Fidelity Creditor Service, Inc. v. Browne

• Decision Date: 18 May 2001
• Docket Number: No. B138713.,B138713.
• Citation: 89 Cal.App.4th 195,106 Cal.Rptr.2d 854
• Court: California Court of Appeals Court of Appeals
• Parties: FIDELITY CREDITOR SERVICE, INC., Plaintiff and Respondent, v. W. Stevenson BROWNE, Defendant and Appellant.

106 Cal.Rptr.2d 854

89 Cal.App.4th 195

FIDELITY CREDITOR SERVICE, INC., Plaintiff and Respondent, v. W. Stevenson BROWNE, Defendant and Appellant.

No. B138713.

Court of Appeal, Second District, Division 5.

May 18, 2001.

Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Eve H. Cervantez, Gina M. Roccanova and Amy E. Margolin, San Francisco, for Defendant and Appellant.

Law Offices of Robert L. Susnow and Robert L. Susnow, Los Angeles, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Renewal of a judgment is a ministerial act performed by a court clerk upon receipt of an application for renewal. (Code Civ. Proc., § 683.120, subd. (b), 683.150 subd. (a);¹ Beneficial Financial, Inc. v. Durkee (1988) 206 Cal.App.3d 912, 915, 254 Cal.Rptr. 351.) Section 683.150, subdivision (a) states: "Upon the filing of the application, the court clerk shall enter the renewal of the judgment in the court records." Section 683.170 allows a judgment debtor to move to vacate the renewed judgment.² W. Stevenson Browne (defendant) appeals from an order denying his section 683.170 motion to vacate the renewal of a judgment. Defendant argues that because the parties accepted as a fact he was never served with the summons and complaint, the timely motion to vacate the renewal should have been granted. We agree. We direct the trial court, on remand, to enter an order granting defendant's motion.

II. DISCUSSION

A. Background

In October 1989, a default judgment was entered against defendant in an action brought by John W. White. Mr. White subsequently assigned the money judgment to Fidelity Creditor Service, Inc. (Fidelity). In August 1999, Fidelity filed an application for renewal of the judgment. The renewal was entered. (§ 683.150, subd. (a).) On August 24, 1999, notice of renewal of the judgment was served on defendant by mail.

Defendant filed a motion to vacate renewal of the judgment pursuant to section 683.170. Defendant asserted he was never served with the summons and complaint. Defendant declared he first learned of the lawsuit "well after" the default judgment was entered. Defendant presented evidence in support of those claims. Fidelity opposed the motion. Significantly, Fidelity conceded for purposes of defendant's motion that he was not properly served with the summons and complaint. The proof of service in the record shows defendant was served with the summons and complaint by substituted service at a business address. However, there was no evidence valid substituted service was accomplished. Further, there was no evidence defendant was ever personally served with a summons and complaint. Fidelity stated in its trial court brief: "[F]or purposes of this motion only, Fidelity will not dispute service of process. This is only because service was by substituted service and Fidelity has no way of disproving [d]efendant's claim that he did not reside at the place at which he was sub-served." The trial court denied the motion. The trial court ruled defendant had not established the judgment was void on its face and therefore could not seek relief under section 473. Further, the trial court ruled defendant could not attack the judgment for improper service pursuant to section 473.5 more than two years after it was entered.

B. Standard of Review

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. (Cf. Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal. App.4th 74, 88, 15 Cal.Rptr.2d 585 [§ 1710.40]; Tom Thumb Glove Co. v. Han (1978) 78 Cal.App.3d 1, 5, 144 Cal.Rptr. 30 [same].) On appeal, we examine the evidence in a light most favorable to the order under review and the trial court's ruling for an abuse of discretion. (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., supra, 12 Cal. App.4th at pp. 88-89, 15 Cal.Rptr.2d 585)

