Filed 3/8/23 Regos v. Reed 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

JOHN REGOS et al

. ,
P laintiffs and Appellant s ,

v.

JACKIE LYNN REED

,
Defendant and Respondent. B 3 16267

( Los Angeles County Super. Ct. No. BC710184 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Wendy Chang

, Judge. Reversed

. Nordstrom, Steele, Nicolette and Blythe, Alan K. N i colette
for Plaintiffs and Appellant s

. Derryberry & Associates, Alexander L. Massari for
Defendant and Responden t.

_______________________________________2 INTRODUCTION This appeal raises the question of whether the wife of a deceased attorney has the right to continue to receive annuity payments in fulfillment of an attorney fee s award that her husband procured in excess of the court’s jurisdiction

. Despite the passage of time, we conclude the answer is no. FACTS AND PROCEDURAL BACKGROUND
The facts necessary to resolve this matter are not in dispute.

1. Underlying case of Regos v. Ransom In 2003, Mary Louise Eban a l 1 (then Regos) was separating
from her partner Victor Ransom

. With her minor children John Regos

, Jr. and Jenifer 2 Regos , she went to the family home to remove her belongings

. John Regos, Sr., who was h er ex

- husband
and the father of her two children, assist ed her . Ransom appeared and threatened Eban a l and John Regos

, Jr. with a gun. When Regos Sr. approached, Ransom shot and killed him. Ransom is currently in prison for that murder.
Eban a l became the sole source of support for herself and
her children

. While working as a limo driver, she met attorney
Brian Reed. Reed offered to represent her and her children in a wrongful death action against Ransom. Eban a l had no money to pay Reed for his services, and Reed told her that they would work
that out later. Eban a l knew that Reed was not representing

1 This name is spelled in various ways in the record. Because it is spelled “Ebanal” by appellants on appeal, we use that spelling.

2 This name is also spelled differently in various parts of the record. Because it is spelled “Jenifer” by appellants on appeal, we use that spelling

.3

them for free. However, the re wa s no written fee agreement for legal services between Reed and Eban a l or her children. In 2003, Eban a l, John Regos Jr. and Jenifer Regos (the Regos plaintiffs) filed a wrongful death action against Ransom

. Reed represented the plaintiffs. The complaint state d claims against Ransom for wrongful death , negligence, intentional
infliction of emotional distress and negligent infliction of
emotional distress

. 3 The complaint sought compensatory and punitive da mages, but did not seek attorney fees

, or set forth any statutory basis for attorney fees.
Ransom defaulted in that action. Reed prepared a default judgment packet and proposed judgment against Ransom . The only evidence offered in support of the propos ed judgment were declarations by each plaintiff. Nothing was presented that
related to Reed’s entitlement to fees. In 2004, the trial judge held a default prove

- up and according to the resulting minute order, awarded the following : ( a) compensatory damages of $1 million to each minor plaintiff
and $350,000 to Eban a l ; ( b ) p unitive damages of $100,000 to John Regos, Jr.

, $ 75 ,000 to Jenifer Regos , and $50,000 to Eban a l ; (c ) restitution; and ( d) $524.50 for “ costs plus attorney fees.”
Reed then submitted a proposed judgment. T he judgment included the following language: “the Court finds that counsel for the Plaintiffs shall receive 25 [percent] of all sums received by each minor as and for attorneys’ fees and an amount equal to 33
1/ 3 [pe rcent] plus costs from all amounts received by Mary Louise Regos, as an individual. ”

3 A fifth claim against the County of Los Angeles for failure to provide police services was dismissed after demurrer.4 The judgment was signed and filed on November 22, 2004. Reed timely advised the plaintiffs of the terms of the judgment and they did not express disagreement. The judgment was renewed by Reed on November 21, 2014.
2. The a nnuity and e nforcement of the j udgment The only asset that Ransom possessed from which he could pay the judgment was a month ly annuity that he had been
awarded prior to the events leading to the wrongful death action

. P rior to their separation, Eban a l and Ransom had been in an auto accident. The resolution of that case resulted in a structured settlement whereby Ransom was to receive a $2,000
month ly annuity payment for the rest of his life. After the judgment in Regos was entered , the court approved a stipulation between the Regos plaintiffs and Farmers New World Life and Farmers Services Company (collectively

