Opinion
B311072
09-22-2022
In re the Marriage of ARTHUR and POLINA TSATRYAN. v. VYACHESLAV SHIRINYAN et al., Cross-Defendants and Appellants. POLINA TSATRYAN, Cross-Complainant and Respondent,
Vyacheslav Shirinyan, in pro. per., for Cross-Defendant and Appellant Vyacheslav Shirinyan. Arthur Tsatryan, in pro. per., for Cross-Defendant and Appellant Arthur Tsatryan. No appearance for Cross-Complainant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD512645 Dean H. Hansell, Judge. Affirmed in part; reversed in part. Dismissed as to appeal by Arthur Tsatryan.
Vyacheslav Shirinyan, in pro. per., for Cross-Defendant and Appellant Vyacheslav Shirinyan.
Arthur Tsatryan, in pro. per., for Cross-Defendant and Appellant Arthur Tsatryan.
No appearance for Cross-Complainant and Respondent.
FEUER, J.
In May 2015 the family court entered a judgment of dissolution of Arthur and Polina Tsatryan's marriage and found their former marital residence in Santa Clarita (the Santa Clarita property) was community property. The court subsequently awarded Polina 100 percent of the property after finding Arthur breached his fiduciary duties to Polina by executing seven deeds of trust conveying security interests in the property to his friends and relatives, including Vyacheslav Shirinyan. Polina later filed a complaint for fraudulent transfer and declaratory relief against Arthur and the transferees. The court entered a default against Shirinyan, and after a prove-up trial, the court entered a judgment voiding Shirinyan's deed of trust.
We refer to Arthur and Polina by their first names to avoid confusion.
Shirinyan and Arthur appeal from the family court's denial of Shirinyan's request for an order vacating the default judgment and declaring Polina a vexatious litigant. Because the record does not reflect valid personal service of the summons and complaint on Shirinyan, the default and default judgment are void, and we reverse the order denying Shirinyan's request to vacate the judgment. We remand for the family court to vacate the default and default judgment. However, we affirm the order denying Shirinyan's request to declare Polina a vexatious litigant.
We dismiss Arthur's appeal because he is not aggrieved by the order, and he therefore lacks standing to appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Marital Dissolution and Santa Clarita Property
Our discussion of the dissolution and property division is taken from In re Marriage of Tsatryan (April 18, 2022, B305927) (nonpub. opn.).
Arthur and Polina were married on August 5, 1987. They separated on August 3, 2009, and Arthur filed a petition for dissolution of marriage on September 23, 2009.
After a five-day trial in February and April 2015, on May 21, 2015 the family court entered a judgment of dissolution. In relevant part, the court found the Santa Clarita property, appraised at $695,000, was community property, and the court ordered the property be sold and the proceeds divided evenly, subject to equalization payments. Arthur appealed, and we affirmed. (In re Marriage of Tsatryan (Feb. 13, 2018, B265467) [nonpub. opn.].)
Judge Mark A. Juhas presided over the trial and signed the judgment of dissolution.
On September 24, 2015 Polina filed a request for order partially vacating the judgment of dissolution as to the division of the Santa Clarita property. Polina's attorney submitted a declaration stating Arthur secretly caused seven deeds of trust to be recorded against the Santa Clarita property on February 11 and 12, 2015 in favor of friends and relatives, creating total encumbrances of $583,000. Among them was a $25,000 deed of trust in favor of Shirinyan (the Shirinyan trust deed).
On January 26, 2016 the family court issued an order finding Arthur encumbered the Santa Clarita property in violation of the family law restraining order because the deeds of trust were not executed "'in the usual course of business'" or "'for the necessities of life.'" Further, Arthur did not provide the court with a full and complete income and expense declaration. The court observed the deeds of trust had "'"no corresponding promissory notes and no loan repayment terms"'" and "'"[t]here is no evidence that [Arthur] received the funds from these [e]ncumbering [d]eeds."'" The court found by clear and convincing evidence that Arthur's "'egregious'" breach of fiduciary duty constituted malice, oppression, or fraud under Civil Code section 3294. (See In re Marriage of Tsatryan (Jan. 14, 2019, B270784) [nonpub. opn.].)
