Judge Mark E. Windham, Case Number: LAM11CD3590, Date: 2023-05-22 Tentative Ruling

Judge: Mark E. Windham, Case: LAM11CD3590, Date: 2023-05-22 Tentative Ruling

Case Number: LAM11CD3590 Hearing Date: May 22, 2023 Dept: 26

Doi v. St. Andrew, et al.

MOTION TO VACATE JUDGMENT

TENTATIVE RULING:

Defendant Jasper St. Andrew’s Motion to Vacate Default and Default Judgment is DENIED.

ANALYSIS:

Plaintiff Glenn Doi (“Plaintiff”) filed the instant unlawful detainer action against Defendants Melizza St. Michael aka Tammy St. Michael aka Melizza St. Andrew (“Melizza St. Andrew”) and Jasper St. Andrew (“Defendant”) on January 28, 2002. The case was previously assigned case number 02C00227 and Defendant filed an Answer on February 1, 2002. Following a motion for summary judgment, judgment was entered in Plaintiff’s favor on March 7, 2002. The judgment was renewed on September 14, 2011, at which time the case number was changed to DOW11C03590. The case number changed to LAM11CD3590 on March 15, 2013 and the judgment was renewed again on May 17, 2021.

An order for Appearance and Examination was scheduled for August 1, 2022 and Defendant appeared and provided sworn testimony. (Minute Order, 08/01/22.) The examination was continued to September 26, 2022, but neither party appeared. (Minute Order, 09/26/22.) The examination was re-set for December 19, 2022 at which time Defendant appeared again. (Minute Order, 12/19/22.)

The examination was continued to January 30, 2023, then again multiple times to March 20, 2023. (Ibid.)

Defendant filed the instant Motion to Remove Default on December 27, 2022. Plaintiff filed an opposition on January 23, 2023 and an opposition declaration on February 24, 2023. The Motion came for hearing on March 20, 2023 at which time the Court noted that it was not accompanied by a proof of service showing service of the moving papers and notice of the hearing date on Plaintiff. (Minute Order, 03/20/23.) The ruling also noted that the Motion was not accompanied by a proper memorandum of points and authorities and continued the matter to allow Defendant to file a supplemental brief and demonstrate service of all the moving papers. (Ibid.)

Defendant filed a supplemental memorandum of points and authorities on April 24, 2023. Plaintiff filed a supplemental opposition on May 5, 2023.

Discussion

As with the initial moving papers, the supplemental memorandum is also not accompanied by a proof of service showing service on Plaintiff. The Court previously informed Defendant that 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 .) It appears that Plaintiff became aware of the supplemental papers and filed a supplemental opposition, thereby waiving any defect in notice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

The supplemental memorandum of points and authorities includes citation to legal authority, as required by the California Rules of Court. The motion is brought pursuant to Code of Civil Procedure section 473.5 on the grounds that Defendant never received actual notice of the action. Relief under Code of Civil Procedure section 473.5, however, is not possible because it is barred by a statutory deadline of two years after entry of judgment. (Code Civ. Proc., § 473.5, subd. (a).) The judgment in this action was entered more than 20 years ago.

Although described as lack of actual notice, Defendant essentially contends that he was never served in this action, which is also grounds for to vacate the judgment. (Motion, Supp. St. Andrew Decl., ¶2.) Plaintiff’s opposition points out that Defendant may be entitled to equitable relief where the judgment is shown to be void. (Opp., p. 2:19-22 [citing County of San Diego v. Gorham (2010) 186 CalApp.4th 1215, 1228].) If the judgment is void for lack of service of the Summons and Complaint, the Court must vacate it, as the Court of Appeals explains eloquently:

[W]here it is shown that there has been a complete failure of service of process upon a defendant, he generally has no duty to take affirmative action to preserve his right to challenge the judgment or order even if he later obtains actual knowledge of it because “[w]hat is initially void is ever void and life may not be breathed into it by lapse of time.” (Morgan, supra, 105 Cal.App.2d at p. 731, 234 P.2d 319.) Consequently under such circumstances, “neither laches nor the ordinary statutes of limitation may be invoked as a defense” against an action or proceeding to vacate such a judgment or order. (Id. at p. 732, 234 P.2d 319.) And, where evidence is admitted without objection that shows the existence of the invalidity of a judgment or order valid on its face, “it is the duty of the court to declare the judgment or order void.” (Thompson v. Cook (1942) 20 Cal.2d 564, 569, 127 P.2d 909 (Cook ).)

