This case was last updated from Los Angeles County Superior Courts on 11/28/2020 at 11:55:01 (UTC).

THE EPHRAIM & HILDA FEY FAMILY L.P. VS GREG GALLETLY ET AL

Case Summary

On 04/09/2009 THE EPHRAIM HILDA FEY FAMILY L P filed a Property - Other Real Property lawsuit against GREG GALLETLY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JOHN P. SHOOK, STEVEN J. KLEIFIELD, ROBERT B. BROADBELT, EDWARD B. MORETON and DAVID S. CUNNINGHAM. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1601

  • Filing Date:

    04/09/2009

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOHN P. SHOOK

STEVEN J. KLEIFIELD

ROBERT B. BROADBELT

EDWARD B. MORETON

DAVID S. CUNNINGHAM

 

Party Details

Plaintiff

THE EPHRAIM AND HILDA FEY FAMILY LIMITED

Appellant and Not Classified By Court

DARIO PINI

Defendants and Respondents

ASSURED LENDER SERVICES INC.

BARNES ALLISON

BARNES BRADLEY

CHICAGO TITLE COMPANY

COMMONWEALTH LAND TITLE COMPANY

COMMONWEALTH LAND TITLE INSURANCE COMPANY

DOES 1 THROUGH 100

DORN-PLATZ PROPERTIES INC.

DOVE STREET CAPITAL LENDERS LLC

GALLETLEY GREG

GALLETLY DEBORAH

GALLETLY GREG

GROVE RESIDENTIAL INVESTMENTS LLC

LAWYERS TITLE INSURANCE COMPANY

Cross Defendants

BABBB LLC

FEY KEITH

MCTAGUE CERA

SURETY BONDING COMPANY OF AMERICA

10 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

OWENS ROBERT B. ESQ.

Defendant and Not Classified By Court Attorneys

GILFORD ANDREW M. ESQ.

GARRETT ROBERT ESQ.

SCHOCK & SCHOCK LAW OFFICES OF

DEAL CHRISTOPHER E. ESQ.

SCHOCK JOHN P. ESQ.

BURNS PAUL ROBERT

DE CASTRO WEST & CHODOROW INC.

FREEMAN FREEMAN & SMILEY LAW O/O

SHARE MARK L. ESQ.

Defendant and Cross Defendant Attorney

SHARE MARK L. ESQ.

Other Attorneys

EIKENBERRY KEVIN S.

WALKER HOLLY METZLER

EIKENBERRY KEVIN S. ESQ.

WALKER HOLLY ESQ.

 

Court Documents

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: BANKRUPTCY; CASE MANAGEMENT CONFERENCE;...)

10/23/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: BANKRUPTCY; CASE MANAGEMENT CONFERENCE;...)

Declaration - DECLARATION CROSS-DEFENDANTS EVIDENCE IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT; DECLARATION OF MARK L. SHARE; EXHIBITS 1-9

4/17/2020: Declaration - DECLARATION CROSS-DEFENDANTS EVIDENCE IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT; DECLARATION OF MARK L. SHARE; EXHIBITS 1-9

Motion to Vacate - MOTION TO VACATE CROSS-DEFENDANT BABBB, LLCS NOTICE OF MOTION AND MOTION TO VACATE DEFAULT JUDGMENT ON SECOND AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

4/17/2020: Motion to Vacate - MOTION TO VACATE CROSS-DEFENDANT BABBB, LLCS NOTICE OF MOTION AND MOTION TO VACATE DEFAULT JUDGMENT ON SECOND AMENDED CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RESCHEDULED HEARING CURRENTLY SET FOR 5/28/20) OF 04/21/2020

4/21/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RESCHEDULED HEARING CURRENTLY SET FOR 5/28/20) OF 04/21/2020

Minute Order - MINUTE ORDER (RESCHEDULED HEARING CURRENTLY SET FOR 5/28/20)

4/21/2020: Minute Order - MINUTE ORDER (RESCHEDULED HEARING CURRENTLY SET FOR 5/28/20)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RESCHEDULED HEARING CURRENTLY SET FOR 5/20/20) OF 04/17/2020

4/17/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RESCHEDULED HEARING CURRENTLY SET FOR 5/20/20) OF 04/17/2020

Minute Order - MINUTE ORDER (RESCHEDULED HEARING CURRENTLY SET FOR 5/20/20)

4/17/2020: Minute Order - MINUTE ORDER (RESCHEDULED HEARING CURRENTLY SET FOR 5/20/20)

