Opinion
D076824
01-13-2021
CIELO HOMEOWNERS ASSOCIATION, INC., Plaintiff and Respondent, v. PAMELA BENNETT, Defendant and Appellant.
Pamela Bennett in pro. per., for Defendant and Appellant. The Judge Law Firm, James A. Judge and David Mangikyan, for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2009-00063244-CU-OR-NC ) APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Reversed; remanded with directions. Pamela Bennett in pro. per., for Defendant and Appellant. The Judge Law Firm, James A. Judge and David Mangikyan, for Plaintiff and Respondent.
After Pamela Bennett failed to appear at a trial readiness conference, the superior court set an order to show cause (OSC) regarding why Bennett's answer should not be stricken and default entered for failure to appear. The OSC was set for the same date as trial call. On that date, Bennett again failed to appear. The court therefore struck the answer and found her in default.
The court ultimately entered judgment in favor of plaintiff Cielo Homeowners Association, Inc. (Cielo) in the amount of $81,307.35, which included damages, prejudgment interest, attorney fees, and costs.
Bennett appeals, raising several issues that challenge the judgment in one way or another. For example, she argues her name is not spelled correctly in the complaint, and the court improperly allowed Cielo to amend the complaint. She asserts the amount of damages was improper. She also claims the operative complaint does not state any valid cause of action against her. Putting aside whether these issues are properly before us, they are subsumed by her challenge to the court's entry of default against her after she had filed an answer.
Bennett's husband, James, is listed as an appellant in the opening brief. Nonetheless, he is neither named as a defendant in the operative complaint nor named in the judgment. Based on our review of the record, James was never a party below. We did find a reference to a cross-complaint he attempted to file in the instant matter, but the court did not accept it. And there is no challenge in the opening brief regarding the court's refusal to accept the cross-complaint. James attempted to appear at multiple hearings, but the court indicated that he was not a party and because he was not a licensed attorney, he could not represent his wife. Based on this foundation, we conclude James lacks standing to appear in this appeal.
Bennett is proceeding here as an in propria persona litigant.
We agree that the default judgment against Bennett is void because the superior court lacked the authority to strike the answer and enter a default when she failed to appear for trial. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 859, 862-864 (Heidary).) We thus reverse the judgment and remand this matter with directions to vacate the judgment against Bennett and to set the matter for trial. As such, we need not reach Bennett's other challenges to the judgment.
Although we do not reach Bennett's claim that the trial court erred in denying her motion to dismiss under Code of Civil Procedure section 583.310, we will briefly discuss that issue at the end of this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, Cielo field a complaint against Pamela Bennet, alleging two causes of action. The first cause of action was for foreclosure, based on a "mortgage" in the amount of $10,429.93. The second cause of action sought damages in the same amount. The gravamen of the complaint was that the defendant, as owner of certain real property, was required to pay "regular maintenance, special, capital improvement, reimbursement, and other assessments" per the subject declaration of covenants, conditions, and restrictions but had not done so. As such, Cielo, the homeowner association, brought suit to foreclose on its lien or recover damages for the missed payments. Cielo also sought its costs, attorney fees, and interest.
This is not a typo. The complaint identified the defendant as Pamela Bennet.
Although the complaint named Pamela Bennet as the defendant, Bennett filed a demurrer to the complaint, arguing the court did not have jurisdiction to hear the dispute, the complaint failed to state a cause of action, and the complaint was uncertain. The court overruled the demurrer on June 18, 2010.
Bennett filed a motion for reconsideration, which the court denied on August 6, 2010. Bennett then filed an answer.
Apparently, realizing it had spelled Bennett's name incorrectly in the complaint, Cielo filed a form amendment to the complaint on September 27, 2010. However, although it identified Bennett as the correct spelling of the defendant's last name, the form amendment did not amend the complaint to add Bennett as the correct defendant, but instead, listed "Pamela Bennet" as the proper defendant yet again.
We note this because it led to some confusion in the briefs before us. Despite the amendment appearing to not spell Bennett's name correctly, it does not appear that there was any confusion regarding who the actual defendant was. Bennett made an appearance to demur to the original complaint. Bennett is identified in the judgment. Also, it is clear that Cielo realized its mistake and tried to correct it through the form amendment. Unfortunately, its execution was poor.
