Case Number: 07K02145 Hearing Date: December 26, 2017 Dept: 77

Defendant’s Motion is DENIED.

Background

On March 28, 2017, Plaintiff C-Native Exchange I, LLC dba Time Warner Cable (“Plaintiff”) filed this action against Defendant Seung Hee Kim (“Defendant”). Default was entered against Defendant on June 26, 2007. Default judgment was entered against Defendant on August 21, 2007. On June 28, 2017, the judgment was renewed.

On October 27, 2017, Defendant filed, in pro per, a Motion to Vacate Judgment and to Dismiss (the “Motion”). On December 12, 2017, Plaintiff filed opposition. As of December 17, 2017, no reply has been filed.

Discussion

A. Service

CCP § 1005(b) states in pertinent part: “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.”

The Court notes that Defendant has failed to provide proof of service that the moving papers were served on Plaintiff. In opposition, Plaintiff does not raise the issue of service.

B. Motion to Dismiss

CCP § 581 governs how and when an action may be dismissed. Pursuant to CCP § 581, the Court finds that Defendant’s request to dismiss the instant action against her to be premature and inappropriate at this time as there is still a judgment against her and she has not satisfied the requirements of Section 581. The Court now turns to Defendant’s request to vacate the judgment.

C. Motion to Vacate Entry of Default and Default Judgment

“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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (CCP § 473(b).)

Alternatively, CCP § 473.5(a) provides: “When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

In opposition, Plaintiff contends that the Motion is untimely under CCP § 473(b) and § 473.5 to set aside the entry of default on June 26, 2007 and default judgment on August 21, 2007. The Motion was filed on October 18, 2017. The Court notes that notice of the default was served on June 26, 2007 and notice of the default judgment was served on August 31, 2007. Therefore, the Court agrees with Plaintiff that the Motion is untimely for purposes of CCP § 473(b) and § 473.5 to set aside the entry of default and default judgment.

D. Motion to Vacate Renewal of Judgment

The Court notes, however, that Defendant the renewal of judgment that was entered on June 28, 2017 may be subject to vacating.

CCP § 683.170 provides in pertinent part:

“(a) 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, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.

(b) 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.”

“A successful motion under section 683.170 does not affect the validity of the default or the default judgment. [Citation.] A successful motion under section 683.170 vacates only the renewal of the judgment thereby precluding its extended enforceability under section 683.120.” (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203-204.)

The Court notes that Defendant submits only a declaration in support of her Motion, and the declaration does not cite to any legal grounds for her Motion. (See Motion.)

i. Timeliness

The Court also notes that Plaintiff’s Proof of Service, filed on October 5, 2017, shows that on September 19, 2017, Defendant was served with a notice of renewal of judgment by mail. (October 5, 2017 Proof of Service.) Because the Motion was filed on October 18, 2017, which was less than thirty days from the date of service of the renewal of judgment, the Court finds that the Motion is timely under CCP § 683.170. The Court finds, however, that Defendant has failed to attach a proof of service showing that the Motion was served on Plaintiff.

ii. Defense to an Action on the Judgment

The Court now turns to whether there is any ground that would be a defense to this action on the judgment pursuant to CCP § 683.170(a).

In Fidelity, supra, 89 Cal.App.4th at 202–203, the Court of Appeals held that common defenses to an action on the judgment under CCP § 683.170(a) include when: (1) the judgment is not final and unconditional; (2) the judgment was obtained by extrinsic fraud; (3) the judgment was rendered in excess of jurisdiction; (4) the judgment is not enforceable in the state of rendition; (5) the plaintiff is guilty of misconduct; (6) the judgment has already been paid; (7) suit on the judgment is barred by the statute of limitations in the state where enforcement is sought. (See also Fidelity, supra, 89 Cal.App.4th at 203 [“When a party concedes that a judgment, even if valid on its face, is invalid for lack of proper service [of summons and complaint], this court must conclude the judgment is void.”].)

The Complaint alleges that within the previous three years of the filing of the Complaint (February 8, 2017), Defendant allegedly was intercepting and receiving Plaintiff’s cable television programs and services without its authorization. (Compl. ¶ 6.) The Court notes that while the Complaint does not state the address of the residence where the alleged misconduct occurred (see generally Compl.), Plaintiff states, in opposition, that the address of the residence at issue is 970 S. Kingsley Drive, Apt. 101, Los Angeles—where Defendant allegedly lived during the period of the alleged misconduct. (Opp. p. 2.)

Defendant declares that she separated from her husband around December 2003 and did not live at the S. Kingsley Drive address when the alleged misconduct occurred. (Kim Decl. ¶¶ 3-4.) Defendant suggests that someone might have committed the alleged misconduct, but it was not her. (Id. ¶¶ 3, 6.) The Court notes that Defendant’s arguments here go to the merit of the action and not to the action on judgment, which has already been rendered. Importantly, the arguments that Defendant is not liable for the alleged misconduct is not one of the common defenses to an action on the judgment provided by Fidelity, supra.

Defendant also argues that the service of process was defective, which caused the Court to render judgment in excess of its jurisdiction. The Court notes that the Proof of Service of the Summons and Complaint shows that Defendant was personally served at 3060 Buchingham Road, Los Angeles, California 90016 on May 15, 2007. (June 26, 2007 Proof of Service.) Defendant, however, declares that from March 1, 2007 to March 2012, she was working and living at a different address, 1101 S. Gramercy Place, Los Angeles, California 90019, so she could not have been personally served. (Kim Decl. ¶ 5.)

A proof of service containing a declaration from a registered process server invokes a presumption of valid service. (See American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390; see also Evid. Code § 647.) This presumption is rebuttable. (See id.) The party seeking to defeat service of process must present sufficient evidence to show that the service did not take place as stated. (See Palm Property Investments, LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1428; cf. People v. Chavez (1991) 231 Cal.App.3d 1471, 1483 [“If some fact be presumed, the opponent of that fact bears the burden of producing or going forward with evidence sufficient to overcome or rebut the presumed fact.”].) Merely denying service took place without more is insufficient to overcome the presumption. (See Yadegar, supra, 194 Cal.App.4th at 1428.)

The Court finds that Defendant is merely denying she was working at the Buchingham Road address when she was purportedly personally served the Summons and Complaint, which is insufficient to rebut a presumption of valid service and to demonstrate that she has a defense to an action on the judgment.

For the foregoing reasons, the Motion is DENIED.

Moving party to give notice.