Judge Mark E. Windham, Case LAM02K20132 2023-03-30 Tentative Ruling

Judge: Mark E. Windham, Case: LAM02K20132, Date: 2023-03-30 Tentative Ruling

Case Number: LAM02K20132 Hearing Date: March 30, 2023 Dept: 26

Western States Capital Corp. v. Parada, et al.

MOTION TO VACATE RENEWAL OF JUDGMENT

(CCP § 683.130 et seq.)

TENTATIVE RULING:

Judgment Debtor Santos A. Parada’s Motion to Vacate Renewal of Judgment is CONTINUED TO JUNE 22, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MAY 25, 2023, JUDGMENT DEBTOR SANTOS A. PARADA IS TO FILE A SUPPLEMENTAL DECLARATION WITH SUPPORTING EVIDENCE SPECIFICALLY ADDRESSING THE PROOF OF SERVICE FILED ON NOVEMBER 20, 2002. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

ANALYSIS:

Plaintiff Western States Capital Corporation (“Judgment Creditor”) filed the instant action against Defendant Santos A. Parada (“Judgment Debtor”) on October 28, 2002. Following Judgment Debtor’s failure to file a responsive pleading, default judgment was entered on January 23, 2003. The judgment was renewed on January 2, 2013 and November 22, 2022. Notice of the latest renewal of judgment was served on Judgment Debtor on December 1, 2022. (Proof of Service for Notice of Renewal of Judgment, 12/01/22.)

Judgment Debtor filed the instant Motion to Vacate Renewal of Judgment on January 5, 2023. Judgment Creditor filed an opposition on February 1, 2023. The Motion initially came for hearing on February 16, 2023 and was continued to allow Judgment Debtor to file a supplemental declaration. (Minute Order, 02/16/23.) Judgment Debtor filed supplemental papers on March 9, 2023 and Judgment Creditor filed a supplemental opposition on March 13, 2023. Judgment Debtor filed a Motion for Continuance, although set for hearing on April 26, 2023, seeks a continuance of this hearing date.

Legal Standard

A renewal of judgment can be vacated pursuant to Code of Civil Procedure section 683.170, which states in relevant part:

(a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.

(b) Not later than 30 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail.

(c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in a different amount.

(Code Civ. Proc., § 683.170 (emphasis added).)

Discussion

Judgment Debtor moves to vacate the renewal of judgment on the grounds that the judgment is void because they were never served with the Summons and Complaint in this action. “[T]he undisputed failure to have served the summons and complaint also provides a basis for a motion to vacate a renewed judgment.” (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 202.) “California is a jurisdiction where the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.” (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1048.) Nor is there is any time limit on when a void judgment can be challenged. (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 526 [citing Falahati v. Kondo (2005) 127 Cal.App.4th 823, 830; Code Civ. Proc., § 473, subd. (d)].) Judgment Creditor’s opposition relies on an incorrect legal standard to vacate based on extrinsic fraud or mistake, which does not address whether the underlying judgment is void due to lack of proper service. (See Opp., 4:6-12.)

Where service of the Summons is challenged, the burden is on the plaintiff to prove the facts requisite to an effective service. “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; see also Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) However, a proof of service containing a declaration from a registered process server invokes a rebuttable presumption affecting the burden of producing evidence of the facts stated in the return. (Cal. Evid. Code, § 647; see American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.)

Proof of service of the Summons and Complaint was filed by Judgment Creditor on November 20, 2002 and was attested to by a registered process server. (Proof of Service, 11/20/02, ¶5.) It indicates that Judgment Debtor was personally served at 2516 ½ London Street, Los Angeles, California, on November 2, 2002 at 11:10 am. (Proof of Service, 11/20/02, ¶2.) Judgment Debtor is described as a 45-year-old female, 5 foot and 4 inches tall, 150 pounds, with black hair and of Latino race. (Proof of Service, 11/20/02, ¶3.) In the Motion, Judgment Debtor did not offer specific information to dispute that service of the Summons and Complaint occurred as stated in the proof of service. They broadly declared that they did not receive the Summons and Complaint, nor were they ever informed of this lawsuit. (Motion, Parada Decl., ¶6.) Judgment Debtor also declares that they first learned about this action when their daughter received an envelope at 14259 Aztec Street, Sylmar, California, on December 5, 2022. (Id. at ¶7.) The supplemental declaration still does not specifically address service of the Summons and Complaint on November 20, 2002. Instead, Judgment Debtor’s daughter, Olinda Lytle attests to Judgment Debtor being a responsible and hard-working person. (Supp. Decl., filed 03/09/23, pp. 1:1-2:14.) Lytle also indicates that Judgment Debtor is continuing to seek information about their whereabouts on November 20, 2002. (Id. at p. 2:5-8.)

As with the original motion, the supplemental declaration is not sufficient to overcome the proof of service. However, in light of Judgment Debtor’s continued attempts to locate information about service of the Summons and Complaint, the Court will provide an additional continuance.

Conclusion

Therefore, Judgment Debtor Santos A. Parada’s Motion to Vacate Renewal of Judgment is CONTINUED TO JUNE 22, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY MAY 25, 2023, JUDGMENT DEBTOR SANTOS A. PARADA IS TO FILE A SUPPLEMENTAL DECLARATION WITH SUPPORTING EVIDENCE SPECIFICALLY ADDRESSING THE PROOF OF SERVICE FILED ON NOVEMBER 20, 2002. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.

Court clerk to give notice.