Then for reasons that are not sufficiently explained or described in any of the briefs, not much happened in this litigation for several years. Instead, on June 28, 2019, Bennett filed a motion to dismiss, under Code of Civil Procedure section 583.310, for failure to bring the case to trial within five years after the action was commenced. Cielo opposed the motion, pointing out that Bennett had filed bankruptcy no fewer than five times while the subject litigation was pending. And during the pendency of those bankruptcy actions, Cielo could take no action in the instant matter. The court denied the motion to dismiss, finding that the instant matter was stayed for a total of 1,724 days due to Bennett's five bankruptcy filings. Thus, the court determined, with this additional time, Cielo had to bring the matter to trial by September 18, 2019. The court then scheduled a trial readiness conference for August 9, 2019, and trial for September 6, 2019.
Bennett provides a statement of facts in her brief, but none of the facts discussed include any citation to the record. And these statement of facts read more like argument than a "summary of the significant facts limited to matters in the record." (See Cal. Rules of Court, rule 8.204(2)(C).) Yet, Bennett does provide citations to the record when she discusses the procedural history of this case. Cielo did not include a statement of facts or discussion of procedural background in the respondent's brief. Although a respondent's brief is not required to contain either section, they are often helpful to the court, especially in a case like this where the litigation spanned a decade and the appellant is proceeding in propria persona.
Bennett did not appear at the August 9 trial readiness conference. Her husband, James, was present but the court informed him that he could not appear for his wife. The court then continued the trial readiness conference to the same date as the trial (September 6) and issued an OSC why the answer should not be stricken and a default entered against Bennett for failing to appear.
On September 6, 2019, Bennett did not appear for trial. The court therefore struck Bennett's answer and entered default against her.
The court also made several other rulings in its September 6, 2019 minute order. For example, the court granted Cielo's motion to strike the cross-complaint filed by Bennett and James as well as Cielo's motion to strike an answer to the amended complaint filed by Bennett on August 28, 2019. The court then vacated dates of a demurrer and motion to strike hearing that were apparently filed by Bennett. The parties here have not explained the significance, if any, of these rulings. However, we note that the court's granting of Cielo's motion to strike the cross-complaint is somewhat confusing. It appears that Bennett and James filed a cross-complaint on August 28, 2019. Yet, before the September 6 trial date, the court told James on multiple occasions that the cross-complaint was improper and invalid. As such, there would have been no reason to strike it on September 6. Perhaps this confusion caused James to believe he should be a party to this appeal. That said, the opening brief does not challenge the court's refusal to accept the cross-complaint. --------
On September 16, 2019, to prove damages, Cielo filed declarations with attached exhibits in lieu of testimony under Code of Civil Procedure section 585, subdivision (d). Cielo also included a request for attorney fees and costs. On that same day, the court entered judgment in favor of Cielo and against Bennett in the total amount of $81,307.35, consisting of: (1) $32,836.14 in damages, prejudgment interest in the amount of $27,018.16, $19,710 in attorney fees, and $1,743.05 in costs.
Bennett timely appealed.
DISCUSSION
The primary issue before us is whether the trial court exceeded its authority in striking Bennett's answer and ordering default. As we explain, we conclude the trial court exceeded its authority and the judgment entered is void.
Code of Civil Procedure section 594, subdivision (a), provides, "In superior courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days' notice of such trial . . . . If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice."
Our analysis is guided by Wilson v. Goldman (1969) 274 Cal.App.2d 573 (Wilson) and Heidary, supra, 99 Cal.App.4th 857. We will begin with Wilson because that case was cited extensively in Heidary.
In Wilson, the defendant filed an answer to the complaint that placed both liability and damages at issue. (Wilson, supra, 274 Cal.App.2d at p. 575.) The case was set for trial and the defendant's counsel was properly served with notice of the trial. But neither the defendant nor his attorney appeared when the case was called for trial. (Ibid.) The court granted the plaintiffs' motion to enter default against the defendant. (Id. at p. 576.) After the plaintiffs' counsel indicated " 'he would wait to prove up damages at some future date,' " no trial was held, no evidence was taken, and "no continuance was granted." (Ibid.)
More than three months later, the plaintiffs' counsel filed a memorandum requesting the case be placed on calendar for a hearing to prove up the damages. (Wilson, supra, 274 Cal.App.2d at p. 576.) The clerk set the matter for a hearing. The defendant and his attorney were not served with the memorandum or notice of the hearing. (Ibid.) The hearing was held in the absence of the defendant and his attorney and resulted in a $40,000 default judgment against the defendant. (Ibid.) The judgment was signed by the court the day after the hearing and entered by the clerk the day after that. (Ibid.) The defendant later moved to set aside the default under Code of Civil Procedure section 473 based on his counsel's affidavit explaining that counsel was hospitalized on the trial date having undergone major surgery only days before. (Wilson, at p. 575.) After the court granted the motion, the plaintiffs appealed. (Ibid.)
