Hinton v. Beck

Filed 9/28/06 Hinton v. Beck CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

Plaintiff, Jonni Hinton, commenced this personal injury action 11 and one-half years ago. When defendant Eldon Beck’s insurance carrier, Grange Insurance Group (Grange), denied coverage for the plaintiff’s loss and refused to defend, Hinton entered into an agreement with Beck not to execute any judgment against Beck in exchange for an assignment of Beck’s rights against the insurance company. Hinton obtained a default judgment against Beck, but her subsequent action against the insurance company ended in defeat when that court declared the default judgment void for failure to serve Beck with a statement of damages, and refused to acknowledge a subsequently entered judgment declaring Beck had impliedly waived service of a statement of damages.

Hinton obtained another default judgment. However, the trial court found that judgment void as well because Hinton did not properly serve a copy of the operative complaint (the second amended complaint) on Beck. The trial court then dismissed the action for failure to bring it to trial within five years and failure to serve the complaint within three years.

Hinton argues the order setting aside the last default judgment was incorrect because the operative complaint was the original complaint. She argues the five year period in which to bring the action to trial had not run because during much of the time it was impossible, impracticable, or futile to bring the action to trial. Finally, she argues the dismissal for failure to serve the complaint within three years was improper because she was not obligated to serve the amended complaints on Beck. We shall affirm the order setting aside the default judgment because we conclude Beck was not given a reasonable amount of time to respond to the statement of damages before entry of default. We shall, however, reverse the order of dismissal because we conclude the five year period in which to bring the action to trial did not run during the time a default judgment was entered.

FACTUAL AND PROCEDURAL BACKGROUND

The original complaint alleged Beck was the lessee of real property and Hinton was helping him gather and sort cows and calves on the property. Hinton was trying to keep a gate closed when a cow ran into the gate, taking the gate off of its hinges, and causing the gate to strike Hinton and seriously injure her.

Hinton commenced this personal injury action in November 1994. She entered Beck’s default approximately seven and one-half months later. One year and four months after the action was commenced, Hinton entered into a written agreement with Beck that she would not seek to execute any judgment against him in exchange for an assignment of Beck’s rights against Grange for refusing to indemnify Beck or provide a defense.

Hinton added other defendants and amended the complaint twice. The first amended complaint named Beck as a defendant, and added a cause of action (negligence) as to all defendants. The second amended complaint added another defendant and added new causes of action as to that defendant. Two of the newly named defendants cross-complained against Beck for indemnity. Hinton did not personally serve the second amended complaint on Beck, but mailed a copy of it to the attorney representing Beck in his capacity as a cross defendant.

Although Beck was never served with a statement of damages, after a prove-up hearing the trial court entered a default judgment against Beck in July 1998 for approximately $2 million.

Hinton then filed a separate action against Grange, which was transferred to Sacramento Superior Court. That action alleged breach of contract, breach of the duty of good faith and fair dealing, and negligent procurement of insurance. The Sacramento court granted Grange’s motion for summary judgment on the ground the Shasta court lacked jurisdiction to enter a default judgment in the absence of a personally served statement of damages.

Hinton proceeded to obtain a new default judgment from the Shasta court, nunc pro tunc as of the date of the earlier default, July 22, 1998. The nunc pro tunc judgment noted that Beck had been fully represented by counsel throughout the litigation, filed case management statements acknowledging his default, and served settlement conference statements stating he had refrained from acting to set aside the default in exchange for a covenant not to execute. It stated that Beck had “impliedly waived his right to service of a written statement of damages on him by way of his stipulation not to set aside any default . . . .” Armed with the new judgment, Hinton filed a new trial motion, motion for reconsideration, and motion to vacate in the Sacramento court. The Sacramento court denied the motions, holding: “ . . . Shasta Court concludes that defendant having been orally notified of actual economic damages in the amount of $200,000, ‘impliedly waived his right to service of a written statement of damages on him.’ This Court is unpersuaded by the record before it. No knowing, informed waiver appears in the record.

The Supreme Court has not allowed a default judgment to be entered against defendants without proper notice to them of the amount of damages sought. ‘A defendant is entitled to actual notice of the liability to which he or she may be subjected, a reasonable period of time before default may be entered.’ [Citation.] Plaintiff has cited no authority to support her conclusion that the defendant may impliedly waive her [sic] rights to notice of the amount of damages sought under C.C.P. section 425.11(c) . . . .” The case was appealed, and this court affirmed.

