Pierce v. Heiple CA2/1 ( 2020 )

Filed 12/21/20 Pierce v. Heiple CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
KIP PIERCE, B298594
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC663601)
v.
LISA HEIPLE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Monica Bachner, Judge. Affirmed.
Kip Pierce, in pro. per., for Plaintiff and Appellant.
Law Offices of Gary E. Shoffner and Gary E. Shoffner for
Defendant and Respondent.
____________________________
Plaintiff and respondent Kip Pierce (plaintiff), in propria
persona both below and on appeal, filed a complaint alleging that
his ex-wife, defendant and respondent Lisa Heiple (defendant),
fraudulently attempted to assert a lien against settlement
proceeds he obtained in a separate lawsuit. The complaint
alleged that defendant’s husband, Jeff Heiple, aided and abetted
defendant in her misconduct. Defendant and Jeff Heiple did not
respond to the complaint, and the trial court entered default
against them.
Defendant later appeared and successfully moved to vacate
her default. She then filed an anti-SLAPP motion, and the trial
court struck all causes of action alleged against her.
Plaintiff moved under Code of Civil Procedure1 section 473,
subdivision (d), to set aside the orders vacating default and
granting the anti-SLAPP motion, claiming those orders were
void. The trial court denied the motions. Ultimately, the trial
court dismissed the complaint entirely, concluding that
defendant’s exoneration also exonerated Jeff Heiple, her alleged
aider and abettor.
On appeal, plaintiff challenges (1) the trial court’s denial of
his motions to set aside the orders vacating default and granting
the anti-SLAPP motion; (2) the trial court’s dismissal of the
complaint; and (3) the trial court’s failure to hear a motion to
amend the complaint before granting dismissal.
We conclude the trial court acted within its jurisdiction
when it vacated defendant’s default and granted the anti-SLAPP
motion, and therefore those orders were not void. The trial court
1Unspecified statutory references are to the Code of Civil
Procedure.
2
properly dismissed the complaint because Jeff Heiple’s liability
depended on defendant’s liability, and the anti-SLAPP statute
shielded defendant from liability to plaintiff. Finally, we
conclude plaintiff’s motion to amend the complaint was untimely,
and plaintiff has not provided a sufficient record for us to
determine whether the trial court erred by not shortening time to
hear that motion.
Accordingly, we affirm. We deny as moot defendant’s
motion to dismiss the appeal.
PROCEDURAL BACKGROUND
The record is very lengthy. We limit our summary to those
facts relevant to our resolution of this appeal.
1. Complaint
In June 2017, plaintiff, in propria persona, filed a
complaint against defendant, his ex-wife. The complaint also
named as defendants Jeff Heiple, who was defendant’s then
husband, and two entity defendants, Heiple Family Trust and
Heiple Homes dba Ten Mile Lake Properties LLC (Heiple
Homes). The complaint alleged that the trust defendant was the
alter ego of both defendant and Jeff Heiple, and Heiple Homes
was the alter ego of defendant.
Plaintiff alleged the following: After plaintiff’s and
defendant’s divorce and related litigation, an Oregon court in
2004 issued a judgment requiring plaintiff to pay defendant
$25,000 in monthly installments of $100.
In 2006, plaintiff settled an unrelated civil action in
California in which defendant was not involved. Defendant filed
a notice of lien on plaintiff’s settlement proceeds, falsely claiming
plaintiff owed her a lump sum under the Oregon judgment.
3
Defendant allegedly instructed her accountant to provide false
accounting supporting her claim, and “forum shopped” to find a
California court that would accept her position.
Plaintiff and defendant returned to court in Oregon, and in
2014, an Oregon appellate court ruled in plaintiff’s favor,
confirming he had no unpaid balance owed to defendant.
Defendant then filed purportedly “sham” actions in Oregon in an
unsuccessful attempt to undercut the Oregon appellate decision.
Ultimately, defendant stopped contesting the matter and the
settlement proceeds were released to plaintiff.
The complaint contains the following summary of plaintiff’s
claims: “This matter before the court is for the damages that
occurred as a result of the falsified documents, claims and
accountings [defendant] deceitfully used in her fraudulent
attempts to make it appear in a court of law that the entire
unpaid balance of the final 2004 Oregon installment judgment
was immediately due and owing with falsified excessive interest,
when it clearly never was, so that [defendant] could unlawfully
convert [plaintiff’s] personal property.”
Plaintiff alleged five causes of action. The first was against
defendant for conversion; the second was against defendant for
fraud, deceit, and misrepresentation; the third was against
defendant for abuse of process; the fourth was against Jeff Heiple
for aiding and abetting defendant; and the fifth was against
defendant for negligent infliction of emotional distress. Although
listed as defendants, the complaint did not allege any causes of
action against Heiple Family Trust or Heiple Homes.
