Opinion
NOT TO BE PUBLISHED
Super. Ct. No. PC20020626
CANTIL-SAKAUYE , J.
Plaintiff Premier Capital, LLC, contends the trial court erred in vacating the default and default judgment entered against defendants North Aircraft Services, Inc., Gary North, and Kerrie North and in quashing service of process against each of them. We shall affirm the trial court’s orders as to Gary North and reverse as to North Aircraft Services, Inc. and Kerrie North.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a summary of facts and procedural background focusing on the issues of service of process and the nature of the parties’ arguments to the trial court.
In 1997 North Aircraft Services, Inc. and Bank of America entered into an agreement increasing North Aircraft’s business line of credit with the bank. The application and agreement for the line of credit listed 3450 Palmer Drive, Suite 7140, Cameron Park, California, as North Aircraft’s business address. Gary North was listed as the president of North Aircraft. His address was listed on the agreement as 3771 Clinton Way, Cameron Park, California. Kerrie North was listed as the CEO and secretary of North Aircraft with the same address as Gary North on Clinton Way. Gary and Kerrie North signed personal guaranties for the line of credit.
The italicization of the suite numbers in the opinion are ours.
North Aircraft defaulted on its loan payments in November 2001. Bank of America sent notice to North Aircraft and Gary North demanding payment of the full amount of principal and interest due under the line of credit and guaranty to 3450 Palmer Drive, #4-333, Cameron Park, California. Thereafter, Bank of America assigned its interest in the agreement to N C Venture I, L.P. (N C Venture). On October 8, 2002, N C Venture filed a complaint for breach of contract and common counts against North Aircraft, Gary North and Kerrie North.
On November 4, 2002, Gari Greenhalgh, the process server for N C Venture, went to North Aircraft’s business address of 3161 Cameron Park Drive, Suite 219, to serve all three defendants. He found a new business located at that address. He then went to the business address listed on the line of credit agreement: 3450 Palmer Drive. According to the proofs of service later filed, Greenhalgh found a Mail Boxes, Etc. located at 3450 Palmer Drive and he verified with Louie Massie, the person in charge at that address, that each of the defendants, North Aircraft, Gary and Kerrie North, received mail at that address. Greenhalgh attempted personal service on the three defendants on November 4, 5, 6, and 7, 2002, before providing substituted service on each of them on November 7 at 3450 Palmer Drive, #7140, by leaving a copy of the court documents with Louie Massie and then mailing a copy of the documents to each of the defendants at the same address. The proofs of service state the North Aircraft’s current business address and Gary and Kerrie North’s current residence address “is [sic] unknown.” The proofs of service state 3450 Palmer Drive, #7140, was the “usual mailing address” for all three defendants.
A default was entered against each of the defendants on January 30, 2003. A copy of the request for entry of default was mailed to 3450 Palmer Drive, #7140. N C Venture filed a request for court judgment on August 23, 2004. The request was served on defendants at 3450 Palmer Drive, #7140. On September 1, 2004, a court default judgment for $96,321.11 was entered in favor of N C Venture and against each of the three defendants.
N C Venture assigned its rights to the judgment to Premier Capital, LLC (Premier Capital) on April 12, 2005. Premier Capital filed a notice of the assignment on August 19, 2005. The notice stated judgment was entered on September 1, 2004. The notice stated the names and last known addresses of the judgment debtors were: North Aircraft - 3450 Palmer Drive, #4333, Gary North and Kerrie North - 3867 Spinel Circle, Rescue, California. A copy of the default judgment was attached to the notice. The notice of assignment was served on the defendants at the addresses listed.
Premier Capital obtained writs of execution to levy on various assets it had located beginning in October 2005. On November 10, 2005, Gary North filed a claim of exemption as to the levy on money in his bank accounts. The claim of exemption listed his address as 3867 Spinel Circle. Premier Capital opposed the claim of exemption and a hearing was set for January 5, 2006. Gary North later claimed he informed the court at the hearing on his claim of exemption that he never knew about the lawsuit. He declared the court told him it could not consider that issue, but he should see a lawyer about setting aside the judgment.
