| Accordingly, this Court must quash service of process and set aside any existing default or default judgment as void (CCP �473(d); CCP �418.10(d)). |
Plaintiff also objects that "By failing to answer the complaint, defendant [Prytulak] forfeited his right to bring a motion to quash" (p. 2), citing the authority of Devlin v. Kearny Mesa, which Plaintiff quotes as follows:
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The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.
Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 385, 202 Cal.Rptr. 206-207. |
However, prefixing the above sentence with its context permits the proper interpretation of what Devlin v. Kearny Mesa intended:
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Our first decision rightly assumed Kearny Mesa, having defaulted, knew it could not participate in a judgment hearing on punitive damages. The entry of a default terminates a defendant's rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.
Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 385, 202 Cal.Rptr. 206-207. |
What the above restoration of stripped-away context reveals is that the "further affirmative steps" that the defaulted Kearny Mesa is blocked from taking are steps which participate in "a judgment hearing on punitive damages." The application of the Devlin v. Kearny Mesa principle to the instant Rambam vs Prytulak would be that if Defendant Prytulak attempted to participate in the ongoing default-judgment hearings, then he would be rightly blocked. However, Defendant's desire is entirely opposite � he has no wish to participate in the ongoing default-judgment hearings from which he is rightly excluded, but rather Defendant is desirous of giving these hearings the widest possible berth, as he is aware that the California Court of Appeal would, if asked, refuse to recognize the jurisdiction of the Superior Court over Defendant Prytulak, and would, if asked, view the ongoing Superior Court proceedings as nullities.
Devlin v. Kearny Mesa elaborates by itemizing four things that a defendant in default is blocked from doing, with the bold numbering [1] to [4] being inserted into the original text:
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"A defendant against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, [1] file pleadings or [2] move for a new trial or [3] demand notice of subsequent proceedings." (Brooks v. Nelson (1928) 95 Cal.App. 144, 147-148, 272 P. 610.) And even where a default judgment is "vacated, it would be the duty of the court immediately to render another of like effect, and the defaulting defendants [4] would not be heard for the purpose of interposing any denial or affirmative defense." (Title Insurance Etc. Co. v. King Etc. Co. (1912) 162 Cal. 44, 46, 120 P. 1066, italics added.)
Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 385-386, 202 Cal.Rptr. 207 (bold numbering added). |
However, Defendant most emphatically does not attempt to do any of the things that the above further itemization prohibits him from doing; namely, Defendant does not attempt to
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file any pleading (a motion to quash not being a pleading),
move for a new trial,
demand notice of subsequent proceedings, or
be heard denying any accusation or affirming any defense.
In summary, Devlin v. Kearny Mesa did not contemplate an out-of-state defendant challenging jurisdiction, and did not intend its generalization to apply to such a defendant. Plaintiff Rambam's use of Devlin v. Kearny Mesa, then, consists of citing a single sentence out of context, and of ignoring the fact situation which occasioned the Fourth District Court of Appeal to write that sentence, and consists of attributing to that sentence an application that the Court never intended.
As any default entry or default judgment in the absence of jurisdiction is necessarily void, denying jurisdiction automatically voids default, which brings the benefit of avoiding the Plaintiff-recommended laborious and time-consuming alternative of setting aside default as a first step, and only after that submitting a motion to quash as a second step. It is false to consider that the wasteful two-stage procedure recommended by Plaintiff is required, when the truth is that it is contraindicated, and when the proper procedure for a defendant attacking jurisdiction post default is to file a motion to concurrently vacate default or default judgment and quash service of process (Floveyor Int. Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 792). It then becomes the plaintiff's burden both to prove proper service of process and to prove the existence of personal jurisdiction over the defendant (Id at 792-793).
Indeed, asking that default be set aside while simultaneously challenging jurisdiction is not only permissible, and not only proper, and not only efficient, but as well affords protection against the perception that a motion to vacate default by itself attorns to jurisdiction:
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Florida courts have repeatedly held that filing a motion to vacate a default does not waive
jurisdictional defenses where such defenses are raised simultaneously with the motion.
National Safety Associates, Inc. v. Allstate Insurance Company (2001), In the District Court of Appeal of Florida, Second District, Case No. 2D01-374 at www.2dca.org/opinion/October%2005,%202001/2d01-374.pdf |
Defendant may go so far as to view Plaintiff recommendation that he proceed with no more than a request to vacate default as encouraging him to take an action that could later be interpreted as his attorning to Court jurisdiction.
