Judge: Elaine W. Mandel, Case: SC107178, Date: 2022-10-28 Tentative Ruling

Case Number: SC107178    Hearing Date: October 28, 2022    Dept: P

Tentative Ruling

Malibu General Contractors, Inc. v. Hardy, et al., Case No. SC107178

Hearing Date October 28, 2022

Successor In Interest to Judgment Debtor Hardy’s Motion to Vacate/Modify Renewal of Judgment

Jennifer Hardy moves as successor in interest to judgment debtor William Hardy to vacate or modify the renewal of judgment entered on September 9, 2022 in favor of plaintiff/judgment creditor, Malibu General Contractors, Inc., for a renewed judgment of $604,914.83.

Judgment creditor opposes and objects to portions of Jennifer Hardy’s declaration, which are OVERRULED.

Judgment creditor argues lack of service, but filed opposition, does not show prejudice, nor does it ask the court to deny the motion on this basis.

Code of Civil Procedure section 683.020 provides a money judgment is enforceable for a ten-year period following the date of entry. “The judgment creditor may renew a judgment by filing an application for renewal of the judgment with the court in which the judgment was entered.” Code Civ. Proc., § 683.120, subd. (a). The renewal may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount stated in the renewal is incorrect, or the renewal application was filed less than five years from the date of the previous renewal.¿ Code Civ. Proc., § 683.170.

Jennifer Hardy argues the court should modify the judgment because: (1) there is no explanation how the requested $298,789.80 in accrued interest was determined; and (2) the renewed judgment fails to account for a payment of $50,000 made in August 2022.

As a threshold matter, judgment creditor argues Jennifer Hardy has no standing to bring this motion. Jennifer Hardy, judgment debtor’s daughter, has the ability to state William J. Hardy is deceased. Jennifer Hardy Decl. ¶ 1. However, she proffers no evidence that she is the successor in interest. Judgment creditor also argues she has not complied with procedural requirements by executing and filing an affidavit or declaration as required by Code of Civil Procedure section 377.32, which applies because she is seeking to act in William J. Hardy’s place. Code Civ. Proc., § 377.32 [“The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest . . . .”]. Because Jennifer Hardy has not established she is a successor in interest, she lacks standing to make this motion. Code Civ. Proc., § 683.170, subd. (b) [“[T]the judgment debtor may apply by noticed motion . . . .”].

The court notes, but does not rule, that judgment creditor provides the interest calculation. Knickerbocker Decl. Ex. 12.

Jennifer Hardy claims the judgment does not reflect a payment of $50,000 made in August 2022. The court notes there is no verification nor admissible evidence that such payment was made. Ms. Hardy’s declaration (“[I]t is my understanding that a payment for $50,000 was sent to Plaintiff by Winifred Wilson in August of 2022…” Decl. ¶ 3) is not admissible evidence.

Judgment creditor seeks $4,306.70 in connection with opposing this motion (Civil Code section 1717 and Code of Civil Procedure section 685.040). Civil Code section 1717 is inapplicable because this is not an action arising out of a contract. This is a post-judgment proceeding. Code of Civil Procedure section 685.040 does authorize attorney fees in enforcing the judgment. DENIED.