07AM00591

Union Adjustment Co., Inc. vs. Lawrence W. Eutsey

Nature of Proceeding: Motion to Vacate and Set Aside Renewal of Judgment

Filed By: Joya, Heidi

Defendant Lawrence Eutsey’s unopposed motion to “vacate and set aside the renewal of judgment, recall and quash writ of execution, and return property levied upon,” is granted provided proof of service is filed at or prior to the hearing. If proof of service is not filed, the motion will be dropped.

Defendant seeks to set aside the renewal of judgment entered on July 3, 2017, and also seeks an order recalling and quashing any writ of execution issued thereunder. Defendant argues that he was never served with the summons and complaint and also was not served with the renewal of judgment. Defendant’s default was entered on March 19, 2007 and default judgment was entered on July 10, 2007. Plaintiff Union Adjustment Co., Inc. filed the application for renewal of judgment which was entered on July 3, 2017.

Defendant argues that the proof of service of summons is false. The proof of service indicates that the summons and complaint were left with a “John Doe” described as tan, 5’8”, 230 lbs. and in his 40s. Defendant’s evidence shows that at the time of service, there was no one matching that description at the service address and that the only people living there were Defendant, his two young children and his wife. (Lawrence Eutsey Decl. ¶ 4; Monique Eutsey Decl. ¶ 5; Laura Goodson Decl. ¶ 5; Debbie Eutsey Decl. ¶ 5.) Defendant himself is 6’1” tall and was almost 430 lbs. in 2007. (Lawrence Eutsey Decl. ¶ 7; Monique Eutsey Decl. ¶ 7.) Defendant’s sister visited the family weekly at the time Defendant resided at the service address and she does not recognize the description of the “John Doe.” (Laura Goodson Decl. ¶ 6.) Further, Defendant never received the summons and complaint through the mail. (Lawrence Eutsey Decl. ¶ 9.) In addition, his wife never received a copy of the papers. (Monique Eutsey Decl. ¶ 8.) Defendant never received the notice of renewal of judgment as it was mailed to an incorrect address. (Lawrence Eutsey Decl. ¶ 10.)

“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.” (CCP §

683.170(a).) While a motion to vacate a renewal generalluy must be made no later than 30 days after service of the notice of renewal, here, Defendant’s declaration indicates that he was never properly served with the renewal. (CCP § 683.170(b).) Defective service of process provides a basis to vacate a renewed judgment. (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 202.) A successful motion under § 683.170 vacates only the renewal of the judgment, precluding its extended enforceability under § 683.120. (Id. at 203-204.) It does not affect the validity of the default or default judgment. Here, Defendant has shown that he was never served with the summons and complaint as no one matching the description of the “John Doe” who was purportedly served resided at the service address. As discussed above, defective service provides a basis to vacate a renewed judgment. (Fidelity Creditor Service, Inc., supra, 89 Cal.App.4th at 202.) Defendant was not required to show a meritorious defense in order to succeed on a motion to vacate under CCP § 683.170. (Id. at 206.)

Given the showing that Defendant was never served with the summons and complaint, and given the lack of opposition, the renewal of judgment is set aside.

In addition, the writ of execution issued on November 29, 2017 based on the renewed judgment is recalled and quashed. “A judgment, when vacated, cannot be effective for any purpose.” (Levy v. Drew (1935) 4 Cal.2d 456, 459.) Further, any funds levied upon in Defendant’s bank accounts must be returned to Defendant forthwith.

Again, if proof of service is not filed, the motion will be dropped. If no proof of service is filed, then the Court will proceed with the hearing on Defendant’s claim of exemption which was continued to today’s date to be heard with the instant motion to set aside.