2. Default
None of the defendants responded to the complaint, and the
trial court entered their defaults at plaintiff’s request. Before
4
plaintiff obtained a default judgment, however, defendant
appeared, and filed a motion to vacate the entry of default
against her. Defendant contended that plaintiff had never served
her with the summons or complaint, and the proofs of service
filed by plaintiff were false.
Defendant supported her motion with declarations from
herself, Jeff Heiple, and two other people. Plaintiff filed a
competing declaration from the purported process server. The
trial court acknowledged the “conflicting evidence,” but “g[ave]
more weight to the evidence submitted by Defendant,” and on
January 5, 2018, set aside the default under section 473,
subdivision (d).
Jeff Heiple and the entity defendants did not appear, and
thus the trial court’s order setting aside defendant’s default left
in place the defaults entered against the other defendants.
3. Special motion to strike
On January 8, 2018, three days after the trial court set
aside the default, defendant filed a special motion to strike under
section 425.16, the anti-SLAPP statute. Plaintiff opposed the
motion.
Following a hearing, the trial court granted the special
motion to strike on February 5, 2018. The trial court found that
the first, second, third, and fifth causes of action arose out of
activities protected under the anti-SLAPP statute, namely
“Defendant’s alleged filing of complaints/actions, fraudulent
‘figures’/accounting/documents, and fraudulent Notice(s) of Lien
in court action(s).” The trial court further found that the
litigation privilege (Civ. Code, § 47, subd. (b)) shielded
defendant’s alleged conduct, and plaintiff therefore failed to
5
demonstrate a probability of prevailing on the first, second, third,
and fifth causes of action.
Plaintiff moved for a new trial on the anti-SLAPP motion,
which the trial court denied on April 5, 2018. Plaintiff did not
appeal from the grant of the anti-SLAPP motion. (See § 904.1,
subd. (a)(13) [“order granting or denying a special motion to
strike under Section 425.16” is appealable].)
4. Plaintiff’s first motion to set aside orders
On July 24, 2018, plaintiff filed a motion to set aside the
trial court’s January 5, 2018, order vacating defendant’s default,
and the February 5, 2018, order granting defendant’s anti-SLAPP
motion.2 Plaintiff based his motion on section 473,
subdivision (b), claiming extrinsic fraud or mistake, and
section 473, subdivision (d), claiming clerical error and that the
orders were void. Among other things, plaintiff argued the trial
court had no jurisdiction because defendant’s purportedly
fraudulent notice of lien was based on an Oregon judgment.
The trial court denied plaintiff’s motion on October 22,
2018.
5. Proceedings leading to judgment
On October 26, 2018, in responding to plaintiff’s request for
default judgment against Jeff Heiple and the entity defendants,
the trial court sua sponte issued an order to show cause why it
should not deny the request and dismiss the case. The trial court
reasoned that Jeff Heiple’s and the entity defendants’ liability
2 Plaintiff also moved to set aside the trial court’s order
denying his motion for a new trial. That order is not at issue in
this appeal.
6
was derivative of defendant’s liability, and defendant had no
liability by virtue of the trial court’s ruling in defendant’s favor
on the anti-SLAPP motion. The trial court granted a continuance
at plaintiff’s request on January 17, 2019, and set the hearing on
the order to show cause for April 26, 2019.
Plaintiff subsequently filed a series of motions that we
summarize in turn.
On January 17, 2019, plaintiff filed a motion once again
seeking to set aside the January 5, 2018 order vacating the
default against defendant. Plaintiff contended the trial court’s
conclusion that defendant’s evidence of improper service
outweighed plaintiff’s contrary evidence was a “clerical mistake”
correctable under section 473, subdivision (d). Plaintiff further
argued the order was void for lack of jurisdiction: “The [trial]
Court had no power to grant relief to Defendants because the
Defendants were served and chose not to answer the complaint . .
. .” The motion was noticed for April 26, 2019.
On March 29, 2019, plaintiff filed a motion under
section 473, subdivision (d) again seeking to set aside the
February 5, 2018 order granting defendant’s anti-SLAPP motion.
Plaintiff contended the trial court’s evidentiary conclusions were
clerical mistakes, and the trial court lacked subject matter
jurisdiction under principles of res judicata and full faith and
credit, which favored the Oregon judgment. The motion was
noticed for July 5, 2019.