, Farmers) to permit the Regos plaintiffs to enforce their judgment through Ransom’s $2

, 000 month ly annuity payment. That stipulation was entered into by Reed on behalf of the Regos plaintiffs and by an attorney who represented Farmers. None of
the plaintiffs signed that stipulation. Paragraph 2 of that stipulation and order was altered by interlineation. The original language read as follows: “Intervenors/Defendants will pay the $2,000 monthly payments by check payable to Brian E. Reed, John Louis Regos, Jr., Mary Louise Regos, individually and as guardian ad litem, for Jenifer Louise Regos and shall mail the check to Brian E. Reed.”
The interlineation struck out the names of t he payees and replaced the payee with “Brian E. Reed Trust Account.” It further added a sentence at the end of that paragraph as follows:5

“Mr. Reed will then distribute the sums received to the plaintiffs and shall receive his attorney’s fees from each payment.” Only the attorneys initialed the interlineations. The stipul ation was signed as an order of the court on September 22, 2005. Reed timely advised the Regos plaintiffs of this arrangement and they did not express disagreement with it

. 3. The current dispute and i nterpleader
For more than 12 years thereafter, Farmer s sent the $2

, 000 monthly annuity check to Reed, and Reed deducted $500 from each such payment

, passing the remainder on to the Regos plaintiffs

. 4
Reed died in March 2017. 5 After Reed’s death, his widow, Jackie Lynn Reed

, wrote to Farmers to inform them that her husband had died

. Unable to cash the checks made out to her husband’s trust account, s he returned three of the garnishment checks that had been received after her husband’s death and sought reissuance of the checks in
her name. Farme rs declined to do so without proof of her
entitlement as a successor or a court order

. Farmers also declined to pay any amount directly to the Regos plaintiffs

.

4 It is undisputed that Reed took a flat 25 percent of the monthly annuity, despite the judgment’s prov ision that he was entitled to take 33.3 percent of the proceeds that were received by one of the three plaintiffs; namely, Ebanal.

5 The parties also stipulated that Reed was on inactive status as of November 2015

. Although the Regos plaintiffs argued t hat this made him ineligible for further attorney fee payments as of that time, the trial court rejected this argument, finding that he fully earned his fee award when he performed the services in the Regos v. Ransom case in 2004 and 2005.6 I n June 2018, the three Regos plaintiffs (all of whom were now adults) filed a c omplaint for declaratory relief against Jackie Lynn Reed and Farmers as well as damages for conversion against Farmers. They claimed that the entirety of the $2

, 000 annuity payments should now be paid to them and that Jackie Lynn Reed had no right to payments as her husband’s successor. They did not challenge or seek to disgorge the payments that had already been made to attorney Reed. They sought relief in the
form of “ a declaration of the parties’ resp ective duties, rights, and responsibilities concerning the $2000/month Ransom annuity payments” and “modification of the September 22, 2005 [o]rder to require that the $2000/month Ransom annuity payments be made directly to [p]laintiffs.”
Farmers then fi led a cross

- complaint in interpleader against the Regos plaintiffs and Jackie Lynn Reed

. Farmers admitted that it owed $2

, 000 per month but alleged that the

cross

- defendants’ respective claims were adverse and conflict ed with the 2005 Stipulation and Orde r requir ing the check to be made payable to the Brian Reed trust account

. Reed then filed her cross

- complaint against the Regos plaintiffs, alleging a single cause of action for declaratory relief.
In that cross

- complaint, Jackie Lynn Reed asserted her right to
25 percent of all sums awarded to each minor and 33 1/3 percent of the sums awarded to Mary Louise Regos, for a total of $685,250 in attorney fees. A fter providing credits for sums paid
to Reed pursuant to the stipulation in the amount of $500/month

, she claimed to still be owed “more than $600,000.” She sought in her prayer for relief that each future annuity payment of $2

