Filed 12/20/17 Steinhart v. Cresswell CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


SALLY STEINHART,
Plaintiff and Appellant,
v.
JACQUELINE CRESSWELL,
Defendant and Respondent.

A143429

(Sonoma County
Super. Ct. No. SCV 244253)


Appellant Sally Steinhart appeals from an order, dated August 5, 2014, which, pursuant to a settlement, resolved eleven causes of action in the verified second amended complaint alleged against respondent Jacqueline Cresswell. On appeal Steinhart seeks reinstatement of all the causes of action in the verified second amended complaint, with the exception of the assault and battery cause of action against Cresswell. Because Cresswell has not filed a brief, the appeal is submitted on the record, appellant’s opening brief, and oral argument by appellant. (Cal. Rules of Court, rule 8.220(a)(2).) Having examined the record and considered Steinhart’s various contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 2008, Steinhart filed a verified complaint alleging several causes of action against Cresswell and defendant Kathleen Curria. The complaint was initially served on Curria only. The trial court sustained Curria’s demurrer on the ground there was another action pending between the parties. Steinhart was granted leave to amend her complaint to cure the defect. Steinhart then filed a verified first amended complaint, and again served that pleading only on Curria. On November 17, 2009, the trial court sustained Curria’s demurrer without leave to amend as Steinhart had not cured the defect, and Steinhart was directed to serve the verified first amended complaint on Cresswell.
On December 17, 2009, Steinhart served the verified first amended complaint on Cresswell. Following two demurrers, Steinhart filed and served a verified second amended complaint, the operative pleading, on Cresswell. The trial court overruled Cresswell’s demurrer to the verified second amended complaint and she was directed to file an answer. Cresswell made several attempts to file a legally sufficient answer. But ultimately, on July 13, 2011, the trial court struck Cresswell’s answer without leave to amend. The trial court scheduled a trial for April 27, 2012. Before the scheduled trial, Steinhart served Cresswell with a statement of damages. Steinhart also successfully secured entry of Cresswell’s default for failing to file an answer and requested a damages judgment in the sum of $1,055,000 for general and special damages, plus costs of $775.
When Cresswell received notice of entry of default she filed a motion to set aside her default based on mistake and excusable neglect under Code of Civil Procedure section 473, subdivision (b). While her motion was pending, she sought ex parte relief to set aside her default The trial court denied Cresswell’s motion for ex parte relief, but maintained the trial date of April 27, 2012 for a default prove-up hearing on damages. Cresswell’s pending motion to set aside her default remained on the calendar for a scheduled hearing in June 2012.
On April 27, 2012, the trial court held the default prove-up hearing on damages that had been sought by Steinhart. Steinhart appeared with counsel and Cresswell, appearing in propria persona, was present “under subpoena only.” Before the hearing the parties were told there was no court reporter available and the court obtained Steinhart’s waiver of a court reporter. The court also granted Steinhart’s request to sever Cresswell from all causes of actions in which she had been joined with Curria, and to dismiss all causes of action, except the cause of action for assault and battery against Cresswell. The court clerk entered the requested dismissals. The evidentiary portion of the default prove-up hearing then went forward on the assault and battery claim. At the end of hearing, the court entered a default judgment against Cresswell for damages and costs in the aggregate sum of $1,055,775.
Following entry of the default judgment, Cresswell hired counsel who substituted into the case. Cresswell’s counsel withdrew the pending motion to vacate, and filed a new motion to vacate the default and default judgment entered on the assault and battery claim. In seeking relief, Cresswell asserted the assault and battery claim was the only outstanding claim because all the other causes of action had been dismissed. And, she attached to her motion a proposed verified answer in which she specifically alleged she was responding only to the cause of action for assault and battery because the other causes of action had been dismissed. In opposing the motion, Steinhart argued that if the default and default judgment were vacated, the court should reinstate the verified second amended complaint in its entirety, which included the assault and battery claim and the other causes of action, which had been dismissed, against Cresswell.