Also on March 29, 2019, plaintiff filed a motion for leave to
file an amended complaint. Plaintiff wished to add a new
defendant (unidentified in the motion) and additional causes of
action based on facts purportedly discovered after the filing of the
original complaint. The motion stated, “Some causes of action[ ]
7
may include (1) extortion, (2) libel per se, (3) intentional infliction
[of] emotional distress, [and] (4) defamation per se.” The motion
was noticed for July 12, 2019.
Plaintiff applied ex parte to shorten time to hear his motion
to set aside the grant of the anti-SLAPP motion and his motion
for leave to amend the complaint. The trial court granted the
application as to the motion to set aside, advancing that hearing
to the same day as the order to show cause, April 26, 2019. The
trial court did not grant the application as to the motion for leave
to amend, which remained scheduled for hearing on July 12,
2019.3
On April 12, 2019, plaintiff filed a “motion for order to show
cause not to dismiss” and a “request for default judgment.” This
motion was, in essence, an opposition to the trial court’s order to
show cause regarding dismissal. Plaintiff argued that
Jeff Heiple’s liability was not dependent on defendant’s liability
because Jeff Heiple had declared he was not a trustee of Heiple
Family Trust. Plaintiff did not elaborate on this argument.
6. Judgment
Following the hearing on April 26, 2019, the trial court
denied plaintiff’s motions to set aside the orders vacating
defendant’s default and granting her anti-SLAPP motion. The
court found the two motions were “actually improper and
untimely motions for reconsideration. [Citation.] Moreover,
3 The minute order addressing the ex parte application has
several typographical errors that make it difficult to understand,
but the only hearing it refers to rescheduling is the July 5, 2019,
hearing, which was the hearing on the motion to set aside the
grant of the anti-SLAPP motion.
8
based upon the Court’s review, there is no basis to set aside
either order.” The court further ordered the complaint dismissed
with prejudice because the only remaining cause of action was for
aiding and abetting the causes of action struck under the anti-
SLAPP statute.
The trial court vacated the later-scheduled hearing on
plaintiff’s motion for leave to amend the complaint, stating, “I’m
not going to hear a motion to amend a complaint after I’ve signed
the judgment.”
The trial court dismissed all causes of action with prejudice
and entered judgment in favor of defendants. Plaintiff appealed.4
DISCUSSION
A. The Orders Setting Aside Defendant’s Default and
Granting Her Anti-SLAPP Motion Are Not Void
Section 473, subdivision (d) provides, in relevant part:
“The court may, . . . on motion of either party after notice to the
other party, set aside any void judgment or order.”5 “A judgment
[or order] is void to the extent it provides relief ‘which a court
under no circumstances has any authority to grant.’ ” (Doppes v.
4 Plaintiff’s notice of appeal states that plaintiff appeals
from “[a]n order after judgment . . . .” All of the orders challenged
in this appeal, however, were entered before judgment. We
therefore construe this appeal as an appeal from a judgment of
dismissal.
5 Section 473, subdivision (d) also provides for correction of
“clerical mistakes,” a principle upon which plaintiff relied in his
motions below, in addition to arguing the orders were void. He
does not invoke that principle on appeal, however, and we do not
address it further.
9
Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1009 (Doppes).)
Examples include judgments or orders entered when the court
“ ‘lack[ed] fundamental authority over the subject matter,
question presented, or party . . . .’ ” (Vitatech Internat., Inc. v.
Sporn (2017) 16 Cal.App.5th 796, 807; see, e.g., Sindler v.
Brennan (2003) 105 Cal.App.4th 1350, 1352 [judicial proceedings
in violation of automatic bankruptcy stay void]); Renoir v.
Redstar Corp. (2004) 123 Cal.App.4th 1145, 1154 (Renoir)
[default judgment void when defendant not properly served];
Dhawan v. Biring (2015) 241 Cal.App.4th 963, 974 [default
judgment awarding more than was demanded in complaint
void].)
In contrast, “[e]rrors of substantive law are within the
jurisdiction of a court and are not typically acts beyond the
court’s fundamental authority to act.” (Fireman’s Fund Ins. Co.
v. Workers’ Comp. Appeals Bd. (2010) 181 Cal.App.4th 752, 767
(Fireman’s Fund).) Put another way, errors of law do not render
a judgment void, so long as the court “ ‘ “has jurisdiction in the
‘fundamental sense’ (i.e., jurisdiction over the subject matter and
the parties) . . . .” ’ ” (Ibid.)
Motions under section 473, subdivision (d) are not subject
to time limits: “ ‘ “It is well settled that a judgment or order
which is void on its face, and which requires only an inspection of
the judgment-roll or record to show its invalidity, may be set
aside on motion, at any time after its entry, by the court which
rendered the judgment or made the order. [Citations.]”
