Motion Set Aside Vacate

Cal. Super. - 6th Dist.March 10, 2020

10 ll 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 « David Herrera (Manager ofDMJ Home Solutions LLC, a Nevada Limited Liability Company) 5211 DcMarcus Blvd, Apt 362 Dublin, CA 94568 Electronically filed by Superior Court of CA, (510) 364-7924 County of Santa Clara, on 9/4/2020 2:09 AM IN PR0 PER Reviewed By:D Harris Case #ZOCV364964 Env #4882959 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNION FUNDING SOURCE, ) CASE NO. 20CV364964 ) Plaintiff, ) DEFENDANT’S NOTICE AND MOTION ) T0 SET-ASIDE AND VACATE SISTER- STATE JUDGMENT; CCP §473(d) NIEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F DAVID HERRERA (MANAGER 0F DMJ HOME SOLUTIONS LLC); EXHIBITS A, BI, 32, C, D dh DATE:W 11/3/2020 TIME: +e=ee+M 9:00 am PLACE: 191 N FIRST STREET, v. DMJ HOME SOLUTIONS LLC ct a1, Defendant. LJVVVVVVVV SAN JOSE, CA 951 13 DEPT: T0 PLAINTIFF UNION FUNDING SOURCE AND THEIR ATTORNEYS OF RECORD: November 3, 2020 at 9:00 AM PLEASE TAKE NOTICE THAT onWW, or as soon after that as the matter can be heard. in the Dept. to be determined 0n a future date at the above-cntitled Court located at 191 N FIRST STREET, SAN JOSE CA 95 1 13, Defendant, David Herrera (Manager of _ 1 _ DEFENDANT'S NOTICE AND MOTION T0 SET-ASIDE AND VACATE SISTER-STATE JUDGMENT ID ll 12 13 14 15 16 17 18 19 2U 21 22 23 2d 25 Zfi 27 23 ‘ ‘ (MANAGER OF DMJ HOME SOLUTIONS LLC), and the Exhibits attached theretn, attached hereto, and on such other and furthar oral andfor documentary evidence as may be prflsented at the DMJ Home Solutions LLC), will and doas mom: the Court to set aside and vacate this void Sister- Stale Judgement that was entered against him on March 10, 2020, as well as the Abstract 0f Judgmenfl that was entered against him on July 6, 2020. The Mution will be made under Code of Civil Procedure § 4?3(d) on the grounds that the SistcrnStatc Judgment and Abstract ofJudgment are void as the Cuurt lacked subject matter jurisdiction due to the fact that the Confession ofJudgement used by plaintiff t0 obtain tha original judgament is invalid in California courts as it is not accompanied by an indapendent attorney's declaration (as required per CCP 113203)), and persunal jurisdiction over Defendant due t0 the fact that he was never validly served as more fully set forth in the Declaration of DAVID HERRERA (MANAGER OF DMJ HOME SOLUTIONS LLC), and the Exhibits attached thereto, attached hereto and incnrporated herein by reference. The Motion shall be based upon this notice, the attached Points and Authorities in support thereof, the files and records of this case, and the Declaration ofDAVE) HERRERA hearing (m this Motion. Dated AugtISt 16, 2020 DavriafHerrer‘a (Mafia'ger‘fifDMJ Home Solutions LLC) IN PRO PER - g _ DEFENDANT'S NOTICE AND MDTION TO SET-ASIDE AND VACATE SISTER-STATE JUDGMENT 1U 11 12 13 14 l5 16 17 18 19 20 21 ‘ 22 23 24‘ ‘ 2020.25 26 2? 