Rodriguez v. Sup
Filed 2/21/06 Rodriguez v. Sup. Ct. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CONSUELO RODRIGUEZ, Plaintiff and Appellant, v. THE SUPERIOR COURT OF KERN COUNTY, Defendant and Respondent; INSURANCE COMPANY OF THE WEST, Real Party in Interest and Respondent. |
F047646
(Super. Ct. No. CL7297/AP648)
O P I N I O N |
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman III, James M. Stuart, and Frank Allen Hoover, Judges.
Consuelo Rodriguez, in pro. per.; and John F. Moran II for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Law Offices of Heywood G. Friedman, Heywood G. Friedman and Haik Bartoumian for Real Party in Interest and Respondent.
Consuelo Rodriguez challenges the denial of her motion to set aside a default and a default judgment entered against her in the Delano-McFarland Justice Court in 1993, and a renewal of the judgment entered in 2003 in the Delano-McFarland branch of the Kern County Superior Court. Rodriguez contends she never received actual notice of the original action, which was served by substituted service in 1991 at an address where she no longer was living.
Rodriguez appealed from the denial of her motion to the appellate division of the superior court. The appellate division affirmed the decision, denied Rodriguez's request for a rehearing, and rejected her application to certify the matter for transfer to this court. Rodriguez then filed a petition in the appellate division for a writ of review. This appeal is taken from the appellate division's denial of that petition.
We conclude the order denying her petition was appealable. However, as we explain, a writ of review is strictly limited to determining whether an inferior court acted in excess of its jurisdiction, without regard to whether its decision was legally or factually correct. (Code Civ. Proc., § 1068; 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 39, p. 815.)[1] Further, a writ of review may be granted only if no appeal could have been taken from the order or judgment of the inferior court. (§ 1068.)
In this case, Rodriguez, in her motion to set aside the default judgment, specially invoked the jurisdiction of the Delano-McFarland court in 2003 to decide whether it had acquired jurisdiction over her in 1991. She then appealed to the appellate division from the lower court's order denying her motion. Because the superior court unquestionably had jurisdiction to act on her motion, and because its order was appealable, the appellate division properly denied her petition for a writ of review. We affirm the order.
FACTS AND PROCEEDINGS
As we have said, the issue before the appellate division was simply whether the Delano-McFarland court had the jurisdiction in 2003 to decide Rodriguez's motion to set aside the 1993 default judgment and/or the 2003 renewed judgment. It was not concerned with the merits of Rodriguez's motion, i.e., whether or not she had been properly served in 1991. Accordingly, the following summary of facts is meant only to put the appellate division's order in context.
On December 26, 1985, Consuelo Rodriguez, then a resident of Arvin, was involved in a minor traffic accident on Highway 99 in Kern County. Rodriguez had no insurance at the time, so the driver of the other car, Narcisa Hernandez, filed an uninsured motorist claim with her insurer, the Insurance Company of the West (ICW). ICW paid Hernandez's claim on November 14, 1986, in the total amount of $7,153.
Three years later on November 14, 1989, ICW, as Hernandez's subrogee, filed a complaint against Rodriguez for this amount in the Delano-McFarland Justice Court. By then, however, Rodriguez had married Armando Rangel, changed her name to his, and moved from Arvin to 2888 Griffin Avenue in Los Angeles.[2] ICW was unable to locate her for service of process.
On April 10, 1991, an ICW representative wrote to Leonard Lerner, the attorney handling ICW's complaint against Rodriguez, notifying him of Rodriguez's Los Angeles address. The letter stated in part:
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