Arnold v. R.A. Atlas

Filed 4/18/07 Arnold v. R.A. Atlas CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Susan Bryant-Deason, Judge. Affirmed.

Erik Rothenberg, in pro. per., for Defendants and Appellants.

Law Offices of Lee A. Garry and Lee A. Garry for Plaintiff and Respondent.

_________________________

R.A. Atlas Corporation, Inc. (Atlas) and Erik Rothenberg (Rothenberg) challenge a default judgment entered against them and in favor of respondent Heather Arnold (Arnold). Because Atlas never filed a notice of appeal from the judgment, we dismiss its purported appeal. As for Rothenberg, we conclude that Arnold properly served the summons and first amended complaint upon him. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Arnold and Rothenberg were shareholders in Atlas. On May 1, 2003, they severed their business relationship, and executed a stock purchase agreement (SPA). The terms of the SPA gave Rothenberg and Atlas the right to file suit against Ehrenreich, Barmache & Burkholder and Larry George Burkholder, Atlass former accountants. Arnold, however, retained an interest in the settlement funds or eventual judgment that resulted from that action.

On September 9, 2005, Arnold filed the instant lawsuit against Atlas and Rothenberg. On September 16, 2005, Arnold filed her verified first amended complaint, the operative pleading, alleging that Atlas and Rothenberg settled the lawsuit against Atlass former accountants without Arnolds input or permission. She sought damages representing her share of the settlement amount.

Arnolds process server attempted to serve the summons and first amended complaint upon Atlas and Rothenberg by personal service at Atlass business address and both Atlas and Rothenbergs usual place of mailing, 4712 Admiralty Way, Suite 233, in Marina Del Rey (the Admiralty Way address). This address is a non-United States Postal Service mail box (a United Parcel Service mailbox).[1] Following three unsuccessful attempts at personal service, service was effected by substituted service: the summons and first amended complaint were left with Chuck Murayama (Murayama), the person in charge of the mailbox facility, and a copy of the documents were mailed to both Atlas and Rothenberg at the same address.

Because they never filed an answer to Arnolds first amended complaint, Atlas and Rothenbergs defaults were entered on January 12, 2006. A default judgment was entered against them on March 3, 2006.

On April 12, 2006, Rothenberg timely filed his notice of appeal from the judgment.

DISCUSSION

I. Atlass Appeal is Dismissed

Arnold filed a motion to dismiss the instant appeal on the grounds that (1) Atlas never filed a notice of appeal; (2) Atlas, a corporation, may not represent itself; and (3) appellants opening brief and appendix violate various California Rules of Court. We conclude that Atlass appeal must be dismissed; however, while we agree that Rothenbergs appendix is problematic and his opening brief fails to comply with the appellate rules, we nonetheless reach the merits of his appeal.

California Rules of Court, rule 8.100(a)(1) (formerly rule 1(a)(1)) provides: To appeal from a superior court judgment or an appealable order of a superior court . . . , an appellant must serve and file a notice of appeal in that superior court. The appellant or the appellants attorney must sign the notice.

Here, the notice of appeal only indicates that Rothenberg is the appealing party. Neither Atlas nor its attorney signed the notice of appeal. Even the notice designating record on appeal indicates that Rothenberg is the sole appellant. While we must liberally construe a notice of appeal, it is well-established that: Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from. [Citation.] (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) Because Atlas did not file a notice of appeal, it cannot be deemed an appellant in this matter.

Even if Atlas had been identified as an appellant, it still cannot proceed herein. As a corporation, Atlas cannot appear in propria persona; it must be represented by counsel. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101-1102.) Because Atlas is not represented by counsel in connection with the arguments advanced on its behalf in the appellants opening brief, Atlass purported appeal must be dismissed.[2]

In the reply brief, Rothenberg argues that because Atlas was not properly served, it need not be represented by counsel. This argument is not well-taken. Aside from the fact that it is unsupported by any legal authority (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050), it is unfounded. Nothing in the case law suggests that a corporation only is required to retain counsel following proper service. Rather, in all matters in court,[3]a corporation must act through a licensed attorney. (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd., supra, 99 Cal.App.4th at p. 1102.)

With respect to Arnolds request that Rothenbergs appeal be dismissed for failure to comply with numerous California Rules of Court, we agree that the appeal is deficient. Rothenberg filed an appellants appendix without filing and serving notice of his election to proceed by appendix instead of by clerks transcript. (Cal. Rules of Court, rule 8.124(a)(1).) In fact, Rothenbergs notice designating record on appeal specifically indicates that he is electing to proceed with a clerks transcript.[4] The appellants appendix contains a host of irrelevant postjudgment documents, and, given the absence of exceptional circumstances, we will not consider them. (Peoples Home Sav. Bank v. Sadler (1905) 1 Cal.App. 189, 193; Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  330-333, pp. 371-375.) In fact, the record that Rothenberg does supply is inadequate. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 13201321.) And, as discussed specifically below, Rothenbergs appellate briefs fail to sufficiently cite to the appellants appendix and neglect to offer legal authority in support of various propositions. (Sprague v. Equifax, Inc., supra, 166 Cal.App.3d at p. 1050.)

