Quartz Hill, LLC v. Linton
Filed 9/16/13 Quartz Hill, LLC v. Linton CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
QUARTZ HILL, LLC,
Plaintiff and Respondent,
v.
TATIANA KATERINA LINTON,
Defendant and Appellant.
B237988
(Los Angeles
County
Super. Ct.
No. LC089421)
APPEAL from
an order of the Superior Court
of
County.
Huey P. Cotton, Jr., Judge.
Affirmed.
Tatiana
Katerina Linton, in pro. per., for Defendant and Appellant.
Weiss &
Hunt, Thomas J. Weiss and Hyrum K. Hunt for Plaintiff and Respondent.
__________________________________
Attorney
Tatiana Katerina Linton appeals from an order denying her motion to vacate a
default and default judgment in an
action alleging she misappropriated money that belonged to the plaintiff. We affirm the order.
FACTS
I. The Litigation
Quartz
Hill, LLC filed the current case in 2010 against a number of defendants
involved in business dealings which resulted in a loss to the company of roughly
$350,000. Quartz Hills’s complaint
alleged: In 2009, Quartz Hill agreed to
loan money to defendant Mario Nordet in connection with a business venture to
“flip†real properties. In October 2009,
Nordet and a defendant escrow officer at Green Forest Escrow Corporation,
Patricia Bohe, represented to Quartz Hill that a sum of $305,000 was needed
quickly to close a sale for real property located in Toluca
Lake. Quartz Hill was told that the buyer was
defendant Gasprom, Inc., a corporation formed by defendant and appellant
Linton, and that Gasprom would provide Quartz Hill with a deed of trust to
secure repayment of the money that Quartz Hill fronted for the purchase. Quartz Hill loaned the $305,000 to Nordet, and
Nordet provided Quartz Hill with a promissory
note.
In December
2009, Quartz Hill contacted Green Forest Escrow to determine whether escrow had
closed. At that point, Bohe at Green
Forest Escrow stated that “all of the net proceeds from the transaction had
been remitted to . . . Linton.†Through its attorney, Quartz Hill thereafter
contacted Linton a number of times by letter, requesting the return of Quartz
Hill’s money. Linton did not respond.
II. Service of the Summons and Complaint
Between June 2 and 7, 2010,
Deputy Sheriff Ernie Estrada attempted to serve Linton four times at her law
office. Estrada’s proof of service shows
that Linton was not in during those attempts, and he received no calls back
from her office. On June 14, 2010, Estrada served Linton with the
summons, complaint, and other identified documents by substitute service on
Veronica Zarate, a receptionist at Linton’s law office. Estrada thereafter mailed copies of the
documents to Linton at her law office’s address.
On June 21, 2010, Quartz Hill’s attorney
faxed a letter to Linton reminding her that she had been sued, and urging her
to return Quartz Hill’s money. At some
point, Quartz Hill’s attorney noticed depositions. On July
21, 2010, Linton faxed the following letter to Quartz Hill’s
attorney: “I am not available for
deposition on July 22, 2010. Also, the [person most knowledgeable] for
Gasprom, Inc. will not be available on July
26, 2010 as well. Please
take depositions of [sic]
calendar.â€
On August 18, 2010, Quartz Hill filed a
request for entry of default as to Linton.
The clerk of the superior court entered Linton’s default as requested on
the same day.
On October 8, 2010, the court signed an
order granting Quartz Hill’s motion to compel Linton and Gasprom, Inc. to
appear for depositions within 20 days.
At the same time, the court imposed sanctions in the amount of
$1680. The court’s written order further
stated: “Enforcement of this order does
not waive the existing defaults against Ms. Linton and Gasprom, Inc.†Linton did not appear for her deposition, nor
pay the sanctions, nor do anything about the default.
On June 13, 2011, Linton failed to
appear as a subpoenaed witness at trial of Quartz Hill’s case against Green
Forest Escrow. The court continued the
trial to June 16, 2011, and
issued a body attachment against Linton with a bail of $50,000. The court ordered Quartz Hill’s counsel to
give notice to Linton. On June 14, 2011, Quartz Hill faxed a
letter to Linton informing her of the warrant and her required appearance for
trial on June 16, 2011. Linton did not respond and failed to appear
at trial.
