County of Alameda v. Ottovich

Filed 3/27/07 County of Alameda v. Ottovich CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant Harvey G. Ottovich (Ottovich) challenges, on various grounds, the trial courts entry of default judgment in favor of plaintiff and respondent County of Alameda (County) in respondents action against him for ejectment, nuisance, trespass and quiet title. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The County purchased a parcel of land from Union Pacific Railroad in December 1997. This parcel is known as the Alameda County Niles Canyon Transportation Corridor (Niles Canyon parcel) and is located in the City of Fremont, Alameda County. Ottovich owns real property located at 37255 Mission Boulevard in the City of Fremont. Ottovichs property abuts and is adjacent to the Niles Canyon parcel.

On March 11, 2004, the County wrote to Ottovich advising him of an encroachment, and requesting he take immediate steps to remove it and contact the County to discuss a time-frame for its removal. After receiving no response, the County filed a complaint against Ottovich on March 25, 2004. The County alleged debris, fencing and wooden or other structures on Ottovichs property encroached onto its Niles Canyon parcel, and asserted causes of action for ejectment, continuing trespass, continuing nuisance, negligence, quiet title and declaratory relief.

On May 28, 2004, the County filed an Ex Parte Application and Supporting Declaration for Order Allowing Service by Publication, pursuant to Code of Civil Procedure section 415.50.^[1] In the declaration, Deputy County Counsel Raymond MacKay stated under penalty of perjury he wrote to Ottovich about the encroachment via certified mail to Ottovichs Mission Boulevard property and also to Ottovichs other address at 36224 Pecan Court in Fremont. Both letters were returned as Unclaimed.

MacKay declares he included the Pecan Court address because public records indicated Ottovich resides there in the residence formerly owned by his father, now deceased. MacKay states correspondence in the court file of a Conservatorship matter involving Ottovichs fathers estate show Ottovichs address as Pecan Court. MacKay called Ottovichs telephone number as listed on one of those letters, left a message on the answering machine, but did not receive a return call.

MacKay also states he retained two process servers to attempt personal service on Ottovich at his Fremont addresses. A declaration of diligence prepared by process server Eric Francis shows Francis attempted service on Ottovich at 36224 Pecan Court nine times between March 26th and April 19th, 2004. The times of attempted service varied from as early as 8:10 a.m. to as late as 8:45 p.m. Francis stated on most occasions there was no answer at the door and noted mail for Candi Ottovich in the mailbox on one occasion. On the last occasion, Francis knocked on the door and the occupant turned off lights inside and refused to come to the door. A declaration of diligence prepared by process server Leonard Leavitt shows he attempted personal service on Ottovich at 37255 Mission Boulevard on April 22, 2004, but was advised by a resident Ottovichs son lived there but Ottovich lived on Pecan Court. Leavitt tried to serve Ottovich seven times at the Pecan Court address between April 23 and May 10, 2004. The times of attempted service varied from as early as 9:25 a.m. to as late as 7:35 p.m. Leavitt stated on each occasion there was no answer at the door but the same vehicles were parked in the driveway. On April 27, 2004, Leavitt states he saw someone leave the house and move quickly to a grey van parked in the driveway. Leavitt called to him as Harvey Ottovich, but before Leavitt could reach the person or the van, the person drove quickly away. Leavitt went to the house and noticed a light that had been on in the rear of the house had been turned off and it appeared this was done by someone inside the house. There was no answer at the door.

MacKay also stated in his declaration he telephoned the attorney of record for the Ottovich family in the conservatorship matter, Jerome Blaha, and left a message asking if Blaha would be willing to accept service of the complaint and summons on behalf of Ottovich. MacKay left his name and number with Blahas receptionist but received no return call.

