Filed 6/22/15 Robinson & Wisbaum v. Smith CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


ROBINSON & WISBAUM, INC.,

     Plaintiff and Respondent,                                         G049562

         v.                                                            (Super. Ct. No. 30-2010-00430534)

KIMBERLY S. SMITH,                                                     OPINION

     Defendant and Appellant.



                   Appeal from a judgment and order of the Superior Court of Orange County,
Kirk H. Nakamura, Judge. Affirmed.
                   David M. Leeper for Defendant and Appellant.
                   Aires Law Firm, Timothy Carl Aires and Justin G. Morong Plaintiff and
Respondent.
                                         INTRODUCTION
               Kimberly Smith appeals from a judgment in favor of the respondent law
firm of Robinson & Wisbaum after a default judgment was entered against her on the law
firm’s complaint for unpaid attorney fees. Although there were some procedural
irregularities along the way, which might have persuaded a judge to set aside the default
or the judgment, Smith delayed her request for relief for over two years. As a result, the
grounds for setting aside the default judgment have considerably diminished. It can now
be set aside only if it is void. It is not. We therefore affirm it.
                                                 FACTS
               The law firm filed a suit against Smith for unpaid legal fees on December
6, 2010. The complaint stated causes of action for breach of contract and three common
counts: services rendered, money owed, and open book account. The complaint prayed
for $57,682 in damages. Smith was personally served with the summons and complaint
on December 15 at an address in Torrance. Smith did not answer, and the law firm filed
a request to enter default on January 11, 2011. The proof of mail service attached to the
request had the correct street address, but the wrong city – Long Beach instead of
           1
Torrance. The law firm filed a request for entry of a clerk’s judgment on January 26,
2011, but the request was defective: the space for the defendant’s name was left blank.
               Evidently the clerk did not enter a default judgment against Smith, because
the next docket entry is a case management conference, scheduled for May 2011. The
law firm filed a case management conference statement, this time serving it on Smith at
the address in Torrance reflected in the original proof of service. The minute order issued
at the May conference stated, “Defendant is making payments to plaintiff.” The case
management conference was continued to August. Smith personally appeared at the
August conference, which was continued again to September.


       1
               The zip code, however, was the one for the Torrance address.


                                                     2
                  On August 24, 2011, the law firm dismissed the common counts for
services rendered and money owed. It filed another request to enter a clerk’s default
judgment, this time with the right address and Smith’s name included in the correct spot.
It served the request for judgment on Smith at the Torrance address. The clerk entered a
default judgment for $57,682 in damages, $4,076 in interest, and $485 in costs, for a total
of $62,244, on August 24. The law firm waived attorney fees.
                  Smith filed a motion to vacate the default and the default judgment on
                                                                                       2
October 3, 2013, more than two years after entry of the judgment. The motion was
denied.
                                                 DISCUSSION
                                                   3
                  Code of Civil Procedure section 585 provides in pertinent part: “Judgment
may be had, if the defendant fails to answer the complaint, as follows: [¶] (a) In an action
arising upon contract or judgment for the recovery of money or damages only, if the
defendant has . . . been served, other than by publication, and no answer . . . has been
filed with the clerk of the court within the time specified in the summons . . ., the clerk,
upon written application of the plaintiff, and proof of the service of summons, shall enter
the default of the defendant . . . so served, and immediately thereafter enter judgment for
the principal amount demanded in the complaint. . . , or a lesser amount if credit has been
acknowledged, together with interest allowed by law or in accordance with the terms of
                                                                       4
the contract, and the costs against the defendant . . . .”


         2
                   In the intervening years, the law firm had unsuccessfully tried to pull off a writ of execution and
judgment debtor examination.
          3
                   All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
          4
                   California Rules of Court, rule 3.110 requires a party to file a request to enter default within 10
days after the time to respond has elapsed, if no response has been served, and to obtain a default judgment within
45 days of the entry of default. The rule also provides for an order to show cause re sanctions to be issued for failure
to observe these time limits. “The provision that the clerk must enter the judgment ‘immediately’ after entering
default is merely directory. His failure to do so may renter him liable to an action by the judgment creditor, but does
not render void the judgment subsequently entered upon such default, nor can the defendant against whom the
judgment is entered invoke such failure for the purposes of annulling a judgment to which he has no other defense.”
(Edwards v. Hellings (1894) 103 Cal. 204, 207.)


