Judge: John J. Kralik, Case: GC047301, Date: 2023-02-03 Tentative Ruling

Case Number: GC047301    Hearing Date: February 3, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Navy Federal Credit Union (“Plaintiff”) alleges that on August 24, 2009, Defendant Crispin Luna (“Defendant”) executed and delivered to Plaintiff a promissory note in writing, such that Plaintiff loaned Defendant $50,000 in exchange for Defendant making 72 monthly payments of $886.89 commencing October 14, 2009.  As collateral, Defendant granted a security interest in the collateral, a 2008 Jaguar vehicle.  Plaintiff alleges that Defendant breached the terms of the written agreement by failing to make scheduled payments from April 14, 2010 forward. 

The complaint, filed May 2, 2011, alleges causes of action for: (1) breach of contract; (2) account stated; (3) book account; and (4) possession of personal property.  

B.     Relevant Background and Motion on Calendar

On February 1, 2012, the default of Defendant was entered. 

On February 3, 2012, the default judgment of Defendant was entered. 

On December 6, 2021, the Clerk of the Court entered the Notice of Renewal of Judgment, which extended the period of enforceability of the judgment until 10 years after the date the application for renewal was filed.  The application for renewal of judgment was filed on December 6, 2021.

On January 12, 2023, Defendant filed a motion to set aside the default, default judgment, and the renewal of judgment.

On January 23, 2023, Plaintiff filed opposition papers.

On January 27, 2023, Defendant filed a reply brief.

LEGAL STANDARD

“The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”  (CCP § 473(d).)  This section authorizes the trial court to “set aside any void judgment or order” upon a noticed motion.  (Schwab v. Southern California Gas Co. (2004) 114 Cal. App. 4th 1308, 1320.)  “California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048 [emphasis added].) There is no time limit on when a void judgment can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526 (citing Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; CCP § 473(d)).)

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of documents filed in this action: (1) the proof of service of the summons, filed February 1, 2012; (2) the Declaration of Non Service of the Order for Appearance and Examination of Defendant filed on August 15, 2012; (3) Application for Renewal of Judgment filed on December 6, 2021; and (4) the Declaration of Steven Parvey filed on February 1, 2012.  The request is granted.  (Evid. Code, § 452(d).) 

EVIDENTIARY OBJECTIONS

            With the reply brief, Defendant submitted evidentiary objections to the declaration of Plaintiff’s counsel Bryan Grundon.  The objections are overruled.  The Court notes that the ruling on the objections did not have an effect on the ruling on this motion. 

DISCUSSION

            Defendant moves to set aside the default, default judgment, and the renewal of judgment pursuant to CCP § 473(d). 

A.    Proof of Service

According to the proof of service of the summons and complaint on Defendant (filed February 1, 2012), Defendant was served at his home located at 444 West Windsor Rd., Apt. 8, Glendale, CA 91204 by substituted service on “Jane Doe” (40s, Caucasian, female, brown hair, 5’7” – occupant) on December 3, 2011 at 4:18 p.m.  The documents were thereafter mailed.  Service was effectuated by a registered process server, James Figueroa of Janney & Janney Attorney Service, Inc.

According to the Declaration of Diligence, service was attempted at the 444 West Windsor Rd. address on November 29, 2011, November 30, 2011, December 1, 2011, December 2, 2011, and December 3, 2011. 

According to the Non Service Report filed by the Carl F. Lundgren of Janney & Janney Attorney Service, Inc. (filed February 1, 2012), service was attempted on September 30, 2011 at 2:30 p.m. at 107 S. Fair Oaks Ave., 22 Pasadena, CA 91105, but the address was vacant.  Service was then attempted on the same day at 2:50 p.m. at 35 N. Arroyo Pkwy, 70, Pasadena, CA 91303, but the address was a business. 

B.     Merits of Motion

Defendant argues that the default and default judgment entered against him are void because he was never served with the summons and complaint.  He includes a copy of the proposed Answer as Exhibit A to his moving papers.

Defendant attaches a copy of the Declaration of Non Service regarding the Application for Order for Appearance and Examination (filed August 15, 2012), showing that service was attempted at the 444 W Windsor Rd., Apt. 8 address and that on August 13, 2012, “JANE DOE, RESIDENT” (a dyed-hair Middle Eastern female contact, approx.. 45-55 years old, 5’-5’4” tall and weighing 160-180 pounds, subject unknown) was the onsite manager and stated that Defendant is unknown and was not a past tenant.  (Def.’s RJN, Ex. 2.)  Thus, Defendant argues that Plaintiff knew or should have known that Defendant did not reside at that address and was not properly served. 

