Judge: Mark H. Epstein, Case: SC078274, Date: 2023-04-06 Tentative Ruling

Case Number: SC078274    Hearing Date: April 6, 2023    Dept: R

The motion to set aside the renewed judgment is DENIED.  Essentially, plaintiff asserts that it obtained a judgment against the defendant in August 2004.  Defendant asserts that plaintiff agreed that it would not pursue the judgment if defendant agreed that it would not sue plaintiff in a different action.  The judgment was allegedly not pursued, but neither was it vacated.  In 2013, before the judgment expired, plaintiff renewed it.  And in 2022, it was renewed again. 

The objections filed in reply by Jakubaitis are OVERRULED.  As counsel of record, the declarant has adequate foundation for the things to which there is attestation.

Defendant seeks to vacate the renewal.  According to defendant, the initial renewal was never properly served and therefore it is of no moment.  Defendant asserts that it learned of the whole thing when, in 2022, it got a notice of renewal (that would be the second renewal) sent to an out of state PO box.  Among other things, defendant challenges plaintiff’s requests for costs, which defendant asserts had to be filed within 15 days of entry of the judgment.

The court need not address the cost issue.  The motion is not to tax costs; it is to vacate the renewal of the judgment.  Whether the costs are valid or collectible is not at issue today. 

Defendant asserts that there was no valid service of the renewal.  According to defendant, the proof of service is wrong and the process server likely committed perjury because the POS was signed before the document was actually mailed.  And, in any event (according to defendant), it was never received.  Because the first renewal was not received, defendant lost the practical ability to object to it, which defendant contends is a denial of due process.  Defendant also contends that plaintiff’s promise to forbear enforcement is binding.

None of these arguments is persuasive.  It might well be that defendant never got notice of the first renewal.  That is not uncommon, the court would suggest.  As defendant properly states, once the case is over defendant is under no obligation to tell plaintiff or the court defendant’s whereabouts.  Defendant is free to move without filing a notice of change of address in court; defendant need not inform the plaintiff.  The law is not that if the plaintiff does not find and serve the defendant promptly with the renewal (which is generally 10 years or so after judgment) then the renewal is invalid.  Rather, the penalty for not properly serving the defendant with the renewal is that the time for defendant to challenge the renewal does not generally begin to run until proper service is made.  (Code Civ. Proc. §683.170; American Contractors Indemnity Co. v. Hernandez (2022) 73 Cal.App.5th 845.)  That remedy makes sense.  Any attempt to enforce the judgment will be subject to attack (to the extent there are grounds to attack the renewal) once the judgment debtor first gets notice.  Even if notice is not received until years after the renewal, the judgment debtor, once notice is received, may timely object to the renewal if there are grounds to do so.  The remedy of making the judgment unenforceable is far too harsh and nothing in the Code of Civil Procedure so requires.  Indeed, the mere filing of an application for renewal has the effect of renewing the judgment and all that is required in the application regarding the debtor’s location is the last known address.  (Code Civ. Proc. §§683.120; 683.140.)  Therefore, defendant is just wrong that the failure to serve the renewal of the judgment means that the judgment was not renewed.

As to defendant’s contention that plaintiff promised to forebear, of course that might well be a defense against enforcement of the judgment.  (Plaintiff denies any such agreement.)  But it is not a ground to vacate the renewal.  At most, it is a claim that the judgment cannot be enforced as against this defendant, and, to that extent, defendant is free to raise that issue in a procedurally appropriate manner.  And, of course, the court is making no comment on whether such an argument would prevail.

Finally, defendant asserts in reply that there is no judgment at all.  Of course, if there is no judgment, then the judgment cannot be renewed.  However, the failure of plaintiff to enclose a signed judgment is not fatal.  If there is a judgment anywhere on file, that is enough. The court has reviewed the docket.  The court file (of which the court takes judicial notice) shows that judgment was entered on August 25, 2004.  (And the judgment is signed.)  Defendant can pull the judgment from the court’s web site.

In short, defendant makes no argument sufficient to vacate the renewal.  Its motion is, therefore, DENIED.