This case was last updated from Los Angeles County Superior Courts on 03/28/2019 at 00:32:19 (UTC).

BANK OF AMERICA, NA VS. GUSTAVOE E. BELLINGHAUSEN

Case Summary

On 11/06/2009 BANK OF AMERICA, NA filed a Contract - Other Contract lawsuit against GUSTAVOE E BELLINGHAUSEN. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is JAN A. PLUIM. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4080

  • Filing Date:

    11/06/2009

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JAN A. PLUIM

 

Party Details

Plaintiff

BANK OF AMERICA NA

Defendants

CAL MART FURNITURE SHOWROOMS AKA CAL MART

BELLINGHAUSEN GUSTAVO

DOES 1 TO 100

BELLINGHAUSEN ELIZABETH

BELLINGHAUSEN GUSTAVO E.

BELLINGHAUSEN ELISABETH

BELLINGHAUSEN ELIZABETH AKA ELISABETH BELLINGHAUSEN DBA CAL MART FURNITURE SHOWROOMS AKA CAL MART FURNITURE

CAL MART FURNITURE SHOWROOMS

BELLINGHAUSEN GUSTAVO E. AKA GUSTAVO BELLINGHAUSEN DBA CAL MART FURNITURE SHOWROOMS AKA CAL MART FURNITURE

CAL MART FURNITURE

Assignee

NDS LLC

Attorney/Law Firm Details

Plaintiff Attorney

HEMAR ROUSSO & HEALD LLP

 

Court Documents

Notice of Case Management Conference

11/6/2009: Notice of Case Management Conference

Summons

11/6/2009: Summons

Civil Case Cover Sheet

11/6/2009: Civil Case Cover Sheet

Unknown

12/4/2009: Unknown

Unknown

1/15/2010: Unknown

Unknown

2/4/2010: Unknown

Unknown

2/4/2010: Unknown

Unknown

2/16/2010: Unknown

Assignment of Judgment

7/26/2016: Assignment of Judgment

Assignment of Judgment

7/19/2018: Assignment of Judgment

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/16/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

9/20/2018: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Unknown

11/30/2018: Unknown

Abstract of Judgment?Civil and Small Claims

1/23/2019: Abstract of Judgment?Civil and Small Claims

Application for and Renewal of Judgment

3/8/2019: Application for and Renewal of Judgment

Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

3/8/2019: Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest

Unknown

3/21/2019: Unknown

14 More Documents Available

 

Docket Entries

  • 03/21/2019
  • Request For Copies

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  • 03/15/2019
  • Proof of Service (Renewal of Judgment); Filed by NDS, LLC (Assignee)

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  • 03/08/2019
  • Application for and Renewal of Judgment; Filed by NDS, LLC (Assignee)

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  • 03/08/2019
  • Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest; Filed by NDS, LLC (Assignee)

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  • 03/08/2019
  • Notice (Notice of Renewal of Judgment); Filed by NDS, LLC (Assignee)

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  • 01/23/2019
  • Abstract of Judgment - Civil and Small Claims; Filed by NDS, LLC (Assignee)

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  • 01/23/2019
  • Assignment of Judgment; Filed by NDS, LLC (Assignee)

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  • 11/30/2018
  • Notice of Rejection - Post Judgment; Filed by Clerk

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  • 10/01/2018
  • Writ issued; Filed by Assignee

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  • 09/20/2018
  • Memorandum of Costs; Filed by Assignee

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21 More Docket Entries
  • 01/15/2010
  • Default Entered; Filed by BANK OF AMERICA, NA (Plaintiff)

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  • 01/15/2010
  • Default Entered (DUALLY AND dba CAL MART FURNITURE SHOWROOMS aka CAL MART FURNITURE ); Filed by Attorney for Plaintiff

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  • 12/04/2009
  • Proof-Service/Summons; Filed by BANK OF AMERICA, NA (Plaintiff)

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  • 12/04/2009
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 12/04/2009
  • Proof-Service/Summons; Filed by BANK OF AMERICA, NA (Plaintiff)

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  • 11/06/2009
  • Complaint Filed

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  • 11/06/2009
  • Notice of Case Management Conference; Filed by Clerk

