Opinion
G044826
01-19-2012
LINDSEY GIBSON, Plaintiff and Respondent, v. JAMES ALBERT, INC., Defendant and Appellant.
Gresham Savage Nolan & Tilden, Theodore K. Stream, Jamie E. Wrage and Nicholas Firetag for Defendant and Appellant. Blackman Law Firm and April Blackman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2008-00205977)
OPINION
Appeal from an order of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed.
Gresham Savage Nolan & Tilden, Theodore K. Stream, Jamie E. Wrage and Nicholas Firetag for Defendant and Appellant.
Blackman Law Firm and April Blackman for Plaintiff and Respondent.
This judgment is not void due to the plaintiff's failure to serve the corporation's previous attorney. Neither is the judgment void because the corporation refused to retain new counsel and was thus unrepresented. We affirm.
I
FACTS
James Albert Nasser formed James Albert, Inc. (the corporation) and is its president. The corporation does business as the James Albert School of Cosmetology (the school, sometimes collectively defendant). Plaintiff Lindsey Gibson filed a limited jurisdiction complaint against the school on September 17, 2008, for injuries she suffered while having her hair treated at the school. Attorney Jennifer Feres filed an answer to the complaint on behalf of the school on October 29, 2008.
Gibson filed an amended complaint reclassifying the matter as an unlimited action on May 15, 2009. Less than two months later, on July 1, 2009, Attorney Feres filed and served on defendant a motion to be relieved as its attorney of record. In support of the motion Feres alleged the attorney-client relationship had "totally broken down." Her declaration stated defendant had agreed to pay her fees and costs, but had not complied with the agreement. She also averred that defendant did not cooperate with her in preparing the case and did not fulfill other obligations under the retainer agreement. She stated that she had informed defendant of the need to retain new counsel, but the corporation had not done so.
The notice was mailed to the "Attn: James Nasser, James Albert School of Cosmetology" at the corporation's address.
The typed-in hearing date on the notice of motion was July 30, 2009. That date had a line drawn through it and August 6, 2009 was handwritten in next to it. The court granted Feres's motion to be relieved on August 6, "effective upon the filing of the proof of service of this signed order upon the client." The record does not contain a proof of service showing the order was served on defendant.
Gibson's attorney filed a case management statement on November 17, 2009, in anticipation of a December 3, 2009 case management conference. The case management statement includes a representation that the parties had met and conferred as required by rule 3.724 of the California Rules of Court. Defendant did not appear at the case management conference and no attorney appeared on defendant's behalf. The court set the trial for May 3, 2010, and ordered plaintiff to give notice. Notice was mailed to "James Albert School of Cosmetology, in Pro Per," at the corporation's address. The envelope was marked "Attn: James Nasser."
In early 2010, Nasser personally met with Gibson's attorney to discuss possible settlement of the case. The meeting took place at the school.
A month before trial, Gibson amended the complaint to allege the corporation as the true name of defendant. Notice was sent to "James Nasser, James Albert School of Cosmetology," addressed to the corporation's address. (Capitalization omitted.)
Defendant did not appear at the trial. Gibson presented her case, including her medical bills and photographs of her injuries. The court found in her favor. She was awarded $23,752 in special damages and $75,000 in general damages. Gibson's attorney mailed an unsigned copy of the judgment to the corporation's address a day after the trial. Judgment was eventually entered on June 2, 2010.
Five months later defendant filed an ex parte application to set aside the judgment. Defendant's new counsel stated that the ex parte application had been filed to prevent Gibson from satisfying the judgment with her writ of execution. The court denied the application without prejudice to defendant filing a noticed motion to set aside the judgment.
Defendant then filed a noticed motion to set aside the judgment. (Code of Civ. Proc., § 473; all undesignated section references are to this code.) Defendant contended that because it had not been served with the order relieving Attorney Feres as counsel of record and notice of the trial had not been served on Feres, it did not receive proper notice of the trial. Defendant also claimed that even if Feres had been relieved as counsel, the judgment would still have to be set aside as void because a corporation cannot appear without counsel.
The court denied defendant's motion, finding that "[d]espite numerous notices to defendant as to court events, Nasser apparently made no effort to communicate with attorney Feres or any other attorney between [August 2009] and [September 2010]." The court also noted that even after Nasser received notice of execution of judgment, he took no action "for nearly two months."