The family court awarded Polina 100 percent of the Santa Clarita property under Family Code section 1101, subdivision (h), and ordered Arthur to execute an interspousal transfer deed transferring his entire interest in the property to Polina as her sole and separate property. The court retained jurisdiction over the Santa Clarita property, execution of the interspousal transfer deed, and all issues related to the encumbering deeds. Arthur again appealed, and we affirmed. (In re Marriage of Tsatryan, supra, B270784.)
Family Code section 1101, subdivision (a), provides for a damages claim by a spouse for breach of the other spouse's fiduciary duty that impairs the community estate. Section 1101, subdivision (h), provides that the claimant spouse may recover 100 percent of the asset in cases of malice, oppression, or fraud.
B. Polina's Complaint for Fraudulent Transfer
On August 2, 2016 Polina filed a "complaint in joinder" in the dissolution action asserting causes of action for fraudulent transfer and declaratory relief against Arthur, Shirinyan, and the six other transferees on the deeds of trust. Polina alleged that Arthur, with the cooperation of the transferees, executed and recorded the deeds of trust encumbering the Santa Clarita property on the eve of the dissolution trial to deprive Polina of her community interest in the property. Polina sought voidance of the transfer, declaratory and injunctive relief, an attachment order, imposition of a constructive trust, and appointment of a receiver. She also sought compensatory damages, punitive damages, and attorneys' fees and costs.
On October 16, 2017 the family court granted Shirinyan's motion to quash service of the summons and complaint, finding Polina's proof of service and the process server's declaration established the documents were left at Shirinyan's apartment door but they were not delivered to Shirinyan personally, and therefore there was no effective personal or substituted service.The court denied motions to quash filed by five of the other transferees: Gaiane Galstian, Svetlana Gevondyan, Arkadiy Petrosyan, Karen Tsatouryan, and Karina Yesayeva.
Judge Shelley Kaufman.
Shirinyan stated in a declaration in support of his motion to quash that he found a stack of papers in his doorway on July 20, 2017.
As we discussed in greater detail in In re Marriage of Tsatryan, supra, B305927, the five transferees (excluding Shirinyan) defaulted, and after a prove-up trial at which Polina and Arthur testified, on February 27, 2020 the family courtentered a default judgment voiding the deeds of trust executed in the transferees' favor. Polina's claims against a seventh transferee, Lyudmila Yesayeva, were tried on January 27, 2020, and on February 27, 2020 the court entered a judgment voiding her deed of trust.
The matter was assigned to Judge Dean H. Hansell effective October 2, 2019.
On December 11, 2019, the family court bifurcated the trial of Polina's claims against Arthur to begin no sooner than 30 days after the trial of the claims against Lyudmila Yesayeva. The docket does not reflect trial of Polina's claims against Arthur.
C. Polina's Requests To Enter Shirinyan's Default
After the family court granted Shirinyan's motion to quash service of the summons and complaint, Polina (then selfrepresented) commenced a multiyear effort to serve Shirinyan with the complaint.
On March 18, 2018 Polina submitted requests to enter defaults against Shirinyan and the defaulting transferees on Judicial Council family law form FL-165, which the superior court clerk rejected on the ground that "Respondent cannot file default." The record does not reflect Polina filing a proof of service of the complaint on Shirinyan prior to her request for entry of default.
In a November 1, 2018 case review minute order, the family court (Judge Gregory J. Weingart) explained the clerk denied Polina's March 18, 2018 requests to enter defaults against Shirinyan and the defaulting transferees because the clerk
On June 14, 2019 Polina filed a "Summons (Joinder)" on family law form FL-375 identifying Shirinyan as a "claimant." In the attached proof of service, Diana Jumataer attested that she served the summons and complaint on Shirinyan by certified mail on June 7, 2019 to an unspecified address outside of California.
On August 30, 2019 Polina submitted a second request to enter default against Shirinyan, which on September 6 the clerk rejected. On September 20 the family court issued a notice of rejection stating, "Response already filed" and "Respondent cannot file for Default." The clerk also rejected Polina's third attempt to enter default, which she submitted on September 27, 2019. The notice of rejection stated, "On October 16, 2017, the court granted a motion to quash service as to [Shirinyan]." Polina's fourth attempt was rejected on November 22, 2019 for the same reason. perceived Polina "was the Respondent (not recognizing that for the purposes of the complaint in joinder she is a crosspetitioner)."