, 000
be awarded in its entirety to her husband’s estate until that debt
was satisfied.7 The claims against Farmers were resolved and Farmers was dismissed from the litigation, still waiting for instructions on whom to pay the interple a d ed funds.
The matter came on for bench trial in June 2021 as between the Regos plaintiffs and Jackie Lynn Reed. No live testimony was taken ; the parties submitted stipulated facts, testimonial evidence by way of declarations, and referred to or incorporated prior d eclarations filed in either this case or in the prior Regos action which the court accepted into evidenc e. The trial court ruled in favor of Jackie Lynn Reed. It found that although there was no written attorney fee agreement that would support an award of contingency fees

, the court during the
default action must have intended to award the fees to Reed on a quantum meruit basis. The court further concluded that even if the prior judge had no legal authority to make the award, the judgment should have b een timely challenged by means of a motion for reconsideration, motion to vacate, or an appeal. Finally, the court concluded that the 13

- year delay between the date of the default judgment and the date the Regos plaintiffs
filed their complaint was “fatal ” to their claims under the
doctrine of laches

. This appeal followed.

DISCUSSION
A. Standard of r eview
This case involves the interplay between various methods of challenging a judgment, entitlement to attorney fees in the absence of a written agreement, and the equitable doctrines of
laches

. W e agree with appellants that the standard of review here
is de novo. ( Interna tional Engine Parts, Inc. v. Fedderson & Co.8

(1995) 9 Cal.4th 606, 611 [ w here the relevant facts are not in dispute, we review the application of law to those facts as a question of law, and hence, de novo ] ; Bakersfield Elementary Teachers Assn. v. Bakersfield City School Dist. (2 00 6 ) 145 Cal.App.4th 1260, 1274 [“ L aches is a question of fact for the trial court, but may be decided as a matter of law where, as here, the relevant facts are undisputed” ]. ) 6
B. The Regos plaintiffs are entitled to declaratory
relief

1. Th at p ortion of t he 2004 judgment

regarding attorney fee s is void because
the court lacked jurisdiction
The Regos plaintiffs’ fundamental argument on appeal, as it was below, is that the original award of att orney fee s in the 2004 judgment was void because the court had no jurisdiction to
make that award . As the fee award was void, they contend, the subsequent stipulation and order that purported to grant attorney Reed the ability to receive his attorney’s fe es from each payment was also void. We agree. The California Supreme Court has consistently held that a judgment is void to the extent that a court lacks jurisdiction

. ( In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 [ a judgment is void when the court “lack[s] fundamental

6 Respondent d oes not dispute that this is the proper standard of review. (Cf. Keyes v. Bowen (2010) 189 Cal.App.4th 647, 65 6 [“appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be pres ented and the point to be made; otherwise, the point will be forfeited”].)9

authority over the subject matter, question presented, or party” ]; Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950 [ “ C ollateral attack is proper to contest lack of personal or subject matter jurisdiction or the granting of relief which the court has no power to grant” ]; Ol i vera v. Grace (1942) 19 Cal.2d 570, 574 [ “ a court has inherent power, apart from statute, to correct its records by vacating a judgment which is void on its face, for such a judgment is a nullity and may be ignored” ].) 7 The jurisdictional error in this case was to provid e relief to a nonparty (attorney Reed ) regarding a matter that was never put to it (the fee award)

. “ ‘ A judgment in favor of a person who is not a party to the action is obviously beyond the authority of the court’ and hence is
void

. ” ( Moore v. Kaufman (2010) 189 Cal.App.4th 604, 615; 2 Witkin, Cal. Procedure (6th ed. 202 2 ) Jurisdict ion, § 331, p. 937 .)
In Overell v. Overell (1937) 18 Cal.App.2d 499 ( Overell )

, a

very similar fact pattern to the case at bar was presented. In a quiet title action, a judgment was entered which includ ed a

7 The Regos plaintiffs contend that the award of attorney fees was a clerical error that can be corrected nunc pro tunc. We disagree. “ ‘The distinction between clerical error a nd judicial error is “whether the error was made in rendering the judgment, or in recording the judgment rendered.” ’ ” ( Ukega w a Brothers v. Agricultural Labor Relations Bd. (1989) 212 Cal.App.3d 1314, 1318.) Here, it appears from the minute order that t he judge did render a decision for “costs plus attorney fees.” The judgment then fleshed out in more detail the fees that were owed. Thus, we find the case of Estate of Goldberg (1938) 10 Cal.2d 709, 715