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  • 11/06/2009
  • Civil Case Cover Sheet; Filed by BANK OF AMERICA, NA (Plaintiff)

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  • 11/06/2009
  • Complaint; Filed by BANK OF AMERICA, NA (Plaintiff)

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  • 11/06/2009
  • Summons (on Complaint)

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Tentative Rulings

Case Number: GC044080    Hearing Date: February 07, 2020    Dept: A

Bank of America (NDS, LLC assignee) v Bellinghausen,

Motion to Dismiss

Calendar:

11

Case No.:

GC044080

Hearing Date:

February 07, 2020

Action Filed:

November 06, 2009

Trial Date:

Not Set

MP:

Defendant Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen, individually

RP:

Assignee of Record/Judgment Creditor NDS, LLC

ALLEGATIONS:

The instant action arises out of a $85,003.00 loan agreement by and between Plaintiff Bank of America, N.A. (“Plaintiff”), and Defendants Gustavo E. Bellinghausen a/k/a Gustavo Bellinghausen, individually and d/b/a Cal Mart Furniture Showrooms a/k/a Cal Mart Furniture; and Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen, individually and d/b/a Cal Mart Furniture Showrooms a/k/a Cal Mart Furniture (the “Defendants”).

Plaintiff filed its Complaint on November 06, 2009, alleging four causes of action sounding in (1) Breach of Written Agreement, (2) Money Lent, (3) Account Stated, and (4) Unjust Enrichment.

PRESENTATION:

The action proceeded to Judgment against Defendants in the amount of $96,160.34 (inclusive of the underlying loan, interest, attorney’s fees, costs, and other expenses) on February 16, 2010. The Judgment was thereafter assigned to Security Credit Services, LLC, on or about July 26, 2016, and thereafter assigned to Assignee of Record/Judgment Creditor NDS, LLC (“NDS”) on July 19, 2018. Defendant Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen (“Elisabeth”), successfully moved to set aside the default judgment on November 08, 2019.

The instant motion to dismiss was filed by Elisabeth on January 08, 2020. NDS opposed the motion on January 27, 2020, and Elisabeth filed a reply on January 31, 2020.

RELIEF REQUESTED:

Elisabeth moves to dismiss for failure to serve within 3 years and failure to bring the action to trial within 5 years of filing the motion under Code of Civ. Proc. §§583.210 & 583.310 et seq.

DISCUSSION:

Standard of Review – Code of Civ. Proc. §583.210 provides that a summons and complaint must be served upon a defendant within three years of commencement of the action. Code of Civ. Proc. §583.310 provides that an action must be brought to trial within five years of commencement. Section 583.210 is subject to tolling as described in Code of Civ. Proc. §583.240 – which permits tolling under the four circumstances of unavailability, during a stay, litigation of the validity of service, and impossibility of service – and Section 583.310 is subject to tolling as described in Code of Civ. Proc. §583.340 – which permits tolling when the court’s jurisdiction is suspended, during a stay, and impossibility.

As to the issue of service, Elisabeth argues that the Code mandates dismissal under the instant circumstances, pursuant to Code of Civ. Proc. §583.250, and relies on County of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215 (“Gorham”) to support her argument. In Gorham, the Fourth District Court of Appeal held that because the defendant had never been properly served, the default judgement entered against him must be vacated, and that the six month limitation in Family Code §3691 did not foreclose the defendant’s ability to dismiss the action under Code of Civ. Proc. §583.210, thereby entitling him to both the vacation of judgment and dismissal for failure to serve summons within three years.

In opposition to these arguments, NDS advances the argument that the three-year service period was tolled on several grounds: First, that the service requirement was tolled under Code of Civ. Proc. §583.240(c), and Second, that the service requirement was tolled under Code of Civ. Proc. §583.240(d). Further, NDS argues that the Court should deem service tolled for the period in which the default judgment was in existence, and that the Court should deem the three-year service requirement waived by Elisabeth for accepting service on December 03, 2019.