On August 29, 2012, the court held a hearing on Cresswell’s motion to set aside her default and the default judgment. Steinhart was present in court and represented by counsel. Cresswell was not present but was represented by counsel present in court. Steinhart’s counsel initially argued that assuming the court vacated the default and default judgment, Steinhart should be allowed to file a verified third “amended complaint,” with all the causes of action reinstated including the dismissed claims as well as the assault and battery claim. The trial court granted Cresswell’s motion and vacated both her default and the default judgment. The court also granted Steinhart’s request, allowing her to file a verified third amended complaint “to restore all of the original causes of action.” Steinhart’s counsel then informed the court the amended pleading could be filed “by next Friday.” At the conclusion of the hearing, the court stated: “As long as you’ve got your amended complaint on file by the 7th and served. Let’s give Defense until the 28th of September to file their answer. . . . That will be the order of the Court.” Steinhart did not file a third amended complaint. Instead, when Cresswell failed to file an answer, Steinhart requested and the court clerk entered a default against Cresswell on October 29, 2012.
Five months later, on March 13, 2013, Cresswell, through her counsel, filed a motion to set aside the second default obtained by Steinhart under the mandatory relief provisions of section 473, subdivision (b), based on attorney mistake. Cresswell’s counsel submitted a declaration, asserting that “this office” believed no answer was due by September 28 because Steinhart failed to file an amended complaint as required by the court’s order. Attached to the motion was a proposed verified answer, which contained the same allegations and affirmative defenses as set forth in the previously submitted answer. Steinhart opposed the motion, arguing that Cresswell’s failure to file an answer, in defiance of the court’s order, was a deliberate tactical choice, not subject to mandatory relief based on attorney mistake, or discretionary relief for excusable neglect.
On July 10, 2013, the trial court held a hearing on Cresswell’s motion to vacate her default. Steinhart, appeared in propria persona, and Cresswell was represented by counsel. Steinhart argued that the granting of the motion on the basis of mistake and excusable neglect was discretionary, and required a showing of diligence that had not been made. She further asserted she had received a copy of the court’s written order, “around October 25, 26, 28, around in there,” but when she checked the status of the case on the court’s website no answer had been filed. Only after she checked the court’s website did she request entry of default. Cresswell’s counsel argued that no showing of diligence was required because the current motion to vacate sought mandatory relief based on attorney mistake. He also explained that the proposed answer had not been filed with the court because counsel was waiting for Steinhart to file an amended complaint reinstating the dismissed causes of action. At the conclusion of the hearing, the trial court granted Cresswell’s motion to vacate her default and directed her to file an answer. The court’s written order, indicated, in pertinent part, that: “Defendant’s Motion to set aside default . . . is granted on the basis of mistake and excusable neglect. . .,” and Cresswell’s answer was “due in no less than 10 days” following the hearing.
On July 19, 2013, Cresswell, through counsel, filed the attorney-verified second amended answer, which had been attached to the motion to vacate. Steinhart filed a demurrer, which the trial court sustained on the ground that the pleading did not state facts sufficient to constitute a defense. Cresswell was granted leave to file another amended answer. Following Cresswell’s filing of an attorney-verified third amended answer, Steinhart again filed a demurrer, a motion to strike, and a motion for judgment on the pleadings. On April 1, 2014, the trial court overruled Steinhart’s demurrer and denied her motion to strike the third amended answer; the court did not rule on Steinhart’s motion for judgment on the pleadings.
Thereafter, on August 5, 2014, the trial court convened a settlement conference between the parties. Steinhart was present in court and represented by counsel, and Cresswell appeared by telephone and was represented by counsel who was present in court. Cresswell’s counsel informed the court that the parties had agreed to a settlement, which would resolve the case in its entirety, and “allow the parties to move forward.” Specifically, the parties agreed that Cresswell would pay $4,500, thereby settling the outstanding cause of action for assault and battery, and that cause of action would be dismissed with prejudice. The parties also requested that the court dismiss the other causes of action alleged against Cresswell, thereby resulting in the dismissal of the action in its entirety. The parties further informed the court that Steinhart was “reserving her right to appeal all other findings in this case.”
