Judge Christian R. Gullon, Case Number: KC066867, Date: 2025-03-03 Tentative Ruling

Judge: Christian R. Gullon, Case: KC066867, Date: 2025-03-03 Tentative Ruling

Case Number: KC066867 Hearing Date: March 3, 2025 Dept: O

Tentative Ruling

Defendant’s MOTION TO VACATE RENEWAL OF JUDGMENT AND DEEM THE JUDGMENT UNENFORCEABLE OR SET ASIDE AND DISMISS is GRANTED.

Background

This is a breach of a promissory note action. In 2014, Plaintiff Navy Federal Credit Union obtained a default judgment against Defendant Floyd Carter II. Judgment was entered in favor of Plaintiff in the amount of $208,558.49. The Judgment also gave Plaintiff possession of a 2008 vessel, official number 1220676, IMO number 0DHETB24H708, which was secured by the promissory note at issue.

On May 8, 2014, Plaintiff filed its Complaint for three causes of action.

On July 11, 2024, default was entered against Defendant.

On November 14, 2014, default judgment was entered against Defendant.

On August 22, 2024, Plaintiff filed an Application for and Renewal of Judgment, which the court granted.

On January 14, 2025, Defendant filed the instant motion.

No opposition or reply has been filed.

Legal Standard

“A money judgment is enforceable for 10 years from the date of its entry. ([Code Civ. Proc.] §§ 683.020, 683.030; [citation].) (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200 (“Fidelity”).)

“There are two alternative methods to extend the life of a money judgment.” (Fidelity, supra, 89 Cal.App.4th at p. 200.) “First, a judgment creditor may file a separate action on the judgment.” (Ibid.) Second, “a judgment creditor may … renew a judgment for an additional 10 years.” (Ibid.)

Code of Civil Procedure section 683.170 provides that:

(a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.

(b) Not later than 60 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail.

(c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount.

(Code Civ. Proc., § 683.170.)

“The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170.” (Fidelity, supra, 89 Cal.App.4th at p. 199.)

In Fidelity, the California Court of Appeal held that “failure to … serve[] the summons and complaint … provides a basis for a motion to vacate a renewed judgment.” (Fidelity, supra, 89 Cal.App.4th at p. 202.)

Discussion

Defendant seeks to set aside the renewed judgment, arguing that he was never served with the Summons, Complaint, or the Application for and Renewal of Judgment. Defendant attests to the following facts in support of the motion. “I have reviewed the proof of service for the summons and complaint, and it says that the summons and complaint was served at 1042 Mountain Ave, Apt 211, Upland, CA 91786. I believe that 1042 Mountain Ave, Apt 211, Upland, CA 91786 is a UPS store that has post office boxes.” (Declaration of Floyd Carter II, filed on (“Carter II Decl.”), ¶ 3.) “I never had a Post Office Box at 1042 Mountain Ave, Apt 211, Upland, CA 91786. My father had a Post Office Box at 1042 Mountain Ave, Apt 211, Upland, CA 91786. His name is Floyd Carter which is only different from my name in that I am FLOYD CARTER II. I could not have been served at 1042 Mountain Ave, Apt 211, Upland, CA 91786 because I am not at all associated with that address.” (Carter II Decl., ¶ 4.) “I cannot recall when I learned of this lawsuit, but my recollection is that I was contacted by an attorney who informed me of this lawsuit.” (Carter II Decl., ¶ 5.) “I have reviewed the proof of service for the renewal of judgment. The renewal of judgment was served at 620 Scottsdale Ave, Glendora, CA 91740. This is my father’s address. I have never resided at 620 Scottsdale Ave, Glendora, CA 91740.” (Carter II Decl., ¶ 6.) “My father who resides at 620 Scottsdale Ave, Glendora, CA 91740 never gave me a copy of the renewal of judgment.” (Carter II Decl., ¶ 7.)

No opposition has been filed by Plaintiff disputing those facts.

The court finds that Defendant has met his burden of proving, by a preponderance of the evidence, that he was never served with the Summons, Complaint, or the Application for and Renewal of Judgment.

Therefore, the request to vacate the renewed judgment is granted pursuant to Code of Civil Procedure section 683.170.

Notwithstanding the above, “[a] successful motion under section 683.170 does not affect the validity of the default or the default judgment. [Citation.] A successful motion under section 683.170 vacates only the renewal of the judgment thereby precluding its extended enforceability under section 683.120.” (Fidelity, supra, 89 Cal.App.4th at pp. 203-204.)

Here, Defendant also moves to set aside the default and default judgment, arguing that they are void because he was never served with a Summons and Complaint.

“‘[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]’ [Citation.] Under [Code of Civil Procedure] section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) “When a defendant argues that service of summons did not bring him or her within the trial court’s jurisdiction, the plaintiff has ‘the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.’ [Citation.]” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387.)

The court finds that the default and default judgment are void because Defendant has testified that he was never served with the Summons and Complaint, and Plaintiff has not filed any opposition showing that it effectuated proper service on the Defendant.

Therefore, Defendant’s request to set aside the default and default judgment is also granted pursuant to Code of Civil Procedure section 473, subdivision (d).

Conclusion

Based on the foregoing, the motion is granted.