Filed 2/3/15 Nat. City Mortgage v. Dorrin CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NATIONAL CITY MORTGAGE, D066477

Plaintiff and Respondent,

v. (Super. Ct. No. RIC531351)

ARTHUR DORRIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County, Daniel A.

Ottolia, Judge. Affirmed in part and dismissed in part.

Arthur Dorrin, in pro. per., for Defendant and Appellant.

Chuck Birkett Tsoong, Stephen C. Chuck, Tiffany M. Birkett and Victoria J.

Tsoong for Plaintiff and Respondent.

Defendant Arthur Dorrin obtained a loan from National City Mortgage, a division

of National City Bank of Indiana (NCM), and secured the loan with a deed of trust in

favor of NCM encumbering certain real property. Approximately two years later, Dorrin

stopped making payments on the loan, and in July 2009 NCM filed this action seeking, among other things, a declaration that its lien interest was superior to the potential claims

of a number of others who purportedly obtained some interest in the real property, and for

judicial foreclosure of its deed of trust. After granting NCM's motion for summary

judgment, the court entered judgment in favor of NCM on January 14, 2013, and NCM

served Dorrin with a notice of entry of judgment on January 15, 2013.

Dorrin did not immediately appeal from the January 2013 judgment. Instead, in

February 2013, Dorrin filed a motion to vacate the judgment under Code of Civil

Procedure 1 section 473, subdivision (d), asserting the judgment was void because NCM

had ceased to exist before its action had been commenced, and therefore the court did not

have jurisdiction over the parties. On May 20, 2013, the court entered an order denying

Dorrin's motion, and on June 3, 2013, Dorrin filed his notice of appeal.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

The relevant facts are largely undisputed. In 2001, Dorrin acquired certain real

property (the property) located in Riverside County. In early 2006, Dorrin obtained a

loan from, and signed a promissory note (the Note) in favor of, NCM. In early 2007,

Dorrin executed a loan modification agreement that, among other things, modified the

1 All further statutory references are to the Code of Civil Procedure unless otherwise noted.

2 payment terms of the Note, and reflected that the obligee on the Note was National City

Mortgage, a subsidiary of National City Bank.

As security for the Note, Dorrin signed a deed of trust (DOT) in favor of NCM

encumbering the property. The DOT included a power of sale clause permitting the

lender to sell the property in the event of an uncured default. By early 2008, Dorrin was

in default because he had had stopped making payments on the Note.

In May 2008 a notice of default and election to sell under the DOT was recorded,

and in August 2008 a notice of trustee's sale under the DOT was recorded. However, the

trustee was unable to proceed with the nonjudicial foreclosure because a series of deeds,

which NCM's subsequent lawsuit asserted were "wild" deeds that should be canceled,2

raised issues about whether Dorrin owned the property at the time the loan was made and

the DOT was recorded.

B. The Lawsuit and Summary Judgment Motion

NCM filed this action seeking a judgment declaring its claim to title in the

property under the DOT was superior to any conflicting claims to title created by the wild

deeds, and seeking judicial foreclosure under the DOT. NCM subsequently moved for

summary judgment. NCM's showing apparently established that, at the time of the loan

and recordation of the DOT, Dorrin owned the property, and Dorrin did not dispute that

2 NCM learned deeds had been recorded in September 2003 purporting to transfer title to the property from a Ms. Allen to Capo's Construction, Inc., and another deed recorded in 2011 purporting to transfer title to the property from Capo's Construction, Inc., to a Ms. Delabar, and NCM asserted (and Dorrin conceded) those deeds were invalid.

3 he was in default under the loan or that the DOT was superior to the claims to title

created by the wild deeds. Instead, Dorrin apparently opposed the motion for summary

judgment principally because he claimed NCM was not the real party in interest entitled

to prosecute the claims for declaratory relief and judicial foreclosure.

The trial court granted NCM's motion for summary judgment, finding there was

no triable issue of material fact that (1) Dorrin was the sole owner of the property as of

the date the DOT recorded, (2) NCM's DOT was valid, enforceable and in first and senior

position against the property, and (3) the Allen deed was a wild deed and therefore the

Allen deed and its progeny were void and should be set aside and canceled. The court

entered judgment in favor of NCM on January 14, 2013, !Ct 515-518)! and NCM served

Dorrin with a notice of entry of judgment on January 15, 2013. Dorrin did not file a

notice of appeal from that judgment prior to March 15, 2013.