The Court of Appeal affirmed the order setting aside the entry of default and the default judgment but not based on the attorney's affidavit. (Wilson, supra, 274 Cal.App.2d at p. 575.) Rather, the appellate court concluded the record "conclusively demonstrate[d] both the entry of the default and default judgment are void and in excess of the court's power and jurisdiction . . . ." (Ibid.) The appellate court explained that a trial court does not have authority under Code of Civil Procedure section 585 to enter a default where an answer is on file, even if the defendant fails to appear for trial. (Wilson, at p. 576.) "Where the defendant who has answered fails to appear for trial 'the plaintiff's sole remedy is to move the court to proceed with the trial and introduce whatever testimony there may be to sustain the plaintiff's cause of action.' [Citation.] In such case a plaintiff is entitled to proceed under the provisions of Code of Civil Procedure, section 594, subdivision [a], and he may do so in the absence of the defendant provided the defendant has been given at least [15] days' notice of the trial. Section 594 does not authorize the entry of the default in the event the defendant fails to appear, and a hearing held pursuant to that section under such circumstances is uncontested as distinguished from a default hearing. [Citations.] [¶] Where a defendant has filed an answer, neither the clerk nor the court has the power to enter a default based upon the defendant's failure to appear at trial, and a default entered after the answer has been filed is void [citations], and is subject to expungment at any time either by motion made pursuant to Code of Civil Procedure, section 473 or by virtue of the court's inherent power to vacate a judgment or order void on its face." (Wilson, at pp. 576-577.)
Addressing the situation before it, the appellate court explained what went wrong and where. The first error occurred when the court granted plaintiffs' motion to enter defendant's default, after the plaintiffs decided not to proceed to trial on the date set for trial and for which the defendant had received notice. (Wilson, supra, 274 Cal.App.2d at p. 577.) The court did not have "the power and authority" to do so because defendant had filed an answer. (Ibid.) The plaintiffs then waited some five months after the trial date to present evidence concerning liability and damages but did not give defendant notice of the hearing. When that trial took place, the "defendant was not in default and was entitled to notice of the hearing as provided in [Code of Civil Procedure section 594, subdivision (a)]." (Wilson, at p. 577.) The failure to give the defendant notice of the hearing, which resulted in the default judgment against him, was the second error. The court illuminated: "[A] void 'entry of default' cannot excuse compliance with Code of Civil Procedure, section 594, subdivision [a]" and "[a] judgment made after a trial held without the notice prescribed by Code of Civil Procedure, section 594, subdivision [a] is not merely error; it is an act in excess of the court's jurisdiction." (Wilson, at p. 577.) The court concluded the judgment was subject to attack under Code of Civil Procedure section 473 and "subject to collateral attack at any time." (Wilson, at p. 578.)
When presented with a similar situation in Heidary, supra, 99 Cal.App.4th 857, the appellate court relied extensively on Wilson, supra, 274 Cal.App.2d 573. (Heidary, at pp. 862-864.) In Heidary, the cross-defendants answered the cross-complaint but were not provided notice of continuance of the trial date. (Id. at p. 860.) When they failed to appear for trial, the court struck their answers to the cross-complaint and ordered "their defaults entered" for failing to appear at trial. (Ibid.) The court continued the trial date. (Ibid.) The next day, the cross-complainants filed a request for entry of default with the clerk, serving a copy on the cross-defendants by mail. The clerk entered the default that day. (Ibid.) About a month later, an ex parte application for entry of judgment based on the defaults was filed by the cross-complainants, requesting over $900,000 in total damages. (Id. at pp. 860-861.) The cross-defendants were not served with any of the documents supporting the entry of the judgment and it would have made little difference if they had been because the judgment was entered the same day the documents were filed for the exact amount requested. (Id. at p. 861.)
