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APOLINAR TORRES et al v. ELISEO RODRIGUEZ

November 30, 2010

APOLINAR TORRES ET AL., PLAINTIFFS AND RESPONDENTS,
v.
ELISEO RODRIGUEZ, DEFENDANT AND APPELLANT.
APOLINAR TORRES ET AL., PLAINTIFFS AND RESPONDENTS,
v.
ELISEO RODRIGUEZ, DEFENDANT AND RESPONDENT; COUNTRYWIDE HOME LOANS, INC., INTERVENOR AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs and Thomas S. Garza, Judges. Affirmed. (Super.Ct.No. VCVVS 044198) (Super.Ct.No. VCVVS 044198)

The opinion of the court was delivered by: Hollenhorst Acting P.J.

Torres v. Rodriguez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

1. Introduction

This matter arises from defendant Eliseo Rodriguez (Rodriguez) mistakenly building a house on the wrong lot, lot 23, (Assessor's Parcel Number (APN) 0434-073-23), owned by plaintiffs Apolinar Torres and Mary Torres (the Torreses). Intervenor Countrywide Home Loans, Inc. (Countrywide) loaned Rodriguez $408,000, secured by a deed of trust on Rodriguez's adjacent property, lot 22 (APN 0434-073-22). The Torreses sued Rodriguez for trespass, ejectment and quiet title, and obtained a default judgment due to Rodriguez failing to provide responses to the Torreses' discovery requests.

At issue are two consolidated appeals by Rodriguez and Countrywide.*fn1 Rodriguez appeals the default judgment and Countrywide appeals the trial court's order denying Countrywide's motion to vacate the default judgment against Rodriguez.

Rodriguez contends the default judgment is unlawful because the default judgment relief was not prayed for in the complaint and the judgment violates Rodriguez's constitutional rights to due process and to seek redress of his grievances. In addition, the judgment should be set aside under Code of Civil Procedure section 473,*fn2 and the trial court abused its discretion in granting terminating sanctions.

Countrywide contends in its appeal that the trial court abused its discretion in denying Countrywide's motion to vacate the default judgment because the judgment is void on its face, the order quieting title must be reversed because Countrywide is an indispensable party that was not named as a party, and the court abused its discretion in granting terminating sanctions.

We conclude the judgment is not void, Rodriguez's constitutional rights were not violated, and the trial court did not abuse its discretion in granting terminating sanctions and entering the default judgment. The judgment is affirmed.

2. Factual and Procedural Background

a. Complaint and General Denial

The Torreses filed a verified complaint in December 2006 for trespass, ejectment, and quiet title. They alleged they acquired lot 23 (the Property) by grant deed in 1986. In or after September 2005, Rodriguez built a house on the Property, causing damage of $270,000, the cost of restoring the Property to its original state, and $30,000, the approximate amount of expenses arising from the Torreses' inability to sell the Property. Additionally, the Torreses sustained damages of $2,000 monthly since September 2005, when Rodriguez took possession of the Property, to the Torreses' exclusion. In the complaint prayer, the Torreses requested general damages of $300,000, monthly damages of $2,000, recovery of possession, and quiet title in their favor.

Rodriguez, represented by Leonard H. Burgess (Burgess), filed a general denial in March 2007.

b. Discovery and Default

In June 2007, the court set the matter for trial on October 22, 2007.

On June 29, 2007, the Torreses served Rodriguez, through his attorney, Burgess, with requests for admission, form interrogatories, special interrogatories, and production requests. On August 6, 2007, the Torreses' attorney, Richard D. Malone (Malone), sent Burgess a letter demanding responses to the discovery on or before August 21, 2007. Malone sent Burgess by facsimile another letter on August 22, 2007, demanding Rodriguez's discovery responses by August 27, 2007. In response, Burgess sent by facsimile a letter stating that draft responses were being finalized and that, by August 27, 2007, either discovery responses would be provided or Malone would be contacted.

Because Burgess failed to provide any responses or contact Malone by August 27, 2007, the Torreses filed a motion to compel discovery responses and requested monetary sanctions. Due to the rapidly approaching trial on October 22, 2007, the court granted the Torreses' request for an ex parte order shortening time for service of notice of the motion. Rodriguez did not file opposition to the Torreses' discovery motion and neither Rodriguez nor his attorney appeared at the hearing on September 21, 2007.