The Court holds that, in regard to the first exception argued for by NDS, there is nothing in the record to indicate that “[t]he validity of service was the subject of litigation by the parties” for the period stretching between the putative service of summons on November 17, 2009, and the filing of Elisabeth’s motion to vacate for failure to serve her with summons on October 10, 2019. As such, the nearly ten-year period between those dates cannot reasonably be considered a period during which the service period was tolled on the basis of the exception under Code of Civ. Proc. §583.240(c). Further, the Court notes that NDS provides no legal authority to support this argument, and absent a good faith basis for the modification or extension of an existing law, litigants are generally prohibited from asserting a position in litigation without authority. See, e.g., In re Estate of Randall (1924) 194 Cal. 725, 728-29 (“Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.”)(internal quotations omitted); California Rules of Professional Conduct, Rule 3.1.

Reviewing the matter of the second exception argued by NDS, the Court has conducted its own research into the issues and finds the case Shipley v. Sugita (1996) 50 Cal. App. 4th 320 to be instructive. In Shipley, a self-represented plaintiff attempted to serve the defendant, Mr. Sugita of Japan, with service of process, but failed to comply with the Hague Conventions relating to international service resulting in Mr. Sugita successfully quashing service. Thereafter Mr. Shipley hired an attorney who represented to Mr. Shipley that they had served Mr. Sugita with the summons pursuant to the requirements of the Hague Convention, his attorney committed misconduct and ultimately failed to effectuate service on the defendant. Mr. Sugita then moved to dismiss pursuant to Code of Civ. Proc. §583.210, the trial court granted the motion, and the court of appeals affirmed the dismissal. In its analysis, the court of appeal considered the issue of tolling under circumstances that are similar to those presented here: the plaintiff knew the location of the defendant, the client believed that the summons had been correctly served, and the plaintiff argues that the time in which there was a reasonable belief in the adequacy of service of summons should be tolled. In its analysis, the court noted that because “a plaintiff exercising due diligence is in control of the time of service of summons… the exceptions codified in section 583.240, subdivision (d) must be construed strictly against the plaintiff.” Shipley v. Sugita (1996) 50 Cal. App. 4th 320, 326. It held that “subdivision (d), by its very terms, limits its exceptions to circumstances ‘beyond the plaintiff's control.’ Here, the failure to accomplish timely service was within Shipley's control.” Ibid.

So too here. As this Court noted in its analysis of Elisabeth’s previous motion to set aside the default judgment:

Based on the exhibits and arguments, the Court concludes that the likely sequence of events is as follows: Following the divorce decree, Elisabeth considered all legal liability predicated on the loan agreement forming the basis of the instant action to have been adjudicated as belonging to Gustavo. Based on that understanding of the ownership of the liabilities owing to Plaintiff, Elisabeth informed Plaintiff to seek any redress for the loan from Gustavo, as Gustavo now bore legal responsibility for the loan as between her and Gustavo. Plaintiff took the letter as being an authorization to serve the Complaint at the business address, and to Gustavo. Gustavo, then, upon receiving service of Elisabeth’s Summons and Compliant, failed to deliver the Summons and Complaint to Elisabeth, resulting in Elisabeth’s lack of actual knowledge of her personal involvement in the litigation as a defendant.

Based on the Court’s review of the moving papers, the Complaint, and the relevant Proof of Service, the Court holds that the substituted service of Elisabeth, individually, was not authorized by Elisabeth’s March 14, 2009, letter, which only served to inform that 100% of the ownership of the business had been transferred to Gustavo, including the relevant debt. As substituted service under Code of Civ. Proc. §416.90 was unauthorized, and Plaintiff had specifically informed Plaintiff of her lack of interest in the business where service was attempted, Plaintiff’s delivery of the Summons and Complaint to that location is evidence of a willful avoidance of proper service on Elisabeth.

November 08, 2019, Minute Order, pp. 3. Appropriate service was within the control of Plaintiff, and Plaintiff willfully avoided proper service on Elisabeth. Because the circumstance were not beyond Plaintiff’s control, NDS cannot obtain the benefit of the exception provided in Code of Civ. Proc. §583.240(d).

