Alan v. Stephens

Filed 8/10/07 Alan v. Stephens 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Los Angeles County. Josh M. Fredricks, Judge. Affirmed.

Campion & Rodolff, Barry L. Rodolff; Legal Management Services and James E. Walker, III, for Defendant and Appellant.

Law Offices of Keith Alan and Keith Alan for Plaintiff and Respondent.

______________________________

Following an automobile accident on May 5, 2003, plaintiff Tami K. Alan commenced a lawsuit for personal injury and property damage against defendant Charles S. Stephens. Alan was represented by her husband, Attorney Keith Alan. Stephens was served by substituted service, but failed to answer or otherwise respond within the required deadline. On Alans request, the clerk entered Stephenss default. Approximately 14 months later, judgment was entered against Stephens in the amount of $577,461.25 after a default prove-up hearing. The trial court denied Stephenss subsequent motion to vacate the default judgment. Stephens appealed that ruling, contending the court abused its discretion in denying his requested relief. He also contends the default judgment was excessive as a matter of law.

We reject both contentions and affirm. As to the denial of Stephenss motion to vacate the default judgment, we find the record supported the trial courts finding of Stephenss inexcusable neglect. With regard to Stephenss challenge to the judgment itself, we find Stephenss failure to timely appeal from the default judgment constitutes a jurisdictional bar to appellate review.

Procedural History

The complaint against Stephens was filed on April 15, 2004, naming him as the sole defendant and alleging his negligent driving was responsible for a collision with Alans vehicle, resulting in Alans personal injuries and property damage. The complaint alleged the accident occurred on May 5, 2004,^[1]and listed seven types of compensatory damages, including emotional distress according to proof. A statement of damages was also served, detailing damages totaling $697,000. On May 4, 2004, Alan filed an amendment to the complaint, adding Dominos, Inc. and Dominos, Pizza, Inc. as Doe defendants in their capacity as Stephenss employer.^[2] On July 14, 2004, Alan filed a proof of service of summons of complaint and other documents on Stephens, showing substituted service accomplished on June 2, 2004, by personal service on Stephens wife. A declaration of diligence regarding service was also filed that day, showing seven attempts to serve Stephens from April 27 to May 23, 2004.

On July 19, 2004, the trial court entered a stipulated order, signed by Stephens and Attorney Alan, to correct the typographical error in the complaint as to the date of the underlying accidentchanging it from May 5, 2004, to May 5, 2003. On July 19, Alan also filed her request for entry of default as to Stephens and default was entered that day.^[3]

Alan initially requested a default prove-up hearing and default judgment in late December 2004 or early January 2005. The hearing was continued or otherwise delayed numerous times, resulting in the trial courts issuance of an order to show cause why the case should not be dismissed for Alans failure to prosecute. That order was eventually discharged, however, and the default prove-up hearing finally began on June 22, 2005, in the superior court. The hearing proceeded for approximately 90 minutes before it was ordered continued.

Alan served Stephens with a notice of further continuance of the default hearing from its commencement on June 22, 2005, to July 19, 2005. A notice that Alan had paid a court fee in connection with the default prove-up hearing was served on Stephens on July 20, 2005. Notices of further continuances to August 8, 19, and September 12, 2005, were served respectively on July 20, August 3, and August 23, 2005. An additional declaration by Attorney Alan in support of the request for default judgment was served on Stephens on August 23, 2005.

On September 12, 2005, the trial court entered its default judgment for $577,461.25 against Stephens. The court found Stephens was duly served with the summons, complaint, statement of damages, and other documents on June 2, 2004, and that Stephens failed to respond within the required time.

Until that time, Stephens had not been represented by counsel. On November 23, 2005, Attorney Barry L. Rodolff, representing Stephens, filed a motion to vacate the default judgment and set aside the entry of default. Alan opposed the motion and filed objections to Stephenss supporting declarations and documents.^[4] The hearing took place on January 23, 2006. After hearing argument, the trial court ruled against Stephens, finding he had been given ample notice, but culpably failed to take any significant action to protect his rights. Despite receiving multiple notices about the entry of default and the pending prove-up hearing, Stephens neither requested his employer defend him nor sought relief from the court. Stephens filed an appeal from that order on March 21, 2006.

