Judge Lynne M. Hobbs, Case Number: 22STCP01296, Date: 2024-05-23 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCP01296, Date: 2024-05-23 Tentative Ruling

Case Number: 22STCP01296 Hearing Date: May 23, 2024 Dept: 61

2336, CLARK, LLC vs MARIA BOTHAM, et al.

TENTATIVE

Judgment Debtor Maria Botham’s Motion to Vacate Judgment is DENIED.

Judgment Creditor to give notice.

DISCUSSION

A sister-state judgment entered in California “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.” (Code Civ. Proc. § 1710.40, subd. (a).) The time in which to bring a motion to vacate the entry of a sister-state judgment is “[n]ot later than 30 days after service of notice of entry of judgment pursuant to Section 1710.30.” (Code Civ. Proc. § 1710.40, subd. (b).)

Judgment Debtor and Defendant Maria Botham (Defendant) moves to vacate the sister-state judgment entered in favor of Judgment Creditor and Plaintiff 2336 Clark, LLC (Plaintiff) in this court on April 13, 2022, on the grounds that the judgment was improperly entered at a time when it was not final, as Plaintiff’s prior sister-state judgment in the same action was previously ordered vacated on March 29, 2022, in LASC Case No. 21STCP03759. (Opposition at pp. 4–6.) Defendant also argues that she was not served with the notice of entry of sister-state judgment as provided in Code of Civil Procedure § 1710.40, subd. (b).

Neither argument provides any basis to vacate the judgment here. The prior order granting plaintiff’s motion to vacate judgment was based on the following facts and dates:

· The Illinois court granted Plaintiff leave to seek additional fees on November 2, 2021;

· Plaintiff filed the application for entry of sister-state judgment on November 12, 2021; and

· The Illinois court granted Plaintiff’s request for fees and costs on November 18, 2021.

(See 21STCP03759 Order dated 3/29/22 at pp. 2–3.) The court cited Illinois law for the proposition that, “if a trial court has jurisdiction to hear a claim for fees, any other judgment entered in the case before the claim for fees is ruled upon is or becomes nonfinal and nonappealable when the claim for fees is made.” (F.H. Prince & Co., Inc. v. Towers Financial Corp. (Ill. App. Ct. 1994) 266 Ill.App.3d 977, 983–984.) Thus the judgment that Plaintiff sought to enter was not final when the application had been made, and was not final until the court granted the request for fees on November 18, 2021 — which, per that court’s reasoning, “means the November 18, 2021 Memorandum of Judgment is the final judgment that is enforceable.” (21STCP03759 Order dated 3/29/22 at p. 3.) The application pursuant to which the judgment in the present action was entered is based on that final November 18, 2021 judgment.

Defendant asserts that Defendant’s request for fees was not ruled upon until January 4, 2024. (Motion Exh. 5.) But this is a different request for fees. The order that Defendant identifies expressly relates to fees sought for the period of November 19, 2021, through January 31, 2023 — i.e. during the period after entry of that judgment, and during the pendency of Defendant’s appeal of the judgment. (Motion Exh. 5; Sharp Decl.. ¶¶ 5–11, 17–18, 23–24.) Defendant’s appeal of that judgment assumes its finality under Illinois law. (See Lamar Whiteco Outdoor Corp. v. City of West Chicago (Ill. App. Ct. 2009) 395 Ill.App.3d 501, 504 [describing the appealability of final judgments].)

Nor is the failure to serve a notice of entry of judgment in this case a cause to vacate the judgment. Service of notice of entry of judgment is not a jurisdictional prerequisite to entry of the judgment, but assumes that the judgment is already entered in this state. (See Code Civ. Proc. 1710.30.) Moreover, the failure to serve such a notice is not a grounds for vacating the judgment. (See Epps v. Russell (1976) 62 Cal.App.3d 201, 205 stating that “[d]elay of service is not . . . set forth” as a basis for vacating judgment].) The effect of any failure to service notice of entry of judgment is that Defendant’s present motion cannot be denied for untimeliness under Code of Civil Procedure § 1710.40. It may, however, be denied for substantive reasons.

The motion is therefore DENIED.