On October 27, 2014, Steinhart filed a notice of appeal seeking review of certain orders and judgments, without specifying a date of entry or filing, except as to one order: (1) “[j]udgment of dismissal under Code of Civil Procedure sections 581(d), 583.250, 583.360, or 583.430” (presumably the August 5, 2014 order dismissing the action in its entirety), (2) “[j]udgment of dismissal after an order sustaining a demurrer” (presumably the April 27, 2012, order dismissing all the causes of action except the cause of action for assault and battery against Cresswell, which was entered after the November 7, 2009, order sustaining Curria’s demurrer to the verified first amended complaint without leave to amend), (3) “order after judgment under Code of Civil Procedure section 904.1(a)(2)” (presumably the order, dated August 29, 2012 and filed September 12, 2012, vacating Cresswell’s default and the default judgment), and (4) the “July 10, 2013 order” setting aside Cresswell’s default “for excusable neglect,” pursuant to section 906.
DISCUSSION
In her opening brief, Steinhart raises several contentions based on her overarching claim that her verified second amended complaint alleging causes of action against both Curria and Cresswell should be reinstated in its entirety. However, for the reasons we now explain, we either do not have jurisdiction to address her contentions or her contentions do not require reversal and reinstatement of the verified second amended complaint.
I. Steinhart’s Contentions Relative to Defendant Curria
Steinhart requests that we set aside the November 17, 2009, order sustaining Curria’s demurrer to the verified first amended complaint without leave to amend. She argues we may review the order at this time because she appeals from the trial court’s August 5, 2014, order dismissing the action in its entirety. We disagree. The record shows that following the order sustaining Curria’s demurrer without leave to amend, and, at Steinhart’s request, on April 27, 2012, the court clerk entered an order dismissing without prejudice all causes of action in the verified second amended complaint except for the cause of action for assault and battery alleged against Cresswell. Having secured the April 27, 2012, order of dismissal, the action against Curria was finally resolved and Steinhart could immediately appeal from the order of dismissal and seek review of the November 7, 2009, order. “Because the sustaining of the demurrer herein left no issues to be decided between [Steinhart and Curria], the dismissal entered [after] the sustaining of the demurrer was appealable notwithstanding that the matter [was] still pending as to defendant [Cresswell].” (Buckaloo v. Johnson (1975)14 Cal.3d 815, 821, fn. 3, disapproved on another ground in Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5.; see § 581d [“[a] written dismissal of an action shall be entered in the clerk’s register and is effective for all purposes when so entered”].) Additionally, “[i]f a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review. [Citations.]” (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) Steinhart filed a timely notice of appeal from the April 27, 2012, order of dismissal, correctly describing the order as a “judgment of dismissal after an order sustaining a demurrer.” (Steinhart v. Curria, A135766.) However, when Steinhart did not timely file an opening brief this court dismissed her appeal. Having failed to pursue an appeal from the April 27, 2012, order of dismissal, the November 17, 2009, order sustaining Curria’s demurrer without leave to amend, became final and binding on Steinhart.
We must also reject Steinhart’s argument that section 906 permits review of the November 17, 2009, order because it is “an intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order [of August 5, 2014] appealed from or which substantially affects the rights of a party.” Section 906 specifically provides that the provisions of that section “do not authorize the reviewing court to review any decision or order from which an appeal might have been taken.” (See Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 509 [“ ‘[a] party who fails to take a timely appeal from a decision or order from which an appeal might previously have been taken cannot obtain review of it on appeal from a subsequent judgment or order’ ”].)
In sum, because Steinhart failed to pursue her appeal from the April 27, 2012, order of dismissal, we have no jurisdiction to address her arguments challenging the November 17, 2009, order sustaining Curria’s demurrer without leave to amend. Accordingly, we shall dismiss the appeal from the April 12, 2012, “judgment of dismissal after an order sustaining a demurrer.”
