Judge: Curtis A. Kin, Case: 21STCV19121, Date: 2022-08-30 Tentative Ruling

Case Number: 21STCV19121    Hearing Date: August 30, 2022    Dept: 72

MOTION TO SET ASIDE DEFAULT AND

VACATE DEFAULT JUDGMENT

Date:               8/30/22 (8:30 AM)

Case:               Baruch C. Cohen, Esq. v. Guy S. Griffithe (21STCV19121)

TENTATIVE RULING:

Defendant Guy Griffithe’s Motion to Set Aside and Vacate Judgment is DENIED.

Plaintiff Baruch C. Cohen, Esq.’s request to take judicial notice of the Court’s April 28, 2022 and July 14, 2022 minute orders is GRANTED, pursuant to Evidence Code § 452(d).

Plaintiff Baruch C. Cohen, Esq.’s evidentiary objections are OVERRULED.

Defendant Guy Griffithe moves to set aside the default and default judgment entered against him on the grounds that he was not properly served. Defendant maintains that he did not have actual notice of this action at time default judgment was entered against him. (Griffithe Decl. ¶ 10.) Defendant maintains he discovered the existence of this action on or about January 21, 2022, after the entry of default judgment, when he investigated an unauthorized inquiry on his credit report. (Griffithe Decl. ¶¶ 3, 5.)

Defendant sought the exact same relief in his motion heard on April 28, 2022. (RJN Ex. A.) The Court denied that motion defendant did not sufficiently demonstrate that the address at a commercial mail receiving agency at which defendant was served with process was not the only address reasonably known for defendant. The Court also found that defendant was not entitled to relief based on CCP §§ 473(b) and 473.5, Civil Code § 1788.61, or equitable grounds. The Court also noted that defendant did not provide a responsive pleading.

Thereafter, defendant again sought the same relief in his “Renewed Motion to Set Aside and Vacate Judgment” heard on July 14, 2022. (RJN Ex. B.) Based on the previous denial of relief on April 28, 2022, the Court deemed defendant’s motion to be a motion for reconsideration. The Court found that defendant could not prevail under CCP § 1008(a), which governs motions for reconsideration, because the motion was not filed within the 10-day deadline. The Court also found that defendant could not prevail under CCP §§ 1008(a) or 1008(b), which governs renewed motions, because he did not sufficiently explain why he did not present the documents and arguments in support of the motion heard on July 14, 2022 earlier.

As for the instant motion, “[t]he name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Because defendant again asks this Court to decide whether the default and default judgment against him should be vacated, which is the same matter on which the Court previously ruled on April 28, 2022 and July 14, 2022, the Court deems this motion a motion for reconsideration under CCP § 1008(a).

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (CCP § 1008(a).) When a party requests reconsideration, the deadline set forth in CCP § 1008(a) is jurisdictional. (Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391 [“[W]e hold that the procedural prerequisites set forth for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation.”].) 

Here, defendant’s prior motion to set aside the default and default judgment was denied on April 28, 2022. Defendant waived notice. (RJN Ex. 1; Code Civ. Proc., § 1019.5 [“When a motion is granted or denied, unless the court otherwise orders, notice of the court’s decision or order shall be given by the prevailing party to all other parties or their attorneys . . . unless notice is waived by all parties in open court and is entered in the minutes”].) Accordingly, defendant had 10 days from April 28, 2022—i.e., May 9, 2022 (because May 8, 2022 was a Sunday)—to file a motion for reconsideration. This motion was untimely filed on May 18, 2022.

The fact that defendant filed the instant motion within 10 days of the July 14, 2022 hearing does not change the fact that defendant first sought to set aside the default and default judgment in the motion heard on April 28, 2022, and defendant had 10 days from April 28, 2022 to seek reconsideration of the denial of that motion. In other words, the Court cannot reconsider the July 14, 2022 ruling because defendant sought the same relief in the motion heard on April 28, 2022, and the time to move to reconsider the April 28, 2022 hearing has expired.

Further, a party seeking reconsideration of a prior ruling must set forth what “new or different facts, circumstances, or law” justify reconsideration of the prior ruling, as also required to establish the Court’s jurisdiction to reconsider a prior ruling under CCP § 1008(a). (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A party moving for reconsideration “must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) In attempting to address the Court’s prior denial of relief based on the failure to demonstrate that the address at which defendant was served with process was not the only address reasonably known for defendant, defendant presents new documents purportedly showing that other addresses for defendant were reasonably accessible to plaintiff. (Mtn. at Exs. C, D.) Defendant also presents a proposed demurrer. (Mtn. at Ex. E.) Defendant also argues that the judgment should be set aside as void under CCP § 473(d). (Motion at 10:10-21.) Defendant also argues that he first filed a motion to set aside and vacate the judgment on February 21, 2022, but the third-party filing system failed to notify him that the filing was rejected. (Griffithe Decl. ¶ 9.)

Defendant argues that he did not present documents earlier because he did not know that exhibits can be attached in support of a motion. (Griffithe Decl. ¶ 12.) The fact that defendant did not effectively argue then existing facts known to defendant is not a ground for reconsideration. (Gilberd, 32 Cal.App.4th at 1500.) Even though defendant is self-represented, “mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–85.) Accordingly, defendant’s self-representation does not excuse his failure to present his best arguments in his April 28, 2022 motion.

CCP § 1008(b) allows a party to file a renewed motion “upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP § 1008(b).) A renewed motion is not subject to a 10-day filing deadline. Even if defendant could avail himself of CCP § 1008(b), defendant’s supporting affidavit must show “what ‘new or different facts, circumstances, or law are claimed’ [citation] to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833, citing CCP § 1008(b).)

As stated above, defendant fails to provide a satisfactory explanation as to why the information presented in the instant motion was not presented earlier. Accordingly, the Court does not have jurisdiction under CCP § 1008(b) to set aside the default and default judgment. (See CCP § 1008(e) [“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final”].) Even if the Court had jurisdiction to hear a renewed motion, whether to grant the motion would still be within the Court’s discretion. (Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 830.) Because defendant’s self-representation does not excuse his failure to present his best arguments in support of the motion heard on April 28, 2022, the Court would decline to exercise such discretion.

The purpose of CCP § 1008 is “to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.” (Even Zohar, 61 Cal.4th at 839–40, internal quotations omitted.)

For the reasons stated above, the motion is DENIED.

In the opposition, plaintiff requested that the Court declare defendant to be a vexatious litigant and order defendant to furnish a security to plaintiff. However, under CCP § 391.1, not only is a noticed motion required, but only defendants may move for a security.

Nevertheless, the Court warns defendant that future attempts to set aside the default and default judgment may subject defendant to an order to show cause under CCP § 128.7(c)(2) as to why he has not violated CCP § 128.7(b)(2) by presenting legal contentions that are not warranted by existing law. If the Court determines that defendant violated CCP § 128.7(b)(2), defendant may be ordered to pay monetary sanctions under CCP § 128.7(c).