[Citations.]’ ” (Tearlach Resources Limited v. Western States
Internat., Inc. (2013) 219 Cal.App.4th 773, 779.)
10
We review de novo the trial court’s determination whether
an order should be set aside as void. (Mack v. All Counties
Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940.)
The trial court concluded plaintiffs’ motions to set aside the
trial court’s orders vacating defendant’s default and granting her
anti-SLAPP motion were in fact untimely motions for
reconsideration of those earlier orders. Both motions, however,
purport to challenge the trial court’s jurisdiction to issue the
earlier orders. That is sufficient to bring the motions within the
ambit of section 473, subdivision (d).6 Indeed, the trial court
accounted for this, alternatively ruling on the merits that the
motions lacked any basis to set aside the orders.
1. The order setting aside defendant’s default is
not void
We disagree with plaintiff that the trial court lacked
fundamental jurisdiction to vacate the default entered against
defendant. Section 473, subdivision (d) grants trial courts the
authority to set aside orders they determine are void. Orders
pertaining to defendants who have not been properly served are
void. (Renoir, supra, 123 Cal.App.4th at p. 1154.) The trial court
therefore had jurisdiction to determine if plaintiff properly had
6 Arguably, plaintiff’s motions could be construed as
motions to reconsider the trial court’s October 22, 2018, denial of
plaintiff’s first attempt to set aside the vacation of default and
grant of the anti-SLAPP motion, in which case they would appear
to be untimely. (See § 1008, subd. (a) [10-day deadline for
reconsideration motions].) We need not decide that question,
however, because even construed as motions under section 473,
subdivision (d), as plaintiff contends, plaintiff does not prevail on
the merits.
11
served defendant, and if not, to set aside the default based on
such a finding.
Plaintiff contends the evidence showed defendant had been
properly served, or at least, was constructively aware of the
litigation, and therefore the trial court had no basis to set aside
the default. He claims the evidence he provided of proper service
and/or constructive awareness “incontrovertibly outweighs the
evidence” submitted by defendant. This evidentiary challenge
goes to the merits of the trial court’s specific determination in
this case, not its fundamental authority over the parties and the
subject matter. (Fireman’s Fund, supra, 181 Cal.App.4th at
p. 767 [“ ‘insufficiency of evidence’ ” is a “ ‘nonjurisdictional
error[ ]’ ”].) Plaintiff’s argument does not establish that the trial
court’s order was void under section 473, subdivision (d).
2. The order granting defendant’s anti-SLAPP
motion is not void
We also disagree with plaintiff that it was not within the
trial court’s power to grant defendant’s anti-SLAPP motion. Trial
courts unquestionably have that authority under section 425.16,
the anti-SLAPP statute, which provides, “A cause of action
against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (§ 425.16, subd. (b)(1).) The trial court
therefore acted within its jurisdiction when it determined that
plaintiff’s first through third and fifth causes of action arose from
12
constitutionally protected activity and that plaintiff had failed to
show a probability of prevailing on those claims.
The thrust of plaintiff’s argument to the contrary is that
any entitlement defendant had to plaintiff’s settlement proceeds,
against which she asserted a lien, depended on rulings by the
Oregon courts. Those courts had determined that defendant
was not entitled to anything, a ruling plaintiff contends bound
the trial court under principles of res judicata and full faith and
credit. Plaintiff concludes from this that the trial court lacked
jurisdiction to protect defendant under the anti-SLAPP statute,
presumably because the Oregon rulings rendered defendant’s
attempt to assert a lien meritless and illegal. Plaintiff further
argues that the trial court wrongly concluded the litigation
privilege protected defendant’s filing of her notice of lien.
Plaintiff also raises procedural challenges, including claiming the
trial court abused its discretion by hearing what plaintiff
contends was a late-filed anti-SLAPP motion. (§ 425.16, subd. (f)
[anti-SLAPP motions “may be filed within 60 days of the service
of the complaint or, in the court’s discretion, at any later time
upon terms it deems proper.”].)
Again, an order may be set aside as void only “to the extent
it provides relief ‘which a court under no circumstances has any
authority to grant.’ ” (Doppes, supra, 174 Cal.App.4th at p. 1009.)
Plaintiff does not argue, nor could he, that that the trial court
“ ‘under no circumstances has any authority to grant’ ” an anti-
SLAPP motion. Rather, plaintiff’s arguments go to the specific
circumstances of this case, namely, whether the trial court
properly determined that defendant’s alleged conduct was
constitutionally protected and that plaintiff had no probability of
prevailing on his causes of action. Assuming arguendo the trial
13
court ruled incorrectly in this case, that does not mean it lacked
fundamental authority to adjudicate an anti-SLAPP motion
seeking to strike a complaint filed in that court.
