Filed 6/29/26 Wells Fargo Bank v. Heston CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
WELLS FARGO BANK, N.A., B349935
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC447741)
v.
DAN HESTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Dean J. Kitchens, Judge. Affirmed.
The Fullman Firm, Adam C. Fullman, Christopher J. Peters
and Sam Dehbozorgi for Defendant and Appellant.
Stinson and Jan T. Chilton for Plaintiff and Respondent.
________________________________
Dan Heston appeals from an order denying his motion to
vacate a renewal of a judgment in favor of Wells Fargo Bank, N.A.,
contending no admissible evidence supported that he was served
notice of the original summons and complaint. We disagree and
affirm.
BACKGROUND
In 2010, Wells Fargo filed a complaint against Heston seeking
recovery of money he allegedly owed on a consumer credit account.
In 2011, the bank served process on Heston by hand delivering it
at a private postal store at 225 East 9th Street in Los Angeles to
“Richard Doe,” who worked at the facility and was authorized to
accept documents served on patrons who rented mailboxes there.
Heston did not respond, and the court entered a default judgment
in 2011 in the amount of $274,052.92.
In 2021, Wells Fargo renewed the judgment, mailing notice of
the renewal to the same 9th Street mailbox.
In 2024, Heston moved to vacate the renewal on the ground
that the 2011 substitute service was invalid because he had stopped
using the 9th Street mailbox in 2009.
In briefing and at an evidentiary hearing on the motion,
Heston testified that he changed his mailing address and stopped
using the 9th Street mailbox after 2009, two years before the 2011
service of process in this case, and never received the summons or
complaint. He offered documents showing that he had been
receiving mail at his home since 2009.
Wells Fargo opposed the motion, asserting that Heston
had not stopped using the 9th Street mailbox. To support that
assertion, Wells Fargo requested judicial notice of court records
in another case, Wachovia Bank, N.A. v. Dan Heston, Los Angeles
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County Superior Court, No. BC423953 (Wachovia Bank). Those
records included:
1. A November 2009 answer signed by a “Dan Heston”
in pro. per., listing the 9th Street mailbox as his address;
2. An unsigned 2010 case management statement filed on
behalf of “Dan Heston” in pro. per., listing the 9th Street mailbox as
his address;
3. A 2010 minute order granting Wachovia Bank’s
summary judgment motion, which had the following notation and
statement:
Plaintiff DREW CALLAHAN—COURT CALL
Counsel
Defendant
Counsel
DAN HESTON—IN PRO PER
“The clerk read the court’s tentative to counsel appearing via
court call” (capitalization omitted); and
4. A 2016 acknowledgement of satisfaction of judgment
signed by Drew A. Callahan, counsel for Wachovia, which had a
checked box indicating that “[t]he judgment creditor has accepted
payment or performance other than that specified in the judgment
in full satisfaction of the judgment.” (Callahan did not check the
immediately preceding box indicating the “judgment is satisfied in
full.”) (Capitalization omitted.)
Heston objected that the Wachovia Bank minute order did not
state or imply that Heston was present in court at the summary
judgment hearing, and the satisfaction of judgment was not
evidence of any act by Heston, it was “merely a document executed
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by an attorney who is not here for that attorney’s own reasons,”
evidence only that “the plaintiff chose to satisfy the judgment.”
The court granted judicial notice of the 2010 minute order
and 2016 satisfaction of judgment over Heston’s objections. Heston
did not object to judicial notice of the answer and case management
statement.
In reply, Heston theorized he was the victim of identity theft.
He testified he did not sign or file the Wachovia Bank answer (he
testified he was in Italy on November 18, 2009, the day before the
answer was dated and signed), did not file the case management
statement, did not appear at the summary judgment hearing
in that case, and did not satisfy the judgment. Heston offered
examples of his handwriting and testified that the signature on
the answer differed considerably from the way he signed his name.
The court acknowledged that Heston’s signature on the answer was
“materially different” from his handwriting exemplars.
Heston testified that he stopped using the 9th Street
mailbox when he “became suspicious” of the private postal service.
He therefore had not received the 2011 notice of renewal of the
judgment, but learned of this action and the Wachovia Bank action
only when he was turned down for a new credit card six to eight
months before the evidentiary hearing. Heston admitted that he
never filed a police report or a fraud report with the United States
Postal Service (USPS).
The trial court denied Heston’s motion to vacate renewal
of the judgment. The court found that Heston “appear[ed] to
have filed a signed answer” and a case management statement,
“personally appeared” at the Wachovia Bank summary judgment
hearing, and “satisfied his near $300,000 judgment.” The court
stated that Wells Fargo’s “theory of the case is plausible and largely
supported by the thin evidentiary record . . . . [Heston’s] theory of
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the case is implausible as it requires the court to accept . . . that
the owners of the post office services business at the Ninth Street
address intercepted a summons and complaint directed to
defendant, decided to secretly appear on his behalf only to lose a
summary judgment motion for $300,000 and then, six years later,
decided to continue the ruse by obtaining a satisfaction of judgment
for defendant’s benefit . . . for no apparent reason. The court does
not find this explanation credible.” (Capitalization omitted.)
