Filed 1/15/15 Barker v. G.O.N.E. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

KELLY BARKER,
                                                                                           F066342
         Plaintiff and Appellant,
                                                                         (Stanislaus Super. Ct. No. 658584)
                   v.

G.O.N.E., INC. et al.,                                                                   OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl
William Johnson III, Judge.
         Bronson & Associates and Martha Bronson for Plaintiff and Appellant.
         Richard L. Schneider for Defendant and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         This dispute started out simply enough. An apartment complex claimed that its
former tenant, appellant Kelly Barker (Barker) failed to pay rent and provide notice that
he was quitting the premises. Cheryl C. Koff d.b.a. G.O.N.E., sued Barker on these
claims, alleging that it had received an assignment of the apartment complex’s claims
against Barker. As a result, a $1,833.62 default judgment was entered against Barker in
2004.
        In the following years, Barker filed several lawsuits pertaining to the complex’s
allegedly improper assessment of fees, retention of his security deposit, and debt
collection practices. Among those actions is the present suit, filed in 2010. Barker
currently seeks recovery on various theories primarily pertaining to his allegation that
respondents used a perjured declaration to obtain the 2004 default judgment.
        The trial court granted a motion for judgment on the pleadings, ruling that
Barker’s present suit is barred by (1) the 2004 judgment pursuant to the doctrine of
collateral estoppel and (2) the applicable statute of limitations.
        We conclude the motion for judgment on the pleadings was properly granted and
reject Barker’s attacks on various discovery rulings.
        We therefore affirm the judgment.
                                           FACTS
        According to a complaint filed in 2004, Barker rented an apartment from Villa
Verde North, LLC (Villa Verde) and signed a written rental contract. In 2004, Barker
allegedly breached the contract when he purportedly failed to notify Villa Verde that he
was quitting the premises and failed to pay rent for June 2004. The right to recover for
this breach was allegedly assigned to a debt collector, Cheryl C. Koff, d.b.a. G.O.N.E.
(“G.O.N.E.”).
        Case No. 350294
        In September 2004, G.O.N.E. sued Barker in Stanislaus Superior Court.
G.O.N.E.’s complaint alleged that Barker entered into a rental agreement and
subsequently breached it by failing to pay amounts due thereunder. The action was
assigned case No. 350294.




                                              2.
       Barker defaulted and G.O.N.E. requested a default judgment by declaration. (See
Code of Civ. Proc., § 585, subd. (a).) The declaration was executed by respondent
Christian Hurst (Hurst). The declaration stated that Barker “failed to pay rent from
6/1/04 through 7/2/04 damaging plaintiff $651.00” and “failed and refused to keep and
surrender the rented premises in good condition damaging the plaintiff $1,124.00.” It
also stated that “Plaintiffs [sic] assignor duly performed all duties of the Rental
agreement ….” The declaration was signed under penalty of perjury and indicated that
the matters contained therein were within Hurst’s personal knowledge.
       On November 18, 2004, G.O.N.E., obtained a default judgment against Barker in
the amount of $1,833.62.
       Case No. CV034593
       In May 2007, Barker sued several defendants, including Villa Verde and its parent
company, JCM Partners, LLC (“JCM”),1 in Stanislaus County Superior Court. Villa
Verde cross-complained against Barker for breaching the lease agreement and for
declaratory relief. The action was transferred to San Joaquin County Superior Court and
given case No. CV034593.
       Barker’s complaint in case No. CV034593 is not in the record. As a result, the
details of Barker’s factual claims in that case are unknown. The record does disclose that
Barker’s complaint included allegations that defendants: Failed to return the security
deposit, unlawfully charged liquidated damages, improperly imposed a late rental




       1 The caption in one of the orders from the case lists the following defendants in
the case: Villa Verde North, LLC; JCM Partners, LLC, Gayle M. Ing, Michael Vanni,
Brian S. Rein, Cornelius Sam, Computer Management Corporation and Does 1-50,
inclusive. Without the entire record of the case, we cannot be certain that this is an
exhaustive list of all defendants ever named in the case. Respondent’s appellate brief
claims that G.O.N.E. was never a party to case No. CV034593.


