Judge: Mark E. Windham, Case: LAM03K18548, Date: 2023-03-15 Tentative Ruling

Case Number: LAM03K18548    Hearing Date: March 15, 2023    Dept: 26

G&K Management Co., Inc. v. Francisco, et al.

VACATE RENEWAL OF JUDGMENT

                                                                                          (CCP § 683.170)

TENTATIVE RULING:

Judgment Debtor Rupert Francisco’s Motion to Vacate Renewal of Judgment is DENIED.

ANALYSIS:

On April 20, 1994, Plaintiff G & K Management Co., Inc. (“Judgment Creditor”) obtained a judgment against Defendant Rupert Francisco (“Judgment Debtor”). The judgment was renewed on October 16, 2003, December 21, 2012, and most recently on November 17, 2022. The judgment was also assigned to Judgment Assignee Fidelity Capital Holdings, Inc. (“Judgment Assignee”) on the same date.

Judgment Debtor filed the instant Motion to Vacate Renewal of Judgment on January 5, 2023. Judgment Assignee filed an opposition on February 15, 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 served on Judgment Debtor on December 6, 2022. (Proof of Service of Notice of Renewal of Judgment, filed 12/06/22.) The instant Motion was timely filed and served on January 5, 2023.

First, Judgment Debtor argues that the renewal must be vacated because they were never served with the 2012 Notice of Renewal of Judgment. (Motion, Francisco Decl., ¶¶2-3.) 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 Debtor to demonstrate that failure to properly serve 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, improper service of the 2012 Notice of Renewal is not grounds to vacate the renewed judgment.

Judgment Debtor also moves to vacate the renewal of judgment on the grounds that the interest calculation is “usurious and disproportionate to the judgment, equal to being outrageous and unconscionable.” (Motion, p. 4:21-23.) However, no additional information is provided as to why the interest calculation is disproportionate to the judgment or incorrect under the law. Judgment Debtor bears the burden of proof to demonstrate by a preponderance of the evidence that the interest calculation is incorrect. (American Contractors Indemnity Co. v. Hernandez (2022) 73 Cal.App.5th 845, 848) A conclusory statement that the interest is usurious, disproportionate, outrageous and unconscionable does not carry this burden of proof.

Conclusion

Therefore, Judgment Debtor Rupert Francisco’s Motion to Vacate Renewal of Judgment is DENIED.

Court clerk to give notice.