Filed 10/10/14 Miller v. Bernie CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

CHARLES ANDERSON MILLER,
                                                                                           F067619
         Plaintiff and Appellant,
                                                                          (Kings Super. Ct. No. 12 C 0112)
                   v.

KEVIN F. BERNIE,                                                                         OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Kings County. James T.
LaPorte, Judge.
         Charles Anderson Miller, in pro. per., for Plaintiff and Appellant.
         Scampini, Mortara & Harris, Haig A. Harris, Jr., and Neil S. Turner, for Defendant
and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         In this appeal, plaintiff claims defendant was properly served with a complaint via
substituted service, and that defendant was aware of the lawsuit prior to the entry of his
default. Therefore, plaintiff submits the trial court erred in setting aside the resultant
default judgment pursuant to Code of Civil Procedure section 437.5.1
         1
        All future statutory references are to the Code of Civil Procedure, unless
otherwise noted.
       Because substantial evidence supported the trial court’s conclusion that defendant
lacked actual knowledge of the lawsuit, we reject plaintiff’s contention. Our conclusion
is not affected by the trial court’s failure to state every requisite factual finding on the
record. Nothing in section 437.5 requires such a recitation. Consequently, the doctrine
of implied findings defeats plaintiff’s claim. We affirm.
                                           FACTS
       Plaintiff is currently serving a 115-year-to-life sentence at a state prison in
Corcoran for rape and other charges. In 2012, he filed original and amended complaints
in Kings County Superior Court alleging that defendant Bernie owed him more than $2
million. A letter purportedly from Bernie to plaintiff confirming the debt was attached as
an exhibit. 2 Bernie claims this letter is a forgery.
       Bernie has an ownership interest in a private residential unit at Kamaole Beach
Club in Hawaii. On June 24, 2012, Patti Rodrigues – an employee at the beach club –
signed receipts for two certified envelopes that arrived via the U.S. Postal Service. The
envelopes were addressed as follows:

       “ATTN: PATTY RODRIGUEZ, MANAGEMENT AGENT
       “KAMAOLE BEACH CLUB CONDOS FOR
       “CO-OWNER: KEVIN F. BERNIE
       “2381 SOUTH KIHEI RD #C208
       “MAUI, HAWAII, 96753”
       Several weeks prior to signing receipts for the letters, Rodrigues received multiple
calls from a woman claiming to be Bernie’s friend. During the calls, the woman insisted
Bernie was at the beach club and asked Rodrigues to confirm he had arrived. Rodrigues
told the woman that Bernie had not been to the beach club “for quite some time.” The
club’s onsite manager said Bernie had not been there “in years.” The woman asked

       2  The letter, purportedly written by Bernie, indicates that Bernie had borrowed
$1.7 million from plaintiff in 2008 and also owed additional sums for “paralegal work”
plaintiff had performed.


                                               2.
Rodrigues whether something could be mailed to Bernie at that location and Rodrigues
replied, “[Y]es.” The envelopes were filed in a cabinet and “forgotten about” until
November 26, 2012.
       In a case management statement dated August 20, 2012, plaintiff represented that
he had requested entry of default pursuant to service effected in Hawaii, but the court
clerk “delayed/refused” to enter a default.
       Plaintiff attempted to file a signed3 acknowledgment of receipt (Jud. Council Form
POS-015). (See § 415.30.) In a notice dated August 28, 2012, the court clerk returned
the acknowledgment unfiled because the signature was not dated.
       On September 14, 2012, plaintiff successfully filed a proof of summons
purportedly executed by a Sergey Lazarenko on July 21, 2012. The proof of service
claimed that substituted service was effected on “CYNDY” at “1800 Alma Way, Apt.
#313, Walnut Creek, California 94596.” The proof of service describes Cyndy as
follows: “Adult Female, Approx. 50+ years of age; [C]aucasian ; with sandy-blonde [sic]
hair, green eyes, about 135 LBS in weight, and 5’7” in height.” The proof of service’s
due diligence declaration described several prior attempts to serve Bernie and also
described the apartment complex where service was purportedly effected.4 The clerk
entered Bernie’s default on September 14, 2012.
       On October 16, 2012, Bernie and his girlfriend, Cynthia Simoncini flew to Maui
for a vacation at Bernie’s condominium. On November 25, 2012, Bernie’s brother, Gary,
called. Gary told Bernie that “legal papers” had arrived at 1000 N. Point, San Francisco,
California. Gary, Bernie and several others own a unit at that address “as an investment,”


       3 The acknowledgment in the appellate record is of poor quality. Plaintiff claims
defendant’s signature appears on the acknowledgment. Defendant contends the signature
is a forgery.
       4 Defendant contends the description of the apartment complex was inaccurate in
certain respects.


