Appellate division of the Riverside Superior court reverses illegal injunction filing order but upholds illegal eviction.

The appellate division of the Superior Court issued its opinion relating to a filing injunction and relating to the illegal eviction in an unlawful detainer case. The court reversed the filing injunction but declined to take into consideration the fact that the co-defendant in this case was never served and alleged that the appellant had never presented why she had standing to bring this issue up as a witness to the lack of service, defendant and joint title holder of the property. The appellant had indeed brought this very issue up in her opening brief and cited a case that was to the point of the unlawful detainer lack of service where the appellate court in that case reversed. Indeed the unlawful detainer court initially refused to set the matter for trial as the co-defendant was never served.

The appellate division as basis for it decision instead cited a Federal case that has no relevance to an unlawful detainer case, as it deals with jury selection and certainly does not refer to third party standing in an unlawful detainer case. The case cited was Powers v. Ohio – 499 U.S. 400 (1991) a jury selection case that dealt with race issues in peremptory challenges.

“During jury selection at his state court trial for aggravated murder and related offenses, petitioner Powers, a white man, objected to the State’s use of peremptory challenges to remove seven black venirepersons from the jury. Powers’ objections, which were based on Batson v. Kentucky, 476 U. S. 79, were overruled, the impaneled jury convicted him on several counts, and he was sentenced to prison. On appeal, he contended that the State’s discriminatory use of peremptories violated, inter alia, the Fourteenth Amendment’s Equal Protection Clause, and that his own race was irrelevant to the right to object to the peremptories. The Ohio Court of Appeals affirmed his conviction.
Held: Under the Equal Protection Clause, a criminal defendant may object to race-based exclusions of jurors through peremptory challenges whether or not the defendant and the excluded jurors share the same race. Pp. 499 U. S. 404-416.”

The opinion and opening brief have been included below. Of course the fact that one of the judges on the unlawful detainer appellate panel has a conflict of interest as he refused to rescind the sale of the joint community property case in a related foreclosure action has no “relevance”.



For purposes of this appeal the court has taken judicial notice of the record in DCA No:
APP1100259 (pg 69, clerk’s transcript on appeal). Appellant filed her proposed statement on
appeal on 6/22/2012, which serves as the record on appeal pursuant to California rules of court
Appellant also respectfully objects to any judicial officers who were involved in case RIC
10019338 presiding over the appellate panel in this case as it is a conflict of interest as defined in
DCH Health Servs. Corp. v Waite (2002) 95 CA4th 829, 833, 115 CR2d 847. Judge who decided
pretrial motions against defendant in limited civil case was disqualified under CCP §170.1(a)(6)
(A)(iii) from sitting on appellate division panel that heard defendant’s appeal)(recusal may be
required on basis of mere appearance of impropriety). In case RIC 10019338 the property that is
the subject of this unlawful detainer case is the subject of a case against the Bank of America and
the trustee Recontrust Company NA.

At issue in this appeal is whether the appellant in this case has standing to file a motion to
vacate and set aside the judgment of 11/4/2011. The basis of appellant’s motion was the lack of
proof of service of a summons and complaint against the co-defendant, which she has personal
knowledge of, that impacts on the allegation made that the co-defendant was served with the
summons and complaint, where both defendants are joint title holders of the property in
question; and rules of court mandate that all parties to a complaint are required to be served.
In addition at issue in this appeal is whether the court on the basis of a non noticed hearing can
issue an injunction prohibiting the defendant in an action to require leave of the judicial officer
presiding over the case to file any additional motions without the required mandated due process

Defendant/Appellant XXxXXXXX appeals from the judgment entered against her with prejudice
in the underlying unlawful detainer action obtained on 2/27/2012.


This case is based upon an unlawful detainer action in which plaintiff, the purchaser at a
purported foreclosure trustee sale, sought possession of the subject property.
Appellant had filed a motion to vacate the unlawful detainer judgment of 11/4/2011 on
2/22/2012 citing lack of service of the co-defendant XXXXXXX, in this case and presenting
his email where he specified that he had no knowledge of the case and a police incident report.
Appellant presented evidence to her personal knowledge of a proof of service of summons and
complaint that was filed on 10/11/2011 (request for judicial notice, motion to augment appeal,
exhibit 1), where the server claimed that he had served someone at the residence where ONLY
Appellant lived and where Appellant was not served.

