Orosco v. Smith

Filed 8/7/07 Orosco v. Smith CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Fletcher S. Smith appeals from an order denying his motion to set aside a default judgment and vacating a default judgment entered in favor of plaintiff James R. Orosco. Orosco has failed to file a responsive brief. Because of that failure, we have denied Oroscos request for oral argument and decide the case on the record and Smiths opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)

We reverse.

Background

It seems that both Smith and Orosco are dealers in fine arts who occasionally act as brokers in sales between others. In June 1997, Orosco was a broker in a transaction under which Lawrence H. Butterfield purchased a drawing from Chad Anyan, individually and doing business as Anyan Fine Art Acquisitions. The drawing was sold as the work of the Italian artist Amadeo Modigliani. Smith acted as Butterfields agent in the transaction. The painting later was determined not to be the work of Modigliani, leading to a complaint brought by Butterfield against Orosco. Orosco filed a cross-complaint against several cross-defendants, including Smith. Orosco alleged Anyan and other defendants (but not Smith) had guaranteed the drawings authenticity, and sought damages of $25,500 from these defendants, plus additional amounts to be ascertained at time of trial.

Oroscos allegations against Smith were not in any way based on the guarantee. Rather, Orosco claimed Smith owed Orosco $3,750 under an agreement to split the commission for the sale, stating causes of action for breach of contract and fraud. He also sought $4,000 on a theory of conversion for Smiths alleged use or appropriation of Oroscos property and $7,750 on what Orosco pleaded as an open book account that appears to be the work done to earn the commission. Finally, Orosco sought punitive damages against Smith for the alleged fraud and for breach of the covenant of good faith and fair dealing.

By July 2001, Smith had moved to Massachusetts. According to the declaration of Deputy Sheriff George A. Symborski, of Hampshire County, Massachusetts, on July 17, 2001, Deputy Symborski personally served the summons and cross-complaint on Smith, doing business as Fletcher Smith Fine Arts, at 116 Pleasant Street, Easthampton, Massachusetts. Smith did not answer or otherwise respond to the complaint, and on August 17, 2001, the superior court clerk, at Oroscos request, entered Smiths default. Orosco declared he mailed notice of the default to Smith at the Pleasant Street address.

Orosco and Butterfield settled their case, agreeing Orosco would pay Butterfield $26,250 and Orosco would keep the drawing. On December 10, 2001, they appeared in court and placed their settlement on the record. Orosco then asked the court to enter default judgment against the cross-defendants, explaining that they had represented to him that the drawing was the work of Modigliani. The court granted judgment in the amount of $26,250 to Orosco against Anyan and the other cross-defendants, and, at Oroscos request, also against Smith in the same amount. Judgment was entered on December 10, 2001. On November 21, 2003, Oroscos son executed a proof of service that he mailed a memorandum of costs to Smith at the Pleasant Street address.

In the meantime, Orosco had filed a separate action against Smith arising from a dispute or altercation occurring on October 28, 1999, at Oroscos place of business. That case is the subject of a separate appeal from a default judgment awarding Orosco $149,555. (Orosco v. Smith, case No. A113285.) On December 2, 2005, Smith moved for an order setting aside and vacating that judgment. On January 23, 2006, he moved for an order setting aside and vacating the judgment entered in this case. Smith claimed here, as he had in the other action, that despite the declaration of Deputy Symborski, he had not been served with the summons and cross-complaint, asserting that the first time he learned of the judgment was on April 3, 2004, when he found a copy of a motion for attachment at his mothers home. Smith contended the judgment was void for lack of service and because the damages awarded exceeded those sought against Smith in Oroscos cross-complaint.

The trial court denied the motion. The court explained it had considered the evidence offered by Smith to support his claim Deputy Symborski had effected service on someone other than Smith. The court found it more probable than not, based on the evidence before it, that Smith was in fact personally served on the date shown on the proof of service. It found (1) Smith was not entitled to relief under Code of Civil Procedure sections 473 or 473.5; (2) Smith was not entitled to relief on equitable grounds as he had not shown either a fraud on the court or other circumstances justifying relief; and (3) the judgment was not void. The court rejected Smiths contention that the judgment was void because it awarded Orosco more damages than those claimed in his cross-complaint, citing the portions of Oroscos pleadings and prayer wherein he sought $100,000 punitive damages from Smith.

Discussion

Smiths other appeal, case No. A113285, also involved service of the pleadings by Deputy Symborski and Smiths claim that Deputy Symborski actually served someone who, although at or near Smiths place of business, generally meeting Smiths description and stating that he was Fletcher Smith, was in fact some other person. We explained there that where service has been effected but has not resulted in actual notice to a party, that party may seek relief from default under Code of Civil Procedure section 473.5 and/or Code of Civil Procedure section 473, subdivision (d), but such relief must be sought no later than the earlier of (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc. 473.5, subd. (a); Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121, 1124.) Smith did not seek relief within two years of the entry of default judgment, and therefore has lost the opportunity to seek relief from default under either statute.

However, Code of Civil Procedure section 580 limits the relief that may be granted to the plaintiff to that demanded in the complaint. Section 580 applies also to cross-complaints. (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1320-1321; Swycaffer v. Swycaffer (1955) 44 Cal.2d 689, 692-693.) The primary purpose of this section is to insure that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] If a judgment other than that which is demanded is taken against him, [the defendant] [or cross-defendant] has been deprived of his day in courta right to a hearing on the matter adjudicated. [Citations.] (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493 (Becker).) Code of Civil Procedure section 580 requires notice of both the type and the amount of relief sought. (Becker, at pp. 493-494.) A default judgment that exceeds the demand is void. (Greenup v. Rodman (1986) 42 Cal.3d 822, 826; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830-831.)

Oroscos pleadings were insufficient for at least two reasons. First, while Oroscos cross-complaint sought damages from Smith on various claims, it did not seek damages from Smith for the claim on which damages were awarded: the guaranty that the sketch was authentic. It therefore provided no notice to Smith that he might be held liable on that claim. Indeed, the complaints allegations were completely inconsistent with such a claim. Second, the compensatory damages awarded, $26,250, exceeded the amount of compensatory damages sought by Orosco on any of the claims he stated against Smith. The trial courts ruling was based on Oroscos claim for punitive damages, but Oroscos claim for $100,000 punitive damages provided no notice that Smith might be held liable for $26,250 in compensatory damages for something the complaint affirmatively shows he did not do. It follows that the judgment is void on its face. Where it can be ascertained from the record that a judgment is void, it may be set aside upon motion, with no limit on the time within which the motion must be made. (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1154.)

The trial court should have granted Smiths motion to set aside the judgment.

Disposition

The order denying Smiths motion to set aside the judgment is reversed and the matter is remanded to the trial court with directions to enter a new order granting the motion vacating the default and setting aside the judgment. Smith is awarded his costs on appeal.

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STEIN, J.

We concur:

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MARCHIANO, P. J.

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MARGULIES, J.

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