On March 6, 2006, Gary North, through counsel representing only him, filed a motion to set aside the default and default judgment entered against him, Kerrie North, and North Aircraft under Code of Civil Procedure section 473, subdivision (d) based on a lack of valid service of process. Along with the motion to set aside the default and default judgment, Gary North filed a motion to quash service of process as to him, Kerrie North and North Aircraft. His supporting memorandum of points and authorities and personal declaration for each of his motions were identical. Gary North contended North Aircraft had owned mailbox number 4333 at Mail Boxes, Etc., located at 3450 Palmer Drive, prior to February 6, 2002, but on that date the corporation ceased operating and he terminated its box at Mail Boxes, Etc. Gary North declared at no time on or about November 2002 did he or his wife receive any type of mail at 3450 Palmer Drive, that at no time on or about November 2002 did he receive any summons and complaint regarding this action, that at no time on or about November 2002 did North Aircraft, he or his wife personally receive mail at 3450 Palmer Drive, and that at no time was 3450 Palmer Drive his or his wife’s usual place of business or usual mailing address.
Hereafter, undesignated statutory references are to the Code of Civil Procedure unless otherwise indicated.
Premier Capital opposed Gary North’s motions. Premier Capital took the position that substituted service on defendants at Mail Boxes, Etc. was sufficient under section 415.20 as it was defendants’ usual place of mailing, the court documents had been left with the person in charge of Mail Boxes, Etc. and copies were then mailed to the same address. Premier Capital also relied on Business and Professions Code section 17538.5, subdivision (d) (section 17538.5(d)), as requiring Mail Boxes, Etc. to accept service of process and forward the court documents to defendants at their last known address even though their mailbox service was terminated. Premier Capital contended Gary North had actual knowledge of the action prior to entry of the judgment. In support of its opposition, Premier Capital submitted a number of supporting declarations from the owner of a skip tracing and asset location business, an attorney for Premier Capital, the senior vice president for N C Ventures, and Greenhalgh, the process server for N C Ventures.
Gary North filed objections to the evidence submitted by Premier Capital in its opposition and contended Premier Capital had failed to meet its burden to show effective service because there was no admissible evidence that 3450 Palmer Drive, #7140, was the usual business or mailing address for any of the defendants in November 2002. The Clinton Way address listed in the loan application was his and his wife’s residential address from 1997 through 2003. Prior to 1997, North Aircraft established a private business mail box at 3450 Palmer Drive, #7140, but that mail box was terminated in 1998 or early 1999 when Mail Boxes, Etc. moved from suite 7 to suite 4 in the same shopping center. When Mail Boxes, Etc. moved, Gary North established mailbox 4333, but then terminated it in February 2002. Gary North declared that at no time prior to late 2005 did he have any knowledge about this lawsuit.
Premier Capital filed supplemental opposition. As relevant on appeal, Premier Capital noted Gary North’s motions were filed by an attorney who represented he was only the attorney of record for Gary North, but the motions nevertheless requested relief for all defendants. Premier Capital contended this was inappropriate. Kerrie North was the ex-wife of Gary North, had her own legal counsel and had not filed any motion to set aside the default judgment as to her. Premier Capital contended Gary North’s motion to set aside the judgment would be untimely as to Kerrie North since it was filed more than 180 days after she was served with written notice of the default judgment (referring to service of the written notice of assignment of the judgment with the attached copy of the judgment). As to North Aircraft, Premier Capital requested judicial notice of its status as a suspended corporation. Premier Capital contended the corporation had no right to bring either a motion to set aside the default judgment or a motion to quash service of process against it. Premier Capital’s supplemental opposition was supported by declarations from its counsel and counsel’s legal secretary regarding service of a memorandum of costs after judgment and the notice of assignment on Kerrie North at the Spinel Circle address after counsel had received a verification from the United States Post Office confirming such address was a good mailing address for Kerrie North.