                                                           3
              Section 473, subdivision (b) provides in pertinent part: “The court may,
upon any terms as may be just, relieve a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her through his or
her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . .
shall be made within a reasonable time, in no case exceeding six months, after the
judgment, dismissal, order, or proceeding was taken. . . . No affidavit or declaration of
merits shall be required of the moving party.” (Italics added.)
              Smith did not bring her motion to set aside the default judgment within six
months after it was entered. She is not entitled to relief under the statute. “Once six
months have elapsed since the entry of a judgment, ‘a trial court may grant a motion to
set aside that judgment as void only if the judgment is void on its face.’ [Citation.]”
(Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.)
              The court may set aside a void judgment under section 473, subdivision (d).
The court may also employ its equitable authority to set aside a judgment procured by
extrinsic fraud or mistake. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982; In re
Margarita D. (1999) 72 Cal.App.4th 1288, 1294-1295.) Whether a judgment is void is
reviewed de novo. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th
132, 146.)
              Smith makes several arguments on appeal as to why the default judgment is
void. She argues that the default did not qualify for a clerk’s judgment because it did not
meet the requirements of section 585 subdivision (a). She further argues that the mistake
about the address on the request for entry of default renders the judgment void. She
asserts that minute orders entered after the various case management conferences render
the judgment void and that prejudgment interest was improperly added to the judgment.
Finally, she challenges the entry of default and the default judgment on the ground her
mental incapacity renders them both void.



                                              4
I.                Entry of Clerk’s Judgment
                  Smith argues that the clerk did not have the power to enter a judgment
because the amount owing required computation. A default judgment entered by the
clerk is void if the amount cannot be ascertained from the complaint, without any
accounting or exercise of discretion. (Lynch v. Bencini (1941) 17 Cal.2d 521, 525.)
                                                                                                              5
                  A clerk may enter a default judgment based on an open book account.
(Liberty Loan Corp. of North Park v. Petersen (1972) 24 Cal.App.3d 915, 918 (Liberty
Loan).) Even if only one cause of action supports a clerk’s judgment, the judgment is
properly entered on that cause of action. (Ibid.)
                  One of the causes of action of the law firm’s complaint was based on a
book account in the express amount of $57,682.76. It was within the clerk’s power under
section 585, subdivision (a), to enter judgment on that cause of action. The requirement
that the clerk plaintiff attach a copy of the contract applies to negotiable instruments, not
to simple contracts. (HSBC Bank Nevada, N.A. v. Aguilar (2012)205 Cal.App.4th Supp.
6, 10; see Cal. Rules of Court, rule 3.1806.)
                  Smith’s reliance on Brown v. Superior Court (1966) 242 Cal.App.2d 519
(Brown), is misplaced. The attorney fee contract in Brown provided for payment at an
hourly rate, plus a 20 percent contingency payment for successfully reducing the client’s
taxes. (Id. at p. 523, fn. 1.) The attorney’s complaint alleged “no settlement and no final
determination of the tax liability; only an unaccepted proposal and an ex parte prediction


         5
                   Section 337a defined “book account” as “a detailed statement which constitutes the principal
record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary
relation, and shows the debits and credits in connection therewith, and against whom and in favor of whom entries
are made, is entered in the regular course of business as conducted by such creditor or fiduciary, and is kept in a
reasonably permanent form and manner and is (1) in a bound book, or (2) on a sheet or sheets fastened in a book or
to backing but detachable therefrom, or (3) on a card or cards of a permanent character, or is kept in any other
reasonably permanent form and manner.”
                   “In this age of computer accounting, it is unlikely that a court would require that a book account
actually be kept in a book; certainly computer memory is a reasonable substitute for the pages of a book, given that
the data stored therein can always be reduced (or, more precisely, enlarged) to writing.” (Interstate Group
Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708, fn. 4.)