– 716, cited by Ebanal, inapplicable. Instead, however, we find the error to have been a judicial one that led to a partially void judgment.10

provision that plaintiff’s attorney was entitled to 25 percent of the amounts recovered on behalf of the plaintiff as well as 25 percent of some other items of property

. The court agreed with the client that this provision was void, noting: “ T he judgment purports to adjudicate and establish

t he rights of the attorney under the agreement as against his client. This, of course, could have been done only after the trial of an action in which the parties to the agreement had been given an opportunity to present their respective demands and

. . . defenses. . . . It could not be done ex parte nor in a summary manner. . . . One who is not originally a party can become a party only by order of court upon proper application. [Citation.] A judgment must be confined to matters which have been placed i n issue by the parties and those which are necessarily involved.” ( Overell, supra , 18 Cal.App.2d at pp. 502

– 503.) The court concluded that while any fee dispute could undoubtedly have been resolved in a separate action, there was nothing in the judgment roll to show “even remotely, that the court had jurisdiction to render any judgment as between [client] and her attorney.” ( Id. at p. 503 ; accord Wong v. Superior Court (1966) 246 Cal.App.2d 541, 546 [“ A ttorney Wong is not a party to th e action. ‘It is t he general rule that a judgment may not be entered either for or against a person who is not a party to the proceeding, and any judgment which does so is void to that extent.’ ”]; Moore v. Kaufman , supra, 189 Cal.App.4th at pp. 614

– 616 [judgment requiring attorney to pay other party’s attorney fees was void where attorney was not a party to the action and in the absence of statutory authority].)
In Bandy v. Mt. Diablo Unified School Dist. (1976) 56 Cal.App.3d 230, a discharged attorney filed a motion for attorney11

fees and a lien for fees and costs advanced in his former client’s underlying case . After a hearing, the court granted the attorney’s motion. On appeal, the court reversed, finding that an attorney’s lien against the prospective recovery of a cl ient upon
his claim “must be enforced . . . in an independent action by the attorney against the client and the attorney has no right to intervene in the main action to which he is not a party.” ( Id . at

p. 234

. ) The court found that the judgment granting the attorney
fees made in the main action was therefore void. ( Ibid. ) Here, attorney Reed was not a party to this action, nor did he ever file any motion or petition for attorney fees

– even assuming that he had a statutory basis to do so. As in Overel l

, the judgment is void to the extent it “ purports to adjudicate and

esta blish the rights of the attorney under the agreement as against his client ” without notice and an opportunity for both parties to present their respective demands and defenses. ( Overell, supra, 18 Cal.App.2d at p . 502.) “Due process of law does not permi t an attorney to step out of his fiduciary role temporarily and obtain a judgment for his own benefit against his
client .” ( Wong v. Superior Court , supra, 246 Cal.App.2d at

p. 549.)
In addition to lack ing jurisdiction over a nonparty , the court also lacked jurisdiction over the issue of the distribution of the proceeds between plaintiffs and their lawyer.
In Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, the court held that a judgment is void
when t he court grant s relief beyond its authority to grant. There,
the judgment was found void because the trial court had no power to grant relief as to any tax payment for which there was not a timely claim for refund. ( Id. at p. 36; see also Heidary v.12

Yado llahi (2002) 99 Cal.App.4th 857, 862

– 864 [judgment void when the court had no power to order entry of default when defendants failed to appear for trial despite being served ] .) In the context of default judgments, Code of Civil Procedure
section 580 provid es that the “relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint

. . . [or in a statement of damages].” (Code Civ. Proc., § 58 0 .) A default judgment entered in violation of that statute is void “ ‘ because it is beyond the court’s jurisdiction to enter. ’ ” ( Machado v. Myers (2019) 39 Cal.App.5th 779, 798.) Relying on Code of Civil Procedure section 580, our Supreme Court has held that a judgment was void where , among other things, it awarded $2,500 in attorney fees where attorney fees were not included in the prayer for relief. ( B ecker v. S.P.V.
Construction Co. (1980) 27 Cal.3d 489, 491

, 495 .) Many cases have come to the same conclusion. ( Burtnett v. King (1949) 33 Cal.2d 805, 80 7 [ judgment void where court

“ wholly lacked jurisdiction to render a judgment affecting the community property, for there was no demand for such relief ” ] ; see also Swycaffer v. Swycaffer (1955) 44 Cal.2d 689, 693 [ default judgment that exceeds the demand or gives relief where no
demand is made therefor is void ] .) Moreover, if the judgment is only partially void, and the void part is severable, that part alone may be collaterally
attacked

, and the remainder will remain effective. ( B ecker v. S.P.V. Constru ction Co.