(Ibid.) Although Plaintiff argues that a court may exercise its discretion to deny relief on equitable grounds if it would impair another person’s substantial interest in reliance on the judgment, this is not an accurate statement of the law. Rather, Gorham holds that the court may deny a defendant equitable relief from a void judgment if “(1) The party seeking relief, after having had notice of the judgment, manifested an intention to treat the judgment as valid; and (2) Granting the relief would impair another person's substantial interest of reliance on the judgment.” (Id. at 1229 [citing Rest.2d Judgments, § 66].) Plaintiff offers no evidence of the first factor: that Defendant manifested an intention to treat the judgment as valid.

However, the record does not demonstrate a complete failure of service of process upon Defendant. The Court does not have a copy of the original proof of service in this action as to Defendant, which was filed on February 28, 2002. Neither party describes the contents of that proof of service so it is not even known in what manner—personal or substitute—Defendant was purportedly served. Only proof of service of the action by substitute service on the unnamed tenants is available. (See Proof of Service, filed 02/28/02.) Defendant contends he did not know anything about the property that is the subject of this unlawful detainer action (12212 Everest Street, Norwalk, California) and where the lawsuit was purportedly served. (Motion, Supp. St. Andrew Decl., ¶¶2-3.) In opposition, Plaintiff presents evidence that Defendant and his wife, Melizza St. Andrew, submitted a rental application for the Everest Street property. (Opp., Silverstein Decl., Exh. 4.) Defendant disputes that he signed the rental application and points out that his signature as evidenced on his driver’s license looks different from his purported signature on the rental application. (Compare, Opp., Silverstein Decl., Exh. 4, p. 3; Motion, Supp. St. Andrew Decl., Exh. E.) While Defendant’s signature on his driver’s license does indeed look different from the one on the rental application, the two signatures on the rental application look remarkably similar. (Opp., Silverstein Decl., Exh. 4, p. 3.) This suggests that one person signed for both Defendant and Melizza St. Andrew on the rental application. Defendant declares that his identity was stolen. (Motion, Supp. St. Andrew Decl., ¶9.) This declaration lacks credibility because both Defendant and Melizza St. Andrew were purportedly served in the original unlawful detainer action and attorneys for Melizza St. Andrew reached out to Plaintiff’s counsel regarding their efforts to collect on the judgment. (Opp., Silverstein Decl., ¶9f and Exh. 5.) There was no contention by Melizza St. Andrew or her attorneys of identity theft or that the unlawful detainer judgment was improper. (Ibid.) Therefore, it appears that Melizza St. Andrew signed the rental agreement for the Everest Street property and it strains credulity that Defendant was unaware his wife did so, or that she was served and filed an answer in the unlawful detainer action.

Finally, the record reflects that Defendant filed an answer in this action on February 1, 2002. Defendant has not shown that he was not the person who filed the answer, nor that by filing the answer, any defect in service of the Summons and Complaint was not waived and Defendant submitted to the jurisdiction of the Court. (See Code Civ. Proc., § 410.50, subd. (a).) As with the rental application signature issue, Defendant submits a conclusory statement in his declaration that he did not file the answer. This evidence is not sufficient to show that Defendant was not served in this action as required by statute such that the judgment should be deemed void.

Conclusion

Based on the foregoing, Defendant Jasper St. Andrew’s Motion to Vacate Default and Default Judgment is DENIED.

Court clerk to give notice.