Judge: Mark E. Windham, Case: LAM13CM0325, Date: 2024-03-19 Tentative Ruling

Case Number: LAM13CM0325    Hearing Date: March 19, 2024    Dept: 26

Time Warner NY Cable, LLC v. Aguirre, et al.

MOTION TO VACATE RENEWAL OF JUDGMENT

(CCP § 683.110 et seq.)

TENTATIVE RULING:

Judgment Debtors Jose Aguirre and Maria Aguirre’s Motion to Vacate Renewal of Judgment is DENIED.

ANALYSIS:

On April 15, 20214 Plaintiff Time Warner NY Cable, LLC (“Judgment Creditor”) obtained a judgment against Defendants Jose Aguirre and Maria Aguirre (“Judgment Debtors”). Judgment Debtors filed an appeal on May 28, 2014, which was dismissed on July 14, 2014. The judgment was renewed on October 27, 2023.

Judgment Debtors filed the instant Motion to Vacate Renewal of Judgment on January 3, 2024. Judgment Creditor filed an opposition on March 6, 2024.

Discussion

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).) Judgment Debtor moves to vacate the renewal of judgment on the grounds that they were never served with the Summons and Complaint in this action. “[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 supported only by the conclusory declarations of Judgment Debtors who state that they lived in Florida from 2012 to 2016 and were not served with the Summons and Complaint. (Motion, Maria Aguirre Decl., p. 2; Jose Aguirre Decl., p. 3.)

The declarations, however, are not properly verified because they do not state the place of execution. A declaration must, if executed within California, state the date and place of execution, 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.)

Even if the declarations were considered admissible, they are too conclusory and unsupported to overcome the proofs of service of the Summons and Complaint in this action. “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.) 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 proofs of substitute service filed on April 23 and 24, 2014 are attested to by a registered process server and, therefore, place the burden of proof on Judgment Debtors. (Proofs of Service, filed 04/23/14 and 04/24/14, ¶7.)

The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated.  (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more, as Judgment Debtors have done here, is insufficient to overcome the presumption.  (See Yadegar, supra, 194 Cal.App.4th at 1428.) Therefore, Judgment Debtors have not carried their burden of proof to demonstrate that they lived in Florida during service of the Summons and Complaint.

Conclusion

Based on the foregoing, Judgment Debtors Jose Aguirre and Maria Aguirre’s Motion to Vacate Renewal of Judgment is DENIED.

Court clerk to give notice.