II
DISCUSSION
Defendant argues the trial court erred in failing to set aside the judgment, contending the judgment is void. Section 473 authorizes a court to "set aside any void judgment or order." (§ 473, subd. (d).) We review a trial court's ruling on a motion to set aside a judgment for an abuse of discretion. (In re Marriage of Brewer & Federici (2007) 93 Cal.App.4th 1334, 1346.) "The test for abuse of discretion is 'whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citation.]" (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283 (Gamet).) Additionally, we presume the court found every fact or inference essential to support the order. (Reid v. Valley Restaurants, Inc. (1957) 48 Cal.2d 606, 609.)
Defendant first argues the judgment was void because the corporation did not receive proper service, notwithstanding the fact that notice of the trial had been served on the corporation itself. As support for its argument defendant cites our opinion in Gamet, supra, 91 Cal.App.4th at p. 1286: "A judgment entered without notice is void and can be attacked at any time. [Citation.]"
Defendant's reliance upon Gamet is misplaced. Gamet involved a computer sales business, American Solutions, Inc. (ASI), owned and operated by Gamet and Blanchard. Gamet and ASI brought suit against Blanchard for causes of action based upon Blanchard's alleged misdeeds in the business. (Gamet, supra, 91 Cal.App.4th at pp. 1279-1280.) Blanchard filed a cross-complaint against Gamet and ASI, alleging Gamet was the wrongdoer. Counsel for Gamet and ASI filed a motion to be relieved as attorney of record. Gamet wrote to the court, opposing the motion. The letter alleged she was presently living in South Dakota with her parents due to a permanent disability suffered in a scuba diving accident. She alleged the attorney sought to be relieved so he could represent the owner of the scuba outfit in litigation related to that injury. The trial judge relieved counsel and set the matter for a trial readiness conference. The order noted Gamet and ASI were "now in propria persona and may wish to seek legal counsel and the failure to take appropriate action may result in serious consequences." (Id. at p. 1280.) The trial judge wrote to Gamet that same day, informing her that the attorney's motion had been granted and of the dates set for the trial readiness conference and the trial. The judge also admonished Gamet of the need to have counsel, or to be prepared to go forward without counsel. (Id. at p. 1281.)
When there was no appearance by the plaintiffs at the trial readiness conference, the court set the matter for an order to show cause why the case should not be dismissed. Gamet was served with notice of the order to show cause. The corporation was not. An attorney made a special appearance on behalf of Gamet at the hearing on the order to show cause. (Gamet, supra, 91 Cal.App.4th at p. 1281.) As a result of the hearing, a judgment dismissing the complaint with prejudice was eventually entered. Gamet wrote to the trial judge within two days of the hearing, asking the court to reconsider. Her rambling letter stated she had been unaware of the discovery sanction and the missed dates. She blamed prior counsel, stating she had not been told of dates and that the files were in disarray. She represented that she needed additional time to retain counsel because her accident left her completely disabled and there were family needs, which apparently included the care of her recently deceased brother's children. The court did not reconsider its ruling and subsequently entered the judgment in favor of the defendants. (Id. at p. 1282.)
Although we found it was an abuse of discretion for the trial court to deny Gamet's motion to set aside the judgment due to inadvertence, excusable neglect or surprise (Gamet, supra, 91 Cal.App.4th at p. 1285; see § 473, subd. (b)), the quote defendant relies upon comes from the portion of our opinion dealing with ASI's contentions. (Id. at p. 1286.) When the trial court in Gamet relieved Gamet and ASI's attorney, the court failed to send notice to ASI. (Id. at pp. 1285-1286.) Unlike the present case where notice of the trial was sent to and received by the corporation, ASI did not receive notice of the order to show cause that resulted in an adverse judgment. ASI's corporate address was in Garden Grove, California, but the notice at issue in Gamet was sent to Gamet's address in South Dakota. (Id. at p. 1286.) Thus, ASI received no notice of the hearing whatsoever.
Defendant does not argue the judgment was subject to being set aside pursuant to subdivision (b) of section 473.
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Defendant cannot claim it lacked actual notice and an opportunity to be heard. Notice of the trial was mailed to the school's corporate address. Ten months before trial, defendant's attorney served it with notice that she was seeking to be relieved as counsel or record, alleging under oath that defendant had not complied with the terms of the retainer agreement and had not cooperated in preparing the matter for trial. The court granted that request and even though the hearing on the motion was held one week later than the date provided in the notice received by defendant and the court's order was conditioned on proof that defendant was served with a copy of the order, Nasser's declaration does not state that he thought Feres continued to represent the corporation, or that the school did not receive actual notice of the trial date.