The trial court issued its order allowing service by publication on May 28, 2004. The order directed: Summons shall be published in a named newspaper, published in this State, that is most likely to give actual notice to the party to [be] served; [] . . . A copy of the Summons, the Complaint, and this Order for publication shall be forthwith mailed to defendant Ottovich at the Mission Boulevard address and the Pecan Court address mentioned in the Countys application. Subsequently, summons was published in the Daily Review, a newspaper of general circulation published in Hayward, on June 18th and 25th, and July 2nd and 9th, 2004.

On August 17, 2004, Ottovich filed in pro per a Notice of Motion and Motion to Quash Service of Summons and set a hearing on the motion for October 15, 2004. Ottovich alleged service by publication was defective because the County at all times knew his whereabouts yet did not attempt to serve him by mail before resorting to service by publication. The trial court, the Honorable Judith Ford, published a Tentative Ruling, which was uncontested. Accordingly, on October 15, 2004, the trial court denied Ottovichs motion to quash service, reasoning that [u]nder the totality of the circumstances, [the County] was not required to attempt service by mail before requesting leave to serve by publication.

On October 25, 2004, Ottovich filed in pro per a Notice of Motion and Motion to Reconsider and set a hearing for the motion on December 7, 2004. In his motion for reconsideration, Ottovich contended service by publication was invalid because the County made no effort to obtain service through the county sheriff before service by publication. Ottovich also reiterated his earlier contention service by publication was invalid because the County failed to attempt service by mail before service by publication. The trial court, the Honorable James A. Richman, published a Tentative Ruling, which again was uncontested. Accordingly, the trial court affirmed the Tentative Ruling and denied Ottovichs motion to reconsider. Ottovich never filed an answer to the complaint after the trial court denied his motion for reconsideration.

On December 27, 2004, the County entered default judgment against Ottovich. On January 18, 2005, Ottovich, now represented by counsel, filed a Notice of Motion and Motion to Set Aside Default and for Leave to File a Demurrer, and set a hearing for February 14, 2005. The trial court, the Honorable James Richman presiding, heard argument on the motion at a hearing on February 17, 2005. On February 22, 2005, the trial court entered an order denying the motion to set aside default and dropping the demurrer from the calendar because it was erroneously allowed to be filed after default had been entered.

Subsequently, a prove-up hearing on the default judgment was held on June 9, 2005, before the Honorable George C. Hernandez. Before the hearing the County submitted a declaration under penalty of perjury by Gregory Hollfeder, Associate Land Surveyor with the Countys Public Works Agency, who undertook a field survey and determined that [a]pproximately 190 linear feet of board fence and portions of two wooden structures extend southerly from the Ottovich parcel and lie on what is currently County property. Hollfeders declaration was accompanied by a property description and plot map of the Niles Canyon parcel. The County also submitted a declaration by John Fenstermacher, Chief of the Real Estate Division of the Countys Public Works Agency, who stated he supervised the Countys acquisition of the Niles Canyon parcel from Southern Pacific in 1997, that the County had denied Ottovichs request to buy the encroachment area, and that the County intended to develop the Niles Canyon parcel to include the construction and operation of the Niles Canyon Historic Railroad terminus for passenger access to the Niles business district. Additionally, the County submitted the declaration of Carol Souza, a Code Enforcement Officer II with the County. Souza stated that in July 2000 she inspected Ottovichs Mission Boulevard property. Souza determined that various structures, including a tool shed and bedroom addition that were physically attached to larger structures on Ottovichs property, had been erected without the required permit approvals and stood on County property. Souza issued an Abatement Order in July 2000, instructing Ottovich, among other things, to obtain all permits required for demolition of unlawful portion of structure and its reconstruction. Souza declared the encroaching structures were never removed.

At the prove-up hearing, Hollfelder, Fenstermacher and Souza were sworn as witnesses and all informed the trial court the information contained in their declarations was true of their own personal knowledge. The trial court admitted the declarations into evidence and announced judgment. The Supplemental Default Judgment filed on June 9, 2005, reflects the trial courts oral judgment and awarded the County ejectment, quiet title, abatement of nuisance and a permanent injunction enjoining Ottovich from any further encroachments. Notice of Entry of Judgment was served on June 21, 2005, and Ottovich filed Notice of Appeal on August 8, 2005.

