Humphrey v. Bewley

69 Cal.App.5th 571

284 Cal.Rptr.3d 600

Douglas HUMPHREY, Plaintiff and Appellant,

v.Peter D. BEWLEY, as Administrator, etc., et al., Defendants and Respondents.

E074339

Court of Appeal, Fourth District, Division 2, California.

Filed September 28, 2021

Certified for Partial Publication.^*

Christopher Kelley and Denise L. Diaz, Los Angeles, for Plaintiff and Appellant.

Bochnewich Law Offices, Peter M. Bochnewich, Palm Desert, and Jacquetta Bardacos for Defendant and Respondent Peter D. Bewley as Administrator of the Estate of Grace Janelunas Newswanger and Administrator of the Estate of Val J. Janelunas.

OPINION

RAMIREZ, P. J.

This action concerns a piece of property in Rancho Mirage. At one time, the owners of record were Val Janelunas and his father, Joseph Janelunas, as joint tenants; however, Joseph died, leaving Val as sole owner. Thereafter, Val died.

Plaintiff Douglas Humphrey asserts a claim to the property; he filed this action to quiet title to it, and he filed a lis pendens. He served process by publication. None of the named defendants (including Val Janelunas's heirs) responded. At Humphrey's request, the trial court entered their default.

Thereafter, Peter Bewley became the administrator of Val Janelunas's estate.¹ He filed a motion to intervene, so he could move to expunge the lis pendens. In response, Humphrey withdrew the lis pendens; the trial court then denied the motion to intervene as moot. Bewley proceeded to sell the property.

Humphrey then filed a request for a prove-up hearing and a default judgment. Bewley filed objections. At an unreported hearing, the trial court, on its own motion, quashed the service by publication and vacated the default.

Humphrey appeals. He contends:

1. Humphrey properly effected service by publication, and therefore the trial court erred by quashing service, by vacating the default, and by failing to hold a prove-up hearing.

2. The trial court should not have quashed service as to Val Janelunas's heirs because Bewley had made a general appearance.

3. The trial court erred by setting aside the default on its own motion because Bewley had not moved to set it aside within a reasonable time.

In response, Bewley not only disputes Humphrey's contentions, but also contends:

1. The trial court's order is not appealable.

2. Bewley is not a proper party to this appeal because he was never a party below and because Humphrey did not name him in the notice of appeal.

3. The probate court had exclusive jurisdiction over the property.

4. Humphrey has no valid claim to the property.

In the published portion of this opinion, we will hold that the trial court's order granting the motion to quash is appealable, and in such an appeal we may also review its order vacating the default. We will also hold that Humphrey did not properly effect service by publication because the notices that he published specified the property only by assessor's parcel number (APN) and not by either legal description or street address. However, we will also hold that Bewley made a general appearance. Accordingly, the trial court erred by quashing service on Bewley, but not by quashing service on other parties who had not appeared nor by vacating the default.

In the unpublished portion of this opinion, we will reject all of the parties' other contentions.

ISTATEMENT OF THE CASE

In November 2012, Humphrey filed this action to quiet title. He named as defendants (1) the successors of Val Janelunas, (2) the successors of Joseph Janelunas, and (3) all other persons claiming any interest in the property. On September 5, 2013, he filed an amended complaint.

On July 2, 2014, Humphrey recorded a notice of lis pendens.

Also on July 2, 2014, the trial court ordered service of the summons and first amended complaint by publication. In August and September, 2014, Humphrey filed proof of service by publication.² On September 25, 2014, at Humphrey's request, the trial court entered the default of all named parties.

Three years passed; a lot did happen in the action, involving various other parties who showed up and participated, but nothing that is relevant to this appeal.

On September 18, 2017, Bewley was appointed administrator of the estate of Val Janelunas.³

On September 6, 2018, Bewley filed a "motion for leave to intervene to expunge lis pendens."⁴ (Capitalization altered.) While the motion was pending, Bewley filed a case management statement. On November 29, 2018, Humphrey withdrew the lis pendens. On December 5, 2018, the trial court therefore denied Bewley's motion to intervene as moot.

Sometime between March 9 and May 30, 2019, Bewley sold the property.

On May 30, 2019, the probate court ordered the final distribution of the estate.

