In the recent California decision in Braugh v. Dow, the appeal arose from a partition action by Jane Braugh (Braugh) against her former significant other Roy H. Dow (Dow).
The trial court entered default and a default judgment against Dow. Nearly two years later, Dow moved to vacate the default and resulting judgment, alleging he was never effectively served with the summons and complaint. The trial court granted the motion.
On appeal, Braugh argued the trial court should not have granted Dow set aside relief because her personal service of the summons and complaint on Dow was proper and Dow’s motion was “untimely.” Braugh also argued the trial court abused its discretion in not considering the estoppel doctrine when making its ruling.
The appellate court disagreed with Braugh and affirmed the trial court’s order granting the motion to set aside.
Braugh and Dow, an unmarried couple, owned a family home located in Sun Valley, California (the Property).
They ended their relationship in 2013. They share a minor daughter, for whom they were embroiled in a “contentious custody battle” throughout 2018 and 2019.
Braugh is an attorney licensed in California, and in 2018, Braugh filed a complaint against Dow alleging three causes of action: 1) partition; 2) accounting and compensatory adjustments; and 3) injunctive relief.
The subject of this action was the Property. Braugh alleged that Braugh and Dow are the owners of the Property, and they hold title as joint tenants with right of survivorship.
Braugh sought a partition of the Property because Dow had not paid on the mortgage and other liens since 2004, and he also refused to pay for necessary repairs and improvements that enhance the value of the Property.
Due to Dow’s refusal to make an accounting and/or pay to Braugh compensatory adjustments or the sums due, the proceeds from future rents and profits of the Property were in danger of being lost, diminished or misappropriated by Dow.
Braugh alleged she was entitled to an accounting and compensatory adjustments for expenditures in excess of her fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages and other liens, insurance for the common benefit and protection and preservation of title.
Braugh filed a proof of service of summons, stating she herself served a copy of the summons and complaint on Dow at the Property’s address via personal service.
Braugh signed the proof of service of summons declaring under penalty of perjury that at the time of service she was at least 18 years of age and not a party to this action.
Braugh filed a request for entry of default, which the court immediately granted. The court scheduled a default prove-up hearing, and ordered Braugh to provide the court with a proposed judgment conforming to her claims on the hearing date.
At the default prove-up hearing, Braugh represented herself and presented argument. Later, the court quieted title to the Property and ordered the transfer of Dow’s interest in the Property to Braugh, so that title will now be held solely by Braugh.
A grant deed was recorded to that effect.
One year and nine months later, Dow filed a motion to set aside the default and default judgment.
He argued the default and default judgment were void as a matter of law because service of the summons was defective as Braugh, a party to the action, personally served the moving papers on Dow, in violation of California law.
Dow argued this resulted in a lack of personal jurisdiction over him, rendering the default and default judgment void. He argued, in the alternative, that the court should set aside the default and default judgment.
Dow provided a declaration in support of the motion, which alleged that sometime in 2018, Braugh provided Dow’s (now former) family law attorney in the custody matter with a copy of a “draft complaint.” The attorney did not accept service on behalf of Dow, as he was retained as counsel solely for the family law matter. Then, in 2018, Braugh entered the Subject Property while Dow was at home and personally served him with the Summons and Complaint.
It was not until 2019 that Dow and his new family law counsel realized Braugh had entered a default judgment.
Dow argued it was immaterial whether he actually received the Summons and Complaint because Braugh failed to comply with California law which resulted in a lack of personal jurisdiction.
He also argued Braugh did not stand to be prejudiced if the default judgment and entry of default were set aside because she had not taken any depositions, conducted any discovery, or otherwise expended any resources. Braugh was a California attorney and knew that such service was in violation of section 414.10.
Conversely, Dow will be severely prejudice if he is unable to defend himself and have this case decided on the merits given the damages sought by Braugh, including his family home and substantial sums of money.
Braugh filed her opposition to the motion to set aside. She argued that Dow admitted in his moving papers that he was personally served with the moving papers at the Property, resulting in actual notice of the lawsuit; however, neither he nor his lawyers did anything.
Braugh also pointed out that despite Dow having learned about the default judgment in 2019, he did not file his set aside motion until 2020, and provided no legal grounds excusing his inaction.
The court may on motion of either party after notice to the other party, set aside any void judgment or order.
Generally, defendants have six months from entry of judgment to move to vacate. But, if the judgment is void on its face, then the six month limit to make other motions to vacate a judgment doo not apply.
A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll.
This inquiry, however, does not hinge on evidence: A void judgment’s invalidity appears on the face of the record.
The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial action or proceeding.
To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment.
Braugh argued she substantially complied with the service-of-process rules when she personally served Dow with the summons and complaint. She contended this provided Dow with “actual notice” of the partition case and that who served Dow is a mere technicality that did not render personal service void.
The appellate court disagreed, finding this was not a “mere technicality” as Braugh would like it to hold; this is an issue of fundamental jurisdiction. By merely looking at the judgment roll, primarily Braugh’s proof of service of summons, the appellate court concluded the trial court acted without authority in entering default and default judgment against Dow.
Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.
As mentioned above, the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.
Here, on the face of the proof of service of summons, Braugh signed under penalty of perjury that she was “not a party to this action” and attested to having personally served Dow at the Property.
It is undisputed that Braugh is a party to the action. Service did not comply with the express requirements. The intent of a statute prohibiting personal service of process by parties is to discourage fraudulent service by persons with an adversarial interest in a legal action.
Accordingly, the prohibition on service by the opposing party is strictly enforced.
Thus, when a party has served notice on the opposing party, the court lacks personal jurisdiction over the defendant.
During oral argument, Braugh maintained that even if we find the judgment “facially void” due to the manner of service, that we must also determine if she “substantially complied” with the rules of service of process because strict compliance is not required.
She contended her personal service on Dow should be liberally construed to uphold jurisdiction because Dow was provided actual notice of the commencement of the action.
The appellate court disagreed, ruling the trial court did not abuse its discretion in granting Dow’s motion to set aside the default and default judgment. On the record, the trial court did not obtain personal jurisdiction over Dow due to improper service of the summons and complaint. Dow was under no duty to act upon a defectively served summons.
LESSONS:
1. A party to the action cannot serve summons and complaint on another party.
2. The court may on motion of either party after notice to the other party, set aside any void judgment or order.
3. Generally, defendants have six months from entry of judgment to move to vacate. But, if the judgment is void on its face, then the six month limit to make other motions to vacate a judgment doo not apply.
4. Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.
5. A defendant is under no duty to act upon a defectively served summons.
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