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Conseco Marketing, LLC v. IFA and Insurance Services, Inc.

California Court of Appeals, Second District, First Division

November 22, 2013

CONSECO MARKETING, LLC, Plaintiff and Respondent,
v.
IFA AND INSURANCE SERVICES, INC., et al., Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. BS130398 Matthew St. George, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

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COUNSEL

Kenneth D. Sisco for Defendants and Appellants.

Adam D. Cotter; Anderson, McPharlin & Conners and Richard P. Tricker for Plaintiff and Respondent.

OPINION

MALLANO, P. J.

Conseco Marketing, LLC (judgment creditor), obtained a judgment based on a sister state judgment pursuant to the Sister State and Foreign Money—Judgments Act (SSFMJA) (Code Civ. Proc., § 1710.10 et seq.) against IFA and Insurance Services, Inc. (IFA) and Retiring America and Insurance Services, Inc. (RA; collectively, judgment debtors). (Undesignated section references are to Code Civ. Proc.) Judgment debtors appeal from the order denying their motion to set aside default and vacate the judgment. (All references to judgment are to the judgment entered pursuant to the SSFMJA.)

Judgment debtors contend judgment creditor lacks standing to apply for entry of the sister state judgment because judgment creditor is not qualified to do business in California. They argue their motion is timely under the SSFMJA because they were not served with notice of entry of the judgment and only had belated “actual notice” of such entry. They maintain their motion is timely under section 473.5 and should have been granted under section 473.5 because they were deprived of an opportunity to defend in view of a lack of service of process and their belated “actual notice” of the sister state action.

This appeal presents these issues: Is a judgment creditor which is a foreign limited liability company required to qualify to do business in California as a precondition to applying for entry of a sister state judgment under the SSFMJA? Is the 30-day limit to make a motion to vacate the judgment triggered by service on a corporate judgment debtor’s designated agent for

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service, without regard to when the judgment debtor obtained “actual notice” of entry of the sister state judgment under the SSFMJA? Is section 473.5 applicable to the SSFMJA?

We affirm the order. A judgment creditor which is a foreign limited liability company does not have to qualify to do business in California in order to enforce a sister state judgment under the SSFMJA. Substantial evidence supports the trial court’s findings judgment debtors were served properly with process in the sister state action and with notice of entry of the judgment through their designated agent for service in California. Such service on the designated agent, not a judgment debtor’s “actual notice, ” triggers the 30-day limit for making a motion to vacate the judgment, so long as the judgment debtor was effectively served with process in the sister state action. Section 473.5, which is a procedural remedy regarding relief from a default or default judgment, is inapplicable to a judgment entered under the SSFMJA.

BACKGROUND

1. The Indiana or Sister State Action

On August 20, 2010, in an Indiana state court, judgment creditor filed a complaint for breach of contract against judgment debtors. On August 26, 2010, the clerk served a copy of the summons and complaint by certified mail with return receipt requested to each of the judgment debtors in care of Executive on the Go, Inc. (Executive), their designated agent for service. On August 30, 2010, Angela Cole of Executive signed the return receipts in California.

On October 6, 2010, judgment creditor filed a motion for entry of default judgment. On October 14, 2010, the Indiana court entered a default against judgment debtors. On December 6, 2010, a hearing was set on the damages issue. On December 7, 2010, the court entered judgment in favor of judgment creditor and against judgment debtors for $675, 256.45.

2. The California Full Faith and Credit Judgment

On February 15, 2011, in the Los Angeles Superior Court, judgment creditor filed its application for entry of judgment on sister state judgment pursuant to the SSFMJA. On February 25, 2011, the clerk entered the sister state judgment. On March 7, 2011, a registered California process server personally served a copy of the notice of entry of judgment on sister state judgment on Sandra Sisneros, a “Person Authorized By The Corporation[,

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namely, Executive, ] to Receive Service of Process” on behalf of IFA and RA. Proofs of service ...


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