Stephenss Evidence

Stephens declared that he was in an automobile accident with Alan on May 5, 2003. He had just completed a pizza delivery for his employer, Pizza Hut, Inc., and was returning to the restaurant when the collision occurred. Following the incident, Stephens immediately informed his insurance carrier, Viking Insurance, about the accident. He also told Pizza Hut about the accident because he understood his employers insurance would cover any damages, if Viking did not. In June, Stephens received a letter from claims representative Theresa Roy of Gallagher Bassett Services, Inc. (Gallagher), informing him that Gallagher was Pizza Huts claims administrator and it was investigating the May 5 accident. Roy explained that Stephens, as the driver, might be covered by Pizza Huts policy. Gallagher required his cooperation and requested Stephenss personal insurance information. Roy also requested Stephens schedule an appointment to obtain his recorded statement concerning the accidentwhich Stephens provided on June 23, 2003.

Stephens stated he was surprised when he was served with Alans complaint on June 2, 2004, claiming that in the past year, he had received little to no information regarding the accident and assumed either Viking or Gallagher had resolved the matter or was handling it appropriately. Stephens immediately informed Viking and Gallagher about the complaint, and he forwarded the complaint and attached documents to Viking, believing that it was the primary insurer in the matter.

Stephens received a letter from Viking, dated June 22, 2004, informing him that Viking was denying coverage and that Gallagher was the handling entity. Stephens declared he confirmed with Gallagher that it was properly responding to the lawsuit on his behalf, relieving him of the need to take any action himself. Additionally, Stephens believed Alans claim would be easy to resolve because, at the scene, she had denied being hurt in the accident.

According to Stephens, he was shocked to hear from Pizza Huts counsel in early November that a $577,000 judgment had been entered against him. He was astonished and angry to learn that Gallagher had not defended him, despite its assurances. Stephens also asserted Alan never warned him of her intent to obtain a default judgment against him.^[5] Had he been aware of Alans intent and Gallaghers inaction, he would have taken the necessary steps to defend himself against Alans groundless accusations.

In his declaration, however, Stephens fails to mention a number of important statements contained in Vikings June 22, 2004 letter to him.^[6] For instance, Viking stated that it had already informed Stephens that it had denied Alans claim almost a year before that (on July 30, 2003), having advised Stephens that the Viking policy contained an exclusion for pizza delivery. Viking also informed Stephens that on June 11, 2004, that it contacted Gallagher to advise Gallagher of Vikings prior denial and its reason for doing so. Viking also told Gallagher about the service of Alans summons and complaint on June 2, 2004, which it forwarded to Gallagher. Viking informed Stephens that [i]t would appear that Pizza Huts insurance policy would be primary for this accident, and would owe you a defense and indemnification on this matter. Viking gave Stephens the name and telephone number of a Gallagher representative to contact so Stephens could confirm that Gallagher would be handling the defense of this matter for you.

Stephens also submitted the declaration of Bruce G. Tucker, president of Legal Management Services, LLC (LMS), the national litigation coordinating counsel for Pizza Hut. Tucker declared that LMS received no documentation concerning the underlying accident or Alans lawsuit until October 19, 2005, when LMS received a copy of the default judgment. Despite his ensuing prompt, diligent efforts to investigate the matter, LMS was unable to obtain a copy of Gallaghers file until late October. It did not obtain the superior court file until November 10, 2005. Mr. Tucker instructed local counsel to seek a stipulation from Attorney Alan to vacate the default judgment, but when Attorney Alan refused, Tucker had local counsel prepare the motion to vacate as soon as possible.

The declaration by Rodolff states that he was retained by LMS to represent Stephens in late October 2005. Rodolff immediately attempted to contact Attorney Alan concerning a stipulation to vacate the default judgment, but the latter did not return his message. In early November, Attorney Alan repeatedly told Rodolff that he was too busy to discuss the matter. As a result, Rodolff prepared and filed the motion to vacate the default judgment.

