Filed 10/15/15 Vinson v. Randle CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b) . This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

LAURA VINSON ,
Plaintiff and Respondent
,

v.

JEREMIA H RANDLE ,
Defendant and Appellant

. B 254994
(Los Angeles County Super. Ct. No. BC479286 )

APPEAL from judgment of the Superior Court of Los Angeles County, Richard E. Rico, Judge

. Affirmed

.

Jeremiah Randle, in pro. per., for Defendant and Appel lant

.

No appearance for Plaintiff and Respondent.

_____________________2 INTRODUCTION
Defendant Jeremiah Randle appeals the trial court’s entry of default judgment against him, asserting Plaintiff Laura Vinson failed to properly verify the first amended complaint

. In this case, Randle moved to strike in response to Plaintiff’s first amended complaint. The court denied Randle’s motion to strike due to improper service. Randle never answered the first amended complaint with in the time allotted by the cou rt, defaulted, and then failed to move to set aside the default prior to this appeal

. We affirm because Randle has not proven that the verification in the first amended complaint was substantively deficient, has improperly attacked the merits of the case following default
, and has waived his arguments on appeal by failing to provide citation to the record, citation to relevant authority, and reasoned argument.

FACTS AND PROCEDURAL BACKGROUND
In February 2012, Plaintiff filed a complaint against Randle and others reque sting equitable relief, an injunction
, and damages. Plaintiff alleged that she was involved in a family law case with Randle, and that she owned a community property interest in a

company that held title to several real properties. Plaintiff asserted that Randle violated the family law court’s order by selling the several real properties held by the company
without her authorization. She alleged causes of action for fraudulent transfer, civil conspiracy, conversion, and fraud. In response, Randle moved to strike the complaint because it was not verified. Plaintiff responded by amending her complaint and Plaintiff’s counsel verified the first amended complaint. Randle moved to strike again, arguing that the verification in first amended

comp laint failed to comport with statutory requirements set forth in Code of Civil
Procedure 1 section 446. In August 2012, t he court denied the motion because Randle did

not properly serve the motion on Plaintiff , and ordered Randle to answer the complaint in
10 days

. Randle never answered the complaint. Rather, in September 2012, Randle

1 All further statutory references are to the Code of Civil Procedure, unless otherwise designated.3

again moved to strike the complaint. The court denied this motion to strike as untimely. Plaintiff moved for entry of default and the court granted it on October 15, 2012.
Randle then filed an answer and a cross

- complaint against Plaintiff o n October 22,
2012. Plaintiff moved to strike Randle’s answer an d cross

- complaint because those pleadings were filed after Randle’s default was taken and Randle never moved to set
asid e the default or requested leave to file those pleadings. The court granted the motion
to strike. The court entered judgment against all defendants, including Rand l e in February 2014, and awarded Plaintiff $150,000 in damages for which each defendant was jointly
and s everally liable. O n Mar c h 10, 2014, Randle noticed the present appeal. On that same day, Randle moved to vacate and set aside the default judgment.
DISCUSSION
1

. The Default Was Proper Randle failed to answer the first amended complaint wit hin the time allotted by the trial court. Accordingly, the court entered defaul t judgment against him. (See § 586(a)(2) [ if a d efendant ’ s motion to strike is denied, the defendant must answer the complaint within whatev er time is ordered by the court]; § 585 [stating that the defendant’s failure to answer after being served is a ground for default judgment].) After default was entered, Randle’s remedy was a motion under secti on 473 to set aside the
default. U ntil the de fault was set aside, Randle’s proc edural rights were cut off.

“ Substantively, ‘ [t]he judgment by default is said to “ confess ” the material facts alleged by the plaintiff, i.e., the defendant’ s failure to answer has the same effect as an express admission of the matters well pleaded in the complaint. The judgment is, in consequence, res judicata on the issue of the right to the relief awarded. ’ ” ( Steven M. Garber &
Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823 , italic omitted ( Steven M.
Garber ) .) “ ‘A defendant against whom a default has been entered is out of court, and is not entitled to take any further steps in the cause affecting plaintiff ’ s right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or4

move for a new tria l
, or demand notice of subsequent proceedings.’ ” ( Mackie v. Mackie (1960) 186 Cal.App.2d 825, 832 , fn. 5 .) As noted, Randle failed to file a section 473 motion until the date the notice of appeal was filed in this case. The pendency of the present appea l effectively divested the trial court of its jurisdiction to consider the set aside motion , and no ruling on that motion
is before us . ( Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196