Defendant's contrary information is that he submitted along with his motion to quash, delivered 30-Aug-2002, an American Express Worldwide Money Order, No. 107746731, for the sum of US$193.00, of which a true copy of the Purchaser's Receipt is shown below, to cover Civil Filing Fee 7a, for "First paper on behalf of each defendant, intervenor, respondent, or adverse party, whether appearing separately or jointly, per appearing party" as specified on the LASC web site. If Defendant's money order has gone missing as Plaintiff Rambam suggests, then Defendant asks the Court to notify him so that he can supply a second money order, and so that he can initiate an investigation with FedEx and with American Express, and he requests also that the Court initiate its own investigation on the possibility that the money order went missing following arrival at the Los Angeles Superior Court.
In view of the freshly-recognized possibility that remittance of filing fees may be insecure, Defendant underlines also that the instant Defendant Reply is accompanied by Civil Filing Fee 13 for the amount of US$23 to cover "Notice of motion, any other paper requiring a hearing subsequent to the first paper (with specified exceptions) or application for renewal of judgment," as stipulated on the Los Angeles Superior Court web site, of which payment the following is a true copy:
The above money order, furthermore, is enclosed in an envelope marked "Defendant Prytulak, Civil Filing Fee 13, in Rambam vs Prytulak, Case No. BC271433, for the amount of US$23.00," which envelope is sealed and stapled to the instant Reply.
Defendant is uncertain whether he really needs to remit the above US$23.00 filing fee, but his experience with the Los Angeles Superior Court has been that if he fails to remit an expected fee, the Court will ignore his submission without informing him why, and for that reason Defendant prefers to risk overpayment rather than to risk being ignored. Defendant is unaware of any means by which he could verify the need to remit the filing fee in question, which brings Defendant to his next point.
Two weeks after submitting his motion to quash along with his money order for US$193, and in the meantime receiving no answer from the Court, and hearing from Plaintiff that the US$193 has gone missing, Defendant sits in darkness without means of striking a match to shed light on his situation, as he has never been provided with a telephone number at which he can enquire as to the status of his submissions, and never been provided with an email address, or surface mail address, to which he can send an enquiry that will be answered, and receives no feedback on the Los Angeles Superior Court web site. Defendant Prytulak, then, gazes with envy at the contrasting assistance that the Court dispensed to Plaintiff Rambam when Rambam ran into difficulties filling out a Proof of Service form.
Specifically, Plaintiff Rambam neglected to enter Defendant Prytulak's name in the area which has been marked in yellow below:
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If the Court had treated Plaintiff with the same disregard that it treats Defendant, then it would have refused to file Plaintiff's defective Proof of Service, and in reply to Plaintiff enquiries as to why the Proof of Service had not been filed, or in reply to questions as to whether the Proof contained defects that needed to be corrected, the Court would have maintained an inscrutable and impenetrable silence.
However, the Court did not accord Plaintiff any such injurious treatment, but rather helped Plaintiff to correct the two above defects on that Proof of Service form, as can be seen in the feedback given Plaintiff on the LASC web site Case Summary:
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5/22/02 Request (DEFAULT REJECT FOR LUBOMYR PRY-TULAK-NEED
ORIG SUMMONS AND PROOFOF SERVICE. COPY SUBMITTED DOESNOT SHOW DEFTS
NAME OR MANNER OFSERVICE.) |
And as well on that same Proof of Service, Plaintiff neglected to provide the telephone number of the process server:
And neither did this missing telephone number lead the Court to reject the Plaintiff Proof of Service and to greet Plaintiff queries with silence, but rather led the Court to offer on 04-Jun-2002 the sort of feedback which Defendant has never enjoyed and can only envy, in this case to the effect that the missing telephone number was responsible for the Court rejecting both Proof of Service and Request for Default:
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6/4/02 Proof of Service (proof of service as to
lobumyrprytulak filed rejected - tel # ofperson serving not
indicated onproof) 6/4/02 Request (default request as to lubomyrprytulak
rejected - tel # ofperson serving not indicated onproof of
service) |
It was only with the help of the Court, then, that Plaintiff Rambam did eventually stumble his way into getting that daunting Proof of Service form filled out to the satisfaction of the Court, and therefore did manage to get it filed, a mere 20 days after his last feedback from the Court:
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6/24/02 Proof of Service |
The day that the Court gives Defendant Prytulak the same assistance in correcting defects in his submissions, and the day that Defendant Prytulak can submit a filing fee to the Court without apprehension of its being lost, will be the day that his confidence that the Court harbors no bias against him is restored.
