Case Number: 08K08151 Hearing Date: October 01, 2018 Dept: 94

Defendant Jose Urzua’s Motion for Order Vacating the Renewal of Judgment and Quashing the Writ of Execution is granted.

Discussion

Plaintiff Erin Capital Management, LLC (“Plaintiff”) filed the instant action for breach of contract and common counts against Defendant Jose Urzua (“Defendant”) on April 1, 2008. Default judgment was entered against Defendant on September 2, 2008. The application for renewal of judgment was granted on April 25, 2018. Defendant filed the instant motion to vacate the renewal of judgment on September 4, 2018. To date, no opposition has been filed.

Defendant seeks to set aside the renewal of judgment, and to dismiss the instant action on the grounds that he was never served with the Summons and Complaint in the underlying action, therefore, the default and default judgment was entered against him without due process of law.

Code of Civil Procedure, section 683.170(b) states in full:

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.

(Code Civ. Proc., § 683.170(b).) Notice of the renewal of judgment was served on Defendant by mail to 8055 Lloid Avenue, Hollywood, California. (Proof of Service, filed 05/07/18.) This is not Defendant’s correct address. Rather, Defendant contends that his address is 8055 Lloyd Avenue, North Hollywood, California. (Motion, Urzua Decl., ¶10.) As Defendant has demonstrated that he did not receive notice of the renewal of judgment, the 30 day timeline for filing the instant motion is not application.

Defendant also presents evidence that he was not served with the Summons and Complaint in this action. A court can vacate the renewal of a judgment on “any ground that would be a defense to an action on the judgment.” (Code Civ. Proc., § 683.l70(a); see also In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058.) Defendant presents evidence that the Proof of Service is false because he was not living at the purported service address of 207 1/2 South Gage Avenue, Los Angeles, California at the time of purported service. (Motion, Urzua Decl., ¶¶2, 4.) That was Defendant’s aunt’s address. (Ibid.) Defendant was living at 9738 Helen Avenue, Shadow Hills, California, as evidenced by documents from the Social Security Administration and Department of Treasury. (Id. at ¶¶5-7 and Exhs. C-D.) Nor was Defendant notified of this action by any other means. (Ibid.) Plaintiff offers no opposition to this evidence.

Based on the foregoing, Defendant has demonstrated that he was not served with the Summons and Complaint pursuant to any statutory method, and that the renewal of judgment must be vacated.

Moving party to give notice.