Judge Mark E. Windham, Case LAM01K18855 2023-02-22 Tentative Ruling

Judge: Mark E. Windham, Case: LAM01K18855, Date: 2023-02-22 Tentative Ruling

Case Number: LAM01K18855 Hearing Date: February 22, 2023 Dept: 26

Beck v. Summer, et al.
VACATE RENEWAL OF JUDGMENT

(CCP § 683.170)

TENTATIVE RULING:

Defendants Warren Summer and Karin Winklers’ Motion to Vacate Renewal of Judgment is DENIED.

THE PROOF OF SERVICE OF NOTICE OF RENEWAL OF JUDGMENT, FILED DECEMBER 20, 2022 IS STRUCK. JUDGMENT CREDITOR IS TO FILE A NEW PROOF OF SERVICE OF THE NOTICE OF RENEWAL OF JUDGMENT WITHIN TEN (10) DAYS OF THIS ORDER.

ANALYSIS:

On September 24, 2001, Plaintiff Thomas Beck, Esq. (“Judgment Creditor”) filed the instant action for breach of retainer agreement against Defendants Warren Summer and Karin Winkler (“Judgment Debtors”). Judgment was entered on January 8, 2003 in favor of Judgment Creditor. (Judgment Summary, 01/08/03.) Acknowledgment of Satisfaction of Judgment (Partial) was filed on January 5, 2006. Other documents, including Applications and Orders for Appearance and Examination were subsequently filed. On January 8, 2013, Judgment Creditor filed an Application for Renewal of Judgment. A Notice of Rejection was filed on the same day indicating that the ten-year limitation on the judgment expired on January 8, 2013. However, the docket also reflects that the Renewal of Judgment was entered on January 8, 2013.

An Application and Order for Appearance and Examination was filed on June 21, 2022 and was scheduled for November 3, 2022. On September 6, 2022, Defendant filed the instant Motion to Vacate Renewal of Judgment. The Motion came for hearing on November 2, 2022 and was continued for further briefing to February 22, 2023. (Minute Order, 11/02/22.) The Order for Appearance and Examination was also continued to the same date. (Ibid.) Plaintiff also filed a Notice of Renewal of Judgment on November 2, 2022 and again on December 12, 2022. Defendants filed a supplemental brief on January 17, 2023. Plaintiff filed a supplemental opposition on January 24, 2023 and Judgment Debtors filed a supplemental reply on February 1, 2023. Judgment Creditor also filed a Response to Objections to 12/12/22 Renewal of Judgment on February 7, 2023.

Discussion

The Motion is brought under Code of Civil Procedure section 683.170, which allows the Court to vacate a renewal of judgment. Under this statute, a motion to vacate renewal of judgment must be brought “[n]ot later than 30 days after service of the notice of renewal pursuant to Section 683.160.” (Code Civ. Proc., § 683.170 (subd. (b).) The Notice of Renewal of Judgment was not served on Judgment Debtors until December 17, 2022. (Proof of Service of Notice of Renewal of Judgment, filed 12/20/22.) The instant Motion was timely filed prior to service of the Notice of Renewal of Judgment.

As indicated in the Court’s tentative ruling for the initial hearing on November 2, 2022, Defendants have not demonstrated that the judgment was not renewed on January 8, 2013. The Notices of Rejection to which Defendants point do not overcome the docket showing the judgment was renewed on January 8, 2013. It is true that one rejection indicates the time to renew the judgment has expired. (Motion, Summer Decl., Exh. D; Notice of Rejection, 01/08/13.) However, that rejection incorrectly states that the judgment expired on January 8, 2013. (Ibid.) In fact, January 8, 2013 was the last date the judgment could be renewed. (Id. at ¶15.) Since that Notice of Rejection was incorrect to indicate that the time to renew the judgment had expired, the logical explanation is that the clerk’s office made an error checking the box for “Ten-year limitation on judgment expired on 1/8/13” and thereafter corrected the error by renewing the judgment later that date. Therefore, the judgment was properly renewed on January 8, 2013 and there is no basis to vacate the judgment as having been renewed after the ten-year deadline.

Next, Defendants argue that the renewal must be vacated because they were never served with the Notice of Renewal of Judgment. (Motion, Summer Decl., ¶11b.) Under Code of Civil Procedure section 683.160, subdivisions (a) and (b), the Notice of Renewal of Judgment must be served on the judgment debtor personally or by first class mail, and proof of service of the same must be filed with the Court before any enforcement of the renewed judgment is allowed. (Code Civ. Proc., § 683.160, subds. (a), (b).) However, no authority is provided by Judgment Debtors to demonstrate that failure to file proof of service of the Notice of Renewal allows the Court to vacate the renewal of judgment. At most, the statute provides that no enforcement of the renewed judgment may proceed until proof of service of the Notice of Renewal is filed. (Code Civ. Proc., § 683.160, subd. (b).) Case law supports this reading. (See Altizer v. Highsmith (2020) 52 Cal.App.5th 331, 343 [holding that failure to serve the notice of renewal does not render the renewal invalid, but merely prevents enforcement of the underlying judgment until notice is properly served].) Therefore, Judgment Creditor’s purported failure to file proof of service of the Notice of Renewal as required by the statute is not grounds to vacate the renewed judgment.

That being said, the Court earlier raised the lack of Notice of Renewal in connection with the January 8, 2013 renewal. The Notice of Renewal of Judgment was not filed with the Court until November 2, 2022 and again on December 12, 2022. Judgment Creditor contends that proof of service of the Application for Renewal of Judgment was omitted from the January 8, 2013 filing. (Supp. Opp., Beck Decl., ¶¶3-4 and Exh. F.) The original opposition included a Notice of Renewal dated January 8, 2013 and stamped by the clerk’s office. (Opp., Beck Decl., Exh. D.) The Court is now satisfied with Judgment Creditor’s explanation as to why that Renewal of Judgment did not have a conformed copy stamp, after his conversation with the clerk’s office regarding the switchover from physical to electronic filing. (Supp. Opp., Beck Decl., ¶4.) Therefore, the Court finds the Notice of Renewal and proof of service of the same, was filed on January 8, 2013, such that Judgment Creditor’s enforcement efforts from that time were appropriate.

Judgment Debtors are correct to point out that service of the Notice of Renewal of Judgment on December 17, 2022 should not have been performed by Judgment Creditor. A proof of service must include an affidavit “showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause . . . . “ (Code Civ. Proc., § 1013a, subd. (1).) However, this only pertains to the proof of service filed on December 20, 2022, which was signed by Judgment Creditor. The proof of service of Notice of Renewal of the January 8, 2013 is properly signed by “Jorge Monge.” (Opp., Beck Decl., Exh. D.) Accordingly, Judgment Creditor must re-file a proof of service of the Notice of Renewal of Judgment for the December 12, 2022 renewal, in accordance with the service requirements of Code of Civil Procedure section 1013a, subdivision (1).

Conclusion

Defendants Warren Summer and Karin Winklers’ Motion to Vacate Renewal of Judgment is DENIED.

Moving party to give notice.