It is not clear from the record when Polina submitted some of the requests for entry of default. We use the date the document was marked received by the court where noted on the document. Otherwise, we refer to the date Polina signed the requests, as does Shirinyan in his opening brief. The actual dates of submission do not affect our analysis.
On November 22, 2019 Polina also filed a proof of service by mail on form FL-335 stating that on June 7, 2019 she personally mailed a copy of the summons to Shirinyan's North Hollywood address.
On December 13, 2019 Polina filed an ex parte application to name Shirinyan in Polina's complaint as a "claimant" in joinder. The family court granted the ex parte application, although it noted Shirinyan was already properly a claimant. In its ruling, the court observed, "Service has been attempted several times but not yet achieved." Further, granting the application would "not obviate the need of [Polina] to properly serve Mr. Shirinyan."
On December 20, 2020 Polina submitted a fifth request to enter default, which the clerk again rejected on December 26 on the basis that "Respondent cannot file [d]efault." On December 31, 2019 Polina submitted a sixth request to enter default, interlineating the form to identify Shirinyan as the "claimant [Shirinyan] who has failed to respond to the summons on 6/6/19" in place of "respondent." The clerk rejected the request on the basis of the "case caption." On January 30, 2020 Polina submitted a seventh request to enter default, identifying Shirinyan as a claimant. The clerk rejected the request, stating, "Claimant not a party to the case." The clerk served a notice of rejection explaining, "The claimant is not a party to the case. Per minute order dated November 1, 2018: On October 16, 2017 the court granted a motion to quash service as to Vyacheslav Shirinyan.... Filing a Request for Order and a Summons for Joinder does not automatically add a party to the case."
On February 14, 2020 Polina filed an amended proof of service by mail on Judicial Council family law form FL-335 in which Jumataer attested to mailing the summons and complaint to Shirinyan's North Hollywood apartment on June 7, 2019. On February 21, 2020 the clerk rejected Polina's eighth request to enter a default on the grounds that "valid proof of personal service regarding [Shirinyan] has not been filed." (Capitalization omitted.)
Polina filed another proof of service by mail dated March 9, 2020, again stating Jumataer mailed the summons and complaint to Shirinyan's North Hollywood address on June 7, 2019. On March 10, 2020 Polina submitted her ninth request to enter default, interlineating the form to indicate Shirinyan was a claimant and stating "summons (joinder) served on 6/7/2019 and filed on 6/14/2019." On April 15, 2020 the clerk entered a default against Shirinyan.
D. The Default Prove-up Trial and Default Judgment
The default prove-up trial on Polina's claims against Shirinyan was held on October 20, 2020. Polina and Arthur represented themselves; Shirinyan did not appear. The family court admitted a declaration submitted by Polina in support of her request for a default judgment, attaching three exhibits, including the Shirinyan trust deed and other records relating to the Santa Clarita property. The court also admitted a responsive declaration and exhibits filed by Arthur, although these documents primarily related to Arthur's objection to the court's denial of his request to disqualify the judge.
Polina's declaration and supporting exhibits are not in the record on appeal.
The family court announced its tentative findings "that service of [Polina's request for default judgment against Shirinyan] was proper on . . . the claimant ...." The court found "service was appropriate, validly done on [Shirinyan], and . . . there was no response that the court received....[O]n March 12, 2020 [Polina] filed a request to enter default FL-165 requesting the clerk of the court enter default of the claimant who has failed to respond to the summons joinder served on June 7, 2019, and filed with the court on June 14, 2019." The court further indicated Polina's underlying claim "was well taken" and the Shirinyan trust deed was void ab initio. The court stated its order would direct the county recorder to withdraw the Shirinyan trust deed and to direct Shirinyan to cooperate in executing the documents necessary to invalidate the deed.
Polina argued the family court should in the default judgment direct the clerk to execute the directions to the county recorder necessary for reconveyance of the Shirinyan trust deed because, according to Polina, Shirinyan was out of the country and could not be expected to cooperate in a judgment.
Arthur argued, among other things, that the summons and complaint were not properly served by personal service on Shirinyan. The family court responded, "I required that [Shirinyan] be . . . at the address that he provided to the court to be re-served....[S]ervice on him of the notice for default and the underlying document was now properly served on him." Arthur testified Shirinyan had been out of the country at the time of service because Shirinyan's mother was sick, but he had since returned.
