Judge: Nathan Vu, Case: 2012-00557490, Date: 2022-09-26 Tentative Ruling

Motion to Vacate Renewed Judgment

Defendant Bryant Scott Burns’ motion to vacate renewed judgment is DENIED.

Defendant Bryant Scott Burns moves to vacate the renewed judgment entered 06/16/2022.

On 06/25/2012, this court entered a default judgment in favor of Plaintiff Coachella Valley Collection Service and against Defendant in the amount of $72,540.00. On 05/16/2022, this court granted Plaintiff’s application for renewal of that judgment, in the amount of $158,983.34.

Defendant seeks to vacate that renewed judgment based on Civil Procedure Code sections 473(b), 473(d), 473.5, and 1788.1, as well as Civil Code section 1788.61.

Civil Procedure Code section 473(b) provides that: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” A motion under subdivision (b) must be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (Civil Proc. Code, § 473(b).)

Section 473(d) states that a judge may, on motion of either party and after notice to the other party, set aside any judgment or order void for lack of due process or resulted from extrinsic fraud or mistake. (See County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228, citing Ansley v. Super. Ct. (1986) 185 Cal.App.3d 477, 488 and In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937.) There is no limitation on time to bring a motion under subdivision (d). (See Civil Proc. Code, § 473(d).)

Section 473.5 allows a defendant on whom service of summon has not resulted in actual notice in time to defend an action to file a motion to set aside default judgment and for leave to defend the action. (See Civil Proc. Code, § 473.5(a).) A motion under section 473.5 must be made within a reasonable time, in no case exceeding the earlier of two years after entry of the default judgment or 180 days after service of notice of the default judgment. (See Civil Proc. Code, § 473.5(a).)

Finally, Civil Code Section 1788.61 provides that in an action brought by a debt buyer in which a default or default judgment has been entered, the defendant may bring a motion similar to that allowed under Civil Procedure Code section 473.5. However, it provides for longer deadlines – the earlier of (1) six years after entry of the default or default judgment or (2) 180 days of the first actual notice of the action.

In his motion, Defendant appears to be attacking the merits of the underlying judgment, rather than the renewal of that judgment. Civil Procedure Code sections 473(b), 473(d), and 473.5 and Civil Code section 1788.61 do not allow a judgment or a renewed judgment to be vacated based on the merits of the underlying claims.

Further, Defendant points to no inadvertence, surprise, mistake, or excusable neglect that resulted in either the default judgment or the renewal of the default judgment. Nor does Defendant point to any lack of due process, any extrinsic fraud or mistake, or that service of the summons resulted in a lack of actual notice of the original action.

Finally, to the extent Defendant seeks to attack the underlying default judgment, the motion is untimely under Civil Procedure Code sections 473(b) and 473.5, and Civil Code section 1788.61, because the default judgment was entered nearly 10 years ago.