- 1 97 .) Thus, we solely review the court’s default j udgment

. “ In an appeal from a default judgment, review of the default judgment is limited to questions of jurisdiction, sufficiency of the pleadings and excessive damages, if the damages awarded exceed the sum sought in the complaint. ” ( Steven M. Garber
, supra, 150 Cal.App.4th at p. 82 4 .) The entry of default bars the defendant from advancing arguments regarding the merits of the case on appeal. ( Id. at p. 823 .) Here, Randle asserts that the first amended complaint should have been stricken by the trial court because it was not properly verified. The remainder of Randle’s arguments address the merits and facts of the case, as Randle asserts that the court erred in quieting title to the property and by awarding damages. 2 As stated above, these argument s regarding the merits of the case are improper on appeal from a default judgment and we do not consider them. To the extent that Randle asserts the first amended complaint was insufficient because it was not properly verified, we disagree. In assessing th e adequacy of a verification, “ [t] he oath or declaration must be in such form that criminal sanctions of perjury might apply where material facts so declared to be true, are in fact not true or are
not known to be true. ” (

Ancora

- Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146,
150 .) Here, in the verification, Plaintiff’s attorney stated: “I have read the foregoing complaint and know the contents thereof. With respect to the facts contained therein, and
to the causes of action alleged on behalf of Plai ntiff, I believe the facts to be true, and

2 Randle does not contend the damages are excessive on appeal. Rather he makes an unsupported assertion that the court abused its discretion in awarding general damages, special damages, and punitive damages.5

based this assertion in good faith on information and belief

. ” The attorney signed the verification, explicitly stating that his statement regarding the contents of the pleading was “being made under penalty of p erjury under the laws of the State of California.”
Randle alleges that the verification was nonetheless defective because Plaintiff’s attorney failed to provide an explanation as to why the first amended complaint was not signed by
Plaintiff. (See § 446 [requires the attorney to explain why the client could not sign the
verification ].)
T his minor defect does not require reversal of the default judgment

. A verification signed by the party’ s attorney may be upheld without the required explanation as to wh y it was not signed by the party because the lack of explanation is a matter of “form” rather
than “substance.” (See Soltani

- Rastegar v. Sup erior C our t (1989) 208 C al. A pp. 3d 424,
428 [“[W] hile petitioner ’ s counsel should have explained why he, and not his client, verified the petition (Code Civ.Proc., § 446), the defect is one of form which does not affect the substance of the petition. ”].) In this case, t he attorney’s omission regarding the reason as to why his client could not sign the first amended comp laint did not change or impact the substance of his statement that he believed the contents of the complaint to be

true

. T he explanation of why his client could not sign the verification was merely a formality , and thus did not impact the validity or suff iciency of the first amended complaint. As the first amended complaint was sufficient and as Randle has failed to make

any other arguments that we may address on appeal, we affirm the default judgment.
2

. Randle Has Waived His Arguments on Appeal
One of the fundamental rules of appellate review is that an appealed judgment is presumed to be correct and “ ‘ error must be affirmatively shown. ’ ” ( Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) Randle , as the appellant, has the burden of overcoming
the presumption of correctness. “To demonstrate error, [the] appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” ( In re S.C. (2006) 138 Cal.App.4th 396, 40 8.)
Plaintiff ’s burden on appeal requires “more than simply stating a bare assertion that the6

judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why ; it is not the appellate court’ s role to construct theories or argu ments that would
undermine the judgment and defeat the presumption of correctness.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 20 14 ) ¶ 8:17.1, p. 8

– 6, citing Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) In case s like this one, w hen the appellant asserts a point but fails to support it with reasoned argument and citations to authority, we may treat it as waived and pass it without consideration. ( People v. Stanley (1995) 10 Cal.4th 764, 793; see, e.g., Taylor v. Roseville Toyota, Inc. (2006)
138 Cal.App.4th 994, 1001, fn. 2 [contention forfeited, where it is “merely asserted without argument or authority”].) Throughout his entire appellate brief, Randle sets forth bare assertions regarding
how the court erred in d enying his motion to strike and allowing Plaintiff to proceed with
her case. Randle does not address the issues he has raised with citation to the record, citation to relevant authority
, and reasoned argument. Randle thus failed to overcome the presumpti on of correctness and has waived these arguments. We therefore affirm on this
basis as well.7 DISPOSITION The j udgment is affirmed. No costs are awarded on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JONES , J. *

We concur:

EDMON , P. J

.

ALDRICH , J.

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