On October 21, 2020 the family court issued a proposed statement of decision voiding the Shirinyan trust deed in accordance with its tentative findings. On October 30 Shirinyan, representing himself, filed an opposition to the proposed statement of decision. In his supporting declaration, Shirinyan asserted Polina could not prosecute her complaint against him because she failed to serve him with the summons and complaint within 60 days of filing the action. Shirinyan attached Polina's June 14, 2019 proof of service of the complaint, filed nearly two years after she filed her complaint. Based on this delay, Shirinyan argued, "[t]here is no [s]ummons served on Vyacheslav Shirinyan as commanded per statutory provisions with personal service" and "[t]he court has no jurisdiction over 'Joinder' [of] Vyacheslav Shirinyan in this case." (Boldface omitted.) Shirinyan did not specifically seek relief from default.
On November 10, 2020 the family court issued a final statement of decision. The court rejected Shirinyan's opposition on the ground he remained a defaulting defendant, and even if he had not been in default, he received notice of the trial and failed to appear. The court adopted its proposed decision and found Polina satisfied her burden to void the Shirinyan trust deed because it was granted in violation of the family law restraining order. The court found, "Mr. Shirinyan at the time he entered . . . the [Shirinyan trust deed] knew that [Arthur and Polina] were married and lived together in the Santa Clarita Property, and that at the time the [Shirinyan trust deed] was executed, that the Santa Clarita Property was their joint property. [Polina] notes that Mr. Shirinyan is [Arthur's] best friend, knew [Arthur and Polina] were married, knew their family well. He also visited [Arthur and Polina] at the Santa Clarita property for family events....At the hearing [Arthur] confirmed that he is still in touch with Mr. Shirinyan, having seen him only recently." The court also found service of Polina's summons and complaint on Shirinyan was effective: "Shirinyan was subsequent [to his motion to quash] served with the Summons (Joinder) on June 7, 2019, filed on June 14, 2019. On March 10, 2020, Respondent filed a Request to Enter Default Against Shirinyan which was entered by the Clerk of the Court on April 15, 2020, pursuant to Family Law Rule of Court 5.400(a)." Finally, the court found that Arthur lacked standing to oppose entry of judgment: "This is a default prove-up trial against only Mr. Shirinyan. [Arthur] has no interest in the outcome of this proceeding."
We assume the family court was referring to California Rules of Court, rule 5.401(a), which provides in relevant part, "Upon proper application of the petitioner, the clerk must enter a default if the respondent or defendant fails within the time permitted to: [¶] (1) Make an appearance as stated in rule 5.62; [or] [¶] (2) File a notice of motion to quash service of summons under section 418.10 of the Code of Civil Procedure."
On November 10, 2020 the court entered a judgment, and Polina filed a notice of entry of judgment (FL-180) attaching the family court's statement of decision.
E. Shirinyan's Request for Order
On November 23, 2020 Shirinyan filed a request for order (RFO) seeking to vacate the judgment and declare Polina a vexatious litigant. In his supporting declaration, Shirinyan detailed Polina's numerous attempts to have a default entered against him and argued that "though the court repeatedly rejected [Polina's] request to enter default, she repeatedly file[d] unmeritorious request[s] to enter default." (Capitalization omitted.) Shirinyan stated the June 14, 2019 proof of service showed service had been made by mail, yet Polina persisted in trying to take his default despite having been advised by the family court and clerk that service by mail was ineffective. Shirinyan further asserted the court "did turn [a] blind eye and deaf ear on the fact that there is no personal service or other proper service" when the clerk finally entered a default in April 2020. Shirinyan also argued the statute of limitations on Polina's fraud claims had expired, Polina lacked standing to sue, and the court did not have jurisdiction over him. Polina did not respond to the RFO. Arthur filed a responsive declaration consenting to an order vacating the default judgment.
The family court held a hearing on the RFO on January 4, 2021. Shirinyan testified he did not want to add anything to his papers and declaration, which were prepared with the assistance of friends. Arthur requested the record reflect that Arthur was prohibited from arguing in support of the RFO. After taking the matter under submission, the court denied the RFO.