Motion to Quash - MOTION TO QUASH ORDERS TO APPEAR AND RELATED SUBPOENAS

3/17/2020: Motion to Quash - MOTION TO QUASH ORDERS TO APPEAR AND RELATED SUBPOENAS

Notice - NOTICE OF ENTRY OF ORDER ON MOTION TO VACATE DEFAULT JUDGMENT AGAINST BABBB, LLC

10/26/2020: Notice - NOTICE OF ENTRY OF ORDER ON MOTION TO VACATE DEFAULT JUDGMENT AGAINST BABBB, LLC

Proof of Personal Service

3/6/2020: Proof of Personal Service

APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION ENFORCEMENT OF JUDGMENT THIRD PERSON

6/22/2018: APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION ENFORCEMENT OF JUDGMENT THIRD PERSON

Request for Judicial Notice

4/12/2019: Request for Judicial Notice

PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE STAY OF THIS CASE I PENDING APPEAL THAT WAS FILED 3/4/11

1/6/2012: PLAINTIFF?S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE STAY OF THIS CASE I PENDING APPEAL THAT WAS FILED 3/4/11

Minute Order -

1/8/2013: Minute Order -

PROOF OF SERVICE SUMMONS -

1/30/2013: PROOF OF SERVICE SUMMONS -

REPLY TO DEFENDANTS? ?OBJECTION TO APPLICATION FOR ATTORNEY FEES?

9/30/2013: REPLY TO DEFENDANTS? ?OBJECTION TO APPLICATION FOR ATTORNEY FEES?

NOTICE OF RECORDING ABSTRACT OF JUDGMENT UPON DORN-PLATZ PROPERTIES, INC.

4/1/2014: NOTICE OF RECORDING ABSTRACT OF JUDGMENT UPON DORN-PLATZ PROPERTIES, INC.

844 More Documents Available

 

Docket Entries

  • 04/05/2021
  • Hearing04/05/2021 at 10:00 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 04/05/2021
  • Hearing04/05/2021 at 10:00 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference Re: Bankruptcy

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  • 04/05/2021
  • Hearing04/05/2021 at 10:00 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Why The Second Amended Cross-Complaint Should Not Be Dismissed Against Cross-Defendant BABBB, LLC

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  • 04/05/2021
  • Hearing04/05/2021 at 10:00 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other MOTION FOR RECONSIDERATION OF MOTION BY CROSS-DEFENDANT BABBB. LLC TO VACATE DEFAULT JUDGMENT

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  • 12/16/2020
  • Hearing12/16/2020 at 08:30 AM in Department 53 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Application for Order for Appearance and Examination

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  • 11/25/2020
  • Docketat 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Ex Parte Application (FOR ORDER TO ADVANCE HEARING DATE OF MOTION FOR RECONSIDERATION OF MOTION TO VACATE DEFAULT JUDGMENT) - Held - Motion Denied

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  • 11/25/2020
  • DocketOpposition (OPPOSITION TO CROSS-COMPLAINANT?S EX PARTE APPLICATION FOR ORDER TO ADVANCE HEARING DATE OF MOTION FOR RECONSIDERATION OF MOTION TO VACATE DEFAULT JUDGMENT); Filed by Babbb, LLC (Cross-Defendant)

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  • 11/25/2020
  • DocketMinute Order ( (Hearing on Ex Parte Application FOR ORDER TO ADVANCE HEARING ...)); Filed by Clerk

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  • 11/25/2020
  • DocketReply (to Opposition to Cross-Complaintant's Ex Parte Application); Filed by WVJP-2017-1 LP (Assignee)

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  • 11/25/2020
  • DocketEx Parte Application (CROSS-COMPLAINANT'S EX PARTE APPLICATION FOR ORDER TO ADVANCE HEARING DATE OF MOTION FOR RECONSIDERATION OF MOTION TO VACATE DEFAULT JUDGMENT); Filed by WVJP-2017-1 LP (Assignee)

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1,610 More Docket Entries
  • 04/20/2009
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 04/20/2009
  • DocketNotice of Case Management Conference; Filed by The Ephraim and Hilda Fey Family Limited (Plaintiff)

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  • 04/20/2009
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 04/14/2009
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/10/2009
  • DocketNOTICE OF PENDING ACTION (LIS PENDENS)

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  • 04/10/2009
  • DocketNotice; Filed by The Ephraim and Hilda Fey Family Limited (Plaintiff)

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  • 04/09/2009
  • DocketComplaint; Filed by The Ephraim and Hilda Fey Family Limited (Plaintiff)

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  • 04/09/2009
  • DocketCOMPLAINT FOR: (1) CONVERSION, CONSTRUCTIVE TRUST, AND ACCOUNTING, ETC

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  • 04/09/2009
  • DocketSUMMONS

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  • 04/08/2009
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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Tentative Rulings

Case Number: BC411601    Hearing Date: November 18, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

the ephraim & hilda fey family limited partnership ,

Plaintiff,

vs.

greg galletly , et al.,

Defendants.

