Filed 11/30/16




                            CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


YUNG-SHEN STEVEN LEE,

    Cross-complainant and Respondent,                G051838

        v.                                           (Super. Ct. No. 30-2009-00271288)

HOWARD RICH,                                         OPINION

    Cross-defendant and Appellant.



                 Appeal from an order of the Superior Court of Orange County,
Corey S. Cramin, Judge. Reversed.
                 Law Offices of Gary P. Kast and Gary P. Kast for Cross-defendant and
Appellant.
                 Oswald & Yap, Fitzgerald Yap Kreditor and Andrew H. Do for
Cross-complainant and Respondent.
                                   INTRODUCTION
              Howard Rich purchased a single-family residence at an execution sale
conducted to satisfy a judgment against Yung-Shen Steven Lee. Rich was a third party
purchaser; the plaintiff and judgment creditor was Spyglass Hill Community Association
(the HOA), which managed the common interest development of which the residence
was a part. After the sale, the trial court granted Lee’s motion to vacate the judgment on
the ground it had been obtained by the HOA through fraud. Soon thereafter, the court
granted Lee’s motion for restitution and cancelled the sheriff’s deed to Rich.
              We reverse the order granting Lee’s motion for restitution and cancellation
of the sheriff’s deed of sale. Code of Civil Procedure section 701.680, subdivision (a)
(section 701.680(a)) unequivocally states that an execution sale is “absolute and shall not
be set aside for any reason.” Because Rich was not the judgment creditor, the remedies
available for Lee, the judgment debtor, are recovery of the proceeds of the sale under
Code of Civil Procedure section 701.680, subdivision (b) (section 701.680(b)), or to seek
equitable redemption. Lee is not, however, entitled to equitable redemption because Rich
was not guilty of unfairness, and did not manipulate the system or take undue advantage,
and the record shows the property was not sold for a grossly inadequate price. The
record demonstrates, to the contrary, that Lee sought to manipulate the system.


               RELEVANT FACTS AND PROCEDURAL HISTORY
              As Rich points out, most of the factual assertions made by Lee in the
respondent’s brief are not supported by citations to the record. California Rules of Court,
rule 8.204(a)(1)(C) states an appellate brief must “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the record where the matter
appears.” (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990 [“The
rule applies wherever a reference to a matter in the record appears in a brief.”].) We

                                             2
decline to consider those passages of the respondent’s brief that do not comply with this
rule. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 195.)
              In 1991, Lee purchased a single-family home in Corona del Mar (the
property). The property is part of a common interest development formed pursuant to the
Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.). The
common interest development is managed by the HOA, which was established pursuant
to a declaration of covenants, conditions, and restrictions.
              In April 2007, Lee ceased paying the HOA assessments. Over the next two
years, the HOA sent Lee notices of delinquency, intent to record a lien, and lien
recordation. There is no dispute that Lee received those notices. As of May 2009, the
amount that Lee owed to the HOA for delinquent assessments, late charges, collection
costs, and attorney fees was $7,955.50.
              In May 2009, the HOA filed a lawsuit against Lee for, among other things,
foreclosure of the assessment lien. Thereafter, attempts were made to serve process on
Lee by notice and acknowledgment, and some 24 attempts at personal service were made
from June 2 through October 26, 2009. In some instances, Lee refused to acknowledge
he was at home and refused to open or answer the door. In November 2009, the HOA
filed an ex parte application for publication of summons, which included a declaration
from a registered process server.
              In June 2010, the HOA obtained, by default, a judgment of foreclosure of
the assessment lien against Lee. The notice of entry of judgment was served on Lee by
mail.
              Lee had a history of avoiding service of process. In an earlier lawsuit
brought by Lee’s neighbors, Powell Thurston and Karen Thurston (the Thurstons), Lee
avoided service and failed to appear in court. In 2005, the Thurstons tried to contact Lee
about a home construction project. The Thurstons attempted to deliver plans to Lee by
hand delivery and certified mail, but were unsuccessful. The Thurstons attempted to

