The CIT Group/Capital Equipment Financing v. Khan
Filed 5/27/08 The CIT Group/Capital Equipment Financing v. Khan CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE CIT GROUP/CAPITAL EQUIPMENT FINANCING, INC., Plaintiff and Respondent, v. AMANULLAH KHAN et al., Defendants and Appellants. | B197047 (Los Angeles County Super. Ct. No. MC016288) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge. Affirmed.
Amanullah Khan, in pro. per., for Defendants and Appellants.
Glass & Goldberg and Ofer Moshe Grossman for Plaintiff and Respondent.
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Defendant Amanullah Khan, appearing in propria persona on behalf of himself and his wife, defendant Stella Khan[1](collectively Khan), appeals from the default judgment entered in favor of plaintiff The CIT Group/Capital Equipment Financing, Inc., formerly known as Equipment Credit Services, Inc. (CIT). Khan contends that the trial court erred in denying his motion to set the default judgment aside. We find no merit in the contention and consequently affirm the judgment.
DISCUSSION
In 1995, CIT filed an action against Khan. Khan defaulted, and in 1996 a default judgment was entered against Khan for $16,269.81. In 2006, CIT filed the current action against Khan on which this appeal is based, seeking to enforce the prior judgment. (See Code Civ. Proc., 683.050 [independent action may be brought on judgment within 10 years of entry].) Khan was served while incarcerated in state prison and failed to respond. His default was taken on August 7, 2006.
On September 28, 2006, Khan filed a motion in propria persona to set aside the default judgment. The motion mentioned both the current default judgment and the default judgment from the 1995 action, but the only legal argument was that the 1995 default judgment was invalid because Khan had not been properly served with the summons and complaint. In a declaration in support of the motion, Khan stated that he had purchased equipment from CIT in 1986 and had paid for it in full by 1992. He was not aware of the current action until he was told about it by his wife.
In opposition, CIT noted that Khans motion did not include a proposed answer to the current complaint and did not provide any reason why the default judgment in the current action should be set aside. In addition, CIT asserted that Khan had not set forth any admissible evidence to establish lack of service on the 1995 action. CIT also provided documentary evidence regarding the validity of the 1995 default judgment, consisting of a docket sheet of the 1995 action that included an entry stating that summons had been filed with proof of service, the clerks notice of entry of judgment, and records showing Khans address at the time of the 1995 action.
Khans motion was denied on November 2, 2006.
Thereafter, on November 8, 2006, the court received and filed Khans reply to CITs opposition papers. In the reply, Khan argued that service of the 1995 summons and complaint was defective because it was made by substituted service at an address from which CIT knew Khan had long since moved. In a supporting declaration, Khan set forth the details of his residence and business addresses since 1979 and reiterated that he had not been served on the 1995 action. Thus, continued Khan, default should be set aside because he provided credible evidence that he had not been properly served in the 1995 action.
Default judgment in the amount of $34,069.76 was entered against Khan on December 5, 2006.
On December 11, 2006, Khan filed a motion to reconsider the order denying his motion to set aside the default judgment. The arguments in Khans motion paralleled the arguments made in his November 8 reply submission, and also included the declarations of Khans wife and sister-in-law regarding Khans residence. The motion for reconsideration was denied on February 8, 2007.
DISCUSSION
Khans sole argument on appeal is that CIT failed to prove proper service of the 1995 action.[2] In support of this argument, Khan again sets forth facts regarding his residence address, continuing to insist that CIT has failed to demonstrate that he was properly served.
Review of the default judgment is limited to questions of jurisdiction, sufficiency of the pleadings, and excessive damages. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824.) Khan has not raised any issues regarding these aspects of the current case. With respect to the 1995 action, Khan has failed to demonstrate that any error occurred in entering the original default judgment against him because, in denying Khans motion to set aside the default, the trial court impliedly found that Khan had been properly served. Accordingly, Khans arguments to this court must be rejected.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, Acting P. J.
We concur:
VOGEL, J.
ROTHSCHILD, J.
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[1]Code of Civil Procedure section 371 provides that [i]f a husband and wife are sued together, each may defend for his or her own right, but if one spouse neglects to defend, the other spouse may defend for that spouses right also.
[2]Prior to briefs being filed in this matter, we granted Khans request to augment the record with the proof of service on the 1995 summons and complaint, as shown on the docket sheet. The superior court responded with a clerks certificate stating that the document could not be located.
