Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-31050
SIMONS, J.
Movants and appellants Casey Christopher Wheeler and David Dylan Wheeler appeal the denial of their motion to set aside the default judgment (Code Civ. Proc., § 473, subd. (d)) against them in a forfeiture action brought by plaintiff and respondent the People. Appellants contend the default judgment was void on its face and obtained by extrinsic fraud. We agree that the default judgment was void on its face and should have been set aside.
Solely for convenience we refer to appellants individually by their first names.
Code of Civil Procedure section 473, subdivision (d) provides: “The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.”
In violation of California Rules of Court rule 8.204(1)(B), respondent’s brief asserts facts not contained within the appellate record before us. Such facts outside the record will be disregarded. (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.) In addition, those facts stated in respondent’s brief which are derived from its unverified points and authorities memorandum will be disregarded. “ ‘[M]atters set forth in . . . memoranda of points and authorities are not evidence . . . .’ [Citation.]” (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 735.)
On March 5, 2001, paramedics responding to a 911 call at a Sea Ranch residence discovered the body of David Laird Wheeler (decedent). A coroner’s search of a gym bag located in the bedroom turned up numerous stacks of United States currency and some Canadian currency. The United States currency seized totaled $224,060.89 (hereafter defendant property). On or about March 5, appellants, decedent’s sons and sole heirs, were informed of the seizure of the defendant property. On March 14, Sonoma County Narcotics Task Force (task force) detective Erick Gelhaus (Gelhaus) spoke with Casey about decedent’s whereabouts just prior to his death and a machine decedent had invented.
On August 7, 2001, respondent filed a forfeiture petition regarding the defendant property pursuant to Health and Safety Code section 11470 et seq. The petition alleged that the defendant property was either the proceeds of illicit sales of controlled substances or was going to be used to facilitate continued purchases of controlled substances for resale. The appellate record contains a “proof of service – summons” stating the forfeiture petition was served on Stephen G. Nelson, “Atty. for estate of [decedent] out of whose possession money was seized,” under “[section] 11488.” Neither the summons nor the proof of service – summons mentions appellants. Moreover, neither the forfeiture petition nor the proof of service – summons identifies Nelson as representing appellants. The record also includes a postal return receipt addressed to Nelson that was allegedly signed by a “Samuel Acevedo” on August 10.
All undesignated section references are to the Health and Safety Code.
Motion for Default Judgment
On October 2, 2001, respondent moved for a default judgment pursuant to section 11488.5, subdivision (b), on the ground that no claim opposing the forfeiture petition had been filed within the requisite 30-day period. The motion for default and default judgment was supported by the declarations of Gelhaus and Deputy District Attorney Alexander McMahon (McMahon).
Since the issues on appeal regard the sufficiency of the notice of the forfeiture proceeding given to appellants, the factual details contained within the declarations establishing respondent’s forfeiture case are irrelevant and will not be recited.
Gelhaus’s declaration stated the following: The task force was notified of the circumstances surrounding the death of decedent on March 6, 2001. Detective Benyak informed Gelhaus that “an attorney representing . . . one of [decedent’s] sons” called requesting release of the seized United States currency. On March 14, Casey told Gelhaus that decedent had been living in Canada until just before his death. Casey also told Gelhaus that decedent was a retired writer and inventor whose most recent invention was the “Volatizer,” a machine used for the inhalation of marijuana. On April 4, Gelhaus was contacted by Nelson, “personal attorney for [decedent], now claiming to represent the estate.”
McMahon’s declaration stated the following: Nelson, “attorney of record” for Casey and David was “served with a Petition for Forfeiture, Summons, Notice and Acknowledgment of Receipt, and Claim Opposing Forfeiture,” which were sent by certified mail, return receipt requested, on August 7, 2001, to Nelson at a San Diego address. On August 13, 2001, a postal return receipt signed by “Samuel Acevedo” was received by the district attorney’s office. Notice of the seizure was published in a Sonoma County newspaper on August 15, 22, and 29, 2001. A signed notice and acknowledgement of receipt was not received by the district attorney’s office and neither a claim opposing forfeiture nor an answer to the forfeiture petition were filed.