B. The Trial Court Properly Dismissed the Cause of
Action Against Jeff Heiple
We reject plaintiff’s argument that the trial court erred in
dismissing the fourth cause of action against Jeff Heiple, despite
the entry of default against him.
“A default judgment may be improper against one of
several codefendants if the other has raised defenses which, if
proven, would establish the nonliability of the defaulting
defendant.” (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2018) ¶ 5:263, italics omitted.)
Thus, for example, an employee’s successful defense against a
negligence claim also exonerated his defaulting employer, sued
under the theory of respondeat superior. (Plott v. York (1939)
33 Cal.App.2d 460, 463.) In such a case, “the plaintiff cannot
take judgment against the defendant in default, for the reason
that upon the whole record it appears that plaintiff has no right
of action.” (Ibid.) Similarly, “[t]he rule is definitely established
that where there are two or more defendants and the liability of
one is dependent upon that of the other[,] the default of one of
them does not preclude his having the benefit of his codefendants
establishing, after a contested hearing, the nonexistence of the
controlling fact; in such case the defaulting defendant is entitled
to have judgment in his favor along with the successful
contesting defendant.” (Adams Mfg. & Engineering Co. v. Coast
Centerless Grinding Co. (1960) 184 Cal.App.2d 649, 655.)
Here, the fourth cause of action alleged that Jeff Heiple
aided and abetted defendant’s “wrongful actions involving fraud
14
and deceit to unlawfully convert [plaintiff’s] personal
property . . . .” Thus, Jeff Heiple’s liability was dependent on,
and derivative of, defendant’s liability. Because the trial court
ruled that defendant’s alleged conduct was shielded by the anti-
SLAPP statute, and therefore not actionable, Jeff Heiple’s alleged
aiding and abetting of that conduct similarly was not actionable.
As in Plott, the exoneration of defendant also exonerated her
alleged aider and abettor, even though he was in default.
Plaintiff argues, as he did below, that Jeff Heiple stated in
a declaration that he was not a trustee of the Heiple Family
Trust. “Thus,” argues plaintiff, “there is no alter ego for Jeff
Heiple and the default judgment applies to Jeff Heiple. In other
words, Jeff Heiple is not dependent on [defendant].”
Our holding on this issue has nothing to do with the trust
or alter egos. Jeff Heiple’s liability is dependent on defendant’s
liability not because of any legal relationship, but because
plaintiff alleged that Jeff Heiple assisted defendant in the
misconduct underlying the causes of action alleged against her.
Plaintiff does not challenge the trial court’s dismissal of the
complaint in regard to Heiple Family Trust and Heiple Homes,
and therefore gives us no cause to reverse the judgment as to
those defendants.
C. The Trial Court Did Not Err in Not Allowing Plaintiff
to Amend the Complaint
As discussed earlier, the trial court vacated the hearing on
plaintiff’s motion for leave to amend his complaint, which was set
to be heard in July 2019, months after the trial court entered
judgment. Plaintiff objects that the trial court did not grant his
ex parte request to shorten time to hear the motion. He also
15
contends his motion for leave to amend established that he could
cure any defects in his original complaint.
Plaintiff has not provided a sufficient record for us to
determine whether the trial court erred by not granting the
ex parte request to shorten time. (Wagner v. Wagner (2008)
162 Cal.App.4th 249, 259 [appellant has affirmative obligation to
provide adequate record to assess claim of abuse of discretion].)
The record contains a declaration from plaintiff purportedly filed
concurrently with the ex parte application, but the application
and any supporting memorandum of points and authorities
are not themselves in the record. There is no reporter’s
transcript of the ex parte proceeding, and the trial court’s minute
order does not explain its reasoning for not granting the
application. “ ‘A judgment or order of the lower court is
presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.’ ” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564, italics omitted.) Thus, “[t]he
absence of a record concerning what actually occurred at the
hearing precludes a determination that the court abused its
discretion.” (Wagner, at p. 259.)
Absent a showing that the trial court erred in not
shortening time, we must conclude the trial court properly
declined to hear the motion for leave to amend the complaint,
which was scheduled for hearing months after the hearing on the
order to show cause at which the trial court dismissed the
complaint with prejudice. Because the trial court did not reach
the merits of the motion for leave to amend, we decline to do so as
well.
16
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal. Defendant’s motion to dismiss the appeal is
denied as moot.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
17