving party's notice of motion referred generally to attorney mistake, inadvertence, surprise and neglect without specifying whether the neglect was claimed to be excusable (discretionary relief) or not (mandatory relief). (Id. at p. 1008, fn. 5.) The trial court denied relief, but the court of appeal reversed based on the mandatory relief provisions in section 473, subdivision (b). (Solv-All, at p. 1007.) On appeal, the court noted that the points and authorities and attorney declaration referenced the attorney fault provisions in section 473, and therefore "[a]ny defect in the notice was cured by the incorporation of the related papers." (Solv-All, at p. 1008, fn. 5.)
Similarly here, although Chase's notice of motion only stated it was seeking relief based on the mandatory provisions in section 473, subdivision (b), it also stated the motion is based on "the attached [m]emorandum of [p]oints and [a]uthorities, the accompanying [d]eclarations, [and] the files and records in this action . . . ." In the points and authorities, Chase repeatedly argued its counsel had committed excusable neglect. For example, Chase stated, "[I]f the [c]ourt determines service was proper, a response was not filed due to counsel's mistake, inadvertence, surprise and excusable neglect. (Italics added.) On two other occasions, Chase's papers made the same point, asserting the default was the result of counsel's "excusable neglect."
Perhaps more significantly, Bakker was not prejudiced by any defect in the notice of motion. Her 29-page opposition shows she knew Chase was seeking relief on both mandatory and discretionary grounds. For example, Bakker's opposition states, "Defendant contends that it is entitled to mandatory relief, or alternatively, to discretionary relief. under . . . [s]ection 473." Bakker asserted that Chase's attorney's actions "must also be examined under the 'discretionary' relief provision to determine whether his actions were those of a reasonable and prudent person under the same or similar circumstances." Later in the opposition, Bakker argued, "The only remaining issue is whether [Mountain's] conduct meets the definition of 'excusable neglect.'" Bakker argued, "His neglect is definitely inexcusable." Bakker concluded, "Mr. Mountain's strategic decisions . . . established that his client is also not entitled to discretionary relief because the attorney's neglect was inexcusable."
In sum, regardless of whether Chase's notice of motion expressly stated it was seeking discretionary relief under section 473, subdivision (b), its memorandum supporting the motion invoked those grounds and, more importantly, Bakker understood it as such and fully briefed that issue. We therefore conclude the trial court could properly grant Chase relief under the discretionary provisions in section 473, subdivision (b). (See Carrasco, supra, 164 Cal.App.3d at pp. 807-808; Solv-All, supra, 131 Cal.App.4th at p. 1008, fn. 5.)
E. The Court Did Not Abuse Its Discretion in Granting Relief from Default
The gist of Chase's motion for relief from default was that Chase's lawyer believed his client's assertion that Bakker herself served the summons and complaint, rendering service ineffective. Asserting there is no precedent for granting discretionary relief on such grounds, Bakker contends the court abused its discretion.
Bakker's argument fails because under existing law, the court properly exercised its discretion in affording Chase relief from default. In Riskin v. Towers (1944) 24 Cal.2d 274 (Riskin), the plaintiff filed a proof of personal service, and after defendant failed to timely file an answer, the clerk entered the defendant's default. (Id. at p. 275.) The defendant moved for relief from default under section 473, based on the defendant's declaration denying that any service of process had been made. (Riskin, at p. 276.) Defense counsel also filed a declaration, stating he believed his client's assertion he had not been personally served. (Ibid.) Although the trial court determined service to have been properly made, the California Supreme Court held the validity of the service of process was "a sufficiently doubtful one so that appellant's attorney might very reasonably have entertained the opinion that the service would be quashed." (Id. at p. 278.) Because the defendant himself "squarely denied any service upon him" (id. at p. 279), the Supreme Court stated the defendant's lawyer did not act unreasonably in believing his own client. (Id. at pp. 278-279.) The California Supreme Court therefore reversed the order denying relief under section 473, determining it was an abuse of discretion to not grant relief from default under such circumstances. (Riskin, at p. 279.)
Similarly here, the court did not abuse its discretion in finding excusable mistake or neglect in this case. Chase's branch manager, Mendez, told Chase's attorneys he was "personally served" with the summons and complaint "by a woman who identified herself as Simona Bakker." If true, service was improper. (§ 414.10.)
Even Bakker's own description of the manner of service upon Mendez indicates the validity of service could reasonably be disputed. Simona Bakker entered Mendez's workplace, identified him, and called Mendez over to her. Bakker was the one who informed Mendez that the papers being handed him by Fonseca were legal documents. Bakker then dismissed Fonseca, who said nothing to Mendez, and Bakker remained in the Chase branch, talking to Mendez.
Service of a summons and complaint cannot be effected by a party to the action. (§ 414.10.) Bakker was the architect of a method of service in this case that, at minimum, was ambiguous as to whether Bakker, Fonseca, or both of them served the summons and complaint on Chase. The court did not abuse its discretion in finding Chase's attorney's failure to timely file a responsive pleading to be excusable under these circumstances. (Riskin, supra, 24 Cal.2d at pp. 278-279.)
For the first time in the reply brief, Bakker also contends Chase "waived any objection to the manner of service" by having its attorney make a general appearance to object to Bakker's ex parte application for a temporary restraining order in July 2015. However, this argument was not addressed in the opening brief and, not surprisingly under those circumstances, is not addressed in Chase's respondent's brief. Accordingly, the issue is forfeited. (Doe, supra, 173 Cal.App.4th at p. 1115.)
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.