Judge Holly J. Fujie, Case 22STCP04444 2023-05-15 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

On December 27, 2022, Petitioners filed a petition for an order for the sale of dwelling (the “Petition”). The Petition seeks an order for the sale of real property owned by Respondent located at 1622 West 38th Place in Los Angeles (the “Property”) on the grounds that the sale of the Property may be applied to satisfying a judgment (the “Judgment”) awarded in Petitioners’ favor against Respondent by the Riverside County Court in the case entitled Edward Roupinian v. Luis Aragon, Case No. RIC1104880 (the “Riverside Action”).

On May 17, 2012, the Riverside County Superior Court entered the Judgment in the Riverside Action and awarded Petitioners damages in the amount of $529,155.77 for their breach of guaranty claim. (See Declaration of Robert D. Bergman (“Bergman Decl.”) ¶ 3, Exhibit A.) Respondent has not paid any portion of the Judgment. On June 17, 2022, the Riverside County Court issued an abstract of judgment that was recorded on July 14, 2022 in the Los Angeles County Recorder’s Office. (Bergman Decl. ¶ 5, Exhibit D.)

Respondent filed an opposition (the “Opposition”) which argues that the Petition should not be granted because the Judgment is void due to improper service. The Court gave Petitioner and Respondent (the “Parties”) leave to file supplemental briefs on this issue.

Respondent’s Request for Judicial Notice is GRANTED as to the existence of the documents but not to the truth of the matters asserted therein. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)

Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and thus vulnerable to direct or collateral attack at any time. (Id.) To establish personal jurisdiction, compliance with statutory procedures for service of process is essential; if a default judgment was entered against a defendant who was not served with a summons as required by statute, the judgment is void, as the court lacked jurisdiction in a fundamental sense over the party and lacked authority to enter judgment. (Kremerman v. White (2021) 71 Cal.App.5th 358, 370.)

A judgment that is void on the face of the record is subject to either direct or collateral attack at any time. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327.) To prove that the judgment is void, the party challenging the judgment is limited to the judgment roll, i.e., no extrinsic evidence is allowed. (Id.)

In contrast, a judgment that is valid on the face of the record is generally not subject to collateral attack. (Id. at 1328.) In other words, a judgment that is valid on the face of the record must be challenged by direct attack, such as a motion in the original action, an appeal in the original action, or an independent equitable action. (Id.) A judgment valid on the face of the record may be set aside under California Code of Civil Procedure (“CCP”) section 473, subdivision (b) within a reasonable time after the party learns of the judgment, or it may be set aside in an independent equitable action without time limit. (Id.) Extrinsic evidence, i.e., evidence outside the judgment roll, may be presented on a direct attack of a judgment that is valid on the face of the record to rebut the presumption that the judgment is valid. (Id.) Nonetheless, an exception exists to the rule barring collateral attacks to judgments that appear valid on the face of the record: if a party admits facts showing that a judgment is void, or allows such facts to be established without opposition, then, as a question of law, a court must treat the judgment as void upon its face. (Id. at 1328-29.)

Under CCP section 415.20, subdivision (b), if a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. A proof of service containing a declaration from a registered process server creates a rebuttable presumption of valid service. (Evid. Code § 647; American Express Centurion Bank v. Zara¿(2011) 199 Cal.App.4th 383, 390.) Ordinarily, two or three attempts at personal service at a proper place and with correct pleadings should fully satisfy the requirement of reasonable diligence and allow substituted service to be made. (Kremerman v. White (2021) 71 Cal.App.5th 358, 373.)

The proof of service (the “Proof of Service”) in the case file for the Riverside Action states that Respondent was served on December 13, 2011 by substitute service at 2623 West Lantana Street (“2623 Lantana”) by a registered California process server, Manny Palacio (“Palacio”). (See RJN, Exhibit 3.) The Proof of Service includes a declaration of due diligence from Palacio (the “Palacio Declaration”) setting forth his attempts to serve Respondent before finally effecting substitute service on an individual identified as “Mr. Scipio, acknowledged father of Ronald Scipio” and described as a competent member of the household at the dwelling house or usual place of abode of the party. (See id.) The Palacio Declaration provides that when service was first attempted at 2623 Lantana on September 20, 2011, Respondent was not there according to his father. (See id. at 3.) On September 21, 2011, when service was attempted, no one answered the door. (Id.) On September 22, 2011, Respondent’s father, identified as “Mr. Scipio,” accepted substitute service. (Id.)

