Filed 3/30/06 Oppland Group v. Gardner CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Dismissed.

William Gardner, in pro. per., for Defendant and Appellant.

Patricia Gardner, in pro. per., for Defendant and Appellant.

Tatum S. Hilmoe for Plaintiff and Respondent.

1. Introduction

Defendants and appellants William and Patricia Gardner appeal, after a default and default judgment were entered in favor of plaintiff and respondent, The Oppland Group, Inc. (Oppland). We are unable to review the issue on the record presented, inasmuch as the trial court has not yet had the opportunity to rule on an underlying factual question. The appeal is premature; we dismiss the appeal.

2. Factual and Procedural Background

The action appears to be based upon an alleged account stated for credit card charges. The register of actions shows that the summons on the complaint was issued on February 18, 2005. The register of actions further recites that proof of service on each of the defendants, Patricia Gardner and William Gardner, was filed with the court on or about May 11, 2005. On May 20, 2005, the court vacated a hearing on an order to show cause on the completion of the service of process. The register of actions recites that the original summons was returned and filed on June 2, 2005.

Neither the complaint, nor the proofs of service nor copies of the returned summons are included in the record on appeal.

On the same date that the original summons was supposedly returned, June 2, 2005, Oppland requested dismissal of the action as to the Doe defendants, and requested that the clerk enter the Gardners’ default. The clerk duly entered the default.

On June 10, 2005, Oppland filed a declaration with exhibits in support of its judgment, and the court entered judgment in the amount of $27,765.14.

On July 29, 2005, the Gardners filed declarations reciting that they had not been served in the action; they did not receive notice of the action until after the default judgment had been entered. They moved ex parte to vacate the default and default judgment.

The trial court denied the request for ex parte orders and ordered that the “motion remain as presently [scheduled].” The Gardners filed a notice of appeal on August 11, 2005.

After the notice of appeal was filed, it appears from the register of actions that further proceedings were held in the trial court. On August 19, 2005, a case management conference was held, and on September 12, 2005, further hearing on the motion to vacate the default and default judgment was continued. The register recites that, “The court finds that although a proof of service was completed and filed as to the presently scheduled motion, it failed to have an attachment that records who was served and at what address. The court orders the motion to be reserved [sic; re-served] and an appropriately completed proof to file [sic].” (Italics added.)

Apparently, the motion to vacate the default and default judgment came on for hearing on or about October 18, 2005. On that date, the trial court found that “it is without jurisdiction to rule on the pending motion by defendants Gardner to set aside/vacate judgment as the issue is presently pending in Appeals.” The court ordered the matter stayed and the motion taken off calendar “until decision by the higher court returns this matter.”

3. Analysis

A. Appeal From a Default Judgment Does Not Address Factual Claims

“[A]n appeal from a default judgment is limited to jurisdictional considerations and to questions of basic defects in the pleadings. [Citation.]” (Ludka v. Memory Magnetics International (1972) 25 Cal.App.3d 316, 323.) Defendants have purported to appeal from the default judgment, raising such a jurisdictional concern: they allege that they were never properly served in the action.

A judgment by default is a determination on the merits, and effectively admits all well-pleaded factual allegations of the complaint. (Fitzgerald v. Herzer (1947) 78 Cal.App.2d 127, 132; see also People v. Sims (1982) 32 Cal.3d 468, 481; Flood v. Simpson (1975) 45 Cal.App.3d 644, 651, fn. 12.) Therefore, “[o]rdinarily, in civil matters the sufficiency of the evidence cannot be reviewed on appeal of a default judgment.” (In re Clarissa H. (2003) 105 Cal.App.4th 120, 124.)

The difficulty raised by the method of proceeding on this appeal is that, “[w]hether relief from default is available is a factual matter, and factual matters are assessed in the first instance by the trial court.” (Id. at p. 125.) “Where the defaulting party takes no steps in the trial court to set aside his [or her] default, his [or her] appeal from the default judgment brings up for review only such questions as jurisdiction and sufficiency of the pleadings. [Citations.] Because no issue of fact is raised, there can be no review of the sufficiency of the evidence. [Citations.]” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 355, p. 403.)

Here, of course, defendants did initiate the process to “take[] . . . steps in the trial court to set aside [their] default,” but failed to complete it. Instead, they filed their notice of appeal before securing the trial court’s ruling on the preliminary factual determination whether relief from default was available. They thereby effectively precluded the trial court from making that factual determination.

