Rivercourt Co. Ltd. v. Dyna-Tel, Inc.

Rivercourt Company Limited appeals from the trial court’s order setting aside a confession of judgment against respondent Dyna-Tel, Inc., pursuant to Code of Civil Procedure, section 473. Rivercourt contends that the trial court erred in finding that the confession of judgment was fraudulently entered. We conclude that the trial court properly set aside the confession of judgment because the declaration filed pursuant to section 1132, subdivision (b), certifying that Dyna-Tel was advised of the waiver of rights and defenses under the confession of judgment procedure, was not executed by independent counsel.

Factual Background

On September 16, 1994, the superior court issued a statement of tentative decision in the matter of Garcia v. Hejmadi (Super. Ct. S.F. County, 1994, No. 938708). In the decision, the court declared that third party claimant Antonio M. Garcia was the 100 percent owner of Dyna-Tel, and that Vivek Hejmadi, who had been the president of Dyna-Tel, was not an owner of Dyna-Tel and had no rights or claims to its assets. The court further found that Dyna-Tel had one asset—the net proceeds of a judgment obtained in the case of Dyna-Tel v. Lakewood (U.S.…