More than a year later, the cross-defendants became aware of the judgment entered against them and filed a motion to vacate the judgment, arguing it was void because they had not received notice of the trial and the court therefore lacked the power to enter their defaults. (Heidary, supra, 99 Cal.App.4th at p. 861.) The court denied the motion. (Ibid.) On appeal, the appellate court concluded the judgment was void on its face, reversed it, and remanded with directions to vacate the entry of defaults and the default judgment. (Id. at pp. 862, 868.) In reaching this conclusion, the court applied the reasoning in Wilson, supra, 274 Cal.App.2d 573. (Heidary, at pp. 862-864.) The appellate court explained, as in Wilson, "the court had no power to enter appellants' default when they failed to appear for trial." (Id. at p. 864.) "[T]he court's only options when they did not appear were to proceed with the trial in their absence, or to continue the trial." (Ibid.) Instead, the court entered the cross-defendants' default and continued the matter to allow the cross-complainants to put on proof of damages on a later date. (Ibid.) The appellate court explained that the cross-defendants therefore "were entitled to notice of what amounted to a continued trial date" and because they did not receive such notice, the judgment against them was void. (Ibid.)
Wilson and Heidary guide us to the conclusion that here, because Bennett had filed an answer, Code of Civil Procedure section 594, subdivision (a) precluded entry of her default when she failed to appear for trial. In its order, the trial court struck Bennett's answer and entered default. The court also directed "counsel for the plaintiff to file the Default Judgment packet directly in Department 27." Thus, it is clear the court was entering default judgment against Bennett under Code of Civil Procedure section 585. That section "is the general statutory authority for default judgments. It provides that '[j]udgment may be had, if the defendant fails to answer the complaint, as follows: . . . .' It then goes on to specify the procedures for obtaining a default in cases where the defendant failed to file an answer or other appropriate response within the time specified in the summons." (Heidary, supra, 99 Cal.App.4th at p. 863, fn. 4.) But here, Bennett had filed an answer. By doing so, she placed in issue both her liability and the amount of damages, and the court had no authority to strike her answer and enter her default when she failed to appear for trial. (Wilson, supra, 274 Cal.App.2d at p. 576.) When she failed to appear for trial, Cielo's "sole remedy" was "to move the court to proceed with the trial and introduce whatever testimony there may be to sustain [its] cause of action." (Ibid.) Or the court could continue the matter. (Heidary, at p. 859.)
In addition, the fact that the court set an OSC why it should not strike Bennett's answer and enter default does not change our analysis here. The court did not have authority to strike the answer on the date set for trial simply because Bennett did not appear. (See Wilson, supra, 274 Cal.App.2d at p. 576; Heidary, supra, 99 Cal.App.4th at p. 864.) Setting an OSC cannot bestow authority on the trial court that it does not have.
Moreover, we are not persuaded by Cielo's arguments to the contrary. It claims that Sigala v. Anaheim City School Dist. (1993) 15 Cal.App.4th 661 and Evarone v. Twentieth Century Hosts, Inc. (1979) 98 Cal.App.3d 90 support the striking of the answer and entry of default. Yet, Cielo does no more than offer this bare conclusion about these cases. It does not discuss those cases or even provide us with pin cites to support its proposition. A cursory review of those cases shows that neither one addressed the issue of striking an answer and entering a default judgment based on a defendant's failure to appear at trial.
Additionally, Cielo claims the court was authorized to strike the answer and enter default judgment under Rule 2.5.12 of the Local Rules Superior Court of California County of San Diego. Rule 2.5.12(A) provides:
"If any counsel, a party represented by counsel, or a party in pro per, fails to comply with any of the
requirements of Division II of the San Diego Superior Court Rules, the court, on a motion of a party or on its own motion, may strike all or any part of any pleadings of that party; or dismiss the action or proceeding or any part thereof; or enter a judgment by default against that party; or impose other penalties of a lesser nature or otherwise provided by law; and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees."
Here, Cielo does not explain which requirement of Division II Bennett violated and why, under those circumstances, the court could strike the answer and enter default. Moreover, even if we were to interpret Rule 2.5.12 to authorize a trial court to strike an answer and enter default when a defendant does not appear at trial, we would find this rule to be inconsistent with clear case law and thus not applicable here. Local rules may not be adopted that conflict with statute or case law. (See Gov. Code, § 68070; People v. Cobb (1983) 139 Cal.App.3d 578, 590-591; cf. Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [" 'trial judges have no authority to issue courtroom local rules which conflict with any statute' or are 'inconsistent with law' "].)
Finally, Cielo insists it does not matter if the court did not have authority to strike the answer and enter default because, "for all practical purposes, the outcome was the same." Cielo's argument misses the mark. It is axiomatic that a court cannot act beyond its authority. Here, the court did not have authority to strike the answer and enter default. As such, the fact that Cielo claims to have proven its damages through declaration as a default prove up is not of the moment. Cielo had to prove its case in trial even in the absence of Bennett. It did not do so. The judgment therefore must be reversed.
