Judge: Katherine Chilton, Case: LAM09K14078, Date: 2022-09-22 Tentative Ruling

Case Number: LAM09K14078    Hearing Date: September 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 §§ 473.5, 683.170, 418.10)

TENTATIVE RULING:

Defendant Robert Gonzalez’s Motion to Set Aside Renewal of Judgment and Quash Service of Summons is 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:                     Reply filed on September 15, 2022.                                 [   ] Late          [   ] 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.

On August 22, 2022, the Court noted that Defendant had filed a defective Notice of Motion and continued the hearing to allow Defendant to correct the error.  (8-22-22 Minute Order.)

            On September 15, 2022, Defendant filed a Reply to the Opposition and a corrected Notice of Motion.

II.              Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of “all pleadings, declarations, motions, orders, proceedings and rulings and other court records on file in the within action.”  (Oppos. p. 2.)

According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and facts or propositions of common knowledge, among other matters.  Plaintiff seeks judicial notice of the orders and documents filed in the instant case.  Although it is not necessary to take judicial notice of these documents, the Court GRANTS Plaintiff’s Request for Judicial Notice.

III.            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.)

IV.           Discussion

On August 22, 2022, the Court noted that Defendant had filed a defective Notice of Motion and continued the hearing to allow Defendant to correct the error.  (8-22-22 Minute Order.)

On September 15, 2022, Defendant filed a Reply and Proof of Service showing that the Reply and corrected Notice were served on Plaintiff on August 29, 2022, which is 16 court days prior to the hearing on the Motion.  Service was completed by mail, however, and therefore necessitated five (5) extra days, pursuant to Code of Civil Procedure § 1005(b).  Nonetheless, the Court, in its discretion accepts Defendant’s filing.  (California Rules of Court, rule 3.1300(d).)

Defendant brings the instant Motion pursuant to Code of Civil Procedure § 473.5 and Civil Code § 1788.61 and argues that the Motion is timely.  (Mot. pp. 1-2.)

Defendant states that he first learned of the lawsuit on April 30, 2022, when he visited his father’s home and found documents from the lawsuit that were served at this address.  (Gonzalez Decl. ¶ 4.)  He states that he has not lived at this address since 2001 and thus, service was not proper at this address.  (Ibid.)

In its Opposition, Plaintiff argues that Defendant’s motion is untimely and “well beyond the time limits for filing a motion for relief under section 473.5.”  (Oppos. p. 2.)  Code of Civil Procedure § 473.5 does not apply because the judgment is not void on its face and Civil Code § 1788.61 does not apply because it concerns “‘default or default judgments entered on or after January 1, 2010.’”  (Ibid. at pp. 2-3.)  Defendant does not make any arguments or offer any evidence that the renewal of judgment should be vacated pursuant to Code of Civil Procedure § 683.170.  (Ibid. at p. 4.)  Plaintiff’s counsel states that despite Defendant’s statement that he did not learn of the lawsuit until April 2022, a letter signed by Defendant and an attorney purportedly representing Defendant in the instant matter was sent to him on September 24, 2019.  (Sipes Decl. ¶ 2; Ex. A.)

In his Reply, Defendant argues that the letter produced by Plaintiff’s counsel “proves nothing in regards to correct service of process.”  (Reply p. 3.)  The letter only shows that he met with a bankruptcy attorney who was investigating how much money Defendant owed to creditors; however, Defendant never filed for bankruptcy.  (Reply pp. 5-6 – Gonzalez Decl. ¶ 8.)  Defendant also argues that the Motion should be granted pursuant to Code of Civil Procedure § 683.170 because service was improper and did not result in notice, and Plaintiff has not submitted any evidence to show that service was proper.  (Reply p. 3.)

The Court notes that the Motion is not timely under Code of Civil Procedure § 683.170 or 473.5, as default judgment was entered on November 13, 2009, and renewal of judgment was made on June 6, 2019.

Furthermore, Defendant fails to demonstrate that he was not properly served.  Defendant concedes that he was served at his father’s address and that he has lived at this address in the past.  (Gonzalez Decl.)  Pursuant to Code of Civil Proc. § 415.20, “if a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served…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… 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.”  Defendant declares that he did not live at 1748 Westmoreland Drive, Montebello, CA 90640 since 2001, but he does not provide the Court with any evidence showing that he did not live at the address at the time of service and that service was improper.  Furthermore, the letter submitted by Defendant shows that Plaintiff had knowledge of the lawsuit and had sought legal representation in relation to the instant matter.  (Sipes Decl. ¶ 2; Ex. A.)

For these reasons, Defendant’s Motion is DENIED.

V.             Conclusion & Order

For the foregoing reasons, Defendant Robert Gonzalez’s Motion to Set Aside Renewal of Judgment and Quash Service of Summons is DENIED.

Moving party to give notice.