Balcom v. Hiller

• Decision Date: 02 July 1996
• Docket Number: No. B085703,B085703
• Citation: 46 Cal.App.4th 1758,54 Cal.Rptr.2d 536
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 5021, 96 Daily Journal D.A.R. 8001 Kenneth L. BALCOM, Plaintiff and Respondent, v. Dawn HILLER, Defendant and Appellant.

Page 536

54 Cal.Rptr.2d 536

46 Cal.App.4th 1758, 97 Cal. Daily Op. Serv. 5021,

96 Daily Journal D.A.R. 8001

Kenneth L. BALCOM, Plaintiff and Respondent, v. Dawn HILLER, Defendant and Appellant.

No. B085703.

Court of Appeal, Second District, Division 4, California.

July 2, 1996.

Certified for Partial Publication ^*.

Rehearing Denied July 22, 1996.

Review Denied Sept. 18, 1996.

[46 Cal.App.4th 1759] Dawn Hiller, in pro. per., for Defendant and Appellant.

Zoya K. Shenker, S. Pasadena, for Plaintiff and Respondent.

CHARLES S. VOGEL, Presiding Justice.

INTRODUCTION

In November 1992, Kenneth L. Balcom (Balcom) sued Dawn Hiller (Hiller) based upon his claim that she appropriated $100,000 belonging to him. After Balcom had Hiller personally served in England, Balcom had a default entered against her in March 1993 and, after later conducting a prove-up hearing, had a default judgment entered against her in July 1993. In April 1994, Hiller moved to vacate the default and default judgment and to dismiss based upon lack of personal jurisdiction and failure to comply with the rules of the Hague Service Convention. The trial court denied her motion in its entirety. This pro. per. appeal by Hiller follows. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 12, 1992, Balcom filed his verified complaint, supported by several exhibits, against Hiller and Barclay's Bank PLC (Barclay's). Balcom alleged that in November 1988, he entered into an oral agreement with Hiller that she would act as his agent in investing his funds in stocks and commodities and receive one-half the profits generated. Balcom executed a limited power of attorney to give her access to his accounts. In June 1991, Balcom discharged Hiller. In August 1991, Hiller, without Balcom's knowledge or consent, engaged in transfers of Balcom's money, ultimately resulting in the deposit of $100,000 of his funds into an account at a branch of Barclay's located in England. Based upon these allegations, Balcom alleged causes of action against Hiller for conversion and breach of fiduciary duty and against Barclay's for "money held by bank."

On March 16, 1993, Balcom dismissed Barclay's from the action without prejudice pursuant to the following agreement. Barclay's agreed that it would "not release the funds it now holds in England without a final order from a court with personal jurisdiction over Hiller and Balcom that is binding upon Balcom and Hiller [and] that in the event Balcom obtains a default judgment against Hiller and registers and enforces that judgment in England so as to bind Hiller, Barclays will honor that judgment."

In March 1993, Balcom filed a request for entry of default against Hiller. The request was supported by a declaration executed under penalty of perjury by Martin Francis Worsdall averring that he (Worsdall) had personally served Hiller on January 25, 1993, with summons and verified complaint in England. Worsdall specified the address at which service was effectuated. The request for default included a declaration that a copy thereof had been mailed to Hiller at the same address in England. The court duly entered the default on March 25, 1993.

On July 23, 1993, the trial court conducted a hearing on Balcom's motion to enter a default judgment. Balcom introduced a detailed six-page declaration, supported by six documentary exhibits, explaining the pertinent events. ¹ The court entered judgment in Balcom's favor. The judgment recites, in pertinent part: "[I]t appearing that defendant, Dawn Hiller, aka Dawn Hillier, having been regularly served with process, having failed to appear and answer the Plaintiff's [complaint] file[d] on November 12, 1992, and the default of said defendant having been duly entered on March 25, 1993, and evidence having been considered by the Court: [p] It is hereby ordered, adjudged and decreed: That Plaintiff, Kenneth L. Balcom recover from the Defendant, Dawn Hiller, aka Dawn Hillier, [p]1. The entire proceeds of the Barclay's Bank, PLC account number 90143391 in the present names of Kenneth L. Balcom, aka Ken Balcom and Dawn Hiller, aka Dawn Hillier, which constituted the specific funds converted by the Defendant, Dawn Hiller, aka Dawn Hillier, from the Plaintiff; [p]2. The sum of $100,000.00 plus prejudgment interest thereon at the rate of 10% per annum from August 23, 1991 in the amount of $15,012.37 totalling the sum of $115,012.37. Any monies recovered from the Barclay's Bank account described in number 1 above, shall be credited against this award of $115,012.37. [p]3. For punitive damages in the amount of $0. [p]4. For Plaintiff's costs of suit incurred herein in the amount of $232.00."

