The 704 Group v. Hairston CA6

Filed 4/13/15 The 704 Group v. Hairston CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE 704 GROUP, LLC, H040325 (Santa Clara County Plaintiff, Cross-defendant and Super. Ct. No. 1-13-CV246118) Respondent,

v.

PATRICIA L. HAIRSTON,

Defendant, Cross-complainant, and Appellant.

Patricia Hairston brought this appeal to challenge the sustaining of a demurrer to her cross-complaint against respondent The 704 Group, LLC. In her cross-complaint appellant sought to set aside a default judgment respondent had obtained against 1 appellant’s estranged spouse. We find no error in the court’s determination that appellant lacks standing to challenge the prior judgment. Accordingly, we must affirm the resulting order of dismissal. Background In January 2013 respondent, a debt collection agency, sued appellant’s estranged spouse, John Hairston (John), to recover a four-year-old debt owed to respondent’s

1 After her opening brief on appeal was filed, we were notified that appellant had been murdered. Her daughter, the administrator of the estate, has pursued the appeal in appellant’s place. For clarity and ease of reference, however, we will continue to refer to the decedent as the appellant.

predecessor in interest. On March 19, 2013, the clerk entered judgment by default for $11,105.44, consisting of the $8,202.03 owed plus costs and prejudgment interest. In May 2013 respondent filed the present action against both John and appellant to set aside an alleged fraudulent transfer of John’s residential property interest to appellant in August 2009. Before then the property had been held by the defendants as community property, and respondent believed that John still lived there and contributed to the mortgage payment. Respondent alleged that the August 2009 transfer had been made without consideration, “with the intent to hinder, delay or defraud creditors of Defendant JOHN H. HAIRSTON, including plaintiff.” Appellant cross-complained for equitable relief, naming respondent and two individuals associated with the company. Citing the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) and the Rosenthal Fair Debt Collection Practices Act (Civ. Code, §§ 1788-1788.33), she sought to set aside the default judgment entered against John, which she alleged had been obtained by extrinsic fraud. The cross-defendants were not legally entitled to recover from John, she asserted, because he had not been properly served in that prior action, because cross-defendants had misrepresented the “character, amount or legal status” of the alleged debt, and because collection of the debt was barred by the applicable statutes of limitations. Appellant referred to John as her “estranged spouse.” The three cross-defendants demurred to the cross-complaint on the ground that appellant lacked standing to challenge the default judgment. In her opposition appellant maintained that although she was not a party to the collection action, she was nonetheless “adversely affected . . . and is at substantial risk of being subject to liability by reason of the rendition of the void judgment.” Appellant alternatively requested leave to amend, citing the “reasonable possibility” that she might be able to “supply the necessary factual allegations.”