Filed 4/22/15 Pryor v. Lyric Avenue Partnership 1 CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


DANNY WAYNE PRYOR,                                                    B249523

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. NC057005)
         v.

LYRIC AVENUE PARTNERSHIP 1,
LLC, et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michele E. Flurer, Judge. Affirmed in part, dismissed in part.
         Danny Wayne Pryor, in pro. per.
         Wolf, Rifkin, Shapiro, Schulman & Rabkin, Simon Aron, and Elsa Horowitz
for Defendants and Respondents Lyric Avenue Partnership 1, and William
Schumer.
         Narvid Scott and Robert Peter Weiss for Defendant and Respondent Barry
Judis.
         Eberhardt & Villanueva, Chad A. Eberhardt, and J. Nigel Villanueva for
Defendants and Respondents Dorothy Smead and Steven Smead.
                                  ________________________________
                                 INTRODUCTION
      Appellant Danny Wayne Pryor is before us for a second time. In the prior
case, we affirmed a judgment in favor of respondent Berto Matta on appellant’s
complaint against Matta. The 11 causes of action in that complaint arose from the
foreclosure on 18 lots of real property in the City of Lancaster (the Lancaster
Action). Multiple defendants were named, but all had been dismissed except
Matta. (See Pryor v. Matta (October 22, 2013, B244149) [nonpub. opn.].) In the
instant matter, appellant filed a complaint alleging 11 causes of action against
Matta, Sonia Suria, and respondents Lyric Avenue Partnership 1, LLC (Lyric),
William Schumer, Barry Judis, Dorothy Smead and Steven Smead, arising out of
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the foreclosure on 18 lots of real property located in Lancaster. Appellant
obtained a clerk’s entry of default against the named defendants, but following a
noticed motion to set aside the defaults, the trial court vacated the defaults. The
trial court also granted respondents’ motion to dismiss and sustained demurrers to
appellant’s complaint on the grounds that the claims were barred by res judicata
and by the applicable statutes of limitations. A judgment dismissing with prejudice
appellant’s claims against Lyric, Schumer, and Judis was entered March 7, 2013.
The trial court also denied appellant’s motion for a new trial and his motion to
vacate the orders setting aside the defaults. Appellant contends the trial court erred
in setting aside the defaults because respondents failed to comply with the statutory
requirements for seeking relief from a default. In his reply brief, appellant also
argues that his claims were not barred by the applicable statutes of limitations
because the running of the limitations period was tolled by his June 2009


1
       Although Sonia Suria is listed as “Suria Sonia” in the caption page, the body
of the complaint and other documents in the record establish that her name is Sonia
Suria.

                                          2
bankruptcy filing. For the reasons stated below, we affirm in part and dismiss in
part.
           FACTUAL BACKGROUND & PROCEDURAL HISTORY
        On January 4, 2012, appellant filed the underlying complaint. The caption
page listed the following defendants: Lyric, Schumer, Judis, Matta, Suria Sonia
[sic], Dorothy Smead, and Steve [sic] Smead. In the body of the complaint, the
following “Parties” were listed as Defendants: Schumer, Judis, Matta, Sonia Suria,
and B-Squared, Inc. doing business as All California Funding (ACF). The
complaint also alleged that ACF was “a mere shell through which all other
Defendants conduct business.” Although not listed under “Parties,” Lyric was
mentioned in the eighth and ninth causes of action. The Smeads were never
mentioned in the body of the complaint.
        On May 25, 2012, appellant moved for entry of default against respondents.
In support of his applications for entry of default, appellant attached proofs of
service. The proof of service for Judis showed that the summons and complaint
were not personally served on him, but on “LAW FIRM SIMON ARON,”
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purportedly the attorney of record for Judis. Similarly, the proofs of service for
Lyric and Schumer showed that the summons and complaint were served on the
same law firm. The defaults were entered June 22, 2012.
        On July 6, 2012, Lyric and Schumer made special appearances and filed an
ex parte application, pursuant to Code of Civil Procedure section 473.5, to set aside
                                                  3
and vacate the defaults entered against them. In the application, they asserted they

2
     The record subsequently established that Judis was never represented by
Simon Aron or his law firm.
3
      All further statutory citations are to the Code of Civil Procedure, unless
otherwise stated.