C. The Motion to Vacate the Judgment

On February 26, 2013, Dorrin filed a motion to vacate the judgment. 3 He asserted

relief was properly available under section 473, subdivision (d), because Dorrin had just

discovered a document from the Secretary of State of Ohio showing that, as of October 1,

3 Shortly after judgment was entered, Dorrin also filed a motion for new trial, asserting there was insufficient evidence to support the determination that NCM was the real party in interest entitled to prosecute the action, because he had presented evidence that NCM "had effectively been merged out of existence" before the lawsuit had been filed. NCM opposed the motion, asserting it had demonstrated National City Bank, doing business as NCM, was the entity that had entered into the loan transaction and PNC Mortgage was the successor by merger to National City Bank. On March 11, 2013, the court denied Dorrin's motion for new trial, and NCM served notice of that ruling on March 12, 2013.

4 2008, an entity known as National City Mortgage Co. had "merged out of existence."

Dorrin contended this rendered the judgment void and permitted him to collaterally attack

the judgment.

NCM opposed the motion, arguing the power under section 473, subdivision (d),

to set aside as void a judgment is limited to cases in which the court lacked personal or

subject matter jurisdiction, or granted relief the court had no power to grant and the error

appears on the face of the record without resort to extrinsic evidence. NCM argued that

because Dorrin's motion to vacate was not limited to the face of the record, but instead

hinged on extrinsic evidence, the motion was simply a disguised motion for

reconsideration that was both untimely and procedurally deficient.

The court denied Dorrin's motion to vacate the judgment, and entered its order on

May 20, 2013. On June 3, 2013, Dorrin filed a notice of appeal from the order denying

his motion to vacate the judgment, and also purported to appeal from the January 14,

2013, judgment in favor of NCM.

II

ANALYSIS

A. The Purported Appeal from the January 14, 2013, Judgment Is Untimely

Dorrin purports to appeal from the January 14, 2013, judgment, and devotes a

substantial part of his opening brief to arguing summary judgment was improper because

triable issues of fact existed on whether the present action had been prosecuted by the

real party in interest. Dorrin claims on appeal that it was disputed whether the named

plaintiff in the action--National City Mortgage, a division of National City Bank of

5 Indiana--had ceased to exist by reason of a merger occurring before the present lawsuit

was filed.4

A notice of appeal must be filed within 60 days after a party's service of notice of

the entry of judgment. (Cal. Rules of Court, rule 8.104(a)(2).) Because NCM served a

notice of the entry of the court's January 14, 2013, judgment on January 17, 2013, the

deadline for filing a notice of appeal from the summary judgment expired on March 17,

2013, several months before Dorrin filed his notice of appeal. Unless the deadline was

extended, Dorrin's notice of appeal from the January 14, 2013, judgment was untimely

and requires dismissal of that appeal. (Starpoint Properties, LLC v. Namvar (2011) 201

Cal.App.4th 1101, 1107 [" 'Compliance with the requirements for filing a notice of

appeal is mandatory and jurisdictional,' and an appellate court therefore must dismiss an

appeal that is untimely."]; Van Buerden Ins. Services, Inc. v. Customized Worldwide

Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 ["The time for appealing a judgment

is jurisdictional; once the deadline expires, the appellate court has no power to entertain

the appeal."].)

The time for filing a notice of appeal can be extended when the appellant has filed

"a valid notice of intention to move--or a valid motion--to vacate the judgment . . . ."

4 Dorrin does not dispute that a merger after the lawsuit was filed would not support a dismissal of the filed action because the acquiring company would be allowed to continue to prosecute the action in the name of the original party. (See, e.g., Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 506, fn. 1 ["As Duke's successor in interest, Dynegy is entitled to continue the action in Duke's name [citations] [without] substitut[ing] itself as a formally named party [citations]."]; Corp. Code, § 1107, subd. (d).)