As to the remaining arguments advanced by NDS to toll the service – the existence of a judgment and acceptance of service on December 03, 2019 – NDS has provided no basis in law for the Court to consider the merits of these arguments. The Court has already noted that arguments unsupported by law are generally prohibited, and will further note that the citation to general propositions of law, general statutes and rules, or the assertion that a legal principle applies, without analysis or authority, provides no basis for the court to analyze or adopt the request of the party, and requires no substantive analysis by the court. See Lafferty v. Wells Fargo Bank (2013) 213 Cal. App. 4th 545, 571-72 (“When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’”); Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 850 (“In a page and a half, and with citation to but one case for the general proposition the conduct was despicable, [Cross-Appellant appeals] from the granting of the directed verdict motion. This cursory treatment requires no discussion by us.”); Atchley v. City of Fresno (1984) 151 Cal. App. 3d 635, 647 (“Where a point is merely asserted by appellant's counsel without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court.”).

To the extent that the arguments require any analysis whatsoever, the Court holds: (1) Acceptance of service beyond the deadline does not constitute a waiver, as such a holding would completely nullify the requirement of Code of Civ. Proc. §583.210 to serve within three-years; and (2) The existence of a default judgment is not one of the exceptions enumerated in Code of Civ. Proc. §583.240 and therefore does not constitute one of the statutory bases for tolling. On the second matter, the Court considers that permitting a default based on failure to serve to act as a toll on litigation would create a perverse incentive to not serve defendants, take their defaults, and proceed to litigate the action only if and when their failure to serve is discovered – otherwise collecting on fraudulently obtained defaults from defendants with no notice of pending actions against them.

Accordingly, the Court will grant the motion to dismiss pursuant to Code of Civ. Proc. §583.210. Pursuant to this analysis, the Court will not analyze the alternative grounds for dismissal pursuant to Code of Civ. Proc. §583.310.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen’s Motion to Dismiss came on regularly for hearing on February 07, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED.

DATE: _______________ _______________________________

JUDGE

Case Number: GC044080    Hearing Date: November 08, 2019    Dept: A

Bank of America (NDS, LLC, assignee) v Bellinghausen

Motion to Set Aside Void Judgment

Calendar:

20

Case No.:

GC044080

Hearing Date:

November 08, 2019

Action Filed:

November 06, 2009

Trial Date:

February 16, 2010

MP:

Defendant Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen, individually

RP:

Assignee of Record/Judgment Creditor NDS, LLC

ALLEGATIONS:

The instant action arises out of a $85,003.00 loan agreement by and between Plaintiff Bank of America, N.A. (“Plaintiff”), and Defendants Gustavo E. Bellinghausen a/k/a Gustavo Bellinghausen, individually and d/b/a Cal Mart Furniture Showrooms a/k/a Cal Mart Furniture; and Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen, individually and d/b/a Cal Mart Furniture Showrooms a/k/a Cal Mart Furniture (the “Defendants”).

Plaintiff filed its Complaint on November 06, 2009, alleging four causes of action sounding in (1) Breach of Written Agreement, (2) Money Lent, (3) Account Stated, and (4) Unjust Enrichment.

PRESENTATION:

The action proceeded to Judgment against Defendants in the amount of $96,160.34 (inclusive of the underlying loan, interest, attorney’s fees, costs, and other expenses) on February 16, 2010.

The Judgment was thereafter assigned to Security Credit Services, LLC, on or about July 26, 2016, and thereafter assigned to Assignee of Record/Judgment Creditor NDS, LLC (“NDS”) on July 19, 2018.

The instant motion to set aside the default judgment was filed by Defendant Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen (“Elisabeth”) on October 10, 2019. NDS opposed the motion on October 23, 2019. A late-filed reply brief has been received.

RELIEF REQUESTED:

Elisabeth moves to vacate the default judgment on the grounds that the judgment is void for failure to effectuate service of the Complaint on Elisabeth.

DISCUSSION:

Standard of Review – Pursuant to Code of Civ. Proc. §473(d) the Court “may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

The sole ground stated for relief is that Elisabeth was not served at her residence, but instead was served by substituted service, which Elisabeth contends resulted in a failure to provide actual notice of the instant litigation. Notice of Motion, 1:28-2:7. In making her argument, Elisabeth relies on County of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215. In Gorham, the 4th District Court of Appeals held that the trial court abused its discretion in failing to vacate a 1998 default in 2008 when the trial court “specifically found Gorham had rebutted the facts stated in the proof of service because the evidence showed he had been incarcerated at the time he was alleged to have been personally served, which rendered the default judgment in this matter void for lack of personal jurisdiction. It also found that a false proof of service, as in this case, constitutes extrinsic fraud.” County of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1224. The trial court in the Gorham action additionally considered that Gorham’s child support obligations would have been “nil” if Gorham “had been participating all along”, due to “the fact that [] Gorham had spent most of the time incarcerated”. County of San Diego v. Gorham (2010) 186 Cal. App. 4th 1215, 1223.