                                              3
deliver the plans to Lee by certified mail to his post office box, but they were always
returned as refused and unopened. Once the HOA approved the construction project and
work started, Lee notified the HOA that he objected. Lee refused to accept the plans if
sent by certified mail and said he would arrange to go to the HOA’s office to view them.
He never did so.
                  Based on the default judgment the HOA had obtained against Lee, a writ of
sale issued in October 2010. In June 2011, a sheriff’s deputy posted a notice of sheriff’s
sale under foreclosure on the front door of the property and outside the Orange County
Sheriff’s Office. The notice advised that the property would be sold at auction to the
highest bidder on July 14, 2011.
                  Rich learned of the sale about three weeks before the scheduled sale date by
obtaining a copy of the notice of sale posted outside of the Orange County Sheriff’s
Office. He and four other bidders attended the sale on July 14. The bidding opened at
the amount of the judgment ($19,578.32) and overbids increased in $5,000 increments.
Bidding continued until Rich made a bid of $210,000. Nobody outbid him, and the
property was sold to him for that amount. Rich immediately paid the required 10 percent
deposit by cashier’s check and paid the balance at the end of the three-month redemption
period. The property was subject to tax liens and other encumbrances totaling $233,500.
                  In November 2011, after the statutory redemption period elapsed with no
action by Lee, Rich received a sheriff’s deed to the property. Rich filed an unlawful
detainer action, but Lee did not respond to attempts at service and the trial court
authorized service by posting on the premises. Lee never objected to service of the
unlawful detainer complaint and never responded to it. Rich obtained an unlawful
detainer judgment by default against Lee, who had vacated the property after destroying
portions of it.




                                                4
              In February 2012, Lee filed a motion to set aside and vacate the default
judgment obtained by the HOA. Lee argued, in essence, that he did not receive actual
notice of the HOA’s lawsuit because summons was never mailed to his post office box
        1
address. The HOA opposed the motion. Lee and the HOA submitted declarations and
evidence to support their respective positions. Rich was not served with the motion.
              On March 8, 2012, the trial court granted Lee’s motion to set aside and
vacate the judgment, ordered the judgment against Lee vacated, and granted him leave to
answer. Lee filed his answer and a cross-complaint against the HOA the next day.
              On March 23, 2012, Lee filed an amended cross-complaint against the
HOA, Rich, and the Orange County Sheriff. The only recovery sought by Lee was
restitution of the amount of the judgment ($19,578.32).
              On March 27, 2012, Lee filed his motion for restitution and to cancel the
sheriff’s deed. The motion sought restitution of $19,578.32 from the HOA and
cancellation of the sheriff’s deed issued to Rich. Rich made his first formal appearance
in the action by opposing Lee’s motion. The HOA also filed opposition to Lee’s motion.
              On April 17, 2012, Rich filed a motion for reconsideration of the order
granting Lee’s motion to set aside and vacate the default judgment. Two days later, the
trial court granted Lee’s motion for restitution and cancellation of the sheriff’s deed of
sale. The court ordered that the sheriff’s deed issued to Rich be cancelled as “void ab
initio” and that restitution be made to Rich. On May 3, 2012, the trial court denied
Rich’s motion for reconsideration as untimely.



 1
    Lee submitted several documents reflecting his post office box address. These
documents were dated and/or mailed between November 2007 and November 2008, and
in 2011. Service on Lee was attempted from June through October 2009, during a gap in
the date of those documents. Service on Lee by mail was attempted in July 2009, and
service addressed to his street address was returned with the stamp “Unable to Forward
[¶] No Forward Order on File.”

                                              5
               On May 7, 2012, Rich filed a “Cross-complaint to Amended
Cross-complaint” asserting a cause of action for quiet title against Lee. Rich’s
cross-complaint alleged, as the basis for title, the sheriff’s certificate of sale of real
property and the sheriff’s deed of sale. Rich contended that under section 701.680(a), his
purchase of the property at the sheriff’s sale was “absolute and may not be set aside for
any reason.”
               Rich appealed from the order denying his motion for reconsideration and
the order granting Lee’s motion for restitution and cancellation of the sheriff’s deed of
sale. We dismissed the appeal for lack of jurisdiction because Rich’s cross-complaint
was pending. (Lee v. Rich (July 19, 2013, G047047) [nonpub. opn.].)
               In 2015, the HOA and Lee entered into a stipulated judgment and Rich
dismissed his cross-complaint without prejudice. Rich then filed another notice of appeal
to challenge the order granting Lee’s motion for restitution and to cancel the sheriff’s
deed.


                                        DISCUSSION
                                                I.