In his reply to Premier Capital’s supplemental opposition Gary North contended there was no time limit applicable to a motion to set aside a default judgment brought pursuant to section 473, subdivision (d) and that the trial court had a duty to declare the judgment void as to both Kerrie North and North Aircraft, citing Thompson v. Cook (1942) 20 Cal.2d 564 (Thompson) and Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426 (Dill).
At the hearing on Gary North’s motions, Premier Capital expressed its position that the motion to set aside the judgment was timely as to Gary North, but untimely as to Kerrie North.
The trial court sustained virtually all of Gary North’s objections to Premier Capital’s declarations in its original opposition to the motions. The trial court then found the remaining evidence was insufficient to controvert Gary North’s express declaration that 3450 Palmer Drive, # 7140 and #4333 ceased to be associated with defendants after 1999 and February 2002 respectively. The trial court found the totality of the evidence did not establish defendants had as their usual mailing address 3450 Palmer Drive, either box number, in November 2002. The trial court stated the evidence established that no mail from the Mail Boxes, Etc. address was received by defendants on or about November 2002. The court concluded substitute service did not comply in any manner with the requirements of section 415.20, subdivision (b). With respect to Premier Capital’s argument for service based on section 17538.5(d), the trial court found there was no evidence before it to establish that Mail Boxes, Etc. complied with the requirement of mailing under that statute. There was no evidence service was perfected under section 17538.5(d). The trial court found the default and default judgment entered against all defendants was void for lack of valid service of process. Based on the same analysis, the trial court granted the motion to quash service of process against the defendants.
DISCUSSION
On appeal, Premier Capital presents the following arguments: (1) the motion to set aside the default judgment was untimely in light of the statute of limitations in section 473.5; (2) the motion for relief was not legally sufficient to set aside the judgment under the court’s inherent equitable powers; (3) defendants were properly served with substituted service at Mail Boxes, Etc.; (4) Mail Boxes, Etc. was required to accept service for defendants under section 17538.5(d) and such statute does not require proof that Mail Boxes, Etc. mailed a copy of the summons and complaint to defendants; (5) the motion should not have been granted as to Kerrie North and North Aircraft; (6) Gary North was not entitled to relief under his motion to quash because he made a general appearance in the action by his claim of exemption to the writ of execution; and (7) Gary and Kerrie North are estopped to contest the judgment. We discuss the issues in a different order.
The notice of appeal filed by Premier Capital states the appeal is from the order granting the motion to quash as to all three defendants. On appeal, however, Premier Capital challenges, as we have outlined, and without objection from Gary North, both the orders granting the motion to quash and the motion to set aside the default and default judgment. As the issue of valid service of process was integral to both motions and it was necessary for the default judgment to be set aside before the trial court could consider the motion to quash, we liberally construe Premier Capital’s notice of appeal to include the order granting the motion to set aside the default judgment as a necessary part of the order granting the motion to quash. (Cal. Rules of Court, rule 8.100(a)(2).) We consider each of Premier Capital’s contentions.
I.
Standard of Review
In reviewing an order granting a motion to quash service of process, we decide whether the trial court’s factual findings were supported by substantial evidence and then independently determine the ultimate question of whether service was sufficient to secure personal jurisdiction over defendants. (See F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal.App.4th 782, 794; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 111.) We review the order granting the motion to vacate the default judgment for abuse of discretion. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478; Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 (Strathvale).) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. [Citation.]” (Strathvale, supra, at p. 1249.)
II.
Substituted Service Of Defendants At Mail Boxes, Etc.
Premier Capital contends all defendants were properly served by substituted service at Mail Boxes, Etc. under section 415.20. Such service was established by the proofs of service filed in compliance with section 417.10. Premier Capital claims there is no conflict with respect to the jurisdictional evidence showing such service, making the question of jurisdiction purely one of law. Premier Capital claims the reference in the proofs of service to Box 7140 instead of Box 4333 does not render the service invalid. We disagree with Premier Capital’s analysis, which largely ignores the critical factual finding of the trial court. We explain.