28 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF MOTION T0 SET-ASIDE AND VACATE AN UNLAWFUL SISTER-STATE JUDGEMENT I. STATEB‘IENT 0F FACTS Plaintiffs flied a Sister-State Judgment against Defendant 011 0r about March’lfl, 2020 alleging: b The Sistcr-State Judgement is being filed to enfurce a Judgament entared against Defendant in the Supreme Court ofNew York, Ca by way 0f Confessinn ofJudgement signed solely by the Defendant and without the signad daclaration 0f an attorney. i Plaintificlaims total judgment amount t0 be $ 1 61865.42 I Plaintifffiled Proof of Service of Summons Complaint on June 3, 2’02!) and then again 0n June 10, 2020. ‘ I Plaintifffiled an Abstract of Judgment 0n July 6, 2020. See Plainrififir compiainr unfile and attached a3 Exhibit A. A Sister-State Judgment was entered against Defendant on March ll, 2020. A11 Abstract of Judgment was entared agamst Defendant on July 6, 2020 Defendant contends the: Sister-State judgment and Abstact of Judgament are void as the Cnurt lacked personal jurisdiction over them as they were never validly served. Defendant contends that he was 110i made aware 0f the Sister-State Judgment until August Defendant contends the Sistcr-Statfi judgment and Abstract of Judgement are void as the Court lacked subj ect matter jurisdiction _ 3 _ IEFENDANT'S NOTICE AND MOTION TD SET-ASIDE AND VACATE SISTER-STATE JUDGMENT 1D 11 12 13 14 15 16 1"? 13- 19 20 21 22 23 24 25 26‘ 27 28 See the Declaration 0f David Herrera (Manager ofDMJ Hume Solutions LLC) and Exhibits attached thereto filed and served concurrently and incorporated herein by reference. II. LEGAL ARGUMENT A. THE COURT HAS THE POWER T0 SET-ASIDE AND VACATE THE SISTER-STATE JUDGMENT AND ABSTRACT OF JUDGEMENT THAT WAS ENTERED AGAINST THE DEFENDANT 0N THE GROUNDS THAT THEY ARE VOID AS THE COURT LACKED JURISDCTION OVER THE DEFENDANT AS THEY WERE NOT VALIDLY SERVED Code afCivil Procedure section 473, subdivision (d) states that, "The court may, upon motion of the injured party, 0r its own martian, correct clarical mistakes in its judgment or orders as entered, ‘ so as to conform to the judgmant or order directed, and. may, cm motion of either party after notice to the ether party, sat aside any void judgment Dr order." A judgment is void if the court lacked jurisdiction over the subj ect matter or parties, fur example, if the defendant was not validly served with 5111111310113. Neumann v. Melgur (2004) 121 Cal.App.4th 152, 164. If a judgment is void, there is n0 time limit mentiuned for a party 1:0 file a motion to set aside the void judgment. Code of Civil Procedure section 4?3, subdivision (d) (sectian 4?3(d)) alluws a court to set aside a void judgment. Ramos v. Homeward Rasfdemfaf, Inc. (2014) 223 Cal.App.4th 1434, 1440; see alsn Lee v. An (2003) 168 Cal.App.4th 558, 563 (Lce).} Section 473(d) pmvides: "The court may, upon motion of the injured party, or its own motion, . . . set aside any void judgment or order." A void juégmem is a nullity. Tearlach Resources Limited v. Western States Internat, Inc. (2013) 2x9 Cal.AppAth 773, 779. _ 4 - DEFENDANT'S NOTICE AND MOTION T0 SET-ASIDE AND VR'CATE SISTER-STATE JUDGMENT 1E} ll 12 13 14 15 16 17 18‘ 19 ED 21 22 23 24 25 26 27' 2'3 A judgment is void if the court lacks ‘Z'fundamental aufllm'ity over the subject matter, question presented, or party.“ In re Marriage 0fGoddard (2004) 33 Cal.4th 49, 56. "'When a mutt lacks jurisdiction in a fundamental sense, an ensuing judgment i5 void, and "thus vulnerable to direct or collateral attack at any time.“‘" Lee, supra, I68 Cal.AppAth at p. 563. "Far example, if a defendant is not validly served with a summons and complaint, the court lacks personal jurisdiction and a default judgment in such action is subject t0 being set aside as void." Id. at p. 564. Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Headings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249, in that case the Court of Appeal held that a judgment was not affected by a nonresident's failure t0 bring a motion to quash. A judgment void for lack of due process notice is subject to attack at any time in a proceeding 01' action brought for that purpose. Ansley v. Superior Cour: (1986) 185 Ca1.App.3d 477, 483; see also Stern v. Judson {19 12) 163 Cal. 726, 735-736.) Absent service of process upon the defendant, he has no duty t0 lake affinnative action at any time to preserve his right to challenge the judgment even if ha obtains actual knowledge ofthe judgment. City ofLos Angela v. Morgan (195 1) 105 Cal.App2d ‘ 726, 73 1. “What is initially void is ever void and life may nut be breathed into it by lapse of time." Ibidfi Indeed, if a plaintiff chooses to obtain a judgmant that is amid far lack of servica upon a defendant, "he and his privies may not complain that the law does not subsequently accord t0 them a su-called ‘ri‘ght' which has newer existed." Ihid. - 5 - DEFENDANT'S NOTICE AND MOTION TO SET-ASIDE AND VACATE SISTER-STETE JUDGMENT 10 11 12 13 14 15 16 1? 13‘ 19 20 21 22 23 24 25 26 27 23 B. DEFENDANT WAS NOT VALIDLY SERVED; FURTHER PERSONAL SERVICE IS THE PREFERRED MEANS 0F SERVICE T0 NOTIFY A DEFENDANT AND ALLOW FDR DUE PROCESS Defendant was not validly served in that he has never resided audio: never lived at 1233 Murdell Lane, Livennore, California 94550, which is the address stated on the Abstract ofJudgment. The: law in California is well settled that personal service is the preferred means of service to notify a defendant and allow for due process. Parsonal service is tha preferred means to notify a dafendant of the issuance of a summons and the commencement ofa lawsuit, Olvem v. Divera (1991) 232 Cal.App.3d 32, 4i. Any other form ofservice other than personal service is known as substituted 01' constructive service, depending on the method used. And in using substituted 0r constructive service, the California Supreme Court statad over 10.0 years ago that strict compliance with the latter and spirit of the statutes is required "When substituted or constructive service is attempted, strict compliance with the letter and spirit nfthe statutes is required." Stern v. Judson (1912) 163 CaL 726, 735. The United States Supreme Court has ruled that a void judgment must he set aside regardless of the. merits ofthe underlying lawsuit. This was in a case where there was never a valid service 0f y 8111111110115. "When: a person has been deprived of properly in a manner contrary to the most basic tenets ofdue process, it is n0 answer to say that in his particular case due process of law would have led t0 the Same result because he had 110 adequate dcfense upon the maxim." Paralta v. Heights Medical Center, Inc. (1933) 435 US 30, 36-37, 103 S.Ct. 396, 900 (internal quotes omitted). _ g - DEFENDANT'S NOTICE AND MDTIQN TD SET-ASIDE AND VACATE SISTERHSTATE JUDGMENT k4 lfl 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 26 27 28 A5 shown by the Declaration 0f David Herrera (Managsr ofDMJ Home Solutions LLC), ha just found out about the Sister-State Judgment and Abstract ofJudgment 0n August 13, 2020. Thus, he has shown diligence in seeking relief once he had personal knnwledga that a Sistar- State judgment has been entered against him. C. THE COURT HAS THE POWER T0 SET-ASIDE AND VACATE THE SISTER-STATE JUDGMENT AND ABSTRACT OF JUDGENIENT THAT WAS ENTERED AGAINST THE DEFENDANT 0N THE GROUNDS THAT THEY