Court of Appeal:
Attorney Who, As Plaintiff, Personally Served Papers on Defendant Obtained Void Judgment
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed an order vacating the entry of a default and a default judgment obtained by a woman who personally handed a summons and complaint to a man with whom she had engaged in a long-term meretricious relationship, rejecting the plaintiff’s contention that the impermissibility of a party effecting service is a “mere technicality” that should be disregarded.
It did not matter that relief from default was sought more than six months after entry of the judgment—the usual deadline for gaining relief under Code of Civil Procedure §473—Presiding Justice Maria E. Stratton said in the opinion, filed Monday, because a void judgment may be set aside at any time. She endorsed the conclusion reached by Los Angeles Superior Court Judge Rafael A. Ongkeko that “the entry of default itself was void on its face.”
The judgment was entered in an action to quiet title to real property in Sun Valley brought by Pasadena attorney Jane Braugh against the man with whom she had engaged in an illicit relationship, Roy H. Dow. A year and nine months after entry of judgment and nine months after learning of the entry of the judgment, Dow sought relief.
Rejecting Braugh’s contention that under Code of Civil Procedure §473(d), a six-month time limit applies, Ongkeko ruled:
“[F]rom the court’s own records in this case (i.e., Plaintiff’s proof of service), because Plaintiff served the complaint herself and is a party to the action, service is void….Plaintiff does not dispute that she, a party, served the complaint on Defendant. The finding that ‘Plaintiff, having properly pled and served the Complaint’ in the judgment is, therefore, erroneous, on its face, based on the court record without consideration of extrinsic evidence—i.e., the entry of default, on which the default judgment must be based, was void on its face and the court lacked jurisdiction and authority to act to enter the judgment in the first place.”
Baugh argued on appeal:
“The 1969 statutory revamping of the rules for service of process suggests that minor or technical deficiencies in service do not defeat service. Strict compliance is not required. The trial court failed to consider whether there was substantial compliance with service requirements despite any technical defect.”
She cited the California Supreme Court’s 1973 decision in Pasadena Medi-Center Associates v. Superior Court, saying that there, “the defendant deliberately permitted plaintiff to obtain a default judgment after noticing a technical defect in service, just as Dow did here, and the court “found substantial compliance and liberally construed service rules to deny relief.”
“This is not a ‘mere technicality’ as Braugh would like us to hold; this is an issue of fundamental jurisdiction. By merely looking at the judgment roll, primarily Braugh’s proof of service of summons, we conclude the trial court acted without authority in entering default and default judgment against Dow.
She pointed out that Code of Civil Procedure §414.10 provides that service of a summons may be effected by any person who is at least 18 years of age and not a party to the action,” and said:
“Here, on the face of the proof of service of summons, Braugh signed under penalty of perjury that she is ‘not a party to this action’ and attested to having personally served Dow on May 2, 2018 at the Property. It is undisputed that Braugh is a party to the action. Service did not comply with the express requirements of section 414.10.”
Braugh, who was admitted to practice in California in 2001, signed a proof of service in which she declared, under penalty of perjury, that she was “not a party to this action.”
The case is Braugh v. Dow, 2023 S.O.S. 2289.
Thousand Oaks attorney Gerald Peters teamed with Cynthia E. Tobisman and Tina Kuang of the mis-Wilshire appellate firm of Greines, Martin, Stein & Richland in representing Baugh. Glendale practitioner Mark MacCarley acted for Dow.
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