II. Steinhart’s Contentions Relative to Defendant Cresswell
A. September 12, 2012 Order Granting Cresswell’s Motion to Vacate
Default and Default Judgment
Steinhart presents various arguments challenging the court’s August 29, 2012, order, later embodied in a written order, filed on September 12, 2012 (hereinafter referred to as the September 12, 2012, order), which vacated Cresswell’s default and the default judgment entered on April 27, 2012. Steinhart correctly notes, “[a]n order vacating default and default judgment pursuant to section 473 ‘is appealable as an order after final judgment. [Citation.]’ [Citation].” (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 287.) Nonetheless, assuming the time to file an appeal started running from the filing of the September 12, 2012 order, and further assuming the September 12, 2012 order was not served on either Steinhart or her former counsel, Steinhart had 180 days from September 12, 2012 to file a notice of appeal. (Cal. Rules of Court, rule 8.104(a),(e).) Because Steinhart’s notice of appeal was filed on October 27, 2014, well after the 180-day period, we are without jurisdiction to consider her arguments challenging the September 12, 2012, order. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113 [“ ‘[u]nless the notice [of appeal] is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal’ ”]; Cal. Rules of Court, rule 8.104(b) [“[N]o court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”].) In so concluding, we further reject Steinhart’s argument that the September 12, 2012 order is reviewable “under [section] 906, as an intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the [August 5, 2014] . . . order appealed from or which substantially affects the rights of a party,” for the reasons set forth above. Because Steinhart could have filed an appeal from the September 12, 2012 order, and she failed to do so in a timely manner, we have no jurisdiction to now address her arguments challenging that order. Accordingly, we shall dismiss her appeal from an “order after judgment under Code of Civil Procedure section 904.1(a)(2).”
B. July 10, 2013 Order Vacating Cresswell’s Default for Failing to File An
Answer
Steinhart contends the trial court abused its discretion in granting Cresswell’s motion to vacate her default arising from Cresswell’s failure to file an answer to the verified second amended complaint by September 28, 2012. She contends that neither mandatory nor discretionary relief was established as Cresswell’s counsel did not admit fault and no excusable neglect was established. She further contends Cresswell’s counsel, as required, failed to submit a proposed answer that comported with the law. We see no merit to Steinhart’s arguments.
“Section 473, subdivision (b), authorizes the trial court to relieve a party from a default judgment entered because of the party’s or his or her attorney’s mistake, inadvertence, surprise, or neglect. The section provides for both mandatory and discretionary relief. Mandatory relief is available ‘whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect . . . .’ (§ 473, subd. (b).) ‘[I]f the prerequisites for the application of the mandatory provision of section 473, subdivision (b) exist, the trial court does not have discretion to refuse relief.’ [Citation.] Thus, to the extent that the applicability of the mandatory relief provision does not turn on disputed facts, but rather, presents a pure question of law, it is subject to de novo review. [Citation.]” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 (Carmel).) Moreover, mandatory relief under section 473, subdivision (b), “no longer includes a requirement of diligence,” and such a motion is in fact timely when, as in this case, it is brought within six months after entry of the default. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 868.)
Steinhart argues Cresswell was not entitled to mandatory relief from her default based on attorney mistake because her counsel failed to accept responsibility or admit any fault in his declaration, and his failure to discharge the routine professional duty of filing an answer was “clearly inexcusable.” We disagree. “Relief is mandatory when a complying affidavit is filed, even if the attorney’s neglect was inexcusable.” (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1033.) Also, “[w]hen an attorney ‘attests to’ – that is, declares to be true – facts demonstrating he or she was at fault, application of section 473 is not negated by the attorney’s contrary opinion.” (Carmel, supra, 175 Cal.App.4th at p. 401; see Hu v. Fang (2002) 104 Cal.App.4th 61, 65 [“section 473 . . . requires only the ‘attorney’s sworn affidavit attesting to his or her mistake . . . .,’ not additional evidence demonstrating the mistake”].) “Conversely, . . . [w]here ‘there is no evidence that [counsel’s client was aware] of counsel’s decision to delay filing an answer, or that [the client] suggested or agreed that [counsel] should do so[,] . . . [the client does] not share responsibility for the delay.’ [Citation.]” (Carmel, supra, at p. 401.) Here, the evidence in the record demonstrates that Cresswell’s failure to prevent entry of her default was caused by her attorney’s decision to not file an answer until Steinhart filed an amended complaint. There is no evidence that Cresswell was aware of her counsel’s decision or agreed that counsel should not file an answer.