DISCUSSION & ANALYSIS

A. Standards of Review

[A]n order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citation.] (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error. [Citation.] (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)

Whether the trial court erred in finding respondent fully complied with the statutory procedures for service by publication is a factual question. (Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 742 (Transamerica).) We review such a factual question for substantial evidence and any conclusion based thereon for abuse of discretion. (Fremont Indemnity Co. v. Fremont General Corp. (2006) 143 Cal.App.4th 50, 63.) Substantial evidence has been defined as evidence . . . [of] ponderable legal significance that is reasonable in nature, credible, and of solid value. (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1583.)

We review the trial courts refusal to grant relief from default under section 473 for an abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) [W]hile section 473 of the Code of Civil Procedure should be liberally construed to meet the ends of justice [citation], a decision of a trial court on a motion under that section will not be disturbed on appeal unless there is a plain abuse of judicial discretion. [Citations.] (Estate of Nelson (1954) 127 Cal.App.2d 732, 735.) Moreover, it is the province of the trial court to determine the credibility of the declarants and to weigh the evidence. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.) However, whether the default and default judgment complied with constitutional and statutory requirements are questions of law as to which we exercise independent review. (Ibid.)

B. Service by Publication

1. Due Diligence

Section 415.50 provides in pertinent part: A summons may be served by publication if upon affidavit it appears to the satisfaction of the court in which the action is pending that the party to be served cannot with reasonable diligence be served in another manner specified in this article. . . . [] . . . [] The court shall order the summons to be published in a named newspaper, published in this state, that is most likely to give actual notice to the party to be served. . . . The order shall direct that a copy of the summons, the complaint, and the order for publication be forthwith mailed to the party if his or her address is ascertained before expiration of the time prescribed for publication of the summons. (Code Civ. Proc., 415.50 (a)-(b) [italics added].)

Ottovich appears to contend the trial court erred in its factual determination respondent fully complied with the statutory procedures for service by publication. He suggests the Countys process servers did not exercise due diligence because, had they made further inquiry, they would have realized he was physically unable to answer the door and that he was not purposefully avoiding service. However, Ottovich made no showing in either his motion to quash service of summons, or in his motion for reconsideration of the denial of that motion, how any physical or medical disability prevented him from accepting service of process at his home. Accordingly, due to Ottovichs failure to present the trial court with timely evidence of any alleged physical or medical condition, we decline to disturb the trial courts due diligence finding on account of such evidence because it is not properly before us on appeal (Clemente v. Amundson (1998) 60 Cal.App.4th 1094, 1099, fn. 6 [appellant may not rely on evidence outside the record in support of argument on appeal]; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [same]), or, alternatively, because Ottovich waived the point below, (Baugh v. Garl (2006) 137 Cal.App.4th 737, 746 [Points not raised in the trial court may not be raised for the first time on appeal.]).

Ottovich also contends respondent failed as a matter of law to comply with the prerequisites in filing its application for an order permitting service by publication. As we understand it, Ottovichs contention is that the County cannot show due diligence, as a matter of law, because section 415.50 requires all other possible means of service of process must be attempted before service by publication is warranted. Thus, he contends service by publication is invalid because the county failed to demonstrate it attempted to serve him by mail or to obtain service through the County Sheriff before seeking service by publication.

None of the authorities Ottovich relies on support the proposition that all alternate means of service must be exhausted before service by publication may be employed. Thus, in Olvera v. Olvera (1991) 232 Cal.App.3d 32 (Olvera), the appellate court held service by publication was invalid and the judgment void because the affidavit in support of the application for permission to accomplish service by publication was both deficient on its face and materially misleading, and [] the Olveras not only failed to show due diligence but failed to exercise it. (Id. at p. 41 [italics in original].) However, the plaintiffs in Olvera made no real effort to discover defendants whereabouts, so that the court concluded their entire showing below utterly fails to establish any diligence whatsoever and no concern for providing actual noticelet alone the high standard required before service by publication may be authorized. (Id. at 43.)