The forfeiture petition, summons, proof of service – summons, and signed postal return receipt are included in the appellate record. However, the form entitled claim opposing forfeiture is not included in the record before us.
On October 30, 2001, the court’s order for default judgment issued, ordering respondent’s recovery and distribution of the defendant property pursuant to section 11470 et seq. The order stated in relevant part: “It appearing that [Nelson], attorney for [appellants], the heirs of [decedent], having been regularly served with process, having failed to file a Claim Opposing Forfeiture and an Answer to [respondent’s] Petition for Forfeiture: . . . .”
Motion to Set Aside Default
On April 21, 2006, appellants moved to set aside the default and default judgment on the grounds that the default judgment was void on its face because appellants were never served with a copy of the summons, forfeiture petition, or any pleading related to forfeiture of the defendant property. Appellants also argued that respondent’s forfeiture petition, summons, proof of service – summons, and motion for default contained material misstatements regarding service on Nelson, constituting extrinsic fraud requiring that the default judgment be set aside.
Appellants filed identical supporting declarations that stated they were informed on or about March 5, 2001, that the defendant property had been seized by law enforcement agents from decedent’s residence. However, appellants stated at no time did they ever receive any legal notice from any court or governmental agency that the defendant property had been seized for forfeiture or that forfeiture proceedings had been initiated. Appellants also declared they were never served with a copy of the forfeiture petition, summons, notice of the forfeiture proceedings, or motion for default judgment in this matter. They stated they never authorized Nelson to accept service on their behalf of a forfeiture petition and summons, any notice regarding the government’s intention to seek a forfeiture of the defendant property, any motion for default judgment in this matter, or any other matter regarding the seized property. They declared they first became aware of the 2001 forfeiture action and default judgment in January 2006, when their attorney, David Michael, discussed with them the government’s more recent pleadings regarding the forfeiture of a truck seized from decedent’s residence at the time of decedent’s death.
Nelson’s supporting declaration stated he had represented decedent “in various capacities” prior to decedent’s death. Nelson stated, “At no time was I ever authorized by [appellants] to accept service on behalf of them regarding a petition for forfeiture and summons, regarding any notice whatsoever as to the intention of any government agency to seek a forfeiture of the defendant property seized from [decedent’s] residence, or regarding any motion for default judgment in this matter, or any other matter regarding the seized property described herein.” Nelson also declared he never told the Sonoma County District Attorney’s Office, the Sonoma County Sheriff’s Department, or any other law enforcement agency involved in this matter, that he was ever authorized to accept service on behalf of appellants regarding the forfeiture petition and summons, the forfeiture matter, the default judgment, or any other matter regarding the seized property. Nelson also declared he never informed appellants of or provided appellants with documents regarding the forfeiture petition, summons or default judgment. Nelson stated it was his “information and belief” that the government was statutorily obligated to individually serve appellants, and that appellants would contact him if they required his assistance in the forfeiture matter.