In its minute order entered on January 4, 2021, the family court explained Shirinyan remained in default, precluding him from filing any motion other than for relief from the default and barring him from appearing at a hearing or taking other steps in the litigation until the default was set aside. Second, even if Shirinyan had not been not in default, he did not appear or file an opposition to Polina's submissions in support of the default prove-up. Third, the RFO lacked merit because "[t]he sole basis for Shirinyan seeking to vacate the October 20, 2020 Judgment is that [Polina] filed a request to enter default on . . . Shirinyan nine times in eight months and therefore she should be deemed a 'vexatious litigant.'" However, any postjudgment motion to have Polina deemed a vexatious litigant was untimely. Moreover, the alleged facts established only that Polina was having difficulty serving Shirinyan and taking his default, not that Polina's conduct was in bad faith, for an improper purpose, or to delay the case. In addition, a vexatious litigant determination would not be grounds to vacate the judgment. Finally, Shirinyan's assertion that the statute of limitations barred Polina's fraud claim was unavailing because Polina demonstrated she was unaware before 2016 of the deeds of trust encumbering the Santa Clarita property.
With respect to Arthur's responsive declaration in support of the RFO, the court found Arthur was barred by the disentitlement doctrine from arguing to uphold the Shirinyan trust deed: "By opposing [Polina's] effort to expunge the deeds of trust [Arthur] unlawfully had placed on the house, including the deed of trust favoring Mr. Shirinyan, [Arthur] is attempting to make the home worthless to her, in connection with . . . a property that he has [had] no interest in since 2015....[Arthur] should not be permitted to undermine the integrity of the legal system and benefit from his wrongdoing by dragging out these proceedings and rais[ing] arguments that should be made if at all only by [Shirinyan]."
Shirinyan and Arthur each timely filed notices of appeal from the court's order denying the RFO.
DISCUSSION
A. The Family Court Abused Its Discretion in Denying Shirinyan's Motion To Set Aside the Default and Default Judgment
Shirinyan contends the default judgment is void under Code of Civil Procedure section 473, subdivision (d), because he was never properly served with a summons and complaint in joinder. We agree the default was entered without the filing of a proof of personal service or valid service by other means, and the family court abused its discretion in denying the RFO to set aside the default and default judgment.
All further undesignated statutory references are to the Code of Civil Procedure.
Although Shirinyan titled his RFO a request to set aside the default judgment, we construe the RFO to seek vacation of the default and default judgment.
Section 473, subdivision (d), provides in relevant part a trial court "may, on motion of either party after notice to the other party, set aside any void judgment or order." If the court "lack[s] fundamental authority over the subject matter, question presented, or party, . . . its judgment [is] void." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56; accord, Ramos v. Homeward Residential, Inc. (2014) 223 Cal.App.4th 1434, 1442 (Ramos) [default and default judgment were void for lack of proper service on corporate agent]; Carr v. Kamins (2007) 151 Cal.App.4th 929, 936-937 [default judgment void for ineffective service by publication].) "'"A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll."'" (Ramos, at p. 1440.) "When a judgment by default has been entered, the judgment-roll is limited to the summons, proof of service of the summons, complaint, request for entry of default, copy of the judgment, notice of any ruling overruling a demurrer interposed by the defendant and proof of service thereof, and, if service was by publication, affidavit for publication and order directing it." (Ibid., citing § 670, subd. (a).)
We review the trial court's determination whether a judgment is void de novo. (Kremerman v. White (2021) 71 Cal.App.5th 358, 369; Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020; see Ramos, supra, 223 Cal.App.4th at p. 1440 ["Because any defect in service must appear on the face of the judgment-roll as delimited by the documents specified in section 670, subdivision (a), our review of a trial court's order finding such a facial defect is of necessity de novo."].) However, a trial court's determination whether to set aside a void judgment on a motion made under section 473, subdivision (d), is reviewed for an abuse of discretion. (Kremerman, at p. 369; Pittman, at p. 1020 ["'inclusion of the word "may" in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order]'"].) A trial court abuses its discretion if its ruling "exceeded the bounds of reason." (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249; accord, Grados v. Shiau (2021) 63 Cal.App.5th 1042, 1049.) If a ruling turns on a disputed issue of fact, we will not disturb the trial court's express and implied factual determinations if supported by substantial evidence. (Strathvale Holdings, at p. 1250; see Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [on appeal from a ruling on a motion for discretionary relief under section 473, ""'where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed'""].)
