Miracle Mile, Inc. v. Digirolamo

Filed 3/13/07 Miracle Mile, Inc. v. Digirolamo CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Mel Recana, Judge. Affirmed.

Margolis & Tisman and Thomas Regele for Plaintiff and Respondent.

Berliner Cohen, Frank Robert Ubhaus and Thomas P. Murphy for Defendant and Appellant.

_______________________

Defendant, Gary Digirolamo, appeals from a default judgment entered in favor of defendant, Miracle Mile, Inc., on September 13, 2005. Defendant also appeals from a order denying his motion to set aside the default entered on September 16, 2005. Defendant contends his motion to set aside his default should have been granted. We disagree and affirm the judgment.

On March 25, 2005, plaintiff filed a complaint to renew a judgment. The complaint alleged that plaintiff had secured a judgment against defendant in Ohio. On May 24, 1993, the Ohio judgment was entered in California in the sum of $500,629. The principal amount of the judgment remains uncollected. Defendant resided outside of California much of the time between 1992 and 1998. Specifically, the complaint alleged defendant resided: in California and Alaska in 1992; in Hawaii between 1992 and 1995; in New Jersey in 1995; again in Hawaii in 1997; and in Hawaii, New Jersey, and Pennsylvania in 1998. Thus, because defendant lived outside California, the complaint alleged the statute of limitations was tolled while he was outside this state. Plaintiff requested that the 1993 judgment be renewed.

Defendant was served with the summons and complaint on April 13, 2005. The proof of service of the summons and complaint was filed on April 19, 2003. On June 23, 2005, defendants default was entered.

On August 5, 2005, defendant moved to set aside the default. The asserted grounds for setting aside the June 23, 2005 default were: the trial court had the authority to set aside the default; the default resulted from excusable neglect and/or mistake; defendant has a defense to the complaint; and defendant has been denied the opportunity to defend against plaintiffs allegations. Defendants supporting declaration stated on May 24, 1993, plaintiff had the approximately $500,629 judgment entered against him and interest accrued at the rate of 10 percent per annum. Defendant explained why he did not file an answer, I failed to respond to this action within the statutory time prescribed because I believed that plaintiffs in this matter would not and could not renew their judgment regardless of their pleading and complaint because I believed that it had expired in the year 2003. Later in his declaration, defendant stated, I [erroneously] and [mistakenly] believed that this Court could not and would not enter my default because the original judgment had expired in 2003; more than ten years before plaintiff brought this new action to renew the original 1993 judgment. Further, defendant stated in reference to one of plaintiffs attorneys, Michael Morin, Mr. Morin, in July of 2005, proposed a stipulation that would renew the 1993 judgment plaintiff is seeking now to renew via this action. I considered signing it but resolved not to because I believed that this Court could not and would not renew it in light of it having expired in 2003.

Also, defendant filed a proposed answer with the motion to set aside the default. The proposed answer was a general denial and contained the following affirmative defenses: the complaint did not state a cause of action; estoppel; laches; the statutes of limitations in Code of Civil Procedure sections 338, 339, 339.5, and 340; bad faith; unclean hands; plaintiffs negligence; plaintiffs omission; third party negligence; and apportionment of liability. The answer stated defendant reserved the right to allege additional affirmative defenses. Defendants points and authorities argued that: he was entitled to relief pursuant to Code of Civil Procedure section 473, subdivision (b); he had not sought legal advice and erroneously concluded that the court would not enter his default; he had a meritorious defensethe judgment could not be enforced because the 10-year Code of Civil Procedure section 683.020 statute of limitations had expired; and he had acted diligently in seeking to set aside the default. A heading in defendants points and authorities stated that he was relying on the attorney fault provisions of Code of Civil Procedure section 473, subdivision (b).

The opposition, filed on August 30, 2005, argued that mandatory relief on attorney fault grounds was unavailable. Plaintiff reasoned that no attorney declaration had been filed and defendant admitted he never consulted with a lawyer before allowing the default to be entered. Further, plaintiff asserted that there was an insufficient showing of mistake, inadvertence, surprise, or excusable neglect. Additionally, plaintiff argued there was no merit to defendants statute of limitations contentions. Plaintiff explained that the statute of limitations was tolled pursuant to Code of Civil Procedure section 351 while plaintiff, as alleged in the complaint, was absent from California. Finally, plaintiff contended there was no evidence of extrinsic fraud or mistake.

The reply to plaintiffs opposition, which was filed on September 7, 2005, produced no new evidence. The reply focused on defendants erroneous understanding that no default could be entered. According to the reply, defendants declaration filed with the moving papers demonstrated that he relied on his own misunderstanding that because the judgment was more than 10 years old, no default could be entered. No constitutional issue was raised in the moving papers and the reply.

On September 13, 2005, plaintiff filed a request for a court judgment in the sum of $1,109,583. The request to enter judgment was supported by the declaration of Mr. Morin. Mr. Morin stated: on May 24, 1993, plaintiff had an Ohio judgment entered in California; the amount of the judgment as entered in California was $500,629; the interest on the judgment through July 18, 2005, totaled $608,260; the 10-year Code of Civil Procedure section 337.5 statute of limitations was tolled during defendants absence from California; and defendant was absent from California for at least three years, two months.