“[A] judgment entered without notice or service is constitutionally infirm.” (Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 84 [99 L.Ed.2d 75, 81].) It follows that “[i]n the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court’s personal jurisdiction over a defendant.” (Dill, supra, 24 Cal.App.4th 1426, 1439, fn. omitted.) When a defendant challenges that jurisdiction, it is plaintiff’s burden to prove the existence of jurisdiction by proving the facts requisite to an effective service. (Strathvale, supra, 126 Cal.App.4th 1241, 1250; Dill, supra, at pp. 1439-1440.) Plaintiff may point to its filing of a proof of service, which has been held to create a rebuttable presumption that the service was proper. (Dill, supra, at pp. 1441-1442.)
Here, in response to Gary North’s motion to set aside the judgment and quash service of process, Premier Capital pointed to the proofs of service filed in this action showing substituted service pursuant to section 415.20, on defendants at Mail Boxes, Etc. after an attempt at personal service was made at the prior business address of North Aircraft and several attempts at personal service were made at Mail Boxes, Etc. It has been held “[t]he plain language of section 415.20 [] authorizes substitute service at a defendant’s usual mailing address, which includes a private/commercial post office box. [Citation.]” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 546.) The proofs of service were adequate to create a rebuttable presumption that the service was proper.
Section 415.20 provides, in pertinent part, as follows:
However, Gary North submitted evidence to rebut the presumption of proper service. He supported his motions with evidence that the Mail Boxes, Etc. address was not the usual mailing address for any of the defendants in November 2002 when service was allegedly made. He submitted his declarations stating Box 7140 was the mailbox for North Aircraft only until 1999, at the latest, when Mail Boxes, Etc. moved to suite 4 in the same shopping center. At that point, Box 4333 became the mailbox for North Aircraft, but North Aircraft ceased doing business in February 2002 and Gary North terminated its mailbox on February 6, 2002. Gary North declared at no time on or about November 2002 did he or his wife receive any type of mail at 3450 Palmer Drive, that at no time on or about November 2002 did North Aircraft, he or his wife personally receive mail at 3450 Palmer Drive, and that at no time was 3450 Palmer Drive his or his wife’s usual place of business or usual mailing address. Gary North declared he did not receive the summons and complaint in this action on or about November 2002 and he did not know about the lawsuit until late 2005.
Premier Capital contends the termination form shows Gary North was the “primary boxholder.” Actually, the form reads, “Primary/Secondary Boxholder: Gary North” and “Business Name: North Aircraft Services.” This is consistent with Gary North having opened and closed the box for North Aircraft as its president.
Premier Capital tried to contradict these claims. It submitted a number of opposing declarations to the trial court attempting to establish Mail Boxes, Etc. was still the usual mailing address for the defendants in November 2002. The trial court, however, sustained Gary North’s objections to a large portion of such evidence and Premier Capital does not argue on appeal that the trial court’s evidentiary rulings were in error. The evidence remaining after the trial court’s rulings essentially showed the process server was told by Louie Massie, the person in charge at Mail Boxes, Etc., that each of the defendants received mail at that location. This did not necessarily mean the location was the usual place of mailing for the defendants. To the contrary, substantial evidence, as submitted by Gary North, supported the trial court’s finding that Mail Boxes, Etc. (regardless which mailbox number is considered) was not the usual place of mailing for defendants in November 2002.
The word “usual” is defined as “1: such as accords with usage, custom, or habit: of the character or amount in common use: prevalent, accustomed . . . 2: commonly or ordinarily employed . . . 3: such as occurs in ordinary practice or in the ordinary course of events: ordinary, common.” (Webster’s 3d New Internat. Dict. (1993) p. 2524.) Webster’s provides the following synonyms: “customary, habitual, wonted, accustomed.” (Ibid.)
In light of this factual finding, supported as it is by substantial evidence, we conclude substitute service on Gary North did not comply with the requirements of section 415.20.
III.
