TENTATIVE RULING

Defendant/Judgment Debtor Philip W. Gearhart aka Philip Gearhart’s Motion to Vacate Renewal of Default Judgment Against Philip W. Gearhart is DENIED.

Defendant/Judgment Debtor Philip W. Gearhart aka Philip Gearhart to give notice. 

REASONING

Request for Judicial Notice

Assignee of Record HSN Capital Holdings, LLC (“HSN”) requests judicial notice of six records filed in this action, the public attorney profile of Defendant/Judgment Debtor Philip W. Gearhart aka Philip Gearhart (“Gearhart”), and a quitclaim deed as to 8916 Carson Street in Culver City. HSN’s request is GRANTED pursuant to Evidence Code section 452, subdivisions, (c), (d), and (h).

Analysis

Gearhart moves the Court to vacate HSN’s renewal of the June 27, 2017 judgment in this action on the ground that he was not given notice of the entry of the default judgment or the application for the renewal of the default judgment.

A money judgment is enforceable for 10 years after the date of entry. (Code Civ. Proc., § 683.020.) “The judgment creditor may renew a judgment” for a period of 10 years “by filing an application for renewal with the court in which the judgment was entered” before the expiration of the 10-year period of enforceability. (Code Civ. Proc., §§ 683.120, 683.130, subd. (a).) Code of Civil Procedure section 683.170, subdivision (a), provides that “[t]he renewal of a judgment . . . may be vacated on any ground that would be a defense to an action on the judgment,” and the judgment “shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.” Code of Civil Procedure section 683.170, subdivision (b), allows a judgment debtor to apply by noticed motion for an order vacating the renewal of judgment “[n]ot later than 30 days after service of the notice of renewal.”

First, it is axiomatic that a notice of renewal of judgment must be served on the judgment debtor, either personally or by first class mail, and proof of service must be filed with the court clerk. (Code Civ. Proc., § 683.160, subd. (a).) However, “there is no statutory requirement that the notice of renewal be served on the judgment debtor in order for the renewal to be effective”; rather, the renewed judgment cannot be enforced until the notice of renewal has been served. (Goldman v. Simpson (2008) 160 Cal.App.4th 255, 262, fn. 4.) It follows that any failure to provide notice of the renewal of judgment does not go to the validity of the renewal of the judgment itself. Moreover, HSN provides evidence that the notice of renewal was sent to Gearhart at both 8916 Carson Street in Culver City and 2518 Wilshire Boulevard in Santa Monica, the first of which Gearhart is said to be owner, and the second being the address identified in Gearhart’s attorney profile. (Opp’n, Jacobs Decl. ¶ 7, Ex. 7; Friedrichs Decl. ¶¶ 6, 12; Exs. 2, 8.) Gearhart states that he “did not receive a copy of the request for renewal either at the restaurants’ prior address nor at my [C]entury [C]ity [sic] address” (Mot., Gearhart Decl. ¶ 9), but it is not clear how this relates to the two addresses at which the notice was served, such that the Court finds that notice was properly provided.

Second, as to notice of the default judgment itself, in the event service did not result in notice of the action to a party, section 473.5 of the Code of Civil Procedure, subdivision (a), provides, in relevant part:

When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

Further, “a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute,” thus failing to establish personal jurisdiction over the defendant, “is void.” (Dill v. Bernquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Pursuant to Code of Civil Procedure section 473, subdivision (d), the Court may “set aside any void judgment or order,” and “a void judgment may be set aside at any time” (Milrot v. Stamper Medical Corp. (1996) 44 Cal.App.4th 182, 188). Notably, Gearhart makes no argument that he did not have notice of the action; he simply argues that he relied on an insurance carrier for coverage, but this does not make the judgment void in any way, and he makes no argument as to notice of the entry of default judgment or lack thereof in his declaration.

For these reasons, Defendant/Judgment Debtor Philip W. Gearhart aka Philip Gearhart’s Motion.