                  Rich Was an Indispensable Party to Lee’s Motion for
                            Relief from Default Judgment.
               Lee filed his motion to set aside and vacate the default judgment in
February 2012, after Rich had purchased the property at the execution sale and after Lee
had been served with Rich’s unlawful detainer action. Lee did not, however, serve Rich
with that motion. Rich argues he was an indispensable party to the motion to set aside
and vacate the default judgment.
               An indispensable party is defined as follows: “A person who is subject to
service of process and whose joinder will not deprive the court of jurisdiction over the
subject matter of the action shall be joined as a party in the action if (1) in his absence


                                                6
complete relief cannot be accorded among those already parties or (2) he claims an
interest relating to the subject of the action and is so situated that the disposition of the
action in his absence may (i) as a practical matter impair or impede his ability to protect
that interest or (ii) leave any of the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed
interest. If he has not been so joined, the court shall order that he be made a party.”
(Code Civ. Proc., § 389, subd. (a).) An indispensable party is not bound by a judgment in
an action in which the indispensable party was not joined and may collaterally attack the
judgment. (Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th
686, 693.)
              Rich was an indispensable party to the motion to set aside and vacate the
default judgment because the potential effect of the motion would be to void Rich’s title.
(Cf. Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th 662, 668 [“When a
party seeks to set aside and vacate a trustee’s sale in a foreclosure proceeding, there can
be no doubt that the parties to the sale transaction are indispensible parties.”].) Rich was
a bona fide third party purchaser of the property at an execution sale. The motion to set
aside and vacate the default judgment impaired and impeded Rich’s ability to protect his
interest in the property purchased. Because Rich was not made a party to that motion, he
could protect his interest only by a motion for reconsideration or by opposing the motion
to cancel the sheriff’s deed. The motion for reconsideration was denied as untimely, and
the issue of proper service on Lee had been resolved before Rich filed opposition to the
motion to cancel the sheriff’s deed.
              Because Rich was an indispensable party to Lee’s motion to set aside and
vacate the default judgment, and Rich was not served with that motion, he is not bound
by the order granting it. As to Rich, therefore, the default judgment was not void.




                                               7
                                             II.

              Under Section 701.680(a) the Sale of the Property to Rich
              Was Absolute and May Not Be Set Aside for Any Reason.
              In 1982, the Legislature enacted the Enforcement of Judgments Law (EJL),
Code of Civil Procedure section 680.010 et seq. Comprehensive in scope, the EJL
addresses, among other things, the procedure for enforcing judgments by writ of
execution. Section 701.680(a), which is part of the EJL, unequivocally states: “Except
as provided in paragraph (1) of subdivision (c), a sale of property pursuant to this article
is absolute and shall not be set aside for any reason.” (Italics added.) If the sale was
improper due to irregularities in the proceedings or because the property was not subject
to execution, then, within 90 days of the sale, the judgment debtor may commence an
action to set aside the sale “if the purchaser at the sale is the judgment creditor.” (Code
Civ. Proc., § 701.680, subd. (c)(1).)
              Section 701.680(b) states: “If the judgment is reversed, vacated, or
otherwise set aside, the judgment debtor may recover from the judgment creditor the
proceeds of a sale pursuant to the judgment with interest at the rate on money judgments
to the extent the proceeds were applied to the satisfaction of the judgment.”
              Few statutory schemes are clearer. “It is immediately apparent from an
examination of the statutory scheme and words used that (1) division 2, chapter 3, of the
EJL is all-encompassing—it deals with procedures for enforcement of judgments by writ
without exception and (2) [Code of Civil Procedure] section 701.680 is crystal clear—it
states that execution sales are absolute and may not be set aside ‘for any reason’ unless
the judgment creditor was the purchaser.” (Gonzalez v. Toews (2003) 111 Cal.App.4th
977, 981 (Gonzalez).)
              Section 701.680(b) does not make an exception for a judgment declared
void: An execution sale is “absolute and shall not be set aside for any reason”



