Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Valerie Lynn Baker, Judge, Super. Ct. No. SS014156
Ronald W. Noya; The Masters Law Firm and Christopher Brinkley for Plaintiff and Appellant.
Zelig & Associates and Steven L. Zelig for Defendants and Respondents.
ASHMANN-GERST, J.
Appellant Emmett Cunningham (Cunningham) challenges a trial court order granting the motion of respondents Ranji Bedi (Ranji) and Lori Bedi (Lori) to vacate a sister state judgment in favor of Cunningham and against them.
Judgment was also entered against Bombay Productions, Inc. (Bombay). Bombay, however, did not move to vacate the sister state judgment entered against it and is not a party to this appeal. Thus, the sister state judgment entered against Bombay is final.
While we are sympathetic to Cunningham’s predicament caused by respondents’ litigation tactics, we must affirm. Respondents only asked the federal court in West Virginia to resolve the issue of jurisdiction. The federal court never answered that query; instead, the matter was remanded to state court, where respondents exercised their right to do nothing, risk having a default judgment entered against them, and then challenge the West Virginia’s jurisdiction over them in a collateral proceeding.
Absent evidence that respondents were subject to the West Virginia state court’s jurisdiction, the sister state judgment against them in California cannot stand. Accordingly, the trial court’s order vacating the sister state judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, Bombay was established. Its principal place of business was in Colorado. Ranji was its chief executive officer, and Lori was its secretary. In 1997, Bombay ceased doing business.
On June 19, 2001, while working in West Virginia, Cunningham was injured, allegedly by a product manufactured by Bombay.
Cunningham files suit in West Virginia; Respondents’ Litigation Activities in West Virginia
On June 17, 2003, Cunningham filed suit against respondents, Bombay, and others in West Virginia state court. No monetary amount of damages was specified in the complaint; rather, Cunningham sought “compensatory damages in an amount to be determined by the Court and jury.”
On July 22, 2003, Ranji and Lori executed a “consent for removal” to remove the action from state court to federal court in West Virginia.
On August 12, 2003, Ranji wrote a letter to Cunningham’s counsel, agreeing that he and Lori would accept service of the complaint in exchange for a 60-day continuance to “respond.” In that letter, respondents expressly reserved the right to dispute jurisdiction. The parties’ stipulation for extension of time to respond to complaint was filed on August 13, 2003.
On October 20, 2003, respondents filed a motion to dismiss the complaint on the ground that the court lacked jurisdiction. The federal court never heard that motion because, on March 23, 2004, the case was remanded back to state court.
Respondents did not ask the West Virginia state court to rule on the motion filed in federal court; nor did they file a new motion to dismiss in state court. In fact, they took no steps to defend the state court action.
West Virginia Judgment
On December 15, 2005, the West Virginia state court entered judgment against respondents and Bombay, pursuant to West Virginia Rules of Civil Procedure, rules 55 and 56. The West Virginia court noted: The lawsuit had been filed on June 17, 2003, and respondents stipulated to accept service. Although they did not file an answer, they did consent to removal and filed a motion to dismiss, which was not heard by the federal court and which was never put before the state court. Discovery was served with the complaint. Following remand from federal court, Cunningham requested that respondents provide their responses to those discovery requests. When they failed to do so, Cunningham filed a motion to compel, which the West Virginia court granted. Nevertheless, respondents still failed to serve discovery responses.
All further references to rules are to the West Virginia Rules of Civil Procedure unless otherwise indicated.
Similarly, Cunningham attempted to serve requests for admission upon respondents. Despite several delivery attempts, respondents refused to accept service of those discovery requests. Thus, pursuant to rule 36, the West Virginia trial court deemed the requests for admission admitted, including admissions regarding jurisdiction, Cunningham’s injuries, and damages.
The West Virginia trial court then entered a default judgment in favor of Cunningham pursuant to rule 55. Regarding damages, the trial court commented: “[I]n order for the Court to enter a final judgment, there must be evidence in the record to set the amount of damages. In addition, to establishing the damages in a hearing, the amount of damages may be fixed either because it cannot be reasonably disputed; is settled with respect to amount; has been ascertained and agreed to by the parties; or has been fixed by operation of law.” The trial court found Cunningham’s damages to be $500,000, as a result of the deemed admitted requests for admission. It also entered summary judgment in favor of Cunningham pursuant to rule 56, finding “no genuine issue as to any material fact with respect to issues in this litigation. Therefore, as an alternative to the default judgment rendered above, the Court enters summary judgment” against respondents.