During the hearing, Malone informed the court that the night before he had received by facsimile Rodriguez's responses to the requests for admission and therefore the motion was moot as to the admissions requests. As a consequence, the motion was granted only to the extent the court ordered Rodriguez to pay the Torreses within 10 days $480 in sanctions, the cost of bringing the motion.*fn3 The court also heard and granted the Torreses' motion to compel responses to interrogatories and production requests. The court ordered Rodriguez to respond to the discovery within 10 days and pay $440 in monetary sanctions. Notices of the motion rulings were served on Rodriguez, through Burgess, by mail and by facsimile on September 21, 2007.

On October 3, 2007, Rodriguez and Burgess signed a substitution of attorney form, substituting Rodriguez in propria persona. The attorney substitution form was not filed or served by mail on the Torreses' attorney until October 9, 2007. Rodriguez provided the court with a mailing address in Vail, Arizona.

Meanwhile, on October 5, 2007, the Torreses' attorney appeared for the mandatory settlement conference (MSC) but neither Rodriguez nor counsel representing him appeared.

On October 9, 2007, the Torreses filed an application for an ex parte order shortening time to bring a motion seeking terminating sanctions or, alternatively, issue or evidence sanctions against Rodriguez, along with monetary sanctions. The Torreses' attorney, Malone, who apparently was unaware Rodriguez had substituted Burgess out as his attorney, called Burgess on October 9 and left a voice mail message providing Burgess with detailed notice of the ex parte hearing on October 10, 2007.

Later that day, Malone received from Burgess a facsimile consisting of a copy of Rodriguez's substitution form reflecting that Rodriguez was representing himself. As a consequence, that same day Malone called Rodriguez at the phone number on the substitution of attorney form and left a detailed voice mail message informing Rodriguez of the ex parte hearing on October 10.

Rodriguez did not appear at the ex parte hearing on October 10, 2007. The court granted the Torreses' ex parte application and set the motion for terminating sanctions on October 25, 2007. The court further vacated the trial date on October 22, 2007.

On October 10, 2007, the Torreses' motion for terminating sanctions was filed and served on Rodriguez at his Arizona address, by overnight delivery, as ordered by the court. Malone's supporting declaration stated that on October 1, 2007, attorney Henry Harmeling called Malone and told him that Burgess had asked Harmeling to call Malone and tell him that Rodriguez would not be providing the discovery responses, nor paying the court ordered sanctions. The Torreses therefore requested the court to order terminating sanctions or, alternatively, issue and/or evidence sanctions against Rodriguez under section 2023.030.

On October 25, 2007, the trial court heard the Torreses' motion for terminating sanctions. Rodriguez did not file opposition to the motion or appear at the hearing. The court granted the motion, ordered Rodriguez's answer stricken, and entered default against Rodriguez. In addition, the court ordered Rodriguez to pay the Torreses $480 in monetary sanctions. On October 30, 2007, the court clerk sent a copy of the minute order to the parties' counsel of record. Malone's office also served Rodriguez on October 30, 2007, with a copy of the order imposing terminating sanctions and monetary sanctions. But rather than sending notice to Rodriguez at his Arizona address, notice was sent to Burgess, even though he was no longer the attorney of record.

On November 2, 2007, the Torreses filed a request for a court judgment in the amount of $50,000 in damages for lost rental value and $2,204.44 in costs. In addition, the Torreses asked the court to quiet title in their favor and order that they recover possession of the Property by issuance of a writ of execution. Rodriguez was served by mail at his residence in Arizona.

In support of the Torreses' request for default judgment, the Torreses filed declarations proving up their claims against Rodriguez. The Torreses stated in their declarations that in September 2005, Rodriguez constructed a residence on the Torreses' property (lot 23, APN 434-073-23), without their consent, and was currently occupying the home. The Torreses confirmed that attached to their declarations were copies of the deed to their property, lot 23.

The Torreses requested in their supporting declarations that the court order them owners in fee simple of the Property, including the residence and all other improvements on the Property, and that Rodriguez has no adverse interest in the Property. The Torreses also requested the court order that they recover possession of the Property from Rodriguez and that the county sheriff remove Rodriguez from the Property. In addition, the Torreses requested monetary damages and recovery of their litigation costs. Attached to the Torreses' declarations was documentation establishing their litigation costs.

On November 13, 2007, Rodriguez filed another substitution of attorney form, replacing himself ...


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