Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Victor H. Person, Judge, Los Angeles County Super. Ct. No. BC 058756.
Law Offices of Barry M. Wolf, Barry M. Wolf; Orren & Orren, Tyna Thall Orren; The Law Office of Richard L. Enkelis, Richard L. Enkelis for Defendant and Appellant.
William G. Wilson for Plaintiff and Respondent.
EPSTEIN, P. J.
Sherman Mazur appeals the denial of his motion to vacate the renewal of a money judgment against him. He claims the renewal is void for lack of jurisdiction and that substantial evidence does not support the trial court’s finding that his motion to vacate the renewal was untimely. We conclude the trial court exceeded its jurisdiction by renewing the judgment before the procedural prerequisites for doing so had been met, and that the renewal was voidable by a timely direct attack. Because no substantial evidence was timely presented to the trial court to support the finding that Mazur’s motion to vacate was untimely, we reverse.
FACTUAL AND PROCEDURAL HISTORY
On July 12, 1994, a money judgment was entered against appellant in the Los Angeles Superior Court. On June 7, 1995, the original judgment creditor (Christopher Page) assigned the judgment to Duke Salisbury. On February 28, 2002, Salisbury agreed to assign the judgment to respondent Realwealth Corporation. The same day, Salisbury executed an “APPLICATION FOR AND RENEWAL OF JUDGMENT.” It was served by mail on appellant at 316 Adelaide Street, Santa Monica, California (the Santa Monica residence), on April 10, 2002 and submitted to the court for filing on April 16, 2002. It is not clear from the record what happened to Salisbury’s application for renewal of the judgment, but apparently it was never accepted. On August 22, 2002, Salisbury assigned the judgment to respondent.
Between August 22, 2002 and July 12, 2004, respondent repeatedly applied for renewal of the judgment, but all of its applications were rejected for technical defects. On July 12, 2004, the last day before the period to renew the judgment expired, respondent obtained an ex parte renewal of the judgment.
On August 31, 2004, respondent mailed notice of the renewal of the judgment to appellant at two addresses: 27549 Pacific Coast Highway, Malibu, California (the Malibu residence), and appellant’s office at 2224 Main Street, Santa Monica, California (the Santa Monica office). On October 21, 2005, respondent filed proof of service by mail of the notice of renewal sent to the Malibu address.
On October 24, 2005 and February 8, 2006, respondent filed “APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION” documents (examination orders) to question appellant’s wife regarding appellant’s assets. On February 7, 2006, respondent also filed an examination order to question appellant. On May 18, 2006, appellant moved to vacate the renewal of judgment and stop enforcement of the judgment.
Appellant asserted that respondent did not have a legal right to renew the judgment because it had not become an “Assignee of Record” for purposes of renewing the judgment under Code of Civil Procedure section 673. Respondent argued appellant’s motion to vacate was untimely because it was not filed within 30 days of receiving notice of the renewal under section 683.170, subdivision (b). Appellant claimed his motion was timely because he had not been served with notice of the renewal. In support of that claim, appellant submitted his personal declaration that the Malibu address was outdated and that respondent had known this at the time it mailed the notice. Respondent submitted a sur-reply claiming that it had timely served appellant with notice at the Santa Monica office, but the trial court considered the sur-reply unauthorized and did not consider it.
All further statutory references are to the Code of Civil Procedure unless stated otherwise.
On July 24, 2006, the trial court denied appellant’s motion to vacate the renewal as untimely. The court found respondent had never become an assignee of record, and on that basis, denied enforcement of the judgment.
On August 2, 2006, appellant moved to reconsider the denial of his motion to vacate renewal of the judgment, arguing that he had not been served with notice of the renewal. The trial court denied appellant’s motion to reconsider on September 21, 2006 on the ground that appellant had not shown new facts under section 1008. This is a timely appeal from both the order denying the motion to vacate the renewal of judgment and the order denying reconsideration.
DISCUSSION
I
Appellant bases his motion to vacate the renewal of judgment on the ground that respondent was not an assignee of record capable of renewing the judgment on July 12, 2004, because it did not file a notarized assignment of judgment from Salisbury with the court.
The trial court did not reach the merits of appellant’s motion to vacate renewal of the judgment because it ruled appellant’s motion was untimely. The court found that respondent was not an assignee of record and denied enforcement of the judgment, but that action is not before us on appeal.
