Judge: Mark E. Windham, Case: LAM07CB5678, Date: 2023-02-14 Tentative Ruling
Case Number: LAM07CB5678 Hearing Date: February 14, 2023 Dept: 26
MOTION
TO VACATE JUDGMENT
TENTATIVE RULING:
Defendant
Cathy C. Reis’ Motion to Vacate Renewed Judgment is CONTINUED TO APRIL
20, 2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL
3, 2023, DEFENDANT CATHY REIS IS TO FILE SUPPLEMENTAL DECLARATIONS THAT COMPORT
WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEUDRE SECTION 2015.5 AND FILE PROOF
OF SERVICE OF ALL MOVING PAPERS IN ACCORDANCE WITH CODE OF CIVIL PROCEDURE
SECTIONS 1005 AND 1013. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED.
ANALYSIS:
On June 11, 1998, Plaintiff American Credit Agencies, Inc.
dba American Agencies of Los Angeles (“Plaintiff”) filed this action against
Defendant Cathy C. Reis (“Defendant”). Following no response to the action,
default judgment was entered against Defendant on August 28, 1998. The judgment
was renewed on December 7, 2007 and August 28, 2017. On July 3, 2012, an
Assignment of Judgment was filed, naming Credilogical Systems, LLC (“Judgment
Creditor”) as the judgment creditor. On February 5, 2018, Defendant filed a
Motion to Set Aside Judgment (“the First Motion to Vacate”) in pro per. The First
Motion to Vacate was opposed by Judgment Creditor and came for hearing on March
15, 2018. The Court denied the First Motion to Vacate without prejudice upon
finding that Defendant had not overcome the presumption of proper service as
indicated in the proof of service of the Summons and Complaint. (Minute Order,
03/15/18, pp. 2-4.)
On March 28, 2018, Defendant filed a “Detailed Request In
Opposition of Renewal of Fictitious Judgment Due to Improper Service.” However,
Defendant did not reserve a subsequent hearing on the First Motion to Vacate,
so the “Detailed Request” was never considered by the Court. Defendant filed
the instant Motion to Vacate Renewal of Judgment on January 18, 2023. No
opposition has been filed to date.
Discussion
First, the Motion was not timely filed or served. The Motion
was served on Plaintiff on January 13, 2023 by mail, which was only 13 court
days before the February 2, 2023 hearing. The Code of Civil Procedure required
the Motion to have been filed by January 10, 2023 and served on Judgment
Creditor by mail by January 5, 2023. (Code Civ. Proc., § 1005, 1013.) Failure
to give notice of a motion is not only a violation of the statutory
requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero
(1984) 156 Cal.App.3d 754, 757.)
Additionally, the Motion is still not accompanied by
admissible evidence showing Plaintiff failed to properly serve Defendant with
the Summons and Complaint. The “Detailed Request” contains declarations that do
not include the requisite verifications. (See Motion, Exh. A, pp. 3-4.) A
declaration must, if executed within California, state the date and place of
execution and indicate that it is made under penalty of perjury, or if executed
at any place, within or outside of California, state the date of execution and
that it is so certified or declared under the laws of the State of California.
(Code Civ. Proc., § 2015.5.) Failure to properly verify a declaration renders
it inadmissible. (See ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th
198, 217.) Nor are the attached exhibits authenticated by the supporting
declarations as required by Cal. Evidence Code section 1400, et seq.
For these reasons, the hearing will be continued to allow
Defendant to properly serve Plaintiff with the papers and to correct the
defects in the supporting declarations.
Conclusion
Defendant Cathy
C. Reis’ Motion to Vacate Renewed Judgment is CONTINUED TO APRIL 20,
2023 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL 3,
2023, DEFENDANT CATHY REIS IS TO FILE SUPPLEMENTAL DECLARATIONS THAT COMPORT
WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION 2015.5 AND EVIDENCE
CODE SECTION 1400, ET SEQ. AND FILE PROOF OF SERVICE OF ALL MOVING PAPERS IN
ACCORDANCE WITH CODE OF CIVIL PROCEDURE SECTIONS 1005 AND 1013. FAILURE TO DO
SO MAY RESULT IN THE MOTION BEING DENIED.
Court clerk to give notice.