In opposition to Elisabeth’s argument for relief based on Gorham, NDS contends that (1) Elisabeth authorized service of the complaint at the business address by and through a March 14, 2009, letter included as Exhibit C to Elisabeth’s motion; (2) that substituted service is a valid method of service; (3) that there was substantial compliance with the service statute such that setting aside the judgment should not occur under case authority such as Ramos v. Homeward Residential, Inc. (2014) 223 Cal. App. 4th 1434; (4) that NDS is not bound by the marriage dissolution judgment that allocated debts to Gustavo, as between Gustavo and Elisabeth, and is permitted to reach Elisabeth’s property through Fam. Code §916(a)(1); and (5) that if the Court is inclined to vacate judgment, then the statute of limitations should be tolled under Code of Civ. Proc. §§583.240(c) & 583.340(c).

Based on the exhibits and arguments, the Court infers that the likely sequence of events is as follows: Following the divorce decree, all legal liability between the marital partners predicated on the loan agreement forming the basis of the instant action to have been adjudicated as belonging to Gustavo, eliminating Elisabeth’s personal interest in the debt. Based on Elisabeth’s understanding of the ownership of the liabilities owing to Plaintiff, Elisabeth informed Plaintiff ‘s assignor Bank of America to seek any redress for the loan from Gustavo, as Gustavo now bore sole legal responsibility for the indebtedness of the business. Bank of America took the letter as being a directive to conduct all debt-related transactions through Gustavo at the business address, but did not note that Elisabeth was no longer at that address. Gustavo, then, upon receiving service of Elisabeth’s Summons and Compliant, failed to deliver the Summons and Complaint to Elisabeth, resulting in Elisabeth’s lack of actual knowledge of her personal involvement in the litigation as a defendant. The court has also examined the original 1996 credit application (attached to the complaint) , and it does not appear to provide that the business address is designated as the place for service of notices or process.

Based on the Court’s review of the moving papers, the Complaint, and the relevant Proof of Service, the Court finds that the substituted service of Elisabeth, individually, was not authorized by Elisabeth’s March 14, 2009, letter, which only served to inform that 100% of the ownership of the business had been transferred to Gustavo, which also included the relevant debt. As such, the substituted service under Code of Civ. Proc. §416.90 was at an unauthorized address, and Elisabeth had specifically informed Plaintiff of her lack of interest in the business where service was attempted, Plaintiff’s delivery of the Summons and Complaint purporting to hail Elisabeth into Court both personally and on behalf of the business demonstrates an avoidance of proper service on Elisabeth.

To the extent that NDS relies on Ramos v. Homeward Residential, Inc. (2014) 223 Cal. App. 4th 1434 to stand for the proposition that Plaintiff substantially complied with the service requirements, the Court notes that the Ramos court held that service was ineffective on a corporation when the party arguing for effective service fails to establish that “the person to be served in fact actually received the summons.” Ramos v. Homeward Residential, Inc. (2014) 223 Cal. App. 4th 1434, 1443 (emphasis original). Here, no such argument has been advanced by NDS, and NDS inverts the burden by arguing that Elisabeth much establish proof of fraudulent service. Opposition, 6:8-15.

NDS further argues that the time to serve should be tolled under Code of Civ. Proc. §§583.240(c) & 583.340(c), but the Court will not make a determination on the issue, as the matter is not properly before the Court and is based on NDS’s assumption that Elisabeth will move to dismiss the action against her for failure to bring the action to trial within 5 years. If Elisabeth makes such motion, the Court will rule on the matters brought before it at that time.

Accordingly, the Court will grant the instant motion.

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.

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RULING: Motion is granted

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Elizabeth Bellinghausen a/k/a Elisabeth Bellinghausen’s Motion to Set Aside came on regularly for hearing on November 08, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED. The judgment is set aside as renewal of a void judgment.

DATE: _______________ _______________________________

JUDGE