Filed 4/16/13 Wolfe Axelrod Weinberger Assocs. v. Spare Backup CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


WOLFE AXELROD WEINBERGER
ASSOCIATES, LLC,
                                                                         E054530
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. INC10007557)
v.
                                                                         OPINION
SPARE BACKUP, INC.,

         Defendant and Appellant.


         APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge.

Affirmed.

         Law Offices of Darrell Palmer and Darrell Palmer for Defendant and Appellant.

         Edwards Wildman Palmer and Erin L. Pfaff for Plaintiff and Respondent.

         Spare Backup, Inc., (hereafter Spare Backup) appeals from the trial court‟s order

denying its motion to vacate a sister state judgment. The order is appealable under Code

of Civil Procedure section 904.1, subdivision (a)(2).1

         1   All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.



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                                              I

                        FACTS AND PROCEDURAL HISTORY

       In May 2006, Spare Backup entered into a consulting agreement with Wolfe

Axelrod Weinberger Associates, LLC (hereafter Wolfe). In 2009, Wolfe filed suit in

New York for breach of the agreement. On January 12, 2010, Wolfe obtained a default

judgment. Spare Backup moved to set aside the default judgment.

       On May 6, 2010, before the court ruled on the motion to set aside the default, the

parties entered into a settlement agreement, which required Spare Backup to pay certain

sums by certain dates. Spare Backup did not make payments in accordance with the

agreement.

       On June 8, 2010, the parties entered into a second settlement agreement. The

agreement also provided for certain payments to be made by certain dates. It states that

“[u]pon default, [Spare Backup] is required to pay Wolfe the amount of $95,000 plus

reasonable attorneys‟ fees and costs . . . and consents to the entry of judgment against it

and in favor of Wolfe in the amount of $95,000 plus attorneys fees and costs . . . .”

       The settlement agreement then provides: “[Spare Backup] consents to the entry of

Judgment in the Supreme Court of New York without notice or demand to it or its

attorneys or agents and expressly waives any and all rights, remedies, defenses, claims,

arguments, and objections regarding the terms, conditions, effect, and enforceability of

this Agreement, the entry, effect, and enforceability of the Judgment, and Wolfe‟s right

and effort to collect [Spare Backup]‟s assets, in whatever form, necessary to satisfy the


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Judgment. [¶] [Spare Backup] further consents that it shall not oppose, dispute or

otherwise seek to prevent the domestication of the Judgment in the State of California.”

       Finally, the settlement agreement provides that New York law is applicable, and

that the “Supreme Court of New York, County of New York shall have exclusive

jurisdiction regarding interpretation and performance of the Agreement and entry and

enforceability of the Judgment.”

       On June 28, 2010, Wolfe‟s attorney signed an “Affirmation in Support of

Judgment.” The document recites the facts and asks that judgment be entered against

Spare Backup in accordance with the settlement agreement. Judgment was entered by the

clerk of the court and filed on July 9, 2010.

       On August 20, 2010, Wolfe filed a notice of entry of judgment on a sister state

judgment. The notice alleged that Wolfe was a judgment creditor of Spare Backup as a

result of a judgment it had obtained against Spare Backup in New York in the amount of

$109,745.

       On September 20, 2010, Spare Backup filed a motion to vacate the New York

judgment on grounds of intrinsic and extrinsic fraud and denial of due process. Spare

Backup argued that section 1710.40 allowed it to assert California defenses to the New

York judgment. These defenses include extrinsic fraud and a denial of due process.

Specifically, Spare Backup objected to a provision in a settlement agreement which

allowed Wolfe, in the event of a default, to enter judgment in New York without notice or

demand to it or its attorneys.


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       In addition, Spare Backup argued that the judgment does not meet California

standards for a confession of judgment. Specifically, it relied on section 1132,

subdivision (b), which requires an attorney certificate to be filed with the confession of

judgment document.

       Spare Backup also argued that the confession of judgment does not meet New

York requirements because it was not based on an affidavit from Spare Backup, as

required under New York‟s Civil Practice Law and Rules (NYCPL), section 3218.

Finally, Spare Backup argued that the attorney fees Wolfe sought were not authorized by

the settlement agreement.

       The motion was heard on November 24, 2010. The trial court found no due

process violation and denied the motion.

