Judge: Layne H. Melzer, Case: 2019-01088862, Date: 2022-07-21 Tentative Ruling
Motion to Quash Service; Motion to Vacate Abstract of Sister State Judgment
Specially appearing defendant/judgment debtor Paul Garcia (“Garcia”) seeks an order to quash and an order vacating the abstract of judgment.
As an initial matter, the Court notes Garcia did not provide proper notice of his requested relief or the legal authority in support of the requested relief in the notice of motion. (Code Civ. Proc., § 1010; Cal. Rules of Ct., Rule 3.1110(a).) A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought and courts generally may consider only the grounds stated in the notice of motion. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) The purpose of the notice requirements is to cause the moving party to sufficiently define the issues for the information and attention of the adverse party and the court. (Id.) Garcia’s notice of motion only states that Garcia’s “Motion to Quash and in the alternative Vacate the Abstract of Judgment will be heard in the above entitled Court in Department C12, July 21, 2022 at 2:00 pm.” (Notice, 1:20-24.) Garcia’s notice does not state what relief is being sought and does not cite to any legal authority.
When a motion does not comply with Code of Civil Procedure section 1010 and California Rules of Court, Rule 3.1110(a), “the trial court could reasonably have rejected the entire motion as defective and noncompliant with California rules and statutes.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1127; see, 366-386 Geary St., L.P. v. Superior Court (1990) 219 Cal.App.3d 1186, 1200.) The trial court may also overlook these defects and review the documents to determine the specific basis upon which relief is sought, as permitted by Carrasco v. Craft (1985) 164 Cal.App.3d 796, 807-808. (Luri, 107 Cal.App.4th at 1127; Carrasco v. Craft (1985) 164 Cal.App.3d 796, 808.) Defective notice may also be sufficient “if the omitted issue, or ground for relief, was raised without objection before the trial court.” (Kinda, 247 Cal.App.4th at 1277.) It appears Garcia is seeking relief from both the Nevada Judgment and the Sister State Judgment entered by this Court. (Motion, 3:27-4:5.) Judgment Creditor opposed the motion on the merits and did not oppose the motion on the ground that Garcia did not provide proper notice of the requested relief. Accordingly, the Court exercises its discretion to consider the merits of Garcia’s motion.
The Court also notes neither Garcia nor judgment creditor Green Blossom, Inc. (“Judgment Creditor”) authenticated the exhibits submitted in support of and in opposition to the motion. Neither party objected to the exhibits or disputed their authenticity. Accordingly, the Court exercises its discretion and considers the exhibits. The Court also notes Judgment Creditor references a declaration by counsel in its opposition. However, no such declaration was filed.
A judgment debtor may move to vacate a sister-state judgment pursuant to Code of Civil Procedure section 1710.40, which provides as follows:
(a) A judgment entered pursuant to this chapter 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 pursuant to this chapter is incorrect.
(b) Not later than 30 days after service of notice of entry of judgment pursuant to Section 1710.30, proof of which has been made in the manner provided by Article 5 (commencing with Section 417.10) of Chapter 4 of Title 5 of Part 2, the judgment debtor, on written notice to the judgment creditor, may make a motion to vacate the judgment under this section.
(c) Upon the hearing of the motion to vacate the judgment under this section, the judgment may be vacated upon any ground provided in subdivision (a) and another and different judgment entered, including, but not limited to, another and different judgment for the judgment creditor if the decision of the court is that the judgment creditor is entitled to such different judgment. The decision of the court on the motion to vacate the judgment shall be given and filed with the clerk of court in the manner provided in Sections 632, 634, and 635, except that the court is not required to make any written findings and conclusions if the amount of the judgment as entered under Section 1710.25 does not exceed one thousand dollars ($1,000).
“Because a defendant may challenge lack of
fundamental jurisdiction at any time…, the 30–day limitations period
applicable to other types of challenges to sister-state judgments under
section 1710.40, including actions in excess of jurisdiction, does not apply
to challenges based on lack of personal jurisdiction.” (Airlines Reporting Corp. v. Renda (2009)
177 Cal.App.4th 14, 20; see, Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013)
221 Cal.App.4th 831, 839 [“The 30–day limit
does not apply where the judgment debtor was not served properly with process
in the sister state action.”].)
“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 was entitled to
relief. [Citation.]’.” (Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013)
221 Cal.App.4th 831, 841, citing Tsakos Shipping & Trading, S.A. v. Juniper Garden Town
Homes, Ltd. (1993) 12 Cal.App.4th 74, 88.) If the moving
party “proves service of process in the sister state action was not made or
was defective, this burden has been met. Under these circumstances, the
sister state judgment is void for lack of fundamental jurisdiction and
therefore unenforceable in California.” (Conseco Marketing, LLC v. IFA & Ins. Services, Inc.,
221 Cal.App.4th at 841.) “In contrast, 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 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.” (Id.)
In Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., the Tsakos Court found as follows:
defective service alone is not a sufficient basis to vacate entry of a sister state judgment. Rather, a party “ ‘must plead and prove that he has a meritorious case, i.e., a good claim or defense which, if asserted in a new trial, would be likely to result in a judgment favorable to him.’ [Citation.] [¶] And the rule will apply even where it is contended, ... that necessary process was not served or was defective.” (New York Higher Education Assistance Corp. v. Siegel (1979) 91 Cal.App.3d 684, 688–689, 154 Cal.Rptr. 200.) The same standard applies to a motion to vacate a judgment on the basis of extrinsic fraud or mistake. (Ibid.; Baske v. Burke (1981) 125 Cal.App.3d 38, 46, 177 Cal.Rptr. 794.)
Thus, [the moving party] must show that a different result would likely follow if the New York judgment were set aside and a new trial held.
(Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 89-90.)
However, both Conseco and Liquidator of Integrity Ins. Co. v. Hendrix (1997) 54 Cal.App.4th 971 appear to disagree with this approach.
“The court in Tsakos sets forth a two-part
procedure to vacate the entry of a sister state judgment: (1) the
petitioner must demonstrate a meritorious defense such that a different
result would follow if a new trial were granted in the sister state; and (2)
there must be a procedural ground in California to vacate the judgment. The
court found this procedural ground in section 473. We disagree with this
analysis and the use of section 473. The procedural remedy for vacating entry
of a sister state judgment lies within section 1710.40 alone. A party does
not need to demonstrate a defense apart from that section, but must
demonstrate a defense as allowed for by that section. Stated another way, a
valid defense to a sister state judgment under section 1710.40 is a valid
ground for vacating the entry of that judgment. A defendant does not need an
additional procedural ground such as section 473.” (Liquidator of Integrity Ins.
Co. v. Hendrix (1997) 54 Cal.App.4th 971, 978.)
Accordingly, a judgment debtor is not required to show a meritorious defense
when the judgment debtor seeks relief on the ground that he was never
properly served with the summons and complaint.
Contrary to Judgment Creditor’s contention, Garcia’s motion is timely. (Airlines Reporting Corp. v. Renda (2009) 177 Cal.App.4th 14, 20; see, Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 839.) Garcia contends he was never properly served and hence the Nevada court lacked fundamental jurisdiction. (Garcia Decl., ¶¶ 6 and 8.) Accordingly, the statutory 30-day notice does not apply and this motion is timely filed.
Garcia did not meet his burden to show the application for entry of sister state judgment and notice of entry of sister state judgment were not properly served. On 11/22/2019, Judgment Creditor filed a proof of service showing the application for entry of sister state judgment and notice of entry of sister state judgment were properly served by substitute service on 9/6/2019 and mailed the same day to a private post office box. (Code Civ. Proc., § 415.20, subd. (c); see, Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 4:199.1 [“If the only address reasonably known for the defendant is a private mailbox obtained through a commercial mail receiving agency (CMRA), service may be effected on the first attempt by serving the CMRA.”]; ROA No. 10; Opposition, Exhibit 4.)
In addition, Garcia offered no evidence to show he was not properly served with the summons and third party complaint in the Nevada action. Garcia’s evidence shows he filed an answer on 7/11/2017. (Garcia Decl., Exhibit C, ROA No. 85 dated 7/11/2017.) A party “waives any objection to the court’s exercise of personal jurisdiction when the party makes a general appearance in the action” and an answer constitutes a general appearance. (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.) Garcia did not show a viable defense to an action in this state on the sister state judgment. (Conseco Marketing, LLC v. IFA & Ins. Services, Inc., 221 Cal.App.4th at 841; Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.) Garcia did not show filing an answer in the Nevada action would not confer jurisdiction over him in accordance with Nevada law.
Garcia also contends the motion should be granted because he has not resided in Orange County for over three years. (Garcia Decl., ¶ 7.) However, an application for entry of a sister state judgment may be filed in a superior court in the county “in which any judgment debtor resides. (Code Civ. Proc., § 1710.20, subd. (b)(1).) Garcia has not shown the other judgment debtors, Acer Capital Group, Inc. and American Cultivating Group, LLC are not residents in Orange County.
Garcia did not meet his burden to show the judgment entered by this Court was entered by mistake or excusable neglect.
In the alternative, Garcia seeks an order vacating the abstract of judgment. Garcia also contends the abstract of judgment is defective. Garcia has not shown service of the Abstract at any address other than the Morningstar address, where Garcia admittedly does not reside, is improper. (Garcia Decl., ¶ 4.) In addition, Garcia has not shown the suite number on the Abstract for his last known address is incorrect.
Accordingly, Garcia’s motion is denied.
Judgment Creditor shall give notice.