Case No.:

BC411601

Hearing Date:

November 18, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

Motion to quash civil subpoenas for production of business records and related orders to appear

AND RELATED CROSS-ACTIONS

MOVING PARTY: Cross-defendant and judgment debtor BABBB, LLC

RESPONDING PARTY: Assignee and judgment creditor WVJP 2017-1, L.P.

Motion to Quash Civil Subpoenas for Production of Business Records and Related Orders to Appear

The court considered the moving, opposition, and reply papers.

On March 17, 2020, judgment debtor BABBB, LLC (“Judgment Debtor”) filed this motion to quash several Civil Subpoenas Duces Tecum for Personal Appearance and Production of Documents served by judgment creditor WVJP 2017-1, L.P. (“Judgment Creditor”) and related Orders to Appear for Examination in connection with post-judgment proceedings against Judgment Debtor.

On April 17, 2020, Judgment Debtor filed its motion to vacate the August 30, 2013 default judgment entered against it on Dove Street Capital Lenders, LLC’s Second Amended Cross-Complaint. On October 23, 2020, the court issued an order that set aside the default judgment on Dove Street Capital Lenders, LLC’s Second Amended Cross-Complaint, filed August 30, 2013, entered against Judgment Debtor. (Order, filed October 23, 2020, p. 11:26-28.)

As Judgment Debtor points out in its reply filed in support of this motion, the Civil Subpoenas Duces Tecum and Orders to Appear for Examination at issue are moot and should be quashed because the court granted Judgment Debtor’s motion to set aside the default judgment against it. The court agrees.

Judgment Debtor also points out that Judgment Creditor’s opposition to the motion states the following: “Records subpoenas were previously issued and served upon third parties (PNC Bank, Santa Barbara Tax Collector, Los Angeles County Tax Collector, Commonwealth Land Title Company, California Secretary of State, California Franchise Tax Board and Nationstar Mortgage) calling for production of records earlier this year. Those subpoenas have been responded to by the third parties. As to those subpoenas the Motion is moot.” (Opposition, filed July 8, 2020, p. 2:19-24.)

The court notes that it would be improper for those witnesses to produce documents directly to Judgment Creditor in response to the Civil Subpoenas Duces Tecum because each subpoena at issue checks Box 3.b of Judicial Council Form SUBP-002, which provides that the witness is not required to appear in person if the witness produces the records by mailing copies of the records to the clerk of the court in compliance with Evidence Code sections 1560, 1561, 1562, and 1271.

Judgment Debtor requests an order that any documents in Judgment Creditor’s possession that were produced directly to Judgment Creditor in response to the Civil Subpoenas Duces Tecum at issue be destroyed. The court agrees with Judgment Debtor that the copies of the records produced by the witnesses to the Judgment Creditor in response to the Civil Subpoenas Duces Tecum should be destroyed.

ORDER

For the reasons set forth above, the court rules as follows.

The court grants judgment debtor BABBB, LLC’s Motion to Quash Civil Subpoenas for Production of Business Records and Related Orders to Appear.

The court orders that the following Civil Subpoenas Duces Tecum are quashed:

  1. Civil Subpoena Duces Tecum directed to Custodian of Records for Lobar Properties, Inc.;

  2. Civil Subpoena Duces Tecum directed to Custodian of Records for California Secretary of State;

  3. Civil Subpoena Duces Tecum directed to Custodian of Records for Commonwealth Land Title Company;

  4. Civil Subpoena Duces Tecum directed to Custodian of Records for Los Angeles County Tax Collector;

  5. Civil Subpoena Duces Tecum directed to Custodian of Records De Castro, West, Chodorow, Mendler & Glickfeld, Inc.;

  6. Civil Subpoena Duces Tecum directed to Custodian of Records for Santa Barbara County Tax Collector;

  7. Civil Subpoena Duces Tecum directed to Bradley Barnes;

  8. Civil Subpoena Duces Tecum directed to Brittany Barnes; and

  9. Civil Subpoena Duces Tecum directed to Brooke Barnes.

The court orders that the following Orders to Appear for Examination are quashed and vacated:

  1. The Order to Appear for Examination of BABBB, LLC, through its manager Brad Barnes, set for December 4, 2020, at 8:30 a.m,. in Department 53;

  2. The Order to Appear for Examination of Brittany Barnes, set for December 11, 2020, at 8:30 a.m., in Department 53;

  3. The Order to Appear for Examination of Brooke Barnes, set for December 14, 2020, at 8:30 a.m., in Department 53;

  4. The Order to Appear for Examination of Logan Barnes, set for December 16, 2020, at 8:30 a.m., in Department 53.

The court orders judgment creditor WVJP 2017-1, L.P. to destroy all copies of the records in its possession, custody, or control which were produced by the witnesses in response to the Civil Subpoenas Duces Tecum listed above.

The court orders judgment debtor BABBB, LLC to give notice of this order.

IT IS SO ORDERED.

DATED: November 18, 2020

__________________________

Robert B. Broadbelt III

Judge of the Superior Court

Case Number: BC411601    Hearing Date: October 23, 2020    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

the ephraim & hilda fey family limited partnership ,

Plaintiff,

vs.

greg galletly , et al.,

Defendants.

Case No.:

BC411601

Hearing Date:

October 23, 2020

Time:

10:00 a.m.

[Tentative] Order RE:

cross-defendant babBb, llc’s motion to vacate default judgment on second amended cross-complaint

AND RELATED CROSS-ACTIONS

MOVING PARTY: Cross-defendant and judgment debtor BABBB, LLC

RESPONDING PARTY: Assignee and judgment creditor WVJP 2017-1, L.P.

Cross-Defendant BABBB, LLC’s Motion to Vacate Default Judgment On Second Amended Cross-Complaint

The court considered the moving, opposition, and reply papers.

Background

Plaintiff The Ephraim and Hilda Fey Family Limited Partnership filed this action on April 9, 2009. On July 16, 2010, defendant and cross-complainant Dove Street Capital Lenders, LLC (“Dove”) filed a cross-complaint in this action against, among others, cross-defendant BABBB, LLC (“BABBB”). The operative Second Amended Cross-Complaint (“SACC”) was filed on January 18, 2011, alleging causes of action for (1) declaratory relief, (2) breach of guaranty, (3) declaratory relief -- forged deed, (4) declaratory relief -- unauthorized deed, (5) imposition and enforcement of equitable liens, (6) unjust enrichment, (7) fraud and conspiracy to defraud, (8) negligent misrepresentation, (9) notarial negligence/misconduct/bond, and (10) express indemnity.

On February 1, 2013, the court entered the default of BABBB on the SACC. On May 10, 2013, Dove lodged a Request for Court Judgment by default as to, among others, BABBB, in the total amount of $3,999,047, consisting of $1,371,000 in damages, $2,197,162 in interest, $33,179 in costs, and $397,706 in attorney’s fees.[1] (Request For Court Judgment, filed August 30, 2013.)

On August 30, 2013, the court entered a default judgment, which, among other things, awarded judgment on the SACC as follows:

  1. In favor of cross-complainant Dove Street against cross-defendants Grove, Greg Galletly, Deborah Galletly, Bradley Barnes, Keith Fey, Dorn Platz, Barnust, BABBB, DLG, and Allison Barnes, and each of them, jointly and severally, on the seventh cause of action for fraud and conspiracy to defraud in the amount of $1,371,000 in compensatory damages, plus prejudgment interest in the amount of $262.93 per day from July 16, 2010 until the date of judgment herein, plus attorneys’ fees and costs for tort of another in the amount of $430,884.90;

  2. In favor of cross-complainant Dove Street and against cross-defendants Dorn Platz, Greg Galletly, Deborah Galletly, Brad Barnes, Barnust, BABBB, and DLG, and each of them, on the second cause of action for breach of guaranty in the amount of $1,371,000 plus fees and interest at the contract rate of 15% per annum from March 31, 2008 to March 12, 2009, and at the default interest rate of 25% per annum for the period of March 13, 2009 through May 15, 2013 for total of $3,568,162.04, plus attorney’s fees and costs in the amount of $430,884.90, for a grand total of $3,999,046.94. This sum includes the amounts awarded for damages, costs and interest on the seventh cause of action and is not in addition thereto.

(Default Judgment on Second Amended Cross-Complaint of Dove Street Capital Lenders, LLC, filed August 30, 2013, pp. 3:17-4:3.)