Four letters written by Nelson were attached to his declaration. On March 29, 2001, Nelson wrote to Gelhaus stating, “I was [decedent’s] attorney and now represent his sons and heirs [appellants].” The letter requested that it be considered a formal request that the seized property be returned to appellants as soon as possible. The letter noted that Nelson would be a witness in any forfeiture litigation, in which case he would have to retain a “local forfeiture specialist.” The letter also requested that Nelson be notified at his San Diego letterhead address of “any action, document, filing or proceeding affecting the property.” An April 6, 2001 letter from Nelson to Gelhaus thanked Gelhaus for meeting with Casey and returning to Casey some of decedent’s personal property. Nelson referred to himself as “the attorney in this matter,” and stated that he had “convinced [appellants] to be patient and that you need to complete your investigation and get certain questions answered before we push this matter into court—which, in the end, may not be necessary.” A July 10, 2001 letter from Nelson to Gelhaus and McMahon stated Nelson had received copies of the order for seizure, and requested that he be provided with the forfeiture complaint, if filed, and the statement of probable cause. An August 1, 2001 letter from Nelson to Sonoma County District Attorney J. Michael Mullins stated, “I was the attorney for [decedent]. . . . I now represent his sons who are [decedent’s] heirs.” Nelson again requested a copy of the probable cause statement submitted to the court, that he be advised of the county’s intentions regarding the seized property of decedent, and that he be served with any forfeiture papers.
Nelson’s declaration recited that his statements in the four letters made it clear to Gelhaus that Nelson did not represent appellants in any future forfeiture litigation, that it would be a conflict of interest for him to represent appellants in such proceedings, and he was not relieving the government of its burden of serving “the statutorily required persons” in any forfeiture action.
Respondent opposed appellants’ motion to set aside the default on numerous grounds. First, respondent argued the declarations of appellants and Nelson attached to appellants’ motion were inadmissible hearsay because they were prepared without the opportunity to cross-examine the declarants. Second, respondent argued that because appellants did not qualify as owners of the defendant property, they lacked standing and a meritorious defense to contest the forfeiture. Third, respondent argued that although appellants were not personally served with the notice, forfeiture petition, and summons, respondent “believed that service upon [Nelson], who asserted he was [appellants’] attorney, was reasonable and sufficient,” and respondent “expected” that Nelson would apprise his clients of the forfeiture proceedings. Fourth, respondent argued that appellants became aware of the default judgment in January 2006, but waited until April to move to set aside the default, without any explanation for the four-month delay. Fifth, respondent argued that appellants failed to establish fraud. Finally, respondent argued that appellants’ motion was precluded by laches. In particular, respondent asserted that although appellants knew in March 2001 that decedent’s property had been seized at the time of his death and had contact information for Gelhaus, neither appellants nor Nelson inquired as to the status of the property resulting in unwarranted delay.
Appellants’ motion to set aside the default judgment was summarily denied following a hearing unattended by appellants. Appellants filed a timely appeal from the order denying their motion to set aside the default judgment.
No reporter’s transcript from the hearing is included in the appellate record.
Discussion
Appellants contend the default and default judgment are void on their face because appellants were never served with the appropriate documents.
I. Standard of Review
On appeal from an order denying a motion to set aside a default or default judgment, we accept the trial court’s findings where those findings are based on substantial evidence. Whether the default and default judgment were in compliance with statutory and constitutional requirements are questions of law which we review de novo. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.)
II. Legal Background Regarding Civil Drug Forfeitures
“A forfeiture proceeding is a civil in rem action in which property is considered the defendant, on the fiction that the property is the guilty party. [Citations.] Statutes imposing forfeitures are disfavored and are to be ‘ “strictly construed in favor of the persons against whom they are sought to be imposed.” [Citation.]’ [Citation.] [¶] A claimant has both a statutory and a California constitutional right to a jury trial on civil in rem forfeiture proceedings. [Citations.]” (People v. Superior Court (Plascencia) 103 Cal.App.4th 409, 418.)
The current statutory scheme, section 11469 et seq., governs forfeitures of controlled substances, property, cash, and other things of value used in connection with the trade in controlled substances. The statutory scheme provides that “currency is subject to forfeiture if it is furnished or intended to be furnished in exchange for a controlled substance, traceable to such an exchange, or used or intended to be used to facilitate trafficking in, or the manufacture of, various controlled substances. (§ 11470, subd. (f).) Property subject to forfeiture may be seized by a peace officer if there is probable cause to believe the property was used for the specified illicit purposes. (§ 11471, subd. (d).) [¶] If the appropriate governmental agency determines, based upon the facts, that property valued over $25,000 is forfeitable, the Attorney General or district attorney . . . must file a petition of forfeiture in the superior court, within specified time limits, and must comply with various service and notice requirements. (§ 11488.4, subds. (a), (c), (d), (e), (f), (j).)” (Plascencia, at pp. 418-419.)