                                          3
were never properly served with the summons and complaint. Thus, they argued,
the trial court lacked jurisdiction over them. In support, Lyric and Schumer
attached a declaration from their attorney, Elsa Horowitz. Horowitz stated she
specifically told appellant that neither she, nor Simon Aron, Esquire, nor anyone
else at the law firm of Wolf, Rifkin, Shapiro Schulman & Rabkin LLP (Wolf,
Rifkin), was authorized to accept service of process on behalf of anyone in this
action.
      Concurrently, B-Squared, Lyric, and Schumer filed a motion to dismiss and
demurred to the complaint. They argued that the trial court lacked jurisdiction, and
that appellant’s claims were barred by res judicata and the applicable statutes of
limitations. In their motion, respondents asserted that appellant had filed the same
claims against them on multiple occasions, including in the Lancaster Action, and
that these claims previously had been adjudicated in their favor. They further
argued that the claims were barred by a bankruptcy court order declaring appellant
a vexatious litigant and prohibiting him from suing B-Squared and all related
parties in other proceedings. Finally, respondents noted that the claims were
barred by the applicable statutes of limitations, as the complaint alleged that the
last wrongful act occurred on January 13, 2006, but the complaint was not filed
until January 4, 2012, well beyond any applicable limitations period.
      On July 6, 2012, the trial court denied the ex parte application to set aside
the defaults, but deemed the application to be a noticed motion seeking the same
relief. It set the hearing on the motion for September 5, 2012. The court set the
hearing on respondents’ motion to dismiss and demurrer to appellant’s complaint
for October 17, 2012.
      On August 20, 2012, appellant filed an opposition to the motions. He
argued that service on the “office manager”/receptionist Elaine Somber was


                                          4
effective under section 415.20 as substitute service on Lyric and Schumer. He
further argued that respondents’ motion to set aside the defaults pursuant to section
473.5 was improper, as (1) they failed to file a proposed answer or other pleading
with their motion, (2) they failed to file the motion within six months, and (3) they
failed to show excusable neglect. Finally, he argued that the bankruptcy order was
not applicable, as it provided no defense against the fraud claims he was alleging.
In an accompanying declaration, appellant also argued that the demurrer should be
overruled because, he claimed, none of the causes of action in the instant complaint
had ever been litigated in any court of law.
      On September 5, 2012, the trial court held a hearing on the motion to set
aside the defaults. Attorneys for Lyric, Schumer, and Judis specially appeared, and
appellant appeared in propria persona. Following argument, the court granted the
motion to set aside the defaults of Lyric and Schumer, finding that service of the
law firm was not sufficient to constitute service on Lyric and Schumer, as the law
firm was not authorized to accept service. The court further ruled that it would
review all of the proofs of services and defaults entered in the matter to determine
whether those defaults should also be set aside. On September 25, 2012, the trial
court vacated the defaults entered as to Judis, Matta, Suria, and Dorothy Smead on
the basis of improper service.
      On October 19, 2012, the trial court granted the motion to dismiss filed by
B-Squared, Lyric, and Schumer. As a preliminary matter, the court found that
although B-Squared was not named in the caption as a defendant, the allegations in
the complaint clearly identified it as a defendant. The court determined that
appellant’s claims against B-Squared and related parties were barred by the
bankruptcy court order. It further found that appellant had filed identical claims
against the parties in several other actions, including the Lancaster Action, and that


                                          5
appellant’s attempts to “relitigate these same claims regarding the subject property
and the subject loans” were barred by the doctrine of res judicata. Finally, the
court held that the claims also were barred by the applicable statutes of limitations.
The court dismissed the claims against B-Squared, Lyric, Schumer and Judis with
prejudice. The claims against Matta also were dismissed. The court permitted
appellant 20 days to amend the operative complaint to assert any claims he might
have against Suria and the Smeads. The judgment dismissing B-Squared, Lyric,
Schumer, Judis, and Matta was entered March 7, 2013.
      The docket sheet does not reflect that appellant filed an amended complaint.
However, it shows that appellant filed new proofs of service for the Smeads. On
January 8, 2013, the Smeads demurred to appellant’s complaint. On March 13,
2013, the trial court vacated Steven Smead’s default and sustained the Smeads’
demurrer with leave to amend. The court ruled that the complaint stated no cause
of action against the Smeads, noting that appellant did not mention the Smeads
anywhere in the complaint. The court further determined that the complaint failed
to establish venue and jurisdiction over Suria. The court also stated that all of
appellant’s claims appeared to be barred by res judicata, and ordered that appellant
“distinguish the claims in this complaint from those previously alleged by Plaintiff
in his various actions or be precluded from asserting them.” Appellant was granted
20 days to file an amended complaint.
      On April 18, 2013, appellant filed a “Motion for a New Trial,” arguing that
the trial court exceeded its authority in vacating the defaults. The docket sheet also
reflects that on April 24, 2013, appellant filed a motion to vacate the prior orders
setting aside the defaults, sustaining the demurrers and dismissing “certain
defendants.” This motion is not in the record on appeal. A transcript of the
hearing on both motions, however, is in the record. With respect to the motion to


