Filed 2/10/22 HFL Law Group v. Schermer CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Anthony Mohr, Judge. Affirmed.

Joshua R. Furman Law Corp. and Joshua R. Furman for Defendant and Appellant.

HFL Law Group, James C. Fedalen; KFB Rice, Michael J. Fedalen; Law Offices of David A. Pash and David A. Pash for Plaintiff and Respondent.

_______________________

Defendant and appellant Linda Schermer (Schermer) appeals an order denying her motion under Code of Civil Procedure section 473, subdivision (d), to vacate a default judgment obtained by plaintiff and respondent HFL Law Group, APC (HFL).[1]

We affirm the trial court’s order denying Schermer’s motion to vacate the default judgment. That motion was the second time that Schermer advanced the argument that she had not been properly served with process. She first made this argument in an earlier, pre-judgment motion to vacate the entry of default. The trial court denied Schermer’s earlier motion and afterwards entered a default judgment. Schermer failed to appeal the default judgment. Under ordinary rules of appellate procedure and res judicata, Schermer—having failed to appeal after losing her pre-judgment challenge to service—was bound by the trial court’s prior ruling that she had been properly served. She cannot relitigate the same issue in a post-judgment motion.

FACTUAL AND PROCEDURAL BACKGROUND

A. The entry of default and the motion to set it

aside.

On August 2, 2018, HFL, a law firm, filed suit against Schermer individually, and in her capacity as trustee of certain family trusts, seeking to recover fees and costs under a written retainer agreement. On August 24, 2018, HFL served Schermer in her individual capacity by substituted service.

On October 5, 2018, HFL obtained entry of Schermer’s default.

On December 31, 2018, Schermer filed a motion pursuant to section 473.5 to set aside the entry of default to enable her to defend the action.[2] Schermer argued, among other things, that the proof of service of summons and complaint “is provably fraudulent because [she] can prove that no service attempts were made at her residence at the dates and times indicated in the proof of service.” She stated that she reviewed the telephone records from her apartment building’s intercom during the relevant time period and also reviewed the building’s security cameras, and that no calls were made from the intercom at the times indicated on the proof of service, and that no process server approached the building entrance at the times indicated.

In opposition, HFL contended that it had properly served Schermer by substituted service at her business address, following three unsuccessful attempts to personally serve her at her home address. HFL also filed evidentiary objections. The opposing declaration of HFL’s attorney, James Fedalen, stated, among other things, that upon receiving Schermer’s motion to set aside the default, he propounded discovery for copies of the video tape and of the phone bill and she had failed to respond. HFL also pointed out that after this action was filed, Schermer filed a petition for arbitration of the fee dispute with the Los Angeles County Bar, which determined that Schermer’s petition was untimely.

B. The trial court’s ruling denying Schermer’s

motion to vacate the entry of default.

On March 1, 2019, the matter came on for hearing. The trial court (Judge Fujie) sustained HFL’s evidentiary objections and denied Schermer’s motion to vacate entry of default. The trial court ruled, among other things: the affidavit of reasonable diligence accompanying the proof of service stated that the process server attempted to serve Schermer at her residence on three separate occasions and there was no response on each of those three occasions; the proof of service on its face indicated that the process server complied with statutory requirements; and Schermer lacked any admissible evidence to support her claim that she was not contacted by the process server.

C. Entry of the default judgment.

On May 17, 2019, following a default prove-up on HFL’s written declaration, the trial court entered a default judgment against Schermer in the sum of $502,054.93. Schermer did not appeal the default judgment.

D. Schermer’s motion to vacate the default

judgment.

On November 1, 2019, nearly six months after entry of the default judgment, Schermer filed a motion to vacate the default judgment pursuant to section 473, subdivision (d).[3] The order denying the motion is the subject of this appeal.

In moving to set aside the default judgment, Schermer argued that a void judgment may be vacated at any time, and the judgment was void for lack of personal jurisdiction over her. Schermer’s motion to vacate the default judgment reiterated the arguments she made on the previous motion to vacate the entry of default. Schermer asserted “the evidence shows that no attempts at personal service were made before substitute service was attempted. . . . Schermer has documentary evidence that the personal service attempts never occurred in the form of telephone records and video footage. . . . In the face of Schermer’s actual proof that the purported personal service attempts in the proof of service did not occur, the substitute service is per se invalid because Plaintiff cannot establish that its process server undertook reasonable diligence to personally serve Schermer. [¶] Having failed to comply with the statutory requirements, [HFL] cannot claim this Court has jurisdiction over Schermer and the judgment thus obtained is void.”