                                              3.
payment fee, failed to provide a walk-through inspection, failed to give written notice of
the security deposit disposition, and committed unfair business practices.2
       Villa Verde and JCM moved for summary judgment or adjudication. The San
Joaquin County Superior Court granted the motion as to nine of the 10 causes of action in
Barker’s complaint. The court ruled that the 2004 default judgment conclusively
determined that defendants had been entitled to the charges and security deposit amounts
challenged by Barker.
       The court denied the summary judgment motion as to the unfair businesses
practices cause of action. The court ruled that “to the extent this claim seeks non-
monetary relief, the prior default judgment is not res judicata as to this cause of action.”
       The case was subsequently settled.
       Case No. 2:09-cv-00001-GEB-JFM
       In 2008, Barker sued several defendants, including Cheryl C. Koff, Hurst and
G.O.N.E., Inc.,3 in the United States District Court.4 The first amended complaint filed
in that action alleged defendants “ ‘fraudulently induc[ed] judges into entering defaults
and default judgment through use of perjured declarations.’ ”5 It contained causes of
action for violating (1) the Fair Debt Collection Practices Act (15 U.S.C. § 1692, et seq.)

       2This information is taken from an order granting summary adjudication in the
case. That order contains a brief description of Barker’s causes of action.
       3
       Barker’s complaint in the present case alleges that “GONE, Inc. was formerly
known as G.O.N.E.”
       4 The caption from an order in the case lists the following defendants: Philip B.
Avila, Cheryl C. Koff, Borton & Petrini, LLP, Christian P. Hurst, Chelsea VanPetten,
Dawn Harleman, Shelly Prehm, and G.O.N.E., Inc. Again, without the benefit of the
record from case No. 2:09-cv-00001-GEB-JFM, we cannot be certain that this is an
exhaustive list that includes every defendant named in the case.
       5 Barker’s complaints in case No. 2:09-cv-00001-GEB-JFM are not included in
the record. The description of Barker’s allegations in that case comes from the district
court’s order granting defendants’ motions to dismiss and strike.



                                             4.
(“FDCPA”); (2) the Rosenthal Fair Debt Collection Practices Act (Civ. Code § 1788, et
seq.); and (3) California Business and Professions Code section 17200.
       An anti-SLAPP motion was filed, which the district court granted. Barker was
granted leave to amend his “ ‘state law claims’ only” (i.e., the Rosenthal Act and unfair
business practices causes of action). Despite this limitation on the leave to amend,
Barker amended his federal FDCPA claim in addition to the state law claims. The district
court determined that amendment was improper. The court also ruled that the remainder
of Barker’s federal FDCPA claim was barred by the statute of limitations. Because of
these rulings, only state law claims remained. The district court declined to exercise
supplemental federal jurisdiction over the state law claims and dismissed them without
prejudice. (28 U.S.C. § 1367, subd. (c)(3).)
       Case No. 658584 (Present Action)
       In September 2010, Barker filed the present case – a putative class action lawsuit
against respondents in Stanislaus County Superior Court. The case was given case
No. 658584.
       The suit alleged that Hurst’s declaration in support of the 2004 default judgment
was perjured. The complaint claims the following contents of Hurst’s declaration are
false: (1) Barker “failed and refused to keep and surrender the rented premises in good
condition damaging [G.O.N.E.] $1,124.00”; (2) “ ‘Plaintiffs [sic] assignor duly
performed all duties of the Rental agreement to be performed on his part’ ” (3) that the
Rental Agreement provided for a monthly rent of $560.00; (4) that the matters contained
in the declaration were within the personal knowledge of the declarant; and (5) that the
rental agreement was attached to the declaration. The complaint claims that respondents