                                              8
(§ 701.680(a)) even if the underlying judgment is vacated, or set aside (§ 701.680(b)),
which would be the case with a void judgment.
              The judgment debtor is not left without a remedy. If the judgment creditor
was the purchaser of the property, then the judgment debtor may proceed under Code of
Civil Procedure section 701.680, subdivision (c)(1). The judgment debtor may
commence an action to set aside the sale only if the sale (not the underlying judgment)
was improper and only if the purchaser at the sale was the judgment creditor. Rich was
not the judgment creditor.
              The EJL “marked a change in California law.” (Lang v. Roché (2011) 201
Cal.App.4th 254, 260 (Lang). Before enactment of the EJL, the judgment debtor, after
reversal of the underlying judgment on appeal, could have an execution sale set aside and
be restored to possession if the plaintiff/judgment creditor was the purchaser. (Lang,
supra, at p. 260.) “One of the purposes of the EJL was to repeal the statutory right to
redeem property sold at execution sales. [Citations.] The comprehensive revision of the
EJL ‘completely eliminated the possibility that judicial sales be set aside on reversal of
the underlying judgment regardless of the identity of the purchaser.’ [Citation.] Because
the EJL offers remedies in the event that the judgment is reversed, vacated, or otherwise
set aside, ‘it is apparent that the Legislature has determined that judicial sales of real
property may not be set aside on the basis that the underlying judgment ordering the sale
has been reversed.’ [Citation.]” (Id. at pp. 260-261.)
              Even though the judgment against Lee was vacated, the execution sale of
the property to Rich is “absolute and shall not be set aside for any reason” under
section 701.680(a). Code of Civil Procedure section 701.680, subdivision (c)(1) did not
permit Lee to seek to set aside the sale, even assuming irregularities in the sale
proceedings, because Rich was not the judgment creditor. (Amalgamated Bank v.
Superior Court (2007) 149 Cal.App.4th 1003, 1018 [“By statute, only the judgment



                                               9
debtor can set aside the sale for irregularity and only where the purchaser was the
judgment creditor.”].)
              Lee does not argue that section 701.680(a) is unconstitutional on its face or
that it would be unconstitutional if applied to uphold the execution sale of the property to
Rich. The word “unconstitutional” does not appear in Lee’s respondent’s brief. Lee
contends, based on the language of section 701.680(a), that the trial court did not err by
ordering the sheriff’s deed cancelled.


                                            III.
                 Lee Does Not Have a Right of Equitable Redemption.
              Relying on Lang, supra, 201 Cal.App.4th 254, Lee argues he could redeem
the property because the HOA obtained the default judgment by extrinsic fraud. We note
that in the respondent’s brief Lee did not supply citations to the record to support his
claim of extrinsic fraud, except in support of the assertion that, “[Sarah] Reed [(the
HOA’s attorney)] did not exhibit the result of that on-line search until she was forced to
disclose years later after the fact in her declaration dated February 24, 2012.” The record
citation provided is to a printout of the online records search. Thus, Lee had not shown
extrinsic fraud in obtaining the default judgment.
              “Equitable redemption is the right of a judgment debtor to redeem property
that was sold at an execution sale for a ‘grossly inadequate price’ where the purchaser is
guilty of unfairness or has taken undue advantage.” (Gonzalez, supra, 111 Cal.App.4th at
p. 982.) Pre-EJL cases applying equitable redemption did so when the judgment creditor
was the purchaser of the property sold by execution sale. (Odell v. Cox (1907) 151 Cal.
70 [judgment creditor was only bidder at execution sale]; Smith v. Kessler (1974) 43
Cal.App.3d 26 [judgment creditor purchased real property at execution sale for grossly
inadequate price].) Because the doctrine of equitable redemption “is rooted in case law
predating the EJL,” the Gonzalez court stated, “[w]e question whether equitable

                                             10
redemption has survived post-EJL, at least concerning third party purchasers.”
(Gonzalez, supra, at pp. 982-983.)
              In Lang, supra, 201 Cal.App.4th 254, the Court of Appeal held that a form
of equitable redemption did survive the EJL but, as we shall explain, only when the
judgment creditor purchased the property after obtaining the underlying judgment by
fraud. The facts of Lang bear this out. Erik E. Lang and Warren W. Roché were hostile
and litigious neighbors. (Lang, supra, at p. 257.) Roché sued Lang for defamation and
fraudulently obtained an order permitting service of process by publication. (Id. at
pp. 257-258.) After service of process by publication, Roché secured a default judgment
of $50,000 against Lang and obtained a writ of execution against Lang’s real property.
(Id. at p. 258.) Lang learned of the default judgment but was unable to stop the sale, at
which Roché purchased the property for only $100. (Ibid.) Lang was able to have the
default judgment vacated, successfully moved for dismissal of Roché’s lawsuit, and
brought his own lawsuit to set aside the sale and quiet title to the property. (Id. at
pp. 258-259.) The trial court sustained Roché’s demurrer to Lang’s lawsuit on the
ground it was not brought within the 90-day period for setting aside an execution sale
prescribed by Code of Civil Procedure section 701.680, subdivision (c)(1). (Lang, supra,
at p. 259.)
              Reversing, the Court of Appeal concluded that equitable redemption
survived enactment of the EJL. (Lang, supra, 201 Cal.App.4th at pp. 262-264.) The
court relied upon a report on the EJL by the California Law Revision Commission, which
stated that elimination of the statutory redemption right “‘would not affect the equitable
right of a judgment debtor to redeem from a sale at a grossly inadequate price where the
purchaser is guilty of unfairness or has taken undue advantage.’” (Lang, supra, at
p. 262.) Based on the report, the Lang court found that “[t]he [California Law Revision]
Commission report makes clear that equitable redemption survives the enactment of the
EJL.” (Id. at p. 264.)