                                              3.
but Bernie does not reside there. The “legal papers” sent to that address named Bernie as
a defendant in a different lawsuit, entitled Kathleen Marie Stevens v. Renee Ann Miller,
Kevin F. Bernie and Does No. 1 through 20, inclusive.
       The next day (November 26, 2012), Bernie went to the Kamaole Beach Club
office. An employee told Bernie about the two envelopes that had been signed for by
Rodrigues months earlier. The onsite manager retrieved the envelopes, and Bernie
opened them. One contained pleadings in the San Luis Obispo action, Kathleen Marie
Stevens vs. Renee Ann Miller, et al. The other contained a set of pleadings related to this
case, Charles Miller vs. Kevin F. Bernie filed in Kings County.5 In a declaration, Bernie
said November 26, 2012, was the first day he learned of the Kings County action
underlying the present appeal.
       Bernie called his attorneys on November 28, 2012. They informed him that his
default had already been entered in the case. On December 11, 2012, the court entered a
default judgment against Bernie. Bernie’s attorneys did not obtain the court file until
after this judgment was entered.
       On December 26, 2012, Bernie filed a motion to set aside entry of default and
default judgment. (See §§ 473, subd. (b), 473.5.) The hearing on the motion was set for
February 6, 2013.
       On January 28, 2013, plaintiff filed an ex parte application to continue the hearing
for 45 days so he could “gather evidence.” Plaintiff said he received a letter from
Lazarenko, the process server, who indicated he would be in Ukraine until May 2013.
Bernie submitted that the purported process server was a fictitious person and opposed
the continuance request.




       5 Bernie read the complaint, including the letter he purportedly wrote confirming
the debt underlying the action. According to Bernie, the letter is a “total forgery.”


                                             4.
        At the February 6, 2013, hearing, the court denied plaintiff’s ex parte request for a
continuance and granted Bernie’s motion to set aside the default judgment. Bernie filed
an answer to the operative complaint on February 8, 2013. Plaintiff appeals.
                                       DISCUSSION
        Plaintiff raises two issues on appeal. He contends the court abused its discretion
in (1) granting defendant’s motion to vacate and (2) denying his own request for a
continuance. We reject both contentions.
                               I.
 THE TRIAL COURT DID NOT ERR IN GRANTING DEFENDANT’S MOTION
                  TO VACATE THE JUDGMENT
        Plaintiff argues defendant’s motion should have been denied for multiple reasons.
First, he argues that the trial court abused its discretion in granting the motion because
there was evidence defendant had actual notice of the action before his default was
entered. Second, he claims the trial court improperly failed to make “any expressed or
implied” findings required by section 473.5, subdivision (c). We will address each in
turn.

A.      We Affirm the Trial Court’s Finding that Defendant Lacked Actual Knowledge
        of the Action Because it is Supported by Substantial Evidence
        Plaintiff submits the court erred in granting the motion because there was evidence
defendant had actual notice of the action before the default was entered. Because there
was conflicting evidence on this issue, the applicable standard of review requires that we
reject plaintiff’s contention.
        Section 473.5 applies where “service of a summons has not resulted in actual
notice to a party in time to defend the action .…” (§ 473.5, subd. (a).) “ ‘ “[A]ctual
notice’ in section 473.5 “means genuine knowledge of the party litigant....” [Citation.]’
[Citation.]” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 547.)
        “We review the court’s findings regarding actual notice of the action for an abuse
of discretion. [Citation.]” (Ellard v. Conway, supra, 94 Cal.App.4th at p. 547.) When

                                              5.
“there is substantial conflict in the facts … the determination of controverted facts by the
trial court will not be disturbed on appeal.” (Goya v. P.E.R.U. Enterprises (1978) 87
Cal.App.3d 886, 891.) Here, there was conflicting evidence on the issue of notice.
Defendant denied actual notice of the lawsuit in his declaration. This was competent
evidence sufficient to support the trial court’s finding.
       As plaintiff correctly notes, there was other evidence that could support a contrary
inference, such as the acknowledgment of receipt purportedly signed by defendant.6 (See
§ 415.30.) But the trial court resolved this conflict against plaintiff by finding the
declarations offered by defendant were “credible.”7 That determination “will not be
disturbed on appeal.” (Ibid.)
       Plaintiff submits that defendant’s declaration was insufficient under Sakaguchi v.
Sakaguchi (2009) 173 Cal.App.4th 852. In that case, the trial court denied defendant’s
motion to set aside the judgment and the Court of Appeal affirmed. The appellate court
concluded the motion was properly denied because the defendant did not “declare that he
lacked actual knowledge of the action, nor [did] the affidavit show that any lack of
knowledge was caused by excusable neglect.” (Id. at pp. 861–862.)8 In the present case,


       6 Plaintiff requests we take judicial notice of additional evidence. None of the
evidence offered is relevant to the court’s material finding that defendant lacked actual
knowledge of this lawsuit. The request for judicial notice is therefore denied. (See
Abaya v. Spanish Ranch I, L.P. (2010) 189 Cal.App.4th 1490, 1494, fn. 2 [denying
request for judicial notice on irrelevance grounds].)
       7 The court also said: “The Court would conclude that there is a basis for setting
aside the default and default judgment in accordance with 473.5 failure to note [sic] that
there was any actual knowledge of the summons and complaint.” While this statement is
not entirely clear (likely due to typographical errors), it seems readily apparent that the
court found defendant did not have actual knowledge of the action.
       8The court also relied on the fact that defendant had failed to submit an “answer,
motion, or other pleading, as required by statute ….” (Sakaguchi v. Sakaguchi, supra,
173 Cal.App.4th at p. 862.) That consideration does not apply here, as defendant did
lodge an answer with the court.