Instead of dismissing his appeal, however, we will reach the merits of his arguments. In doing so, we will not consider postjudgment documents and we will not make Rothenbergs legal arguments for him. (Sprague v. Equifax, Inc., supra, 166 Cal.App.3d at p. 1050.) His election to act as his own attorney on appeal does not entitle him to any leniency as to the rules of practice and procedure; otherwise, ignorance unjustly is rewarded. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984985; Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208209.)

II. The Trial Court Properly Entered a Default Judgment Against Rothenberg

A. Standard of Review

At issue is whether Arnold properly effected service of the summons and first amended complaint upon Rothenberg. Because the facts are undisputed and we are presented with a question of law, as the parties agree, we review this issue de novo.

B. The Summons and First Amended Complaint Were Properly Served

Section 415.20 provides, in relevant part: (b) If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the persons dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, 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. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

Arnolds service of the summons and first amended complaint comports with these statutory requirements. The Admiralty Way address is Rothenbergs usual mailing address, evidenced by his application for mailbox rental.[5] As such, he could be served at that address. Following three unsuccessful attempts at personal service, Arnolds process server effected substituted service, by leaving a copy of the summons and first amended complaint with the person in charge of the office and by mailing a copy of the same documents. (See Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1391-1392 [ordinarily, two or three attempts at personal service at a proper place satisfies the reasonable diligence requirement].) The letter of the statute has been met.

Rothenberg claims that it would have been impossible for Arnold to effect personal service upon him at the Admiralty Way address; after all, it is just a private mailbox service location. This argument is not compelling. Because section 415.20, subdivision (b) authorizes substituted service at a defendants usual mailing address, including private mailbox addresses, service effected in such a manner is proper. ( 415.20, subd. (b); see also Ellard v. Conway (2001) 94 Cal.App.4th 540, 546.)

Rothenberg further argues that service was ineffective because Murayama was never authorized to accept service of process. This fact is irrelevant. Regardless of whether Rothenberg authorized Murayama to accept service, it is undisputed that he was the person in charge of the private mailbox location at the time Arnold effected substituted service. (Ellard v. Conway, supra, 94 Cal.App.4th at pp. 546547.) Pursuant to section 415.20, subdivision (b), Arnold was permitted to leave the summons and first amended complaint with him.

Rothenberg also asserts because service of process cannot be made at a United States post office box, neither can it be made at a private post office box. We disagree. The plain language of section 415.20, subdivision (b) authorizes substitute service at a defendants usual mailing address, which includes a private/commercial post office box. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 546.) Had the [L]egislature intended that service be effective only at mailing addresses other than any post office box, it would have omitted the descriptive language United States Postal Service preceding post office box. (Ibid.)

The fact that Arnold never attempted personal service at Rothenbergs home address is irrelevant. Nothing in the Code of Civil Procedure mandates attempted service at a residence; rather, the statutory scheme provides viable options to effect proper service of process upon a defendant. The law does not single out, in any particular order of preference, one specified location over others for service.

DISPOSITION

The purported appeal by Atlas is dismissed. The judgment is affirmed. Arnold is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, Acting P. J.

DOI TODD

_____________________, J.

CHAVEZ

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Analysis and review provided by Carlsbad Property line attorney.

[1] Because Rothenbergs application for delivery of mail through agent is part of the record, we need not take judicial notice of it; Rothenbergs request for judicial notice is denied.

[2] It follows that Rothenbergs request for judicial notice is denied. The fact that Rothenberg is Atlass registered agent is irrelevant; Atlas is not a proper appellant.

[3] An exception to this general rule is set forth in Code of Civil Procedure section 116.540, subdivision (b) which provides: [A] corporation may appear and participate in a small claims action only through a regular employee, or a duly appointed or elected officer or director, who is employed, appointed, or elected for purposes other than solely representing the corporation in small claims court. Needless to say, that exception is inapplicable here.

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[4] On January 29, 2007, Rothenberg attempted to cure this defect by filing a motion to augment the record. In that motion, he asserts that he mistakenly indicated in his notice of appeal that he intended to proceed by clerks transcript, and he did not realize this error until he prepared his opening brief. Given that we have overlooked this issue and reached the merits of the appeal, the motion to augment the record is moot in this respect.

[5] We also point out that Rothenberg used the Admiralty Way address as his address for purposes of this appeal.