On February 12, 2003, Hinton personally served a statement of damages in the amount of $6,042,000.00 on Beck. The next day, she entered another default, and on February 26, 2003, entered another default judgment.

On October 25, 2004, the trial court granted Grange’s motion for leave to file a complaint in intervention. On the court’s own motion, it set the matter for a hearing to determine whether the default entered February 13, 2003, and the resulting judgment were void for failure to serve the operative complaint, and whether the action should be dismissed pursuant to Code of Civil Procedure sections 583.210 or 583.360, providing for dismissal for failure to serve the summons and complaint within three years and failure to bring the action to trial within five years.^[1] Following the hearing, the trial court found the operative complaint (the second amended complaint) had never been properly served on Beck, and ordered the February 13, 2003, default and the February 26, 2003, default judgment set aside. The trial court further found Hinton had failed to comply with sections 583.250 and 583.360, and dismissed the action.^[2]

DISCUSSION

I

Default Judgment

The trial court set aside the default judgment entered on February 26, 2003, because it found service on the attorney representing Beck in the cross action was not effective service on Beck. The court stated the attorney had never made an appearance for Beck in his capacity as a defendant, and had not signed any notice or acknowledgement of receipt indicating he would accept service on behalf of Beck as a defendant.^[3]

Hinton argues the default judgment against Beck was improperly set aside because the “Covenant Not to Execute and Assignment” of rights into which she and Beck entered was based entirely upon the original complaint, and there was no requirement she serve any subsequent complaint on Beck. Well-settled law dictates otherwise.

“‘It has been repeatedly held that a defaulting defendant is entitled to be served by an amended complaint when the amendment is as to a matter of substance and not a mere matter of form.’” (Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 440 (Engebretson), quoting Thompson v. Cook (1942) 20 Cal.2d 564, 568.) An amended complaint which states a new cause of action is considered a substantive change. (Ford v. Superior Court (1973) 34 Cal.App.3d 338, 343.) Hinton’s original complaint was a Judicial Council form complaint containing one cause of action for premises liability including allegations of negligence and failure to warn. The second amended complaint stated two causes of action against Beck -- negligence and dangerous condition of premises. Accordingly, the second amended complaint was an amendment as to a matter of substance, and Hinton was required to serve the second amended complaint on Beck for any default judgment entered after the filing of the second amended complaint to be valid.

Engebretson, supra, held that if the defendant has failed to appear in the action, such an amended complaint must be served in the manner provided for service of summons for any default judgment to be valid. (125 Cal.App.3d at p. 443.) Engebretson held such service was required because an amendment which might materially affect the defendant’s decision not to contest the action should be “brought home to the defendant with the same force as the notification of the original action.” (Id. at p. 442.) The court reasoned:

“If the amended complaint is merely served by mail, the defendant may assume the papers thus received only catalog the procedural steps taken by the plaintiff to obtain a default judgment on the original complaint and the defendant may fail to examine them with the care they deserve. Also, of course, documents sent by ordinary mail may go astray. They may never be delivered at all, or may be delivered to the wrong address, or delivered and then lost by an employee at the defendant's office or by another resident at the defendant's home. In all such instances, the defendant's failure to receive the documents will not soon be discovered by the defendant or by the court if the defendant has decided not to appear in the action. Service of the amended complaint in the manner provided for service of summons is much more likely to result in actual notice to the defendant that something has occurred requiring reassessment of the decision not to contest the action.” (Id. at pp. 442-443.)

The purpose for the rule set forth in Engebretson, supra, requiring an amended complaint to be served on a defaulting defendant in the same manner as service of process, is to insure that the defendant is aware of the content and significance of the amended complaint before deciding not to answer. (125 Cal.App.3d at pp. 442-443.)

Where there has been no general appearance by the defendant, personal service is required of an amended complaint before a default can be taken. (Engebretson, supra, 125 Cal.App.3d at pp. 439-444.) Instead of personally serving Beck, Hinton mailed a copy of the complaint to the attorney who was representing Beck in his capacity as a cross-defendant.

Beck’s appearance in the cross-action would not ordinarily constitute a general appearance in the main action. (Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1398.) However, in this case Rodney Key, Beck’s attorney in the cross-action, stipulated to the filing of the second amended complaint. Key’s signature on the stipulation states that he is the attorney for “Defendant/Cross Defendant ELDON BECK[.]”^[4] A defendant makes a general appearance where he participates in the action, either directly or through counsel, in such a manner as to recognize the authority of the court to proceed. (Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756.) Key’s signature on the stipulation acknowledged Beck’s status as a defendant, and permitted an order allowing Hinton to file the second amended complaint in which Beck was named as a defendant. This document was a recognition of the authority of the trial court to proceed, thus was a general appearance.