At the trial that led to the judgment of 11/4/2011 Appellant presented evidence of a 1.
preliminary injunction (exhibit A, pg 146 -148 clerk’s transcript on appeal APP1100259 ), halting
the sale of the property by the trustee Recontrust Company NA; presented evidence that a court
of competent jurisdiction held jurisdiction over the preliminary injunction (exhibit B pg 150-151,
clerk’s transcript on appeal APP1100259), presented evidence that there was no notice of a sale
(exhibit C, clerk’s transcript pg 153 APP1100259 ) etc, and presented evidence that Appellant
had filed a homestead declaration with the County Recorder’s office on 1/10/201 (exhibit E,
clerk’s transcript pg 156 APP1100259 ), specifying her possession of the property and 50% title

The court on 2/27/2012 denied Appellant’s request to vacate/ set aside the judgment with
prejudice and upon an oral request by the Plaintiff on 2/27/2012 issued an injunction prohibiting
the appellant to file any motions in this case without leave from the court. The order was issued
with prejudice.

Appellant filed her notice of appeal on 3/1/2012 and filed her proposed statement of appeal on
6/22/2012, which serves as the record on appeal pursuant to California rules of court 8.837.
Plaintiff did not file a proposed statement on appeal.

The court issued its order concerning Appellant’s Proposed statement on appeal on 8/7/2012
specifying that Judge Bork denied the 2/27/2012 motion by XXXXXX to vacate and set aside
Judgment and that on 2/27/2012 the court ordered XXXXXX not to file additional
motions/applications without first obtaining leave of the court.

Appellant seeks reversal of the trial court’s orders with possession of the property restored to
Appellant and seeks dismissal of the injunction prohibiting the filing of any litigation in this


This appeal is authorized by C.C.P. § 904.2 and consist of an appeal of a final judgment by a
superior court judge with prejudice in a limited civil case. Appellant seeks an appeal of the trial
court orders dated 2/27/2012 which denied her motion to vacate the judgment of 11/4/2011 and
issued an injunction against appellant prohibiting the filing of litigation in this case. Appellant
filed her notice of appeal on March 1st 2012.
The order is appealable in a limited civil case under [C.C.P. § 904.2] as a final judgment and as
an order granting and refusing to dissolve an injunction.


Where an attack is made on the findings or judgment on the ground they are not supported by the
evidence, the power of reviewing courts begins and ends with a determination of whether there
is any substantial evidence, contradicted or uncontradicted, that will sustain the findings made or
the judgment rendered. [Wheeler v. Gregg (1993) 90 Cal.App.2nd 348, 370-371]. The appellate
court reviews the trials court’s findings of fact to determine whether they are supported by
substantial evidence. To be substantial, the evidence must be of ponderable legal significance,
reasonable in nature, credible and of solid value (ID of page 631, Oregel vs. American Isuzu
Motors, Inc. (2001) 90 Cal. App. 4Th 1094, 1100).
To the extent that the trial court draws conclusions of law based upon its finding of fact those
conclusions are reviewed de novo, Westfour Corp. Vs. California First Bank, (1992) 3 Cal. App
4th 1554, 1558.


The case was initiated with a summons and complaint by Plaintiff on 7/27/2010 (pg 1-15, Clerk’s
transcript on appeal APP1100259 ).
Appellant filed a motion to strike and a Motion to quash and dismiss summons and complaint
on 7/29/2011 (pg 42 – 50, pg 52-61 clerk’s transcript on appeal APP1100259), heard on 8/5/2011,
where appellant was served with the summons and complaint, (pg 74 clerk’s transcript on appeal
APP 1200086).
On 9/23/2011 the court rejected the document to set trial and request for default submitted by
Plaintiff Riverhawk funding citing “DEFENDANT XXXX REQUIRES A PROOF OF SERVICE ON FILE BEFORE FILING DEFAULT AND SETTING COURT TRIAL”, (Pg 77 Clerk’s transcript on appeal APP 1200086).
The court found on 11/4/2011 that it was adjudicating summary possession of property only and
not litigating title (page 5, Proposed Statement of appeal, section 7, trial court finding’s
APP1100259 which serves as the record on appeal for case APP1100259).
At the trial the court awarded judgment against Appellant and a default judgment against the
co-defendant,xxxxxx, ordering possession of the property to the Plaintiff, and an award
of damages, (pg 81 clerk’s transcript on appeal APP 1200086).
Appellant filed a motion to set aside and vacate the judgment of 11/4/2011 on 2/22/2012 which
was set for hearing on 2/27/2012 citing that the co-defendant in this case was never served (pg
43-55 clerk’s transcript on appeal APP 1200086).
On 2/27/2012 the court denied Appellant’s motion to set aside and vacate judgment of
11/4/2011 with prejudice and upon an oral motion by Plaintiff ordered an injunction prohibiting
appellant from filing any applications/motions without leave of the court, (pg 55, 88 clerk’s
transcript on appeal APP 1200086), without citing the statute or reason for granting the