Although defendants’ claim of error appropriately raises a jurisdictional issue – whether they were served – the validity of this jurisdictional claim depends upon a factual finding, which should have been addressed to the trial court in the first instance. The alleged lack of service does not appear on the face of the record. Indeed, the record provided is inadequate to address the jurisdictional issue (service of process), or the factual predicates which underlie determination of that issue.

B. The Appeal Is Premature

Defendants included affidavits in their motion to set aside the default and default judgment, averring simply that service of summons was not made upon them, that they learned of the default and default judgment after the judgment had been entered, that they timely brought their motion to vacate, and that their default was not taken through inexcusable neglect or avoidance of service. Defendants’ motion to vacate, which they first applied to have heard ex parte, apparently did include a proof of service, i.e., of the motion papers, but that document “failed to have an attachment that records who was served and at what address.” For that reason, the court ordered the motion re-served. Probably because of the inadequacies shown by the proof of service on the motion to vacate, there is no record of any opposition by Oppland.

The issue defendants wish to have resolved is the question of whether they were properly served with summons in Oppland’s action. They initiated review of that question in the trial court by the proper vehicle, a motion to vacate the default and default judgment. The alleged deficiency in service of summons does not appear on the face of the record, however. The face of the record is all that may be considered on appeal from a default judgment. (See Superior Motels v. Rinn Motor Hotels (1987) 195 Cal.App.3d 1032, 1049 [in attack on default judgment for defective service, defendants could not rely on evidence outside judgment roll].) Here, defendants have not presented all the documents which constitute the judgment roll, which by statute include “the summons, with the affidavit or proof of service; the complaint; the request for entry of default with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment.” (Code Civ. Proc., § 670, subd. (a).) Instead, defendants’ clerk’s transcript designated their postjudgment motion to vacate the default and default judgment, including their affidavits. Such postjudgment matters are not properly included in the record on an appeal from the default judgment. (Cf. Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 294 [A defendant may appeal from a default judgment taken against him, but his attack is limited to jurisdictional matters and fundamental pleading defects].)

Defendants’ acts, purporting to appeal from the default judgment, had the unfortunate effect of halting the postjudgment proceedings. The contention that the default and default judgment should be vacated for lack of jurisdiction was a matter, in this case, which required resolution of possibly disputed facts, beyond what appears on the face of the record. Defendants’ notice of appeal from the judgment aborted the process of creating the record from which the trial court could make that factual determination. At the time the notice of appeal was filed, the court had determined that Oppland had not been properly served with the motion to vacate. Oppland thus had no opportunity to bring facts to light, if there were any, to counter defendants’ assertions. On this record, and in this procedural posture, we are unable to review the issue.

The question defendants wish to have answered – the factual question of whether they were served with Oppland’s complaint – cannot in this case be decided on direct appeal from the default judgment. That factual question has not yet been considered and ruled on by the trial court. We therefore conclude that defendants’ appeal is premature. The issue for review has not yet been decided.

A ruling on defendants’ motion to vacate the default and default judgment would be separately appealable as an order after judgment. (Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1469.) If the trial court grants the motion, and vacates the default and default judgment, the necessity of appeal from the judgment will be obviated. If the trial court denies the motion, a proper record can be presented for review of the factual determination underlying the order.

Patently, a ruling on the motion to vacate the default and default judgment is what defendants desire to review: the record they have presented is inconsistent with that required for an appeal from the default judgment, and includes primarily matters which are germane only to the as-yet-unheard motion. “Uncertainty as to what constitutes the rendition of a judgment or order, and as to the time of entry . . . , may result in a premature appeal.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 512, p. 558.) We deem defendants’ true intention to be to seek relief from the default and default judgment, in the first instance, in the trial court.

We therefore dismiss this appeal, to restore jurisdiction to the trial court so that defendants may obtain a ruling on the factual issues underlying their motion to vacate. The dismissal of this appeal is without prejudice to an appeal, if any, of the ruling on the postjudgment motion. Defendants must, however, file a new notice of appeal once an appealable postjudgment trial court order is obtained. (Cf. Shpiller v. Harry C’s Redlands (1993) 13 Cal.App.4th 1177, 1179-1180.)

4. Disposition

The appeal is dismissed, without prejudice to filing a new notice of appeal after a ruling on the postjudgment motion to vacate the default and default judgment. The cause is remanded with directions to resume proceedings on defendants’ pending motion to vacate the default and default judgment. In the interests of justice, each party is to bear its own costs as to this (dismissed) appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ GAUT

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ RICHLI

J.