When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment.
Technically, you can do both. But don’t. That is what the defendant tried in HFL Law Group v. Schermer (D2d3 Feb. 10, 2022 no. B309020) 2022 WL 406947 (nonpub. opn.). The defendant moved to vacate the prejudgment entry of default, lost that motion, and then when default judgment was entered, moved to vacate that, too.
The upshot: Don’t make the same argument in successive motions to vacate. When the defendant lost the first motion to vacate, and the judgment was entered, the issues were fully and finally adjudicated. At that point, the defendant’s remaining move was to appeal the judgment. The defendant did not appeal, and instead filed a motion to vacate the judgment, arguing the same grounds as before.
Her appeal of the denial of her second motion was timely, and the order was appealable, but to no avail: the issues were already final and the Court of Appeal lacked jurisdiction to disturb them.
This case raises an interesting nuance of appellate procedure. Notice that the defendant filed a timely appeal. The order was an appealable order. Yet the Court of Appeal still could not review the order. Why?
The answer has to do with what is called the “one shot” rule. “California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited. (See § 906 [the powers of a reviewing court do not include the power to ‘review any decision or order from which an appeal might have been taken’ but was not]; ....)” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Thus, the issues determined in an appealable judgment or order from which no timely appeal was taken are res judicata. (In re Matthew C. (1993) 6 Cal.4th 386, 393, superseded by statute on other grounds as stated in People v. Mena (2012) 54 Cal.4th 146, 157; In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185-1186; Eisenberg, supra, ¶ 2:13.5.)
Here, the defendant filed a prejudgment motion to vacate default. She argued she never received service, and that the proof of service was false because she could prove the process server never came to her home. The trial court sustained evidentiary objections to the defendant’s evidence and denied the motion.
But when the trial court entered judgment, the defendant did not appeal the judgment. Instead, the defendant filed her same motion again, and then appealed the order denying the motion. That was a mistake. “Once the default judgment became final, however, Schermer became bound under res judicata principles by Judge Fujie's jurisdictional ruling that she had been properly served.”
Nor could the defendant get around the “one shot” rule simply by arguing the judgment was “void.” “A litigant is not permitted to keep re-filing the same challenge to jurisdiction simply by characterizing it as an argument that the judgment is void.”
The Upshot: When a trial court enters an order rejecting a key argument, that is the time to consider your appellate options. If you are considering raising the same argument before the court a second time, beware.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.
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