ARE VOID AS THE COURT LACKED SUBJECT MATTER JURISDCTION OVER THE ACTION AS THE CONFESSION 0F JUDGMENT USED BY PLAINTIFF IS INVALID IN CALIFORNIA COURTS AS IT IS NOT ACCOWANIED BY AN INDEPENDENT ATTORNEY’S DECLARATION (AS REQUIRED PER CCP 113203)) Ajudgment is void ifthe court lacks "fimdamental authority over the subject matter, question > presented, or party.” In re Marriage ofGoddard (2004) 33 Cal.4th 49, 56. “When a court lacks jurisdiction in a fimdamental salsa, an ensuing judgment is void, and "thus vulnerable to direct or collateral attack at any time.""' Lee, supra, 168 Cal.App.4th at p. 563. "For example, if a defendant is not validly served with a smnmans and complaint, the court lacks personal jurisdiction and a default judgment in such action is subject m being set aside as void." Id. at p. 564. The Supreme Court 0fCalifornia held that a confession ofjudgment entered without an attorney’s declaration was unconstitutional. [Isbell v. County of Sanoma (1978) 21 Cal. 3d 61, 75] California‘s Code Bf Civil Procedure sets forth the law governing cunfession ofjudgment procedures at §§ 1132 - 1134. spacificany, §1132(b} states: _ 7 _ DEFENDANT'S NOTICE AND MOTIDN TO SET-ASIDE AND VACATE SISTER~STATE JUDGMENT lfl ll 12 13 14 15 16 1? lB 19 20 21 22 23 24 25 26 27 , 28 1132. (b) A judgment by confession shall be entered only if an attorney independcnfly representing the defendant signs a certificate that the attorney has examined the proposed judgment and has advised the defendant with respect to the waiver 0f rights and defenses under the confession of judgment procedure and has advised the defendant to utilize the confession ofjudgment procedure. The certificate shall be filed with the filing Of the statement required by Section 1133. Even when it conforms tn the procedures set forth in above, a confession ufjudgment is considered an extreme procedure. Further, a confessed judgment is invalid if the certificate or declaration is signed only by the defendant, even if he or she is an attorney. [Efstratis v. First Nnrthem Bank of Dixon (1997) 59 Cal. App. 4th 667, 674] Numerous decisions of the California Supreme Court make it clear that the law favors diaposing of casas 011 their meritsfi “It is the policy of law to favor, whenever possible, a hearing 0n the merits. Appellate courts are much mere diaposed t0 affirm an order when they result is t0 compel a trial on the _ merits than when the dfifault judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required t0 justify a trial court's order setting asidc a default". Shamblin v. Brartaz'n ( 1988) 44 Cal.3d 474, 478-479. Because the law strongly favors trial and disposition cm the merits, any doubts must be ‘ resolved in favor 0f the party saeking relief from default. Elston v. City ofTurlac-r’c (1985) 38 Cal.3d 227, 233. As shown by the Declaration of Defendant David Herrera (Manager ofDMJ Hume Solutions LLC} they were nut validly served. Therefore, the Cuurt should grant his Motion to set-aside and vacate this case m1 its merits as thc law favors. _ 3 _ DEFENDANT’S NOTICE AND MGTION TO SETHASIDE AND VACATE SISTER-STATE JUDGMENT lfl ll 12 13 14 15 15 1T 18 19 20 21 22 23 24 25 26 27 28 IL CONCLUSION Based on the above, Defendant David Herrera (Manager ofDMJ Hume Solutinns LLC) respectfully requests that the Court set-aside and vacate the Sister-Staxe Judgement and Abstract of Judgment that were enterad against him- Dated August 16, 2020 W/W DaviEHener (Managér 0fDMJ Home Solutions LLC) 1N PRO PER _ g _ DEFENDANT'S NOTICE AND MOTION TO SET-ASIDE END VRCRTE SISTER-STATE JUDGMENT ID ll 12 13 14 15 16 l? 18 19 20 21 22 23 M 24 25 26 27 28 DECLARATION OF DAVID HERRERA (MANAGER 0F DMJ HOME SOLUTIONS LLC) I, David Herrera (Manager ofDMJ Hume Solutions LLC), declare as follnws. 