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Roberts v. Mahl11/25/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Susan Mahl unsuccessfully moved to set aside an order striking her answer to a complaint brought by her former law firm, then known as Mahl Rehon Walworth & Roberts. The court had issued this terminating sanction pursuant to Code of Civil Procedure section 2023 based on Mahl's misuse of the discovery process, and it subsequently entered judgment against her after a trial at which she did not appear.
On appeal, Mahl seeks review of both the order denying her motion and the judgment itself. She contends that this was a default judgment that was void on its face because the firm had failed to comply with the mandatory default procedures set forth in Code of Civil Procedure sections 580, 585, and 587. She alternatively seeks reduction of the damages award because the amount exceeded the demand in the firm's complaint. We will affirm the order denying Mahl's motion.
Background
Rehon & Roberts (the firm) initiated this action in January 2000 by filing an action against Mahl for fraud and deceit, breach of fiduciary duty, conversion, and related causes of action. The firm's complaint alleged that Mahl, its former managing partner, had fraudulently caused the firm to overpay her for her work, to pay her personal expenses, and to accept a loan at a usurious interest rate. The firm sought damages of at least $400,000.
In early February 2000 Mahl, represented by the Law Offices of Thomas R. Hogan (Hogan), filed an answer and a cross-complaint. Later that month the firm served on Mahl's counsel an 11-page bill of particulars itemizing $899,630.54 that Mahl allegedly owed the firm.
In February 2001, Mahl closed her law practice and moved out of California. Between February and June of 2001, having no permanent address, she used a mail service in South Dakota to receive and forward her mail. From June through October of that year a friend collected the mail for Mahl from the mail service. Mahl did, however, attend mediation in the case in June 2001. Meanwhile, in March 2001 the superior court notified Hogan of the trial date, which was set for September 10, 2001.
On August 17, 2001, after an unopposed motion, the court issued an order for Mahl to appear for deposition. The order was served on Hogan. On August 21, 2001, Hogan and the firm's counsel stipulated to continue the trial to September 17, 2001.
On August 24, 2001, however, Hogan sought to withdraw as Mahl's attorney. Thomas Hogan explained that he had been unable to reach Mahl since early July in spite of concerted efforts by him and other firm members to communicate with her. The South Dakota mail service did not have a current address for her, her cell phone number did not accept messages, and she had not responded to e-mail or regular mail.
On August 28, 2001, the firm filed a discovery motion based on Mahl's failure to respond to five sets of form interrogatories, a second request for admissions, and other discovery requests. On August 31, 2001, the court ordered that the admissions be deemed admitted and ordered Mahl to respond to the other discovery by September 5, 2001. The order was served on Hogan.
On September 6, 2001, the firm filed a motion for terminating and monetary sanctions based on Mahl's failure to comply with the court's prior discovery orders. The motion a
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