Stephens presented additional evidence, including the police report on the underlying accident. It stated that Stephens caused the collision by making an illegal lane change, but there were no resulting injuries. Alan indicated that she was fine and did not require medical attention.

A June 24, 2003 letter from Roy to Viking shows that Gallagher was aware of the accident and believed Viking had the primary duty of covering losses attributable to Stephens. Roy requested Viking handle the claim without further delay. She also requested that Viking keep Gallagher apprised of any releases or settlements, so that Pizza Hut could protect its interests. Finally, Roy stated: In the event it appears [Stephenss] policy limits may be breached or there is no coverage, please immediately advise [Gallagher] in writing to allow Gallagher to undertake [its] own investigation and extend coverage as the excess insurer.

On that same day, Roy wrote to Attorney Alan, informing him that Gallagher represented Pizza Hut in regard to the May 5, 2003 accident involving the delivery driver (the letter did not mention Stephens by name). Roy advised Attorney Alan that Gallagher was the excess insurer and that Stephenss insurer had the primary obligation to cover the loss. Accordingly, Attorney Alan should resolve the matter with the primary insurer; however, [s]hould our investigation reveal that the Pizza Hut driver did not carry liability insurance for the date of loss . . . we will then be in a position to address your claims of damages directly with you.

In a letter dated July 30, 2003, Viking informed Alan that it was denying coverage for Stephens because its policy did not cover him on the date of loss. The letter indicated that it was copied to Roy at Gallagher. Two weeks later, Attorney Alan sent a letter to the rental car provider, telling it to send all billing statements to Roy, Pizza Huts adjuster. That same day, he wrote to Roy, informing her that he believed Pizza Hut was liable for all damages attributable to its employee, Stephens.

On October 8, 2003, a representative of American Expressapparently the insurers for the Alans regarding the loss of their vehiclewrote to Roy, requesting payment of $8,598.45 on the subrogation claim for the loss of the vehicle. It appears that Gallagher made that payment.

On December 18, 2003, Roy wrote to Attorney Alan, informing him that Gallagher was the claims administrator for the above referenced clienthowever, although the letter referenced the correct incident date and claim number, it listed Trader Joes as the client. Roy requested that he contact her within 30 days if he planned to present a claim for damagesGallagher would assume there was no such claim if he did not do so by January 28, 2004. On that date, Gallagher would retire its file.

Internal Gallagher memoranda indicated that it had closed its file when Roy did not hear back from Attorney Alan. On January 23, 2005, it was recommended that the file be reopened in response to the filing of a lawsuit, and that the file be sent to LMS for it to handle. A memorandum of August 31, 2005, however, stated that no complaint could be found either at Gallagher or LMS, and that the file had been closed after making the payment of $8,598.45 for the property damages because neither Gallagher nor LMS received a complaint.

The September 29, 2005 fax cover sheet from Viking to Gallagher indicates that Gallagher received a file-stamped copy of the September 12, 2005 default judgment against Stephens on October 21, 2005. The cover sheet informed Gallagher that Viking had denied the underlying claim on July 30, 2003, and June 22, 2004, based on the policys livery exclusion, which included delivering of pizza.

Alans Evidence

Alan supported her opposition to the motion to vacate with a declaration by Attorney Alan. The summons, complaint, and related pleadings, including Alans statement of damages, were served on Stephenss wife on June 2, 2004, at Stephenss residence on Coral Lane in Long Beach. Stephens telephoned attorney Alan the following day. Among other things, Stephens denied being in a car accident on the date alleged in the complaint, May 5, 2004. Attorney Alan then realized that the date pleaded was a typographical error, and told Stephens that the accident date was actually a year earlier. In response to Stephenss inquiry, Attorney Alan explained that it was necessary to serve Stephens, rather than his insurance company, and that Stephenss response was due in 30 days. Attorney Alan also suggested Stephens retain a lawyer. A few days later, Attorney Alan telephoned Stephens and informed him that the answer to the complaint was due on July 12, not July 2, as he had told Stephens previously. Attorney Alan told Stephens that if he did not file an answer by that date, Alan would request the entry of a default against him.