                                             II

                                           ISSUE

       Spare Backup raises only one issue on this appeal: Was the confessed judgment

entered in New York invalid for failure to comply with New York‟s confessed judgment

statute? Spare Backup argues that the judgment did not conform to New York law, and

that the judgment is therefore void and cannot be confirmed in California.

                                             III

                            SPARE BACKUP‟S ARGUMENT

       Spare Backup relies on NYCPL section 3218. Subdivision (a) of that section

states: “Affidavit of defendant. . . . [A] judgment by confession may be entered, without


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an action, either for money due or to become due, or to secure the plaintiff against a

contingent liability in behalf of the defendant, or both, upon an affidavit executed by the

defendant . . . .” Spare Backup‟s position is that any judgment under that section is void

because Spare Backup, the defendant, did not sign any such affidavit.

       Accordingly, Spare Backup argues that, under section 1710.40, subdivision (a),

the trial court could vacate any judgment “on any ground which would be a defense to an

action in this state on the sister state judgment . . . .”

       To complete its argument, Spare Backup contends that Wolfe acted fraudulently

by submitting the judgment to the New York court without an affidavit by Spare Backup.

                                                IV

                                   WOLFE‟S ARGUMENT

       In response, Wolfe argues (1) Spare Backup cannot assert its argument without

also showing that it had a meritorious defense to the debt collection action; (2) the

judgment was proper under NYCPL sections 3215, subdivision (i), and 3218 is

inapplicable; and (3) even if NYCPL section 3218 was applicable, Wolfe complied with

it and satisfied the requirements of that section.

       For the reasons discussed below, we agree with Wolfe‟s first two contentions.




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       A.      Spare Backup Did Not Show It Had a Meritorious Defense

                to Wolfe’s Action.

       The two settlement agreements clearly evidence Spare Backup‟s debt to Wolfe

and Spare Backup‟s failure to pay it. Because Spare Backup has not shown a meritorious

defense to the action, it cannot set the judgment aside.

       In New York Higher Education Assistance Corp. v. Siegel (1979) 91 Cal.App.3d

684 (Siegel), Siegel borrowed $1,800 from a New York savings and loan association for

his education. The loan was guaranteed by plaintiff. When Siegel failed to pay the loan,

plaintiff took an assignment of the loan and sued Siegel in New York. A summary

judgment motion was granted. (Id. at p. 686.)

       Plaintiff then applied for entry of the judgment in California as a sister state

judgment under section 1710.15. As here, Siegel moved to vacate the judgment under

section 1710.40 on grounds that it was obtained by extrinsic fraud. (Siegel, supra, 91

Cal.App.3d at pp. 686-687.) The alleged extrinsic fraud was an alleged lack of notice of

the summary judgment proceeding and Siegel‟s alleged lack of knowledge that he had a

legal obligation to repay the loan because he was a minor. But the promissory note said

otherwise. (Id. at pp. 686-688.)

       Relevant here, the court held: “[S]ection 1710.40 provides: „A judgment entered

pursuant to this chapter may be vacated on any ground which would be a defense to an

action in this state on the sister state judgment, . . .‟ It is critical to a defense, as here, of

„extrinsic fraud‟ in the obtaining of a judgment, that the party allege facts establishing a


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meritorious defense to the action in which the judgment was entered.” (Siegel, supra,

91 Cal.App.3d at p. 688.)

       The court explained: “The record conclusively establishes that the New York

court had jurisdiction over the subject of the action there filed, and also jurisdiction over

the parties, for both of them had appeared therein. Its judgment was therefore entitled to

„full faith and credit‟ under article IV, section 1, of the federal Constitution. [Citation.]

It was to be given the same effect as though it had been a final judgment rendered by a

court of this state. [Citation.] California „must, regardless of policy objections,

recognize the judgment of another state court as res judicata; and this is so even though

the action or proceeding which resulted in the judgment could not have been brought

under the law or policy of [this state‟s] forum, . . .‟ [Citation.]” (Siegel, supra, 91

Cal.App.3d at p. 688.)

       The Siegel court concluded by saying: “„A valid judgment will not be set aside

merely because it was obtained by extrinsic fraud or mistake, in order to give the barren

right to an adversary hearing. The plaintiff must plead and prove that he has a

meritorious case, i.e., a good claim or defense which, if asserted in a new trial, would be

likely to result in a judgment favorable to him.‟ [Citation.] [¶] . . . „Ordinarily equity

will not interfere with a judgment on the ground of extrinsic fraud or mistake unless the

one whose interests were infringed can present a meritorious case; the plaintiff must

plead and prove facts from which it appears, at least prima facie, that if the judgment




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were set aside and the proceedings were reopened, a different result would probably

follow . . . .‟” (Siegel, supra, 91 Cal.App.3d at pp. 688-689.)