Ottovichs reliance on Transamerica, supra, 34 Cal.App.4th 740 is similarly misplaced. There, defendant was not a resident of California when the operative complaint was filed, but he maintained a post office box in California at that time. Yet [d]espite respondents knowledge of appellants post office box, . . . respondent indicated on its application to serve by publication it was unable to serve appellant by mail (id. at p. 742) and stated instead, Defendants address unknown. (Id. at p. 743.) On these facts the appellate court concluded respondent intentionally or unintentionally falsified the application for order for publication of summons by stating service could not be made . . . by mail [because although] respondent did not possess a residence or business address for appellant[,] . . . respondent did possess knowledge of a post office address for appellant and knew he was receiving mail at that post office address. (Id. at p. 744.) Accordingly, the court held as a matter of law respondent failed to comply with the prerequisites in filing its application for an order allowing service by publication. (Id. at 742.)

Neither Olvera nor Transamerica hold that a plaintiff must exhaust all alternate means of service in order to show the due diligence necessary for service by publication.^[2] Rather, in both cases the plaintiff had either deliberately or negligently overlooked information which would have allowed plaintiff to effect service by a means other than publication. In Olvera, the plaintiff failed toemploy[] any of the usual means to find defendant, such as enquiries of friends and relatives or a search of telephone directories, which would have led plaintiff to discover defendants address of residence and effect personal service there. (Olvera, supra, 232 Cal.App.3d at p. 42.) In Transamerica, defendants out of state address was unknown, so personal service could not be effected at his residence, but plaintiff failed to effect service by mail at defendants known California post office box where he continued to receive mail. (Transamerica, supra, 34 Cal.App.4th at p. 746.)

Indeed, as the Olvera court noted, it is not ignorance of defendants whereabouts that permits resort to service by publication, but the inability to accomplish personal service despite the exercise of reasonable diligence. (Olvera, supra, 232 Cal.App.3d at p. 42.) Stated otherwise, the showing of diligence in a given case must rest on its own facts and no single formula nor mode of search can be said to constitute due diligence in every case. [Citation] (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1138 (Kott) [service by publication invalid where affidavit in support was deficient and misleading because plaintiff knew defendant was a Canadian citizen yet chose to ignore obvious avenues for obtaining [defendants address in Canada]].) Here, unlike the situation in Olvera, Transamerica or Kott, the record contains nothing to suggest the Countys affidavit in support of its request for service by publication was deficient, misleading or falsified, or to suggest the County deliberately or negligently overlooked information which would have permitted it to serve Ottovich by a means other than by publication.^[3] Rather, the record shows the County made the necessary inquiries via the County Recorders Office and court conservatorship records to discover two addresses for Ottovich, wrote to him by certified mail at both addresses before filing suit (both letters were returned unclaimed), attempted personal service on him at both addresses, focused its efforts on the Pecan Court address after it learned Ottovich did not live at the Mission Boulevard address, and attempted personal service on Ottovich at the Pecan Court address on no less than sixteen separate occasions. On these facts, we conclude the trial court did not abuse its discretion in concluding the County demonstrated due diligence.

2. Failure to Comply with Order of Publication

Ottovich also asserts service by publication is invalid because the County violated the trial courts order of publication. First, he contends the County failed to mail him a copy of the summons, complaint and order for publication as required under the trial courts order of publication. Ottovich asserts the Countys willful disobedience of the courts order of publication amounts to contempt of court and unclean hands.

