Nagel v. P & M Distributors, Inc.

• Decision Date: 21 May 1969
• Citation: 78 Cal.Rptr. 65,273 Cal.App.2d 176
• Court: California Court of Appeals Court of Appeals
• Parties: Otto NAGEL, Plaintiff and Appellant, v. P & M DISTRIBUTORS, INC., Defendant and Respondent. Civ. 33300.

Page 65

78 Cal.Rptr. 65

273 Cal.App.2d 176

Otto NAGEL, Plaintiff and Appellant, v. P & M DISTRIBUTORS, INC., Defendant and Respondent.

Civ. 33300.

Court of Appeal, Second District, Division 1, California.

May 21, 1969.

Rehearing Denied June 17, 1969.

Hearing Denied July 16, 1969.

Joseph Stell and Arthur S. Levine, Los Angeles, for appellant.

Franklin D. Laven, Los Angeles, and Harvey Giss, Los Angeles, for respondent.

LILLIE, Associate Justice.

On November 2, 1965, plaintiff filed suit against defendant P & M Distributors, Inc., a New York corporation, for damages for breach of contract, monies owed, reasonable value of services and for an accounting. According to Declaration of Service executed by Robert H. Odenthal on November 29, 1965, defendant corporation was served by serving Ulf Ljungberg on November 29, 1965, with copy of Summons and Complaint pursuant to section 410, Code of Civil Procedure. No appearance having been made by defendant, plaintiff on March 10, 1966, made request for entry of default; it was denied because service had not been made 'per sect 411 C.C.P.' Eight months after the alleged service on November 29, 1965, Odenthal on July 22, 1966, executed another Declaration of Service alleging that his November 29, 1965, service was on Ljungberg as 'a person authorized to receive service of process pursuant to C.C.P. SECTION 411.' It was not until two months later on October 6, 1966, another request for entry of default was made and denied; thereafter on October 17, 1966, a third request was granted based on the Declaration of Service dated July 22, 1966. Thus, almost a year after service was alleged to have been made on defendant, plaintiff's counsel on November 22, 1966, presented to the court Attorney's Statement of Facts and on November 23, 1966, judgment was taken against defendant for $8,402.81. Garnishment on money owed to defendant by Hollywood Sporting Goods followed for said sum on December 14, 1966. Almost a year later defendant on December 12, 1967, moved to vacate the judgment on the ground that personal jurisdiction was lacking because there had been no service of summons or process on it. In support of the motion defendant filed Affidavit of Claes Corin, president and chief executive officer of P & M Distributors, Inc., a New York corporation, asserting that it is engaged in the importing and wholesale distribution and sale of skis, ski equipment, etc.; at the time of the commencement of this action Ulf Ljungberg was engaged as a sales representative for P & M Distributors, Inc. for California and certain territory outside, was paid straight commissions on all approved sales, was an independent contractor, not an employee and also acted as sales representative for other manufacturers and distributors; and at no time was Ljungberg designated by P & M Distributors, Inc., as a person authorized to receive service of process as its agent. The opposing affidavit of plaintiff's counsel asserted that on February 17, 1967, he had a telephone conversation with counsel for defendant regarding the judgment and levy of execution. The motion was heard, and granted on the condition that an answer on the merits be filed within ten days; within the prescribed time defendant filed its answer. Plaintiff appeals from order vacating and setting aside entry of default judgment.

A judgment or order which is void on the face of the record may be set aside by the court that made it on the ground that it is void. (Myers v. Washington, 211 Cal.App.2d 767, 771, 27 Cal.Rptr. 778, 781; Luckenbach v. Krempel 188 Cal. 175, 176--177, 204 P. 591.) "'It is well settled that a judgment or order which is void on its vace, 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."' (Hayashi v. Lorenz, 42 Cal.2d 848, 851, 271 P.2d 18; Craft v. Craft, 49 Cal.2d 189, 191--192, 316 P.2d 345.) 'A judgment absolutely void upon its face may be attacked anywhere, directly or collaterally, whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither the basis nor evidence of any right whatever. * * *' (Forbes v. Hyde, 31 Cal. 342, 347; Texas Co. v. Bank of America, etc., Assn., 5 Cal.2d 35, 41, 53 P.2d 127.) Thus, the fact that defendant waited ten months after it apparently learned of the entry of judgment and the levy of execution does not preclude it from attacking the validity of the judgment by motion to vacate and set aside; when a judgment on the face of the judgment roll is void for lack of jurisdiction attack on it may be made at any time. (Buckner v. Industrial Acc. Comm., 226 Cal.App.2d 619, 623, 38 Cal.Rptr. 332; Montgomery v. Norman, 120 Cal.App.2d 855, 858, 262 P.2d 360; Forbes v. Hyde, 31 Cal. 342, 347.) The court has the right and power at any time to vacate a void entry of default and a void default judgment. (Eagle Electric Mfg. Co. v. Keener, 247 Cal.App.2d 246, 250--253, 55 Cal.Rptr. 444; Batte v. Bandy, 165 Cal.App.2d 527, 537--538, 332 P.2d 439.)