In reviewing a request to set aside a default judgment, we are mindful of the public policy favoring a trial on the merits. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 978, 985 [granting equitable relief from default judgment where defendants' failure to pay entirety of filing fee for answer was based on incorrect information from clerk's office].) "Because the law favors disposing of cases on their merits, 'any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits.'" (Id. at p. 980; accord, McClain v. Kissler (2019) 39 Cal.App.5th 399, 413; see Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 ["[T]he remedial relief offered by section 473 is 'highly favored and is liberally applied.'"].)
The judgment roll reflects that Shirinyan was never effectively served with the summons and complaint. None of the three proofs of service Polina filed in connection with her eight requests for entry of default included a proof of personal service, a proof of substituted service, an acknowledgment of receipt, or a process server's declaration of diligence. The proof of service of summons Polina filed on June 17, 2019 stated Jumataer served the summons and complaint on Shirinyan by certified mail on June 7, 2019 to an unspecified address outside of California, and the proofs of service Polina filed on February 14 and March 9, 2020 stated Jumataer served the complaint by mail to Shirinyan's North Hollywood address on June 7, 2019. Although the record on appeal does not include all of the filings in the case, the docket does not indicate any other attempts to serve the summons and complaint. In any event, the last-filed proof of service on March 9, 2020 accompanying Polina's successful request for entry of default did not show a permissible manner of service. Accordingly, the clerk's April 15, 2020 entry of default against Shirinyan is void on its face.
In denying the RFO, the family court abused its discretion in two respects. First, the court improperly found "[t]he sole basis for Shirinyan seeking to vacate [the judgment] is that [Polina] filed a request to enter default on . . . Shirinyan nine times in eight months and therefore she should be deemed a 'vexatious litigant.'" This was not a reasonable construction of the RFO. Although the RFO is far from a model of clarity, Shirinyan is a self-represented litigant whose primary language is Russian, and further, although the RFO does not cite section 473, the "orders requested" by Shirinyan on the RFO form included an order "1. [t]o vacate default judgment of 11/20/2020" and "2. [to d]eclare respondent Polina Tsatryan [a] 'vexatious litigant.'" (Capitalization omitted.) Shirinyan alleged in his declaration in support of the RFO that in entering the default in April 2020, the court "did turn [a] blind eye and deaf ear on the fact that there is no personal service or other proper service." He also asserted, "The court has no jurisdiction over me[.]" These arguments were tantamount to a request to vacate the default and default judgment under section 473, subdivision (d). Yet the family court did not consider Shirinyan's RFO as a request for relief from default under section 473, subdivision (d), or under any other statutory provision (or equitable basis) based on defective service. (See Fadeeff v. State Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 104 ["A trial court's failure to exercise discretion is itself an abuse of discretion."]; Kim v. Euromotors West/The Auto Gallery (2007) 149 Cal.App.4th 170, 176 ["A failure to exercise discretion is an abuse of discretion."].)
The family court also abused its discretion in impliedly finding the default was not void when it found in its statement of decision that "Shirinyan was subsequent [to his motion to quash] served with the Summons (Joinder) on June 7, 2019, filed on June 14, 2019." This finding was not supported by substantial evidence. As discussed, the judgment roll reflects the only proofs of service filed by Polina attested to service by mail in June 2019. But the family court later found on December 2019 that "[s]ervice has been attempted several times but not yet achieved," and it advised Polina its order confirming joinder of Shirinyan in her complaint that this did "not obviate the need of [Polina] to properly serve Shirinyan." Nothing in the judgment roll shows that Polina later served Shirinyan personally or that personal service was excused. Instead, the court in its November 2020 statement of decision simply relied on the June 14, 2019 proof of service by mail to establish a basis for entry of default by the clerk.
