IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 1, 2011
ROBERT M. RAWLINGS, PLAINTIFF,
CROSS-DEFENDANT AND APPELLANT,
CLIFF'S RIVER MARINA ET AL., DEFENDANTS,
CROSS- COMPLAINANTS AND RESPONDENTS.
(Super. Ct. No. 05AS05387)
The opinion of the court was delivered by: Blease , J.
Rawlings v. Cliff's River Marina
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Robert Rawlings brings this pro se appeal from the trial court's order declining to set aside the judgment entered in favor of defendant and cross-complainant Cliff's River Marina after a court trial. (Code Civ. Proc., §§ 473, 663.) Rawlings moved to vacate the judgment on the ground he was never served with the cost memorandum or the proposed judgment, and therefore had no opportunity to contest the $4,359.69 in costs awarded to Cliff's River Marina, or to challenge the court's award of prejudgment interest on the damages awarded on the cross-complaint.
On appeal, Rawlings claims Cliff's River Marina failed to give him proper notice of the cost memorandum or the proposed judgment. His argument has merit; we shall reverse that portion of the judgment that awards costs and prejudgment interest and remand the case for the court to consider anew any challenge Rawlings may bring to the memorandum of costs filed by Cliff's River Marina and/or to the award of prejudgment interest on damages awarded on the cross-complaint.
The appellate record in this case is very sparse. From the documents filed in support of Rawlings' motion to vacate the judgment, we glean the following.
Plaintiffs are Rawlings and Eugene Isaacson; defendants are Cliff's River Marina, Robert McDaris, Shawn Berrigan, Diane House and Thomas Decker. Cliff's River Marina cross-complained against Rawlings and Isaacson. The underlying lawsuit and cross-complaint were tried to the court (by Judge Rodda) over four days in 2007.
Following the trial, the court issued a tentative decision, which provided in relevant part: "As to the cross-complaint of Cliff's Marina, the court finds for Cliff's Marina and against cross-defendants Rawlings and Isaacson. These boats have been moored at the Marina since December 14, 2004. The monthly storage rate for the Rawlings boat is $273.00 and for the Isaacson boat is $234.00 There is no basis for the recovery of impound fees or late payment penalties. Judgment will be entered on the basis of the monthly rates prorated for the first month in December 2004 and prorated through the last day of trial.
"If a statement of decision is requested, counsel for the defendants and cross-complainant is to prepare and serve a proposed statement of decision consistent with this tentative decision. Counsel is also to prepare and serve a proposed judgment."*fn1
Cliff's River Marina filed its memorandum of costs on June 12, 2008, in which it claimed costs of $4,359.69 on its cross-complaint against Rawlings and Isaacson. A proof of service dated the preceding May 1 shows service of the cost memo on Rawlings' then-attorney, Susan Wilkinson, at P.O. Box 263, Roseville, CA 95667. A second proof of service, bearing the same date and address, shows service on Wilkinson of a "Proposed Judgment." The proposed judgment is not attached to the proof of service, and does not otherwise appear in the appellate record.
The court entered judgment on June 12, 2008, in favor of defendants in the main action; on the cross-complaint, it entered judgment in favor of Cliff's River Marina and against Rawlings and Isaacson in the amount of $23,889.33. The components of that judgment are: $18,252 in damages, $1,277.64 in prejudgment interest, and $4,359.69 in costs.
The record before us contains neither a proof of service of the notice of entry of judgment by the court, nor a proof of service indicating that the judgment was served on Rawlings or his attorney. Rawlings maintains he never received notice of the memorandum of costs or proposed judgment prepared by Cliff's River Marina, nor did he receive notice of entry of the judgment, and only learned about it independently on September 18, 2008.
Rawlings moved on October 10, 2008, to set aside and vacate the judgment or, alternatively, to enter a new and different judgment, pursuant to Code of Civil Procedure sections 473, subdivision (b) and 663, subdivision (a). He urged the court to vacate the judgment entered on June 12 because it "is inconsistent with this court's tentative decision" in that the judgment (but not the tentative decision) awarded prejudgment interest and the claimed costs of $4,359.69 "are wholly out of line"; because he was never served with the proposed judgment or memorandum of costs, he was "surprised" by the judgment. Alternatively, he asked the court to strike at least the $1,277.64 prejudgment interest award.
In support of his motion, Rawlings argued that counsel for Cliff's River Marina "refused to comply" with the court's order that he prepare and serve a proposed judgment, and/or intentionally used the wrong zip code when he served the memorandum of costs and proposed judgment on Wilkinson.*fn2 Wilkinson submitted a declaration averring that she never received the memorandum of costs or the judgment that were purportedly served on her. Moreover, she averred, counsel for Cliff's River Marina "has a history of intentionally putting the wrong zip code on mail he sends to me, despite being notified of my correct address time and time again . . . ."
There was no hearing on Rawlings' motion to vacate the judgment.
The minute order of the trial court (by Judge Mize) states: "Plaintiff/cross-defendant Robert M. Rawlings moves to vacate the judgment entered in this case and signed by Judge Steven M. Rodda on June 12, 2008 on various grounds. For the reasons set forth below the motion is DENIED.
"Plaintiff contends that the judgment is inconsistent with the decision in the case issued by Judge Rodda in that the judgment awards interest to the prevailing party. Plaintiff further contends that the costs awarded to the prevailing party are excessive. Plaintiff further argues that he was unaware of the judgment and cost bill as copies were never served upon his then attorney Susan Wilkinson in advance. Finally[,] plaintiff contends he did not learn of the judgment and cost bill until just recently so that the instant motion is timely.