Service of an amended complaint by mail is sufficient where the defendant has made an appearance in the action. (Engebretson, supra, 125 Cal.App.3d at p. 441.) Copies of all pleadings subsequent to the complaint may be made on the party or the party’s attorney. (§ 465.) Thus, because Beck made a general appearance in the action through his attorney, service by mail of the second amended complaint on his attorney was sufficient to prevent dismissal under section 583.250. Accordingly, the default judgment entered on February 26, 2003, was properly served, and the trial court was incorrect in setting aside the default judgment on this ground.

We nevertheless conclude the default judgment entered on February 26, 2003, was void because service of the statement of damages was not effective. A “court's jurisdiction to render default judgments can be exercised only in the way authorized by statute.” (Burtnett v. King (1949) 33 Cal.2d 805, 807.) Because a default judgment ends the controversy, the rules for obtaining a default judgment are precise and must be followed to the letter. (Jones v. Interstate Recovery Service (1984) 160 Cal.App.3d 925, 928.) In a personal injury action, the plaintiff must serve the defendant with a statement of the nature and amount of damages before a default may be taken. (§ 425.11.) This is because a personal injury complaint may not state the amount of damages demanded. (§ 425.10.) Service of the statement of damages gives the defendant notice of the precise consequences of the judgment. (Jones v. Interstate Recovery Service, supra, 160 Cal.App.3d at pp. 928-929.)

Although section 425.11 does not specify how much notice the plaintiff must give concerning the amount of damages sought before seeking default, case law indicates the amount of notice must be reasonable. (Connelly v. Castillo (1987) 190 Cal.App.3d 1583, 1589-1590; Schwab v. Rondel Homes, Inc. (1991) 53 Cal.3d 428, 435.) A reasonable amount of time is sufficient time for the defendant to respond before the hearing on the entry of default. (Ely v. Gray (1990) 224 Cal.App.3d 1257, 1263.)

In this case, an examination of the record reveals the statement of damages was served on Beck one day before the entry of default. This was not a reasonable amount of time for Beck to respond. (See Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1324 [statement of damages served nine days before entry of default gave cross-defendants no time to respond].) As a result, the default judgment entered on February 26, 2003, is invalid on its face. The trial court reached the correct result.

II

Dismissal Pursuant to Section 583.360

An action must be brought to trial within five years after it is commenced. (§ 583.310.) An action not brought to trial within this period is subject to mandatory dismissal. (§ 583.360, subd. (a).) In computing the time within which an action must be brought to trial, the following periods are excluded: (1) any time during which the jurisdiction of the court to try the action was suspended; (2) any time during which the prosecution or trial of the action was stayed or enjoined; and (3) any time during which bringing the action to trial would have been impossible, impracticable, or futile. (§ 583.340.)

Hinton argues: (1) she effectively brought the matter to trial when she entered a default judgment against Beck; (2) the time during which the Covenant Not to Execute and Assignment was in effect made it impossible, impracticable, or futile to bring the action to trial; and (3) it was impossible, impracticable, or futile to bring the action to trial during the time a default and default judgment were entered. We agree that the time during which a default judgment was entered made it impossible, impracticable, or futile to bring the action to trial, but disagree with Hinton’s other contentions.

A hearing to enter a default judgment is not a trial for purposes of section 583.360. “A trial is generally considered an adversary proceeding for the determination of a contested issue arising out of pleadings in which a fact or conclusion of law is maintained by one party and controverted by the other . . . . In a hearing on the entry of a default judgment resulting from the failure of a party to answer, neither adversary parties, nor adversary pleadings, nor contested issues of law or fact are present.” (Langan v. McCorkle (1969) 276 Cal.App.2d 805, 808, disapproved on other grounds in Brunzell Constr. Co. v. Wagner (1970) 2 Cal.3d 545, 555, fn. 13.)

It is well established that entry of a default judgment suspends the running of the five year period, but if the default judgment is later set aside, the five year period resumes running. (Misic v. Segars (1995) 37 Cal.App.4th 1149, 1152-1153.) Thus, the default hearing does not constitute bringing the action to trial for purposes of section 583.310. If it were otherwise, the five year period would not resume when a default judgment is set aside because the “trial” would have occurred at the default hearing.