However, on September 22, 2006, after Ottovichs opening brief was filed, the County filed a motion to augment the record on appeal to include a copy of the proof of service in question. The County explained it did not attempt to add the Proof of Service to the appellate record at the time of designation because there was no indication compliance with the courts order regarding publication would be an issue on appeal, Ottovich having failed to raise it below. We granted the Countys motion to augment the record on October 11, 2006. The Proof of Service shows it was filed in Alameda County Court on June 2, 2004. In it, Judith Martinez, an employee of the Office of County Counsel, states she mailed a copy of the summons and complaint, order allowing service by publication, and other case papers to Ottovich on May 28, 2004, by overnight Federal Express service. Ottovichs reply brief, filed by a different counsel than the one who filed his opening brief, failed to address the issues of contempt and unclean hands and so those contentions are deemed abandoned. (Los Angeles Equestrian Center, Inc. v. City of Los Angeles (1993) 17 Cal.App.4th 432, 450 [appellants failure to discuss the theories on appeal constitutes an abandonment].) Nevertheless, based on the proof of service provided in the augmentation of record, we note the County mailed the summons and complaint, and the order of publication, in full compliance with the trial courts order in that regard. Accordingly, the County is guilty of neither contempt nor unclean hands.

Ottovich also contends the County violated the trial courts order of publication by publishing in the Hayward Daily Review, which he asserts was not the paper most likely to give him actual notice of the lawsuit. Ottovich provides data for various newspapers delivered in the area of his address showing the average circulation for the Daily Review is much lower than papers such as the San Francisco Chronicle or the San Jose Mercury News. However, Ottovich presented neither his contention nor his supporting data in the court below. Therefore, he has waived the right to present it here on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 [It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. [Citations]].)

C. Relief from Default under Section 473

Ottovich contends the trial court erred by denying his motion to vacate default judgment under section 473. First, he contends the trial court should have set aside the default judgment under section 473, subdivision (d),^[4]because the judgment is void for lack of proper service. We reject this contention because, as discussed above, service by publication was proper in this case.

Ottovich also contends the trial court should have granted him mandatory relief from default pursuant to section 473, subdivision (b), which states in pertinent part: Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. ( 473, subd. (b) [italics added].) However, the record shows Ottovich did not request relief from default under the mandatory provision of section 473 in the trial court. This is borne out by the fact his motion was not accompanied by his attorneys sworn affidavit attesting to her mistake, inadvertence, surprise or neglect. Indeed, the record indicates Ottovich was not represented by counsel until he sought relief from default, so it is hard to see how such default could have been the fault of counsel.

Rather, the record shows Ottovich sought relief from default pursuant to the trial courts discretionary powers under section 473: The court may, upon any terms as may be just, relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. ( 473, subd. (b) [italics added].) The only evidence of mistake, inadvertence, surprise, or excusable neglect put forward in the motion to set aside default is in Ottovichs declaration, which states in pertinent part: Up until this point I was acting as my own attorney and did not realize that there was a time limit within which I had to file a responsive pleading to the complaint. However, mere ignorance of the law is not excusable neglect within the meaning of discretionary relief under section 473, especially where, as here, elementary legal research would have revealed the need to file a responsive pleading. (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238 [no abuse of discretion in denying motion to set aside default considering the simple and obvious point of law about which defendants claim to have been mistaken and the elementary legal research which would have cleared it up].) After all, Ottovich managed to prepare and submit a motion to squash summons and a motion for reconsideration after the former was denied, each with a memorandum of points and authorities in support. Accordingly, we cannot say the trial court abused its discretion in denying Ottovichs motion for relief from default.

Ottovich also attacks the trial courts denial of his motion to set aside default judgment on the grounds Judge Richman was biased against him. Ottovich bases his claim of bias on remarks by Judge Richman at the hearing on the motion to set aside default.^[5] The County contends Ottovich has waived his claim of bias by failing to take any action to disqualify Judge Richman for cause under Code of Civil Procedure section 170.3, subdivision (c).^[6]Ottovich counters that his claim of judicial bias is not waived by a failure to object in the trial court, relying principally on Catchpole v. Brannon (1995) 36 Cal.App.4th 237 (Catchpole).