       Since Spare Backup has not met its burden of showing it had a meritorious defense

to the action, the California sister state judgment cannot be set aside. (See Liquidator of

Integrity Ins. Co. v. Hendrix (1997) 54 Cal.App.4th 971, 978-979; Tsakos Shipping &

Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 89-90

[Fourth Dist., Div. Two].)

       “As long as the sister state court had jurisdiction over the subject matter and the

parties, a sister state judgment is entitled to full faith and credit „even as to matters of law

or fact erroneously decided.‟ [Citations.]” (Bank of America v. Jennett (1999) 77

Cal.App.4th 104, 118 (Jennett).) In Jennett, the court concluded: “Here, too, while „it

sometimes may be difficult to decide whether certain words in a statute are directed to

jurisdiction or to merits, . . . the distinction between the two is plain. One goes to the

power, the other only to the duty, of the court.‟ [Citation.] The Hawaii court‟s authority

to enter a deficiency judgment in this case was based on its interpretation of its statutory

duty, not on its jurisdictional power since it had personal jurisdiction over Jennett, service

by publication having been properly effectuated. Accordingly, because Hawaii had

jurisdiction over the subject matter and the parties in the Hawaii action, we—a California

court—may not second-guess whether the Hawaii court erred in construing Hawaii law to

give it the right to enter a deficiency judgment, and must accord full faith and credit to

the Hawaii judgment.” (Id. at pp. 120-121.)


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       The same is true here: Even if the New York judgment was erroneous as a matter

of New York law, it was not challenged by Spare Backup in New York, and we must

give it full faith and credit as a sister state judgment under section 1710.15.

       B.     The Judgment Was Proper Under NYCPL Section 3215, Subdivision (i).

       The judgment entered in New York was not technically a confession of judgment.

Confessions of judgment for money due are normally entered without an action being

filed. (Code Civ. Proc., § 1132; NYCPL § 3218, subd. (a).) In this case, a case had been

filed and Wolfe had obtained a default judgment before the settlement agreements were

negotiated.

       We agree with Wolfe that, in this situation, the applicable code section is NYCPL

section 3215, subdivision (i). NYCPL section 3215 is entitled “Default judgment.”

Subdivision (i) is titled: “Default judgment for failure to comply with stipulation of

settlement.” It states: “1. Where, after commencement of an action, a stipulation of

settlement is made, providing, in the event of failure to comply with the stipulation, for

entry without further notice of a judgment in a specified amount with interest, if any,

from a date certain, the clerk shall enter judgment on the stipulation and an affidavit as to

the failure to comply with the terms thereof, together with a complaint or a concise

statement of the facts on which the claim was based. [¶] 2. Where, after commencement

of an action, a stipulation of settlement is made, providing, in the event of failure to

comply with the stipulation, for entry without further notice of a judgment dismissing the

action, the clerk shall enter judgment on the stipulation and an affidavit as to the failure


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to comply with the terms thereof, together with the pleadings or a concise statement of

the facts on which the claim and the defense were based.”

        NYCPL section 3215, subdivision (i) precisely describes the situation here. There

was a default judgment followed by a settlement agreement. The settlement agreement

provided for entry of judgment upon failure to follow the settlement agreement. A

judgment was entered based upon an affidavit, which showed the failure to comply with

the terms of the settlement. Under this section, the affidavit of defendant, which serves a

different purpose, is not required. (See generally County Nat’l Bank v. Vogt (1967) 28

A.D.2d 793, 794; Baehre v. Rochester Dental Prosthetics, Inc. (1982) 446 N.Y.S.2d 901,

902.)

        The trial court did not err in denying Spare Backup‟s motion to vacate the valid

New York judgment.

                                             V

                                      DISPOSITION

        The trial court‟s order denying Spare Backup‟s motion to vacate a sister state

judgment is affirmed. Respondent shall recover its costs on appeal.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                               RICHLI
                                                                                           J.
We concur:

McKINSTER
                 Acting P. J.

KING
                           J.

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