Sylvester v. Marshall CA2/3

Filed 5/19/15 Sylvester v. Marshall CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

JAMES H. SYLVESTER, B251626

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC116848)
v.

MEARL L. MARSHALL et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Richard A.
Stone, Judge. Affirmed.
James H. Sylvester, in pro. per., for Plaintiff and Appellant.
No appearance for Defendants and Respondents.
_________________________
 INTRODUCTION
Plaintiff and appellant James Sylvester obtained a default judgment against
defendants Mearl and Naseem Marshall, after they failed to respond to the summons and
complaint. The Marshalls moved to quash service of the summons and to set aside the
default judgment, on the grounds they were never served and did not have actual notice
of the action. The trial court granted the motion. Sylvester appeals from the order
granting the Marshalls’ motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 27, 2012, Sylvester sued the Marshalls for breach of contract, seeking
repayment of two loans. Sylvester filed proofs of service of the summons and complaint.
When the Marshalls didn’t respond to the summons and complaint, their default was
entered. Default judgment was eventually entered against the Marshalls on October 17,
2012, in the amount of $248,578. The minute order stating that judgment was entered
was mailed only to Sylvester, but Sylvester filed a proof of service of the judgment on the
Marshalls.
On August 22, 2013, the Marshalls moved to quash service of the summons and
complaint and to set aside the default judgment. The Marshalls asserted that the proofs of
service Sylvester filed were fraudulent. The Marshalls were at church when the
summons and complaint were allegedly personally served at 7:00 p.m. on May 1, 2012.
They did not receive the request for entry of default and statement of damages. The
Marshalls first “discovered” this action on April 21, 2013, when they received an abstract
of judgment from the county recorder’s office. To support their motion, the Marshalls
also submitted their attorney, Gerard Fierro’s, declaration. Fierro had represented
Sylvester’s ex-wife, Mumtaz Chunara, in her divorce action against Sylvester.1 In that
action, Sylvester filed motions that Fierro never received. Sylvester also presented a
settlement agreement allegedly signed by Pedram Mansouri, Chunara’s former attorney.

1
Sylvester was declared a vexatious litigant in his divorce action. Sylvester
apparently filed two other actions against the Marshalls.

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Mansouri, however, denied signing the agreement or appearing before a notary public as
indicated on the agreement. The notary public declared that she did not notarize the
agreement and that Mansouri and Sylvester did not appear in front of her.
The hearing on the Marshalls’ motion was scheduled for September 13, 2013.
Two days before the hearing, Sylvester filed an untimely opposition.2 The trial court did
not consider the opposition, because it was not in the court’s file. Sylvester asserted,
among other things, that the proofs of service were “genuine,” and he submitted letters
from process servers Lue Wahjudi and Linda Becerra indicating that the proofs of service
were genuine.
On September 13, 2013, the trial court, Judge Richard A. Stone, granted the
motion to quash and to set aside the judgment. The court found, among other things, that
“[e]vidence has been proffered that suggests something untoward may have occurred
regarding the proof of service” and that the Marshalls promptly moved to set aside the
judgment upon receiving notice of it. Citing the “ ‘strong policy of hearing cases on their
merits,’ ” the court granted the motion to quash and to set aside the default and default
judgment, under Code of Civil Procedure sections 418.10 and 473.5.3
Sylvester filed this timely appeal. (§ 904.1, subd. (a)(3).)

2
Sylvester also filed, on September 9, 2013, a request to continue the hearing on the
motion to quash on the grounds he was ill and had not received the moving papers.
3
All further undesignated statutory references are to the Code of Civil Procedure.

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 DISCUSSION
The gist of Sylvester’s appeal is the trial court erred by granting the motion to
quash service of the summons and complaint and to set aside the judgment, under
sections 418.104 and 473.55. We disagree.
In the absence of valid service, a court lacks jurisdiction over defendants. (Dill v.
Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440; §§ 410.50 [summons
may be served by personal delivery], 418.10, subd. (a)(1).) When a defendant moves to
quash service, the plaintiff has the burden to establish jurisdiction by a preponderance of
the evidence. (Dill, at p. 1440; see School Dist. of Okaloosa County v. Superior Court
(1997) 58 Cal.App.4th 1126, 1131; Paneno v. Centres for Academic Programmes Abroad
Ltd. (2004) 118 Cal.App.4th 1447, 1454 [plaintiff can meet this burden “only by the
presentation of competent evidence in affidavits or declarations and authenticated
documentary evidence”].) The plaintiff must prove “the facts requisite to an effective
service.” (Dill, at p. 1440.) Where there is conflicting evidence, we will not disturb the
trial court’s factual determinations if supported by substantial evidence. (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449; Paneno, at p. 1454.)
Where there is no conflict in evidence, the question is one of law, subject to independent
review. (Vons Companies, Inc., at p. 449.)