III. Standing
Preliminarily, we address respondent’s assertion that appellants’ motion to set aside the default judgment was properly denied because appellants lack standing to contest the forfeiture. On the issue of standing in a controlled substance forfeiture action, the statutory scheme provides: “Nothing contained in this chapter shall preclude a person, other than a defendant, claiming an interest in property actually seized from moving for a return of property if that person can show standing by proving an interest in the property not assigned subsequent to the seizure or filing of the forfeiture petition.” (§ 11488.4, subd. (g).)
Standing is a threshold legal issue in a civil forfeiture action. (Plascencia, supra, 103 Cal.App.4th at pp. 421, 423-424.) “The doctrine of standing seeks to [e]nsure that courts decide actual controversies and not abstract questions.” (Jauregi v. Superior Court (1999) 72 Cal.App.4th 931, 938.) Section 11488.4, subdivision (g), requires the claimant to prove his or her standing by showing a legally cognizable interest in the property by a preponderance of the evidence in order to contest the government’s forfeiture. (Plascencia, at p. 424; Jauregi, at p. 940.) “ ‘Standing has been recognized where the potential claimant has a bona fide ownership, possessory, or security interest in the property seized.’ [Citation.]” (People v. $241,600 United States Currency (1998) 67 Cal.App.4th 1100, 1107-1108.)
Respondent relies on section 11470, subdivision (h), which provides in relevant part: “Subject to the requirements of Section 11488.5 and except as further limited by this subdivision to protect innocent parties who claim a property interest acquired from a defendant, all right, title, and interest in any personal property described in this section shall vest in the state upon commission of the act giving rise to forfeiture under this chapter, if the state or local governmental entity proves a violation of Section 11351, 11351.5, 11352, 11355, 11359, [or] 11360 . . . of this code, or Section 182 of the Penal Code, . . . insofar as the offense involves the . . . sale, possession for sale, offer for sale, . . . or conspiracy to commit at least one of those offenses, in accordance with the burden of proof set forth . . . in the case of cash or negotiable instruments in excess of twenty-five thousand dollars ($25,000), paragraph (4) of subdivision (i) of Section 11488.4.” Under this “special vesting rule,” respondent argues title to the defendant property in this case vested in the state when the alleged illicit drug offenses occurred. (§ 11470, subd. (h); see also, People v. $241,600 United States Currency, supra, 67 Cal.App.4th at p. 1108.)
However, respondent ignores the remainder of section 11470, subdivision (h), which provides that operation of the special vesting rule “shall be limited to circumstances where its application will not defeat the claim of any person, including a bona fide purchaser or encumbrancer who, pursuant to Section 11488.5 . . ., claims an interest in the property seized, notwithstanding that the interest in the property being claimed was acquired from a defendant whose property interest would otherwise have been subject to divestment pursuant to this subdivision.” Pursuant to this provision, the special vesting rule does not apply if the claimant acquired an interest in the property prior to its seizure. (People v. $241,600 United States Currency, supra, 67 Cal.App.4th at p. 1108.)
As argued by appellants, “[w]hen a person dies, title to his or her property vests in the heirs or devisees, subject to administration. [Citation.]” (Olson v. Toy (1996) 46 Cal.App.4th 818, 825; see also Prob. Code, § 7000.) Here, it is undisputed that appellants are decedent’s sole heirs; and, therefore, title to decedent’s property, including the defendant property, vested in appellants at the time of decedent’s death. Since appellants acquired an interest in the defendant property prior to its seizure, the special vesting rule does not apply to defeat appellants’ standing.