In its conclusion, the West Virginia trial court expressly found that respondents “appeared before this Court, were aware of their right to litigate both any jurisdictional issues and defenses to [Cunningham’s] claim, and had a full and fair opportunity to litigate such jurisdictional challenges or defenses. However, [respondents] made a unilateral decision to withdraw from further participation in this litigation. Therefore, the Court finds that it is appropriate to proceed to judgment in this matter based upon [Cunningham’s] motion and the evidence before the Court.”
Sister State Judgment
On February 17, 2006, Cunningham applied in California for entry of judgment on sister state judgment. Pursuant to his request, judgment was entered in favor of Cunningham and against respondents and Bombay in the amount of $507,160.
On April 6, 2006, respondents filed a motion to vacate the sister state judgment. They argued, inter alia, that the West Virginia state court acted in excess of its jurisdiction and that Cunningham’s complaint failed to include a statement of the specific relief sought from respondents. Respondents also requested monetary sanctions, pursuant to Code of Civil Procedure section 128.6. Cunningham opposed respondents’ motion.
Trial Court Grants Respondents’ Motion to Vacate Sister State Judgment
The parties appeared for oral argument on June 5, 2006. The trial court indicated that its tentative decision was to grant respondents’ motion, and then counsel and the trial court discussed the issues raised in the parties’ papers. Regarding Cunningham’s damages, Cunningham’s counsel pointed out that the West Virginia trial court awarded Cunningham $500,000 as a result of the requests for admission, which had been deemed admitted, and Cunningham’s motion for entry of judgment that was filed in West Virginia. Those requests for admission, along with the West Virginia motion for judgment were not filed in connection with Cunningham’s opposition to respondents’ motion to vacate the sister state judgment, although Cunningham’s counsel offered to provide them to the trial court.
Following oral argument, on June 6, 2006, the trial court granted respondents’ motion to vacate the sister state judgment. The trial court found that “(1) the West Virginia Court acted without personal jurisdiction over [respondents]; and (2) the Default Judgment rendered by the West Virginia Court was also invalid because it violated due process in that the complaint in the action did not give [respondents] notice of the amount of damages sought.” In so ruling, the trial court relied upon rule 54(c).
The trial court found that respondents “did not consent to jurisdiction of the West Virginia Court or waive their right to contest jurisdiction.” Thus, the sister state judgment must be vacated on the grounds of lack of jurisdiction.
“Additionally, the Default Judgment entered against [respondents] should be vacated because of the lack of notice to [them] of the amount of damages sought in violation of the due process clause and West Virginia’s law.”
Moreover, the trial court denied Cunningham’s request to present further evidence and briefing, as mentioned during oral argument.
Respondents’ request for sanctions was denied.
Despite the trial court’s instruction that respondents prepare a proposed order within 10 days, they did not do so. Instead, Cunningham prepared an order, which the trial court signed on August 16, 2006.
Cunningham’s Appeal
Cunningham filed his notice of appeal on September 28, 2006. Respondents did not separately appeal from the trial court’s order denying their request for sanctions; they also did not file a notice of cross-appeal.
DISCUSSION
I. Cunningham’s appeal is timely
Respondents assert, almost in passing, that Cunningham’s appeal is untimely and should be dismissed. For a host of reasons, we reject this argument. Respondents did not sufficiently address this argument in their appellate brief, and they did not offer any legal authority to support their theory. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) Since the issues as raised in respondents’ brief are not properly presented or sufficiently developed to be cognizable, we decline to consider them and treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661.)
Substantively, the argument lacks merit. California Rules of Court, rule 8.104(a) (former rule 2) provides: “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment.”
Here, the trial court signed the final order granting respondents’ motion on August 16, 2006, an order that should have been prepared by respondents but was not. Cunningham’s notice of appeal was filed on September 28, 2006, less than 60 days later. Accordingly, his appeal is timely.
II. Motion to vacate sister state judgment
A. Standard of review
The ruling on a motion to set aside a judgment rests in the sound discretion of the trial court and will not be set aside on appeal absent a clear abuse of discretion. (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 88–90; see also Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1411; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 352.) That being said, we cannot ignore the well-established principle that we review questions of law de novo. (Florio v. Lau (1998) 68 Cal.App.4th 637, 641.)
B. Applicable law
Code of Civil Procedure section 1710.40 governs motions to vacate judgments entered in California on other states’ judgments. (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 202 (Fidelity).) It operates as an alternative to a separate action on the other state’s judgment and provides that a judgment may be vacated on any ground which would be a defense to an action in this state on the sister state judgment. (Id. at p. 202; Code Civ. Proc., § 1710.40.)