Relying on Brown & Bryant, Inc. v. Hartford Accident & Indemnity Company (1994) 24 Cal.App.4th 247 (Brown & Bryant), Hinton also argues the Covenant Not to Execute and Assignment made it impossible, impracticable, or futile to bring the action to trial. In Brown & Bryant, the plaintiff was ordered to clean up extensive soil contamination, and it sued its insurers for its clean up costs. (Id. at p. 249.) The parties agreed that the plaintiff would dismiss the suit in exchange for payment of a sum to the appropriate agency for clean up costs. (Id. at p. 250.) The settlement was conditioned on the various environmental agencies releasing the plaintiff from further claims based on the contamination. (Ibid.) The agreement contained an expiration date, but could be extended by agreement in writing. (Ibid.) The parties agreed to several extensions, but at some point these ran out, and the plaintiff still had not obtained the release of one of the agencies. (Id. at pp. 250-251.) The insurers filed a motion to dismiss for failure to bring the action to trial within five years, and the trial court granted the motion. (Id. at p. 251.)

The court of appeal reversed, holding that “a timely and enforceable settlement agreement which finally disposes of all issues in the underlying lawsuit renders section 583.310 et seq. ‘legally irrelevant[,]’” even if judgment on the agreement has not been entered. (Brown & Bryant, supra, 24 Cal.App.4th at p. 254.) The court stated that the “salient factor” was whether the plaintiff would have been acting in bad faith and in violation of the spirit of the agreement if it proceeded with the prosecution of the action. (Id. at p. 256.)

In this case, Hinton did proceed with the prosecution of the action. She continued to amend the complaint, naming Beck and adding a cause of action against him. Also, as the trial court noted, the Covenant Not to Execute and Assignment did not contain terms indicating the action would not be prosecuted, nor would it have been reasonable from the terms of the Covenant for the parties to assume the matter would not go to trial.^[5] (See Brown & Bryant, supra, 24 Cal.App.4th at p. 254.) As the trial court stated, the Covenant “does not address whether the plaintiff would proceed against the defendant by default, trial or otherwise. It merely states that any judgment the plaintiff may obtain would not be executed against the defendant’s personal assets in exchange for an assignment of rights. To the extent either party sought to enforce the agreement, enforcement would not have any effect on the underlying proceedings . . . . The agreement does not prevent the defendant from answering, and it does not prevent the plaintiff from adding causes of action against the defendant, as it did in the first and second amended complaints.”

The Covenant did not finally dispose of all the issues in the underlying lawsuit, it did not prevent Hinton from proceeding with the action, and the parties could not assume from the terms of the Covenant that the matter would not go to trial. For these reasons, this was not the sort of settlement agreement which made it impossible, impracticable, or futile for Hinton to bring the action to trial.

Hinton also claims the five-year period did not run during the time a default or default judgment was entered.^[6] We agree that the five-year period did not run during the time a default judgment was entered and not set aside, but we shall conclude the period ran during the time the first default was entered, but before judgment was entered. Because a default judgment has been entered during all but approximately three years and eleven months of the eleven-plus years since this case was commenced, the action was not subject to mandatory dismissal for failure to bring to trial within five years.

In Maguire v. Collier (1975) 49 Cal.App.3d 309, 313, the court held, “[i]t is established law in this state that the period during which an adversary is in default, as well as the period during which a default judgment is in effect, is to be excluded from computation of the mandatory five-year dismissal . . . .” The court explained the rationale for excluding default time was that it would be impracticable to bring a case to trial during such time. (Ibid.) The time should be excluded even if the judgment is later set aside because it is void as opposed to merely voidable. (Ibid.)

In Hughes v. Kimble (1992) 5 Cal.App.4th 59 (Hughes), the court held that the time during which a default is entered, but before any default judgment is entered is not necessarily excluded from the five year period during which to bring the action to trial under section 583.360. There, the default was entered two years after the action was commenced. (Id. at p. 62.) More than five years after the action was commenced, no default judgment having been entered, the trial court dismissed the action because it had not been brought to trial within the statutory period. (Id. at p. 63.)