The order of 2/27/2012 is an appealable order of the failure to grant or dissolve an injunction
Luckett v. Panos, 161 Cal. App. 4th 77, 73 Cal. Rptr.3d 745, (Ct. App. 2008), Wheeler v.
Superior Court, 82 Cal.App. 202, 208 [255 P. 275], Code of Civil Procedure § C.C.P. § 904.2

The court did not specify the statute upon which it was basing the injunction or the reason for
its decision except that it was basing it upon an oral motion by Plaintiff.
It is a fundamental concept of due process that a judgment against a defendant cannot be
entered unless he was given proper notice and an opportunity to defend. (U.S. Const., art. XIV;
Mullane v. Central Hanover Bank (1950) 339 U.S. 306, 313-315 [94 L.Ed. 865, 872-874, 70
S.Ct. 652].)

Appellant contends that the order was an abuse of discretion as the scope of discretion always
resides in the particular law being applied by the court, i.e., in the `”legal principles governing
the subject of [the] action ….”‘” (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 337 [67
Cal.Rptr.3d 286], citing City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [255
Cal.Rptr. 704] and County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778 [25 Cal.Rptr.2d
681] [“range of judicial discretion is determined by analogy to the rules contained in the general
law and in the specific body or system of law in which the discretionary authority is granted”]
and the court did not define the statute upon which its basing its prejudicial injunctive action
against Appellant.

The court appears to have implemented a non noticed prefiling order against a defendant in
an unlawful detainer case as an injunction prohibiting the filing of any litigation on the basis of
an oral motion by Plaintiff without the required and mandatory legislative and statutory due
process requirements. Appellant is left to guess under which statute the court ordered an
injunction and in California the only statute prohibiting filing of litigation is the vexatious
litigant statute.

The due process requirements under the vexatious litigant statute have already been
addressed at length in prior precedent cases, namely that there was insufficient evidence to
support the determination of a prefiling order; there was no pending litigation (i.e. a noticed
motion), relating to the action upon which the order was based, and appellant was denied the due
process right to a hearing, Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222-223. In addition the
court did not cite the statutory basis of its decision and implemented an injunctive prefiling order
with prejudice requiring leave from the judicial officer presiding over the case, rather than the
presiding judge as required by CCP section 391.7. Under the vexatious litigant statute the statute
requires a hearing to determine whether the “plaintiff” qualifies as “vexatious” (CCP§ 391.2).
Appellant has the first amendment right to governmental redress. In addition evidence that a
litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant
designation, (Roston v. Edwards, (1982) 127 Cal. App. 3D 842, 847), where there is insufficient
evidence to imply findings in support of the designation, reversal is required (Roston v. Edwards,
(1982) 127 Cal. App. 3D 842, 848).

The definition of an injunction is found in section 525: “An injunction is a writ or order
requiring a person to refrain from a particular act. It may be granted by the court in which the
action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an
order of the court.” In McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1160, 69 Cal.Rptr.2d
692, the court also noted that injunctions can include the requirement to do an act, as well as not
do an act: “In short, an injunction may be more completely defined as a writ or order
commanding a person either to perform or to refrain from performing a particular act.” (See
also Comfort v. Comfort (1941) 17 Cal.2d 736, 741, 112 P.2d 259 [passing reference to
injunction as being an order “ ‘to do or desist from certain action’ ”].) Most litigation over
injunctions does not involve the definition of an injunction as such, but is over the need that
injunctions be sufficiently definite to be enforceable. (See Pitchess v. Superior Court (1969) 2
Cal.App.3d 644, 651, 83 Cal.Rptr. 35 [importance of injunction being definite enough to provide
a standard of conduct for those whose activities are to be proscribed, as well as a standard for the
court to use in ascertaining an alleged violation of the injunction].)

In this case the court’s injunction is not based upon any statute and prohibits appellant’s 1st
amendment right to governmental redress and the court based upon CCP 533 may on notice
modify or dissolve an injunction or temporary restraining order upon a showing that there has
been a material change in the facts upon which the injunction or temporary restraining order was
granted, that the law upon which the injunction or temporary restraining order was granted has
changed, or that the ends of justice would be served by the modification or dissolution of the
injunction or temporary restraining order.”. In this case the law upon which the injunction was
granted was never specified, it constitutes an abuse of discretion and appellant requests reversal
of the order.