Heston appealed.
DISCUSSION
Heston contends the trial court prejudicially erred by
accepting the truth of hearsay statements contained in Wachovia
Bank court records to the effect that he (1) filed an answer, (2) filed
a case management statement, (3) appeared at the summary
judgment hearing in that matter, and (4) satisfied the judgment.
He argues the evidence was inadmissible for these propositions and
failed to establish them. We partially disagree. Accepting, as the
trial court did, that Heston signed the Wachovia Bank answer
and filed the status conference statement, the information therein
was admissible under Evidence Code section 1220 as a hearsay
exception for the admission of a party. Thus supported, and even
assuming the Wachovia minute order and satisfaction of judgment
were inadmissible, it is not reasonably probable that the court
would have reached a different result without them.
A. Legal Principles
A money judgment may be enforced for 10 years from the date
of its entry. (Code Civ. Proc., §§ 683.020, 683.030; Green v. Zissis
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(1992) 5 Cal.App.4th 1219, 1222.)1 A judgment creditor may renew
a judgment for an additional 10 years. (§§ 683.010 et seq.)
Pursuant to section 683.170, the renewal of a judgment “may
be vacated on any ground that would be a defense to an action on
the judgment.” (§ 683.170, subd. (a).) Failure to have ever served
process on a defendant is a defense to an action on the judgment
and therefore can be raised on a motion to vacate a judgment
renewal. (Fidelity Creditor Service, Inc. v. Browne (2001) 89
Cal.App.4th 195, 201–202.) The judgment debtor bears the burden
of proving entitlement to relief under section 683.170. (American
Contractors Indemnity Co. v. Hernandez (2022) 73 Cal.App.5th 845,
848 (American Contractors).)
“The return of a process server . . . upon process or notice
establishes a presumption, affecting the burden of producing
evidence, of the facts stated in the return.” (Evid. Code, § 647.)
Hearsay is a statement made other than by a witness at the
hearing, offered to prove the truth of the matter stated. Hearsay
is generally considered to be unreliable, and for that reason is
inadmissible unless an exception applies. (Evid. Code, § 1200.)
Judicial notice may be taken of the records of “any court of
this state.” (Evid. Code, § 452, subd. (d).) Judicial notice may not,
however, be taken of the existence or truth of facts asserted in
court documents, even orders or findings of fact, unless a hearsay
exception exists. (Herrera v. Deutsche Bank National Trust Co.
(2011) 196 Cal.App.4th 1366, 1375; Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1564.)
We review denial of a motion to vacate renewal of a judgment
for an abuse of discretion, taking the evidence in the light most
1 Undesignated statutory references are to the Code of Civil
Procedure.
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favorable to the court’s decision. (American Contractors, supra,
73 Cal.App.5th at p. 848.) We defer to the trial court’s resolution
of factual conflicts in the evidence, but review questions of
law de novo. (Ibid.) We also review a trial court’s rulings on
evidentiary objections for abuse of discretion. (Daimler Trucks
North America LLC v. Superior Court (2022) 80 Cal.App.5th 946,
960.)
B. Application
Here, Heston bore the burdens both of producing evidence
and of proof to refute Wells Fargo’s 2011 proof of service at the
9th Street mailbox. To do so, he testified and offered documents
showing that after 2009, he no longer used the mailbox. This
discharged Heston’s burden of producing evidence but left him with
the burden of proof.
Wells Fargo argues any error was harmless. We agree.
An order may not be reversed due to the erroneous admission
of evidence unless it created a miscarriage of justice. (Evid. Code,
§ 353.) A miscarriage of justice occurs when it is reasonably
probable that a result more favorable to the appealing party
would have been reached without the error. (Huffman v. Interstate
Brands Corp. (2004) 121 Cal.App.4th 679, 692.)
In the trial court’s estimation, the 2009 Wachovia Bank
answer bore Heston’s signature despite material differences
from his handwriting exemplars, and the 2011 case management
statement was filed on his behalf. From this information the
court could reasonably conclude Heston either filed the documents
himself or caused them to be filed, and thus knew about and
participated in the Wachovia Bank litigation beyond 2009.
But even if Wells Fargo had offered no evidence, the trial
court made it clear that it found it implausible that a private
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postal store identity thief would not only intercept Heston’s
mail but answer it by filing an answer to a complaint and a case
management statement purportedly on his behalf. This was
a reasonable conclusion. Moreover, to credit Heston’s theory,
one would have to assume that the postal service accepted mail
for Heston even though he had stopped using the service, and
assumedly stopped paying for the mailbox. Heston offered no
evidence indicating that identity thieves are known to operate in
this manner, and he admitted that he never filed a police report
or a fraud report with the USPS.
In conclusion, because the court disbelieved him, and because
evidence supports that he was properly served in 2011, there is no
reasonable probability that a result more favorable to Heston would
have been reached even had the court excluded the Wachovia Bank
minute order and satisfaction of judgment.
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DISPOSITION
The order denying Heston’s motion to vacate renewal of a
judgment is affirmed. The parties shall bear their own costs on
appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
WEINGART, J.
M. KIM, J.
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