Judge: Latrice A. G. Byrdsong, Case: 12CU1448, Date: 2024-03-19 Tentative Ruling
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Case Number: 12CU1448 Hearing Date: March 19, 2024 Dept: 25
Hearing Date: Tuesday, March 19, 2024
Case Name: STATE
FARM MUTUAL AUTOMOBILE INS CO. v. CHRISTIAN PATRON, and DOES 1 through 10,
inclusive.
Case No.: LAM12CU1448
Motion: Motion to Vacate and Set Aside Renewal of Judgment, Recall and Quash Writ of
Execution and Return of Property Levied Upon
Moving Party: Defendant
Christian Patron
Responding Party: Plaintiff
State Farm Mutual Automobile Insurance Company
Notice: OK
Tentative Ruling: Defendant Christian Patron’s
Motion to Vacate the Renewal of Judgment is GRANTED.
The renewed judgment effected
on July 12, 2023, is vacated, and any writs of execution issued under such
renewed judgment is recalled and quashed.
Plaintiff is ordered to return
to Defendant any property levied upon under the renewed judgment.
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed as of January 25, 2024 [ ] Late [ ] None
REPLY: Filed as of January 31, 2024 [ ] Late [ ] None
BACKGROUND
On August 21, 2012, Plaintiff State Farm Mutual Automobile
Insurance Company (“Plaintiff”) filed a subrogation action against Defendant Christian
Patron (“Defendant”) for damages stemming from an automobile action involving
Plaintiff’s insured and Defendant.
On February 08, 2013, Plaintiff filed an application for service
by publication. The Court granted Plaintiff’s application and ordered that
Defendant could be served by publication on March 13, 2013. Plaintiff filed
proof of publication on April 15, 2013.
On May 23, 2013, Plaintiff requested default be entered
against the Defendant. The Clerk entered default against Defendant the same
day.
On August 20, 2013, the Court entered default judgement
against the Defendant in the amount of $13,024.72.
On July 12, 2023, Plaintiff filed an application for and
notice of renewal of judgment.
On October 23, 2023, Defendant filed
the instant Motion to Vacate and Set Aside Renewal of Judgment, Recall and
Quash Writ of Execution, and Return of Property Levied Upon.
Plaintiff files in opposition.
Defendant replies.
MOVING PARTY
POSITION
Defendant prays for the Court to
enter an order vacating and setting aside the renewal of judgment entered
against Defendant on July 12, 2023, recalling, and quashing any writs of
executions and abstract of judgment issued and ordering the return of any
levied funds within 30 days of the Court’s order per CCP § 683.170. Defendant
asserts that Plaintiff fraudulently obtained an order permitting service of
summons and complaint via publication thus putting the Defendant in default and
having default judgment entered against him without due process.
OPPOSITION
In
opposition, Plaintiff argues that renewal of judgment should not be set aside because
Defendant’s motion is untimely filed, and Defendants misplaces his reliance on Fidelity
as Plaintiff disputes that service was improper. Plaintiff asserts that Defendant
was properly served as under CCP § 415.50 as Plaintiff provides evidence that
it demonstrated reasonable diligence in attempting to locate and serve
Defendant before seeking service by publication. Plaintiff further argues that
it was not previously aware of Defendant’s incarceration prior to the instant
motion.
REPLY
In reply,
Defendant points out that Plaintiff fails to address the fact that Plaintiff
had actual knowledge of Defendant’s location and the means to serve him. Defendant
reasserts that Fidelity’s holding controls and that Plaintiff’s attempts
to mislead the Court are meritless. Defendant reargues that the motion is
timely because CCP § 1013 applies and that Defendant does not need to present a
meritorious defense since he asserts that his due process rights were violated.
ANALYSIS
I. Evidentiary
Motion
A. Request for Judicial Notice
1. Defendant’s request that the Court take judicial notice
of Attachment 1 a copy of the Declaration of Carrier submitted pursuant to CCP
585 in support of Default Judgment, with exhibits thereto in case number
12CU1448 is GRANTED under Evidence Code 452(d) as the document is a filed
document within the Los Angeles Superior Court.
2. Defendant’s request for the Court to take judicial notice
of Attachment 2, a copy of the Application for Order Permitting Publication of
Summons in case number 12CU1448 is GRANTED under Evidence Code 452(c) as
the document is a filed document within the Los Angeles Superior Court.
3. Defendant’s request for the Court to take judicial notice
of Attachment 3, a copy of the Declaration of Joseph M. Pleasant in Support of
Order Permitting Service by Publication in case number 12CU1448 is GRANTED under
Evidence Code 452(d) as the document is a filed document within the Los Angeles
Superior Court.
4. Defendant’s request for the Court to take judicial notice
of Attachment 4, a copy Declaration of Ron Belpido in Support of Order
Permitting Service by Publication in case number 12CU1448 is GRANTED under
Evidence Code 452(d) as the document is a filed document within the Los Angeles
Superior Court.
5. Defendant’s request for the Court to take judicial notice
of a copy of Santa Clara County Instructions on how to Serve Someone in Jail or
Prison is GRANTED under Evidence Code 452(c) as the document is an
official document of Santa Clara County.
B. Evidentiary
Objection
Defendant’s objection to paragraph 8
of Plaintiff’s counsel’s declaration is OVERRULED because the statement
is not hearsay. Plaintiff’s declaration
is authenticated, and has proper foundation by virtue of the declaration being
made based on her personal knowledge and belief and is made under penalty of
perjury.
