Judge: Mark A. Young, Case: 22SMCP00144, Date: 2022-07-27 Tentative Ruling

Case Number: 22SMCP00144    Hearing Date: July 27, 2022    Dept: M

CASE NAME:           Bernstein & Poisson v. Law Office of Perry C. Wander, et al.

CASE NO.:                22SMCP00144

MOTION:                  Motion to Set Aside/Vacate Judgment (CCP § 1710.40)

HEARING DATE:   7/27/2022

BACKGROUND

On April 7, 2022, Plaintiff/Judgment Creditor Bernstein & Poisson filed an application for entry of judgment on sister-state judgment against Defendant/Judgment Debtor Law Office of Perry C. Wander and Perry Wander (collectively, “Wander” or “JD”). JC seeks to enter a Nevada judgment in its favor, against JDs, for a total judgment of $37,894.97 (principal judgment of $33,333.33 plus $4,561.64 in accrued interest).

Legal Standard

Code of Civil Procedure section 1710.40(a) provides that a judgment entered based on a sister state judgment “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.” (Emphasis added.) “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.’”  (Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal. App. 4th 831, 841.)

“California must, regardless of policy objections, recognize the judgment of another state as res judicata, and this is so even though the action or proceeding which resulted in the judgment could not have been brought under the law or policy of California.” (World Wide Imports, Inc. v. Bartel (1983) 145 Cal.App.3d 1006, 1011.) “The United States Constitution requires that the judgments of sister states be given full faith and credit if the rendering state had fundamental jurisdiction of the matter and all parties were provided reasonable notice and opportunity to be heard.” (Capital Trust, Inc. v. Tri-National Development Corp. (2002) 103 Cal.App.4th 824, 826.) “As long as the sister state court had jurisdiction over the subject matter and the parties, a sister state judgment is entitled to full faith and credit ‘even as to matters of law or fact erroneously decided.’” (Bank of America v. Jennett¿(1999) 77 Cal.App.4th 104, 118.) 

Common defenses to enforcement of the sister state judgment include: i) the judgment is not final and unconditional, ii) the judgment was obtained by extrinsic fraud, iii) the judgment was rendered in excess of jurisdiction, iv) the judgment is not enforceable in the state of rendition, v) the plaintiff is guilty of misconduct, vi) the judgment has already been paid, and vii) suit on the judgment is barred by the statute of limitations in the state where enforcement is sought. (Traci & Marx Co. v. Legal Options, Inc. (2005) 126 Cal.App.4th 155, 158–159 [debtor failed to establish that the judgment was not enforceable under Ohio law; they failed to provide any authority showing that Ohio law construes the “in excess of” language in the prayer for relief as a ceiling rather than a floor for recoverable damages]; see also Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 [when a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void, and “thus vulnerable to direct or collateral attack at any time”].)

The judgment debtor has 30 days after service of notice of entry of judgment to make a motion to vacate the judgment. (CCP § 1710.40(b).)

Analysis

Wander contends that the sister state judgment was entered without the Nevada courts having personal jurisdiction over Wander’s law firm or himself, and due to the misconduct of the “vegashurt” law firm. However, this Court lacks jurisdiction to vacate/set aside the sister state judgment in this action.  A sister state judgment may be challenged on the issue of jurisdiction only if that issue was not litigated in the foreign state. (Jennett, supra, 77 Cal.App.4th at 114; Indiana Insurance Co. v. Pettigrew (1981) 115 Cal.App.3d 862, 864.) If “the court of the first state has expressly litigated the question of jurisdiction, its determination is res judicata and is itself protected by the full faith and credit clause.” (Craig v. Superior Court (1975) 45 Cal.App.3d 675, 680.)

JC’s successful appeal of Wander’s motion to quash, a jurisdictional challenge, renders Wander’s current challenge to jurisdiction meritless. In the underlying action, Wander filed a Motion to Quash in Nevada which was granted by the trial court. JC filed an appeal. It is undisputed that the appellate court reversed and remanded on February 11, 2020. The trial court entered a default judgment following the appeal on March 25, 2020. Wander notes that the decision on appeal was based on his default. Wander contends that his default was caused by the Nevada courts refusing to grant leave to file an appellate brief that was “just a few weeks late” and despite having granted multiple extensions to JC. Wander believes that he had good cause for his requested extension. Wander apparently elected to not defend in Nevada after this, and instead chose to collaterally attack the judgment in California by way of this motion.

From this record, it is undisputed that Wander had reasonable notice and opportunity to be heard on the matter of jurisdiction. Wander challenged personal jurisdiction, and initially prevailed at the trial court level. However, JC successfully appealed, and Wander offers no compelling reason why this resulting judgment would not be binding on him.

Wander’s arguments regarding JC’s misconduct are unpersuasive. Wander contends that the judgment is legally erroneous. Further, JC committed rules violations of the Nevada Rules of Professional Conduct during the underlying representation and by misrepresenting facts to the court. Wander only points to substantive, underlying misconduct unrelated to jurisdiction or the entry of judgment. This court cannot re-litigate these issues of fact and law determined on the merits during the original action. So long as the sister state court had jurisdiction over the subject matter and the parties, a sister state judgment is entitled to full faith and credit “even as to matters of law or fact erroneously decided.” (Jennett, supra, 77 Cal.App.4th at 118-119 [operation of the full faith and credit clause depends on the presence of “fundamental” jurisdiction—not on the presence of a broadly defined concept of jurisdiction].)

Accordingly, Wander’s motion is DENIED.