6 (Cal. Rules of Court, rule 8.108(c).) "A 'valid' motion to vacate, for purposes of

extending time for filing a notice of appeal, means 'a motion based on some recognized

grounds for vacation: it cannot be stretched to include any motion, regardless of the basis

for it.' " (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1574 (Payne).) Here, although

Dorrin purported to style his February 26, 2013, motion to vacate as a motion under

section 473, subdivision (d), the substantive parameters for a motion to vacate under that

section (as discussed below) are extremely limited and Dorrin's motion made no effort to

remain within those limited parameters. Instead, Dorrin's motion to vacate (1) relied on

newly discovered evidence, and was substantively a motion for new trial based on newly

discovered evidence (§ 657, subd. (4)) but would have been invalid had it been styled as a

motion for new trial 5; (2) argued there was insufficient evidence to warrant the finding

that NCM was an existing entity entitled to pursue the action, and was substantively a

motion to vacate under section 663, subdivision (1) but would have been invalid as

untimely6; and (3) appears to constitute an effort to reargue the same contentions he

5 Dorrin filed his motion to vacate on February 26, 2013, more than 15 days after he was served with the notice of entry of judgment, the time limit prescribed by section 659, subdivision (a)(2), for a valid motion for new trial. "A notice of intention filed after the allowed time is invalid and does not extend the time for filing a notice of appeal from the judgment beyond the normal 60 days." (In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802.)

6 Section 663, subdivision (1), authorizes a party to move to set aside and vacate a judgment when the party shows there was an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . ." However, that motion must be filed within 15 days of the date of service upon him of written notice of entry of judgment (§ 663a, subd. (a)(2)), and hence Dorrin's motion would have been untimely if styled as a motion for relief under section 663. 7 interposed in opposition to the motion for summary judgment and hence constituted a

motion for reconsideration, which was invalid as both untimely and procedurally

deficient.7

Dorrin cites Estate of Lacy (1975) 54 Cal.App.3d 172 for the proposition that the

time for appeal is extended when a motion to vacate is brought on any ground. However,

Lacy stated that the rule extending the time to appeal the underlying judgment "applies to

any valid notice of intention to move to vacate a judgment" (id. at p. 177, italics added),

and is therefore consistent with the court's observations in Payne, supra, 167 Cal.App.4th

at pages 1575 to 1576, that "rule 8.108 strictly provides that the time to appeal may be

extended only upon the filing of valid motions to vacate, for reconsideration, for new trial

and for judgment notwithstanding the verdict. [Citation.] As the Advisory Committee

comment to this rule states: '[T]he word "valid" means . . . that the motion or notice

complies with all procedural requirements . . . .' [Citation, italics added by Payne.]

Were we to begin saving untimely appeals by allowing procedurally invalid posttrial

motions to be deemed entirely different motions, we would be subverting the carefully

drawn jurisdictional scheme. Such mischief is strictly forbidden. 'In the absence of

7 A motion for reconsideration under section 1008 must be made within 10 days after service of written notice of entry of the order (§ 1008, subd. (a)), and Dorrin's February 26, 2013, motion to vacate would have been invalid if styled as a motion for reconsideration because it was filed almost 40 days after NCM served its notice of entry of judgment. Moreover, a trial court has no jurisdiction to reconsider a prior order on the basis of new or different facts absent a satisfactory explanation for the failure to present them earlier (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 685-690), and Dorrin's motion contained no explanation excusing his failure to interpose the new facts at an earlier date.

8 statutory authorization, neither the trial nor appellate courts may extend or shorten the

time for appeal [citation], even to relieve against mistake, inadvertence, accident, or

misfortune . . . .' " Because Dorrin's February 26, 2013, motion to vacate the judgment

substantively sought to vacate the judgment on grounds that were procedurally time-

barred, we reject Dorrin's argument that the label he affixed to his motion permits us to

deem it an "entirely different motion[]" (Payne, at p. 1576) to save his otherwise

untimely appeal from the underlying judgment. Accordingly, we must dismiss Dorrin's

purported appeal from the underlying judgment and concomitantly do not consider any

claims that the entry of summary judgment in favor of NCM was erroneous.