Service Under Business & Professions Code Section 17538.5(d)
Premier Capital argues service was still properly accomplished under section 17538.5(d) and that such statute does not require it to submit a second proof of service evidencing Mail Boxes, Etc. mailed a copy of the summons and complaint to defendants. We conclude a plaintiff relying on service of a defendant by substituted service on a commercial mail receiving agency (CMRA) under section 17538.5 must submit an affidavit or proof of service showing compliance with the requirements for service under section 17538.5, including evidence of the CMRA’s mailing of the documents to the last known address of its mail receiving customer or former customer. (§ 417.10, subds. (a) & (c).) As Premier Capital did not submit such proof, effective service on Gary North under section 17538.5 was not shown.
Section 17538.5, subdivision (d)(1), provides: “Every person receiving private mailbox receiving service from a CMRA in this state shall be required to sign an agreement, . . . , which authorizes the CMRA owner or operator to act as agent for service of process for the mail receiving service customer. Every CMRA owner or operator shall be required to accept service of process for and on behalf of any of their mail receiving customers, and for two years after termination of any mail receiving service customer agreement. Upon receipt of any process for any mailbox service customer, the CMRA owner or operator shall (A) within 48 hours after receipt of any process, place a copy of the documents or a notice that the documents were received into the customer’s mailbox or other place where the customer usually receives his or her mail, unless the mail receiving service for the customer was previously terminated, and (B) within five days after receipt, send all documents by first-class mail, to the last known home or personal address of the mail receiving service customer. The CMRA shall obtain a certificate of mailing in connection with the mailing of the documents. Service of process upon the mail receiving service customer shall then be deemed perfected 10 days after the date of mailing. [¶] If the CMRA owner or operator has complied with the foregoing requirements and provides to any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing, the CMRA owner or operator shall have no further liability in connection with acting as agent for service of process for its mail receiving service customer.” (Italics added.)
Section 417.10 provides that “Proof that a summons was served on a person within this state shall be made: [¶] . . . [¶] (c) If served pursuant to another law of this state, in the manner prescribed by that law or, if no manner is prescribed, in the manner prescribed by this section for proof of a similar manner of service.”
Section 17538.5(d) provides specific requirements for service on a CMRA mail receiving service customer. Such requirements include, among other things, the mailing of the documents received by the CMRA to the last known address of its customer. The statute states service is “deemed perfected 10 days after the date of mailing” thereby tying perfection of service to such mailing.
Section 17538.5(d)(1) provides the CMRA “shall obtain a certificate of mailing in connection with the mailing of the documents.” The CMRA may then provide “any party participating in a lawsuit involving a mail receiving service customer a declaration of service by mail, given under penalty of perjury along with a certificate of mailing[.]” (§ 17538.5(d)(1).) Although the statute goes on to state such action will relieve the CMRA from any “further liability in connection with acting as agent for service of process for its mail receiving service customer[,]” such is not the only purpose of such declaration and certificate. The language of the statute logically suggests the provision of a declaration of mailing with a certificate of mailing is also the manner provided in section 17538.5(d) for proof of this portion of the service of process for purposes of section 417.10, subdivision (c).
However, even if we were to conclude this provision is not an express provision for a manner of proof of service for purposes of section 417.10, subdivision (c), we would conclude an affidavit or proof of service showing the CMRA’s mailing of the documents to its customer is still required under section 417.10.
Where there is no manner prescribed in the other law for a manner of proof of service, section 417.10, subdivision (c), directs proof of service to be “in the manner prescribed by this section for proof of a similar manner of service.” The most similar manner of service to section 17538.5 is substituted service under section 415.20 for which section 417.10, subdivision (a) requires an “affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter.” (Italics added.) By analogy to this subdivision of section 417.10, if a plaintiff serves a defendant by substituted service under section 17538.5(d), the plaintiff’s proof of service must include “facts showing that the service was made in accordance with [section 17538.5].” (§ 417.10, subd. (a).) Mailing by the CMRA to its customer’s last known address is one of the requirements for service under section 17538.5(d). Service is not perfected until such mailing. Proof of service pursuant to section 17538.5(d), therefore, requires an affidavit of the person making the service showing the time, place, and manner of service and evidence showing the CMRA mailed the documents received to the last known address of its customer.