In his declaration, Defendant states that he was not aware of the filing of the lawsuit against him by Plaintiff until on or about November 10, 2022 when escrow was opened for the sale of his former house located at 144 East Pine Street, Altadena, CA 91001.  (Luna Decl., ¶¶3-4.)  He states that he was never personally served with the summons and complaint.  (Id., ¶5.)  He states he never lived or worked at 444 Windsor Road, Apt. 8 and did not live or work there on December 3, 2011 when the summons and complaint were served on “Jane Doe.”  (Id., ¶¶6-7.)  He states that on December 3, 2011, he lived at 144 East Pine Street and worked for CRS Corporation at 107 S. Fair Oaks Ave., Suite 022, Pasadena, CA 91005.  (Id., ¶8.)  He states that he did not live or work at the 444 Windsor Road, Apt. 8 address on January 4, 2022 when the Notice of Renewal of Judgment was served there.  (Id., ¶9.)  On January 4, 2022, he states that he lived at 144 East Pine Street and worked at CRS Corporation at 107 S. Fair Oaks Ave., Suite 022.  (Id., ¶10.) 

Defendant argues that his 144 East Pine Street address was disclosed on the original promissory note.  Defendant provides the Declaration of Steve Parvey (filed by Plaintiff on February 1, 2012), which includes a copy of the Promissory Note and clearly states at the top left corner of the first page that Defendant resided at 144 East Pine Street in Altadena.  (See Def.’s RJN, Ex. 4 [Parvey Decl. filed 2/1/12 at Ex. A].) 

In opposition, Plaintiff argues that Defendant was aware of this action when he filed for bankruptcy.  Plaintiff’s counsel, Bryan M. Grundon, states in his declaration his office did attempt to serve Defendant at 144 E. Pine Street and includes a “Name Notes” stating that service was attempted on May 9, 2011 at 144 E. Pine St. with J&J with the notation, “(subject ownes[sic] the house but rent is paid by deposit) – non-serve.”  (Grundon Decl. at p.1, Ex. A.)  However, the declarations of the process servers do not show that service was attempted at 144 E. Pine St. 

Further, Mr. Grundon states that his office received a Notice of Trustee’s sale regarding one of Defendant’s properties in 2014.  (Grundon Decl. at p.2, Ex. B at p.3.)  He states that Defendant filed for bankruptcy protection several times since the judgment in this case was entered, such as in 2012, 2013, 2016, and 2017.  (Id.)  He states that in the 2017 case (Case No. 2:2017-bk-25611), his office was notified as one of Defendant’s known creditors.  (Id., Ex. C at p.1.)  Further, in 2020, Mr. Grundon was again notified of a trustee’s sale of Defendant’s property.  (Id., Ex. D at p.1.)  Mr. Grundon states that he has never been contacted by anyone on Defendant’s behalf since the action has commenced claiming that service was not valid until this motion.  (Id.) 

While Plaintiff presents evidence that Defendant may have been aware of Plaintiff as a creditor, the documents provided with the opposition brief do not show that Defendant was necessarily aware of this lawsuit or any resulting judgment.  For example, Exhibits C and D to the opposition show that Plaintiff is listed as a creditor, but other than Plaintiff’s address, there is no information about this case, the case number, or that a default judgment was entered.

Defendant is moving to set aside the default and default judgment based on CCP § 473(d).  There is no time limit to bring a motion under this section where the default and default judgment are void for lack of proper service.  In his moving papers, Defendant has shown that he was not properly served with the summons and complaint.  Based on the Declaration of Non Service and the Declaration of Diligence filed concurrently with the proof of service of the summons and complaint, Plaintiff attempted to serve Defendant at 444 West Windsor Rd., 107 S. Fair Oaks Ave., #22, and 35 N. Arroyo Pkwy, #70, but no attempts at service were made at his place of residence: 144 East Pine Street.  As such, it appears that Defendant was not properly served with the summons and complaint and did not have notice of this action. 

            As such, the default, default judgment, and notice of renewal of the judgment entered against Defendant shall be vacated. 

CONCLUSION AND ORDER

            Defendant Crispin Luna’s motion to vacate the default, default judgment, and notice of renewal of judgment entered again him is granted.  Defendant is ordered to electronically file his proposed answer following the hearing on the matter.

            The Court sets a Case Management Conference on May 25, 2023 at 8:30 a.m.

Defendant shall provide notice of this order.