On June 22, 2017, WVJP 2017-1, LP (“WVJP”) filed its “Acknowledgement of Assignment of Judgment Filed on August 30, 2013,” in which Dove assigned the August 30, 2013 default judgment to WVJP. (Acknowledgement of Assignment of Judgment Filed on August 30, 2013, filed June 22, 2017.)

On April 17, 2020, BABBB filed its motion to vacate the August 30, 2013 default judgment entered against it.

BABBB now moves pursuant to Code of Civil Procedure section 473, subdivision (d), for an order vacating the default judgment entered on August 30, 2013, on Dove’s SACC, as to BABBB (the “Judgment”), without affecting the judgment against the other cross-defendants. Assignee WVJP opposes the motion.

EVIDENCE

The court overrules WVJP’s evidentiary objection.

The court grants WVJP’s request for judicial notice in its entirety as to Exhibits A, B, C, and D.

The court denies BABBB’s late-filed request for judicial notice, filed October 20, 2020, as to Exhibit 1.

DISCUSSION

“The court . . . may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

BABBB contends that the Judgment is void on the grounds that (1) the Judgment includes awards against BABBB on the second cause of action for breach of guaranty and the seventh cause of action for fraud, but BABBB is not named as a cross-defendant in those causes of action or the prayers for relief; (2) as to the second cause of action, the SACC and the declaration supporting Dove’s request for entry of default judgment also do not allege that BABBB was a party to any guaranty agreement; and (3) the damages awarded against BABBB in the Judgment exceed those demanded in the SACC against BABBB.

  1. Direct or Collateral Attack

As an initial matter, the court notes that WVJP argues that BABBB’s motion is a collateral and not a direct attack, and that the entry of default judgment is voidable, not void.

“Either a ‘direct attack’ or a ‘collateral attack’ are the procedural mechanisms available to challenge a judgment that is allegedly void. A direct attack means an attack on the judgment in the action in which it was rendered, or a proceeding instituted for the specific purpose of attacking the judgment. [Citation.] In contrast, a collateral attack is any procedural challenge that does not constitute a direct attack. [Citation.] For example, a proceeding brought for some purpose other than specifically attacking the judgment. [Citation.]” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326-1327.) “A judgment that is void on the face of the record is subject to either direct or collateral attack at any time. [Citations.] To prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence is allowed. [Citations.]” (Id. at pp. 1327-1328.) “When a court lacks jurisdiction in a fundamental sense, such as lack of authority over the subject matter of the parties, an ensuing judgment is void. [Citation.]” (Id. at p. 1330.)

BABBB’s motion to vacate is a direct attack because it is a section 473 motion in the same lawsuit, and BABBB seeks to show that the Judgment is void due to error apparent from the judgment roll without extrinsic evidence. In any event, as BABBB states in its reply, Plaintiff’s arguments relating to the distinction between a direct or collateral attack do not address the relevant issue of whether the Judgment is void. “[T]he distinction between ‘direct’ and ‘collateral’ attack is not helpful in analysis of the essential questions involved in determining whether relief from a judgment is appropriate in any given set of circumstances.” (OC Interior Services, supra, 7 Cal.App.5th at p. 1327.)

The distinction between void and voidable judgments also fails to address the relevant issue of whether the Judgment is void. “A ‘void’ judgment means a judgment that is void on the face of the record (i.e., the judgment roll) and subject to either direct or collateral attack, whereas a ‘voidable’ judgment means a judgment that is valid on the face of the record and may not be collaterally attacked. [Citations.] We agree with the Restatement Second that use of the void versus voidable ‘distinction usually introduces confusion into analysis of whether relief from a judgment should be granted to a particular applicant in a particular forum.’ [Citation.]” (OC Interior Services, supra, 7 Cal.App.5th at p. 1328, fn. 3.)

  1. Judgment on the Second Cause of Action for Breach of Guaranty and Seventh Cause of Action for Fraud

BABBB contends that the Judgment entered against it on the second cause of action for breach of guaranty and the seventh cause of action for fraud is void for violation of due process because the SACC does not name BABBB as a cross-defendant in those causes of action and the prayers for relief as to those causes of action do not name BABBB.

“It is well established a default judgment cannot properly be based on a complaint which fails to state a cause of action against the party defaulted because, as Witkin explains, ‘[a] defendant who fails to answer admits only facts that are well pleaded.[]’” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.) “However, a default judgment is not necessarily void just because it is based on a complaint which fails to state a cause of action. [¶] 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 including a default judgment which exceeds the amount demanded in the complaint.[]” (Id at p. 830.)