                                                          5
of a future final settlement embodying ‘potential savings.’” (Id. at p. 525.) Moreover,
the client was being sued for the reasonable value of legal services, having allegedly
                                              6
wrongfully discharged the attorney. (Ibid.) Even though the complaint also alleged a
common count for account stated, the reviewing court held that this was not a separate
cause of action, but only a separate theory of recovery based on the contingency fee
agreement. “No matter how many theories real party in interest chose to plead, she stated
only one cause of action, which was a claim for the reasonable value of the attorney’s
services.” (Ibid.) The clerk could not enter a judgment for an amount based on
reasonable value.
                  The law firm’s claim for attorney fees in this case does not rest on the
reasonable value of its services, but rather a specific amount pleaded as an open book
             7
account. This amount in turn is based on a retainer fee and an hourly rate, as alleged in
the breach of contract cause of action. By failing to answer, Smith in effect “confessed”
that the law firm performed the work necessary to earn this fee. (See Steven M. Garber
& Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823 [failure to answer
expressly admits facts pleaded in complaint].) The clerk was not called upon to
determine the reasonable value of the law firm’s services or even to perform any
computations, but rather to enter judgment in the exact amount pleaded in the complaint.
Section 585, subdivision (a), authorizes this procedure.




         6
                    If a lawyer employed on contingency “elects to sue for damages without establishing the
contingency, he is limited to the reasonable value of his actual services.” (Brown, supra, 242 Cal.App.2d at p. 525.)
         7
                    Smith argues that the amount is uncertain because part of it consisted of a “true retainer fee,”
which the Rules of Professional Conduct define as one “paid solely for the purpose of ensuring the availability of the
member for the matter.” (Rules Prof. Conduct, rule 3-700(D)(2).) Smith asserts that such a fee cannot form part of
an open book account.
                    The Code of Civil Procedure’s definition of book account describes a method of keeping track of
debits and credits. It is not limited to any particular kind of goods or services. The references in the statutory
definition to a “fiduciary” as a potential creditor strongly suggest that lawyers can keep book accounts.


                                                          6
II.               The Address Error
                  Smith asserts that the error in the proof of service for the entry of default
form – Long Beach instead of Torrance – renders the default and the judgment void. The
Code of Civil Procedure says otherwise.
                  Section 587 provides in pertinent part, “No default under subdivision (a),
                                                                                                                  8
(b), or (c) of Section 585 or Section 586 shall be entered, unless the affidavit is filed.[ ]
The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any
judgment.” The requirement of an affidavit of mailing is not jurisdictional; the failure to
file one does not deprive the trial court of the power to render judgment. (Rodriguez v.
Henard (2009) 174 Cal.App.4th 529, 536.) So long as the defendant has knowledge of
the default proceeding, an error in the address is not prejudicial. (Ibid. ) Although a
judge might take the incorrect address into account in deciding whether to grant
discretionary relief under section 473, the error does not render the judgment void.
                  In this case, Smith clearly knew that a default judgment was in the works.
She appeared at a case management conference in August 2011, notwithstanding the
entry of default against her, before the default judgment was entered. The statement
served on her in connection with the conference in April referred several times to a
default and a default judgment. Moreover, Smith did not assert that she did not receive
the entry of default document. She stated in the declaration supporting her motion to set
aside the judgment that she did not recall getting it. On appeal, she argues that her
mental incapacity prevented her from knowing whether she received the request to enter
default.
                  Even if Smith had asserted that the mailing error resulted in her not
receiving the entry of default form, the Code of Civil Procedure specifically provides that



         8
                  The “affidavit” refers to an affidavit that a copy of the application for entry of default was mailed
to the defendant at the last known address or to his or her counsel. (§ 587.)


                                                           7
such an error is not a basis for setting aside a judgment of default. It does not render the
judgment void.
III.              The Case Management Conference
                  At the August 2011 case management conference, which was continued to
September, the court ordered the law firm to “file a case management statement, assess
sanctions or file notice of settlement.” Smith now argues that these orders prohibited the
clerk from entering a default judgment; therefore the judgment is void.
                  Once again, Smith is confusing the relief that might be granted under
                                                                                                9
section 473 and the showing she must make to set aside a void judgment. A judgment is
void for only a few reasons. Lack of personal jurisdiction or of subject-matter
jurisdiction is the most basic one. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67
Cal.App.4th 1228, 1239 (Rochin); see § 1917.) A default judgment in particular is void
to the extent that it awards an amount greater than what the complaint alleges, although
the usual method of dealing with this error on appeal is to modify the judgment
accordingly. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 495.) Likewise, a
default judgment that awards relief different from that sought in the complaint is void.
(Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 539.) A default judgment based
on a complaint that fails to state a cause of action is void. (Kim v. Westmoore Partners,
Inc. (2011) 201 Cal.App.4th 267, 282.) If a clerk jumps the gun and enters a default
prematurely, a judgment based on that default is void. (Baird v. Smith (1932) 216 Cal.
408, 410.) In a personal injury or wrongful death action, a default judgment is void if
the plaintiff did not serve a statement of damages as required by section 425.11,
subdivision (c). (Schwab v. Rondel Homes (1991) 53 Cal.3d 428, 435.) None of these
instances of a void judgment is present here.