IV. The Default Forfeiture Judgment Is Void on Its Face
Appellants contend that respondent’s failure to personally serve them with the forfeiture petition, summons, motion for default judgment and the documents supporting that motion, render the default judgment void for lack of jurisdiction.
“A default judgment is void if the trial court lacked jurisdiction over the parties or the subject matter of the complaint or if the complaint failed to ‘apprise[] the defendant of the nature of the plaintiff’s demand,’ or if the court granted relief which it had no power to grant . . . .” (Falahati v. Kondo, supra, 127 Cal.App.4th at p. 830, fns. omitted.) A judgment which is void on its face may be set aside at any time after its entry. (Nagel v. P & M Distributors, Inc. (1969) 273 Cal.App.2d 176, 179 (Nagel).) “ ‘A judgment absolutely void upon its face may be attacked anywhere, directly or collaterally, whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither the basis nor evidence of any right whatsoever. . . .’ [Citations.]” (Id. at p. 180.)
To satisfy due process, section 11488.4, provides for three types of notice in forfeiture proceedings. (Nasir v. Sacramento County Off. of the Dist. Atty. (1992) 11 Cal.App.4th 976, 982; accord, People v. Parcel No. 056-500-09 (1997) 58 Cal.App.4th 120, 125.) First, the person from whom property was seized and who is named in a receipt for the seized property is entitled to service of process of the forfeiture petition. Second, notice of the seizure and of the intended forfeiture proceeding as well as a claim form and instructions for filing and serving a claim must be “served by personal delivery or by registered mail upon any person who has an interest in the seized property or property subject to forfeiture other than persons designated in a receipt issued for the property seized.” (§ 11488.4, subd. (c); hereafter section 11488.4(c).) Third, notice of the forfeiture action must be published once a week for three consecutive weeks in a newspaper of general circulation in the county of seizure. (§ 11488.4, subd. (e).)
Section 11488.4, subdivision (c) provides: “The Attorney General or district attorney shall make service of process regarding this petition upon every individual designated in a receipt issued for the property seized. In addition, the Attorney General or district attorney shall cause a notice of the seizure, if any, and of the intended forfeiture proceeding, as well as a notice stating that any interested party may file a verified claim with the superior court of the county in which the property was seized or if the property was not seized, a notice of the initiation of forfeiture proceedings with respect to any interest in the property seized or subject to forfeiture, to be served by personal delivery or by registered mail upon any person who has an interest in the seized property or property subject to forfeiture other than persons designated in a receipt issued for the property seized. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in Section 11488.5 and directions for the filing and service of a claim.”
As persons with an interest in the property, appellants were entitled to notice under the second method of notice contemplated by section 11488.4(c). Pursuant to that subdivision, appellants were not entitled to a “summons” of the forfeiture petition. (People v. Parcel No. 056-500-09, supra, 58 Cal.App.4th at p. 126.) Instead, they were entitled to notice of an intended forfeiture proceeding as provided in section 11488.4(c). (Ibid.; Weil et al., Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 4:87, p. 4-12.) Section 11488.4(c) expressly provides that respondent was required to serve appellants, “by personal delivery or by registered mail,” with notice of the intended forfeiture proceeding, a claim form, and instructions for filing and service of the claim.
A “summons” is a form of court process issued in the course of a judicial proceeding (Code Civ. Proc., § 17, subd. (b)(6)), whose function is to notify defendants that a lawsuit is pending against them, that they have a limited amount of time in which to file a response, and of the consequences if they fail to do so. (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 4:1, p. 4-1.)
