Judge Latrice A. G. Byrdsong, Case Number: 21STCP00841, Date: 2024-01-18 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 21STCP00841, Date: 2024-01-18 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 21STCP00841 Hearing Date: January 18, 2024 Dept: 25

Hearing Date: Thursday, January 18, 2024

Case Name: CLAUDIA MONTES v. MARVIN CARRERA

Case No.: 21STCP00841

Motion: Motion to Set Aside Default Judgment and Vacate Writ of Execution

Moving Party: Defendant Marvin Carrera

Responding Party: Plaintiff Claudia Montes

Notice: OK

Tenttive Ruling: Defendant Marvin Carrera’s Motion to Set Aside Default Judgment and Vacate Writ of Execution is DENIED.

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 December 18, 2023 [ ] Late [ ] None

REPLY: Filed as of January 11, 2024 [ ] Late [ ] None

BACKGROUND

On March 15, 2021, Petitioner Claudia Montes (“Petitioner” or “Judgment Creditor”) filed an Application for Entry of Judgment on Sister-State Judgement, entered in the amount of $18,536.88, against Respondent Marvin Carrera (“Respondent” or “Judgment Debtor”). The Court entered judgment the same day.

On October 11, 2023, Petitioner filed for a writ of execution to enforce the sister state judgment. The Court issued the writ on the same day.

On November 09, 2023, Respondent filed the instant Motion to Set Aside Default Judgment and Vacate Write of Execution under CCP 473.5 and 86. Petitioner writes in Opposition. Respondent files in reply.

MOVING PARTY POSITION

Respondent prays for the Court to set aside a sister state judgment and the writ of execution entered against him on November 17, 2021. Respondent argues that he is entitled to relief under CCP § 473.5(a) and 86 as service of summons has not resulted in actual notice for him to defend the action.

OPPOSITION

In opposition Petitioner concedes that personal service was not made on Respondent as to the writ of execution, however despite this service was made my priority first class mail. Moreover, Respondent’s arguments are improper under CCP § 1710.40(a) as it seeks to relitigate maters which were already adjudicated in Nevada courts.

REPLY

In reply, Respondent argues that since service was never properly effectuated on him, it serves as grounds to grant him relief.

ANALYSIS

I. Legal Standard

Under Code of Civil Procedure, section 473, subdivision (b), “the court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., §473(b)). Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) An application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise, or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.) When relief from default and a default judgment is based on an attorney affidavit of fault, the six-month period starts to run from the date of the entry of the default judgment. (Code Civ. Proc., § 473, sub. (b); Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 295.)

Code of Civil Procedure further provides that an

Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

(Code Civ. Proc., § 473(b).)

II. Discussion

As a general matter, the Court notes that CCP § 473.5 does not extend to judgements generally. “[CCP §] 473.5 is a procedural remedy by which a default or default judgment may be set aside; it is not a defense to an action on a judgment.” (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203.) Courts have held that CCP § 473.5 is inapplicable to a sister state judgment entered pursuant to the SSFMJA, or CCP § 1710.10, because it is not a default or default judgement. (Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 844.)

Here, the Court entered judgment pursuant to CCP § 1710.25 in favor of Petitioner on March 15, 2021. (03/15/21 Judgment.) Respondent seeks to set aside the sister judgment entered against him under § 473.5. However, this code section would not be applicable in the instant case because this sister state judgment would neither be considered a default or a default judgment under § 473.5. Therefore, the Court cannot set aside the judgment under CCP § 473.5.

Respondent additionally cites CCP § 86 (10)(b)(3), however the Court notes that this section does not provide the Court with any authority to vacate a judgment entered by a sister state. CCP § 86 (10)(b)(3) provides the Court with equity jurisdiction over a case to vacate a judgment or order of the court obtained in a limited civil case through extrinsic fraud, mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 86(10(b)(3).) However, nothing in Respondent’s moving papers evidence that extrinsic fraud, mistake, inadvertence or excusable neglect is at play here. Instead, Respondent’s moving papers seeks to relitigate facts already decided by the Nevada courts. (Motion p. 6-7.) Moreover, CCP section 86 would still not apply to this case as judgment was entered in Nevada and not in California.

As pointed out by Petitioner’s opposition papers, the proper bases to challenge sister state money judgments would be under CCP § 1710.40 (a) which provides that “a judgment entered may be vacated on any ground which would be a defense to an action in this state on the sister state judgment, including the ground that the amount of interest accrued on the sister state judgment and included in the judgment entered …” (Code Civ. Proc. § 1710.40(a).) CCP § 1710.40 (b) provides that no later than 30 days after service of notice of entry of judgment pursuant to CCP § 1710.30, judgment debtor, on written notice to the judgment creditor, may make a motion to vacate the judgment under this section. (Code Civ. Proc. § 1710.40(b).)

Here Respondent does not challenge on proper grounds under CCP § 1710.40(a) because Respondent’s arguments essentially seek to relitigate the Nevada action. While the Court notes that no evidence has been provided by either party of when Respondent received notice of entry of the sister state judgment, this potential omission would only affect the timing within which Respondent can file a motion to vacate such judgement. Thus, because Respondent does not supply the Court with authority to grant the relief, the Court denies the motion to set aside judgment.

III. Conclusion

Defendant Carrera’s Motion to Set Aside Default Judgment and Vacate Writ of Execution is DENIED.

The Court will give notice.