Southern Counties Construction v. Garden Grove

Filed 3/7/07 Southern Counties Construction v. Garden Grove RV CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed.

Scott E. Christensen for Defendant and Appellant.

Barry G. Coleman and Timothy M. Ryan for Plaintiff and Respondent.

* * *

Defendant Garden Grove RV Storage seeks relief from a default judgment totaling $34,507.86. Defendant argues the judgment was improper because its answer to a superseded complaint was sufficient, the plaintiff could not maintain the action and the trial court lacked jurisdiction because plaintiff was an unlicensed contractor, the judgment violates the one final judgment rule and was in excess of the amount sought in the complaint, and the judgment was supported by insufficient evidence. Because none of these arguments have merit, we affirm.

I

FACTS

Plaintiff Southern Counties Constructions Services, Inc. (Southern) is in the business of providing construction equipment and operators to contractors and others in that industry. Through a broker, Southern provided equipment to Garden Grove RV Storage (Garden Grove).

Southern claimed that Garden Grove failed to pay, and in September 2004, it filed a complaint seeking payment for services rendered from Garden Grove, and codefendants Frontier Equipment Rentals, Inc. (Frontier), the broker, KJ Heavy Equipment Rentals, Inc., (KJ), and Robert Keith Sperl (apparently the owner of both Frontier and KJ). Although presented as several different causes of action, it was, in essence, a breach of contract claim for $15,681.^[1]

A number of signed receipts, with the customer listed as KJ equipment, were attached to the complaint, which included the following language: In the event action need be taken to enforce collection of any sum due under this agreement, the undersigned agrees to pay all reasonable costs, collection fees and/or attorney fees necessarily incurred.

Garden Grove filed an answer and cross-complaint in November 2004. The cross-complaint did not name Southern, but named KJ, Frontier, and Sperl as defendants. Southern attempted to file a first amended complaint on January 21, 2005, but the court struck this pleading at the case management conference. Frontier answered Garden Groves cross-complaint and filed its own cross-complaint against Garden Grove. Frontier and Sperl filed a demurrer to Southerns initial complaint, which was sustained with 10 days leave to amend.

Southern filed its first amended complaint on May 3, 2005. The parties attempted to negotiate an extension for Garden Groves time to answer in exchange for voluntarily producing documents. On June 24, Southerns counsel advised Garden Groves attorney that Garden Grove had until June 29 to file a responsive pleading and produce documents, or Southern would file a request for entry of default.

No responsive pleading was filed. On July 6, Southern filed a request for entry of default. A copy was served on Garden Grove, and on July 8, Garden Groves default was entered. In August, Southern filed and served a case management statement indicating that default had been entered against Garden Grove. Southern asserts that none of these events resulted in any action by Garden Grove or its counsel.

On February 7, 2006, Southern filed a request for court judgment, seeking a total of $40,574.51. On February 16, Garden Grove filed a motion to vacate the default. Garden Grove sought relief in equity as the result of extrinsic mistake, recognizing that the time for relief under Code of Civil Procedure section 473 had expired. Southern opposed, arguing the motion and supporting papers did not show extrinsic mistake, but only intrinsic mistake, which is not grounds for relief.

The court heard the motion in April 2006. The tentative was to deny the motion and Garden Grove submitted on the tentative without argument. The court then denied the motion on the basis that there was no showing of extrinsic mistake. The default prove-up was taken under submission.

With regard to the default prove-up, the court entered judgment against Garden Grove on May 11, 2006. The judgment provided for the amount of damages requested in the complaint, $15,681, costs of $560, prejudgment interest of $3,266.86, and attorney fees of $15,000. On May 12, Garden Grove filed its first amended cross-complaint, purporting to name Southern as well as the other parties as a defendant. Garden Grove now appeals from the default judgment.

II

DISCUSSION

Garden Groves Brief

Southern complains and rightly so about the lack of record references in Garden Groves brief. In its sporadic and incomplete references to the record, Garden Grove used a reference table. Thus, its brief included a reference number rather than a record citation, requiring Southern and the court to refer to the table each time Garden Grove cited a reference, an extra and unnecessary step. The references, moreover, were to the entire document. Reference 7 was to the first amended complaint and all its exhibits, comprising some 30 pages.

