Judge: Latrice A. G. Byrdsong, Case: 22STCP04234, Date: 2024-05-13 Tentative Ruling
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Case Number: 22STCP04234 Hearing Date: May 13, 2024 Dept: 25
Hearing Date: Monday, May 13, 2024
Case Name: KING
OSWALD CALILUNG, an individual vs. CARLOS SMITH, an individual
Case No.: 22STCP04234
Motions: Motion to Vacate Judgment Based on Sister-State
Judgment
Moving Party: Specially
Appearing Judgment Debtor Carlos Smith
Responding Party: Judgment Creditor King Oswald
Calilung
Notice: OK
Tentative Ruling: Specially Appearing Judgment
Debtor Carlos Smith’s Motion to Vacate Sister-State Judgment is GRANTED.
BACKGROUND
On November
30, 2022, Judgment Creditor King Oswald Calilung (“Calilung”) filed an
Application for Entry of Judgment on Sister-State Judgment (the “Application”) as
to Judgment Debtor Carlos Smith (“Smith”). The Application indicates that Smith
is an individual whose last known residence was 2324 Cedar Ave., Long Beach, CA
90806 (the “Cedar Address”). (Application at ¶ 2(b).) The Application sets
forth that the sister state is Nevada and that the Eighth Judicial District
Court of Clark County entered a judgment on November 12, 2020 against Smith.
(Application at ¶ 3(a)-(c).) The Application attaches a copy of the sister
state judgment thereto. In King Oswald Calilung vs. Carlos Smith, et
al., Case No. A-20-808865-C, in the Eighth Judicial District Court of Clark
County, Nevada (the “Nevada Action”), default judgment was entered against
Smith in the total amount of $12,449.23 as follows: $8,103.00 in compensatory
damages, $710.95 in prejudgment interest (5.25% from the date of service), $365.28
in costs, and $3,270.00 in attorney’s fees (pursuant to NRS 18.010).
According
to the Application, the amount remaining on the unpaid sister-state judgment is
$12,449.23, Calilung paid a $370.00 filing fee for the Application, and accrued
interest on the sister-state judgment is $2,523.95. (Application at ¶¶
5(a)-(c).) The Application indicates that the amount of judgment to be entered
totals $15,343.18. (Application at ¶ 5(d).)
On
January 17, 2023, the Court entered judgment based on the Application in favor
of Calilung and against Smith pursuant to CCP § 1710.25 for the amount
remaining unpaid of $12,449.23, plus the $370 filing fee.
On July
17, 2023, Notice of Entry of Judgment on Sister-State Judgment was issued by
the Clerk, which indicated that judgment of $15,343.18 was entered by this
Court based on the judgment in the Nevada Action. (07/17/23 Notice of Entry of
Judgment.)
On March
1, 2024, Department 1 of this Court reassigned this action for all purposes to
the Honorable Latrice A.G. Byrdsong in Department 25 at the Spring Street
Courthouse for all further proceedings. (03/01/24 Minute Order.) The Court
directed counsel for Calilung to give notice and a Certificate of Mailing was
issued. (03/01/24 Minute Order.) However, the Court’s Certificate of Mailing
was returned as it was unable to deliver the March 1, 2024 minute order to
Smith’s counsel.
On March
20, 2024, Smith filed and served the instant motion to vacate the Court’s July
17, 2023 judgment, which is based on the judgment entered in the Nevada Action.
Smith moves to set aside this Court’s judgment on the grounds that the judgment
in the Nevada Action is void for lack of personal jurisdiction because he was
never properly served with process in the Nevada Action.
On April
25, 2024, Calilung filed an opposition to the motion.
On May 1,
2024, pursuant to oral stipulation, the Court continued the hearing on Smith’s
motion to May 13, 2024. (05/01/24 Minute Order.) The Court continued the
hearing because, upon electronically reviewing all the documents filed in this
action, the opposition to the motion to vacate was filed by Attorney Bryan
Albiston but there was no record that a proper Substitution of Attorney was
filed. (05/01/24 Minute Order at p. 1.) Mr. Albiston represented that he was
Calilung’s new counsel of record but had not yet filed a proper Substitution of
Attorney. (05/01/24 Minute Order at p. 1.) The Court ordered Calilung’s
Substitution of Attorney to be electronically filed no later than May 2, 2024.
(05/01/24 Minute Order at p. 2.) Smith’s reply was ordered to be filed and
served by May 6, 2024. (05/01/24 Minute Order at p. 2.)
On May 2,
2024, a Substitution of Attorney was filed and served which indicated that Calilung’s
new legal representative is Bryan L. Albiston.
On May 6,
2024, Smith filed and served a reply brief.