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“(a) A defendant, on or before the last day of his or her time to plead or within
any further time that the court may for good cause allow, may serve and file a notice of
motion for one or more of the following purposes: [¶] (1) To quash service of summons
on the ground of lack of jurisdiction of the court over him or her.” (§ 418.10, subd. (a).)
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“(a) When service of a summons has not resulted in actual notice to a party in
time to defend the action and a default or default judgment has been entered against him
or her in the action, he or she may serve and file a notice of motion to set aside the
default or default judgment and for leave to defend the action. The notice of motion shall
be served and filed within a reasonable time, but in no event exceeding the earlier of: (i)
two years after entry of a default judgment against him or her; or (ii) 180 days after
service on him or her of a written notice that the default or default judgment has been
entered.” (§ 473.5, subd. (a).)

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 A motion for relief under section 473.5 is reviewed for an abuse of discretion.
(Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898 [doubts should be resolved in
favor of an application to set aside a default]; see Strathvale Holdings v. E.B.H. (2005)
126 Cal.App.4th 1241, 1249.) “A party seeking relief under section 473.5 must provide
an affidavit showing under oath that his or her lack of actual notice in time to defend was
not caused by inexcusable neglect or avoidance of service.” (Anastos v. Lee (2004)
118 Cal.App.4th 1314, 1319.)
Here, Sylvester did not meet any initial burden he had of establishing jurisdiction
over the Marshalls. Sylvester filed his opposition to the Marshalls’ motion a mere two
days before the hearing on the motion. The court therefore did not have the opposition in
its file. The court was well within its discretion to refuse to consider the late opposition.
(Cal. Rules of Court, rule 3.1300(d) [court may refuse to consider a late filed paper];
Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1146.) Moreover,
Sylvester appeared at the hearing on the motion to quash, but the proceeding was
unreported. Sylvester has not submitted any record of that proceeding in the form of a
settled or agreed statement. (Cal. Rules of Court, rules 8.120(b), 8.134, 8.137.)
Sylvester, as the appellant, had a duty to provide an adequate record to demonstrate error.
(Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1; Rossiter v. Benoit (1979)
88 Cal.App.3d.706, 712, overruled on another ground by Wilson v. Garcia (1985)
471 U.S. 261.) To the extent the record here precludes an adequate review of, for
example, what, if any, objections to the motion the trial court considered at the hearing,
we make all reasonable inferences in favor of the order. (Rossiter, at p. 712.)6
The evidence that was before the trial court supports its finding that “something
untoward may have occurred regarding the proof of service.” (See, e.g., American
Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 391-392 [where a process

6
Sylvester’s opening brief on appeal also contains no citations to legal authority.
“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as waived.” (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785.)

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server untruthfully declares that he personally served the defendant, even undisputed
actual notice to defendant “cannot suffice to uphold jurisdiction of the court”].) Here, the
proof of service of the summons and complaint on Naseem Marshall states that “Lue
Wahjudi” “personally delivered the documents . . . to the party or person authorized to
receive service of process” on May 1, 2012, at 7:00 p.m., at the Marshalls’ home on
Bledsoe. The “Notice to the Person Served” was completed by checking “as an
individual defendant.” Both of the Marshalls, however, denied being home at that time
and denied being served. The Marshalls also said they never received either the request
for entry of default, which was allegedly served on June 5, 2012, or the statement of
damages, which was allegedly served on June 28, 2012. Rather, they first discovered this
action on April 21, 2013, when they received an abstract of judgment.
To substantiate the Marshalls’ claim they were never served with the summons
and complaint, their attorney contacted process server Lue Wahjudi, who said he never
used the address listed as his on the proofs of service; did not recall a client named
Sylvester; and did not recall serving a husband and wife at the Marshalls’ address.7 The
proofs of service also contain an inconsistency: the proofs of service of the summons
state that Wahjudi’s registration number is “5964,” but the proof of service of the
statement of damages states that Wahjudi’s registration number is “4964.” Fierro also
tried to locate Linda Becerra, who allegedy served the request for entry of default. He
called the phone number associated with her business address listed in the proof of
service and was told that no person named Linda Becerra had ever worked there.
In addition to evidence that the proofs of service in this case were inaccurate, there
was evidence Sylvester filed false documents in other cases. In his divorce action,
Sylvester presented a written agreement purportedly signed by Mansouri, the attorney
representing Sylvester’s ex-wife. But Mansouri denied signing the agreement. The

7
The record does not show that proper objections to any evidence submitted in
support of the motion to quash were raised.

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notary public before whom the agreement was allegedly executed denied notarizing the
acknowledgment forms.
This evidence is sufficient to support the trial court’s conclusion that the Marshalls
were not served and did not have actual notice of the action. Neither an insufficiency of
the evidence nor an abuse of discretion has therefore been demonstrated that would
justify reversing the court’s order.
One final note: to the extent Sylvester raises a claim that Judge Richard A. Stone
was biased and that the matter should have been assigned to Judge Norman Tarle, the
claim is meritless. Nothing in the record casts doubt on Judge Stone’s impartiality. (See
In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1328 [“the mere fact a judicial
officer rules against a party does not show bias”].)

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 DISPOSITION
The order is affirmed. No appearance having been made by respondents, no costs
on appeal are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

EDMON, P. J.

KITCHING, J.

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