1. I am over the age of 18 years and am a party to this action. I have personal knowledge of the facts stated in this declaration, and if called as a witness, could and would testify competently t0 the truth of the facts as stated herein. 2. I first heard about Plaintiff‘s Sister-State Judgement in August 2020, when I was sent an email communication From my hank lender stating they performed a routine title: search and discovered an Abstract of Judgement had been entered against me. 3. I was never validly served in that I have never lived at 1233 Murdell Ln, Evermore, California 94550. 4. [have prepared a proposed Motion to Set-Aside and Vacate Sister-State Judgment and - Abstract 0fJudgemant entered by Plaintiff. A true and correct copy 0fmy proposed Motion is attached hereto and accompanied by Exhibit "A", Exhibit “Bl”, Exhibit “B2", Exhibit “C”, Exhibit “D” and incorporated herein by reference. 4. Irespectfully request that the Court set-aside and vacate the Sister-State Judgement and Abstract of Judgment that were entered against me as I was not validly served and the cuurts lack subject matter jurisdiction. l declare under penalty 0fperjury under the laws of the State ofCaiifomia that the foregoing is true and correct and that this Declaration was executed 0n August 16, at Dublin, California. Dated August 16, 2020 k;- DAVII) HfRRERA‘ _ 10 _ DEFENDANT’S NOTICE AND MQTIDN TU SET-ASIDE AND VHCATE SISTER-STATE JUDGMENT 8/16/2020 Details EKHI BIT A Case Information 20CV364964 1 Umon Fund.ng Source vs DMJ Home Solutions LLC el al C 1;:;~ Number 20CV364964 Enforcement of Judgment Unlimited (20) Party Union Funding Source IJ"i' r·r!.1 1t DMJ Home Solutions LLC D~" •··,n Herrera, David Michael Joseph Court Superior Court of Santa Clara - Civil ~c'~!- s Closed/Inactive https://cmportal.scscourt.org/Portai/Home/WorkspaceMode?p=O FiiGt Date 03/10/2020 1/3 8/16/2020 Disposition Events 03/11120 1.. Judgment ... Judgment Type Other Clerk Judgment (CV) Judgment - Monetary A-Nard Awa Tl" Union Funding Source DMJ Home Solutions LLC Herrera, David Michael Joseph An ou t Damag~:-::. $154,278.90 Pr · 1 • _I" I n erE', $7,151.52 CC' $435.00 ..- 'I $161865.42 Statue. Active Status U<~ 03/11/2020 Status Co 1 rm , SISTER STATE JUDGMENT Party t\1 rtl"' "· Union Funding Source DMJ Home Solutions LLC Herrera, David Michael Joseph https:/lcmportal.scscourt.org/Portai/Home/WorkspaceMode?p=O Details 2/3 8/16/2020 Details Events and Hearings 03/10/2020 Application 03110/2020 CJVI Case Cover Sheet 03 10 2020 D claratton 03111/2020 Judgment .... $161,865.42 03 1112020 Judome t Nofce of Entl'] (C v 06 0812020 Proof o· Servtce· Sumnons DLR (Civil) .... Lurnme1 Proof of Service of Summons Complaint 06tl012020 Proof of Serv1ct: Summons DLR (Civil) .... Proof of Service of Summons Complaint 07.0o 2G20 Abstract of Judgment Issued https:J/cmportal.scscourt.orgJPortai/HomefiNorkspaceMode?p=O 3/3 331 ?JEDZO dmjhamesolutions.m Mail - New Item rm Title - 1M1 0 N Stelllng EXHIBIT B!M m; fiat; David Herrera mm utem on Title - 10410 N Stallina B maasane: Joe Glnliella Cc: Brad Rust