03AM07146

Retailers Credit Association vs. Herman C Garcia Sr

Nature of Proceeding: Motion to Vacate Renewal or Set Aside the Default and Default

Filed By: Garcia Sr, Herman C.

This matter was continued to this date in order for Defendant to provide Plaintiff notice
of oral argument. For ease of reference, the prior tentative ruling is repeated below.

Defendant Herman A. Garcia Sr.’s motion to vacate renewal or set aside the default
and default judgment is ruled upon as follows.

This is an action for breach of contract for failure to pay medical bills. The default and
default judgment were entered on or about December 12, 2003. On August 21, 2013,
Plaintiff served via mail a notice of renewal of judgment and application for renewal of
judgment.

Timeliness of Motion

Plaintiff opposes the motion on the grounds that it is not timely pursuant to CCP
§683.170(b). Pursuant to CCP § 683.170, a renewal of a judgment may be vacated on
any ground that wouldbe a defense to the action on the judgment. (CCP § 683.170(a).)
The motion must be made not later than 30 days after service of notice of renewal.
(CCP § 683.170(b).)

Here, the notice of renewal was served via mail on August 21, 2013. Pursuant to CCP
1013(a) any right or duty to act or respond is extended by five calendar days when
served by mail. Thus, Defendant was required to file the motion by no later than
September 25, 2013. Defendant filed the instant motion on September 23, 2013.
Thus, the motion was timely filed.

Grounds to Vacate

The judgment debtor bears the burden of proving, by a preponderance of the
evidence, that he or she is entitled to relief under section 683.170. (Fid. Creditor Serv.
v. Browne (2001) 89 Cal. App. 4th 195, 199.) “Defective service of process is a
defense which may be raised on a motion to vacate renewal of a judgment.” (Id.)

Defendant moves to vacate the renewal of judgment on the grounds that he was never
served with the summons and complaint in this lawsuit. The proof of service indicates
that Defendant was served via substitute service on October 6, 2003. The
summons/complaint was served at “Overcomers Home, 2733 Branch St, #3,
Sacramento, CA 95815.” They were served on “John Doe (refused to give name)
(B/M; 40; BLK Hair; 5’10”) Co-Resident.”

Defendant’s declaration states that he had no knowledge that his lawsuit existed prior
five months ago, when his paycheck was garnished. (Declaration of Herman A.
Garcia, Sr.) After his paycheck was garnished, he immediately contacted Plaintiff’s counsel. (Id.) At that time, he did not attempt to set aside the judgment because
Plaintiff’s attorney agreed to accept $100 per month, based on the remaining judgment
balance of $1,629.79. (Id.) The application for renewal of judgment, however, sought
$3,350.73, which included $1690.94 in interest after judgment and $30 filing fee for
renewal application.

Defendant indicates that due to the age of the file, he was unable to obtain the file prior
to the deadline for filing the instant motion. He indicates that he will file a
Supplemental Declaration. (Id.) He believes that at the time that service was
attempted, he was in the hospital. (Id.)

However, as of the time posting this ruling, the Court has not received a copy of
Plaintiff’s supplemental declaration. Thus, Plaintiff has not proffered evidence
demonstrating that he was not properly served via substitute service.

Accordingly, the motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.