On July 12, 2011, Quartz Hill served
Linton with notice of Quartz Hill’s right to seek punitive damages.
On August 30, 2011, Quartz Hill presented
its default prove-up case to the trial court.
On September 2, 2011,
the court entered judgment in favor of Quartz Hill and against Linton. The judgment awards $324,150 in damages, with
prejudgment interest from December 8,
2009, and punitive damages of $972,450. The total owed under the judgment exceeds
$1.3 million.
III. The Motion to Vacate
On October 14, 2011, Linton
(individually) filed a motion to vacate the default and default judgment
entered against her under Code of Civil Procedure section 473, subdivision (d),
on the ground the default judgment was void.
The motion was supported by a declaration from the receptionist at
Linton’s law office, Veronica Zarate.
Zarate’s declaration stated that she worked at Linton’s law office, but
was “never in charge of the office,†and “never authorized by Ms. Linton to
receive any correspondence addressed to her personally.†Zarate explained that another attorney in the
office was always present in the office during Linton’s absences. Zarate acknowledged that she “did take
the papers concerning the lawsuit on Quartz Hill.†According to Zarate, the server gave her
papers for Gasprom, Inc., but “[t]here was not a separate summons for Ms.
Linton.†Zarate stated that Linton was
in the office when the server was leaving the papers, meeting with a
client. She also noted that the server
had not asked whether Linton was in the office on that occasion. Zarate “put the papers in the ‘miscellaneous’
box,†and had “no idea whether Ms. Linton saw the papers.†Zarate stated that she never received a
mailed copy of the summons.
In her own
declaration, Linton stated that she was on sick leave at the time of the
attempted service, although she occasionally came to the office to meet clients
or pick up files before going to court.
She declared that she had never been served with a summons, “either
personally or by mail.†She implicitly
admitted that she had at least one copy of the summons because she attached it
to Zarate’s declaration. Linton stated
that, even if the summons had been served at her office, she “would have had no
idea whether it was addressed to [her] as the agent for Gasprom, Inc. or to
[her] as an individual.â€
Quartz Hill
filed an opposition in which it outlined the litigation history summarized at
the outset of this opinion. In addition,
Quartz Hill presented evidence showing that the State Bar had initiated
disciplinary proceedings against Linton, and that she had failed to respond in
those proceedings. Linton filed a reply,
including evidentiary objections to the State Bar materials.
On December 5, 2011, the trial court
overruled Linton’s evidentiary objections, and denied Linton’s motion to
vacate.
DISCUSSION
Linton
contends the trial court erred in denying her motion to vacate the judgment. We
disagree.
I. Service of Process
Under
section 473, subdivision (d), a court “may, on motion of either party after
notice to the other party, set aside any void
judgment . . . .â€
Linton argues the evidence established that she was never properly
served with Quartz Hill’s action for a variety of reasons. As a result, the trial court never acquired
personal jurisdiction over her and the judgment is void. Not so.
Section
415.10 states: “A summons may be served
by personal delivery of a copy of the summons and of the complaint to the
person to be served.†Section 415.20
provides alternate means of service.
Code of Civil Procedure section 415.20, subdivision (b), provides: “If a copy of the summons and complaint
cannot with reasonable diligence be personally delivered to the person to be
served, . . . a summons may be served by leaving a copy of
the summons and complaint at the person’s . . . usual place of
business . . . in the
presence of a . . . person apparently in charge of his or her office
[or] place of business, . . . at least 18 years of age, who shall be
informed of the contents thereof, and by thereafter mailing a copy of the
summons and of the complaint by first-class mail, postage prepaid to the person
to be served at the place where a copy of the summons and complaint were
left. Service of a summons in this
manner is deemed complete on the 10th day after the mailing.†(Italics added.)
First,
Linton argues that Deputy Estrada improperly attempted substitute service under
section 415.20, subdivision (b), because he did not exercise reasonable
diligence to accomplish personal service.
She argues that because Deputy Estrada neither asked whether Linton was
in her office nor attempted to find her in her office on the day he left the
summons and complaint with her receptionist, he did not exercise reasonable
diligence. We are not persuaded.