, supra , 27 Cal.3d at p. 495 [remand ing

case to the trial court with directions to modify the judgment by striking the attorney fees ] .) Here, there was no basis for attorney fees set forth in the prayer for relief, the request for default, and no motion or13

petition for attorney fees was ever filed. Accordingly, the court awarded relief in excess of its jurisdiction. For all these reasons, we agree with the Regos plaintiffs
that t he portion of the judgment awarding a percentage to Reed

was void

. 2. T he attorney fee award cannot be

justified as a determination of q uantum meruit The trial court concluded that even though there was no

re quest made for attorney fees in the Regos v. Ran som matter, and no evidence of how much the attorney should have received in the absence of any written contingency agreement, the provision in the judgment was a valid “quantum meruit finding” by the original Regos v. Ransom judge, as he “ was in the best position to determine the value [of] that work.” Upon closer examination, this conclusion does not withstand scrutiny for the

same reasons as described above

. The general principles applicable to enforcement of an attorney’s fee in the absence of a written agreement are not in dispute. “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation . . . is left to the agreement, express or implied, of the parties.” (Code Civ. Proc.

, § 1021.)
California law set s forth several requirements for an attorney to represent a client on a contingency fee basis

. A s relevant here, Business and Professions Code section 6147

, subdivision (a) requires that the contrac t be in writing; that it include a statement of the contingency fee rate that the attorney and client have agreed on; that it state how disbursement and costs will affect the client’s recovery; and that i t states that the14

fee is not set by law but is negot iable between the attorney and
the client. ( Ibid. ) Failure to comply with any provision of this section renders the agreement voidable 8 at the option of the
client , and the attorney shall thereupon be entitled to collect a
reasonable fee. (Bus. & Prof

. Code

, § 6147

, subd. (b).) 9
However

, while it is true that an attorney is entitled to quantum meruit in the absence of a valid written contingency fee agreement, that dispute must be squarely raised and adjudicated,
and cannot be decided sub silentio by approving a default judgment in which the issue was never mentioned in any pleadings

. “[W]hen legal services have been provided without a valid written fee agreement, the attorney may recover the reaso nable
value of the services she performed in the action pursuant to a common count for quantum meruit.” ( Leighton v. Forster (2017) 8

8 Voidable is distinct from void: A voidable act may be rendered null at the option of the wronged party, but is not void until so entered. ( Depner v. Joseph Zukin Blouses (1936) 13 Cal.App.2d 124, 127; White Dragon Productions, Inc. v. Performance Guarantees, Inc. (1987) 196 Cal.App.3d 163, 172 [same]. )

9 There is no statute of limitations or other “timeliness component” for a client who seeks to void an agreement that fails to comply with section 6147. ( O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 576.) It may be voided before or after se rvices are provided. ( Alderman v. Hamilton (1988) 205 Cal.App.3d 1033, 1038 [clients waived their right to void the entire contract by agreeing to pay the contingency relating to one part of their case but exercised their right to void it when they denied that the contract was enforceable and refused to pay any more to attorney for a different issue].)15

Cal.App.5th 467, 49 0 .) There is a two

- year statute of limitations, which commences on either the date the last payment w as made toward the attorney fees, or the last date that the attorney performed services in the case. ( I bi d. ) A claim for quantum meruit is considered an action at law, not in equity. ( Chodos v. Borman (2014) 227 Cal.App.4th 76, 97.) The parties to a

qu antum meruit claim have a right to a jury trial. ( Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 907.) For that reason, dispute s as to the appropriate amount owed under quantum meruit involve cases between the attorney
and the client