We also see no basis to reverse on the ground that the proposed verified answer attached to the motion papers was defective. The proposed answer was verified by Cresswell, herself, and we see nothing improper concerning the verification, despite Steinhart’s protests to the contrary. Nor do we see any merit to Steinhart’s argument that the requirement of submission of a proposed answer was not met because the proposed pleading failed to “properly admit or deny the allegations of the complaint and raise[d] only factually unsupported affirmative defenses.” “Because the purpose of the proposed answer requirement is to provide the delinquent party with an opportunity to show good faith and readiness to answer the allegations in the complaint, courts have held substantial compliance to be sufficient. On this point, our Supreme Court observed: ‘The plain object of the provision was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.’ [Citations.]” (Carmel, supra, 175 Cal.App.4th at p. 402, quoting from County of Los Angeles v. Lewis (1918) 179 Cal. 398, 400.) In this case, the proposed verified answer put Steinhart on notice of Cresswell’s position that all causes of action alleged against her had been dismissed, except for the cause of action for assault and battery, and, as to that cause of action, Cresswell explicitly denied all of the general allegations in paragraph 45 of the complaint and the special allegations in paragraphs 126 and 127, which related to that cause of action. Thus, the proposed answer was sufficient to show Cresswell’s good faith and intent to proceed to resolve Steinhart’s complaint on its merits. “[T]he objectives of the six-month limitation are fulfilled by timely and substantial compliance with section 473. [Steinhart, as] the opposing party [was] on notice within a reasonable time that the judgment [was] under attack, even if that notice is defective in some manner.” (County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 837-838.) The fact that Steinhart later filed a demurrer to the answer, which was granted with leave to amend, does not call into question the trial court’s grant of Cresswell’s motion to vacate her default in failing to file an answer.
Accordingly, because there is no dispute that the cause of the entry of default was the conduct of Cresswell’s counsel and Cresswell’s proposed answer was in substantial compliance with the requirement to submit a motion “in proper form,” we uphold the trial court’s July 10, 2013, order vacating Cresswell’s default for failing to file an answer on the ground of attorney mistake.
C. March 5, 2014 Order Overruling Steinhart’s Demurrer and Denying
Motion to Strike Cresswell’s Verified Third Amended Answer
1. Relevant Facts
In the verified second amended complaint, Steinhart alleged eleven causes of action against Cresswell: (1) partition (fourth cause of action); (2) quiet title (eighth cause of action); (3) declaratory relief (ninth cause of action); (4) intentional infliction of emotional distress (tenth cause of action), (5) assault and battery (eleventh cause of action); (6) false imprisonment and false arrest (twelfth cause of action); (7) malicious prosecution and abuse of process (thirteenth cause of action); (8) conversion (seventeenth cause of action); (9) libel (eighteenth cause of action); (10) slander (nineteenth cause of action); and (11) intrusion and invasion of privacy (twentieth cause of action). In the section of the complaint labeled, “GENERAL ALLEGATIONS,” incorporated by reference in the eleventh cause of action, Steinhart alleged in paragraph 45: “Defendant Cresswell followed an intentional course of conduct wherein she acted towards plaintiff in a threatening, abusive manner, taking possessions from plaintiff and breaking and destroying them, pushing plaintiff backwards against and over a chair, intentionally causing her to suffer injuries to her back, and on that and other occasions, screaming and shouting at her while in close proximity in an ongoing, repetitive nature, that plaintiff deserved to die, did not deserve to breathe, or live, deserved to go to jail and die, and similar abusive remarks in a derogatory fashion.” Under the label, “ELEVENTH CAUSE OF ACTION,” it was specifically alleged, in paragraphs 126 and 127, that “[i]n doing the things alleged [Cresswell] acted with intent to and did cause plaintiff to suffer harmful or offensive nonconsensual contact, and violated her right to live without being put in apprehension of personal harm;” and “[a]s a proximate result of [Cresswell’s] actions plaintiff suffered injury as hereinafter set forth.”
Following the trial court’s order vacating Cresswell’s default and default judgment entered against her, Cresswell filed a second amended answer. The trial court sustained Steinhart’s demurrer to Cresswell’s second amended answer with leave to amend on the ground the answer did not state facts sufficient to constitute a defense. In light of its ruling, the court found Steinhart’s motion to strike was moot, and directed Cresswell to file an amended answer within 10 days.