                                               5.
filed the declaration “intending the Court rely upon the false statement that the facts
declared to [sic] were personally known to the declarant ….” 6
       The complaint also alleges Barker was not “personally served” with the 2004 suit.
       G.O.N.E. and “Christian P. Hurst, et al” moved for judgment on the pleadings.
(See Code Civ. Proc. § 438.7) The court granted the motion on two grounds: The present
lawsuit was barred by (1) the 2004 default judgment pursuant to the doctrine of collateral
estoppel and (2) the applicable statutes of limitation. Barker appeals.
                                       DISCUSSION
       I.     Motion for Judgment on the Pleadings
              A. Collateral Estoppel
       “ ‘ “[T]he doctrine of res judicata gives certain conclusive effect to a former
judgment in subsequent litigation involving the same controversy.” [Citation.] The
doctrine “has a double aspect.” [Citation.] “In its primary aspect,” commonly known as
claim preclusion, it “operates as a bar to the maintenance of a second suit between the
same parties on the same cause of action. [Citation.]” [Citation.] “In its secondary
aspect,” commonly known as collateral estoppel, “[t]he prior judgment ... ‘operates’ ” in
“a second suit ... based on a different cause of action ... ‘as an estoppel or conclusive
adjudication as to such issues in the second action as were actually litigated and
determined in the first action.’ ” ’ [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010)
48 Cal.4th 788, 797, italics in original.)



       6The complaint also sought class certification and alleged that defendants
engaged in a “massive fraudulent scheme to fraudulently induce judges and court
personnel into entering defaults and default judgments through use of false verifications
of complaints, false … declarations … and false proofs of service .…”
       7
       All future undesignated statutory references are to the California Code of Civil
Procedure.



                                              6.
                     1. Barker May not Attack the 2004 Judgment on the Basis that it
                        was Obtained Through Falsification of Evidence
       The gravamen of Barker’s suit is that defendants falsified evidence to obtain the
2004 default judgment. However, “under the doctrines of res judicata and collateral
estoppel a judgment may not be collaterally attacked on the ground that evidence was
falsified ….” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10;
see also Pico v. Cohn (1891) 91 Cal. 129, 134–135; Jeffords v. Young (1929) 98 Cal.App.
400, 404.) We must next determine whether Barker’s present suit is a collateral attack on
the judgment. For the reasons explained below, we conclude that it is.
       First and foremost, Barker’s suit is, in part, “an attempt to impeach” the 2004
judgment “in a proceeding other than that in which the decree was rendered; hence it is a
collateral attack.” (Harley v. Superior Court of San Mateo County (1964) 226
Cal.App.2d 432, 435, italics removed.)
       Second, the complaint specifically seeks to enjoin enforcement of the 2004
judgment. “Actions to prevent enforcement of the judgment … are … collateral attacks
on the judgment.” (8 Witkin, Cal. Proc. 5th (2008) Attack, § 7, p. 591; see also Estate of
Wemyss (1975) 49 Cal.App.3d 53, 58.)
       Third, the present suit seeks affirmative relief that would require relitigation of
issues conclusively decided by the 2004 judgment. (Cf. Kachig v. Boothe (1971) 22
Cal.App.3d 626, 636.) That is, Barker seeks to prove that he, in fact, did not owe the
amounts G.O.N.E. claimed in the 2004 suit. “[I]t is the very purpose of the doctrine of
finality of judgments to preclude relitigation” of such facts. (Ibid.)




                                              7.
                      2. Barker May Not Collaterally Attack the 2004 Judgment Based on
                         Alleged Jurisdictional Defects that do not Appear on the
                         Judgment Roll
       Barker asserts another basis for collaterally attacking the 2004 judgment beyond
the alleged falsification of evidence.8
       In the 2004 suit, G.O.N.E. alleged that it had received an assignment of the claims
it was prosecuting. Barker asserts that this alleged assignment was ineffective and that
Villa Verde North, LLC, remained the only real party in interest with respect to the
claims against him. Barker contends this is a jurisdictional defect rendering the 2004
judgment void. (See Cummings v. Stanley (2009) 177 Cal.App.4th 493, 501 [lack of
standing is a jurisdictional defect].) However, the validity of a judgment cannot be
collaterally attacked on jurisdictional grounds unless the “jurisdictional defect appears on
the judgment roll.” (8 Witkin, Cal. Proc. 5th, supra, Attack, § 11, p. 594; see also
Johnson v. Hayes Cal Builders, Inc. (1963) 60 Cal.2d 572, 576.) The defect alleged by
Barker would not appear on the judgment roll.9 Consequently, it cannot serve as the
basis of a collateral attack.




