Judge: Katherine Chilton, Case: LAM11K18036, Date: 2023-03-30 Tentative Ruling

Case Number: LAM11K18036    Hearing Date: March 30, 2023    Dept: 25

PROCEEDINGS:      MOTION TO VACATE RENEWAL OF DEFAULT JUDGMENT

MOVING PARTY:   Defendant Karin Piet

RESP. PARTY:         Plaintiff Persolve LLC

MOTION TO VACATE RENEWAL OF JUDGMENT

(CCP § 473(b), 473(d), 473.5, CIVIL CODE §1788.61)

TENTATIVE RULING:

            The Motion to Vacate Renewal of Judgment filed by Defendant Karin M. Piet is CONTINUED TO APRIL 26, 2023 AT 10:00 A.M., in Department 25, Spring Street Courthouse.

OPPOSITION:          Filed on March 17, 2023

REPLY:                     None filed as of March 23, 2023

ANALYSIS:

I.                Background

On November 16, 2011, Persolve LLC (“Plaintiff”) filed a complaint against Defendant Karin M. Piet (“Defendant”) for a debt that allegedly originally was owed by Defendant to Providian Bank.  Plaintiff is the successor in interest to the debt. The Proof of Service shows that the Complaint was served on Defendant at 1155-1/2 S. Highland Avenue, Los Angeles, CA 90019, by personal service on November 25, 2011 at 7:45 a.m. by a registered California process server.

No responsive pleading was filed, so on January 26, 2012, default was entered against Defendant and Defendant was served with the Request for Entry of Default.  (01-26-12 Request for Entry of Default).  Subsequently, Defendant was served with a copy of the Declaration re: Initial Interest in Support of Default Judgment and the Request for Clerk’s Judgment, which were mailed to her on January 31, 2012.  On February 3, 2012, Judgment was entered for Plaintiff and against Defendant.  (2-3-12 Default Judgment.)  Defendant was served with the Memorandum of Costs after Judgment, Acknowledgement of Credit, and Declaration of Accrued Interest on July 31, 2012. On March 1, 2013, the Sheriff levied on Defendant’s Wells Fargo bank account.  (03-01-13 Writ). 

On April 10, 2019, Defendant was served with a subsequent Memorandum of Costs after Judgment.  (4/10/19 Memorandum of Costs) at a new address at 1426 S. Cochran Avenue in Los Angeles.  In 2019, the Sheriff levied on Defendant’s bank account at US Bank.  (12-20-19 Writ). Another Memorandum of Costs was served on Defendant on February 3, 2022.  On December 21, 2022, Plaintiff served the Notice of Renewal of Judgment on Defendant. 

On January 6, 2023, Defendant, in propria persona, filed the instant Motion to Vacate Renewal of Judgment (“Motion”).  Defendant filed an amended motion on January 30, 2023 

On March 17, 2023, Plaintiff filed an Opposition to the Motion (“Opposition”).  No reply has been filed.

II.              Legal Standard & Discussion

A.    Motion to Vacate Renewal of Judgment

Defendant seeks to vacate the renewal of the judgment against her based on inadvertence, surprise, mistake, or excusable neglect pursuant to Code of Civil Procedure § 473(b).

Although Defendant mentions that she does not recall being personally served, she does not seek to set aside the default and default judgment based on lack of actual notice (§ 473.5). 

B.    Code of Civil Procedure § 473(b)

Pursuant to Code of Civil Procedure §473(b), both discretionary and mandatory relief is available to parties from a judgment, dismissal, order, or other proceeding.  Discretionary relief is available under the statute as “the court may, upon any terms as may be just, relieve a party or his or her legal representative from judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.  (Code of Civ. Proc. § 473(b).)  Alternatively, mandatory relief is available when “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”  (Ibid.)  Under this statute, an application for discretionary or mandatory relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought.  (Code Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“‘[W]hen relief under section 473¿is¿available, there is a strong¿public¿policy¿in¿favor¿of granting relief and allowing the requesting party his or her day in court…[Citation.]” (Rappleyea v. Campbell¿(1994) 8 Cal. 4th 975, 981-82.)

“‘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.)  “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.)

“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.)

In addition, Section 1788.61 states that “[n]otwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.  Except as provided in paragraph (3) [relating to identity theft], the notice of motion shall be served and filed within a reasonable time but in no event exceeding the earlier of: (A) six years after entry of the default or default judgment against the person. (B) One hundred eighty (180) days of the first actual notice of the action.”

C.    Analysis

Before the Court can rule on the Motion, there are two issues that must be remedied. First, Defendant’s Notice of Motion lists the address of the Stanley Mosk Courthouse at 111 N. Hill, which renders the Notice defective.  Department 25 is located at 312 N. Spring Street, Los Angeles, CA 90012.  Second, Plaintiff submitted the declaration of counsel Duenas but the declaration is not signed.  Accordingly, the Motion is continued to April 26, 2023 at 10:00 a.m. in Department 25, Spring Street Courthouse so that the parties have an opportunity to correct these errors.

III.            Conclusion & Order

The hearing on Defendant’s Motion to Vacate the Renewal of the Judgment is CONTINUED to April 26, 2023 at 10:00 a.m. in Department 25, Spring Street Courthouse. Defendant is to file and serve a corrected Notice of Motion and Proof of Service addressing the issue raised herein.  Plaintiff is to file and serve a signed declaration.

Moving party is to give notice.