The court on 2/27/2012 denied Appellant’s motion to vacate the judgment of 11/4/2011 with
prejudice, (pg 42-55, clerk’s transcript on appeal APP 1200086).
Appellant had presented her declaration, (pg 51, clerk’s transcript on appeal APP 1200086),
specifying that the co-defendant was never served in the manner described by plaintiff with the
proof of service filed on 10/11/2011. Appellant was the only person living at the property, there
was no mailing of the summons and no member of the household who could have received the
the summons and complaint as described by Plaintiff in their proof of service filed on

Appellant had presented the co-defendant’s email to her specifying that he did not have
knowledge of the litigation in this case (pg 48-49, clerk’s transcript on appeal APP1200086).
The court on 9/23/2011 did not set the matter for trial recognizing that the co-defendant xxxxxxxx
was not served.

Riverside Local rules of court 3530 specifies that “In all unlawful detainer cases, the complaint
shall be served on all defendants, and a proof of serve filed with the Court, within 30 days of
filing the original complaint”. The mandatory requirement of the statute refers to the time frame
and that ALL defendants shall be served.

Appellant has standing to offer evidence with regard to a lacking proof of service as a witness
to events, where California evidence code §140 defines evidence as the following: ” Evidence’
means testimony, writings, material objects, or other things presented to the senses that are
offered to prove the existence or nonexistence of a fact.” (People v. Richardson (2008) 43 Cal.4th
959, 1004 [77 Cal.Rptr.3d 163, 183 P.3d 1146]; People v. Lucas (1995) 12 Cal.4th 415, 474 [48
Cal.Rptr.2d 525, 907 P.2d 373].”

Appellant offered evidence to the fact that the co-defendant was never served in the unlawful
detainer case, and as he was never served and did not make an appearance in an unlawful
detainer case where the joint title of community of property of the Appellant and co-defendant
was at issue for adjudicating the possession of property, the jurisdiction of the co-defendant and
the appellant never attached to this case.

Plaintiff initiated the summons and complaint on 7/27/2010 (pg 1-14 clerk’s transcript on
appeal, APP1100259). In the complaint Plaintiff specified that the “foreclosure” sale of the
subject property complied with civil code § 2924 (pg 2 clerk’s transcript on appeal,
APP1100259 and stated that a written notice in compliance with CCP § 1161a (pg 9 of Clerk’s
transcript APP1100259) was served which specified that the property was sold in accordance
with civil code § 2924 and that title of the JOINT community of property under the sale has
been duly perfected.


Generally, a party who has not actually been served with summons has three avenues of relief
from a default judgment.
First, Code of Civil Procedure section 473.5, subdivision (a) provides: “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.”

Thus, a party can make a motion showing a lack of actual notice not caused by avoidance of
service or inexcusable neglect, but such motion must be made no later than two years 5 after
entry of judgment, and the party must act with diligence upon learning of the judgment. (§ 473.5;
see Younger, California Motions (2009-2010 ed.) § 26:30, p. 766 [“it does not require a showing
that plaintiff did anything improper. . . . [T]he defaulting defendant simply asserts that he or she
did not have actual notice”]; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444

Section 473, subdivision (d) provides in pertinent part: “The court may, . . . on motion of
either party after notice to the other party, set aside any void judgment or order.”
Where a party moves under section 473, subdivision (d) to set aside “a judgment that, though
valid on its face, is void for lack of proper service, the courts have adopted by analogy the
statutory period for relief from a default judgment” provided by section 473.5, that is, the twoyear
outer limit. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, §
209, pp. 814-815 (Witkin); Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1120-1124;
Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 3-4; see Gibble v. Car-Lene Research, Inc.
(1998) 67 Cal.App.4th 295, 301, fn. 3.)

Second, the party can show that extrinsic fraud or mistake exists, such as a falsified proof of
service, and such a motion may be made at any time, provided the party acts with diligence upon
learning of the relevant facts. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 47-
49 (Manson); Gibble, supra, 67 Cal.App.4th at pp. 314-315; Munoz v. Lopez (1969) 275
Cal.App.2d 178, 181; 8 Witkin, supra, § 209, at p. 815.)

Appellant precisely alleged extrinsic fraud or mistake in this case and provided evidence,
namely her declaration and the co-defendant’s email, specifying that the server never served the
co-defendant in this case as alleged in the proof of service, a mandatory requirement under
Riverside Local rules of court 3530 recognized by the court when it refused to set trial unless the
co-defendant was served. Proof of service of a valid notice is jurisdictional and a prerequisite
to a judgment declaring a landlord’s right to possession. A landlord must strictly comply with the
statutory requirements for service of the notice to quit. Liebovich v Shahrokhkhany (1997) 56 CA4th
511, 513, 65 CR2d 457.


