Judge Mark E. Windham, Case LAM07CB5678 2023-04-20 Tentative Ruling

Judge: Mark E. Windham, Case: LAM07CB5678, Date: 2023-04-20 Tentative Ruling

Case Number: LAM07CB5678 Hearing Date: April 20, 2023 Dept: 26

American Credit Agencies, Inc. v. Reis, et al

MOTION TO VACATE JUDGMENT

TENTATIVE RULING:

Defendant Cathy C. Reis’ Motion to Vacate Renewed Judgment is GRANTED.

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 Assignee”) 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. (Minute Order, 03/15/18.) 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. Judgment Assignee filed an opposition days before the February 14, 2023 hearing. The Court continued the matter to allow for further briefing. (Minute Order, 02/14/23.) Defendant filed supplemental declarations on March 20, 2023. Plaintiff filed a supplemental opposition on April 6, 2023 and Defendant replied on April 11, 2023.

Discussion

In the First Motion to Vacate Renewal of Judgment, Defendant disputed that she ever had notice of this action. Defendant submitted the declaration of Roxy Root (“Root”), who declared that they lived at 3910 Calle Real, San Clemente, California since 1997. (First Motion, Root Decl., ¶1.) Root declared they met Defendant in 1993 and that Defendant has lived at the Calle Real address since 1993. (Id. at ¶¶2-3.) Root also declared that she has been the Chief Marketing Officer for Defendant’s company, which also uses the Calle Real address. (Id. at ¶4.) Finally, Root declares that they receive all mail directed to Defendant, Defendant’s company, or Root at the Calle Real address, and they have never been served with a process of summons. (Id. at ¶6.) The trial court denied the first motion to vacate 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.) Specifically, the ruling referred to the address where Defendant was purportedly served—2023 Coldwater Canyon, Beverly Hills, California—on July 13, 1998. (Id. at p. 1.) The ruling also described the contents of the proof of service:

The Proof of Service of the Summons and Complaint shows that Defendant was served by substituted service by a registered California process server. (Oppo., Exhs. 1-2.) The server attempted to serve Defendant at 2023 Coldwater Canyon, Beverly Hills, California 90210 four different times on July 8, 9, 10, and 11, 1998. (Id.) On July 11, 1998, the server left the Summons and Complaint with an adult female at the Coldwater Canyon address, and a copy of the Summons and Complaint was mailed to the Coldwater Canyon address on July 13, 1998. (Id., Exhs. 1-2.)

(Ibid.) The person with whom the papers were left was described as “Graciela Yanez, co-tenant.” (Proof of Service, filed 08/06/98, ¶3.) Defendant now submits the declaration of Ali Shazri, who owned the property located at the service address until 1999. (Motion, Shazri Decl., filed 03/20/23, p. 3:2-5.) Shazri states that Defendant rented the service address from them from August 1996 to May 1998, but maintained their residence and business address at the Calle Real address. (Id. at p. 3:2-9.) Defendant went back and forth between the Calle Real and service addresses. (Id. at p. 3:6-7.) Shazri also declares that they never had a tenant named Graciela Yanez and does not know such a person. (Id. at p. 3:9-11.) Defendant goes on to explain that their company used the service address to “accommodate the contractors that were associated with the Fannie Mae contract” and that information regarding this use was previously provided to the trial court prior to its ruling on the First Motion to Vacate.

The Court finds that this carries Defendant’s burden of proof to overcome the presumption of truth of the fact stated in the proof of service. It appears that Defendant’s business used a number of different locations for travel purposes, including the service address. (Motion, Supp. Reis Decl., pp. 5:5-7:3.) This does not mean those addresses were proper locations for service of process under Code of Civil Procedure section 415.20, which requires service at Defendant’s office, dwelling house, usual place of abode, usual place of business, or usual mailing address. (See Code Civ. Proc., § 415.20, subds. (a), (b).) The papers must also be left with the person apparently in charge of the office or a competent member of the household. (Code Civ. Proc., § 415.20, subds. (a), (b).) Defendant has presented sufficient evidence that neither of these requirements was met. The burden now shifts to Judgment Assignee to demonstrate that the service address was a proper location for service of process.

Judgment Assignee provides a supplemental opposition containing that its file notes on Judgment Debtor’s account. (Supp. Opp., Welsome Decl., Exh. A.) The file notes indicate that on August 13, 1998, Judgment Debtor called to discuss the lawsuit, demonstrating that service was accomplished. (Id. at Exh. A, p. 3 at 08/13/1998.) The supplemental opposition also attaches a Trans Union report listing Judgment Debtor’s different addresses, many of which have overlapping timeframes. (Id. at Exh. B.) The Calle Real address is listed for Judgment Debtor from August 1991 to October 2017; the Coldwater Canyon address is listed from July 1996 to March 2000. (Ibid.) Another address listed for Judgment Debtor that overlaps these timeframes is 4013 Via Manzana, San Clemente. (Ibid.) While the file notes cast doubt on Judgment Debtor’s credibility, it remains that this evidence does not demonstrate that the Coldwater Canyon address was a proper location for service under Code of Civil Procedure section 415.20. Nor does the supplemental opposition address the identity of the person to whom the papers were purportedly handed to show they were a co-tenant. Finally, the supplemental opposition relies on a statement purportedly by Shazri, disputing knowledge of the contents of the declaration they signed under penalty of perjury in support of the instant motion. (Id. at ¶7.) Judgment Assignee’s counsel spoke with Shazri regarding the declaration and they purportedly admitted they did not review the declaration before signing it. (Ibid.) This evidence, however, is inadmissible hearsay.

Therefore, Judgment Assignee has not demonstrated substantial compliance with the requirements of Code of Civil Procedure section 415.20.

Conclusion

Defendant Cathy C. Reis’ Motion to Vacate Renewed Judgment is GRANTED.

Court clerk to give notice.