                                          6
vacate the prior orders setting aside the defaults, appellant’s attorney argued that
the trial court erred in vacating the default of Steven Smead on its own motion.
Following argument, the trial court denied both motions. With respect to the new
trial motion, the court found no basis for bringing such a motion, as there had been
no trial. As for the motion to vacate prior orders, the court noted that it vacated the
default against Steven Smead because appellant failed to identify any actual
controversy between the Smeads and appellant.
      On June 13, 2013, appellant noticed an appeal from the dismissal with
prejudice of his claims against “certain defendants” and from the denial of his new
trial motion.
                                   DISCUSSION
      A.        Dorothy Smead, Steven Smead, and Sonia Suria
      With respect to the Smeads and Suria, appellant has not identified an
appealable judgment or order. In his notice of appeal, appellant referenced the
March 7, 2013 judgment dismissing B-Squared, Lyric, Schumer, Judis, and Matta,
but that judgment was not applicable to the Smeads or to Suria. Appellant also
referenced the trial court’s order denying his motion for a new trial, but that order
is nonappealable. (Code Civ. Proc., § 904.1; Walker v. Los Angeles County
Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18 [“An order
denying a motion for new trial is nonappealable”].) To the extent appellant
purports to appeal from the trial court’s orders setting aside the defaults of the
Smeads and Suria, those orders are not appealable, as no default judgment was
entered against them. (See Veliscescu v. Pauna (1991) 231 Cal.App.3d 1521, 1522
[“no appeal lies from an order granting a motion to vacate a default upon which no
default judgment has been entered”].) Similarly, an order sustaining a demurrer
with leave to amend is not appealable. (See Singhania v. Uttarwar (2006)


                                           7
136 Cal.App.4th 416, 425 [“An appeal does not lie from an order sustaining a
demurrer without leave to amend [citations], from an order sustaining a demurrer
with leave to amend [citation], or from an order granting a motion for judgment on
the pleadings [citation]”].) The appeal must be taken from the final judgment in
the action. (Ibid.) Therefore, appellant’s purported appeals with respect to the
Smeads and Suria must be dismissed.
      B.     B-Squared, Lyric, Schumer, Judis, and Matta
      We turn to the appeal from the March 7, 2013 judgment dismissing
appellant’s claims against B-Squared, Lyric, Schumer, Judis, and Matta.
Preliminarily, we note that, as with his prior appeal, appellant’s opening brief
violates rule 8.204 of the California Rules of Court by failing to concisely and
clearly explain the factual and procedural background of the case. (See Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [self-represented party must follow
rules of appellate procedure].) Likewise, the record on appeal is incomplete. For
example, the only reporter’s transcript is of the hearing on appellant’s motion for a
new trial and on his motion to vacate the court’s prior order setting aside the
defaults. No reporter’s transcript was produced for the earlier hearings.
Accordingly, our consideration of the issues on appeal is greatly hampered,
especially in light of the standard of appellate review.
      On appeal, the judgment of the trial court is presumed to be correct, and
appellant has the burden of demonstrating reversible error by an adequate record.
(Ballard v. Uribe (1986) 41 Cal.3d 564, 574; accord, Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; Fladeboe v. American Isuzu Motors, Inc. (2007)
150 Cal.App.4th 42, 58.) Moreover, any issue not adequately raised or supported
is deemed forfeited. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6;
accord, Diamond Springs Lime Co. v. American River Constructors (1971)