       8 Barker claims that Villa Verde’s filing of the 2007 cross-complaint in case
No. CV034593 constituted a Rosenthal Act violation by defendants. However, Villa
Verde is not a defendant in the present action, and Barker’s complaint does not
sufficiently state facts that would establish Villa Verde is an alter ego of G.O.N.E. or the
other defendants in this case. (Cf. Leek v. Cooper (2011) 194 Cal.App.4th 399, 415 [to
recover on alter ego theory, plaintiff must allege sufficient facts to show unity of
ownership]; 117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649–650 [pleader must
allege facts showing formation of conspiracy and it is insufficient to rely on
“[i]nferences, generalities, presumptions and conclusions”].)
       9  To the contrary, the 2004 complaint – which is part of the judgment roll (§ 670,
subd. (a)) – alleges that G.O.N.E. did receive an assignment of “all rights, title, and
interest in and to the claims set forth below ….”



                                             8.
                     3. Barker Waived any Arguments Presented for the First Time in
                        his Reply Brief
       Barker raises several additional bases for attacking the 2004 judgment for the first
time in his late reply brief.10 First, we deny Barker’s motion for leave to file his late
reply brief. Second, even if Barker had successfully filed a reply brief, “[a]rguments
presented for the first time in an appellant’s reply brief are considered waived.
[Citation.]” (Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213
Cal.App.4th 1277, 1292, fn. 6.)

              B. The Court was not Required to Deny the Motion for Judgment on the
                 Pleadings Pursuant to Code of Civil Procedure Section 438,
                 Subdivision (g)(1)
       Barker claims the motion for judgment on the pleadings should have been denied
pursuant to section 438, subdivision (g)(1) because defendants filed successive motions.
That subdivision deals with the effect of a prior demurrer, not a prior motion for
judgment on the pleadings.11 (§ 438, subd. (g)(1).) The fact that defendants filed
multiple motions for judgment on the pleadings does not implicate this provision.
       II.    Discovery Orders
       Barker also challenges several discovery orders. Respondents do not address the



       10 For example, Barker points to allegations regarding service of the 2004 suit.
However, as to the 2004 suit, the complaint merely alleges that Barker was not
“personally served” with the summons and complaint. Personal service is one of several
ways to effect service. (See §§ 415.10–415.50.) The allegation that Barker was not
served in one of several valid ways is not equivalent to an allegation that Barker was not
served at all. In this respect, the complaint does not allege facts constituting extrinsic
fraud.
       11 Defendants also filed a prior demurrer, but the demurrer was overruled on
procedural and technical grounds: Failure to provide sufficient notice of the hearing
(§ 1005, subd. (b)) and stating multiple grounds for the demurrer in a single paragraph.
(Cal. Rules of Court, rule 3.1320(a).) The demurrer was not overruled on the merits of
the arguments defendants repeated in the motion for judgment on the pleadings.



                                              9.
discovery orders in their appellate brief. Nonetheless, we reject Baker’s challenges as
explained below.

              A. The Trial Court Did Not Err in Declining to Impose Sanctions in
                 Connection with G.O.N.E., Inc.’s June 2011 Discovery Motion
       In April 2011, G.O.N.E., Inc. propounded a demand for production of documents
to Barker. (See § 2031.020.) G.O.N.E., Inc. requested that Barker produce, among other
documents, the settlement agreement from case No. CV 034593. Barker refused to
produce the agreement, claiming that it contained a confidentiality provision that
prevented him from producing it.
       Defendants filed a discovery motion seeking an order compelling Barker to
produce the settlement agreement and to pay monetary sanctions. In the moving papers,
defendants indicated that they would accept production of a redacted version of the
settlement agreement that did not include settlement amounts. In his opposing papers,
Barker requested sanctions against Hurst and defense counsel for making a meritless
discovery motion. (See § 2031.310, subd. (h).)
       A minute order reflects that at the motion hearing on August 2, 2011, the parties
agreed the court would review the settlement agreement in camera. The same minute
order also denied “the request for sanctions.”
       A minute order dated September 28, 2011 (presumably issued after the court
reviewed the settlement agreement in camera), provides, in part:

                “Plaintiff[’s] counsel shall provide a copy of the agreement to
       [defense counsel] and ordered [sic] that the numbers to be redacted.
       [Defense counsel] can show this agreement to his client and not to give
       [sic] it to anyone else unless it is necessary for this litigation. At the end of
       the litigation, [defense counsel] shall give it back to [plaintiff’s counsel].”