         9
                 By the same token, the law firm confuses the factors to be considered in determining whether a
default judgment should be set aside. The law firm argues that the judgment should stand because of the efforts it
has made subsequent to entry to collect. If the judgment is void, it matters not what the law firm has done to enforce
it.


                                                          8
              The orders made at the case management conference did not divest the
court of jurisdiction, prohibit the law firm from requesting the clerk enter a default
judgment, or prevent the judgment from being entered. They certainly did not, as Smith
now claims, grant her an extension of time to plead. She was already in default when the
case management conference took place. She actually had no right to be there, let alone
to obtain relief from default without making an appropriate motion. (See Garcia v.
Politis (2011) 192 Cal.App.4th 1474, 1479 [entry of default terminated defendant’s right
to participate in litigation].) The orders did not make the default judgment void.
              Smith also seizes on a phrase in a minute order issued in May 2011 that she
was making payments to the law firm and argues that the clerk was precluded from
entering judgment because a judge had to hear evidence about how much she had paid.
When it denied her motion to vacate the default judgment, the court ordered the law firm
“to credit to defendant any payments made by her reducing the judgment by way of
partial satisfaction of judgment.”
              Once again, the case management minute order did not render the default
judgment void. The clerk could tell from the complaint the exact amount of the book
account; no computation was necessary. Entry of judgment was thus within the clerk’s
ministerial power. If Smith had in fact been making payments (and nothing filed with the
motion to vacate suggested she had been), these would be credited to her, as the court
ordered, by the law firm’s filing the Judicial Council form for acknowledgement of
satisfaction of judgment, which would happen in any event after the entry of judgment.
              By the time of the hearing on Smith’s motion, the judgment had already
been outstanding for over two years. The order to file a partial satisfaction of judgment
to account for any credits did not render it void.
IV.           The Interest Award
              Smith’s first argument with respect to the inclusion of interest in the default
judgment is that the complaint did not pray for prejudgment interest. The law firm did

                                              9
not allege that its contract with Smith permitted an award of prejudgment interest. Smith
then asserts, without any citation to authority, that the inclusion of prejudgment interest
renders the default judgment void.
              The complaint prayed for interest on the sum of $57,682 “at the highest
legal rate.” Entitlement to prejudgment interest is set by statute. It is not dependent on
provisions in a contract, but is awarded as a matter of law. (See Leff v. Gunter (1983) 33
Cal.3d 508, 519-520.) Statutory interest is properly awarded as part of a default
judgment. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1209; § 585, subd. (a) [after
entry of default, “the clerk . . . shall . . . enter judgment for the principal amount
demanded in the complaint . . . together with interest allowed by law . . .”].) Pursuant to
Civil Code section 3289, subdivision (b), a contractual obligation bears interest at 10
percent after a breach if the contract does not stipulate a legal rate of interest. Pursuant to
Civil Code section 3287, subdivision (a), a creditor may recover interest on “damages
certain, or capable of being made certain by calculation.” The damages pleaded in the
law firm’s complaint were “certain.” The law firm was entitled to prejudgment interest.
               Smith also argues that she was prejudiced by the delay between the entry
of default (in January 2011) and the entry of the default judgment (in August 2011)
because the delay allowed prejudgment interest to accrue. While this fact could be
presented to the trial court on a motion for relief under section 473, it does not render the
clerk’s judgment void. Interest compensates the creditor for the loss of use of its money
while the debt goes unpaid. (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801,
814.) The party being prejudiced by delay is the creditor, not the debtor.
              Finally, Smith objects to the amount of interest awarded because it was
based on a declaration filed by the law firm’s counsel. The declaration stated that the law
firm sought interest in the amount of $4,076.40, which figure represented 10 percent of
$57,682 ($15.80 per day) for 258 days, from the date the complaint was filed (December
6, 2010) through August 21, 2011, a few days before the filing of the request for default