We remind Garden Grove and its counsel of the following requirements of the California Rules of Court. Each brief must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where it appears.

(Cal. Rules of Court, rule 8.204 (a)(1)(C), italics added; further rule references are to the California Rules of Court.) Thus, it is insufficient to cite the court to an entire document, rather than to the volume and page on which the document appears. Nor is it permitted to use a self-created reference table that might make briefing easier for that party, but makes the task of opposing counsel and the court more difficult.

Southern pointed out these deficiencies (along with the fact that the reference table was not initially filed and served with Garden Groves opening brief), and specifically cited the relevant case law and Rules of Court. Garden Grove was unrepentant and claimed Southern had no cause to complain. While Garden Grove apologized for failing to file the reference table with its opening brief, it apparently missed the point entirely that the reference table itself did not sufficiently comply with the Rules of Court because it did not cite to a specific volume and page in the record.

A partys failure to support the arguments in its briefs by record references, including exact page citations, may result in its arguments being deemed waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Fortunately, Southern has provided sufficient record references for most relevant facts. To the extent any of Garden Groves arguments are based on facts we cannot locate in the record, those arguments shall be deemed waived.

Original Answer as Sufficient

Garden Grove argues that its default should not have been entered because its original answer was sufficient to controvert the first amended complaint. As a general matter, an amended complaint must be followed by a new answer. The law is established in California that an amended complaint supersedes the original complaint and thereafter the original complaint performs no function as a pleading. [Citations.] Therefore, since in the present case an amended complaint was filed by plaintiff, it superseded the original complaint as a pleading, and defendants acts with reference to the original complaint may not be considered in determining his status with reference to the amended complaint. (Darsie v. Darsie (1942) 49 Cal.App.2d 491, 493-494.)

Garden Grove argues that minor corrections not affecting [the] cause of action do not act to supersede the original complaint. It cites a case and argues the same rule should apply here. (See, e.g., Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808-809.) Garden Grove, however, offers no analysis comparing the cited case to the facts present here, or any reason as to why the amendments should be considered minor corrections. It merely asserts that the ultimate facts are the same, therefore no answer to the first amended complaint is required. Whether or not the ultimate facts are the same, Garden Grove offers no case on point stating that an amended complaint relying on the same ultimate facts requires no answer. Nor does it follow that the case law regarding minor corrections applies an amended complaint can state the same ultimate facts while going far beyond minor correction. Indeed, the case on which Garden Grove relies states the exception applies only where the amendment is merely as to formal or immaterial matters, and does not change the cause of action . . . . [Citations]. (Ibid.)

In the amended complaint, Garden Grove was named as a defendant in two causes of action in which it was not named in the original complaint. Thus, it has never answered Southerns allegations as to those two causes of action. Garden Groves amendments went far beyond minor corrections, and the case upon which it relies has no application here.

Southerns Status

Garden Grove next claims that Southern is an unlicensed contractor and therefore not entitled to recover compensation. Garden Grove further asserts that this is a jurisdictional issue effecting the courts power to hear the case.

We can dispense with the second question easily. Garden Grove does not cite a single case stating that the lack of a contractors license divests the court of jurisdiction. Business and Professions Code section 7031 speaks to an unlicensed contractors ability to bring or maintain a suit, and perhaps Garden Grove has confused these points. In any event, this contention is contradicted by case law and without merit. (See Stephens v. Baker and Baker (1957) 150 Cal.App.2d 558; Maronga v. Mitchell (1951) 104 Cal.App.2d 799, 805.)

As to the license requirement itself, Garden Grove can point to nothing in the record below and no evidence to support the claim that Southern, as a provider of equipment and equipment operators, was required to have a contractors license. Its lengthy argument on this issue includes not a single case citation or reference to the record, and is properly deemed waived by this court. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.) Moreover, on the record before us, Garden Grove is simply wrong. [A] person or company in the business of supplying equipment or hiring out laborers to be supervised by others is not deemed to act in the capacity of a contractor and is not required to have a license. [Citations.] (Contractors Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152, 165.)