. ( See, e.g., Wiley v. Silsbee (1934) 1 Cal.App.2d
520 , 521

– 522 [in case brought by attorney against former client, attorney was entitled to quantum meruit even though their

contract was void as against public policy ] ; Iverson, Yoakum, Papiano & Hatch v. Berwald ( 1999) 76 Cal.App.4th 990, 996 [ in case brought by attorney against former client, contract was unenforceable because not in writing; an action will lie upon a common count for quantum meruit and two year statute of limitations applies] .) Jackie Lynn Reed a rgues first, that attorney Reed was entitled to recover fees under a quantum meruit analysis

, and second, that the case of Flannery v. Prentice (2001) 26 Cal.4th
572 ( Flannery ) provides a basis to hold that the clients here
should not able to cut off the a ttorney’s fee award despite the lack of a written fee agreement

. As to the first argument , as noted above, Reed was certainly entitled to seek his fees in quantum meruit by filing a n action and s upporting his claim with appropriate evidence

. ( Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th16

257, 272 [setting forth factors to be considered in awarding fees in quantum meruit action].) He did not do so.
As for Flannery , the case is inapposite. In that c ase , the California Supreme Court held that, in the absence of an enforceable agreement to the contrary, any attorney fees obtained under Government Code section 12965 (the Fair Employment and Housing Act) belong to the attorney, not the client. In that

c ase, a client brought an action against her attorneys seeking a judicial declaration that she was entitled to the statutory attorney fee awarded in an earlier action. ( Flannery, supra, 26 Cal.4th at p. 576.) In the earlier action, a motion for statutory attorney fees had been filed in the original action for employment
discrimination on the grounds of both Government Code section
12965 as well as Code of Civil Procedure section 1021.5 , which resulted in a fee award payable by the defendant

. ( Flannery, at p. 576 ; see also Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 632 [“Plaintiff moved for attorney fees and expenses”]

. ) T he fees were then put at issue in a subsequent case brought by client against the attorney. ( Flannery v. California Highway Patrol, supra, 61 Cal.App.4th at p. 632

. ) T he only dispute in that second action was whether the fees belonged to
the client or the attorney in the absence of an agreement. Here, by contrast, the re was no attorney’s fee award

reques ted in the underlying action, nor was there ever a proceeding between attorney and client in which the issue of
division of the proceeds or entitlement to fees was ever litigated (until these declaratory relief actions were filed)

. Again, while Reed surely would have had a strong case for quantum meruit17

had he ever filed one, he did not. 10 The trial court below erred by finding that the fee award could stand despite this fundamental
flaw.
C. The Regos p laintiffs’ challenge was not untimely Respondent’s brief comes close to conceding the impropriety of the initial fee award but leans heavily on the trial court’s finding
that any challenge is time

- barred. We disagree.

1. A challenge to a void judgment can be brought at any time
As the l ower court held, the Regos plaintiffs’ attack on the 2004 judgment was brought long after the statutory periods set forth in many if not all modes of direct attack, whether a motion for reconsideration (Code Civ. Proc.

, § 1008 [ 10 days ] ); a motion

to vacat e for relief from default (Code Civ. Proc.

, § 473

, subd. (b) [ six months ] ; but see § 473

, subd. (d) ) 11 ; or an appeal (Cal. Rules of Court, rule 8.104 [ generally 60 days ]

. )

10 The Regos plaintiffs are not seeking return of the approximately $80,000 received by Reed prior to his death. As the matter is not presented to us, we do not opine as to attorney Reed’s estate’s ability to obtain a quantum meruit award or what that amount might be.

11 Some courts have held that a motion brought under Code of Civil Procedure section 473

, subdivision (d), which provides that the court may “ on motion of either party after notice to the other party, set aside any void judgment or order” may be brought after the normal six

- month period set forth in sub division (b) where a judgment was void because the court lacked jurisdiction. ( Sindler v. Bre nnan (2003) 105 Cal.App.4th 1350, 1353.)18 However, the court below erred when it concluded that
because those statut ory periods had passed, it lacked the power to vacate or change a judgment issued by another trial court.