In Catchpole, supra, 36 Cal.App.4th 237 the plaintiff in a sexual harassment case contended on appeal that the judgment against her, entered after an eight-day bench trial, was the product of gender bias on the part of the trial judge. In rejecting the respondents contention that the appellants bias claim had been waived by her failure to raise it in the trial court, the appellate court reasoned that [f]ew more daunting responsibilities could be imposed on counsel than the duty to confront a judge with his or her alleged gender bias in presiding at trial. The risk of offending the court and the doubt whether the problem could be cured by objection might discourage the assertion of even meritorious claims. Requiring the issue to be raised at trial could therefore have the unjust effect of insulating judges from accountability for bias. [Citation.] . . . [T]he rule that an appellate court will not consider points not raised at trial does not apply to [a] matter involving the public interest or the due administration of justice. [Citation.] The issue of judicial gender bias obviously involves both a public interest and the due administration of justice. (Id. at p. 244.)

Catchpoles rationale, is inapposite here. First, the type of bias alleged in the present case differs both in substance and in degree from the blatant and pervasive gender bias evidenced by the trial judge in Catchpole. Second, and more importantly, Catchpole involved bias on the part of the judge assigned to the case for trial, and nothing in Catchpole indicates the complaining party had any notice whatsoever of the judges bias before the start of the trial. Here, by contrast, Ottovich bases his claim of bias on comments made by Judge Richman in response to his own counsels remark to the judge, You know my client very well. Accordingly, if Ottovich believed Judge Richman harbored any bias against him based on previous court appearances, he had ample opportunity to raise such a claim below, either via a peremptory challenge pursuant to section 170.6, or by written objection pursuant to section 170.3, subdivision (c)(1). Having failed to do so, Ottovich has waived the issue. (Roth v. Parker (1997) 57 Cal.App.4th 542, 548 [nonstatutory claim that final judgment is constitutionally invalid due to judicial bias may be raised on appeal from judgment, but in civil cases, issue must be raised at earliest opportunity or will be considered waived].)

DISPOSITION

The judgment is affirmed. The County is awarded costs on appeal.

_________________________

Parrilli, J.

We concur:

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McGuiness, P. J.

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Pollak, J.

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^[1] Further statutory references are to the Code of Civil Procedure unless otherwise noted.

^[2] The requirement for service by publication is the party to be served cannot with reasonable diligence be served in another manner specified in this article[,]not that the party cannot be servied in any other manner. ( 415.50, subd. (a).) Thus, Ottovichs construction would conflict with the plain language of the statute. (See, e.g., Gunther v. Lin (2006) 144 Cal.App.4th 223, 233 [noting that in questions of statutory interpretation, courts must begin with the language of a given statute as the purest expression of legislative intent].)

^[3] Other cases cited by Ottovich are even further off point. In Watts v. Crawford (1995) 10 Cal.4th 743, 745, the appellate court considered the issue whether a finding of due diligence permitting service by publication upon defendant was equivalent to a finding the defendant was not amenable to process of the court for purposes of the tolling provision of section 583.240 [computation of time for service of summons]. Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306 (Mullane), concerns the constitutional sufficiency of notice to beneficiaries on judicial settlement of accounts by the trustee of a common trust fund established under the New York Banking Law where the only notice to out-of-state beneficiaries of the trust fund was by publication in a local newspaper in conformance with New York Banking Law. (Id. at pp. 307, 309.) The high court held such notice is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. (Id. at p. 320 [italics added].) Here, unlike Mullane, the County did not employ service by publication as the first and only method of notice to Ottovich, and therefore no due process concerns exist.

^[4] Section 473, subdivision (d) states: The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

^[5] The exchange in question was initiated by Ottovichs counsel, who remarked, You know my client very well. You know his brother. Theyre very unconventional people. Judge Richman remarked Ottovichs brother had appeared before him in a prior case and had unsuccessfully challenged him for cause. Judge Richman stated: I dont hold grudges. I call it the way I see it.

^[6] Ottovich also did not file a peremptory challenge against Judge Richman under Code of Civil Procedure section 170.6.