Judge: Katherine Chilton, Case: LAM09K14078, Date: 2022-08-22 Tentative Ruling

Case Number: LAM09K14078    Hearing Date: August 22, 2022    Dept: 25

PROCEEDINGS:      MOTION TO SET ASIDE RENEWAL OF JUDGMENT AND QUASH SERVICE OF SUMMONS

MOVING PARTY:   Defendant Robert Gonzalez, in pro per

RESP. PARTY:         Gold Line Credit Services, Inc. (Assignee)

MOTION TO SET ASIDE RENEWAL OF JUDGMENT AND

QUASH SERVICE OF SUMMONS

(CCP §§ 683.170, 418.10)

TENTATIVE RULING:

Defendant Robert Gonzalez’s Motion to Set Aside Renewal of Judgment and Quash Service of Summons is CONTINUED to SEPTEMBER 22, 2022 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Defendant is ordered to serve supplemental papers addressing the issues discussed herein on the opposing party at least 16 court days before the next scheduled hearing and file it with the Court at least 5 court days before the next scheduled hearing.  Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 YES

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 YES

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     YES

OPPOSITION:          Opposition filed on July 6, 2022.                           [   ] Late          [   ] None

REPLY:                     None filed as of August 18, 2022.                           [   ] Late          [X] None

ANALYSIS:

I.                Background

On June 5, 2019, Gold Line Credit Services, Inc., assignee of Plaintiff Capital Financial Credit LLC (“Assignee”) filed an Application for and Renewal of Judgment against Defendant Robert Gonzalez (“Defendant”) of a judgment entered on November 13, 2009.

On May 31, 2022, Defendant, acting in propria persona, filed the instant Motion to Set Aside Renewal of Judgment and Quash Service of Summons (the “Motion”) asserting that he never received the original Summons and Renewal of Judgment and first learned of the lawsuit on April 30, 2022.  (Mot. p. 1; Gonzalez Decl. ¶ 4.)  On July 6, 2022, Assignee filed an Opposition to Defendant’s Motion.  No reply was filed.

II.              Legal Standard

A motion to vacate a renewal of judgment may be filed under Code of Civil Procedure § 683.170.  Under this section, a motion to vacate a renewal of judgment must be made within 30 days after notice of the renewal is served and may be based on any ground that would be a defense to an action on the judgment.  (Code Civ. Proc., § 683.170(a)-(b).)  “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 Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 199.)

The California Supreme Court has held that “failure to have served the summons and complaint is a defense to an action on a judgment.”  (Ibid. at 202, referring to Hill v. City Cab etc. Co. (1889) 79 Cal. 188, 190-191.)  “‘Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant.’ [Citation.]”  (AO Alfa-Bank v. Yakovlev (2018) 21 Cal.App.5th 189, 202.)  Since a court acquires personal jurisdiction over a defendant through the service of a summons, the undisputed failure to serve a summons and complaint provides a basis for vacating a renewed judgment.  (Fidelity, supra, 89 Cal.App.4th at 203.)

“To establish personal jurisdiction, compliance with statutory procedures for service of process is essential.”  (Kremerman v. White (2021). 71 Cal.App.5th 358, 371.)  Defendant’s knowledge of the action does not dispense with statutory requirements for service of summons.  (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.)

            “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow” may move “to quash service of summons on the ground of lack of jurisdiction of the court over him or her” that results from lack of proper service.  (Code of Civ. Proc. § 418.10(a)(1).  A defendant has 30 days after the service of the summons to file a responsive pleading.  (Code Civ. Proc., § 412.20(a)(3).)

            “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

III.            Discussion

As a preliminary matter, the Court notes that Defendant has served and filed a defective Notice of Hearing that contains the wrong address for the courthouse where the hearing will take place – 111 North Hill Street, Los Angeles, CA 90012.  (Mot. p. 1.)  The correct address for the Spring Street Courthouse is 312 North Spring Street, Los Angeles, CA 90012.

The Court continues the hearing to allow Defendant an opportunity to file a correct Notice of Motion.

IV.           Conclusion & Order

For the foregoing reasons, Defendant Robert Gonzalez’s Motion to Set Aside Renewal of Judgment and Quash Service of Summons is CONTINUED to SEPTEMBER 22, 2022 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Defendant is ordered to serve supplemental papers addressing the issues discussed herein on the opposing party at least 16 court days before the next scheduled hearing and file it with the Court at least 5 court days before the next scheduled hearing.  Failure to do so may result in the Motion being placed off calendar or denied.

Moving party to give notice.