"With respect to the issue of whether the judgment was consistent with the decision of the issuing court, this court concludes that it was. The decision in this case was issued by the Honorable Steven M. Rodda, now retired. The judgment based upon that decision was also signed by the Honorable Steven M. Rodda. The court finds that there is nothing in the record to support a conclusion that Judge Rodda signed a judgment that was inconsistent with the decision that he had previously rendered in the case.
"With respect to service, the record reflects that counsel for the prevailing party filed a proof of service with this court on June [sic] stating that he had served counsel for plaintiff herein with the proposed judgment and a cost bill on May 1, 2008. Plaintiff, asserts, supported by the declaration of his former counsel, Susan Wilkinson, that the address on the proof of service contained an incorrect zip code and Ms. Wilkinson never received the document. Ms. Wilkinson has complained in the past that she has not received documents served by opposing counsel. While the issues regarding prior service of the proposed judgment appear complicated, the fact remains as set forth above that the court finds no basis for vacating or setting aside the judgment under CCP 663 or any other applicable law. Accordingly, the motion is denied.
"The Tentative Ruling was accepted and no appearance was requested."
It is from this order that Rawlings appeals.*fn3
I. Principles of Appellate Review
On appeal, we begin with the presumption that the trial court's judgment is correct and supported by substantial evidence. (Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Consistent with this presumption, we draw all inferences in favor of the judgment unless the record expressly contradicts them. (Ibid.) An appellant must affirmatively demonstrate grounds for reversal because trial court error will not be assumed. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)
Rawlings is not exempt from the rules governing appeals because he is representing himself in propria persona. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to "the same 'restrictive procedural rules as an attorney'"].)
With these principles in mind, we turn to Rawlings' contentions on appeal.
II. The Trial Court Erred in Denying Rawlings' Motion
"'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) "'"[T]hose affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed."' [Citations.]" (Id. at pp. 257-258.) Where the trial court denies a motion for relief from default, the strong policy favoring trial on the merits conflicts with the general rule of deference to the trial court's exercise of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235.) Thus, an order denying relief is more carefully scrutinized on appeal than an order permitting a trial on the merits. (Id. at p. 233.) Doubts are resolved in favor of the application for relief from default, and in such cases the order denying relief will be reversed. (Id. at p. 235.)
Rawlings argues on appeal the trial court erred in not setting aside the judgment because the cost bill, proposed judgment and judgment were never served on him, and he was thereby deprived of an opportunity to challenge the cost award and award of prejudgment interest. Cliff's River Marina responds that "proper service was effected upon [Rawlings] because service of the Notice of Entry of Judgment was conducted in accordance with the California Code of Civil Procedure § 1013 and, as such, service is presumed."
Rawlings has the better argument. "Section 1013, subdivision (a), provides that the mailing of a notice is complete when it is posted in an envelope 'addressed to the person on whom it is to be served, at his office address as last given by him on any document which he has filed in the cause and served on the party making service by mail; otherwise at his place of residence. . . .'" (Triumph Precision Products, Inc. v. Insurance Co. of North America (1979) 91 Cal.App.3d 362, 365.) "[S]trict compliance with statutory provisions for service by mail is required, and improper service will be given no effect. [Citations.]" (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 511.)
Thus, "service of papers to an incorrect address is not acceptable notice." (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288; Lee v. Placer Title Co., supra, 28 Cal.App.4th at p. 511.) As specifically relevant here, notice of a hearing "sent . . . [to] the correct post office box, but with the wrong ZIP Code" does not constitute legally sufficient notice. (Moghaddam v. Bone, supra, 142 Cal.App.4th at pp. 288-289 [correct zip code was two digits off from one used on notice: absent "proof notice was actually received, the [defendants'] failure to use the correct ZIP Code invalidates what would have otherwise been sufficient notice"].)
It is undisputed that the only notice provided by Cliff's River Marina of its memorandum of costs and the proposed judgment was sent to Rawlings' former counsel using the wrong zip code. That notice was legally inadequate. (Moghaddam v. Bone, supra, 142 Cal.App.4th at p. 288; Lee v. Placer Title Co., supra, 28 Cal.App.4th at p. 511.) And, notwithstanding Cliff's River Marina's assertion to the contrary, nothing in the record indicates that Rawlings or his former counsel were ever served with the notice of entry of judgment.
Moreover, Rawlings was prejudiced by his lack of notice from challenging the cost bill (Cal. Rules of Court, rule 3.1700(b)), or contesting the award of prejudgment interest. (Compare, e.g., Rodriguez v. Henard (2009) 174 Cal.App.4th 529, 535-538 [clerk's duty to enter default upon notice was ministerial; there was no hearing at which defendants had a right to appear, so there was no prejudice from lack of proper notice]; Adaimy v. Ruhl (2008) 160 Cal.App.4th 583, 587-588 [plaintiff not prejudiced by defendant's service of notice of entry of judgment on only one of the two law firms representing him].)
Under these circumstances, the trial court abused its discretion in concluding that there exists "no basis for vacating or setting aside the judgment under . . . any other applicable law" and denying Rawlings' motion to set aside the judgment.
In reversing the judgment, however, we express no opinion on the possible merits of Rawlings' potential challenges to Cliff's River Marina's recovery of costs or prejudgment interest.
We reverse that portion of the judgment that awards costs and prejudgment interest and remand the case for the court to consider anew any challenge Rawlings may bring to the memorandum of costs filed by Cliff's River Marina and/or to the award of prejudgment interest on damages awarded on the cross-complaint. Rawlings shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
RAYE , P. J.
MAURO , J.