Occhipinti v. Allen

1

JUSTINE THEDE OCCHIPINTI, Plaintiff and Respondent, v. CYNTHIA JUNE ALLEN, Defendant and Appellant.

G063479

California Court of Appeals, Fourth District, Third Division

August 27, 2024

NOT TO BE PUBLISHED

Appeal from a postjudgment order of the Superior Court of Riverside County No. CVSW2104845, Raquel A. Marquez, Judge.

Law Office of David Akintimoye and David A. Akintimoye for Defendant and Appellant.

Price Postel &Parma, Timothy E. Metzinger and Jeremy D. Stone for Plaintiff and Respondent.

OPINION

GOODING, J.

In 2019, respondent Justine Thede Occhipinti brought an action against Johnny Allen (Johnny) in Oregon state court. In August 2020, the parties participated in a private mediation which resulted in a binding agreement that resolved the action (Agreement). Johnny's wife, appellant Cynthia June Allen (Cynthia), was not a party to the Oregon action.^[1]Nevertheless, she agreed to be bound by the Agreement and signed it as "A Necessary Party." The Agreement specified that a stipulated judgment would be entered against both Johnny and Cynthia, requiring payment of the agreed upon amounts set forth in the Agreement. Cynthia later refused to sign the stipulated judgment. In December 2020, the Oregon court nevertheless entered the stipulated judgment and signed an order making Cynthia a party to the action.

In June 2021, Occhipinti obtained a sister state judgment in California based on the Oregon judgment. Cynthia was given notice of the entry of the California judgment in August 2021. The notice informed her she had 30 days to bring a motion to vacate the California judgment. Cynthia did not bring a motion to vacate in the required 30-day period. Instead, she waited until February 6, 2023-almost two and one-half years later-to file her motion to vacate the California sister state judgment. The trial court denied the motion, finding (among other things) it was untimely. We find no error and affirm.

STATEMENT OF FACTS

In 2019, Occhipinti, successor trustee of the Lela Fay Bishop Revocable Living Trust and the Lela Fay Bishop Charitable Remainder Unitrust (collectively, the Trusts), initiated an action for surcharge against Johnny, former trustee of the Trusts, in the Circuit Court of the State of Oregon for Clackamas County, Case No. 19PB01698 (the Oregon Action). Occhipinti alleged Johnny embezzled more than $600,000 from the Trusts during his tenure as trustee. In August 2020, the action was privately mediated before a retired judge. Occhipinti, Johnny, the Oregon Department of Justice, the Bonnie L. Hayes Small Animal Shelter, and the Multnomah County Animal Services participated in the mediation.

The mediation resulted in the written Agreement, in which Johnny and Cynthia agreed to repay $500,000 to the Trusts. Under the terms of the Agreement, the $500,000 was to be paid in two parts: (1) a cash payment of $175,000 and (2) a "Stipulated Judgment from Respondent [Johnny] and Cynthia Allen for $325,000, together with simple interest at a rate of 2 percent per annum. Commencing September 1, 2020 continuing for ten years thereafter, interest is payable in quarterly installments on each March 31, June 30, September 30, December 31. A final payment equal to all unpaid principal and accrued interest is due on September 1, 2030." The Agreement provided the stipulated judgment would be secured by a trust deed signed by Johnny and Cynthia on certain real property located in Temecula, California. Although Cynthia had not been named in or served with the Oregon Action, she signed the Agreement, dated August 28, 2020, as "A Necessary Party." She now contends she did so because Johnny's attorney, who she says was also representing her, told her she needed to enter into the Agreement or Johnny would go to jail. In September 2020, Johnny made the initial $175,000 payment to the Trusts, as required by the Agreement.^[2] Following the mediation, Cynthia received a draft of the proposed stipulated judgment referenced in the Agreement. She refused to sign it and asked Johnny's attorney to "undo" the Agreement. But she took no further action.

A hearing to read the settlement into the record was set for December 4, 2020. Just before the hearing, Johnny's counsel informed Occhipinti's counsel he did not represent Cynthia and that she might have objections to the stipulated judgment.

Occhipinti's counsel was the only person to attend the December 4, 2020, hearing; Johnny, Cynthia, and Johnny's counsel were all aware of the hearing but did not attend. At the hearing, the Oregon court directed Occhipinti to file the settlement documents with the court, including the Agreement, the previously-circulated stipulated judgment (Stipulated Judgment), and a stipulated order joining Cynthia as a necessary party (Stipulated Order). Occhipinti did so shortly after the hearing.