In addition, we must interpret the provisions of section 683.170 and related debt collection statutes. In doing so, we apply the following standard of statutory review described by our Supreme Court: "When interpreting a statute our primary task is to determine the Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826, 25 Cal.Rptr.2d 148, 863 P.2d 218; People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163.) Further, our Supreme Court has noted: "`If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute)....'" (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.) However, the literal meaning of a statute must be in accord with its purpose, as our Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659, 25 Cal.Rptr.2d 109, 863 P.2d 179: "We are not prohibited `from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute] ....' [Citation.]" We must construe similar statutes, i.e., those in pari materia, to "achieve a uniform and consistent legislative purpose." (Isobe v. Unemployment Ins. Appeals Bd. (1974) 12 Cal.3d 584, 590-591, 116 Cal.Rptr. 376, 526 P.2d 528; accord People v. Black (1982) 32 Cal.3d 1, 7, fn. 3, 184 Cal.Rptr. 454, 648 P.2d 104.) In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299, our Supreme Court added: "The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation];

C. Failure to Serve the Summons and Complaint Constitutes Grounds to Vacate Renewal of a Judgment

A money judgment is enforceable for 10 years from the date of its entry. (§§ 683.020, 683.030; Green v. Zissis (1992) 5 Cal.App.4th 1219, 1222, 7 Cal. Rptr.2d 406.) However, there are two alternative methods to extend the life of a money judgment. First, a judgment creditor may file a separate action on the judgment. A judgment creditor may bring an independent action on a judgment even after the 10 year enforceability period has expired if the 10-year statute of limitations in section 337.5 has not yet run. (§ 683.050; Green v. Zissis, supra, 5 Cal. App.4th at p. 1222, 7 Cal.Rptr.2d 406; Pratali v. Gates (1992) 4 Cal.App.4th 632, 636-639, 5 Cal.Rptr.2d 733; Cal. Law Revision Com. com., 17 West's Ann.Code Civ. Proc. (1987 ed.) foll. § 683.020, p. 72.) The Law Revision Commission comment to section 683.050 explains as follows: "Section 683.050 makes clear that the 10 year period of enforcement prescribed by Section 683.020 and the renewal procedure provided by Article 2 (commencing with Section 683.110) do not affect the right to bring an action on a judgment. The limitation period for commencing the action is prescribed by Section 337.5. The 10-year period provided by Section 683.020 and the 10-year statute of limitations provided by Section 337.5 are not coterminous. The period prescribed in Section 683.020 commences on the date of entry and is not tolled for any reason. The statute of limitations commences to run when the judgment is final [citation] and may be tolled such as by the debtor's absence from the state (see Section 351)." (Cal. Law Revision Com. com., 17 West's Ann.Code Civ. Proc, supra, foil. § 683.050, p. 75; Green v. Zissis, supra, 5 Cal.App.4th at pp. 1222-1223, 7 Cal.Rptr.2d 406; Pratali v. Gates, supra, 4 Cal.App.4th at pp. 636-637, 5 Cal.Rptr.2d 733.) Alternatively, a judgment creditor may, as here, renew a judgment for an additional 10 years. (§ 683.110 et seq.)

The statutory renewal procedure enacted in 1982 (Stats.1982, ch. 1364, § 2, pp. 5073 et seq.) was not intended to replace the then existing method to extend the life of a judgment—an independent action on the judgment. The statutory renewal procedure was intended to save time and money while remaining fair to the judgment debtor by affording him or her the opportunity to assert any defense that could have been asserted in an independent action. (Cf. Tom Thumb Glove Co. v. Han, supra, 78 Cal.App.3d at p. 7, 144 Cal.Rptr. 30; Silbrico Corp. v. Raanan (1985) 170 Cal.App.3d 202, 206, fn. 3, 216 Cal.Rptr. 201.) Accordingly, the Legislature directed that a trial court may vacate renewal of a judgment "on any ground that would be a defense to an action on the judgment ...." (§ 683.170, subd. (a); In re Marriage of Thompson (1996) 41 Cal.App.4th 1049, 1058, 48 Cal. Rptr.2d 882.)

We turn to the question whether the complete failure to have ever served process on a defendant is a defense to an action on the judgment and therefore can be raised on a section 683.170 motion. There are few published decisions construing section 683.170. None of those decisions address lack of service of the summons and complaint in connection with a section 683.170 motion to vacate a clerk's renewal of a judgment. (See Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4th 1361, 1363, 64 Cal.Rptr.2d 4 [suspended corporation cannot renew a judgment]; In re Marriage of Thompson, supra, 41 Cal. App.4th at p. 1058, 48 Cal.Rptr.2d 882 [satisfaction of judgment is a...