In opposition, HFL argued that Schermer’s election not to appeal waived any right to challenge the validity of the default judgment by way of a post-judgment motion for relief under section 473, subdivision (d). HFL also contended that Schermer made a general appearance in the action and thus waived any objection to the court’s exercise of personal jurisdiction over her; and that the motion was nothing more than an improper motion for reconsideration that failed to comply with section 1008. HFL also filed extensive objections to Schermer’s declaration and supporting exhibits.

E. The trial court’s order denying Schermer’s

motion to vacate the default judgment.

After hearing arguments of counsel and taking the matter under submission, the court (Judge Mohr) issued an order on November 2, 2020 denying Schermer’s motion to vacate the default judgment. The order stated:

“The initial issue here is whether the instant motion to vacate default judgment is a renewed motion to vacate entry of default subject to the requirements of CCP § 1008. The Court finds that it is. Defendant argues that the motion is not subject to CCP § 1008 because it is brought under CCP § 473(d), rather than CCP § 473.5. Generally, however, courts are concerned only with the nature of the relief sought, not the statutory grounds under which it is sought. . . . The two motions seek the same relief based on the same facts – relief from default and default judgment on the grounds that Defendant was not served with a copy of the complaint. [¶] . . . . [¶] This motion is a renewed motion to vacate default that has failed to comply with CCP § 1008. Schermer insists this is a motion under CCP §473(d), not 473.5. The name of the motion does not control. Defendant is asking this court to rule on the same matter that a colleague previously ruled on. [Citations.] The code sections may differ, but the instant motion and the motion made before Judge Fujie seek the same relief. [¶] . . . . [¶] At bottom, Schermer lost her first motion to vacate the default. Plaintiff reduced the case to a judgment. Schermer failed to appeal from the judgment. Schermer is moving to set aside the judgment and vacate the default based on the same facts. This is too little, too late.

“Turning to the question whether defendant was properly served, the proof of service of the complaint indicates that Defendant was served by substitute service at her usual mailing address (a private mailbox store) after failed attempts at personal service. Defendant declares that she was never served with the complaint. Defendant presents documentation in the form of call logs to the intercom and video stills from the times that the process server claimed he had attempted personal service. (Decl. Shermer, Exhs. B & C.) Defendant presented this evidence, or similar evidence, in reply to the first motion to vacate. The Court sustained evidentiary objections to it, and because of that fact, defendant claims the court did not rule on the merits, thus allowing the defense to try again. The court disagrees. If this argument were the law – if excluding evidence meant the losing party gets a second chance – then any adverse result would be subject to a second try unless, during the original proceeding, not one objection was made or sustained. That cannot be the law. [¶] Based on the foregoing, Defendant’s motion to vacate the judgment is DENIED.” (Italics added.)

On November 9, 2020, Schermer filed a timely notice of appeal from the November 2, 2020 order denying her motion to vacate the default judgment. The order is appealable as an order denying a statutory motion to vacate a judgment. (9 Witkin, Cal. Procedure (6th ed. 2021) Appeal, § 217.)[4]

DISCUSSION

On appeal, Schermer contends that the trial court erred in denying her motion to vacate the default judgment. She argues that: the trial court was not correct in denying her motion for failure to comply with section 1008; an order giving effect to a void judgment is appealable even if the void judgment is itself appealable; the evidence was undisputed that Schermer was never served; and the default judgment and underlying default must be vacated.

We affirm the trial court’s denial of Schermer’s motion and reject Schermer’s appellate arguments. Schermer’s failure to appeal the judgment after advancing a challenge to the service of process has the effect of binding Schermer to the trial court’s pre-judgment ruling rejecting Schermer’s challenge. Nothing in California law or procedure gives Schermer the right to make her argument a second time in the context of a post-judgment motion to vacate the judgment.

If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1315-1316; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 2:13 (Eisenberg).) “California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited. (See § 906 [the powers of a reviewing court do not include the power to ‘review any decision or order from which an appeal might have been taken’ but was not]; . . . .)” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Thus, the issues determined in an appealable judgment or order from which no timely appeal was taken are res judicata. (In re Matthew C. (1993) 6 Cal.4th 386, 393, superseded by statute on other grounds as stated in People v. Mena (2012) 54 Cal.4th 146, 157; In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185-1186; Eisenberg, supra, ¶ 2:13.5.)

As set forth above in the procedural history, in an order filed March 1, 2019, the trial court (Judge Fujie) denied Schermer’s motion to vacate the entry of her default, after it sustained HFL’s evidentiary objections. The court rejected Schermer’s challenge to the court’s personal jurisdiction and the propriety of service of process on her.

The matter thereafter proceeded to a default prove-up, followed by the entry of the default judgment against Schermer in the amount of $502,054.93. The default judgment was appealable, and therefore the March 1, 2019 order denying the motion to vacate the default entry could have been reviewed on an appeal from the May 17, 2019 default judgment. (Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, 1146; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; Eisenberg, supra, ¶ 2:115, ¶ 2:116.1).)