We recognize the family court admonished Arthur during the prove-up trial that the court "required that [Shirinyan] be . . . at the address that he provided to the court to be re-served," and therefore "service on [Shirinyan] of the notice for default and the underlying document was now properly served on him." This statement suggests there may have been some arrangement relating to service on Shirinyan that is not reflected in the judgment roll. But even if Shirinyan agreed to be at his North Hollywood address to accept service, this did not absolve Polina of the requirement to serve him personally or to consummate valid service by other means. Polina did not oppose Shirinyan's RFO and has not appeared in this appeal, and she therefore has not identified any evidence supporting a finding Shirinyan was properly served.
It is unclear when (if ever) Shirinyan appeared before Judge Hansell. Even if Shirinyan specially appeared at the hearing on his motion to quash in October 2017, the case had not yet been assigned to Judge Hansell.
Because there is no proof of valid service on Shirinyan, the default against him is void, and the family court abused its discretion in denying the RFO. (Ramos, supra, 223 Cal.App.4th at p. 1442; Carr v. Kamins, supra, 151 Cal.App.4th at p. 937 ["Given that the service was ineffective, the resulting judgment is invalid and vulnerable to collateral attack"].) However, by filing an opposition to the court's October 2020 proposed statement of decision voiding the Shirinyan trust deed, Shirinyan made a general appearance in the action. (See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147 [a general appearance occurs when a "'defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed'"]; Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 125 [filing opposition to a consolidation motion constituted a general appearance].) As the Supreme Court explained in Hamilton, "The statutory list of acts constituting an appearance ([§ 1014] [filing an answer, demurrer, motion to strike, etc.]) is not exclusive; 'rather the term may apply to various acts which, under all of the circumstances, are deemed to confer jurisdiction of the person.'" (Hamilton, at p. 1147 [defendant's participation in case in which it was not served constituted general appearance where case was consolidated with case in which defendant was served]; accord, Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 53 ["[I]f a defendant seeks any affirmative relief on the merits, the application may be deemed a general appearance."].)
We recognize that Shirinyan in his opposition to the proposed statement of decision argued he had not been properly served and therefore the court did not have jurisdiction over him. But Shirinyan's principal objections to the proposed decision were that Polina's claims were barred by the three-year statute of limitations for fraud and suffered from other procedural defects unrelated to service of the complaint, including Polina's failure to file a verified pleading and her incorrect use of family law forms to seek entry of default. Shirinyan therefore made a general appearance and waived any objection to the court's exercise of personal jurisdiction. (See Air Machine Com SRL v. Superior Court (2010) 186 Cal.App.4th 414, 419 ["'a party waives any objection to the court's exercise of personal jurisdiction when the party makes a general appearance in the action'"]; Dial 800 v. Fesbinder, supra, 118 Cal.App.4th at p. 52 ["'A general appearance by a party is equivalent to personal service of summons on such party.'"].) Accordingly, on remand Polina's complaint is deemed served on Shirinyan, and the family court shall set a deadline for Shirinyan to file a response.
B. The Family Court Did Not Abuse Its Discretion in Denying Shirinyan's Request for a Vexatious Litigant Determination
A motion to have a party deemed a vexatious litigant is governed by sections 391 through 391.7. "The vexatious litigant statute[] . . . [is] designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants." (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169; accord, Colombo v. Kinkle, Rodiger &Spriggs (2019) 35 Cal.App.5th 407, 419.) Under the statute, a defendant can bring a motion for an order "requiring the plaintiff to furnish security or for an order dismissing the litigation." (§ 391.1.) To prevail on the motion, the defendant must show "that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant." (Ibid.) A vexatious litigant is defined in relevant part as a person who "[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." (§ 391, subd. (b)(3).)
"'"A court exercises its discretion in determining whether a person is a vexatious litigant. [Citation.] We uphold the court's ruling if it is supported by substantial evidence. [Citations.] On appeal, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment."'" (In re Marriage of Rifkin &Carty (2015) 234 Cal.App.4th 1339, 1346; accord, Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)
The family court did not abuse its discretion in denying Shirinyan's request to have Polina declared a vexatious litigant. As the court found, Shirinyan based his request solely on Polina's efforts to take Shirinyan's default for his failure to appear, and Polina had difficulty serving him. Further, there was no evidence, as the court found, "the various default requests were made to delay the case, were done in bad faith or done for any other purpose other than to try to get the default judgment entered." (See § 391, subd. (b)(3).)