                                              11
               The Lang court reasoned that the EJL “presumes” the judgment debtor was
properly served with summons and complaint, and “[a] person who was never served
with the summons and complaint, and is ignorant of the proceedings, resulting in a
judgment that is void ab initio for lack of personal jurisdiction, is not a ‘judgment
debtor,’ because there is no enforceable judgment.” (Lang, supra, 201 Cal.App.4th at
p. 264.) Thus, the court stated: “We believe that the ‘absolute’ bar to redemption in
[Code of Civil Procedure] section 701.680 of the EJL does not apply to execution on a
judgment that is void ab initio for lack of personal jurisdiction over the defendant. In
such cases, courts must be able to apply principles of equity. A citizen who was never
served with a lawsuit—and was thereby deprived of notice and an opportunity to
defend—may not lose his or her property permanently at an invalid execution sale based
on a void judgment. Though the word ‘absolute’ seems to brook no exceptions, we
cannot apply a statute as written when it ‘leads to an absurd result contrary to the
legislative intent.’” (Ibid.)
               The Lang court also concluded Lang had a right to equitable redemption
because Roché obtained the default judgment by extrinsic fraud committed in connection
with the application for service by publication and purchased Lang’s property at the
execution sale “for the grossly inadequate price of $100.” (Lang, supra, 201 Cal.App.4th
at pp. 265, 266.) The court stated in conclusion: “There can be no doubt that a terrible
miscarriage of justice occurred in this case. If ever a case demanded application of the
legal maxim ‘No one can take advantage of his own wrong,’ this would be the case.
[Citation.] Simply put, Roché misused our state court system to seize his neighbor’s
land. As a matter of law, Roché has no defense to this lawsuit, the underlying facts of
which are res judicata due to the prior litigation leading up to this appeal.” (Id. at p. 266.)
               To the extent Lang holds the EJL does not apply to any judgment deemed
void, it is contrary to the Legislature’s plain intent expressed in section 701.680(a) and
section 701.680(b). “[T]he Legislature has provided that upon payment of the purchase

                                              12
price, a sheriff’s sale to a third party is absolute, subject only to the right of redemption,
and may not be set aside.” (Amalgamated Bank v. Superior Court, supra, 149
Cal.App.4th at p. 1018.) When, as is the case here, a judgment is reversed, vacated, or
set aside, section 701.680(b) limits the judgment debtor’s remedy to an action against the
judgment creditor. The Legislature has considered and balanced the rights of judgment
debtors and third party purchasers and has decided the rights of third party purchasers are
absolute.
              As Lang explained, equitable redemption survived enactment of the EJL.
Code of Civil Procedure section 701.680, subdivision (e) states: “This section does not
affect, limit, or eliminate a judgment debtor’s equitable right of redemption.” In Lang,
Roché obtained the default judgment by fraud and purchased the property at the sheriff’s
sale for an inadequate price. Here, Rich did not secure the default judgment, he is not the
judgment creditor, and he did not manipulate the legal system to buy the property at the
sheriff’s sale. The purchase price of $210,000 bid by Rich was not grossly inadequate
such as the $100 price found inadequate in Lang. Because the property was subject to tax
liens and other encumbrances totaling $233,500, Rich in effect paid $433,500 for the
property. The equities favor Rich, not Lee.
              Rich did nothing fraudulent or oppressive to purchase the property. He
learned of the sheriff’s sale several weeks before the scheduled date by obtaining a copy
of the notice of sale posted outside of the Orange County Sheriff’s Office. There is no
evidence he was connected with the HOA in any way or knew how the judgment was
obtained. Five bidders, including Rich, appeared at the sale and engaged in competitive
bidding. Unlike Roché, Rich did not take advantage of his own wrong; he was not
“guilty of unfairness” and had not “taken undue advantage” (Lang, supra, 201
Cal.App.4th at p. 262, italics omitted.) The record shows, to the contrary, that Lee
manipulated the system, avoided service, knew of the default judgment and foreclosure



                                              13
sale, avoided service of Rich’s unlawful detainer complaint, and damaged the property
before vacating it.
                                     DISPOSITION
              The order granting Lee’s motion for restitution and cancellation of the
sheriff’s deed of sale is reversed. Appellant shall recover costs incurred on appeal.