Section 683.120, subdivision (a) allows a “judgment creditor [to] renew a judgment by filing an application for renewal of the judgment with the court in which the judgment was entered.” Section 680.240 defines “judgment creditor” as, among other things, the “assignee of record.” Section 673, subdivision (a) provides that “[a]n assignee of a right represented by a judgment may become an assignee of record by filing with the clerk of the court which entered the judgment an acknowledgment of assignment of judgment.” Section 673, subdivision (c)(1) requires the acknowledgment to be “[m]ade in the manner of an acknowledgment of a conveyance of real property,” i.e., notarized. (See Civ. Code, §§ 1181, 1189.)
Section 683.170, subdivision (a) provides that the renewal of a judgment may be vacated on any ground that would be a defense to an action on the judgment. Appellant brought his motion to vacate on the ground that the judgment expired before the judgment creditor renewed it, which would be a defense to an action on the judgment. Under section 683.170, subdivision (b), appellant had 30 days from the time he was served with notice of the renewal of judgment to move to vacate the renewal.
Appellant claims the evidence before the court does not support the ruling that his motion to vacate was late as beyond the 30-day period provided in section 683.170, subdivision (b). We review a claim of insufficient evidence under the substantial evidence standard. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203.) “In determining whether a judgment is supported by substantial evidence, we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court.” (Ibid.) Substantial evidence “‘must be reasonable in nature, credible, and of solid value; it must actually be “substantial” proof of the essentials which the law requires in a particular case.’ [Citations.]” (Id. at pp. 1203-1204.)
Appellant maintains that when the trial court ruled on the motion to vacate, the only evidence before it was respondent’s August 31, 2004 proof of service of the renewal of judgment showing service to the Malibu address and appellant’s testimony that respondent knew that address was outdated.
In opposition, respondent argued that appellant had been served with notice of the renewal on August 31, 2004. In support, respondent submitted its attorney’s declaration that he had served appellant with notice of the renewal (he did not say where), and a copy of the notice of renewal, but respondent did not submit a proof of service of that notice. On October 21, 2005, respondent filed that notice of renewal and an accompanying proof of service showing service to the Malibu address.
In his reply to respondent’s opposition, appellant argued that he had not been served with notice of the renewal. In support, he submitted his personal declaration that he had moved from the Malibu residence to the Santa Monica residence on January 1, 2000, that he had informed respondent’s attorney of the move “in response to questions at a judgment debtor examination or other discovery,” and that he had not been served with the notice of renewal attached to respondent’s opposition.
The day after appellant served respondent with his reply, respondent served appellant with a sur-reply in which it argued that appellant’s declaration was impeached by his status as a convicted felon, and that respondent had mailed the notice of renewal to the Santa Monica office address. But respondent did not attach a declaration or proof of service to support its claim of service to the Santa Monica office address. The trial court did not consider the sur-reply.
Thus, when the trial court considered whether appellant’s motion was timely, the following evidence was before it: the August 31, 2004 notice of renewal cited in respondent’s opposition; the accompanying proof of service filed on October 21, 2005 showing service to the Malibu residence; and appellant’s declaration that the Malibu address was incorrect, that he had informed respondent’s attorney that it was incorrect, and that he had not received the notice cited by respondent.
Respondent argues that other evidence supports the finding that appellant was served with notice of the renewal more than 30 days before his May 18, 2006 motion to vacate. Specifically, respondent cites: a proof of service dated August 31, 2004 showing service to the Santa Monica office; a transcript from another case in which appellant testified on November 17, 2004 that he had received the notice at the Santa Monica office; an examination order with a copy of the notice of renewal attached and an accompanying proof of service filed on March 22, 2006 showing personal service on appellant; a declaration by respondent’s attorney that he mailed notice to appellant at the Santa Monica office on August 31, 2004 and that appellant did not file notice of a change of address as required by California Rules of Court, rule 385; and court records showing appellant was convicted of making false statements and filing false tax returns.
None of this evidence was presented to the trial court when it ruled on the motion to vacate. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [“‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration’”].) The examination order, the proof of service at the Santa Monica office, the transcript of appellant’s testimony and the declaration of respondent’s attorney were all submitted on September 8, 2006, in support of respondent’s opposition to appellant’s motion to reconsider. The record of appellant’s conviction was submitted to support respondent’s sur-reply, which the trial court did not consider.