Indeed, Plaintiff continues to add to the irregularity and disorder of Case BC271433 by even to this day neglecting to comply with Court Rules 7.3(d-f). That is, the two Rambam vs Prytulak Cases 02E00326 and BC271433 are clearly "related" according to the definitions in Court Rule 7.3(f) below, and not just for one or some of the reasons 7.3(f)(1)(a-d) but for all four reasons, and given that Cases 02E00326 and BC271433 are so related, Court Rule 7.3(f)(2) requires Plaintiff to "file and serve upon all parties of record a Notice of Related Case(s)," which Plaintiff failed to do within the 15-day interval which Court Rule 7.3(f)(2)(a) allows:
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(d) Improper Refiling. It shall not be permissible to dismiss and thereafter refile any case for the purpose of obtaining a different Judge. Whenever a case is dismissed by a party or by the Court prior to judgment and thereafter the same or essentially the same claims, involving the same or essentially the same parties, are alleged in another action, the later filed action shall be assigned, unless the Presiding Judge for good cause orders otherwise, to the Judge to whom the first filed case had theretofore been assigned. (e) Duty of Counsel. It shall be the duty of every counsel in such later filed action referred to in paragraph (d) above immediately to bring the fact of such dismissal and refiling to the attention of the Court. Counsel for plaintiff or cross-complainant (if the earlier action is renewed in a cross-complaint) shall give such notice at the time such pleading is filed. Counsel for all other parties shall give such notice upon their appearance, or as soon thereafter as they discover the facts. Such notice shall be given in a written pleading designated as a �Notice of Related Case� as provided in paragraph (f) below. (f) Related Cases. (1) Definition. A civil case may be ordered related to other case(s), including Probate and Domestic (Family Law) cases, by the Court when it appears that the cases: a) Arise from the same or substantially identical transactions, happenings or events; or b) Require a determination of the same or substantially identical questions of law and/or fact; or c) Are likely for other good reasons to require substantial duplication of labor if heard by different judges. d) Are the same or substantially similar to a prior case in the Superior Court that has been dismissed, either with or without prejudice. (2) Notice. It is the obligation of counsel to file and serve upon all parties of record a Notice of Related Case(s) when the cases are related as defined in paragraph (1) above. a) This notice must be filed not later than 15 days after assignment of a case or not later than 15 days after such facts become known to counsel. b) This notice must set forth facts as to why any pending case or case previously disposed, irrespective of date of filing, is related as defined above. |
Defendant motion to quash, submitted to the Court 30-Aug-2002, has already explained how the self-evident impermissibility of Plaintiff's initiating Case BC271433 while Case 02E00326 was still pending, along with the attendant failure to date the commencement of what should have been a reclassified case to the date of commencement of 02E00326, along with the attendant failure to save documents from 02E00326, led to both incredulity and confusion on Defendant's part, and to a slowing of his responses.
As Defendant neither consents nor submits to the jurisdiction of this Court, the issue of Plaintiff's improper refiling is raised above not to argue the invalidity of the Plaintiff complaint, but only to further substantiate Defendant's argument that Plaintiff failure to comply with both the Code of Civil Procedure (as explained in Defendant motion to quash submitted 30-Aug-2002), and with Court Rules (as explained just above), has sown confusion. This confusion may have contributed to the Court itself relying in its "minute order" of 15-Aug-2002 upon the default entry date of 29-May-2002, when in reality it was 29-Jun-2002. The Plaintiff-sown confusion certainly has been responsible for Defendant delay in responding, and such that the Court does indeed have before it the "good cause" that recommends its hearing Defendant's motion to quash "within any further time that the court may for good cause allow" as is permitted in CCP §418.10(a).
It is underlined that Defendant Prytulak broaches the topic of Plaintiff's improper filing only to reinforce Defendant's contention that "good cause" for extending time exists.