B. Dorrin's Appeal from the May 20, 2013, Order Is Timely But Unmeritorious

Although Dorrin's purported appeal from the underlying judgment is untimely, his

notice of appeal also appealed the order denying his motion to vacate under the authority

provided to a court by section 473, subdivision (d). 8 Because the notice of appeal was

8 An order denying a motion made under section 473 to vacate a judgment is an appealable order as a special order made after final judgment within the meaning of section 904.1, subdivision (a)(2). (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) NCM, relying on Payne, supra, 167 Cal.App.4th at p. 1576, asserts that when the appeal from a motion to vacate raises only arguments that should have been interposed on a timely appeal from the underlying judgment, the motion to vacate should not be deemed an appealable order because "allow[ing] an appeal from the trial court's refusal to vacate its own ruling would, in effect, give [the appellant] two appeals from the same judgment." (Ibid.) However, we believe Payne conflated whether a postjudgment order denying a motion to vacate is appealable with what arguments are cognizable when an appellant challenges a postjudgment order denying a motion to vacate. Here, we have already concluded Dorrin's purported appeal from the underlying judgment should be dismissed, and therefore we will not consider any of Dorrin's arguments that entry of summary judgment in favor of NCM was erroneous, which obviates the concern of granting Dorrin's two appeals from the same 9 filed within 60 days of entry of the order denying that motion, that aspect of Dorrin's

appeal is timely.

A motion to vacate a judgment under section 473, subdivision (d), is limited to

"set[ting] aside any void judgment," and a trial court has no statutory power under section

473, subdivision (d), to set aside a judgment unless the judgment is void. (Talley v.

Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th 132, 146.) However, there is

a marked distinction between void judgments, which are subject to collateral attack under

section 473, subdivision (d), and voidable judgments, which may only be attacked on

direct appeal from the judgment. Our Supreme Court explained that distinction in In re

Marriage of Goddard (2004) 33 Cal.4th 49, 56, in which it stated that "[a] court can lack

fundamental authority over the subject matter, question presented, or party, making its

judgment void, or it can merely act in excess of its jurisdiction or defined power,

rendering the judgment voidable." Thus, a judgment "is void if the court lacked

jurisdiction over the subject matter or parties, for example, if the defendant was not

validly served with summons. [Citation.] In contrast, a judgment is valid but voidable if

it is the result of the court's failure to follow proper procedure." (Johnson v. E-Z Ins.

Brokerage, Inc. (2009) 175 Cal.App.4th 86, 98.)

Because invocation of the court's authority under section 473, subdivision (d), is

limited to setting aside void judgments (cf. Manson, Iver & York v. Black (2009) 176

judgment. Instead, we will limit our evaluation to those arguments that may properly be asserted in a postjudgment collateral attack under section 473, subdivision (d), seeking to vacate an allegedly void judgment.

10 Cal.App.4th 36, 42-43), we examine what types of defects can—and cannot—render a

judgment void and subject to collateral attack.9 "A litigant may collaterally attack a final

judgment for lack of personal or subject matter jurisdiction, or for granting relief that the

court had no power to grant, but may not collaterally attack a final judgment for

nonjurisdictional errors." (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854.) " 'If a

judgment, no matter how erroneous, is within the jurisdiction of the court, it can only be

reviewed and corrected by one of the established methods of direct attack.' " (People v.

$6,500 U.S. Currency (1989) 215 Cal.App.3d 1542, 1548.) Accordingly, "[t]he key

question in the case at bench is whether the [alleged] error, appearing on the face of the

judgment, [would render] the judgment void . . . as being beyond the jurisdiction of the

court, and subject to collateral attack, or [would simply render] the judgment erroneous—

not void—but within the jurisdiction of the court, and free from collateral attack." (Jones

v. World Life Research Institute (1976) 60 Cal.App.3d 836, 844; see Wells Fargo & Co.

9 On appeal, Dorrin cites Walker v. San Francisco Housing Authority (2002) 100 Cal.App.4th 685, 692-693 as holding that a section 473 motion is a "direct" attack on the judgment and, from that predicate, cites Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 for the proposition that on direct attack, " 'lack of jurisdiction may be shown by extrinsic evidence, i.e., evidence outside the judgment roll.' " However, Walker addressed a motion made under section 473, subdivision (b), (Walker, at p. 687), and had no occasion to address whether a section 473, subdivision (d), motion is a "direct" attack on the judgment for which extrinsic evidence could be considered. The Strathvale court simply (and we believe erroneously) cited Walker for the proposition that any motion under section 473 is a "direct attack" (Strathvale, at p. 1249), that would permit extrinsic evidence to be considered, without recognition of the limited application of Walker. We conclude neither Walker nor Strathvale provides convincing authority for Dorrin's argument that a party seeking to vacate a judgment under section 473, subdivision (d), is entitled to introduce extrinsic evidence showing nonjurisdictional errors.