                                           8
16 Cal.App.3d 581, 608; see also Del Real v. City of Riverside (2002)
95 Cal.App.4th 761, 768 [“The appellate court is not required to search the record
on its own seeking error”].)
      Here, appellant has not challenged the dismissal of Matta from the case. He
presented no arguments in his appellate briefs that the trial court erred in
dismissing Matta. Accordingly, he has forfeited any issues with respect to Matta.
      Appellant contends the trial court improperly vacated the defaults as to
Lyric, Schumer, and Judis. He argues that their motion to set aside and vacate
their defaults was procedurally flawed because the motion failed to comply with
the requirements set forth in section 473, subdivision (b). We conclude that
respondents’ motion to set aside the defaults was made under section 473.5, and
                                4
that it was procedurally proper.
      The Code of Civil Procedure authorizes a trial court to vacate and set aside
an order entering default under several provisions. The provision under which
respondents moved is section 473.5, which provides:
      “(a) When service of a summons has not resulted in actual notice to a party
      in time to defend the action and a default or default judgment has been
      entered against him or her in the action, he or she may serve and file a notice
      of motion to set aside the default or default judgment and for leave to defend
      the action. The notice of motion shall be served and filed within a reasonable
      time, but in no event exceeding the earlier of: (i) two years after entry of a

4
       We also reject appellant’s claim that Judis did not move to set aside and
vacate his default. Appellant has not met his burden of demonstrating error. Judis
asserted that he joined in the motion to vacate and set aside the defaults brought by
Lyric and Schumer, and appellant has not shown otherwise. Indeed, the limited
record establishes that Judis appeared telephonically at the hearing on the motion
to set aside and vacate the defaults, and that the trial court subsequently set aside
and vacated Judis’s default. That ruling was amply supported by uncontradicted
evidence that Judis was never represented by the attorney on whom appellant
purportedly served the summons and complaint.

                                           9
      default judgment against him or her; or (ii) 180 days after service on him or
      her of a written notice that the default or default judgment has been entered.

      “(b) A notice of motion to set aside a default or default judgment and for
      leave to defend the action shall designate as the time for making the motion
      a date prescribed by subdivision (b) of Section 1005, and it shall be
      accompanied by an affidavit showing under oath that the party’s lack of
      actual notice in time to defend the action was not caused by his or her
      avoidance of service or inexcusable neglect.”

      Respondents’ motion to set aside their defaults pursuant to section 473.5
complied with the requirements of that statute. The motion was timely (brought
two weeks after the defaults were entered), and was accompanied by an affidavit
under oath showing that the lack of actual notice in time to defend the action was
not caused by avoidance of service or inexcusable neglect (Horowitz’s
declaration). (Cf. Kallman v. Henderson (1965) 234 Cal.App.2d 91, 98 [sworn
affidavit that defendant was never served and never authorized another person to
accept service constitutes substantial evidence to support a determination that a
default judgment is void].) Although the motion initially was filed and served as
an ex parte application, the court treated it as a noticed motion and gave appellant
an opportunity to respond. Thus, respondents’ motion to set aside and vacate the
                                  5
defaults was procedurally proper.
      Aside from arguing that the motion was procedurally flawed, appellant
presents no other reasoned argument that the trial court abused its discretion in

5
      Appellant’s argument that respondents failed to comply with the
requirements of section 473, subdivision (b) is both inaccurate and irrelevant.
Respondents’ motion was brought within two weeks of the entry of default, and a
proposed pleading -- the motion to dismiss and quash service -- was attached to the
application for relief. More important, as noted, respondents did not move under
section 473, subdivision (b), but under section 473.5.


                                         10
vacating and setting aside the defaults. Accordingly, he has forfeited any
challenge to those orders. (Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.)
        Likewise, appellant has not met his burden of showing that the trial court
erred in dismissing with prejudice his claims against B-Squared, Lyric, Schumer
and Judis. The court determined that appellant’s claims were barred by the
doctrine of res judicata, as he had brought identical claims against the same
defendants in prior actions and those claims were resolved adversely to him.
Appellant presents no reasoned argument that the trial court’s determination was
erroneous. Accordingly, he has forfeited any challenge to the trial court’s order
and judgment of dismissal. (Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466,
       6 7
fn. 6.) ,




6
      Appellant argues that the trial court erred in dismissing B-Squared, as no
causes of action were asserted against B-Squared in his complaint. In fact, B-
Squared was named as a defendant in the body of appellant’s complaint.
Moreover, were appellant correct, any error would be harmless. Accordingly, we
find no error in the trial court’s order dismissing appellant’s claims against B-
Squared.
7
       Because we conclude that the judgment of dismissal may be sustained on the
basis of res judicata, we need not determine whether the judgment may be
sustained on any other basis.

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                                DISPOSITION
      The purported appeal as to Dorothy Smead, Steven Smead, and Sonia Suira
is dismissed. The judgment dismissing the remaining defendants is affirmed.
Respondents are awarded their costs.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                                 MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




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