Additionally, although we are reversing the judgment, we believe it advisable to address one other issue raised by Bennett here. Bennett claims the trial court improperly counted the length of the various bankruptcy stays in denying her motion to dismiss for failure to bring this case to trial within five years of commencement.
Code of Civil Procedure section 583.310 states that "[a]n action shall be brought to trial within five years after the action is commenced against the defendant," and section 583.340 states that "[i]n computing the time within which an action must be brought to trial . . ., there shall be excluded the time during which . . . [¶] (a) The jurisdiction of the court to try the action was suspended. [¶] (b) Prosecution or trial of the action was stayed or enjoined. [¶] (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile."
Here, it is undisputed that Bennett filed bankruptcy five times, which would have the effect of staying Cielo's action against her. (See 11 U.S.C. § 362(a)(1).) Indeed, in opposing Bennett's motion to dismiss under Code of Civil Procedure section 583.340, Cielo pointed out the five bankruptcies and calculated the length of each associated stay based on when each bankruptcy was filed and when each bankruptcy case was closed. The court appears to have accepted these dates in calculating the length of the stay and determining the five year mark by which Cielo had to bring their case to trial. However, Bennett claims that the court used the incorrect dates, emphasizing that the federal statute declares that a stay lasts until a case is closed or the time a case is dismissed—whichever occurs the earliest. (See 11 U.S.C. § 362(c)(2)(A) & (B).) Bennett further argues that had the court calculated the length of the stay using the earlier end point (when the cases were dismissed), the correct length of the stay associated with the bankruptcy filings would have been 1,525 days not 1,724 as calculated by the court. Therefore, according to Bennett, the five-year period would have expired on March 3, 2019 not September 18, 2019 as stated by the trial court when it denied her motion to dismiss. As Bennett observes, the trial date in the instant matter was September 6, 2019, well after the five year date she calculated based on the bankruptcy stays.
Surprisingly, Cielo does not take issue with Bennett's calculations noting "the stay may technically end at dismissal" but claiming "many prudent attorneys would wait for termination of a bankruptcy before proceeding with litigation." Again, Cielo's argument misses the mark. Bennett's argument is aimed at what the statute requires not what the hypothetical prudent attorney would do.
We independently review a ruling on a motion to dismiss for failure to bring an action to trial within the five-year period provided by Code of Civil Procedure section 583.310 to the extent the ruling is based on an interpretation of the statute. (Brown & Bryant, Inc. v. Hartford Accident & Indemnity Co. (1994) 24 Cal.App.4th 247, 252.) However, if the court's ruling on such a motion was based on its evaluation of factual matters relating to whether the prosecution of the action was impossible, impracticable, or futile under Code of Civil Procedure section 583.340, we review the applicable order for an abuse of discretion. (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731.) Here, as the matter is presented on appeal, it appears the court's ruling involved both. However, we get a different impression when reviewing the record.
Below, neither party cited nor discussed the relevant bankruptcy stay statute, Title 11 of the United States Code section 362. Moreover, Bennett did not argue to the trial court that the correct calculation of the length of bankruptcy stay involves the earlier occurrence of when the case was dismissed or closed. Rather, Bennett makes this argument for the first time on appeal. And Cielo suggests there might have been other extenuating circumstances preventing it from moving forward in this case.
Based on this record, we are hesitant to weigh in on the issue when not all the facts, evidence, and arguments were presented to the trial court. Thus, we do not reach Bennett's argument that the court incorrectly decided her motion to dismiss. That said, it might be prudent for the trial court on remand, in addition to setting a new trial date, to allow Bennett to bring a new motion to dismiss where she can argue regarding the correct length of the stay while Cielo can bring to light any other issues that made prosecuting its case impossible, impracticable, or futile. However, we offer no opinion on how the trial court should rule on such a motion.
DISPOSITION
The judgment is reversed and remanded to the superior court. The superior court is instructed to vacate the judgment, vacate the default, reinstate the answer, and set a new trial date. Based on the arguments presented here, it also might be judicious to allow Bennett to bring a new motion to dismiss under Code of Civil Procedure section 583.310 and permit the parties to fully brief and argue the issue. Again, we offer no opinion on any ruling on such a motion. Bennett is entitled to her costs on appeal.
HUFFMAN, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.