The trial court could reasonably infer from Nasser's declaration that Feres had stopped representing the corporation. Nasser, the president of the corporation, undertook an attempt to negotiate a settlement with Gibson's attorney after Feres advised the corporation to obtain counsel and had filed a motion to be relieved as counsel. Had the corporation been represented by counsel, counsel — not Nasser — would have had direct contact with Gibson's attorney. Nasser's declaration does not allege any contact with Feres after July 2009. It was reasonable for the court to infer the corporation did not pay Feres's fees and costs and did not consult with Feres after she moved to be relieved. Neither did Nasser's declaration state that the corporation did not receive notice of Feres's motion. Rather, it states that the corporation did not receive notice of the August 6, 2009 hearing date on the motion. The notice sent to the corporation contained a July 30, 2009 hearing date. Defendant's opening brief effectively concedes it received notice of the July 30 hearing date.
Defendant had not paid the attorney, and the attorney formally moved to be relieved 10 months before trial. Defendant did not thereafter communicate with the attorney, did not heed the attorney's advice to retain new counsel, and ignored notices sent to its corporate address. Nasser, rather than an attorney acting on defendant's behalf, sought to negotiate a settlement. Given this state of facts, the superior court did not err in rejecting the corporation's claim that the judgment was void because notice of the trial had been mailed to it and not to the attorney who had ceased to represent it. The superior court did not abuse its discretion by denying the motion to set aside the judgment based on an alleged lack of notice.
Defendant also contends the judgment was void because the school is a corporation and a corporation cannot represent itself at trial. It is true that a corporation cannot represent itself and must appear through counsel. (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730.) However, contrary to defendant's assertion, a corporation is not precluded from staying in a case once its attorney is formally relieved. In Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, the trial court denied an attorney's request to be relieved as counsel because relieving counsel would have left the corporate client without an attorney. (Id. at p. 503.) In issuing a writ of mandate directing the superior court to grant the request to be relieved, the appellate court observed, "[t]he effect of withdrawal is to leave the corporation without representation and without the ability to practice self-representation. For the uncooperative corporate client who has not been willing to bring in new counsel, granting of the withdrawal motion will put extreme pressure on it to obtain new counsel of record for should it fail to do so it risks forfeiture of its rights through nonrepresentation." (Id. at p. 504; Gamet, supra, 91 Cal.App.4th at p. 1284, fn 5 ["ban on corporate self-representation does not prevent a court from granting a motion to withdraw as attorney of record"].)
Here, prior to filing her motion to be relieved, Feres informed the corporation it needed to retain new counsel. The corporation did not heed her advice. She sought to be relieved because the corporation did not pay her and did not cooperate in preparing the case for trial. Even after having been served with Feres's motion to be relieved, the corporation did not obtain new counsel. Instead, Nasser personally undertook to attempt to negotiate a settlement. From the record in this case it would seem defendant could be viewed as an "uncooperative corporate client" and that Nasser made a calculated decision not to retain another lawyer.
Defendant maintains that rather than conduct the trial as was done below, Gibson should have moved the court to strike defendant's answer and then proceed via default. We need not address this issue because defendant cites no authority for the proposition. It is not this court's responsibility to develop defendant's argument. "When an issue is unsupported by pertinent or cognizable legal argument it may deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]" (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Were we to address the issue we would find it meritless.
The fact that a corporation cannot appear in an action in propria persona (Merco Constr. Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d at p. 730) does not mean a corporation's failure to appear at trial deprives the court of the jurisdiction to conduct the trial. (§ 594, subd. (a).) Moreover, defendant did not represent itself in propria persona in the trial court. It did not appear. The trial court did not err in proceeding with the trial rather than striking defendant's answer and considering the same evidence in a "prove-up" on default. (See § 585, subd. (b).) The corporation's failure to appear for trial while unrepresented did not render the judgment void. Were the rule otherwise, it would provide corporations with an incentive not to appear for trial and to delay justice by refusing to retain counsel. Accordingly, we find the judgment was not void based upon the corporation's unrepresented status and the trial court did not err in refusing to set aside the judgment under subdivision (d) of section 473.
III
DISPOSITION
The order of the superior court denying Gibson's motion to set aside the judgment is affirmed. Gibson is awarded her costs on appeal.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.