“ W hen a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘ thus vulnerable to direct or collateral attack at any time

. ’ ” 12 ( People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 ; Plaza Hollister Lt d

. Partnership v. County of San Benito, supra

, 72 Cal.App.4th at

p. 19 [ “ ‘ a judgment or order which is void on its face, and which

12 For purposes of this appeal, we need not delve into the complex distinction between a collateral or direct attack on a judgment, referred to by one commentator as “one of the most obscure areas of procedural law.” (Comment, The Value of the Distinction Between Direct and Collateral Attacks on Judgments (1957) 66 Yale L.J. 526.) Suffice it to say that under California law, a direct attack is a proceeding instituted for the specific purpose of vacating or reversing a judgment such as by a motion for new trial or appeal; it is the only method for attacking a judgment which, no matter how erroneous it may be, was within the jurisdiction of the court. (8 Witkin, Cal

. Procedure (6th ed. 202 2 ) Attack on Judgment in Tria l Court, §§ 1

– 2, pp. 584

– 585.) By contrast, a collateral attack is made not in a proceeding brought for the specific purpose of attacking the judgment, but in some other proceeding in which the judgment comes up only incidentally; in such a proceeding the judgment may be challenged only if it is so completely invalid as to require no ordinary review to annul it. (8 Witkin, Cal

. Procedure (6th ed. 202 2 ) Attack on Judgment in Trial Court

, §§ 6

– 7, pp. 590

– 591.) “A motion to vacate or set aside the judgment, if made after the statutory time has elapsed for direct attack by motion, or if made on grounds or under a procedure not authorized by the statutes governing direct attack, is a collate ral attack.” ( Id. at § 8,

pp. 592

– 593.)19

requires only an inspection of the judgment

- roll or record to show its invalidity, may be set aside on m o tion , at any time after its entry, by the court which rendered the judgment or made the
order’ ” ] ; 13 Wells Fargo & Co. v. City and County of San Francisco (1944) 25 Cal .2d 37, 40 [“a motion to vacate a judgment, made after the expiration of the six

- month period allowed in section
473 of the C ode of Civil Procedure for a motion to set aside a default judgment, is governed by the rules applicable to collateral attack. [Ci tations

. ] In the absence of extrinsic fraud or mistake [citation] a judgment so attacked cannot be set aside unless it is void on its face”]

. )
Given the viability of challenging a void judgment as described above, the cases cited by the court are simply not on point. ( In re Alberto (2002) 102 Cal.Ap p .4th 421, 426

– 427 [one judge should not correct another judge’s prejudgment orders];
Elsea v. Saberi (1992) 4 Cal.App.4th 625, 630

– 6 31 [one judge should not grant motion to set aside default judgment when a

p rior judge had already rejected an prior request to set it aside, alleging the same basis for relief, which was then pending on appeal at the time the second motion was filed]; Church of Scientology v. Armstrong ( 1991 ) 232 Cal.App.3d 1060, 1070 [trial

cour t erred in vacating, on its own motion, a prior judge’s order sealing the record, during the proceedings].)

13 The judgment roll in a civil action where judgment was entered by default, as occurred here, is defined as: the summons, proof of service, complaint, the request for entry of default, and the judgment. (Code Civ. Proc.

, § 670

, subd. (a).)20 Here, we conclude that the attorney’s fee portion of the judgment is void on the face of the record (i.e., by reference to who the parties were and what relief was sought as set forth in the judgment roll) and hence could be challenged at any time

.

2. The court erred in concluding that laches
barred relief for the Regos plaintiffs
The trial court here held that “the thirteen

- year delay Plaintiffs waited to assert their objections is fatal to their current claims. . . . Laches may be found where there is 1) an omission to assert a right; 2) a delay in assertion of that right for some applicable period

, and 3) circumstances which would cau se prejudice to an adverse party if assertion of the right is permitted. ( Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296.) All elements are met in this matter. Plaintiffs accepted the payment arrangements under the 2004 Judgment and the Stipulatio n and refrained from asserting their objections for 13 years.” The affirmative defense of laches requires “unreasonable delay in bringing suit ‘plus either acquiescence in the act about which plaintiff compl a ins or prejudice to the defendant resulting
from the delay.’ ” ( Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.) 14