                                              6.
however, defendant did declare that he lacked actual knowledge of the action. Thus
Sakaguchi is entirely distinguishable.

B.     Trial Court’s Purported Failure to Make Express Findings Does not Warrant
       Reversal
       Plaintiff also argues that reversal is required because the trial court failed to make
an express finding that the lack of notice did not occur as a result of avoidance of service
or inexcusable neglect. We reject this contention. While the court did not state each
finding in its order, we assume those findings were made under the doctrine of implied
findings.
       “[C]ourts have developed the doctrine of implied findings by which the appellate
court is required to infer that the trial court made all factual findings necessary to support
the order or judgment. [Citations.]” (Laabs v. City of Victorville (2008) 163 Cal.App.4th
1242, 1271.) As plaintiff correctly notes, the court was required to find that defendant’s
lack of actual knowledge was not caused by avoidance of service or inexcusable neglect.
(§ 473.5, subd. (c).) But since that finding was “necessary to support the order,” we
“infer” the trial court made it. (Laabs v. City of Victorville, supra, 163 Cal.App.4th at
p. 1271.)
       In his reply brief, plaintiff argues that “a trial court’s ruling in either granting, or
denying, CCP § 473 relief may be reversed for non-compliance with statutory
requirements.” (Formatting removed.) But we conclude that specifying findings on the
record is not a statutory requirement. Nothing in the plain language of section 473.5
suggests that a court must state each requisite finding on the record. This omission is
significant, considering that the Legislature knows how to draft statutes with such a
requirement. (See Laabs v. City of Victorville, supra, 163 Cal.App.4th at p. 1272.)




                                               7.
                              II.
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF’S
                REQUEST FOR A CONTINUANCE
       Plaintiff next contends the court abused its discretion in denying his ex parte
application to continue the hearing on defendant’s motion. We disagree.
       “Generally, power to determine when a continuance should be granted is within
the discretion of the court, and there is no right to a continuance as a matter of law.
[Citation.]” (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 648.)
       At the law and motion hearing, the court asked plaintiff why he could not simply
provide a declaration from the process server (Lazarenko), rather than live testimony.
Plaintiff replied that since defendant was claiming Lazarenko was a fictitious person, he
needed to produce the process server in person.
       The court ultimately denied the request for a continuance, concluding that plaintiff
could have simply filed timely declarations rather than producing Lazarenko in person.
       We see no abuse of discretion. “Evidence received at a law and motion hearing
must be by declaration or request for judicial notice without testimony .…” (Cal. Rules
of Court, rule 3.1306(a), italics added.) The court may permit testimony on “good cause
shown.” (Ibid.) Here, the court apparently concluded that there was no good cause for
live testimony. By so concluding, the court was necessarily implying that its decision on
the motion would not be affected by whether evidence was presented via live testimony
or declarations. In other words, the court would not make adverse inferences based on
the lack of live testimony. The court’s ultimate ruling comported with these notions.
The court never found that the process server was a fictitious person.9 If it had, then the

       9To rule on the motion, the court only needed to determine whether “service of
the summons … resulted in actual notice” to defendant and whether the “lack of actual
notice … was … caused by” defendant’s “avoidance of service or inexcusable
neglect ….” (§ 473.5, subds. (a) & (c).) The court was not required to resolve whether
Lazarenko was a real person or whether plaintiff forged the proof of service and the
acknowledgment of receipt.


                                              8.
lack of live testimony may have been prejudicial and perhaps a continuance would have
been warranted. Instead, the court simply concluded that defendants’ declarations were
“credible” while the proof of service was “unusual.” In other words, the court found that
defendant lacked actual knowledge of the action without regard to whether Lazarenko
was a real person or not. It made these decisions based on declarations, including
plaintiff’s.
       The purported necessity for live testimony was the only ostensibly valid basis for
plaintiff’s continuance request. Because the court reasonably concluded that there was
no good cause to permit live testimony, it was not an abuse of discretion to also deny the
continuance request.
                                     DISPOSITION
       The order granting defendant’s motion to set aside the default and default
judgment is affirmed. Defendant shall recover his costs on appeal.


                                                                _____________________
                                                                Poochigian, J.
WE CONCUR:


______________________
Levy, Acting P.J.


______________________
Peña, J.




                                            9.
