2017-00223884-CU-EN

EBF Partners, LLC vs. Axis Energy Partners, LLC

Nature of Proceeding: Motion to Vacate Default

Filed By: Lauben, Philippa

Defendant Terry’s “Motion to Vacate Default” entered on 12/15/2018 [sic] is DENIED.

Moving counsel’s notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

Both moving and opposing counsel failed to comply with CRC Rule 2.111(3) and Rule

3.1110(b)(3)-(4).

Factual Background

In 2016 plaintiff and defendants entered into a contract whereby the former agreed to purchase $52,500 of defendants’ future sales in return for payment of $35,000. In connection with this contract, defendants executed a Confession of Judgment pursuant to the laws of New York State which inter alia averred that defendants owed the stated amount to plaintiff and that the latter would be entitled to a judgment in New York if defendants defaulted.

According to plaintiff, defendants defaulted on their payments and plaintiff then sought and obtained in August 2016 a confessed judgment for the outstanding balance. Notice of entry of this judgment was thereafter mailed to defendants at their respective addresses of record.

In December 2017, plaintiff successfully applied to this court for entry of judgment on sister-state judgment against both California-based defendants. Notice of entry of this California judgment was thereafter mailed to both defendants at their respective addresses of record.

Moving Papers. According to the present notice of motion, defendant Terry now moves to vacate the default entered against him on 12/15/2018 [sic] but his moving points & authorities (incorrectly labeled as the “Motion” to “vacate default”) argues that the California judgment entered against him is improper because (1) he did not receive notice of the confessed judgment entered in New York and (2) the confessed judgment entered against him in New York does not comply with California’s own statutory requirements for confessed judgments (Code Civ. Proc. §1132 et seq.), thereby depriving defendant Terry of the opportunity to dispute the validity of the judgment as against him as well as the amount of the judgment.

Opposition. Plaintiff maintains that (1) the underlying confessed judgment in New York was properly obtained under the applicable New York laws pursuant to the affidavit of confession of judgment executed by both defendants and the present motion fails to demonstrate otherwise; (2) plaintiff is under the Full Faith and Credit Clause entitled to a California judgment on its sister-state judgment from New York regardless of California’s own procedural rules regulating the entry of judgments of confession; and (3) defendant has cited no authority suggesting that California’s own procedural rules for confessed judgments can or must be elevated above the laws applicable to the jurisdiction where the confessed judgment was originally obtained and effectively deny, despite the Full Faith and Credit Clause, a judgment based on a judgment from another state, the validity of which has not been meaningfully challenged.

Analysis

Based on the present record, the court must deny defendant Terry’s motion to vacate. First, his moving papers fail to demonstrate any substantive defect in the confessed judgment obtained in New York in 2016 and notably, defendant has failed to cite any New York law which even suggests this confessed judgment is void, voidable or invalid in any respect. As a consequence, defendant has failed to establish any legitimate basis on which to attack the California judgment on sister-state judgment entered

against both California-based defendants in December 2017.

Second, while defendant’s motion focuses primarily, if not exclusively, on California’s own procedural law relating to confessed judgment, such law appears on its face to be limited to those confessed judgments sought and obtained in California, a scenario patently distinguishable from the case at bar. Of particular note, defendant has cited no authority whatsoever for the proposition that California could, despite the Full Faith and Credit Clause, utilize its procedural rules to effectively nullify a sister-state’s judgment which has not been shown to be invalid or improper in any relevant aspect.

Finally, defendant has failed to demonstrate that the judgment on sister-state judgment which California recently issued suffers from any substantive or procedural defect which justifies the relief being sought here.

For all these reasons, defendant Terry’s motion to vacate is denied.