11 v. City and County of San Francisco (1944) 25 Cal.2d 37, 40 ["A mere erroneous

decision . . . does not make the judgment void, if the court had jurisdiction of the subject

matter and of the person of the defendant."].)

For the purpose of making a collateral attack on a final judgment, the term

"jurisdiction" has been interpreted narrowly to include jurisdiction of the subject matter,

personal jurisdiction over the parties, and adequate notice. (Estate of Buck, supra, 29

Cal.App.4th at pp. 1854-1856.) In Buck, the appellate court characterized these three

elements as " 'fundamental jurisdiction.' " (Id. at p. 1854, fn. 7.) According to Buck, the

reported cases in which courts have permitted a collateral attack based on factors other

than a lack of fundamental jurisdiction have been limited to those in which the court

entered a judgment it had no power to grant, as where the amount awarded in a default

judgment exceeded the amount requested in the complaint or where a court granted

prejudgment interest in a stipulated judgment that was contrary to statute and to a

stipulation that supported the judgment. (Buck, at pp. 1855-1856.) As explained in

Molen v. Friedman (1998) 64 Cal.App.4th 1149, "[a] collateral attack will lie only for a

claim that the judgment is void on its face for lack of personal or subject matter

jurisdiction or for the granting of relief which the court has no power to grant.

[Citations.] . . . However, a collateral attack will not lie for a claim that the judgment is

not supported by substantial evidence [citations]." (Id. at pp. 1156-1157, italics added.)

Here, Dorrin's claim of error as to the denial of his motion under section 473,

subdivision (d), fails because he has not provided any authority to establish that the

particular type of error he alleges rendered the underlying judgment void—i.e. the

12 determination in the underlying action that NCM was the real party in interest entitled to

prosecute the present action—falls within any of the recognized grounds for allowing

collateral attack on the judgment under section 473, subdivision (d). Indeed, because the

motion under section 473, subdivision (d), is a collateral attack on the underlying

judgment, our determination of whether the order is void on its face for lack of

jurisdiction must be "limited to a consideration of matters which appear in the judgment

roll or are admitted by the parties." (Phelan v. Superior Court (1950) 35 Cal.2d 363,

372-373; accord, Harley v. Superior Court (1964) 226 Cal.App.2d 432, 437 ["[T]o be

attackable collaterally for lack of jurisdiction the judgment must be void on its face, and

it is not void on its face unless the record affirmatively shows that the court was without

jurisdiction to render the judgment [citations]. The record is the judgment-roll and upon

collateral attack is the only evidence that can be considered in determining the question

of jurisdiction. Extrinsic evidence is wholly inadmissible, even though it might show that

jurisdiction did not in fact exist [citations]."].) Nothing on the face of the judgment roll

demonstrates the court lacked jurisdiction over this action because NCM was not the real

party in interest entitled to prosecute this action, and therefore Dorrin's claim under

section 473, subdivision (d), does not have merit.

On appeal, Dorrin makes no claim the court that entered the judgment lacked

subject matter jurisdiction or lacked in personam jurisdiction over Dorrin, or that Dorrin

lacked notice, or that the court's judgment granted relief beyond the power vested in the

trial court, which are the limited grounds upon which a party may seek relief under

13 section 473, subdivision (d).10 Instead, Dorrin argues there was some extrinsic evidence

raising questions whether the action should have been filed in the name of some other

real party in interest. Although this claim could properly have been raised at any point

during the underlying proceedings (see, e.g., Tinsley v. Palo Alto Unified School Dist.

(1979) 91 Cal.App.3d 871, 883), Dorrin cites no authority holding a party may

collaterally attack a judgment as void based on a claim that the action was not pursued

by, and the judgment was not obtained in the name of, the real party in interest.

DISPOSITION

The purported appeal from the judgment is dismissed. The order denying the

motion to vacate the judgment is affirmed. NCM is entitled to costs on appeal.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

10 Where, as here, an appellant does not support a point with pertinent citations of authority, we may treat the point as waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

14