Judge: Mark E. Windham, Case: LAM06CW1846, Date: 2023-02-15 Tentative Ruling
Case Number: LAM06CW1846 Hearing Date: February 15, 2023 Dept: 26
(CCP
§ 683.130 et seq.)
TENTATIVE RULING:
Defendant Noel Ortiz’s Motion to
Vacate Renewal of Judgment is GRANTED. THE RENEWAL OF JUDGMENT ENTERED ON
NOVEMBER 21, 2022 IS HEREBY VACATED.
ANALYSIS:
Plaintiff Richard
Miller (“Plaintiff”) filed the instant
action against Defendant Noel Ortiz (“Defendant”) on July 14, 1999. Following
Defendant’s failure to file a responsive pleading, default judgment was entered
on December 5, 2000. The judgment was renewed on July 20, 2006, November 9,
2014 and November 21, 2022. Notice of the latest renewal of judgment was served
on Defendant on November 28, 2022. (Proof of Service by Mail, 12/12/22.) Defendant
filed the instant Motion to Vacate Renewal of Judgment on December 28, 2022. Plaintiff
filed an opposition on January 31, 2023 and Defendant replied on February 8,
2023.
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).)
Evidentiary Objections
Defendant’s evidentiary objections to the declaration of Richard Miller
in support of the opposition are overruled.
Discussion
Defendant moves to vacate the renewal of judgment on the
grounds that the judgment is void on its face and that she was never served
with the Summons and Complaint in this action. That the judgment is void on its
face is a ground that would be a defense to the action on the judgment. (See
Code Civ. Proc., § 473, subd. (d); Traclonan v. Kenney (2010) 187 Cal.
App. 4th 175, 181.) Defendant presents evidence that the Proof of Personal
Service of the Summons and Complaint on which the clerk’s office relied to
enter default was not on the mandatory Judicial Council Form. The Mandatory
Judicial Council Proof of Service of Summons specifically states that it was
adopted for use in connection with Code of Civil Procedure section 417.10,
subdivision (f), which mandates the use of the approved form. (Code Civ. Proc.,
§ 417.10, subd. (f); Motion, Bunnett Decl., Exh. 16.) Instead, Plaintiff submitted
a Proof of Service document pursuant to Code of Civil Procedure section 1011,
subdivision (a). (Id. at Exh. 1.) Cal. Government Code section 68511
expressly states that “When any such form has been so prescribed by the
Judicial Council, no court may use a different form which has as its aim the
same function as that for which the Judicial Council’s prescribed form is
designed.” (Govt. Code, § 68511.) The clerk’s entry of default despite
Plaintiff’s use of the incorrect proof of service form, therefore, was
improper. Default, nor default judgment, should not have been entered without
Plaintiff filing proof of service of the Summons and Complaint on the mandatory
Judicial Council Proof of Service of Summons form. Defendant, therefore, has
demonstrated that the entry of default and default judgment were void on their
face. In opposition, Plaintiff does not address the fact that the incorrect
form was used to demonstrate proof of service of the Summons and Complaint.
Defendant alternatively argues that the default judgment is
void because she was never served with the Summons and Complaint. “[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.) The Motion is brought pursuant to Code of Civil
Procedure section 683.170 on the grounds that the default judgment should be
vacated pursuant to Code of Civil Procedure section 473, subdivision (d), which
states that “[t]he court may, .... on motion of either party after notice to
the other party, set aside any void judgment or order.” (Code Civ. Proc., §
473, subd. (d).) “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)].)
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.)
The
proof of personal service of the Summons and Complaint on the incorrect
document, was filed by Plaintiff on December 5, 2000. (Motion, Bunnett Decl.,
Exh. 1, p.3.) It does not include the necessary information about the person
serving the documents, namely, whether they are a registered process server. (Id.
at p. 2, ¶5; p. 3.) The proof of service of the Summons and Complaint,
therefore, does not invoke a rebuttable presumption affecting the burden of
producing evidence of the facts stated therein. The burden falls to Plaintiff
to demonstrate that service of the Summons and Complaint was accomplished as
stated in the proof of service and that said service conformed to the statutory
requirements.
Plaintiff’s
opposition argues that the service address indicated by the proof of personal
service—1227 S. El Camino Real #136, 9 Oceanside, CA 92054—was the
address at which Defendant lived at the time of service on July 25, 2000. In
support of this contention, Plaintiff presents evidence that they sent billing
invoices to Defendant at the service address from late 1999 to 2021, and that
payments were received on those invoices during that time. (Opp., Miller Decl.,
Exh. 3.) There was a specific payment dated July 6, 2000, which was the last
payment Plaintiff received from Defendant. (Id. at Exh. 3, p. 27.)
Plaintiff also points to a California Department of Motor Vehicle Driver
Identification Report that indicates Defendant lived at the service address as
of September 15, 1999. (Id. at Exh. 4.) The DMV Report is not relevant
to where Defendant was living nine months after September 1999. Therefore, only
the invoices suggests that Defendant lived at the service address in July 2000.
In the Motion, Defendant declares
that she lived at the service address from approximately February 1999 to
February 2000. (Motion, Hahn Decl., ¶6.) After that, Defendant declares that
she moved to 7924 Friends Avenue, Whittier, California. (Ibid.) In
support of this Defendant produces a copy of a tuition statement dated June 30,
2000, from St. Mary of the Assumption School, where her children attended
school. (Id. at Exh. 8.) Plaintiff’s opposition does not dispute this
invoice other than to point to the billing invoices and DMV Report. Defendant
also points out that the billing invoices do not demonstrate her residence as
of July 2000 because payments made by Defendant’s former spouse, pursuant to
the family law judgment, were also applied to the attorney’s fees Plaintiff
billed. (Id. at Exh. 7, p. 16:8-14.) The billing invoice does not
indicate from where the July 6, 2000 payment came.
Therefore, Plaintiff has not
carried their burden of proof demonstrating that the judgment is not void on
its face or that Defendant was served with the Summons and Complaint as stated
in the proof of personal service.
Conclusion
Defendant Noel Ortiz’s Motion to
Vacate Renewal of Judgment is GRANTED. THE RENEWAL OF JUDGMENT ENTERED ON
NOVEMBER 21, 2022 IS HEREBY VACATED.
Moving party to give notice.