In that telephone conversation or a subsequent one in early June, Attorney Alan asked Stephens to stipulate to correcting the error in the complaint as to the accident date. Stephens agreed. Attorney Alan also verified that Stephenss correct mailing address was the Coral Lane address where his wife had been served with the complaint and summons.^[7] In a telephone conversation later that month, Stephens told Attorney Alan that he had signed and returned the stipulation.

On July 14, 2004, attorney Alan served Stephens by mail with a copy of Alans request for entry of default. Soon afterwards, Stephens telephoned Attorney Alan. He was very upset and demanded to know the meaning of the pleading. Attorney Alan responded that it meant that no answer had been filed by the July 12 deadline, and if [Stephens] did not get a lawyer to help him, he would lose the case by default. Stephens said he had forwarded the complaint to his insurance company and did not know why it had taken no action on his behalf. Attorney Alan advised him that it was not too late for a lawyer to help him and protect him in the case. On July 23, Attorney Alan served Stephens by mail with a copy of the file-stamped request for entry of default, showing that default had been entered against Stephens on July 19, 2004.

On December 20, 2004, Attorney Alan served Stephens by mail with the pleadings in support of Alans request for default judgment in the amount of $698,127.80. When Attorney Alan discovered that the superior court could not locate those default pleadings, he served Stephens with a new set on January 6, 2005. On January 13, the commissioner presiding over the default matter issued an order rejecting Alans proposed default judgment and supporting papers, finding the supporting declaration failed to establish Stephenss liability. Among other things, it also found the damages requested exceeded the amounts in Alans statement of damages. In response, on February 22, 2005, Attorney Alan served Stephens by mail with another set of default judgment pleadings, this time seeking a judgment of $697,000.

The commissioner issued an order on March 23, 2005, informing Alan that it generally required live witness testimony, rather than declarations, to establish damages, and directing Attorney Alan to schedule a hearing date. Attorney Alan scheduled a hearing for May 23, 2005, serving Stephens with notice by mail on April 29, 2005. As a condition to obtaining the hearing date, Alan was required to dismiss all Doe defendants.

However, on May 19, 2005, the commissioners clerk informed Attorney Alan that the court was unavailable for the May 23 hearing. A continued date of June 22, 2005, was agreed upon, and Attorney Alan served Stephens by mail with a notice of that continuance. The hearing began on June 22, but could not be completed on that date. It was subsequently continued to July 19, August 8, and August 19, 2005. In each case, Attorney Alan gave Stephens notice by mail. The hearing recommenced on August 19, at which time the commissioner suggested Alan submit the balance of her evidence by declaration and set a continued hearing date of September 19, 2005, for the hearings completion. Attorney Alan served Stephens with notice of that continuance on August 23, 2005. He filed and served his supporting declaration and pleadings, including a proposed judgment in the amount of $577,461.25, on September 7, 2005. Judgment was entered against Stephens at the September 19 hearing. Attorney Alan served Stephens by mail with notice of the judgment on September 28, 2005.

DISCUSSION

Stephens contends the trial court abused its discretion by failing to grant his motion for relief from default. Initially, however, we address the question of jurisdiction. Stephens did not appeal the underlying default judgmentan unavailable option at the time he filed his notice of appeal on March 21, 2006, given that the judgment had been entered September 12, 2005, which was outside the normal jurisdictional deadline and the extended deadline period applicable to motions to vacate judgment. (See Cal. Rules of Court, rules 8.104(a), 8.108(b).) Stephenss notice of appeal indicates that he appealed from the denial of his motion to vacate the default judgment, pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). The general rule is that nonstatutory motions to vacate such as Stephenss are not appealable. (See, e.g., Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 202-203 (Forman); see also Winter v. Rice (1986) 176 Cal.App.3d 679, 681 (Winter) [Although it may be reviewed on an appeal from the judgment, no direct appeal lies from an order denying a motion to vacate a default].)