14 Although some cases omit the word “unreasonable” when stating the delay prong, analysis of those cases shows that the delay was in fact found to be unreasonable. In Stafford , for example, the party who delayed filing a clai m had both full knowledge that the other part refused to complete the sale (the basis for his claim) and also had no disability; thus, the court held there was no reason not to enforce the statute of limitations. ( Stafford v. Ballinger , supra, 199 Cal.App .2d at p. 295.)21 However, laches does not apply when a judgment is void. In an action seeking to vacate a judgment which is void for lack of jurisdiction of the court to enter it, the jud gment is “for all purposes a nullity” in that regard. ( City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 73 2 .) Accordingly, “neither laches nor the ordinary statutes of limitation may be invoked as a defense.” ( Ibid. ) “Prejudice is not a factor ” when a challenged order is void. ( Sindler v. Brennan, supra , 105 Cal.App.4th at p. 1354 ; see also Sugimoto v. Exportadora de Sal, S.A. de C.V. (1991) 233 Cal.App.3d 165, 170 [“Prejudice is irrelevant to the issue of jurisdiction” ] .)
Since we concl ude that this judgment was in fact void

, laches may not be invoked as a defense at all, regardless of any prejudice.
Even if laches were a defense in this case, though , the finding of laches could not be upheld. While some cases define unreasonable delay as delay which results in prejudice (see George v. Shams

- Shirazi (2020) 45 Cal.App.5th 134 , 14 2 ), most
focus either implicitly or explicitly on whether a party’s delay was otherwise justifiable or not attributable to that party. ( See, e.g.,
Potter v. Cont ra Costa Realty Co. (1934) 220 Cal. 31, 34 [delay in asserting rights justified when the defaulting party represented he would make good his default] ; Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267,
286
, fn. 5 [ comment in Restatement of Judgments § 129 subd. (b) explains that establishing a defense of laches requires not merely

a “ ‘ lapse of time ’ ” but a showing that the party seeking relief has
been “ ‘ unreasonable in his delay after learning the facts ’ ”]. )
W hen the delay is due to the conduct of another party

– in particular, the opposing party in the litigation

– the party22

causing the delay cannot take advantage of its own conduct by raising the defense of laches. ( See Bakersfield Elementary
Teachers As sn. v. Bakersfield City School Dist., supra , 14 5 Cal.App.4th at p. 1275 [ “The District may not now complain the temporary employees waited too long to assert a right the District misled them into believing they had already given up. [Footnote.] ‘One who comes into equity must come with clean hands.’ ” ]

. )
Laches is even less likely to apply when a party was prevent ed from learning all the relevant facts by a fiduciary, such as one’s attorney. “ [A] fiduciary has a duty to make a full and fair disclosure of all facts which materially affect the rights and interest of the parties, and, where a fiduciary relationship exists, facts which would ordinarily require investigation may not excite suspicion.” ( Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 559

– 560 .) In such a case, “a plaintiff need not disprove that an earlier discovery could have been made upon a diligent inquiry but need show only that he made an actual discovery of hitherto unknown
infor mation within the statutory period before filing the action.” ( Id. at p. 563 ; see also Hudson v. Foster (2021) 68 Cal.App.5th 640, 667 [ “A plaintiff who has no duty to inquire because of a fiduciary relationship does not need to show that he or she could not have discovered the facts earlier with a diligent inquiry”]. )
A ttorney Reed was a fiduciary of the Regos plaintiffs.
Given his duty to make a full and fair disclosure of all facts which materially affect ed his client’s rights, the Regos plaintiffs are not obligated to prove that they could have earlier discovered that the attorney’s fee award was void . They brought their action
within 15 months after Reed passed away and once his widow made known her position on her entitlement to the attorney fees

, presumably with advice from a new attorney

. Thus, even if23

laches were a defense to an attack on a void judgment, the court erred in finding that laches should bar the plaintiffs’ claims in the unusual circumstances presented here

.24 DISPOSITIO N
The judgment is reversed with directions to enter judgment
in favor of John Louis Regos, Jr., Jenifer Regos, and Mary Louise
Ebanal on the first cause of action of their complaint against Jackie Lynn Reed , including the declaration that they al one are entitled to receive 100 percent of the $2

, 000 month ly annuity payments since the date of Brian Reed’s death and going forward

, and against Jackie Lynn Reed on her cross

- complaint

. The court is further ordered to modify the September 22, 2005 order to provide payment direct ly to appellants

. The appellant s are entitled to their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RICHARDSON (A NNE K.), J. *
WE CONCUR:

LAVIN

, A cting P.J.

EGERTON , J

.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.