MOVING PARTY
POSITION
Smith
contends that the judgment entered by this Court must be vacated because the
judgment in the Nevada Action is void for lack of personal jurisdiction. Smith
further argues that the instant motion is timely as the temporal limitations of
CCP § 1710.40(b) do not apply.
OPPOSITION
In
opposition to the motion, Calilung contends that the judgment entered in the
Nevada Action is valid and therefore the judgment entered by this Court should
not be vacated.
REPLY
On reply,
Smith contends that service was not properly effectuated on him as service at
his mother’s residence does not constitute proper service on him. Smith further
argues that Calilung’s supporting evidence is inadmissible and should not be
considered.
ANALYSIS
I. Vacating
the Sister-State Judgment
“[U]nder California law, the
judgment of a sister state must be given full faith and credit if that sister
state had jurisdiction over the parties and the subject matter, and all
interested parties were given reasonable notice and opportunity to be heard.” Conseco
Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 837.
“Courts refer to jurisdiction over the parties and subject matter as
‘fundamental jurisdiction,’ and where this is lacking there is an entire
absence of power to hear or determine the case.” Airlines Reporting Corp. v.
Renda (2009) 177 Cal.App.4th 14, 19-20. “Section 1710.40, subdivision (a)
permits a judgment debtor to challenge the entry of a sister-state judgment on
any ground which would be a defense to an action in this state on the sister
state judgment.” Id. at p. 20. “[L]ack of personal jurisdiction,
including defective service of process, is a defense that may be raised on a
motion to vacate a California judgment entered on another state’s judgment.” Fidelity
Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203.
“After notice of entry of [a]
[sister-state] judgment, the judgment debtor may make a motion to vacate the
judgment.” Conseco Marketing, LLC v. IFA & Ins. Services, Inc., supra,
221 Cal.App.4th 831, 838. “Notice of entry of judgment shall be served promptly
by the judgment creditor upon the judgment debtor in the manner provided for
service of summons . . . Notice shall . . . inform the judgment debtor that the
judgment debtor has 30 days within which to make a motion to vacate the
judgment.” Ibid. “Not later than 30 days after service of notice of
entry of judgment pursuant to Section 1710.30 . . . the judgment debtor, on
written notice to the judgment creditor, may make a motion to vacate the
judgment.” Ibid. “The judgment is subject to challenge on a variety of
grounds, including the failure to serve or defective service of the notice of
entry of judgment.” Id. at p. 838-39. “The 30-day limit does not apply
where the judgment debtor was not served with process in the sister state
action.” Id. at p. 839. “[T]he 30-day limitations period applicable to
other types of challenges to sister-state judgments under section 1710.40 . . .
does not apply to challenges based on lack of personal jurisdiction.” Airlines
Reporting Corp. v. Renda, supra, 177 Cal.App.4th 14, 20.
“The party moving under section
1710.40 to set aside the sister state judgment has the burden to show by a
preponderance of the evidence why it [is] entitled to relief.” Conseco
Marketing, LLC v. IFA & Ins. Services, Inc. supra, 221 Cal.App.4th
831, 841, citation omitted. “[I]f the movant proves service of process in
the sister state action was not made or was defective, this burden has been
met.” Ibid. “Under these circumstances, the sister state judgment is
void for lack of fundamental jurisdiction and therefore unenforceable in
California.” Ibid. However, “where service of process in the sister
state action is proper, in order to prevail on the motion to vacate the
judgment, the burden is on the movant both to: (1) establish the motion is not
time-barred; and (2) plead and prove a viable defense to an action in this
state on the sister state judgment.” Ibid.
In California, “[a] summons may be
served by personal delivery of a copy of the summons and of the complaint to
the person to be served.” (CCP § 415.10.) “[C]ompliance with the statutory
procedures for service of process is essential to establish personal
jurisdiction.” Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426,
1444. “Thus, a default judgment entered against a defendant who was not
served with a summons and complaint in the manner prescribed by statute is
void.” Ibid. In order for substitute service to be valid, a copy of the
summons and complaint must be mailed “by first-class mail, postage prepaid to
the person to be served at the place where a copy of the summons and complaint
were left.” (Code Civ. Proc., § 415.20, subd. (b).) “A plaintiff may serve
individual defendants through substitute service when they cannot be personally
served with reasonable diligence.” Rodriguez v. Cho (2015) 236 Cal.App.4th
742, 750. “Two or three attempts to personally serve a defendant at a
proper place ordinarily qualifies as reasonable diligence.” Ibid., internal
quotations omitted. A summons and complaint may also be served by
first-class mail or airmail, postage prepaid, along with two copies of notice
and acknowledgment of receipt. (Code Civ. Proc., § 415.30, subds. (a)-(b).)