Of course, [a]n appealable judgment or order is essential to appellate jurisdiction and it is our duty to consider the question of appealability on our own motion [citation] and to dismiss the appeal if the order is not appealable. (Winter, supra, 176 Cal.App.3d at pp. 681-682.) We requested supplemental briefing from the parties on whether we had jurisdiction to review this appeal. As Stephens cogently explains, his appeal from the postjudgment ruling is reviewable to the extent an appeal from the underlying judgment could not provide effective relieffor instance, because the record at the time of judgment would not disclose the grounds for appeal. (E.g., In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1043; cf. Nagelmann v. McIntyre (1938) 27 Cal.App.2d 621, 622-623 [dismissing appeal where all matters and arguments raised in connection with the motion to vacate were reviewable upon appeal from the judgment].)

Accordingly, our review will be limited to the trial courts denial of the motion to vacate. We have no jurisdiction to review Stephenss challenge to the judgment itself. The default judgment was an appealable order and the question whether the amount was excessive as a matter of law would have been reviewable had Stephens appealed that judgment. (See Forman, supra, 173 Cal.App.3d at pp. 202-203; Nagelmann v. McIntyre, supra, 27 Cal.App.2d at pp. 622-623.)

We turn, therefore, to the motion to vacate. Because Stephens filed his motion to vacate after the six-month deadline required for such a motion under Code of Civil Procedure section 473, subdivision (b), his motion was addressed to the trial courts inherent equitable power . . . to set aside a default judgment based on extrinsic fraud. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1299-1300, citing Olivera v. Grace (1942) 19 Cal.2d 570, 576-577; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (Rappleyea).) We review a challenge to a trial courts order denying a motion to vacate a default on equitable grounds as we would a decision under [Code of Civil Procedure] section 473: for an abuse of discretion. (Rappleyea, supra, 8 Cal.4th at p. 981.) Our review is, therefore, deferential. The disposition of such a motion rests largely in the discretion of the trialcourt, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion. Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] We have said that when two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479 [The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court].)

Here, the trial court was well within its discretion in finding no basis for equitable relief based on extrinsic fraud or mistake. Our Supreme Court has defined that term broadly to apply when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. (Rappleyea, supra, 8 Cal.4th at p. 981.) More specifically, [e]xtrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] (Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at p. 1300.) The essence of extrinsic fraud is one partys preventing the other from having his day in court. [Citations.] Extrinsic fraud only arises when one party has in some way fraudulently been prevented from presenting his or her claim or defense. (Ibid.)

We find nothing in the record to demonstrate that extrinsic factors prevented Stephens from answeringor otherwise responding tothe complaint. Certainly, this case does not present the extraordinary circumstances found to compel equitable relief in Rappleyea. There, the Supreme Court found the defendants were misled into missing their filing date by their reliance on the court clerk, who misinformed them of the filing fees due, and the plaintiffs counsel, who misinformed them of their rights. (Rappleyea, supra, 8 Cal.3d at pp. 978-979.) Stephens, in contrast, can point to no reliance on mis-advice from the lower court or misinformation from Alan.

Certainly, the trial court was not obligated to accept Stephenss representations concerning his claimed lack of notice and surprise. Indeed, on appellate review, we must assume the trial court credited the representations made on behalf of Alan, including that Attorney Alan warned Stephens of his obligation to answer and the likely consequences of his nonaction. We also note the evidence below supported the finding that Gallagher had timely notice of the complaint and summons, as well as of its duty to defend. An essential requirement for obtaining relief from a judgment on grounds of extrinsic fraud is that the party seeking relief demonstrate a satisfactory excuse for not defending the action. (Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at p. 1301, citing Rappleyea, supra, 8 Cal.4th at p. 982.) The trial court reasonably found Stephens failed to do so.

Alans reliance on Weitz v. Yankosky (1966) 63 Cal.2d 849 is misplaced. There, no abuse of discretion was found after the trial court granted the motion to set aside default based on its findings that neither the defendant nor the insurer were at fault for failing to answer the complaint. (Id. at p. 856.) Here, however, the trial court found Stephens culpably and without justification relied on either his insurer or his employers insurer to defend him. That finding is amply supported by the record. First, Stephenss own evidencethe June 2004 letter from Vikingtends to show not only that he knew Viking had denied coverage well in advance of the lawsuit, but also that Gallagher had actual knowledge of Alans pending lawsuit and reason to believe it had a duty to defend as early as June 11, 2004. As shown above, Stephenss own declaration and documents show he should have known Viking would not defend him and that he must seek a defense from Gallagher as of the same date. Therefore, when Stephens received the notice of default and the numerous notices concerning the default prove-up hearing, Stephens had every incentive and opportunity to contact Gallagherand no good excuse for failing to do so.