Examining the judgment roll (Johnson v. Hays Cal. Builders, Inc., 60 Cal.2d 572, 576, 35 Cal.Rptr. 618, 387 P.2d 394) herein--the summons with the affidavit or proof of service, the complaint with a memorandum endorsed thereon that defendant's default was entered, and a copy of the judgment (§ 670(1), Code Civ.Proc.)--we find that on its face the judgment is void for lack of jurisdiction over P & M Distributors, Inc. The judgment roll reveals the following: That P & M Distributors, Inc., the only named defendant, 'is a corporation organized and acting under the laws of the State of New York and doing business in the State of California and elsewhere' (Complaint, para. I); that Robert Odenthal first asserted that he served 'P & M Distributors, Inc., by serving Ulf Ljungberg at 2940 Eastern Ave., Sacramento, Calif., Nov. 29, '65' with copy of Summons and Complaint 'as required by Section (410 CCP)' (Declaration of Service dated November 29, 1965); that this Declaration of Service failed to show service on P & M Distributors, Inc., and the court denied plaintiff's request for entry of default based thereon; that eight months later on July 22, 1966, Robert Odenthal executed a second Declaration of Service in which he asserted that his November 29, 1965, service on P & M Distributors, Inc., was made 'by serving ULF LJUNGBERT (sic), a person authorized to receive service of process pursuant to CCP SECTION 441'; that Odenthal's second Declaration of Service was drafted to satisfy the requirements for entry of default, and finally almost a year from the alleged service, the third request for entry of default was granted; and that on November 23, 1966, the judgment against defendant P & M Distributors, Inc., was entered.

Section 411, Code of Civil Procedure provides that in a suit against a foreign corporation doing business in this state service upon it shall be made 'in the manner provided by Sections 6500 to 6504, inclusive, of the Corporations Code.' (Subd. (2).) Service on a foreign corporation may be made within California by service on an officer--'the president or other head of the corporation, a vice president, a secretary, an assistant secretary'--or 'general manager in this State,' by service on 'any natural person designated by it as agent for service of process,' or, lacking either of these, by service on the Secretary of State. (Corp.Code, §§ 6500, 6501; Buckner v. Industrial Acc. Comm., 226 Cal.App.2d 619, 624, 38 Cal.Rptr. 332.) Service of process on a foreign corporation may be made only in the manner and form authorized by statute. (Eagle Electric Mfg. Co. v. Keener, 247 Cal.App.2d 246, 251, 55 Cal.Rptr. 444; Tri-State Mfg. Co. v. Superior Court, 224 Cal.App.2d 442, 444, 36 Cal.Rptr. 750.)

According to plaintiff's second Declaration of Service Ljungberg was served, not as an officer of P & M Distributors, Inc. or as 'a general manager in this State' or as 'a person designated by (P & M Distributors, Inc.) as an agent for the service of process' (§ 6500, Corp.Code), but as 'a person authorized to receive service of process pursuant to CCP SECTION 411.' Nothing before the court entering the default and the judgment alleged that Ljungberg was a 'person designated by (P & M Distributors, Inc.) as agent for service of process' or established by or for whom Ljungberg was 'authorized' to receive service of process, that he had been in fact 'designated' by P & M Distributors, Inc. as its 'agent' for the service of process, his title, official capacity, position or employment with P & M Distributors, Inc. Robert Odenthal's Declaration of Service without more asserts only that he served Ljungberg 'a person authorized to receive service of process pursuant to CCP SECTION 411'; this does not stand for proof that Ljungberg was a person legally subject to service under section 6500, Corporations Code; at most it is a legal conclusion unfounded in fact. Only an oblique reference to Ljungberg appears in the record and that is, after request for entry of default was granted, in Attorney's Statement of Facts, then only briefly, by plaintiff's counsel and not under oath. The record affirmatively reflects no service on P & M Distributors, Inc., thus the default and judgment entered and rendered on said service are void on their face for lack of jurisdiction.

In the light of the judgment roll and affidavit of Claes Corin it is apparent that in granting the motion to vacate, the court...