Defendant’s objection to paragraph 26
of Plaintiff’s counsel’s declaration is OVERRULED because the statement
is not hearsay, Plaintiff’s declaration is authenticated, and has proper
foundation by virtue of the declaration being made based on her personal
knowledge and belief and is made under penalty of perjury.
Defendant’s objection to Plaintiff’s Exhibit
B is SUSTAINED because the document is incomplete as it provides one of
the five purported pages of the report.
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 60 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.” (Id. 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.)
III. Discussion
A. Timeliness of the Motion
Defendant’s Motion, filed October
23, 2023, is timely filed, since it was filed within 65 days after Notice of
Renewal was served. Here, notice of renewal was served by mail on Defendant on
August 18, 2023. (08/29/23 Proof of Service by Mail.) CCP 1013 provides an
additional five days for Defendant to respond. (Code Civ. Proc., § 1013(a).) Defendant
filed the instant motion on October 23, 2023, within the 65-day period in which
a response must be filed. Thus, the motion is considered timely under CCP §
683.170.
B. Analysis
Defendant alleges that he was never served with the Summons
and Complaint. Code of Civil Proc. § 415.50(a) provides that summons may be
served by publication,
if upon, affidavit it appears to the satisfaction of the
court in which the action is pending that the party to be served cannot with
reasonable diligence be served in another manner specified in this article and
that either:
(1) A cause of action exists against the party upon whom
service is to be made or he or she is a necessary or proper party to the
action.
(2) The party to be served has or claims an interest in
real or personal property in this state that is subject to the jurisdiction of
the court or the relief demanded in the action consists wholly or in part in
excluding the party from any interest in the property.
(Code Civ. Proc., § 415.50(a).)
The Declarations of Ron Belpedio and
Plaintiff’s counsel, Joseph M. Pleasant demonstrate that Plaintiff attempted to
personally serve Defendant on 18 separate occasions. (02/08/13 Ron Belpedio
Decl.; Exh. B.) On the 18th attempt, Defendant was served via publication
to the Los Angeles Daily Journal which was the newspaper approved by the Courts
of this County to be of general circulation. (04-15-13 Proof of Publication.)
“Evidence Code section 647 provides that a registered process server’s
declaration of service establishes a presumption affecting the burden of
producing evidence of the facts stated in the declaration.
[Citation.]” (American Express Centurion Bank v. Zara (2011)
199¿Cal.App.4th 383, 390; Evid. Code § 647.)
Thus, the service by publication on the Defendant is entitled to a presumption
of valid service.
In support of his argument,
Defendant declares that he was arrested on May 22, 2011, on charges unrelated
to the instant action. (Mot.¿p. 3,5; Christian Patron Decl. ¶ 2; Exhs. A
& B.) Defendant avers that he did not make bail and that he remained in the
custody of the Los Angeles Sheriff’s Department until he was transferred to the
California Department of Corrections’ custody on August 06, 2013. (Id.) Defendant
remained incarcerated until September 12, 2022. (Id. ¶ 2-5) Defendant
states that he never received service of summons and complaint in this action,
nor did he learn of the lawsuit before the entry of judgment by mail, nor by
any constructive or indirect means. (Id. ¶ 5.) Defendant further argues
that Plaintiff knew Defendant was incarcerated when it submitted its affidavits
in support of its application for an order to serve by publication. (Id. ¶
6.)
In
opposition, Plaintiff argues that renewal of judgment should not be set aside
because Defendant’s motion is untimely filed, and Defendant misplaces his
reliance on Fidelity as Plaintiff disputes that service was improper.
Plaintiff asserts that Defendant was properly served under CCP § 415.50 as
Plaintiff provides evidence that it demonstrated reasonable diligence in
attempting to locate and serve Defendant before seeking service by publication.
Plaintiff further argues that it was not previously aware of Defendant’s
incarceration prior to the instant motion.
In reply, Defendant
points out that Plaintiff fails to address the fact that Plaintiff had actual
knowledge of Defendant’s location and the means to serve him. Defendant
reasserts that Fidelity’s holding controls and that Plaintiff’s attempts
to mislead the Court are meritless. Defendant reargues that the motion is
timely because CCP § 1013 applies and that Defendant does not need to present a
meritorious defense since he asserts that his due process rights were violated.
The Fidelity
Court held that where it is undisputed that a defendant was never served
and had no notice of the action prior to entry of a default, the judgment,
which was void under state law was reversible, and that under the due process
clause of the Constitution, reversal was required without showing a meritorious
defense. (Fidelity Creditor Service, Inc. v. Browne (2001) 89
Cal.App.4th 195, 205) Here, based on the evidence proffered by both parties’
moving papers, it is undisputed that Defendant was incarcerated at the time Plaintiff
sought to effectuate service. More specifically, by Plaintiff’s own admission, Plaintiff received
notice that Defendant was incarcerated at the time service was attempted. (Opp.
p. 7:7-8.) While the Court notes that Plaintiff’s counsel argues that he did
not see the note till now, the Court finds it hard to reconcile such a glaring absentmindedness
when noting CCP § 415.50(a)’s clear mandate of reasonable diligence. Plaintiff’s
counsel further concedes that service in jail is “much easier to accomplish and
less cost and time consuming than spending a year attempting to locate and
serve [Defendant] at multiple addresses and then spending the additional cost
to serve by publication.” (Id. p. 7:9-11.) The Court finds that given Plaintiff’s
admission to receiving notice of Defendant’s incarceration, there can be no
dispute that Defendant was never served or had any notice of the action prior
to default.
Thus, since Defendant has demonstrated that he never
received copies of the Summons and Complaint, Defendant’s motion is granted.
IV. Conclusion
Moving party is ordered to give
notice.