Nor does Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139 advance Stephenss argument. In Scognamillo, the appellate court affirmed the trial courts denial of the statutory motion to vacate, despite uncontradicted evidence that Herrick acted reasonably in relying on his insurer to answer the complaint and where the only evidence presented tended to show the insurers inexcusable negligence. According to both sides, Herrick promptly delivered the summons and complaint to his insurance broker. Thereafter he called his insurance broker at least twice to inquire about the handling of this lawsuit, once after receiving a call from the plaintiffs counsel and once after receiving a request for entry of default. He was reassured each time that the matter was being handled. (Id. at p. 1148.) Here, in contrast, Stephenss efforts to insure his complaint was being properly handled by a third party were desultory at best. Moreover, as the Scognamillo court explained, Herricks own lack of culpability is not necessarily determinative in such circumstances: There is no indication that the Legislature intended that insureds who reasonably rely on their insurance carriers should not be charged with the inexcusable negligence of their carriers. (Id. at pp. 1149-1150.) Here, as we have explained, there was substantial evidence of both Stephenss and Gallaghers culpability.

Finally, Stephens argues his own lack of business and legal acumen supported a finding of extrinsic mistake or fraud. However, as the evidence of Stephenss naivete was disputed, we will not draw a contrary inference from the trial courts implicit finding. We note that the summons itself warned Stephens of the deadline for filing a response and cautioned him that a letter or telephone call would not protect him. (See Davis v. Thayer (1980) 113 Cal.App.3d 892, 906.) Stephenss pro se status was not a ground for exceptionally lenient treatment. (Rappleyea, supra, 8 Cal.4th at p. 984.) Having found Stephens failed to clear the initial hurdle in establishing an entitlement to equitable relief, we need not address whether vacating the judgment would prejudice Stephens. (Cf. Id. at p. 981.)

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] The parties later stipulated that the proper date was May 5, 2003.

^[2] We note that attorney Alan declared that in May 2004, he amended the complaint against Stephens to add two Dominos Pizza entities as Doe defendants under the mistaken belief that Dominos was Stephenss employer. However, the Viking correspondence tends to show Alan knew as early as June 24, 2003, and no later than July 30, 2003, that Stephenss employer was Pizza Hut. Nothing in the record supports Alans assertion that she received information that Stephens was employed by Dominos. Pizza Hut was never named or served.

^[3] According to the request for default, Stephens was served with a copy of that document by mail on July 14, 2004.

^[4] The trial court, however, never ruled on those objections. Alan repeatedly asserts evidence to which she objected cannot be considered on appeal because Stephens failed to press for evidentiary rulings on Alans objections. The law is otherwise. The parties made various evidentiary objections to each others affidavits and the attachments thereto in the trial court, but the trial court declined to rule on the objections and neither side pressed for a ruling. Therefore, the objections are deemed to be forfeited. [Citation.] [I]n reviewing the trial courts order denying the motion, we consider all the evidence presented by the parties. [Citation.] (E.g., Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291, fn. 17.) Of course, our consideration of that evidence is constrained by the applicable standard of review.

^[5] Stephens declared he was never warned by Alan herself; he did not directly controvert Attorney Alans declaration testimony that he, as Alans counsel, warned him.

^[6] A copy of the June 22, 2004 Viking letter addressed to Stephens and copied to Gallagher, was attached to Stephenss motion to vacate the default judgment. In his declaration, Stephens admits he received the letter.

^[7] Although Stephens argues he moved from the Coral Lane residence on February 1, 2005, there is no evidentiary support for that assertion. Stephens conceded below that he failed to provide any notice of his claimed change of address. In his declaration, Attorney Alan stated that no mailings to the Coral Lane address were returned.