Tentative Rulings for Tuesday, August 22, 2017 for Department 8, Judge LaPorte presiding

Moss v Castillo                                       Case No. 16C 0296

 

Defendant’s motion to vacate the sister state judgment is granted. The Tennessee statute required “refusal” of the mailing of the complaint and summons by certified mail. The documentation supplied by plaintiff merely shows that the certified mail was returned as undeliverable. A default in California would have required a signed receipt for the certified mail.  (Code Civ. Proc. §415.40; Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2017) §4:301 at 4-52.)  It is a defense to a judgment in California if the complaint and summons were not been properly served, or if service did not result in actual knowledge of the complaint and summons. (Code Civ. Proc.§473.5.) Accordingly, grounds exist on which to order the sister state judgment vacated. (Code Civ. Proc. §1710.40, subd. (a).)

In addition to the service issue, defendant has presented persuasive evidence that he delivered the necklace and letters of authentication, as required by the contract. Plaintiff did not file a declaration in opposition to this motion denying that the necklace he purchased was not of 14k  gold with emeralds and nine diamonds, or was otherwise not a necklace formerly owned by Elvis Presley. The sister state judgment does not take into the account the retention of the necklace by plaintiff, and no support was given for an award of $100,000 in punitive damages based on a purchase for $50,000.

 

There are no other tentative rulings.  Consistent with California Rule of Court, rule 3.1308 (a)(2), no notice of intent to appear is required. If the non-prevailing party does not appear for hearing, the tentative ruling will become the order of the court. The prevailing party shall prepare an order for the court’s signature.