                                                 FYBEL, J.

I CONCUR:



MOORE, ACTING P. J.




                                            14
THOMPSON, J., Dissenting—I respectfully dissent. “Citizens may not be dispossessed
of their property by a ‘creditor’ executing on a judgment that is void ab initio for lack of
personal jurisdiction. Deploying a void judgment to seize the property of someone who
was never served with the lawsuit violates the constitutional guarantee that no person
shall be deprived of property without due process of law.” (Lang v. Roché (2011) 201
Cal.App.4th 254, 257 (Lang).) Therefore, the challenged order must be affirmed.
               The trial court found the default judgment was void ab initio for lack of
fundamental, personal jurisdiction over Lee, because the HOA obtained it by extrinsic
fraud in the HOA’s application for an order for service by publication. (See Carr v.
Kamins (2007) 151 Cal.App.4th 929, 933 (Carr).) “Accordingly, [Lee’s] failure to file
an answer to the improperly served complaint did not represent a default. It was error to
enter default and beyond the power of the court to do so. The trial court had a legal duty,
not merely discretionary power, to vacate the default it had erroneously entered.”
(Transamerica Title Ins. Co v. Hendrix (1995) 34 Cal.App.4th 740, 746.)
               What’s more, “All actions taken pursuant to the void judgment—including
the writ of execution and the execution sale—had no legal force or effect.” (Lang, supra,
201 Cal.App.4th at p. 265; citing Carr, supra, 151 Cal.App.4th at p. 933. [“An order after
judgment that gives effect to a judgment that is void on its face is itself void . . . .”].)
Stated differently, there was no judgment for the HOA to execute upon, and the sheriff’s
deed purporting to transfer title to Rich based upon a nonexistent judgment was a legal
nullity. It follows, the trial court also had a legal duty to vacate the default judgment it
had erroneously entered, and to cancel the sheriff’s deed. (Ibid.; Civ. Code, § 3412.)
               Under these circumstances the EJL (Code Civ. Proc. § 680.010 et seq.)
does not apply. “The EJL refers to a ‘judgment creditor’ and a ‘judgment debtor’—
meaning a plaintiff who legitimately won a judgment and a defendant who knowingly
lost a case. The statutory scheme presumes that the judgment debtor whose property is
sold at an execution sale was properly served with the summons and complaint;

                                                1
participated in the litigation or knowingly defaulted by failing to answer or appear; and
was aware of the adverse judgment. A person who was never served with the summons
and complaint, and is ignorant of the proceedings, resulting in a judgment that is void ab
initio for lack of personal jurisdiction, is not a ‘judgment debtor,’ because there is no
enforceable judgment. Likewise, a plaintiff who executes on a judgment obtained by
nefarious means, in violation of federal and state due process guarantees, cannot properly
be termed a ‘judgment creditor.’” (Lang, supra, 201 Cal.App.4th at p. 264.)
              Even if the EJL did apply, it could not trump the constitutional guarantees
that no state may “deprive any person of life, liberty, or property, without due process of
law.” (U.S. Const., 14th Amend.; Cal. Const., art. 1, § 7, subd. (a).) “The California
Constitution is ‘the supreme law of our state’ [citation], subject only to the supremacy of
the United States Constitution. (Cal. Const., art. III, § 1.)” (California Logistics, Inc. v.
State of California (2008) 161 Cal.App.4th 242, 250.) It is axiomatic the EJL, including
Code of Civil Procedure section 701.680, can only be applied in a manner which is
consistent with the California and United States Constitutions.
              The majority’s notion the default judgment was void as to the HOA but not
void as to Rich is legally and factually unsupported and unsupportable. The default
judgment was void as to all parties—including Rich—because the trial court had no
jurisdiction to issue it in the first instance. It makes no difference that Rich was not
served with Lee’s motion to set aside and vacate the default and default judgment. Rich
never acquired title to the property because the sheriff’s deed was a legal nullity. Thus
Rich had no interest in the property to protect. And in any event the trial court was
required to vacate the default and default judgment it had erroneously entered.




                                                   THOMPSON, J.


                                              2
