Judge: Layne H. Melzer, Case: 22-01252688, Date: 2022-08-18 Tentative Ruling

Dft. Janet M Kirby
Motion to Set Aside/Vacate Judgment

The court denies Defendant Janet M. Kirby’s Motion to vacate the 4/8/22 sister-state Judgment entered in this case in favor of Plaintiff Torro LLC.

Judgment

Plaintiff/Creditor Torro LLC domesticated a sister state judgment on 4/8/22 against Defendants Art of Gifting, Inc., a California Corporation, Brian Chalmers Edwards,

Janet Marie Kirby in the amount of $131,972.27. The Judgment was originally obtained in the State of Utah, on 2/1/19 in Torro LLC v. Art of Gifting, Inc., a California Corporation, et al., Case No. 190900848. (ROA 9)

The Utah Judgment is attached to the Application. (ROA 2).

It states in relevant part that:

Defendants Art of Gifting, Inc., Brian Chalmers Edwards, and Janet Marie Kirby ("Defendants"), have executed a Verified Confession of Judgment dated August 30, 2018, permitting the court to enter judgment against them, jointly and severally, and in favor of Plaintiff, Tarro LLC, without further notice to the Defendants.

Legal Standard

A court may vacate a sister-state money judgment that has been entered as a judgment in California on any ground that would be a defense to an action in California on the judgment. (See CCP § 1710.40; Bank of America v. Jennett (1999) 77 Cal. App. 4th 104, 114–115); see Comment to CCP § 1710.40; Washoe Development Co. v. Guaranty Federal Bank (1996) 47 Cal. App. 4th 1518, 1523; Wells Fargo Bank v. Bake (2012)

204 Cal. App. 4th 1063, 1068.)

The party moving to set aside a sister-state judgment has the burden of showing by preponderance of evidence why he or she is entitled to relief. (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal. App. 4th 74, 88.)

The court may properly evaluate the credibility of testimony offered in declarations or affidavits in connection with the motion. (Tom Thumb Glove Co. v. Han (1978) 78 Cal. App. 3d 1, 5.)

Merits

Here, Ms. Kirby testifies that she did not know she was sued in Utah, she had anything to do with Art of Gifting, Inc. or its loan from Plaintiff, she never signed the underling Secured Merchant Agreement via docusign, and she did not sign the notarized Confession of Judgment in Utah. (Kirby Decl., ¶¶2-8; Suppl. Kirby Decl., ¶¶2-4.)

But the Confession of Judgment was notarized by a California Notary Public. (Opp, Ex. D.)

After being given time to locate other evidence in support of her Motion, Plaintiff provides the expert testimony of James A. Black, a handwriting expert. He testifies that the signature on the Confession of Judgment does not match an example signature from Ms. Kirby. (Black Decl., ¶¶2-4.) He does not analyze the loan documents themselves.

Further, minimally, on January 29, 2019, January 30, 2019, and February 13, 2019, Plaintiff’s Utah attorney, Travis Christiansen, in accordance with Utah law, caused to be served the Verified Confession of Judgment, the Notice of Entry of Judgment, among other documents. (Exs. F-I.) All were served to Ms. Kirby at 38 Lessay, Newport Coast, CA 92657. (Id.)

On Reply, she does not deny that this is her correct address.

She also does not indicate that she has challenged the Judgment in Utah or taken any action to criminally report co-Defendant Edwards for using her name on a guaranty for a loan and is forging her signature on court filings. No effort was made to secure testimony of the notary to the effect that Kirby did not in fact sign the confession of judgment.

The court is concerned that there is no police report or involvement, which would be expected for this level of fraud by Mr. Edwards.

After assessing the credibility of all evidence, the court finds that Ms. Kirby has not met her burden.