Case Number: TC020321 Hearing Date: March 06, 2018 Dept: A

# 11. Acme Heating & Air Conditioning Co, Inc. v. Oralia M. Quintero, et al.

Case No.: TC020321

Matter on calendar for: Motion to dismiss

Tentative ruling:

I. Background

This case commenced in 2007. Default judgment was entered against Defendant Oralia Quintero on September 24, 2007. On June 13, 2016, Plaintiff Acme Heating & Air Conditioning Co, Inc. filed an Application for Renewal of Judgment. The Court granted it. On August 15, 2017, Defendant filed a Motion to Vacate the Renewal of Judgment for failure to serve her with the Summons and Complaint. The Court granted this motion on December 4, 2017, and instructed Defendant to respond to the Complaint.

II. Analysis

Defendant now moves to dismiss the action. CCP § 683.170 states: “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…” The failure to have validly served a summons and complaint is a defense to an action on a judgment. (Hill v. City Cab etc. Co. (1889) 79 Cal. 188.) Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203 states: “A successful motion under Section 683.170 does not affect the validity of the default or the default judgment… A successful motion under Section 683.170 vacates only the renewal of the judgment thereby precluding its extended… enforceability under section 683.120.” Defendant argues that, since Plaintiff can no longer enforce the judgment, the Court should dismiss the action.

The Court grants Defendant’s Request for Judicial Notice under Evidence Code § 452.

Plaintiff appears to argue that Defendant failed to act with diligence in bringing her motion to vacate. But the Court ruled on that motion on December 4, 2017. Plaintiff has not asked the Court to reconsider that ruling. Plaintiff’s Request for Judicial Notice appears to be geared toward relitigating the previous motion to vacate. It is denied on relevance grounds.

Plaintiff also claims that this motion to dismiss is an equitable one, and invokes the equitable defense of laches. Yet Plaintiff cites to no authorities showing that this motion to dismiss is an equitable one. Rather, Plaintiff has explicitly moved under CCP §§ 683.170, 583.250, and 583.360.

The Court grants this motion to dismiss pursuant to CCP § 683.170 and Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195.

The Court also grants this motion under CCP §§ 583.250 and 583.360. CCP § 583.250 mandates dismissal if a plaintiff does not serve a defendant within three years, while CCP § 583.360 mandates bringing a case to trial within five years after commencement of the action. This case was filed in 2007. The tolling provisions in CCP § 583.340(c) must be based on “a period of impossibility, impracticability or futility, over which plaintiff had no control.” Failure to serve generally does not satisfy this standard. (Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1102-1103.) [Citations omitted.]

III. Ruling

The Court grants Defendant’s motion to dismiss the action. Defendant must file, serve, and lodge a proposed order incorporating such parts of this tentative ruling as become the order of the Court.