A judgment rendered in excess of jurisdiction is a common defense to enforcement of a sister state judgment. (Fidelity, supra, 89 Cal.App.4th at pp. 202–203.) A judgment rendered in excess of jurisdiction includes a judgment entered by a court lacking personal jurisdiction over a party. (Bank of America v. Jennett (1999) 77 Cal.App.4th 104, 114–115 & fn. 8.) Thus, a party seeking to vacate a California judgment entered based on another state’s judgment may assert that the sister state lacked personal jurisdiction over him or her. (Id. at pp. 114–115; see also Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., supra, 12 Cal.App.4th at pp. 88–90.)
A defendant in an action to enforce a foreign default judgment has the right to show that the judgment is in excess of jurisdiction if the issue was not litigated in the foreign state. (Indiana Insurance Co. v. Pettigrew (1981) 115 Cal.App.3d 862, 864.) On the other hand, if “the court of the first state has expressly litigated the question of jurisdiction, its determination is res judicata and is itself protected by the full faith and credit clause.” (Craig v. Superior Court (1975) 45 Cal.App.3d 675, 680.)
C. The trial court did not abuse its discretion in finding that the personal jurisdiction issue was not res judicata
Applying the foregoing legal principles, we conclude that the trial court did not abuse its discretion in granting respondents’ motion to vacate the sister state judgment.
Respondents consented to the removal of Cunningham’s action to federal court. They then agreed to accept service of the complaint in exchange for a 60-day extension to respond. They responded by filing a motion to dismiss, in federal court. While the federal court never ruled on that motion because it remanded the matter back to state court, respondents never followed up on the issue. They did not file a new motion to dismiss in state court or otherwise ask the state court to consider the motion that they filed in federal court.
It is well-established that when a person receives a summons and complaint from a court in another jurisdiction, and believes he is not subject to that court’s jurisdiction, he has several alternatives available to him. First, he may ignore the summons and complaint, and, then, if a default judgment is issued against him, he may challenge that judgment on jurisdictional grounds in a collateral proceeding when the plaintiff seeks to enforce the judgment. (Insurance Corp. v. Compagnie des Bauxites (1982) 456 U.S. 694, 706.) Second, he may voluntarily waive any lack of personal jurisdiction and submit to the distant court’s jurisdiction. (See, e.g., Maybin v. Northside Correctional Center (4th Cir. 1989) 891 F.2d 72, 74.) Third, he may submit to the jurisdiction of the court for the limited purpose of challenging jurisdiction. (Insurance Corp. v. Compagnie des Bauxites, supra, 456 U.S. at p. 706; see also Foster v. Arletty 3 SARL (4th Cir. 2002) 278 F.3d 409, 413.)
By filing a motion to dismiss for lack of jurisdiction in federal court, respondents placed personal jurisdiction at issue only in the West Virginia federal court. “By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, [respondents] agree[d] to abide by that court’s determination on the issue of jurisdiction. . . .” (Insurance Corp. v. Compagnie des Bauxites, supra, 456 U.S. at p. 706 [italics added].) The West Virginia federal court, however, never heard or made a ruling on respondents’ motion. Instead, the case was remanded to state court, where respondents exercised their right to sit back and do nothing, waiting to challenge jurisdiction in this proceeding. Under these circumstances, we conclude that respondents did not submit the question of jurisdiction to the West Virginia state court.
It follows that Cunningham’s res judicata argument does not compel reversal. Because the federal court never issued a ruling on the question of whether respondents were subject to its jurisdiction, there was no decision for which res judicata would apply. (Insurance Corp. v. Compagnie des Bauxites, supra, 456 U.S. at p. 702.)
Cunningham’s argument on appeal rests largely upon his presumption that by filing a motion to dismiss for lack of jurisdiction in federal court, respondents placed the issue of personal jurisdiction at issue in West Virginia, without regard to the distinction between federal and state court. For example, throughout his appellate briefs, he repeatedly refers to the “West Virginia action” and respondents’ submission to the authority of the “West Virginia courts.” Although this argument is tempting, particularly under the facts presented herein, we cannot agree. In addition to the absence of any legal authority to support respondents’ theory, we defer to the principle behind diversity jurisdiction and granting an out-of-state defendant access to federal court – “to guarantee a non-citizen party a fair trial by limiting the potential effects of local prejudice against outsiders.” (Columbia Gas Trans. v. Burdette Realty Improvement (S.D.W.V. 2000) 102 F.Supp.2d 673, 676; see also (13B Wright & Miller, Fed. Prac. & Proc. (2d ed. 1984) Jurisdiction and Related Matters, § 3601, pp. 340, 355.) Against that backdrop, we can envision a decision by respondents, who are not West Virginia residents, to elect to have the federal court decide whether they were subject to its jurisdiction, yet also refuse to place that same issue before the state court.