Appellants argue that they were also entitled to service of the forfeiture petition pursuant to Code of Civil Procedure sections 415.10 (personal delivery of summons), 415.30 (service of summons by mail), 415.40 (service of summons on person outside of state), and 416.90 (service of summons on persons not otherwise specified). They rely on Health and Safety Code section 11488.5, subdivision (c)(3) which provides in relevant part: “The provisions of the Code of Civil Procedure shall apply to proceedings under this chapter unless otherwise inconsistent with the provisions or procedures set forth in this chapter.” Appellants’ argument fails: The notice requirements for forfeiture petitions are specifically set forth in Health and Safety Code section 11488.4, and pursuant thereto, appellants, as interested persons, were not entitled to service of summons of the forfeiture petition. Therefore, the Code of Civil Procedure sections regarding service of summons do not apply. (People v. Parcel No. 056-500-09, supra, 58 Cal.App.4th at p. 126.)
Respondent appears to concede that appellants were not personally served with notice of the intended forfeiture proceeding, a claim form, and filing and service instructions as required by section 11488.4(c). In reliance on Dusenbery v. United States (2002) 534 U.S. 161 (Dusenbery) and Lobzun v. U.S. (7th Cir. 2005) 422 F.3d 503 (Lobzun), respondent argues that it “reasonably believed that service upon Nelson, who asserted he was [appellants’] attorney, was reasonable and sufficient,” and thereby comported with due process standards. Respondent takes its argument even further and states, with no citation to authority, appellants “received adequate de factoactual notice through both . . . Gelhaus and their own attorney, . . . Nelson. They had actual notice and assistance of counsel, yet chose not to file a claim opposing forfeiture or even inquire into the status of the seized funds.”
Respondent’s assertion regarding de facto notice is unsupported by authority; and, therefore, we need not consider it and treat it as waived. (See Magan v. County of Kings (2002) 105 Cal.App.4th 468, 477, fn. 4 [waiver resulting from failure to cite legal authority].) In addition, respondent’s assertion that appellants had actual notice through Nelson and chose not to file a claim or inquire into the seized funds is unsupported by the record and will be disregarded. (Gotschall v. Daley, supra, 96 Cal.App.4th at p. 481, fn. 1.)
Respondent’s reliance on Dusenbery and Lobzun is misplaced as those cases are factually distinguishable. In Dusenbery, a federal administrative forfeiture case, the statute required the agency to send written notice of the seizure and information on the applicable forfeiture procedures to each party who appeared to have an interest in the property. (Dusenbery, supra, 534 U.S. at p. 164.) The government sent letters of its intention to forfeit the subject property by certified mail addressed to the petitioner in care of the federal prison where he was then incarcerated, to the address of the residence where petitioner was arrested, and to an address in the town where his mother lived. The property was declared administratively forfeited after the government received no response to its notices within the time allotted. (Ibid.) The petitioner argued that the notice was insufficient because due process generally required “actual notice” to interested parties prior to forfeiture, which he argued meant actual receipt of notice. (Id. at p. 169.) The high court held that the notice given the petitioner was “ ‘reasonably calculated, under all the circumstances, to apprise [petitioner] of the pendency of the action.’ ” (Id. at p. 173.) Unlike Dusenbery, where a procedurally proper attempt was made to give actual notice to the interested person, here no attempt was made by respondent to provide appellants, the interested persons, with actual notice.
In Lobzun, a federal administrative forfeiture case, the government sent the defendant owner of seized property notice of the seizure and claim filing instructions by certified mail to her home address. (Lobzun, supra, 422 F.3d at pp. 504-505.) The postal return receipt for the notice indicated that it was received at the correct address, but the signature of the person receiving the notice was illegible. (Id. at pp. 505, 508.) The Supreme Court held that because the notice was adequate when it was sent, due process was satisfied. (Id. at p. 508.) Again, Lobzun is distinguishable. In that case, a procedurally proper attempt was made to give actual notice to the owner of the seized property, whereas here no attempt was made to give the requisite notice to appellants.