On December 26, 2013, Cresswell filed her third amended answer. In paragraph four of the answer, Cresswell alleged that on April 27, 2012, all of the causes of action against her had been dismissed except for the cause of action for assault and battery. As to that cause of action, in paragraph two of the answer, Cresswell specifically “denies each allegation” in the complaint’s paragraph 45 [general factual allegations of assault and battery against Cresswell], and paragraphs 126 and 127 [specific factual allegations of assault and battery]. In addition to the specific denials (and apparently to address the court’s earlier finding that she had failed to set forth a defense), in paragraph four of the answer, Cresswell also alleged the following facts: “Although it is hard to know what exactly the Plaintiff is referring to in her complaint, Defendant believes that she is referring to one specific incident which occurred in 2006 or 2007. In that case, after asking Plaintiff to move a pile of her hoarded stuff for many days, Defendant was trying to clear an egress to the doors moving some of it. While she was doing it, Plaintiff grabbed her from behind screaming at her. Defendant was crouched down at the time and attempted to shake her off when Steinhart fell backwards onto the ground. [¶] With regards to the allegation that she was told by the Defendant she would go to jail[,] Defendant believes that Plaintiff is referring to an incident in 2004 after it was discovered that Plaintiff forged a credit card [in] another’s name, as a result Defendant did in fact tell Plaintiff she could go to jail. She however did not however scream and shout at her while in close proximity in an ongoing, repetitive nature, that she deserved to die, did not deserve to breathe, or live, deserved to go to jail and die, an[d] similar abusive remarks in a derogatory fashion as alleged in the complaint. During the entire time Defendant lived with Plaintiff, she has never been the aggressor in any confrontation she has had with her. To the extent anything Defendant ever did can be construed as assault and battery, any actions she took were in self-defense.” In paragraph 6 of the answer, Cresswell further alleged she did not admit or deny certain allegations in the numerous paragraphs of the complaint, which were not “material to the one existing cause of action and therefore need not be denied,” and, pursuant to section 431.10, subdivisions (a) and (b), her “failure to deny d[id] not constitute an admission” of the facts alleged in those paragraphs. The answer also included ten affirmative defenses: failure to state a cause of action as an affirmative defense “to the complaint,” and nine other affirmative defenses (laches, unclean hands, justification, reasonableness, “conduct justified,” statute of limitations, self-defense, provocation, and “reservation of rights to allege further affirmative defenses”), “as separate and affirmative defense[s] to the complaint,” and “to each cause of action contained therein.” Lastly, the answer included an attorney’s verification in which Cresswell’s counsel declared the following: “I have read the foregoing Jacqueline Cresswell’s Third Amended Verified Answer to the Plaintiff’s Second Amended Verified Complaint, and know the contents thereof, and any attachments thereto. [¶] I make this verification because the Plaintiff is absent from the county where I have my office and it would be extremely impractical to obtain their [sic] signature. I make this Verification because I have been informed of, and on that basis believe that the facts set forth in said pleading are true. [¶] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”
In her moving and reply papers filed in the trial court, Steinhart challenged the answer’s allegations that the only existing cause of action to which an answer was necessary was the cause of action for assault and battery. Steinhart argued Cresswell was required to respond to (answer) all causes of action because when her default was set aside, the court “necessarily returned the pleadings to the state they were in before entry of the default,” at which time none of the causes of action had been dismissed. Because Cresswell had not sought or obtained an order seeking to limit, modify, or strike any part of the verified second amended complaint, all of the causes of action required an answer. In addition, Steinhart sought to strike the answer’s paragraph four as improperly including “a long, argumentative, rambling narrative;” as well as, all of the affirmative defenses on the grounds they did not plead facts sufficient to constitute a defense, but were merely “ ‘boilerplate’” allegations, composed entirely of conclusions of fact and law, and the failure to identify to which cause of action each defense referred rendered the defenses “fatally uncertain.” Lastly, Steinhart argued the attorney’s verification was defective for the following reasons: (1) the attorney did not explain why it would be extremely impracticable to obtain Cresswell’s signature given the availability of fax and email services to secure her verification of the truthfulness of her answer; and (2) the attorney failed to set forth his “belief in the truth of the answer.”