Our review of the evidence before the trial court on July 17, 2006 shows no substantial support for the trial court’s ruling that appellant was served with notice of the renewal more than 30 days before he brought his May 18, 2006 motion to vacate. Thus, the state of the record before the court when it ruled on the motion to vacate does not support the court’s conclusion that it was late.
II
Appellant also argues that the renewal was void because the trial court lacked fundamental jurisdiction to renew the judgment. If that is so, appellant would prevail on the merits. Since it was fully briefed and argued, for the guidance of the trial court, we address the question whether the renewal was void or voidable.
The California Supreme Court recently summarized this area of the law in People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653 (American Contractors). There are two kinds of jurisdictional error. The first, lack of fundamental jurisdiction, occurs when a court lacks subject matter jurisdiction or personal jurisdiction over the parties. In that situation, the trial court’s actions are void and subject to collateral attack at any time. (Id. at p. 660.) The second, excess of jurisdiction, occurs when a statute authorizes a court to act in a particular way, but the court fails to follow the procedure specified in the statute. When a court exceeds its jurisdiction in this way, its action is not automatically void. Rather, it is voidable by means of a direct attack, such as a timely motion to vacate the action or a timely direct appeal. Generally, actions in excess of jurisdiction are not subject to collateral attack unless extraordinary circumstances prevented a timely direct attack. (Id. at p. 661.)
Appellant does not claim the trial court lacked personal jurisdiction over him or over respondent, nor does he claim the court lacked subject matter jurisdiction. Instead, he argues jurisdiction to renew judgments is governed by section 683.110, so the trial court’s failure to follow section 683.120, which specifies who may renew a judgment under section 683.110, rendered the court without jurisdiction to renew the judgment. The Supreme Court has distinguished this situation from one in which the court has no fundamental jurisdiction. Assuming the trial court did not follow section 683.120, subdivision (a), the court merely exceeded its jurisdiction, rendering its renewal of the judgment voidable, not void. (American Contractors, supra, 33 Cal.4th at p. 661.)
III
Section 683.170, subdivision (b) afforded appellant 30 days from the time he was served with notice to directly attack the voidable renewal of judgment. As we have discussed, when the motion to vacate was heard, there was no substantial evidence before the trial court that appellant had been served with notice of the renewal more than 30 days before he moved to vacate the renewal.
The dispute over whether respondent served appellant with notice of the renewal first arose when appellant claimed, in his reply in support of the motion to vacate, that respondent sent notice to an address it should have known was incorrect. Respondent attempted to rebut that claim in its sur-reply, but the trial court did not consider the sur-reply. Appellant’s subsequent motion for reconsideration was premised on his claim that respondent did not serve him with notice of the renewal. Thus, respondent’s first “full and fair opportunity to present [its] case” on this issue was in its opposition to appellant’s motion for reconsideration. (See McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661.)
Respondent submitted evidence in support of its opposition to the motion for reconsideration that was not before the trial court on the motion to vacate, including a proof of service of renewal addressed to the Santa Monica office on August 31, 2004, a transcript showing appellant testified that he had received notice at the Santa Monica office sometime before November 17, 2004, a proof of personal service to appellant on March 17, 2006 of an examination order containing notice of renewal, and respondent’s attorney’s declaration that he mailed notice to the Santa Monica office on August 31, 2004. In that proceeding, the trial court did not rule on the factual issue of notice; instead, it denied the motion as not based on new facts or law.
Although we reverse for insufficient evidence the trial court’s ruling that respondent served appellant with notice of the renewal more than 30 days before appellant brought his motion to vacate, respondent did not have a full and fair opportunity to present its case before the court ruled on that issue. For this reason, a new hearing should not be precluded on remand. (McCoy v. Hearst Corp., supra, 227 Cal.App.3d at p. 1661 .)
DISPOSITION
The trial court’s order denying appellant’s motion to vacate the renewal of the judgment is reversed. On remand, the court is directed to rehear the issue whether and when respondent served appellant with notice of the renewal of judgment. The trial court may consider the evidence submitted by respondent in support of its opposition to the motion to reconsider, but the trial court is not limited to considering that evidence. Appellant shall have his costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.