Significantly, respondent’s argument ignores the express service requirements of section 11488.4(c): notice of the seizure and of the intended forfeiture proceeding, as well as a claim form and instructions for filing and serving a claim, must be “served by personal delivery or by registered mail upon any person who has an interest in the seized property or property subject to forfeiture other than persons designated in a receipt issued for the property seized.” Section 11488.4(c) does not provide for substituted service on a third party agent or attorney, and respondent provides no authority for the proposition that substituted service on a third party agent or attorney somehow satisfies the section 11488.4(c) service requirements. In addition, the record before us reflects that neither a claim form nor instructions for filing and service of a claim were served on Nelson.
In any event, even if substituted service on an authorized agent or attorney is permissible, nothing in the record provided respondent with a basis for concluding appellants had provided that authorization. All information regarding Nelson’s representation of appellants came from Nelson, not appellants. And Nelson never expressly said he had been authorized to receive service on appellants’ behalf. In fact, the proof of service for Nelson never identified him as appellants’ attorney or mentioned appellants in any fashion.
Further, neither McMahon’s declaration in support of the motion nor the motion papers states that Nelson was designated by appellants as authorized to accept service of the statutory forfeiture notice on appellants’ behalf. Nagel is instructive. In Nagel, service of a breach of contract action filed against the defendant corporation was made by serving “Ulf Ljungberg” with the summons and complaint. When the defendant corporation failed to appear, a default judgment was obtained. The defendant corporation successfully moved to vacate the judgment on the ground that the defendant corporation had not been served with the summons and complaint. The then applicable statute regarding service on a corporation (Code Civ. Proc., former § 411, repealed by Stats. 1969, ch. 1610, § 12, operative July 1, 1970, p. 3372) specified in relevant part that a natural person be designated by the corporation as agent for service of process. (Nagel, supra, 273 Cal.App.2d at p. 181.) In affirming the order vacating the default judgment, the Court of Appeal stated nothing in the record alleged Ljungberg had been designated by the defendant corporation as its agent for service of process, and the plaintiff’s assertion that Ljungberg was authorized to receive service of process was “at most a legal conclusion unfounded in fact.” (Nagel, at pp. 181-182.) Nagel held that the record affirmatively demonstrated no service on the defendant corporation; and, therefore, the default and default judgment were void on their face for lack of jurisdiction. (Id. at p. 182.) In addition, Nagel noted that the record suggested that the defendant corporation had not been apprised of the service on Ljungberg. (Id. at p. 183.)
As in Nagel, nothing in the record here alleges that Nelson had been designated by appellants as their agent for service of process, and nothing in the record suggests that appellants were apprised of the service on Nelson on their behalf. Appellants’ declarations state they did not become aware of respondent’s 2001 forfeiture action until January 2006, when they were so advised by their attorney, David Michael.
We are mindful that forfeiture is a disfavored remedy (Nasir v. Sacramento County Off. of the Dist. Atty., supra, 11 Cal.App.4th at p. 986); and, therefore, statutes imposing forfeitures are not favored and must be strictly construed in favor of persons against whom they are sought to be imposed (Baca v. Minier (1991) 229 Cal.App.3d 1253, 1265). In this case, what appellants have “forfeited,” and seek to regain, is the right to make their claim and have it determined by an impartial decision maker. “This forfeiture of the right to a determination on the merits is precisely the type of forfeiture which the law abhors.” (Nasir, at p. 986, fn. 5.) Strictly construing section 11488.4(c) in favor of the claimant appellants requires that they be personally served, by personal delivery or by registered mail, with notice of the intended forfeiture proceeding, accompanied by a claim form and instructions for filing and serving the claim. On its face, the notice sent by respondent to Nelson did not comply with the section 11488.4(c) requirements.
