Judge: Daniel S. Murphy, Case: 24STCP02156, Date: 2024-10-11 Tentative Ruling

Case Number: 24STCP02156    Hearing Date: October 11, 2024    Dept: 32

BACKGROUND

            On July 5, 2024, Plaintiff Vickie Metcalfe initiated this action by filing an application for entry of judgment on sister-state judgment against Defendant Home Pro Remodeling & Construction Inc. The underlying judgment is a default judgment entered in Oregon state court.

            On September 18, 2024, Defendant filed the instant motion to vacate the sister state judgment. Plaintiff filed her opposition on September 30, 2024. Defendant filed its reply on October 3, 2024.

LEGAL STANDARD

            A sister state judgment “may be vacated on any ground which would be a defense to an action in this state on the sister state judgment.” (Code Civ. Proc., § 1710.40(a).) “Common defenses to enforcement of a sister state judgment include the following: the judgment is not final and unconditional (where finality means that no further action by the court rendering the judgment is necessary to resolve the matter litigated); the judgment was obtained by extrinsic fraud; the judgment was rendered in excess of jurisdiction; the judgment is not enforceable in the state of rendition; the plaintiff is guilty of misconduct; the judgment has already been paid; suit on the judgment is barred by the statute of limitations in the state where enforcement is sought.” (Casey v. Hill (2022) 79 Cal.App.5th 937, 976.)

            “The party moving under section 1710.40 to set aside the sister state judgment has ‘the burden to show by a preponderance of the evidence why it was entitled to relief.’” (Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 841.) “For example, if the movant proves service of process in the sister state action was not made or was defective, this burden has been met. Under these circumstances, the sister state judgment is void for lack of fundamental jurisdiction and therefore unenforceable in California.” (Ibid.)

JUDICIAL NOTICE

            Defendant’s request for judicial notice is granted. (See Evid. Code, § 452(d).)

            Plaintiff’s request for judicial notice is granted. (See Evid. Code, § 452(c); Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1160, fn. 2.)

DISCUSSION

            Defendant argues that the sister judgment in Oregon is defective because the Oregon court lacked jurisdiction over Defendant.

a. Minimum Contacts

First, Defendant argues that it had no minimum contacts with Oregon. (See M.C. v. Quest Glob., Inc. (2023) 328 Ore. App. 378, 382-85.) Defendant avers that it is a California company with its principal place of business in California. (Dayan Decl. ¶ 4.) Defendant avers that it has never conducted business in Oregon and has no relation to Plaintiff or the Oregon co-defendants in the underlying action. (Id., ¶¶ 4-6.)

However, Oregon state records show that Yaacov Dayan, Defendant’s CEO, is also the president of co-defendant IRemodeling. (Plntf.’s RJN, Ex. 3, 4.) Thus, the companies do share common management, contrary to Mr. Dayan’s declaration. Furthermore, after being solicited, Plaintiff signed a contract in Oregon with IRemodeling. (Def.’s RJN, Ex. A; Metcalfe Decl. ¶ 5.) The solicitor handed Plaintiff a folder with the website address www.homepro-remodeling.com and an office address in Portland, Oregon. (Ibid.)

The Court finds that Mr. Dayan’s declaration is not credible based on his misrepresentations about the relationship between Defendant and IRemodeling. That, combined with Plaintiff’s evidence, demonstrates that Defendant had minimum contacts with Oregon sufficient for personal jurisdiction. At the very least, Defendant has not satisfied its burden of proving a lack of minimum contacts. (See Conseco, supra, 221 Cal.App.4th at p. 841 [moving party bears the burden of proof on a motion to vacate].)   

b. Service of Summons

Second, Defendant argues that service of process was improper in the underlying action. Specifically, Defendant cites ORCP 7(D)(2)(c), which requires leaving a copy of the summons and complaint with a person apparently in charge at the defendant’s office, and then first-class mailing the summons and complaint to the defendant. Defendant argues that service was improper because the summons and complaint were left with Defendant’s clerk but not subsequently mailed. (See Def.’s RJN, Ex. B; Dayan Decl. ¶ 10.)

However, ORCP 7(D)(2)(c) only applies “[i]f the person to be served maintains an office for the conduct of business.” Here, Defendant is a corporation, not a person with an office. Service on corporations is governed by ORCP 7(D)(3)(b). The primary service method for a corporation is “[b]y personal service or office service on a registered agent, officer, or director of the corporation; or by personal service on any clerk on duty in the office of a registered agent.” (ORCP 7(D)(3)(b)(i).) No subsequent mailing is required.

The proof of service here indicates that Defendant was served “by personal service upon Dikla Golask . . . who was the clerk on duty at the office of Yaacov Dayan, who is the Registered Agent thereof.” (Def.’s RJN, Ex. B.) Service was made at the address 6350 Laurel Canyon Blvd., Los Angeles.[1] (Ibid.)

Defendant argues that under ORCP 7(D)(3)(b)(ii), personal service on its clerk in California was ineffective because the clerk was not located in the county where the action was filed. Defendant cites the prior version of ORCP 7(D)(3)(b)(ii), which lists the following alternative service methods: substitute service, “personal service on any clerk or agent of the corporation who may be found in the county where the action is filed,” or mail. The current version of ORCP 7(D)(3)(b)(ii) lists the alternatives as follows: substitute service, “personal service on any clerk or agent of the corporation,” or mail. There is no requirement for the clerk or agent to be located in the county where the action is filed.  

Even assuming the older version of ORCP 7 applied here, ORCP 7(D)(3)(b)(ii) describes alternative methods of service, one of which is to personally serve a “clerk or agent of the corporation” who is located in the county where the action is filed. But ORCP 7(D)(3)(b)(i) still governs the primary method of service on a corporation, and it allows “personal service on any clerk on duty in the office of a registered agent” without reference to that clerk’s location. Ms. Golask was served as the clerk on duty at the office of Yaacov Dayan, Defendant’s registered agent. (Def.’s RJN, Ex. B.) Ms. Golask was served under the primary method described in ORCP 7(D)(3)(b)(i), not the alternative method described in ORCP 7(D)(3)(b)(ii).

 Defendant does not deny that Ms. Golask was the clerk on duty at the office of Yaacov Dayan, that Dayan is Defendant’s registered agent, or that Ms. Golask was personally served with the summons and complaint. Dayan only claims that Ms. Golask did not inform him of the service. (Dayan Decl. ¶ 9.) However, that has no bearing on proper service. Ultimately, the evidence shows that Defendant was properly served under ORCP 7. Therefore, Defendant has not met its burden of proving a lack of jurisdiction.  

CONCLUSION

            Defendant’s motion to set aside sister state judgment is DENIED.