According to Nevada Rules of Civil
Procedure, Rule 4.3(a)(1) “[a] party may serve process outside Nevada, but
within the United States, in the same manner as provided in Rule 4.2(a) for
serving such a defendant within Nevada, or as prescribed by the law of the
place where the defendant is served.” (Nevada Rules of Civil Procedure, Rule
4.3(a)(1).) The Nevada Rules of Civil Procedure provide that service may be
made on an individual by: (1) personal service; (2) leaving a copy of the
summons and complaint at the individual’s dwelling or usual place of abode with
a person of suitable age and discretion who currently resides therein and is
not an adverse party to the individual being served; or (3) by delivering a
copy of the summons and complaint to an agent authorized by appointment or by
law to receive service of process. (Nevada Rules of Civil Procedure, Rule 4.2(a)(1)-(3).)
The Court SUSTAINS Smith’s evidentiary objections to the
Verification of Calilung (the “Verification”) in support of the opposition to
the motion. The Court also SUSTAINS Smith’s evidentiary objections to the
Declaration of Shawanna L. Johnson (the “Johnson Declaration”) submitted in
support of the opposition to the motion. The Court also SUSTAINS Smith’s
evidentiary objections to the exhibits attached to the opposition on the
grounds of hearsay. (Evid. Code § 1200.)
The Court finds that neither the Verification nor the
Johnson Declaration are compliant with CCP § 2015.5. If a declaration or
verification is “executed within this state, [the declaration or verification
must] state[] the date and place of execution.” (CCP § 2015.5.) If a
declaration or verification is “executed at any place, within or without this
state” then such declaration or verification must set forth “the date of
execution and that it is so certified or declared under the laws of the State
of California.” (CCP § 2015.5.)
Here, neither the Verification nor the Johnson
Declaration states the place of execution, which is not in compliance with CCP
§ 2015.5. Moreover, neither the Verification nor the Johnson Declaration is
certified or declared under the laws of the State of California. A declaration
or verification that is not compliant with CCP § 2015.5 has no evidentiary
value. ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.
Moreover, apart from the non-compliance with CCP §
2015.5, the Court SUSTAINS the evidentiary objections of Smith to the
Verification, Johnson Declaration, and exhibits attached to the opposition
brief on the grounds of hearsay. (Evid. Code § 1200.) As such, the Court will
not consider any of the evidence submitted in support of the opposition brief.
Calilung has provided only inadmissible evidence in support of the opposition.
C. Analysis
a. Evidence
in Support of the Motion
Smith
states that at no point prior to December 2023 did he know that Calilung had
obtained a default judgment against him and then came to California to enforce
the Nevada judgment. (Smith Decl., ¶ 8.) Smith was never served with the
summons and complaint in the Nevada Action, and he has not been served with the
Notice of Entry of Judgment on Sister-State Judgment, which his former roommate
received. (Smith Decl., ¶ 9.) Smith attests that he never tried to evade
service of court documents and, the moment he realized a judgment was entered
against him in Nevada and California, he immediately reached out and retained
his current counsel of record. (Smith Decl., ¶ 10.)
b. Evidence
in Opposition to the Motion
Calilung has not presented any
admissible evidence in support of the opposition brief.
c. Appropriateness of Vacating this Court’s Judgment
Initially, the Court finds that
Smith has not been served with the Notice of Entry of Sister-State Judgment in
this action and therefore the instant motion is timely. Moreover, the 30-day
time limit to bring the instant motion does not apply here as Smith is
challenging the validity of the sister-state judgment on the grounds of lack of
personal jurisdiction.
The sole issue relevant to the
instant motion is whether Smith was properly served with the summons and the
complaint in the Nevada Action. Smith contends that he did not reside at the
Cedar Address when service of the summons and complaint in the Nevada Action
was purportedly effectuated. (Motion at p. 4:15-18.)
The Court finds that Smith has met
his burden in showing that service of process in the Nevada Action was
improper. Smith has provided a declaration attesting to the fact that he did
not reside at the Cedar Address when service was purportedly effectuated at
such address concerning the Nevada Action.
The Court finds that service of
process as to the Nevada Action was improper under both California and Nevada
Law. Service of process on Smith’s mother is not proper personal service under
California law nor was Smith substitute served or served by mail. (Smith Decl.,
¶ 4.) Moreover, under Nevada law, service of the summons and complaint was
improper at the Cedar Address as Smith was not personally served nor was the
Cedar Address the residence of Smith at the time of purported service. Smith attests
that he was never served with the summons and complaint concerning the Nevada
Action. (Smith Decl., ¶ 9.)
Thus, the Court finds that service
in the Nevada Action was improper. Smith therefore has met his burden in
showing that the judgment in the Nevada Action is void and is unenforceable in
California.
II. Conclusion
Based on the foregoing, the motion to vacate judgment
based on sister-state judgment is GRANTED.
Moving party is ordered to give
notice.