We are aware of Hope v. Otis Elevator Co. (E.D.Cal. 2005) 389 F.Supp.2d 1235, in which the federal district court stated, without substantive analysis, that: “[n]either the Federal Rule of Civil Procedure 4(1) nor California Code of Civil Procedure [s]ection 417.10(a) requires that the proof of service recite this requisite [under sections 415.10, 415.20 & 415.30] first-class mailing of the summons and complaint.” (Id. at p. 1243.) We are not bound by such federal decision on state law (Howard Contracting v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 52; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 943, p. 984) and disagree with it.
Premier Capital relied on section 17538.5(d) as an alternate method of service of process, but failed to submit an affidavit or proof of service showing compliance with the requirements of that statute, including that Mail Boxes, Etc. had mailed the documents it received to defendants’ last known address. Therefore, it did not meet its burden to establish the jurisdictional facts showing effective service when challenged by the motions to set aside the judgment and quash the service of summons. (Strathvale, supra, 126 Cal.App.4th 1241, 1250; Dill, supra, 24 Cal.App.4th at pp. 1439-1440.)
A judgment may be void because of improper service of summons. (Ellard v. Conway, supra, 94 Cal.App.4th 540, 544; Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 5:485, pp. 5-113 to 5-114 (Weil & Brown).) Here, Premier Capital failed to establish proper service under either of the two statutes it claimed. The trial court did not abuse its discretion in setting aside the default judgment as void for defective service on Gary North.
IV.
Timeliness Of The Motion To Vacate As To Gary North
There is no time limit to attack a judgment void on its face. (Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1239 [a collateral attack may be brought at any time]; Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, 761 [no time limit for relief under section 473 where judgment is void on its face]; Weil & Brown, supra, ¶ 5:490, p. 5-115.) However, a judgment is void on its face only when the record of the judgment itself affirmatively shows the court was without jurisdiction to render the judgment. (Canadian & American Mortgage & Trust Co. v. Clarita Land & Invest. Co. (1903) 140 Cal. 672, 674; see People v. Green (1887) 74 Cal. 400, 406.)
Here, the defect of service under section 415.20 did not appear on the face of the record of the judgment, but required evidence extrinsic to the record to show the alleged substituted service was not at the usual mailing address for defendants as required for valid service under section 415.20, subdivision (b).
A motion for relief pursuant to section 473, subdivision (d), from a judgment valid on its face but void for lack of valid service of process must be brought within a reasonable time, which has been determined to be, by analogy, within the time provided for a motion under section 473.5, relating to relief for lack of actual notice of a pending action despite proper service of process. (Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1124; Weil & Brown, supra, ¶ 5:491, p. 5-115.) Under section 473.5, relief must be sought “within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.” (§ 473.5, subd. (a); see also Gibble v. Car-Lene Research, Inc., supra, 67 Cal.App.4th 295, 301, fn. 3.)
At the trial court level, Premier Capital took the position the motion to set aside the judgment was untimely only as to Kerrie North. Premier Capital argued the motion was filed more than 180 days after it served her with written notice of the default judgment. Premier Capital supported this position with a declaration of its legal counsel and her secretary showing service of a memorandum of costs after judgment and the notice of assignment on Kerrie North at the Spinel Circle address after counsel had received a verification from the United States Post Office confirming such address was a good mailing address for Kerrie North. Premier Capital not only failed to argue the motion was untimely as to Gary North, it affirmatively represented to the trial court, at the hearing on the motions, its belief that the motion was timely as to him.
Premier Capital now argues on appeal that the motion was untimely as to Gary North as well. In a footnote in its opening brief, Premier Capital simply asserts it “subsequently discovered that Gary North also used the same mailing address where Kerrie North was served as his own mailing address at this time period[,]” citing a declaration of its counsel filed in support of its motion for reconsideration of the trial court orders. Current legal counsel stated she did not notice the Spinel Court address on Gary North’s claim of exemption until after entry of the trial court’s order and that prior counsel had also failed to earlier notice the address.