On January 24, 1994, Hiller, in pro. per., filed an ex parte application for order to vacate and set aside default and default judgment and to quash service of summons and dismiss action. The court's minute order states: "The court declines to rule on the ex parte application. In the alternative, the Court indicates that the matters must be scheduled as a noticed motion."

On April 8, 1994, Hiller, in pro. per., filed a formal motion to set aside the default and default judgment, to quash service of summons, and to dismiss the action. The motion was supported by Hiller's declaration. The declaration, a prolix rambling 18-page document, alleges duplicity and deceit by Balcom and various other individuals. Its most significant allegation is Hiller's denial that Worsdall served her with summons and complaint although Hiller does indicate that she resided at the address at which Worsdall averred he had served her. As to the defalcation, Hiller alleges she legitimately ordered the transfer of funds from a joint account. As to her knowledge of Balcom's lawsuit and her responses, Hiller conceded that she first learned from a third party in December 1992 that Balcom had sued her; that in March 1993 she sent a FAX to the Los Angeles Superior Court to "alert" it that Balcom was attempting to commit a fraud on the court; that she did receive by mail a copy of Balcom's March 1993 request to enter default; that she thereafter sent declarations to the clerk of the superior court denying she had ever been served in the case; that in September 1993 she learned that the default judgment had been entered against her when Balcom brought it to England in an attempt to enforce it; that she thereafter returned to California and engaged in unsuccessful settlement negotiations with Balcom in November and December of 1993; and that she had been unable to file the present motion until April 1994 due to the January 1994 Northridge earthquake, her poor health, and her inability to obtain counsel to represent her.

Hiller also contended that Balcom's service upon her as well as the entry of judgment did not conform to the rules of the Hague Service Convention and that the trial court lacked personal jurisdiction over her.

Balcom's opposition to Hiller's motion pointed out that Hiller had left California for England in September 1991, shortly after the alleged defalcation; contested Hiller's claim that she had not been personally served in England; and urged that Hiller had not acted with reasonable diligence given the concession in her declaration that she had learned of the entry of the default judgment in September 1993 but did not file her motion until April 1994.

Following a hearing at which both sides presented argument, the court denied Hiller's motion because it was untimely. Noting that Hiller conceded she had returned to California in November 1993, the court found she had had "ample opportunity since [then] to move within the six-month period in a way that did comply with the rules."

After Hiller filed a notice of appeal from the trial court's ruling, she moved to prepare a settled statement on appeal in lieu of a reporter's transcript of the April 28, 1994, proceedings. The court ultimately denied the motion because Hiller had failed to make the requisite showing that she was " 'without adequate funds to order and pay for a reporter's transcript.' " (Rule 7(a), Cal. Rules of Court.) Meanwhile, it was discovered that the superior court file was missing. Hiller moved to prepare a settled statement of the contents of the lost file. The motion was heard and denied by the same judge who had denied Hiller's earlier motion to vacate the default judgment. Each party has provided an appendix on appeal in lieu of clerk's transcript. Balcom's appendix includes a reporter's transcript of the hearing in which the trial court denied Hiller's second motion for a settled statement. Because the court's ruling sheds some light on the issues raised on this appeal, we set it forth, in toto.

"The court's clerk has just advised me that we received a written communication from the defendant [Hiller] indicating that she would not be here and that she would be out of town somewhere.... I've reviewed her motion, and there are certain things that I'd like to put on the record to make my ruling and my reasons for the ruling that more clear. When she originally brought the motion [to vacate the judgment], she brought it outside the six-month period, but as I recall, claimed that the six-month period had been extended, A, by the January 1994 earthquake, and, B, by the fact that the last day fell on a holiday. The court, after reviewing the fact that the defendant had been in this country by her own admission stated on the record since the prior November in 1993 and her acute awareness of when the six-month statute ran, found that the choice of waiting for the expiration of the six-month statute did not constitute a mistake, inadvertence, surprise or excusable neglect. In fact, I believe she was misusing the processes of this court. Despite the fact that she appeared in pro per, the sophistication of her pleadings is such that it indicates either she's extremely well informed as to the state of American law or she's being very well advised by a...