Sanpietro v. Collins (1967) 250 Cal.App.2d 203 (Sanpietro), cited by Cunningham, is not on point. In Sanpietro, the plaintiffs sued the defendants in Arizona. (Id. at p. 204.) The defendants specially appeared by filing a motion to dismiss the action on the grounds of lack of personal jurisdiction. (Id. at p. 205.) The defendants failed to appear at the hearing, and their motion was denied. (Ibid.) The defendants then filed an answer to the complaint. (Ibid.) Subsequently, the plaintiffs filed a motion for summary judgment, which the defendants did not oppose. (Id. at p. 206.) The motion was granted, and judgment was entered in favor of the plaintiffs in Arizona. (Ibid.)
The plaintiffs then filed suit in California against the defendants, attaching to their complaint a copy of the summary judgment entered in the Arizona court. (Sanpietro, supra, 250 Cal.App.2d at p. 204.) The defendants answered the complaint by denying essentially all allegations, and by asserting that the Arizona court did not have personal jurisdiction over them. (Ibid.) The plaintiffs moved for summary judgment in California, which the defendants opposed, again by claiming that the Arizona court lacked jurisdiction over them. (Id. at pp. 205–206.) The California superior court entered judgment in favor of the plaintiffs, and the defendants appealed. (Id. at p. 204.)
The Court of Appeal affirmed the judgment. (Sanpietro, supra, 250 Cal.App.2d at p. 209.) It concluded that the Arizona court had expressly litigated the question of jurisdiction against the defendants, and that that determination was res judicata against the defendants. (Id. at p. 208.) Moreover, the fact that the Arizona court’s determination that it had jurisdiction over the defendants “was triggered by a motion to dismiss rather than as a step in an action” made no difference. (Id. at pp. 208–209.) And, the Court of Appeal held, “surely it is not the rule that a party may notice a motion, then having a full opportunity to be heard in its support, remain silent and, if it is denied, insist that it does not affect him because he did not argue it.” (Id. at p. 209.)
Unlike the situation in Sanpietro, respondents here only placed the question of whether the West Virginia federal court had jurisdiction over them; they filed a motion to dismiss for lack of personal jurisdiction in federal court. They did nothing, however, in state court. They did not ask the state court to determine whether they were subject to its jurisdiction. As such, Sanpietro is distinguishable.
D. The trial court did not abuse its discretion in finding that the West Virginia state court did not have personal jurisdiction over respondents
Alternatively, Cunningham asserts that even if the issue of personal jurisdiction is not res judicata, the trial court here erred in finding that the West Virginia state court lacked personal jurisdiction over respondents. Cunningham’s argument is based upon respondents’ deemed admissions to his requests for admission to which respondents did not respond.
As set forth above, respondents did not consent to have the question of jurisdiction resolved by the West Virginia state court. They chose to do nothing, as they have the right to do. Because they have the right to ignore the summons and complaint, logic compels the conclusion that they also had the right to ignore any discovery served with the pleading. Under these circumstances, it would be highly unfair and prejudicial to allow Cunningham to use deemed admissions against them.
In light of our conclusion that the trial court did not err in finding that the West Virginia state court did not have jurisdiction over respondents, all remaining arguments raised by Cunningham are moot.
III. Respondents’ request for sanctions
Respondents are not entitled to sanctions. Their objection to the trial court’s order denying their request for sanctions is not properly before us. They did not file a notice of appeal, challenging the trial court’s order; nor did they file a protective cross-appeal. If respondents wished to assign error to the trial court’s denial of an award of sanctions, they were obliged to file an appeal. “[A] party who has not appealed may not complain of errors.” (Phillips v. Phillips (1953) 41 Cal.2d 869, 875; Kardly v. State Farm Mut. Auto Ins. Co. (1995) 31 Cal.App.4th 1746, 1748, fn. 1.) Without a timely cross-appeal, we lack jurisdiction to consider respondents’ claim of trial court error. (In re Marriage of Shupe (1983) 139 Cal.App.3d 1026, 1036.)
DISPOSITION
The order of the trial court is affirmed. Respondents are entitled to costs on appeal.
We concur: BOREN, P. J., DOI TODD, J.