Remmich v. Feusier
Plaintiff Marvin Remmich brought this action in 2003 to enforce a 1993 default judgment awarding him $26,340 in damages. The original action began as an unlawful detainer action seeking possession of an office. Defendant Mario M.S.B. Feusier answered the unlawful detainer complaint, but vacated the office. Remmich leased the office to new tenants, and also amended the complaint to state a new cause of action, seeking different, and substantially greater, damages than in the unlawful detainer complaint. Feusier never answered the amended complaint, and a default judgment was entered. Some 10 years later the within action was brought, seeking to enforce the default judgment. The trial court found that Feusier had never been served with the amended complaint in the original action, and therefore concluded that the default judgment was void and unenforceable. The trial court also awarded Feusier attorney fees as the prevailing party in the enforcement action. Remmich filed two separate appeals. In the first appeal, which is from the September 14, 2006 judgment in Feusiers favor, Remmich makes three arguments: (1) the amended complaint was validly served; (2) alternatively, even if service was invalid, the default judgment was not void, merely voidable, and the time for setting it aside has passed; and (3) judicial estoppel bars Feusier from contesting service of process of the amended complaint. In the second appeal, which is from the October 4, 2006 order awarding Feusier attorney fees, Remmich argues that neither the attorney fees clause in the lease nor any statute provided the trial court with a legal basis to award fees. On our own motion, we have consolidated Remmichs appeals. (See Sampson v. Sapoznik (1953) 117 Cal.App.2d 607, 609.) We conclude that none of Remmichs arguments has merit, and affirm both the judgment and the order awarding attorney fees. The September 14, 2006 judgment and the October 4, 2006 order awarding attorney fees are affirmed.
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