                                              10.
       Barker claims that the court erred in denying sanctions against defendants. He
asserts that sanctions were mandatory because defendants made an unsuccessful motion
to compel. (See § 2031.310, subd. (h).)12
       Section 2031.310, subdivision (h) provides that “the court shall impose a monetary
sanction … against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel further response to a demand, unless it finds that the one subject to the
sanction acted with substantial justification or that other circumstances make the
imposition of the sanction unjust.” (§ 2031.310, subd. (h).)
       By its plain terms, this subdivision applies to a moving party who unsuccessfully
makes a motion to compel further response. (§ 2031.310, subd. (h).) Our review of the
record indicates that the defense motion to compel was ultimately successful. The
motion sought, and eventually resulted in, an order compelling plaintiff to produce the
settlement agreement. As a result, sanctions against the moving parties and counsel were
not mandatory. The court did not abuse its discretion in declining to impose sanctions.

              B. The Trial Court Did Not Err in “Dropping” G.O.N.E. February 2012
                 Discovery Motion from Calendar
       G.O.N.E. noticed Barker’s deposition for December 20, 2011. Barker did not
appear at the deposition, and G.O.N.E. filed a discovery motion under section 2025.450,
requesting sanctions.
       In a minute order dated February 2, 2012, the court “dropped” G.O.N.E.’s
discovery motion from the calendar without prejudice “for failure to file a motion.”13



       12 Barker incorrectly identifies section 2031.300, subdivision (c) as the controlling
statute. Defendants’ motion was one to compel further responses (§ 2031.310, subd. (a))
not a motion to compel an initial response (§ 2031.300).
       13 The minute order does not elaborate on the specific defects in the motion. The
court may have been referencing the fact the motion itself requests dismissal of the case,
but the notice of motion simply requests “sanctions” without specifying the type of


                                            11.
The order cited several Rules of Court and noted that a “party who seeks relief from the
Court by motion must specify the relief sought in both the notice of motion and the
motion.”
       Barker claims the court’s “dropping of the motion” was “unauthorized.” We
disagree. “ ‘The court for good cause has discretion in the control and regulation of its
calendar or docket. [Citation.] It is permissible for good cause to delay a … hearing to a
later date or to drop or strike a case from the calendar, to be restored on motion of one or
more of the litigants or on the court’s own motion….’ ” (R & A Vending Services, Inc. v.
City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193; cf. Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 [in
certain circumstances, court may take a discovery motion off calendar].)
       Thus, we see no abuse of discretion in the court’s decision to drop the defense
motion without prejudice for failing to comply with the Rules of Court.14
                                      DISPOSITION
       Appellant’s motion to file a late reply brief is denied. Appellant’s motion to
augment the record on appeal, filed July 21, 2014, is granted.
       The judgment and discovery orders are affirmed. Respondents shall recover costs.




sanctions being sought (e.g., monetary, evidentiary, issue or terminating sanctions). (See
Cal. Rules of Court, rule 3.1112(d)(3).)
       14  Barker complains the court’s order dropping the motion effectively strips him of
the ability to seek recovery for respondents’ alleged misuse of the discovery process. Not
so. Nothing prevented Barker from filing his own motion for sanctions (§ 2023.040),
which does not have a 45-day time limit. (See Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants, supra, 148 Cal.App.4th at p. 411.)



                                            12.
                               _____________________
                               Poochigian, J.

WE CONCUR:


 _____________________
Kane, Acting P.J.


 _____________________
Franson, J.




                         13.