“It is fundamental to the concept of due process that a defendant is given notice of the existence of a lawsuit and notice of the specific relief which is sought in the complaint served upon him. The logic underlying this principle is simple: a defendant who has been served with a lawsuit has the right, in view of the relief which the complainant is seeking from him, to decide not to appear and defend . . . . [A] defendant is not in a position to make such a decision if he or she has not been given full notice.” (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.)

BABBB points out that neither the second cause of action for breach of guaranty nor the seventh cause of action for fraud states that it is directed against BABBB. (See SACC, pp. 12:1-13:18, 27:5-40:2.) BABBB also notes that it is not named in the prayers for relief as to those causes of action. (See SACC, pp. 55:9-16, 57:21-25.) BABBB contends that, if any claim was intended to be stated against BABBB for breach of guaranty or fraud, Dove violated California Rule of Court, rule 2.112, which requires that “[e]ach separately stated cause of action, count or defense must specifically state: [¶] (1) Its number (e.g., ‘first cause of action’); [¶] (2) Its nature (e.g., ‘for fraud’); [¶] The party asserting it if more than one party is represented on the pleading (e.g., ‘by plaintiff Jones’); and [¶] (4) The party or parties to whom it is directed (e.g., ‘against defendant Smith’).” BABBB cites Grappo v. McMills (2017) 11 Cal.App.5th 996, 1014, for the proposition that the failure to name a defendant in the heading of a cause of action renders a default judgment entered against the defendant on that cause of action void. In Grappo, the Court of Appeal held that a default judgment entered against a defendant was void because (1) the plaintiff’s complaint did not set forth “the identity or relationship of any of the people or entities named in the caption,” (2) the complaint did not comply with California Rules of Court, rule 2.112, (3) the plaintiff was not the proper plaintiff because the complaint alleged wrongs against a trust, (4) plaintiff’s complaint did not state a cause of action against the defendant, and (5) the amount awarded on the default judgment was not supported by the complaint. (Id. at pp. 1014-1015.)

In opposition, WVJP does not dispute that the SACC does not name BABBB as a cross-defendant in the causes of action for breach of guaranty and fraud, but contends that such a defect does not render the Judgment void because the SACC adequately apprised BABBB of Dove’s claims against it. WJVP points to the allegations in the SACC that BABBB is an alter ego of the cross-defendants named in those causes of action (SACC, ¶ 14), and that BABBB conspired with those cross-defendants to breach the Guaranty Agreement or commit fraud. WJVP notes that those factual allegations are incorporated by reference into the second cause of action for breach of guaranty and the seventh cause of action for fraud, and BABBB thus had adequate notice that it was charged under those causes of action.

WJVP also argues that BABBB’s reliance in Grappo is misplaced because Dove’s violation of California Rules of Court, rule 2.112 is not a jurisdictional defect and thus does not render the Judgment void. WJVP contends that “[t]he defect referred to is nothing more than an uncertainty subject to special demurrer” (Opposition, filed August 4, 2020, p. 12:6-7), and cites Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, to support its argument that Dove’s failure to specifically name BABBB under the causes of action is not a jurisdictional defect. However, Khoury does not hold that a judgment against a defendant on a cause of action that fails to name that defendant in violation of rule 2.112 is not void for jurisdictional defect.

BABBB also contends that the Judgment entered against it on the second cause of action for breach of guaranty is void because the SACC fails to state a cause of action for breach of guaranty against BABBB. “If the complaint does not state a cause of action or the allegations do not support a claim for relief, a default judgment is erroneous and ‘cannot stand.’ [Citations.]” (Grappo, supra, 11 Cal.App.5th at p. 1015.) In support of the second cause of action for breach of guaranty, the SACC alleges that, “[a]s a condition to the making of the Grove Loan, and later making the additional advance under the Loan Modification Agreement, Cross-Defendants Galletly, DPP, DLG, Deborah Galletly, Barnust and Bradley Barnes, (collectively, the ‘Guarantor Defendants’), each executed a personal Guaranty of the Grove Loan, as modified (collectively ‘the Guaranties’).” (SACC, ¶ 35.) BABBB points out that copies of the six Guaranty Agreements attached to the SACC (SACC, Exhs. H-M) show that BABBB was not a party to any of the guaranties. BABBB also points out that the “Declarations of Keith B. Smith and Edward W. Racek in Support of Default Judgment,” filed August 30, 2013 in support of Dove’s request for entry of default judgment against BABBB, do not establish that BABBB was a party to any of the guaranties at issue. (Declarations of Keith B. Smith and Edward W. Racek, filed August 30, 2013, ¶ 6.)