Also, plaintiff submitted the declaration of Ralph Dill, an attorney. Mr. Dill was present at defendants July 18, 1995 deposition in a bankruptcy proceeding. The deposition was taken in Philadelphia, Pennsylvania. At his July 18, 1995 deposition, defendant admitted: from 1992 until July 1995, he resided in Westmont, New Jersey; between 1992 and July 1995, defendant had lived in Hawaii for one year, four months; and he also lived in Sitka, Alaska for one month between 1992 and July 1995. Defendant was again deposed on April 24, 1998. At this deposition, defendant stated he resided in Collingswood, New Jersey. On December 30, 1997, an investigative company indicated defendant was employed as an aviation safety instructor by Life Support Systems of Hawaii, Inc. located at 134 Nakolo Place, Honolulu, Hawaii. On May 26, 1998, Mr. Dill personally observed defendant apparently conducting business at the 134 Nakolo Place address. Mr. Dill spoke with persons working on other offices at the 134 Nakolo Place address. They told Mr. Dill that defendant had operated a business at that address between May 1997 and May 1998. Attached to the request to enter a judgment were copies of transcripts of defendants depositions where he admitted living outside California during the 10 years after the judgment was entered in California.

On September 13, 2005, judgment was entered as requested in the sum of $1,109,583. On September 16, 2005, the trial court denied defendants motion to set aside the default. The trial court found: defendants admitted ignorance of the law and negligence in conducting legal research did not constitute excusable neglect; no fraud was perpetrated by plaintiff; and no meritorious defense was established in that Code of Civil Procedure section 351 tolled the statute of limitations while defendant was absent from California. Defendants notice of appeal was filed on November 3, 2005.

First, defendant argues there was a sufficient showing of excusable neglect or mistake within the meaning of Code of Civil Procedure section 473 to require that his default be set aside. We review this contention for an abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Weitz v. Yankosky (1966) 63 Cal.2d 849, 854.) On appeal, we review an order denying relief from default more carefully than one permitting a trial on the merits. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980; Elston v. City of Turlock, supra, 38 Cal.3d at p. 233.) If the trial court, without abusing its discretion, found the neglect was inexcusable, it was obligated to deny the motion for relief from default. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895; Luz v. Lopes (1960) 55 Cal.2d 54, 65.) The trial court could reasonably find that defendant acted with inexcusable neglect and was unreasonably mistaken in his actions because: the summons explicitly warned him he may want to speak to an attorney; defendant understood the gravity of the complaint; he incorrectly believed that the judgment could not be renewed because it was more than 10 years old; he conducted no legal research; and he made no effort to speak to an attorney until after the default was entered. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319; Davis v. Thayer (1980) 113 Cal.App.3d 892, 906.)

Second, defendant argues that he was engaged in interstate commerce while outside California. Therefore, defendant reasons Code of Civil Procedure section 351^[1]cannot act to toll the 10 year statute of limitations for renewing a judgment. (Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988) 486 U.S. 888, 893; Filet Menu, Inc. v. Cheng (1999) 71 Cal.App.4th 1276, 1281-1284.) We agree with plaintiff that defendant has forfeited this issue because it was not raised in the trial court. (Hale v. Morgan (1978) 22 Cal.3d 388, 394; Souza v. Wetlands Water Dist. (2006) 135 Cal.App.4th 879, 899.) Moreover, there is no reason we should exercise our discretion to consider defendants constitutional contentions: his liability has already been adjudicated when the initial judgment was entered in Ohio; there is no significant public policy issue present; and no pure issue of law is present. (In re S.B. (2004) 32 Cal.4th 1287, 1293; Hale v. Morgan, supra, 22 Cal.3d at p. 394.) Moreover, given defendants inexcusable neglect and unreasonable mistake in failing to answer the complaint, his constitutional contention is irrelevant. The valid entry of his default cuts off his right to assert the constitutional issue as an independent ground for reversal. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301; Forbes v. Cameron Petroleums, Inc. (1978) 83 Cal.App.3d 257, 263.) Finally, even if we were to consider defendants constitutional contention, there is insufficient indication on the face of the complaint he was involved in interstate commerce while residing outside of California so as to avoid the application of Code of Civil Procedure section 351 tolling provisions. (Filet Menu, Inc. v. Cheng, supra, 71 Cal.App.4th at p. 1281; Mounts v. Uyeda (1991) 227 Cal.App.3d 111, 122; Kohan v. Cohan (1988) 204 Cal.App.3d 915, 924.) Defendants constitutional contentions do not permit reversal.

Third, in the reply brief, defendant argues that at least the interest part of the judgment is void. Defendant reasons the absence of any allegation in the complaint as to interest renders that part of the judgment void. The void interest issue is not before us because: the issue is raised for the first time in the reply brief (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766); the interest issue is not set out in a separate heading (Cal. Rules of Court, rule 8.204(a)(1)(B); Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345, fn. 17; Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1291); the discussion is inadequate (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366; Tiernan v. Trustees of Cal. State Univ. & Colleges (1982) 33 Cal.3d 211, 216); and there is no citation to authority. (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 171; Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) A void judgment or a part thereof can be challenged at any time. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; Rochin v. Pat Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1239.) Defendant thus can seek appropriate relief in the trial court. But the issue has not been presented to us in compliance with the law and we decline to rule on defendants void interest award contention.

The judgment is affirmed. Plaintiff, Miracle Mile, Inc., shall recover its costs incurred on appeal from defendant, Gary Digirolamo.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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^[1] Code of Civil Procedure section 351 states, If, when the cause of action accrues against a person, he is out of the State, the action may be commenced within the term herein limited, after his return to the State, and if, after the cause of action accrues, he departs from the State, the time of his absence is not part of the time limited for the commencement of the action.