With no pertinent citation to authority, respondent asserts, “Inasmuch [as] the . . . superior court had subject matter jurisdiction in this in remproceeding, jurisdiction over appellants is irrelevant and the default judgment is not void. As a result, appellants must satisfy the requirements for setting aside a default in forfeiture cases: establishing a meritorious defense, a satisfactory excuse for not presenting a defense to the original action, and diligence in seeking to set aside the default. [Citation.] They established none of these things.” Respondent refers us to People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 584, in which this court affirmed a trial court’s equitable exercise of discretion to set aside a default judgment in a forfeiture case based on extrinsic mistake, i.e., failure of the defendant’s attorney to file a timely claim asserting defendant’s interest in seized property, and to oppose the People’s motion for entry of default judgment. One Parcel of Land is inapposite because it did not concern the issue of a lack of notice or a judgment void on its face.
Respondent’s assertion that the default judgment may not be set aside as void on its face for lack of notice because a forfeiture action is in rem is unsupported by authority; for that reason alone, we need not consider it and treat it as waived. (See Magan v. County of Kings, supra, 105 Cal.App.4th at p. 477, fn. 4.) In any event, the assertion is untenable. Although a forfeiture action is nominally in rem against the seized property itself, in reality it is directed against those who have property interests in the seized property. (See People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 302.) Therefore, it is necessary that the property owner and those who are entitled to notice under section 11488.4(c) be given notice of the forfeiture proceedings and an opportunity to be heard. (See People v. One 1941 Chrysler Sedan (1947) 81 Cal.App.2d 18, 31-32, disapproved on other grounds in One 1941 Chevrolet Coupe, at p. 303.) Moreover, numerous federal cases have held that “a constitutionally deficient notice of forfeiture renders such a forfeiture void.” (U.S. v. Marolf (9th Cir. 1999) 173 F.3d 1213, 1216, and cases cited therein; see also 1 Smith, Prosecution and Defense of Forfeiture Cases (2007) Pretrial Proceedings, §10.06[1], p. 10-102.4(1), fn. 5 [no time limit in bringing motion for relief of void judgment under Federal Rules of Civ. Procedure, rule 60(b)(4)].)
The parties agree that because the California drug asset forfeiture statutes are modeled on the federal forfeiture laws, federal case law, while not controlling, is highly persuasive in deciding drug forfeiture issues. (People v. $9,632.50 United States Currency (1998) 64 Cal.App.4th 163, 169.)
We also reject respondent’s contention that appellants’ motion to set aside the default judgment was barred by laches. “A motion to vacate a judgment void on its face is not subject to a claim of laches.” (Falahati v. Kondo, supra, 127 Cal.App.4th at p. 831, fn. omitted, citing Batte v. Bandy (1958) 165 Cal.App.2d 527, 538.) In any case, the lengthy interval between the default judgment and the motion to set it aside does not support a claim of laches since the record does not establish that the default judgment or notice of entry of the judgment was served on appellants. (See Falahati, at p. 831.)
It is apparent from the face of the forfeiture documents served on Nelson that respondent failed to provide appellants with the requisite statutory notice pursuant to section 11488.4(c) prior to seeking and obtaining the default forfeiture judgment. As a result, appellants were denied the right to make their claim to the defendant property and have it determined by an impartial decision maker. As we stated previously, “This forfeiture of the right to a determination on the merits is precisely the type of forfeiture which the law abhors.” (Nasir v. Sacramento County Off. of the Dist. Atty., supra, 11 Cal.App.4th at p. 986, fn. 5.) In the factual context of this case, serving Nelson in lieu of serving appellants was statutorily and constitutionally deficient; and, therefore, the default forfeiture judgment was void on its face and should have been set aside.
Because we conclude that the default forfeiture judgment was void on its face (Code Civ. Proc., § 473, subd. (d)), we need not address respondent’s contention that the trial court’s refusal to set aside the default judgment was not an abuse of discretion under Code of Civil Procedure section 473, subdivision (b). We also need not address appellants’ claim that the default judgment was obtained by extrinsic fraud.
Disposition
The order denying the motion to set aside the default judgment is reversed and remanded. Appellants are awarded costs on appeal.
We concur. JONES, P.J., STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.