In opposition, WJVP concedes that the SACC does not allege BABBB to be a party to any of the guaranties, but argues that, to support a default judgment, the complaint need not state a cause of action so long as it apprises the defendant of the nature of the plaintiff’s demand. WJVP cites Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 393, for the proposition that “[a] court must indulge reasonable inferences in support of the factual allegations in the complaint; mere uncertainties and other defects subject to a special demurrer do not bar a default judgment against the defendant. [Citations.]” However, the Court of Appeal in Los Defensores went on to state that, “[n]onetheless, the absence of essential factual allegations is fatal to a judgment against the defendant. [Citation.]” (Ibid.)

After considering the arguments presented, the court finds that the Judgment against BABBB is void because the SACC failed to apprise BABBB of the nature of Dove’s demand against BABBB as to the second cause of action for breach of guaranty and the seventh cause of action for fraud. (Falahati, supra, 127 Cal.App.4th at p. 830.) WJVP argues that BABBB was apprised of the nature of Dove’s demand against BABBB because the SACC alleges that BABBB was an alter ego of the cross-defendants named in the causes of action for breach of guaranty and the fraud. However, the SACC fails to state facts sufficient to support an alter ego judgment against BABBB. The alter ego allegations in the SACC as to BABBB (SACC, ¶ 14) are conclusory and insufficient to constitute a well-pleaded claim, and cannot support a default judgment for alter ego. (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749.) In Vasey, the Court of Appeal reversed an order denying a motion to vacate and set aside a default judgment, and held that the plaintiff’s complaint failed to allege facts to support an alter ego judgment: “[Plaintiff’s] complaint asserted a bare conclusory allegation that the individual and separate character of the corporation had ceased and that CDC was the alter ego of the individual defendants. Although by a default a defendant admits the allegations in the complaint, the defendant who fails to answer admits only facts which are well pleaded. [Citation.] . . . . [¶] In order to prevail in a cause of action against individual defendants based upon disregard of the corporate form, the plaintiff must plead and prove such a unity of interest and ownership that the separate personalities of the corporation and the individuals do no exist, and that an inequity will result if the corporate entity is treated as the sole actor. [Citations.]” (Ibid.)

Moreover, WJVP does not dispute that BABBB is not named as a cross-defendant in the second cause of action for breach of guaranty or the seventh cause of action for fraud, and that BABBB is also not named in the prayers for relief as to those causes of action. WJVP also does not dispute that none of the guaranties attached to the SACC in support of the second cause of action for breach of guaranty shows BABBB is a party to any guaranty. Indeed, as BABBB points out, the SACC does not include BABBB in the group of cross-defendants defined as the “Guarantor Defendants” (SACC, ¶ 35), does not mention BABBB at all in the lengthy allegations made in support of the seventh cause of action for fraud (SACC, ¶¶ 120-165), and does not name BABBB in its prayers for relief under the second and seventh causes of action, despite specifically naming each of the Guarantor Defendants under the prayer for relief on the second cause of action (SACC, p. 55:10-12).

The court notes that the SACC specifically names BABBB as a cross-defendant in the sixth cause of action for unjust enrichment, but the Judgment does not award any relief on the sixth cause of action for unjust enrichment against BABBB. In Dove’s “Case Summary in Support of Default Judgment and Request For Attorney’s Fees and Costs,” lodged May 10, 2013, and filed August 30, 2013, Dove states that it does not request that the court enter judgment on the sixth cause of action for unjust enrichment against BABBB. (“Case Summary in Support of Default Judgment and Request for Attorney’s Fees and Costs,” filed August 30, 2013, p. 1:25-28, fn. 1.)

The court therefore finds that the Judgment entered against BABBB on the second cause of action for breach of guaranty and the seventh cause of action for fraud is void for violation of due process because (1) the SACC does not name BABBB as a cross-defendant in those causes of action or the prayers for relief as to those causes of action, and (2) the second cause of action for breach of guaranty fails to state a cause of action against BABBB.

  1. Relief Exceeding Demand of SACC

BABBB also contends that the Judgment is void because the Judgment includes damages in an amount that exceeds the demand of the SACC as to BABBB.

Code of Civil Procedure section 580, subdivision (a) “limits a trial court’s jurisdiction to grant relief on a default judgment to the amount stated in the complaint.” (Dhawan v. Biring (2015) 241 Cal.App.4th 963, 968.) “The amount of the default judgment ‘cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115.’ (§ 580, subd. (a).)” (Id. at p. 968.) “[A] default judgment awarding damages in excess of the amount allowed under section 580 is beyond the court’s jurisdiction and therefore is void . . . .” (Matera v. McLeod (2006) 145 Cal.App.4th 44, 59.)