The family court also found Shirinyan failed to show a reasonable probability he would prevail in the litigation. (§ 391.1.) Although this finding was based on the default prove-up trial (following the void entry of default), it is clear from the family court's earlier findings, which we affirmed in In re Marriage of Tsatryan, supra, B270784, that the seven transferees' deeds of trust-which had no corresponding promissory notes or repayment terms and for which there is no evidence Arthur received loans-were executed by Arthur in "egregious breach" of his fiduciary duties to the marital estate. These facts, combined with Polina's successful prosecution of claims to void the other transferees' deeds of trust, support the court's finding Shirinyan failed to show a reasonable probability of succeeding on Polina's claims against him.
C. Arthur Lacks Standing To Appeal the Order Denying the RFO
1. Requirements for standing
"Not every party has standing to appeal every appealable order.... [O]nly a person aggrieved by a decision may appeal." (In re K.C. (2011) 52 Cal.4th 231, 236; accord, In re J.Y. (2018) 30 Cal.App.5th 712, 717; see People ex rel. Allstate Ins. Co. v. Dahan (2016) 3 Cal.App.5th 372, 377 ["'"'A party who is not aggrieved by an order or judgment has no standing to attack it on appeal.'"'"].) "'[S]tanding' . . . is a jurisdictional requirement set forth in Code of Civil Procedure section 902." (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 888, fn. 7; see § 902 ["Any party aggrieved may appeal in the cases prescribed in this title."].) Because standing is jurisdictional, it cannot be waived. (Dahan, at p. 377.)
For purposes of section 902, "a party is aggrieved if an order 'injuriously affect[s]' its rights or interests. [Citation.] The injured interest must be 'recognized by law' [citation], and the injury must be 'immediate, pecuniary, and substantial'; it cannot be nominal or be '"'a remote consequence of the judgment.'"' [Citation.] The injured interest also must belong to the party: 'a would-be appellant "lacks standing to raise issues affecting another person's interests."'" (Six4Three, LLC v. Facebook, Inc. (2020) 49 Cal.App.5th 109, 115, italics omitted; accord, In re K.C., supra, 52 Cal.4th at p. 236.) Whether a party has standing is a question of law we review de novo. (People for Ethical Operation of Prosecutors and Law Enforcement v. Spitzer (2020) 53 Cal.App.5th 391, 398; A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687.)
2. Arthur is not an aggrieved party
Arthur contends the family court denied him due process by depriving him of an opportunity to present evidence and argument at the January 4, 2021 hearing on Shirinyan's RFO.Arthur relies on canon 3B(7) of the California Code of Judicial Ethics, which provides in part, "A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the full right to be heard according to law."
The lion's share of Arthur's opening brief is devoted to challenges to the 2016 judgment of dissolution and prior orders against Shirinyan, which are not before us on appeal (and are final).
Arthur has no standing to challenge denial of Shirinyan's RFO. As we explained recently in In re Marriage of Tsatryan, supra, B305927 in dismissing Arthur's appeal from the default judgments taken against five of the other transferees, Arthur is not an aggrieved party because he does not have a legal interest in the proceedings directed only against the transferees. The family court's order invalidating Shirinyan's deed of trust did not require Arthur to do anything or impact Arthur's rights. Further, Arthur has no pecuniary or other cognizable interest in the Santa Clarita property because the family court in its January 2016 order awarded 100 percent of the property to Polina, which order we affirmed in In re Marriage of Tsatryan, supra, B265467. And Arthur did not request a determination Polina is a vexatious litigant, nor does he have an interest in Shirinyan's claim that Polina's numerous requests to enter a default against Shirinyan rendered her a vexatious litigant. Arthur therefore "'"lacks standing to raise issues affecting another person's interests."'" (Six4Three, LLC v. Facebook, Inc., supra, 49 Cal.App.5th at p. 115.) Accordingly, we dismiss Arthur's appeal.
DISPOSITION
The family court's order denying Shirinyan's request to set aside the default judgment is reversed, and the matter is remanded for the court to vacate the default and default judgment. On remand, the court shall set a date by which Shirinyan must respond to the complaint. The court's order denying Shirinyan's request to have Polina declared a vexatious litigant is affirmed. Arthur's appeal is dismissed. Shirinyan and Arthur are to bear their own costs on appeal.
We concur: PERLUSS, P. J., SEGAL, J.