Appellant is the joint community of property title holder and had specified at the trial on
11/4/2011 that she recorded a homestead exemption which recognized that the property was her
primary residence and that she owned 50% of the property. Appellant has maintained at length
that the co-defendant was never served an important procedural requirement in an unlawful
detainer case pursuant to CCP § 415.46 especially where possession of joint title community of
property is at issue as the plaintiff bases his unlawful detainer action upon his claim and proof
according to § 1161a that the property was “duly sold in accordance with § 2924 of the Civil
Code.” Title, to the extent required by section 1161a, “not only may, but must, be tried in such
actions.” [Kartheiser v. Superior Court (1959) 174 Cal.App.2d 617, 620] and strict compliance
with civil code § 2924 must be demonstrated in perfecting title, Stephens, Partain & Cunningham
v. Hollis (1987) 196 Cal.App.3d 933 , 242 Cal.Rptr. 259.

It is a fundamental concept of due process that a judgment against a defendant cannot be
entered unless he was given proper notice and an opportunity to defend. (U.S. Const., art. XIV;
Mullane v. Central Hanover Bank (1950) 339 U.S. 306, 313-315 [94 L.Ed. 865, 872-874, 70
S.Ct. 652].) California satisfies these due process requirements in default cases through section

Section 580 provides in part that “[t]he relief granted to the plaintiff, if there be no answer,
cannot exceed that which he shall have demanded in his complaint.” The “primary purpose of the
section is to guarantee defaulting parties adequate notice of the maximum judgment that may be
assessed against them.” (Greenup v. Rodman (1986) 42 Cal. 3d 822, 826 [231 Cal.Rptr. 220, 726
P.2d 1295]; see also Becker v. S.P.V. Construction Co. (1980) 27 Cal. 3d 489, 494 [165 Cal.Rptr.
825, 612 P.2d 915].)

It is fundamental to the concept of due process that a defendant be given notice of the existence
of a lawsuit and notice of the specific relief which is sought in the complaint served upon him.
The logic underlying this principle is simple: a defendant who has been served with a lawsuit has
the right, in view of the relief which the complainant is seeking from him, to decide not to appear
and defend. However, a defendant is not in a position to make such a decision if he or she has not
been given full notice. The instant case is a prime example of the foregoing.

For example, In Burtnett v. King, supra, 33 Cal. 2d 805, the wife filed an action for divorce.
The prayer requested an order restraining the husband from being “upon or at the home.” The
wife, however, did not request that the home be awarded to her. The husband allowed a default
judgment to be entered against him.The subsequent judgment awarded the home to the wife, who
then sold it to a third party. The husband sued to quiet title, lost, and then appealed. [51 Cal. 3D
1167]. In re Marriage of Lippel (1990) 51 Cal. 3d 1160 [276 Cal. Rptr. 290, 801 P.2d 1041] the
court held the language of section 580 to be mandatory, stating, “[T]he court’s jurisdiction to
render default judgments can be exercised only in the way authorized by statute.” (In Burtnett v.
King (1949) 33 Cal. 2d 805 [205 P.2d 657, 12 A.L.R.2d 333 [italics in original].) Furthermore,
we observed that “[c]ertainly no statutory method of procedure or limitation on power could be
more clearly expressed than that set forth in section 580 of the Code of Civil Procedure ….”
(Ibid.) We went on to say that, “by reason of his wife’s silence on the subject in her prayer,
[defendant] would properly assume that the rights to the property were not to be litigated in that
action. To hold otherwise would mean that [we] sanction[] a procedure under which a defendant
may be trapped by a default judgment.” ( Id. at p. 811 [italics in original].) The court reversed
the judgment of the superior court. (Ibid.)

In this case not only is the co-defendant trapped in a default judgment so is the appellant as
the proof of service service of his summons and complaint is the basis upon which the court
attached jurisdiction to appellant and the co-defendant to proceed to trial. “Lack of jurisdiction
its most fundamental or strict sense means an entire absence of power to hear or determine the
case, an absence of authority over the subject matter or the parties.” People v. American
Contractors Indemnity Co. (2003) 33 Cal. 4Th 653, 660, quoting Abelleiroa v. District Court of
Appeal (1941) 17 Cal. 2d. 280, 288, “When a court lacks jurisdiction in a fundamental sense, an
ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time” quoting
Barquis v. Merchants Collection Assn. (1972) 7 Cal. 3D 94, 119.


Appellant requests the Appellate Division to reverse the denied motion to vacate and set aside
judgment and to reverse the injunction prohibiting the filing of any litigation in this case.

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