We will not condone this switch of position on appeal. “A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240-241.) The application of this “theory of trial” doctrine is particularly appropriate here where Premier Capital waived the issue of timeliness of the motion as to Gary North by affirmatively telling the trial court the motion was timely. It failed to submit any evidence, similar to the verification from the United States Post Office confirming the Spinel Court address was a good mailing address for Kerrie North, that established the Spinel Court address was Gary North’s correct address in August 2005 when the notice of assignment was served. Counsel’s failure to notice the address on the claim of exemption until after receipt of the trial court’s order was unreasonable. And the claim that prior counsel did not notice the Spinel Court address on Gary North’s claim of exemption is contradicted by that counsel’s notice of opposition to the claim of exemption, which was served on Gary North at two addresses, including the Spinel Court address. Premier Capital’s claim that Gary North had notice of the judgment is also contradicted by Gary North’s declaration that he did not know about this lawsuit until late 2005. The issue of timeliness under these circumstances is not an issue of pure law, but of mixed fact and law, which should have been submitted to the trial court in order to be preserved for appeal. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 400, p. 453.)
As we conclude Premier Capital has not preserved the timeliness issue for appeal, we need not consider whether the notice of assignment qualified as “a written notice that the default or default judgment has been entered” (§ 473.5, subd. (a)(ii)) triggering the 180 day time limit under section 473.5.
V.
Gary North’s General Appearance
Premier Capital claims Gary North’s filing of a claim of exemption, his appearance at the exemption hearing and his attainment of the exemption amounted to a general appearance in this action waiving his right to quash the summons. Gary North contends Premier Capital forfeited this argument by failing to raise it below. Premier Capital disagrees and directs our attention to its points and authorities in opposition to the motions and the declaration of its legal counsel. Premier Capital noted that Gary North had never attempted to file any motions stating that he had no knowledge of this lawsuit or asserting he was improperly served with the summons and complaint prior to or during the hearing on his claim of exemption. Premier Capital claims this statement was sufficient to preserve its claim on appeal that Gary North’s actions with respect to his claim of exemption amounted to a general appearance in this action.
In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].
The language referenced by Premier Capital was nothing more than a note interjected into the factual background section of its opposition. It was unaccompanied by any argument or legal authority raising the issue of general appearance. In fact, the phrase “general appearance” was never used. Contrary to Premier Capital’s claim, the language did not raise the general appearance issue as it is now argued for the first time on appeal. “[A]n argument or theory will generally not be considered if raised for the first time on appeal, unless the question is one of law to be applied to undisputed fact.” (Johanson Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583, 588; accord Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259.)
However, even assuming, for purposes of argument, that the general appearance issue could be a question of law and that Gary North’s post-judgment use of the exemption procedures pursuant to the Enforcement of Judgments Law (§§ 680.010, 703.510 et seq.) constituted a general appearance in the action, such a post-judgment general appearance would not retroactively cure the service defect in the judgment. (In re Marriage of Smith (1982) 135 Cal.App.3d 543, 545; 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 191, pp. 757-759.) Gary North was still entitled to seek relief by way of his motions to set aside the judgment and quash service of process. (In re Marriage of Smith, supra, at p. 545.)
VI.
Estoppel
Premier Capital argues that both Gary and Kerrie North, after having actual notice of the judgment, manifested their intention to treat the judgment as valid giving rise to an estoppel to assert otherwise.
Premier Capital did not raise the issue of estoppel in its opposition or supplemental opposition to the motions. As questions of estoppel are questions of fact, we are precluded from considering these factual issues raised for the first time on appeal. (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 319.)
VII.
Inherent Equitable Jurisdiction To Set Aside Judgment
In light of our conclusion that the trial court did not abuse its discretion in setting aside the default judgment as to Gary North as being void for defective service, we need not reach Premier Capital’s contention that the judgment could not be set aside under the trial court’s inherent equity jurisdiction.