The court of appeal declined to adopt the Maguire v. Collier, supra, rule automatically excluding from the five year period the time during which a defendant’s default has been entered, but no default judgment has been entered. (Hughes, supra, 5 Cal.App.4th at p. 66.) Hughes reasoned that such an automatic exclusion was not justified by the underlying rationale for the rule -- that bringing the action to trial would be impossible, impracticable, or futile. (Ibid.) The court held that the impossible, impracticable, or futile exclusion is a “flexible exception [which] enables the purposes of section 583.340 to be effected when unique and case-specific circumstances reasonably justify suspension of the five-year time in a particular case.“ (Id. at p. 67.) The exception applies, “where, due to causes beyond the plaintiff's control, proceeding to trial would be impossible for all practical purposes, despite the exercise by the plaintiff of reasonable diligence in prosecuting the case. (Ibid.) The critical factor is whether the plaintiff has exercised “reasonable diligence“ in prosecuting the case. (Ibid.) “An exercise of reasonable diligence in prosecuting the case when the defendant is in default consists of reasonable efforts to proceed to a hearing on damages and obtain a default judgment. Where such efforts by a plaintiff do not appear within a reasonable time, no principle of fairness forbids dismissal of the action.” (Id. at p. 69.)

In this case Beck’s default was entered the first time on June 30, 1995. The default judgment was not entered until July 22, 1998, over three years later. Hinton claims she could not enter a default judgment against Beck any earlier because the single judgment rule prevented her from obtaining a judgment against Beck while the action was still pending against other defendants. This is plainly wrong.

Section 904.1, subdivision (a) provides that an appeal may be taken “[f]rom a judgment[.]” This section codifies the one final judgment rule, which prevents piecemeal disposition and multiple appeals in a single action. (9 Witkin, California Procedure (4th ed. 1997) Appeal, § 58, p. 113.) The rule provides that no appeal can be taken “‘from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as “separate and independent“ from those remaining.’ [Citations.]” (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436.) However, in a multiparty lawsuit such as this one, it is settled that the one final judgment rule does not apply “‘when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party. [Citations.]’ [Citations.]” (Id. at p. 437.) Had Hinton obtained a default judgment against Beck, there would have been no further issues to be determined between Hinton and Beck. Thus, the single judgment rule was no impediment to entry of a default judgment, and Hinton’s failure to obtain such a judgment for more than three years indicates a lack of reasonable diligence in prosecuting the case.

The entry of a default judgment suspends the running of the five-year period while the default judgment remains in effect. (Misic v. Segars, supra, 37 Cal.App.4th at pp. 1152-1153.) In this case, the trial court never set aside any of the default judgments that were entered until the final order dismissing the action, from which Hinton has appealed. Nevertheless, we may assume that each former judgment was vacated by entry of the later judgment. (Hulbert v. All Night & Day Bank (1916) 29 Cal.App. 765, 767.) Also, the period did not run during the time the court’s jurisdiction to try the action was suspended (§ 583.340, subd. (a)), thus did not run after the filing of the notice of appeal. (Bergin v. Portman (1983) 141 Cal.App.3d 23, 25-26.) Hinton concedes that the five-year period resumed from the date the remittitur issued in the collateral proceeding in the Sacramento court on January 29, 2003. Even so, Hinton entered another default judgment less than one month later, which once again stopped the running of the five-year period. The period of time during which no default judgment was entered in this case was less than five years. Therefore, the trial court erred in dismissing the action based on section 583.360.

III

Dismissal Pursuant to Section 583.250

The summons and complaint must be served on a defendant within three years after the action is commenced against the defendant. (§ 583.210.) If service is not made within this time period, the action is subject to mandatory dismissal by the court on its own motion or on the motion of a party. (§ 583.250.) The three year period runs from the filing of the original complaint, and cannot be extended by the filing of an amended complaint. (Perati v. Atkinson (1964) 230 Cal.App.2d 251, 253.) However, we are aware of no case that has determined whether, assuming proper service of the original complaint, the three year period starts to run again with the filing of an amended complaint. We conclude that it does.

The purpose of section 583.250 is “to compel reasonable diligence in the prosecution of an action after it has been commenced [citations] and ‘expedite litigation and require it to be brought to conclusion within reasonable time limits. [Citations.]’” (McKenzie v. City of Thousand Oaks (1973) 36 Cal.App.3d 426, 429-430.) This purpose would not be served by allowing a plaintiff an indefinite time in which to serve an amended complaint. Of course, the delay of any action would be limited by the five year period in which to bring the action to trial. However, the three year period of section 583.360 serves the additional purpose of protecting the defendant’s ability to institute discovery, preserve evidence, and locate witnesses by being given timely notice of the institution of an action. (Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 500.) This purpose is best served by requiring a plaintiff be as diligent in serving a copy of an amended complaint as in serving the original complaint.