One Final Judgment Rule

Garden Grove next argues that the cross-complaints must be disposed of at the same time under the one final judgment rule. Garden Grove cites the general rule permitting only one final judgment, then argues that because of the multiple parties and issues, the court committed reversible error by allowing itself to be drawn into premature Default processes in clotured hearings with Plaintiff.

There is no demonstration of error. The one judgment rule has been articulated thusly: [A]s a general rule there can be only one final judgment in a single action. [Citation.] A final, ordinarily single, judgment is a prerequisite to appealing from an action, its purpose to avoid piecemeal appeals. (9 Witken, Cal. Procedure (4th ed. 1997) Appeal,  58, p. 113.) There is no violation of the final judgment rule here because the default judgment ended all of Southerns claims against Garden Grove. Indeed, if there were not a final judgment, Garden Grove could not proceed with this appeal. As to the cross-complaints between Garden Grove and the other parties, those provide no impediment to the final judgment rule because the claims are between different parties. Despite its attempt to do so, Garden Grove cannot properly maintain a cross-complaint against Southern filed for the first time the day after judgment in the initial action was filed. The right to file a cross-complaint is statutory. (Code Civ. Proc. 428.50.) The statute does not provide any mechanism to file a cross-complaint for the first time after that party has already obtained a judgment. (City of Hanford v. Superior Court (1989) 208 Cal.App.3d 580, 587.) This argument, therefore, fails.

Judgment Amount

In a confusing argument, Garden Grove appears to argue that the amount of the judgment against it was in excess of the amount claimed in the complaint, in violation of Code of Civil Procedure section 580. Garden Grove appears to be arguing that because $15,681 was the total amount of damages claimed in a case with multiple defendants, it can only be liable for a pro rata share of that amount. The language of the complaint, however, sought judgment for the full amount of liability against each defendant. Thus, Garden Grove had notice of the maximum judgment being sought against it, and its assertions that it lacked notice or that its due process rights were violated cannot be maintained.

Misfeasance of the Court

Garden Grove asserts two points here. First, it claims the court committed misfeasance by failing to resolve the causes among all the parties in open Court adversarial proceedings at the same time. Garden Grove fails to offer any argument whatsoever on this point, much less authority, and we deem it waived. Further, it does not seem this argument differs any from its claim regarding the final judgment rule discussed ante.

Garden Grove next claims, in this argument and the following, entitled nonfeasance by the court that the court erred by failing to delimit its Judgment to matters pled. Garden Grove spends pages of its brief attacking the evidence presented by Southern, the manner in which it was presented, and the effect the evidence was given by the trial court. It claims Southerns pleadings demonstrates that KJ should be liable while Garden Grove was not.

To the extent Garden Grove argues that Southerns claims were defeated by Garden Groves original answer, this argument has no merit, as we discussed ante with reference to Garden Groves argument that its original answer was sufficient. As a matter of law, Garden Groves answer to the initial complaint had no legal import.

Mostly, however, this is an argument relating to the sufficiency of the evidence at the default prove-up hearing, which cannot be entertained. Among other claims, Garden Grove argues the court accepted bogus and fraudulent declarations. But the sufficiency of the evidence cannot be reviewed on an appeal from a default judgment. [Citation.] [Citation.] The default admits the allegations of the complaint. If extraneous evidence is introduced at the prove-up hearing, defendant lacks standing to complain. Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)

Thus, the evidence considered by the trial court at the default prove-up cannot defeat the judgment. In its reply brief, Garden Grove repeats these points, arguing the judgment was based on fraud, that Southern has failed to show the existence of a contract with Garden Grove. Garden Grove seems to miss the point that it does not matter if Southern would not have been able to prove its case against Garden Grove at trial. This was a default, and in a default proceeding, the allegations of the complaint are admitted. (Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at p. 1303.) Relief is granted pursuant to the pleadings.

The amended complaint sought damages of $15,681, plus attorney fees under the alleged contract, as well as costs and interest. That is exactly what was awarded in the judgment. Garden Grove offers no argument that the amount of costs or attorney fees awarded was excessive. Further, this is not a case in which the judgment on default exceeded what was sought in the pleadings. (See, e.g., Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494.) We find no error.

III

DISPOSITION

The judgment is affirmed. Southern is entitled to its costs on appeal.

MOORE, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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^[1]No argument is offered on appeal that this was properly a limited jurisdiction case.