17CV312565

MS Services, LLC vs Connie Martin

Defendant Connie Martin seeks to set aside and vacate the clerk’s judgment entered against her, vacate the assignment order that is predicated on this clerk’s judgment, and dismiss the case outright. Plantiff MS Services, LLC opposes all of these requests.

1. “ ‘[A] judgment that is void on the face of the record is subject to either direct or collateral attack at any time. [Citations.]’ [Citation.]” (Gassner v. Stasa (2018) 30 Cal.App.5th 346, 356.) This is true of default judgments, whether entered by the clerk or a judge. Therefore, whether Defendant is time-barred from using the procedure outlined in Code of Civil Procedure section 585.5 is not dispositive.

2. Defendant raises two primary reasons why the judgment against her is void. First, she claims improper substituted service. There is a rebuttable presumption that a written proof of service is valid, however. Defendant has not overcome that presumption, as the Court believes it likely, based on the factual record, that the “Darrell Jones” who was served is the same Darryl Johnson with whom defendant lives.

Second, she argues that the clerk’s judgment is void because plaintiff hid the fact this was an action subject to the Rees-Levering Act (e.g., by checking the wrong box on the request for entry of default/clerk’s judgment), and argues that a clerk’s judgment is inappropriate because of the findings that need to be made before a deficiency judgment can be had.

“A judgment or order is said to be void on its face when the invalidity is apparent upon an inspection of the judgment-roll. [Citation.]” (Morgan v. Clapp (1929) 207 Cal. 221, 224; accord F.E.V. v. City of Anaheim (2017) 15 Cal.App.5th 462, 471.) When the defendant has defaulted, the judgment roll consists of “the summons, with the affidavit or proof of service; the complaint; the request for entry of default with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment; if defendant has appeared by demurrer, and the demurrer has been overruled, then notice of the overruling thereof served on defendant’s attorney, together with proof of the service; and in case the service so made is by publication, the affidavit for publication of summons, and the order directing the publication of summons.” (Code Civ. Proc., § 670, subd. (a).).

Here, it appears from an inspection of the judgment roll that: a) Plaintiff was seeking a deficiency judgment under the Rees-Levering Act (see generally Ex. B to 12/27/17 Olson Decl.) ; and b) items and findings required for a deficiency judgment under the Rees-Levering Act (e.g., venue, declaration concerning type of sale of the vehicle, etc.) were not presented to the clerk. The Court agrees that a clerk’s judgment is inappropriate for this type of default judgment, given the findings that need to be made by a judicial officer.

3. Therefore, the Court GRANTS the motion to set aside the default and default judgment. And given that the assignment order is based on this judgment, the Court GRANTS the motion to vacate the assignment order.

4. The Court, however, DENIES, at this time, the motion to dismiss the action under Civil Code section 2984.4, subdivision (c). Instead, as allowed under this statute, the Court orders Plaintiff to file an affidavit stating facts showing that the action has been commenced in the proper superior court and the proper court location for the trial of the action. That affidavit must be filed within 20 days of this order. (The Court takes no position on whether the complaint needs amending for other reasons, such as compliance with the Rees-Levering Act.) This way, we can get to the merits of the case.