                                               10
judgment. Smith argues that the clerk was not entitled to rely on this declaration when
entering the judgment.
              The clerk may enter a default judgment when “no evidence is necessary to
disclose the correct amount,” e.g., on an open book account. (Liberty Loan, supra, 24
Cal.App.3d 915, 918.) The statute authorizing the clerk to enter a default judgment
requires him or her to include interest “allowed by law.” (§ 585, subd. (a).) The clerk
can make the mathematical computations or simply check the ones submitted by the
plaintiff, the latter being easier on the clerk. These calculations are not “evidence.” No
exercise of discretion is necessary to ascertain the daily amount of interest on $57,682 at
10 percent.
              The core of Smith’s problem is that she waited too long to seek relief.
Facts and arguments that might have convinced a judge to set aside the default judgment
were foreclosed once the six-month period allowed by section 473 expired. She had an
attorney in September of 2011; she could have brought a motion within the statutory time
period. After that, the grounds for setting aside the judgment became far more stringent.
              We should also point out that even if the default judgment were set aside as
void, Smith’s position would not be much improved. Setting aside a default judgment
does not affect the basic default. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1743;
Brown, supra, 242 Cal.App.2d at p. 526.) All that would happen is that the matter would
be sent back for a default prove-up, one in which Smith would not be entitled to
participate. (See Jones v. Moers (1928) 91 Cal.App. 65, 69-70; 6 Witkin, Cal. Procedure
(5th ed. 2008) Proceedings Without Trial, § 175, p. 617.)
V.            Smith’s Mental State
              Smith sought to set aside both the entry of default and the default judgment
as void on the ground of her mental state. She presented evidence she was undergoing




                                             11
mental health treatment between 2001 and 2007. Although the letters listed several
                                                                                         10
mental conditions, none of them indicated she lacked mental capacity.
                 Probate Code section 810, which deals with legal mental capacity,
establishes a rebuttable presumption “that all persons have the capacity to make decisions
and to be responsible for their acts or decisions.” (Prob. Code, § 810, subd. (a).) A
judicial determination that a person lacks the legal capacity to perform a specific act
“should be based on evidence of a deficit in one or more of the person’s mental functions
rather than on a diagnosis of a person’s mental or physical disorder.” (Id., subd. (c).)
Probate Code section 811 sets out a list of mental functions; evidence of a deficit in at
least one of the functions and evidence of a correlation between the deficit and the act or
decision in question support a determination of unsound mind.
                 As stated in Evidence Code section 522, “The party claiming that any
person, including himself, is or was insane has the burden of proof on that issue.” A
person is presumed sane, and his or her failure to respond to the demands of litigation on
the grounds of mental incapacity must be established by competent evidence. (Frates v.
Treder (1967) 249 Cal.App.2d 199, 204-205.)
                 As our Supreme Court has stated, until a person has been judicially
declared to be of unsound mind and had a guardian ad litem appointed, “personal service
upon the alleged incompetent is sufficient to give the court jurisdiction of her person
[citation], and a judgment obtained against the incompetent under such circumstances is
not void for want of jurisdiction. [Citations.]” (Olivera v. Grace (1942) 19 Cal.2d 570,
576.) A default judgment can be set aside for extrinsic fraud if the plaintiff knows the
defendant is incompetent – that is, “render[ed] wholly devoid of understanding and
incapable of transacting business of any nature” (id. at p. 577) – and conceals this
information from the court in order to prevent a true adversary hearing. (Ibid.) In this

        10
                  We understand Smith’s argument to be that she lacked the mental capacity to respond to the
complaint, not that she lacked the mental capacity to enter into a contract with the law firm.


                                                       12
case, however, there is no evidence the law firm knew anything about Smith’s mental
state at all, let alone knew she was wholly devoid of understanding and needed a guardian
ad litem.
              The trial court found that Smith had not offered a viable reason for her
delay, including, presumably, her claimed mental incompetence, and we must draw all
reasonable inferences to support the judgment. (Burgess v. Security-First Nat. Bank
(1941) 44 Cal.App.2d 808, 816.) We know, for example, that Smith was present at the
case management conference in August 2011, without a lawyer, and the court had an
opportunity to observe her behavior then. The court found the letters she had submitted
about her therapy irrelevant, because they referred to a time well before the events after
the entry of the default or the default judgment. Smith did not present evidence of mental
incapacity that would render the judgment entered against her in August 2011 void.
                                     DISPOSITION
              The default judgment is affirmed. Respondent is to recover its costs on
appeal.




                                                 BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.



                                            13