In Cresswell’s opposition, she argued the allegations pleaded in the answer were proper because all of the causes of action, except for the cause of action for assault and battery, had been previously dismissed. Additionally, Cresswell argued paragraphs four and six of the answer were not uncertain, but specifically put at issue the outstanding question of whether the dismissed causes of action were “still” pending after the trial court vacated Cresswell’s default. Cresswell argued that the trial court’s order setting aside her default did not in and of itself automatically reinstate the dismissed causes of action. Instead, Steinhart was required to file an amended complaint to reinstate those causes of action, which she failed to do.
On March 5, 2014, the trial court held a hearing to address its tentative ruling to overrule the demurrer to the third amended answer, deny the motion to strike, and grant Cresswell’s request to take judicial notice of the April 27, 2012, dismissal of all causes of action except for the cause of action for assault and battery. The parties maintained the positions they had taken in their motion papers. At the conclusion of the hearing, the trial court adopted its tentative ruling as its final ruling, overruling Steinhart’s demurrer and denying the motion to strike the third amended answer.
2. Analysis
Steinhart challenges the trial court’s overruling of her demurrer and denial of her motion to strike the third amended answer on several grounds, none of which warrants reversal.
Steinhart initially argues the trial court erred as a matter of law by refusing to recognize that by granting Cresswell’s request to vacate her default and the default judgment, the court necessarily reinstated all causes of action in the verified second amended complaint including those causes of action that had been dismissed before the default prove-up hearing. She asserts that “[i]n the process [of] the prove up hearing for a judgment and for no purpose other than to accommodate the court’s lack of a reporter, [her] counsel suggested that to simplify and facilitate the entry of judgment, all but the eleventh cause of action, for assault and battery, would be dismissed, and judgment entered based on the Statement of Damages properly served prior to entry of Default [on] March 28, 2012. The dismissal was not done from a lack of evidence, or inability to prove the claims and causes of action set forth in the complaint, as all of the allegations of the complaint were admitted. [¶] . . . [¶] When the court set aside the first default and resulting judgment entered April 27, 2012, Cresswell’s accompanying proposed answer responded to all eleven of the causes of action within the [verified second amended complaint]. [¶] . . . [She (Steinhart)] had no way to know the court never intended to restore the entire action to the date before the default and was shocked and surprised when the court [overruled] her demurrer based on the dismissal at the [default] prove-up hearing before entry of Judgment, which was only done because the court had no court reporter.” We conclude Steinhart’s arguments are unavailing.
After entry of Cresswell’s first default for her failure to answer but before the default prove-up hearing, Cresswell, in propria persona, filed a motion to vacate her default and submitted a proposed answer addressing all causes of action alleged against her. However, before the motion to vacate was heard, Steinhart voluntarily dismissed all causes of action except for the cause of action for assault and battery against Cresswell. Steinhart then proceeded to a default prove-up hearing on the sole cause of action for assault and battery and secured a default judgment on that cause of action. Thereafter, Cresswell’s counsel filed a motion to vacate the default and default judgment only as to the cause of action for assault and battery against Cresswell. Counsel correctly argued that the other causes of action had been dismissed and were not then pending before the court, and Cresswell’s proposed answer was specifically limited to the outstanding cause of action. At the hearing on the motion to vacate, the trial court considered Steinhart’s arguments regarding the reasons for her dismissal of certain causes of action. Steinhart’s counsel and the trial court appropriately recognized that “[w]ith limited exceptions inapplicable here, a voluntary dismissal deprives the court of subject matter jurisdiction and personal jurisdiction in that case.” (Cardiff Equities, Inc. v. Superior Court (2008) 166 Cal.App.4th 1541, 1552; see Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876 [“[u]pon the proper filing of a request to voluntarily dismiss a matter, the trial court loses jurisdiction to act in the case . . .”]; Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974-975, fn. 6. [“[a] dismissal ‘without prejudice’ necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations”].) Accordingly, in order to acquire jurisdiction to adjudicate the dismissed causes of action, the trial court granted Steinhart’s request to file and serve a third amended complaint to which Cresswell would then be required to file an answer. However, Steinhart failed to file and serve the third amended complaint. Nor did she otherwise move to vacate the dismissal, which would have also allowed the court to reacquire jurisdiction and adjudicate the dismissed causes of action against Cresswell. Consequently, Steinhart’s contention that Cresswell was required to file an answer responding to the dismissed causes of action fails.