BABBB contends that the Judgment entered against BABBB is for relief not demanded in the SACC because BABBB is not named as a cross-defendant on the second cause of action for breach of guaranty, which prays for damages in the amount of $1,371,000 plus interest, attorney’s fees, and costs (SACC, p. 55:10-12), and the seventh cause of action for fraud, which also prays for damages in the amount of $1,371,000 plus interest, attorney’s fees, and costs (SACC, ¶ 163).

In opposition, WVJP contends that the Judgment did not award damages in excess of the relief demanded in the SACC because the SACC alleged that BABBB was liable as an alter ego of other cross-defendants and conspirator. WVJP contends that BABBB was on notice of the amounts demanded under the second cause of action for breach of guaranty and the seventh cause of action for fraud since BABBB was alleged to be liable on those causes of action. However, as discussed above, the SACC failed to apprise BABBB that it was alleged to be liable under those causes of action because neither cause of action names BABBB as a cross-defendant, the second cause of action for breach of guaranty fails to state a cause of action against BABBB, and the prayer for relief for each of those causes of action does not name BABBB.

The court finds that the Judgment against BABBB is void because the Judgment includes damages demanded under the second cause of action for breach of guaranty and the seventh cause of action for fraud, and those causes of action were not stated against BABBB. “Where no amount of damages is demanded any amount awarded is by definition greater than the amount demanded.” (Falahati, supra, 127 Cal.App.4th at pp. 830-831.) The relief granted to Dove therefore exceeds that demanded in the SACC as to BABBB. (Code Civ. Proc., § 580, subd. (a).)

The court notes that the parties dispute whether the damages awarded in the Judgment properly included amounts for interest and attorney’s fees. The Judgment awarded “attorney’s fees and costs for tort of another in the amount of $430,884.90.” (Default Judgment on Second Amended Cross-Complaint of Dove Street Capital Lenders, LLC, p. 3:21-22.) Under the “tort of another” doctrine, “a person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary . . . attorney’s fees, and other expenditures thereby suffered or incurred,” and such attorney’s fees and expenses “are recoverable as an item of the [plaintiff’s] damages . . . .”  (Prentice v. North American Title Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618, 620, 621.) Therefore, because the “tort of another” doctrine awards attorney’s fees as an element of damages, the $430,884.90 amount must be pleaded in the SACC -- in addition to the request for $1,371,000 in compensatory damages that was pleaded in the SACC and awarded in the Judgment. However, the $430,884.90 awarded for attorney’s fees and costs for “tort of another” is not pleaded in the SACC, and the Judgment therefore exceeds the relief requested in the SACC and is void under Code of Civil Procedure section 580, subdivision (a).

The court also notes that WVJP, in its opposition, requests that the court modify the Judgment rather than vacate the Judgment if the court finds that the relief granted to Dove exceeded that demanded in the SACC as to BABBB. (WVJP’s Opposition, p. 16, fn. 4.) However, as discussed above, the Judgment as to BABBB is void for violations of due process and Code of Civil Procedure section 580, subdivision (a), and the court does not have jurisdiction to modify the Judgment.

ORDER

For the reasons set forth above, the court finds that the default judgment entered on August 30, 2013, on Dove Street Capital Lenders, LLC’s Second Amended Cross-Complaint, against cross-defendant BABBB, LLC, is void on the face of the judgment roll. The court therefore grants BABBB, LLC’s motion to vacate the default judgment entered against BABBB, LLC on the Second Amended Cross-Complaint. (Code Civ. Proc., § 473, subd. (d).)

The court orders that the default judgment on Dove Street Capital Lenders, LLC’s Second Amended Cross-Complaint, filed August 30, 2013, entered against cross-defendant BABBB, LLC is set aside.

The court sets an Order to Show Cause why the Second Amended Cross-Complaint should not be dismissed against cross-defendant BABBB, LLC for hearing on ___________________, 2021, at 8:30 a.m. in Department 53. The court orders that any response to the Order to Show Cause shall be filed and served no later than nine court days before the hearing.

The court orders cross-defendant BABBB, LLC to give notice of this order.

IT IS SO ORDERED.

DATED: October 23, 2020

__________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] Dove’s Request for Court Judgment by default was lodged with court (and stamped “Received”) on May 10, 2013, but it was stamped “Filed” on August 30, 2013.