As we determined in section I, supra, Beck made a general appearance in Hinton’s action against him when he stipulated through his attorney to the filing of the second amended complaint, and Hinton’s service of the second amended complaint by mail on his attorney was sufficient to prevent dismissal of the action under section 583.250.

Plaintiff thus has another shot at obtaining a valid default judgment against Beck before the five year period to bring the action to trial has run. She must serve a statement of damages on Beck, and after a reasonable period of time to allow him to respond to the statement of damages, she may enter his default and obtain a default judgment.

DISPOSITION

The judgment (order) setting aside the judgment of February 26, 2003, is affirmed. The judgment (order) dismissing the action is reversed. Plaintiff shall recover her costs on appeal. BLEASE , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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^[1] References to an undesignated section are to the Code of Civil Procedure.

^[2] At oral argument, Hinton’s counsel claimed Hinton was not given proper notice the court was considering dismissing her action. However, the only mention made of this in Hinton’s brief on appeal was in the statement of facts. There was no properly headed argument discussing this point. We may disregard arguments not made under appropriate headings. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59.) Had Hinton properly made the argument, it would not have been well taken. Hinton claims the only notice she had that the court was considering dismissing the action came at the last minute on December 13, 2004, and “was quite a shock to Plaintiff’s counsel.” Contrary to this statement, the record indicates the trial court notified Hinton’s counsel on October 25, 2004, that it was, on its own motion, setting the matter for hearing to rule on three issues: (1) whether the default judgment was void for lack of service of the operative complaint; (2) whether the action should be dismissed for failure to serve the summons and second amended complaint within three years; and (3) whether the action should be dismissed for failure to bring it to trial within five years. The court invited counsel to file and serve briefs addressing these three issues. The hearing on the matter was held as scheduled on December 13, 2004. Thus, Hinton’s claim that she had no notice the court might dismiss her action is patently incorrect.

^[3] The trial court also noted there was no proof of service of “the amended summons issued on August 31, 1995.” However, the summons filed August 31, 1995, does not appear to be an amended summons. No parties were added on the summons, and the summons was filed before the first amended complaint, which was filed in October 1995. The August 31, 1995, summons was served on the defendants whose names were substituted for Doe defendants, along with the amendment to the complaint substituting their name for the fictitious name. There is no need to serve an amended summons on defendants named in the original complaint. (Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433-434.)

^[4] A little over a month after Key signed the stipulation allowing the second amended complaint (and over two years before the first default judgment was entered), Beck filed a motion for summary judgment directed to the cross-action, but which also moved for an order that Hinton’s claim against him was barred by recreational use immunity and assumption of the risk. Such a motion is inconsistent with an appearance merely as a cross-defendant.

^[5] The Covenant Not to Execute and Assignment provided as follows: “In consideration for the agreements set forth hereinafter, plaintiff, JONNI HINTON . . . hereby relinquishes her right to satisfy any judgment she may obtain from any personal assets of defendants, ELDON BECK and REBECCA BECK. Further, plaintiff hereby covenants and agrees that she will not seek to execute on any assets of the defendants . . . to satisfy any part of any such judgment. In consideration for that covenant, the defendants . . . hereby assign to JONNI HINTON all assignable rights that they have against GRANGE INSURANCE ASSOCIATION and its affiliated companies because of the refusal of that insurance company to provide defense and/or indemnity in the captioned matter. Plaintiff . . . shall have the right to pursue GRANGE . . . and its affiliated companies under any policy of insurance they have with the defendants . . . and to bring any such action in the names of defendants . . . at her sole discretion to recover the damages, including but not limited to, the judgment rendered against the defendants . . . therefrom.”

^[6] The trial court refused to consider this argument because Hinton did not raise it in her written briefing before the trial court. Respondents’ brief also calls our attention to the fact that Hinton did not raise the issue in her briefing below. Respondents do not assert that Hinton has waived the issue on appeal. We consider the issue because it was raised, though not briefed, below, and because it raises a legal question on facts that are undisputed. (Hittle v. Santa Barbara County Employees Retirement Assn. (1985) 39 Cal.3d 374, 391, fn. 10.) Because we consider the issue, we need not address Hinton’s claim that she was denied due process when the trial court refused to consider the issue.