In support of the Opposition, Plaintiff submitted a declaration stating that he never owned 2623 Lantana, lived there, identified it as his home, abode or dwelling house, or used it at his mailing address. (Declaration of Ronald Scipio, Jr. (“Scipio Decl.”) ¶ 2.) Plaintiff owned nearby property located at 2622 West Lantana (“2622 Lantana”) before being foreclosed on March 17, 2010. (Scipio Decl. ¶ 3.) Respondent’s father never lived at either 2622 or 2622 Lantana. (Scipio Decl. ¶ 4.) Respondent was never served with a complaint or summons in the Riverside Action and did not learn of the Judgment until receiving notice at his current address in April 2022. (Scipio Decl. ¶ 5.)

Petitioners’ reply (the “Reply”) argues that the Scipio Declaration should be disregarded because Respondent is not credible. In support, Petitioners present evidence of documents signed by Scipio that were obtained during discovery in the Riverside Action which state that 2623 Lantana is his address. (See Declaration of Paul Roupinian (“Roupinian Decl.”) ¶¶7-11, Exhibits A-B.) The documents filed with the Reply include the 2007 loan application for the loan underlying the Riverside Action, a W-9 tax form dated 2007, Respondent’s individual income tax returns from 2004 and 2005, and a 2005 LLC operating agreement. (See id.)

Respondent’s supplemental brief concedes that between 2004 and 2005, he used 2623 Lantana as his mailing address which Respondent declares he did not remember when he initially filed the Opposition. (See Supp. Scipio Decl. ¶ 3.) During that time, Respondent was divorcing his wife and Campbell allowed him to list 2623 Lantana as his address while he figured out a place to live. (See id.) Campbell previously owned the 2622 Lantana property, which he deeded to Respondent in part in December 2005 and in full in January 2006. (Scipio Decl. ¶ 4.) Respondent did not fill out the 2007 W-9 form and does not recall seeing 2623 Lantana listed as his address when he signed it. (Scipio Decl. ¶ 5.)

Respondent further declares that, to his memory, he had not used 2623 Lantana as his mailing address for years before service was attempted in 2011. (See Supp. Scipio Decl. ¶ 6.) Respondent also provides evidence of a document from 2008 connected with the loan underlying the Riverside Action that is addressed to the 2622 Lantana address. (See Supp. Scipio Decl. ¶ 7, Exhibit 1.)

Petitioners do not contest the Opposition’s legal arguments concerning Respondent’s right to attack the validity of the Judgment.[1] Petitioners do not present evidence to dispute Respondent’s contention that he never actually resided at 2623 Lantana at any time or refute that the files attached to the Reply were taken from a file that included more recent documents sent to Respondent at 2622 Lantana. Nor do Petitioners present further evidence regarding their diligence in attempting to serve Respondent at a proper location. Petitioners solely argue that the discrepancy between the two Scipio Declarations entirely diminishes their evidentiary weight.

While the Court recognizes that these two declarations are inconsistent regarding Respondent’s use of the 2623 Lantana address in documents, both Scipio Declarations assert that neither he nor his father ever resided at that address. Respondent’s evidence is not contradictory on this point and there is no evidence that calls that into question. The Proof of Service filed in the Riverside Action states that Respondent was served by substitute service at his residence, and based on the foregoing, it is undisputed that 2623 was not his residence when service was attempted.[2] Thus, based on unopposed facts, the Court finds that the Judgment is void. (See Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 206-07; OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327. 1329.) The Court therefore DENIES the Petition.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] Neither the Reply nor Petitioners’ supplemental papers even address these arguments. The Court construes Cross-Petitioners’ failure to oppose these arguments as a concession of their merits. (See Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602.)

[2] The Court also observes that the documents submitted by Petitioners predate service by at least five years.