We also reject Steinhart’s arguments that portions of the third amended answer were “improper,” “made in violation of law,” and should have been stricken. Given the complaint’s rambling-type allegations of assault and battery, without any time referent, and the fact that self-defense is a defense to a claim of assault and battery (see J.J. v. M.F. (2014) 223 Cal.App.4th 968, 976), the answer’s allegations in paragraph four can reasonably be read as “[a] statement of . . . new matter constituting a defense.” (§ 431.30, subd. (b)(2); see also Gularte v. Martins (1944) 65 Cal.App.2d 817, 821 [“[i]t is the duty of a defendant to plead matters which are not provable under a general or specific denial but which avoid the action or at least the theory outlined in the complaint”].) Moreover, even if the trial court had stricken the portion of paragraph four of which Steinhart complains, the answer’s specific denials of every allegation in the complaint’s paragraphs 45, 126, and 127, put at issue and would have allowed defendant to present evidence on the cause of action for assault and battery. Consequently, we see no basis to reverse on this ground. For similar reasons, we see no reason to reverse based on Steinhart’s contentions that paragraph six of the answer should have been stricken because Cresswell failed to controvert therein the allegations relative to the dismissed causes of action. Even if the trial court had stricken paragraph six, the remaining portions of the answer would have been sufficient to allow Cresswell to present evidence on the cause of action for assault and battery. Nor do we see any merit to Steinhart’s challenges to the affirmative defenses alleged in the third amended complaint on the grounds of vagueness and uncertainty. In her motion papers and in her answer, Cresswell explicitly asserted her affirmative defenses referred to only the cause of action for assault and battery. Thus, we find the answer met the requirements of section 431.30, subdivision (g), that “defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.”
Lastly, Steinhart argues the attorney verification attached to the third amended answer was “improper and a nullity.” She contends the verification insufficiently explained why Cresswell herself did not verify the pleading and counsel insufficiently asserted he had been informed of the contents of the pleading, but he did not state he read the pleading, and on that basis believed it was true. We see no merit to the arguments. Section 446 specifically authorizes an attorney to verify a complaint if the client is absent from the county in which the attorney maintains his office. (See League of Woman Voters v. Eu (1992) 7 Cal.App.4th 649, 656.) Thus, a client’s absence from the county in which counsel has his office, without more, is a sufficient explanation allowing an attorney’s verification. Additionally, “[w]hen the verification is made by the attorney for the reason that the parties are absent from the county where he or she has his or her office . . ., the attorney’s or officer’s affidavit shall state that he or she has read the pleading and that he or she is informed and believes the matters therein to be true and on that ground alleges that the matters stated therein are true. . . . [¶] A person verifying a pleading need not swear to the truth or his or her belief in the truth of the matters stated therein but may, instead, assert the truth or his or her belief in the truth of those matters ‘under penalty of perjury.’ ” (§ 446, subd. (a); see Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1498 [“[t]he object of a verification is to assure good faith in the averments or statements of a party”].) Here, the attorney’s verification attached to the third amended answer met the statutory requirement that the attorney has read the pleading, knew its contents, and has been informed of, and on that basis, believes the facts set forth in the pleading were true. The declaration was signed “under penalty of perjury.” The cases cited by Steinhart are factually distinguishable, and, in all events, do not warrant reversal on this ground. Accordingly, Steinhart’s claim of error fails.
DISPOSITION
The order, dated August 5, 2014, dismissing the action, is affirmed. The appeals from an April 27, 2012 “judgment of dismissal after an order sustaining a demurrer,” and a September 12, 2012 order filed “after judgment,” and the separate appeal from a July 10, 2013 order “setting aside default for excusable neglect,” are dismissed. Sally Steinhart shall bear her own costs on appeal.


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Jenkins, J.


We concur:


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Pollak, Acting P. J.


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Siggins, J.



Steinhart v. Cresswell, A143429