Judge: Mark E. Windham, Case: 23STCP02273, Date: 2024-01-24 Tentative Ruling
Case Number: 23STCP02273 Hearing Date: January 24, 2024 Dept: 26
Fox Capital Group, Inc. v. Cornell Constr. Services
Inc., et al.
MOTION TO VACATE
SISTER STATE JUDGMENT
(CCP §§ 1710.30,
et seq.)
TENTATIVE RULING:
Judgment Debtor Robert Anthony Cornell’s Motion to Vacate Sister-State Judgment is DENIED.
ANALYSIS:
On June 21, 2023, Plaintiff and Judgment Creditor Fox Capital Group, Inc. (“Judgment Creditor”) filed an application for entry of judgment on sister-state judgment against Defendants and Judgment Debtors Cornell Construction Services, Inc., Cornell Consulting Services, LLC, and Robert Anthony Cornell (“Judgment Debtor Cornell”). The sister-state court was the Supreme Court of the State of New York County of Kings, with a total amount of judgment of $16,996.18. On June 29, 2023, judgment was entered based on the sister-state judgment.
On August 8, 2023, Judgment Debtor Cornell filed the instant Motion to Vacate Sister-State Judgment. On September 5, 2023, Judgment Creditor filed an opposition. On September 18, 2023, the Court continued the hearing to October 30, 2023; on October 30, 2023, the action was transferred from Department 25 in the Spring Street Courthouse to Department 26 in the Spring Street Courthouse. To date, no reply has been filed.
Discussion
Judgment Debtor Cornell had 30 days from personal service of the notice of entry of the sister state judgment on July 13, 2023, to make a motion to vacate the judgment.The Motion to Vacate was timely filed and served on August 8, 2023, which was 26 days from notice.
Code of Civil Procedure section 1710.40, subdivision (a) provides that “[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.” “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 is that the judgment creditor is entitled to such different judgment ….” (Code Civ. Proc., § 1710.40, subd. (c).) “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.] [Citation.]” (Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 841.) This burden can be met where “the movant proves service of process in the sister state action was not made or was defective,” rendering such a judgment “void for lack of fundamental jurisdiction.” (Id. at p. 841.)
Judgment Debtor Cornell argues that Judgment Creditor failed to properly serve notice on him, a resident of California, that legal action in the state of New York involving his business and personal property was being initiated, and subsequently adjudicated on August 9, 2018. However, Judgment Debtor Cornell fails to provide any evidence in showing that service was not made or was defective. Indeed, the declaration attached only provides that he had no knowledge that judgment had been entered against him in the State of New York until he was served with a notice of entry of judgment on sister-state judgment on July 13, 2023. (Motion, Cornell Decl., ¶3.) This is insufficient to render the judgment void since Judgment Debtor Cornell has not satisfied his burden in proving service of process in the sister state action was not made or was defective. Similarly, the Motion does not offer legal authority or analysis on the second ground: that Judgment Creditor failed to acquire jurisdiction in the State of New York. (Motion, p. 6:17-21.)
Next, Judgment Debtor Cornell argues that the Judgment of Confession is invalid because it does not accurately describe the contractual terms of the loan agreement, nor demonstrate a waiver of personal service or his right to due process. No authority is cited for these requirements. Judgment Debtor Cornell then argues that under Code of Civil Procedure section 1132, subdivision (b), the Confession of Judgment is invalid as a legal instrument in California because it lacks a declaration from an independent attorney verifying that the Confession was entered into after advice of counsel. As pointed out in the opposition, Judgment Debtor has not shown that this is a defense to a judgment in this state. (Motion, pp. 6:22-7:7.) Finally, the Motion argues that Judgment Debtor Cornell is filing an affidavit to show cause in New York Supreme Court but cites no authority as to how this is grounds to vacate the sister-state judgment. (Id. at p. 7:8-11.)
Conclusion
Judgment Debtor Robert Anthony Cornell’s Motion to Vacate Sister-State Judgment is DENIED.
Court clerk to give notice.