Judge: Mark E. Windham, Case: LAM04CB2081, Date: 2022-08-01 Tentative Ruling
Case Number: LAM04CB2081 Hearing Date: August 1, 2022 Dept: 26
MOTION
VACATE RENEWAL OF JUDGMENT
(CCP
§ 683.130 et seq.)
TENTATIVE RULING:
Defendant Wendy Rossi’s Motion to Vacate Renewal of Judgment
is DENIED.
Plaintiff Walter
P. Maynard, M.D. (“Plaintiff”) filed
the instant action against Defendant Wendy Rossi (“Defendant”) on June 8, 1993,
under original case number 93C01474. Default judgment was entered against Defendant on December 20, 1994. The
judgment was renewed on December 20, 2004, April 10, 2012 and on March 23,
2022.
Defendant filed the instant Motion to Vacate or
Modify Proposed Renewal of a 27-Year Old Judgment on May 27, 2022. Plaintiff
filed an opposition on June 9, 2022 and Defendant replied on July 25, 2022.
Discussion
Defendant moves to vacate the renewed judgment on the
grounds that renewal of a judgment for more than one 10-year period is not
permitted by the renewal statutes. Alternatively, Defendant argues that the
Application for Renewal of Judgment and Notice of Renewal of Judgment were not
properly served, and the Motion should be granted in the interests of justice.
As an initial matter, the Motion fails to cite to the
statute that permits the Court to vacate a renewed judgment. Code of Civil
Procedure section 683.170 provides the grounds upon which a renewal of judgment
can be vacated, as follows:
(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).) First, Defendant offers no authority that a judgment, once
renewed by the Court, can be vacated on grounds others than those set forth
above. Namely, on grounds other than those that would be a defense to an action
on the judgment.
Second, even if the Court were to find that Defendant can
raise non-compliance with the renewal statutes as a basis to vacate the renewed
judgment, no authority supports Defendant’s contention that the renewal
statutes limit a judgment creditor to one, 10-year renewal period. The Motion
cites to Code of Civil Procedure section 683.120, which allows a judgment
creditor to file an application for renewal, which, if granted, “extends the
period of enforceability of the judgment as renewed for a period of 10 years
from the date the application is filed.” (Code Civ. Proc., § 683.210, subd. (b).)
The statute makes no mention of the number of applications for renewal that may
be filed, only that upon an application being granted, the judgment’s
enforceability is extended by “a period of ten years.” The singular 10-year
period, therefore, is the amount of time a judgment can be renewed upon each
application Therefore, Defendant has not shown that successive renewals of a
judgment are improper under the renewal statutes, nor that successive renewals
are grounds to vacate the renewed judgment.
Finally, regarding service of the Notice of Renewal of
Judgment and whether it violated Code of Civil Procedure section 1013a, which
prohibits service by mail by a party to the action, Defendant provides a copy
of the envelope in which the Notice was mailed. The envelope bears the return address
“Maynard, 6416 S. Sherbourne Dr., LA, CA 90036.” (Motion, Rossi Decl., Exh. A.)
This return address, however, does not expressly demonstrate that Plaintiff
mailed the Notice of Renewal themselves. In opposition, Plaintiff explains that
the Notice was mailed by their wife, Lillian Maynard, which is corroborated by
the Proof of Service of the Notice of Renewal filed on April 22, 2022. (Proof
of Service, filed 04/22/22.) Also, as noted above, even if service of the
notice of the renewal of judgment was found defective in some way, the Motion
cites no authority that this is a basis to vacate the renewal of judgment
itself.
Conclusion
Defendant Wendy Rossi’s Motion to Vacate Renewal of Judgment
is DENIED.
Plaintiff to give notice.