The Stipulated Order submitted to the Oregon court joined Cynthia as a necessary party to the Oregon Action. By its terms, the Stipulated Order was based on "the stipulat[ion] of John David Allen, Cynthia Allen, and the appearing interested parties." The interested parties are identified as the original participants in the mediation, plus Cynthia.

The Stipulated Judgment included more than six pages of factual findings or recitations not included in the Agreement. The obligations of the parties under the Stipulated Judgment, however, were nearly identical to those set forth in the Agreement. The only difference related to the trust deed on the Temecula property. Although the Agreement simply stated "[t]he judgment will be secured by a trust deed" on the property, the Stipulated Judgment specified the Allens would execute and deliver an acceptable trust deed on the property to Occhipinti.^[3]

The Stipulated Judgment and Stipulated Order each included signature lines for seven parties. As to each document, only three of the seven identified parties-Occhipinti, the Oregon Humane Society, and the Oregon Department of Justice-signed. The signature lines for the remaining four- Johnny, Cynthia, the Bonnie L. Hays Small Animal Shelter, and the Multnomah County Animal Shelter-are unsigned on both.

The Oregon court entered both the Stipulated Order and Stipulated Judgment on December 16, 2020.

Approximately six months later, on June 4, 2021, Occhipinti filed an application for entry of judgment on sister state judgment (Application) in the Superior Court of California, County of Riverside. The Application stated $325,000 was the "amount remaining unpaid" on the Stipulated Judgment and claimed accrued interest of $5,429.24. A certified copy of the Oregon court's Stipulated Judgment was attached to the Application.

Cynthia was served with a notice of entry of judgment on sister state judgment (Notice) and related documents by substituted service on August 20, 2021, at her home address. In January 2022, Occhipinti obtained a writ of execution, showing $333,397.84 as the total amount due.^[4] In March 2022, Cynthia sought an exemption to the writ of execution but did not raise any issue regarding service of the Notice.

In February 2023, approximately 18 months after she was served with the Notice and almost a year after she unsuccessfully sought an exemption to the writ of execution issued on the sister state judgment, Cynthia moved to vacate the sister state judgment.^[5] The California superior court denied her motion on April 11, 2023. Cynthia timely appealed.

DISCUSSION

I. SISTER STATE JUDGMENTS

"Article IV, section 1 of the United States Constitution provides that '[f]ull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.' In accordance with this section, '[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.'" (WV 23 Jumpstart, LLC v. Mynarcik (2022) 85 Cal.App.5th 596, 604-605 (Jumpstart).) In 1974, California enacted the Sister State Money Judgments Act (Code Civ. Proc., § 1710.10 et seq.)^[6] to provide a mechanism for enforcing sister state money judgments in California.

Pursuant to section 1710.15, a judgment creditor can obtain entry of a California judgment based on a sister state judgment by filing an application setting forth certain specified information and attaching an authenticated copy of the sister state judgment. "Upon the filing of the application, the clerk shall enter a judgment ...." (§ 1710.25, subd. (a).)

"'[E]ntry by the clerk of a judgment based upon the application is mandatory [citation], constituting a ministerial act of the clerk and not a judicial act of the court.' [Citation.]. . . The newly entered judgment has the same force and effect as a judgment originally issued by a California court 'and may be enforced or satisfied in like manner.'" (Casey v. Hill (2022) 79 Cal.App.5th 937, 960.)

II. THE MOTION TO VACATE WAS UNTIMELY

A motion to vacate a sister state judgment must be brought within 30 days of service of the notice of entry of judgment. (§ 1710.40, subd. (b).) The trial court found Cynthia's motion was untimely because she was served with the Notice on August 20, 2021, but did not bring her motion to vacate until February 6, 2023-almost two and one-half years later. On appeal, Cynthia argues her motion was not untimely for two reasons: (1) she was not properly served with the Notice, so the 30-day period never began to run; and (2) the 30-day deadline does not apply because the Oregon court did not have personal jurisdiction over her, and lack of personal jurisdiction can be raised at any time.

"The ruling on a motion to set aside a [sister state] judgment rests in the sound...