“‘Ordinarily,
. . . two or three attempts at personal service at a proper place should fully
satisfy the requirement of reasonable diligence and allow substitute service to
be made.’†(Espindola v. Nunez (1988) 199 Cal.App.3d 1389, 1392; and see also
(1992) 6 Cal.App.4th 1387, 1392 [finding that substitute service was
appropriate when the “process server made three separate attempts to serve the
Brecthels at their residence. Each time,
the gate guard denied accessâ€]; Hearn v.
Howard (2009) 177 Cal.App.4th 1193, 1202 [finding that service requirements
were satisfied when server “attempted to personally serve appellant at the
business address on her letterhead and reported by the California State Bar by
appearing at that address on three separate occasions on three different
daysâ€].) Here, Deputy Estrada surpassed these
requirements. It is uncontested that he
attempted to serve Linton on four separate occasions at her usual place of
business, at different times of day. We
find Deputy Estrada’s diligence sufficiently reasonable to permit substitute
service on his fifth visit to her law office.
Linton next
contends that service was improper because Zarate was not authorized to receive
the summons from Deputy Estrada. We
reject Linton’s argument. Under the
service statutes, Deputy Estrada could leave a copy of Linton’s summons with a
person “apparently in charge†of Linton’s office. (§ 415.20, subd. (b).) The purpose of this requirement is to ensure
that the person’s “‘relationship with the person to be served makes it more
likely than not that they will deliver process to the named party.’†(Bein
v. Brechtel-Jochim Group, Inc., supra, 6 Cal.App.4th at p. 1393.) Here, Zarate was a receptionist for Linton’s
office, and Deputy Estrada had explained the general nature of the documents as
well as whom they were for. Even
accepting that there was another attorney who was “in charge of the officeâ€
during Linton’s absences, this does not mean that Zarate was not a person
“apparently in charge†when Deputy Estrada went to Linton’s office on the date
of substitute service. Deputy Estrada
needed only to serve a person who was “apparently in charge,†which he
did. There was no error in leaving
Linton’s summons with Zarate.
Linton next
argues service was improper because Deputy Estrada served an incomplete summons
and “lied†in his proof of service when he stated that he served Linton and
Gasprom, Inc. with two complete, separate summonses. As noted above, Deputy Estrada’s proofs of
service indicated that he served Linton with two summonses; one served “On
behalf of: Linton, Tatiana Katrina under: CCP 416.90,†and the other “On behalf
of: Gasprom, Inc. under: CCP 416.10.†In
Linton’s motion to vacate, however, she presented a single copy of a summons
which shows it was served “by personal delivery on (date): 6-14-10.†To the extent the copy of the one proof service
proffered by Linton may be viewed to contradict Deputy Estrada’s affidavits of
service, we are not inclined to find error in the judgment. In denying the motion to vacate, the trial
court expressly stated that Linton’s evidence failed to rebut the presumption
of the facts established by Deputy Estrada’s proofs of service. The trial court made a credibility call on
the evidence, and we accept it.
Linton’s
next argument is that substitute service was incomplete because Deputy Estrada
mailed the copy of the summons to her office rather than mailing it to her
personal address. We disagree. Once Deputy Estrada exercised reasonable
diligence and provided substitute service by leaving a copy of Linton’s summons
with Zarate, he was required to send a copy of the summons with “postage
prepaid to the person to be served at the
place where a copy of the summons and complaint were left.†(§ 415.20, subd. (b), italics
added.) The deputy did so by mailing a
copy of the summons to Linton’s office.
He had no legal obligation to mail the summons anywhere else. To the extent Zarate declared that she never
received any mailed copies of the summons, the trial court rejected her
statement and we do too.
Linton
contends that Deputy Estrada’s proof of service did not satisfy the
requirements of section 417.10, subdivision (a), because it did not name Linton
as the person served and only notes “Defendant not in.†Again, we disagree. Under section 417.10, subdivision (a), in the
proof of service, “[t]he affidavit shall recite or in other manner show the
name of the person to whom a copy of the summons and of the complaint were
delivered, and, if appropriate, his or her title or the capacity in which he or
she is served, and that the notice required by Section 412.30 appeared on the
copy of the summons served, if in fact it did appear.†The proof of summons only requires the name
of the person to whom the summons was delivered. Here, that person was Zarate. Estrada’s affidavit names Zarate as the
person with whom a copy of the summons was left and provides her title and in
what capacity she was given the summons.