VIII.
The Trial Court Erred In Setting Aside The Judgment and Quashing Service Of Process As To Kerrie North And North Aircraft
The trial court had before it a motion to set aside the default and default judgment and a motion to quash service of process filed by Gary North only, through legal counsel who represented only him. Kerrie North, at that time Gary North’s ex-wife, was not before the trial court, as uncontroverted evidence established she had separate counsel, who had not filed any motion to set aside the judgment as against her. North Aircraft was not before the trial court as uncontroverted evidence presented by Premier Capital’s request for judicial notice established North Aircraft was at the time a suspended corporation without any power to participate in this litigation. (See, e.g., Palm Valley Homeowners Association, Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 560-561 [corporation suspended under Corp. Code disabled from participating in litigation]; Alhambra-Shumway Mines, Inc. v. Alhambra Gold Mine Corp. (1957) 155 Cal.App.2d 46, 50-51 [corporation suspended under Rev. & Tax. Code cannot participate in litigation].) Nevertheless, Gary North sought relief not only for himself, but for Kerrie North and North Aircraft. He contended the trial court had a duty to grant such relief as to each of the defendants on his motions under the authority of Thompson, supra, 20 Cal.2d 564 and Dill, supra, 24 Cal.App.4th 1426. The trial court granted relief as to all defendants. Premier Capital contends this was error and we agree.
To the extent Thompson, supra, 20 Cal.2d 564 and Dill, supra, 24 Cal.App.4th 1426, provide authority for a court’s duty to declare a judgment void, they are limited to a judgment void on its face (Dill, supra, at pp. 1141, 1444) or where “the party in favor of whom the judgment or order runs admits facts showing its invalidity, or, without objection on his part, evidence is admitted which clearly shows the existence of such facts,” so that the invalidity is shown as a matter of law. (Thompson, supra, at pp. 569-570.) These cases are not authority for, and we are unaware of any other authority, allowing a court to declare a judgment void as to parties not before it where the validity (invalidity) of the judgment depends on resolution of disputed factual questions from extrinsic evidence. Such was the case here.
Premier Capital strenuously contested Gary North’s declarations regarding the service of process at Mail Boxes, Etc. and it submitted evidence attempting to show the address was still being used by the defendants as their usual mailing address. While Premier Capital’s evidence was largely inadmissible due to foundational and hearsay problems, we cannot say Premier Capital either admitted the facts showing the invalidity of the judgment or failed to object to and contest such facts. We cannot say as a matter of law the judgment as to all defendants is void for lack of proper service. Under these circumstances, it was not appropriate for the trial court to extend its ruling to parties not before it.
CONCLUSION
Service on Gary North was not properly effected under section 415.20 or section 17538.5. His motion to quash service of process was properly granted and the trial court did not abuse its discretion in granting his motion to set aside the default and default judgment as to him. We shall affirm the trial court’s orders as to him. We decline, as a reviewing court, to order the case dismissed as to him, as he requests under section 583.210.
We conclude the trial court did abuse its discretion in extending its rulings, based on its resolution of disputed factual questions, to parties not before it. We shall reverse the orders of the trial court as to Kerrie North and North Aircraft.
DISPOSITION
The trial court orders granting the motion to set aside the default and default judgment and the motion to quash service of summons are affirmed as to Gary North and reversed as to Kerrie North and North Aircraft. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(3).)
We concur:
NICHOLSON , Acting P.J., BUTZ , J.
“(a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served [on behalf of a corporation, unincorporated association or public entity], a summons may be served by leaving a copy of the summons and complaint . . . if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint . . . to the person to be served at the place where a copy of the summons and complaint were left. . . .
“(b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the [individual] person to be served, . . . a summons may be served by leaving a copy of the summons and complaint at the person’s . . . usual mailing address other than a United States Postal Service post office box, in the presence of a . . . a person apparently in charge of his or her . . . usual mailing address other than a United States Postal Service post office box, . . . , who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. . . .”