Schermer failed to appeal the default judgment. Had Schermer done so, she could have made any appropriate appellate argument against the ruling denying her challenge to personal jurisdiction and service of process. Once the default judgment became final, however, Schermer became bound under res judicata principles by Judge Fujie’s jurisdictional ruling that she had been properly served. [5]

Schermer makes several arguments that res judicata does not bar her from advancing her argument a second time, but these arguments lack merit. Primarily, Schermer takes the position that her decision to forego an appeal from the default judgment is without import because “[a]n order after judgment that gives effect to a judgment that is void on its face is itself void and subject to appeal even if the judgment itself is not appealed.” (Carr v. Kamins (2007) 151 Cal.App.4th 929, 933, italics added.) The argument fails because Schermer’s characterization of the default judgment as facially void is incorrect. As indicated, Schermer attempted to establish the invalidity of the default judgment by proffering her declaration and supporting exhibits to show that she had not been properly served. If the invalidity of a judgment can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the judgment is not void on its face. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021.)

Schermer asserts that a void judgment may be challenged “at any time.” This argument ignores that Schermer actually litigated the issue of personal jurisdiction at the time she moved to vacate the entry of default. The trial court resolved the issue adversely to her, and Schermer did not appeal the judgment. Thus, the trial court’s determination that Schermer was validly served was conclusively adjudicated by the judgment and could not be relitigated by way of a later motion to vacate the default judgment. (See, e.g. In re Estrem’s Estate (1940) 16 Cal.2d 563, 570 [probate court’s finding of jurisdiction over decedent’s estate, when all parties had the opportunity to assert their contentions and to appeal from an adverse ruling, could be reviewed only by an appeal and not in a proceeding under section 473 to have the judgment declared void].) A litigant is not permitted to keep re-filing the same challenge to jurisdiction simply by characterizing it as an argument that the judgment is void.

Schermer argues that res judicata cannot apply where there is only one case. She is mistaken. Although normally an order is not res judicata later in the same action, an appealable order or judgment can be res judicata in a later phase of the same action. (In re Matthew C., supra, 6 Cal.4th at p. 393, citing Reeves v. Hutson (1956) 144 Cal.App.2d 445, 451; Riverside County Transportation Commission v. Southern California Gas Company (2020) 54 Cal.App.5th 823, 838; People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1147.)

Schermer cites Rohrbasser v. Lederer (1986) 179 Cal.App.3d 290, 297 for the proposition that “a judgment procured by extrinsic fraud . . . may be attacked either by a motion in the same action or by an independent action in a court having equity jurisdiction, and that each remedy is distinct and cumulative.” Rohrbasser allowed the filing of a second, independent action to attack a default judgment allegedly obtained by fraud. (Id. at pp. 298-300.) It did so to allow the development of the issues by oral testimony in the independent case. (Ibid.) By contrast, the current appeal represents an attempt by Schermer to relitigate, by way of a post-judgment motion, a decision from which she had not taken an appeal. Schermer provides no legal authority for an extension of Rohrbasser that would enable her to file repetitive motions in the same action.

In sum, once the default judgment from which no appeal had been taken became final, Schermer became bound in the current case by Judge Fujie’s earlier determination that she had been validly served. The issue of personal jurisdiction was res judicata and could not be relitigated in a post-judgment motion to vacate the default judgment. Therefore, the trial court properly denied Schermer’s motion to vacate the judgment.

DISPOSITION

The November 2, 2020 order denying Schermer’s motion to vacate the default judgment is affirmed. HFL shall recover its costs on appeal.

NOT TO BE PUBLISHED

LIPNER, J.*

We concur:

EDMON, P. J.

LAVIN, J.

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* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All statutory references are to the Code of Civil Procedure, unless otherwise specified.

[2] Section 473.5 provides at subdivision (a) that “[w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” The motion “shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.” (Id. at subd. (b).)

[3] Section 473 states in relevant part at subdivision (d): “The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.”

[4] This court deferred ruling on Schermer’s request for judicial notice of a declaration that Attorney James Fedalen filed in another action. The court now rules as follows: Schermer’s request for judicial notice is denied. HFL’s motion to strike Schermer’s request for judicial notice is denied as moot.

[5] The procedural posture of this case is unlike the usual situation where a defendant, following the entry of a default judgment, files a motion to vacate both the entry of default and the default judgment. Here, following the clerk’s entry of default, but before the entry of the default judgment, Schermer filed a motion to vacate the entry of default, claiming she had not been validly served with the summons and complaint. Thus, the issue of personal jurisdiction was actually litigated and adjudicated before the default judgment. In her post-judgment motion, Schermer attempted to litigate the same issue a second time.