There was no problem with this aspect of service.
Finally,
Linton argues that the trial court erred in ruling that Linton had not rebutted
the presumption under Evidence Code section 647 that service was proper. We disagree.
Evidence
Code section 647 provides: “The return
of a process server registered pursuant to Chapter 16 (commencing with Section
22350) of Division 8 of the Business and Professions Code upon process or
notice establishes a presumption, affecting
the burden of producing evidence, of the facts stated in the return.†(Italics added.)
Linton is
correct in asserting that the presumption only arises if the proof of service
establishes compliance with the statutory
requirements. But she is incorrect
in claiming the proof of service here was non-compliant for all the reasons we
set forth above. Her secondary argument,
that her evidence should have been viewed as sufficient to rebut the
presumption that service was proper, likewise fails. As noted, the trial court’s decision to deny
Linton’s motion largely reflects a credibility call it made after a
consideration of Linton’s evidence. We
find no reason to second guess the trial court.
Because we are not convinced that Linton’s evidence – as a matter of law
– defeats the presumption, we will not reverse.
Admission that She Failed to Respond to State Bar Inquiries was Properly
Admitted
Linton argues that the trial court
prejudicially erred in overruling her objection to admission of the evidence of
her unresolved State Bar charges. Linton
claims the evidence of the State Bar charges could not be used against her for
any purpose because they are not resolved.
However, the exhibits from the State Bar’s investigation were not
considered for an improper purpose. As a
result, Linton once again fails to demonstrate error.
The State
Bar charges arise from the same facts as Quartz Hill’s civil complaint for
damages. At the hearing on the motion to
vacate, three exhibits (9, 10, and 11) from the investigation were
admitted. They consisted of the State
Bar notice of disciplinary charges, appellant’s response to the charges, and a
copy of Linton’s status as a member of the California State Bar as reflected on
the bar website. Linton filed a motion
with the trial court, arguing the investigation into her conduct should not be
used as evidence of her guilt or for any other purpose.
Of course
Linton is correct that “[a] statement of charges is not evidence†of her
guilt. (Layton v. Merit System Commission (1976) 60 Cal.App.3d 58,
68.) But, the exhibits were not offered
as evidence of Linton’s guilt of the charges.
Instead, Quartz Hill introduced the exhibits to show Linton had a
pattern of failing to respond to matters involving the Quartz Hill
transaction. The exhibits demonstrated
that Linton expressly admitted the State Bar allegation that she failed to
respond in any manner to State Bar’s inquiry into the matter. This was relevant to show she failed to
respond to the summons in this case too.
The trial judge who heard this motion was not like a jury who might be
misled into considering the evidence for more than the limited purpose for
which it was admitted.
In any
event, we find that any error was harmless.
In its ruling denying Linton’s motion to vacate the default judgment,
the trial court made no reference to the State Bar related evidence. Nor is there anything in the record to
suggest that it influenced the trial court’s decision to deny Linton’s motion
to vacate the default judgment.
DISPOSITION
The order
is affirmed. Respondent is awarded costs
on appeal.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES, J.
[1]
It is unclear from the complaint
whether there ever truly was a sale contemplated, or whether there was a
planned sale that did not close. Outside
of the four corners of the complaint, the record shows that Green Forest Escrow
issued a check in December 2009 for $324,150, payable to Quartz Hill, and that
Linton somehow got possession of the check and deposited it into her
attorney/client trust account. The State
Bar has initiated charges against Linton based on her dealings with Quartz Hill. Materials in the record show that Linton
failed to respond to the State Bar’s charges.
The record includes two proofs of
service. One proof of service shows that Deputy Estrada served Linton as follows: “On behalf of: Linton, Tatiana Katrina under: CCP 416.90.†The second proof of service shows that Deputy
Estrada served Gasprom as follows: “On behalf of: Gasprom, Inc. under: CCP 416.10.â€