On October 9, 2019, Humphrey filed a request for a default prove-up hearing. It was set for October 18. Bewley, in what he labeled a special appearance, filed objections to the default prove-up.

At the hearing on October 18, 2019, the trial court, on its own motion, quashed the service by publication, finding that it was "improper," and set aside the default. There was no court reporter at that hearing.⁵

IIAPPEALABILITY

Preliminarily, Bewley contends that the trial court's order is not appealable.

Code of Civil Procedure section 904.1, subdivision (a)(3), provides that "an order granting a motion to quash service of summons" is appealable. (See also Templeton Action Committee v. County of San Luis Obispo (2014) 228 Cal.App.4th 427, 432, 175 Cal.Rptr.3d 346.) Bewley seeks to draw a distinction between a motion to quash based on lack of minimum contacts with the forum and a motion to quash based on lack of proper service. An order granting the former is effectively a final judgment. By contrast, an order granting the latter is interlocutory; the plaintiff remains free to attempt new and better service. In Bewley's view, then, only an order based on lack of minimum contacts should be appealable.

Bewley cites no authority in support of this position, and we have found none.

In 1951, Code of Civil Procedure former section 963 — the predecessor of Code of Civil Procedure section 904.1 — was amended to provide for the first time that an order granting a motion to quash service of summons is appealable. (Stats. 1951, ch. 234, § 1, p. 497.) Thus, until 1951, Bewley's position was at least arguable. (See Kneeland v. Ethicon Suture Laboratories (1952) 113 Cal.App.2d 335, 336-338, 248 P.2d 447 ; Thomas v. Lee (1949) 90 Cal.App.2d 44, 45, 202 P.2d 310.)

As amended, however, the statute is unambiguous. It states flatly that an order granting a motion to quash service of summons is appealable. " ‘[W]hen statutory language is ... clear and unambiguous there is no need for construction and courts should not indulge in it. ’ [Citation.]" ( Mutual Life Ins. Co. v. City of Los Angeles (1990) 50 Cal.3d 402, 413, 267 Cal.Rptr. 589, 787 P.2d 996.)

Bewley also argues that the order setting aside the default is not appealable. As he points out, "no appeal lies from an order granting a motion to vacate a default entry where no default judgment has been entered [citation]. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 2:167, p. 2-122, italics omitted.) Here, however, the order granting the motion to quash and the order setting aside the default are inextricably interwoven. Under these circumstances, we have jurisdiction to review and, if necessary, to reverse both. (See American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216-218, 246 P.2d 935 ; see, e.g., Allen v. Smith (2002) 94 Cal.App.4th 1270, 1283, 114 Cal.Rptr.2d 898 [reversal of judgment necessarily reversed award of attorney fees, even though award of fees was separately appealable and appellant did not appeal from it].)

III-V^**

VI

THE VALIDITY OF THE SERVICE BY PUBLICATION

Humphrey contends that the named defendants were properly served.

Bewley responds that the publication did not adequately describe the property. We agree.

In a quiet title action, "Whenever the court orders service by publication, the order is subject to the following conditions: [¶] ... [¶] ... The publication shall describe the property that is the subject of the action. In addition to particularly describing the property, the publication shall describe the property by giving its street address, if any, or other common designation, if any; but, if a legal description of the property is given, the validity of the publication shall not be affected by the fact that the street address or other common designation recited is erroneous or that the street address or other common designation is omitted." ( Code Civ. Proc., § 763.020.)

Here, the trial court's order for publication (proposed by Humphrey's counsel) provided: "[T]he [assessor's] parcel number of the affected property ... shall be published below the First Amended Summons in the newspaper publications." The proofs of service showed that the published notices did not include the legal description or the street address of the property; in accordance with the order, however, they did include the APN.

This did not comply with Code of Civil Procedure section 763.020. Service by publication requires strict compliance with the applicable statutes. ( County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450, 62 Cal.Rptr.2d 747.) The publication must "particularly" describe the property, and must also give its street address. We may assume, for purposes of argument, that an APN is a sufficiently particular description. Even if so, the published notices here did not also include the street address. The statute provides that, if a legal description is given, then the omission of the street address is not fatal. Here, however, the legal description was not given. By negative implication, the omission of the street address is fatal.

Another way to look at it is that the APN is a sufficient "common designation," in lieu of the street address. On that view, however, the publication must...