Judge Elaine Lu, Case Number: BC430652, Date: 2024-06-24 Tentative Ruling

This is an action arising from the failure to pay for goods and services. Plaintiff Trendy Textiles, Inc. (“Plaintiff”) alleged that Defendants The Robeworks, Inc. dba Robeworks dba Robeworks International, and David Harkham (“Harkham”) (jointly “Defendants”) ordered and received custom textiles from Plaintiff but failed to pay for them.

On January 28, 2010, Plaintiff filed the instant action against Defendants. The complaint asserted three causes of action for (1) Breach of Contract, (2) Money Due on an Open Book Account, and (3) Money Due on an Account Stated.

On May 24, 2010, Defendants filed an answer to the complaint. On July 13, 2010, the Clerk’s office voided Defendants’ answer for failure to timely pay the administrative fees pursuant to Code of Civil Procedure § 411.20(b). On July 30, 2010, the Court entered default as to Defendants. On December 30, 2010, the Clerk entered default judgment against Defendants for $36,700.49. On October 18, 2018, the judgment was renewed.

On November 9, 2023, Defendant Harkham filed the instant motion to vacate the renewal of judgment. On November 27, 2023, Defendant Harkham filed the instant motion to quash the subpoena for production of business records directed to JP Morgan Chase Bank, N.A. On March 15, 2024, Plaintiff filed oppositions to both motions. On June 11, 2024, Defendant Harkham filed his respective replies.

“A money judgment is enforceable for 10 years from the date of its entry. [Citations.] However, there are two alternative methods to extend the life of a money judgment. First, a judgment creditor may file a separate action on the judgment. A judgment creditor may bring an independent action on a judgment even after the 10 year enforceability period has expired if the 10–year statute of limitations in [Code of Civil Procedure] section 337.5 has not yet run.” (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200–201.) Alternatively, “[i]n the Enforcement of Judgments Law, the Legislature adopted an alternative summary procedure for renewal. [Citations.] Under this procedure, a money judgment is enforceable for 10 years from the date it is entered. [Citation.] To obtain a renewal of the judgment, the judgment creditor must file an application for renewal with the clerk of the court that entered the judgment before the expiration of the 10–year period of enforceability.” (Altizer v. Highsmith (2020) 52 Cal.App.5th 331, 338.) “The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment.” (Goldman v. Simpson (2008) 160 Cal.App.4th 255, 262.)

However, “[t]he statutory renewal procedure was intended to save time and money while remaining fair to the judgment debtor by affording him or her the opportunity to assert any defense that could have been asserted in an independent action.” (Fidelity Creditor Service, Inc., supra, 89 Cal.App.4th at p.201.) Accordingly, “[t]he renewal of a judgment pursuant to [the statutory renewal of judgment] may be vacated on any ground that would be a defense to an action on the judgment…” (CCP § 683.170(a).)

“The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170.” (Fidelity Creditor Service, Inc., supra, 89 Cal.App.4th at p.199.)

“Discovery in connection with enforcement of a judgment is set forth in the Enforcement of Judgments Law (§ 680.010 et seq.). The Civil Discovery Act applies to discovery in postjudgment enforcement proceedings only to the extent provided in sections 708.010 through 708.030 of the Enforcement of Judgments Law. (§ 2016.070.) In this regard, the discovery methods available to a judgment creditor include the ability to propound written interrogatories on the judgment debtor and to demand the production of documents from the judgment debtor. (§§ 708.020, 708.030.)” (Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1223.) As to third parties, “any person with knowledge leading to enforcement of the judgment can be subpoenaed to testify before the court or a referee in an examination proceeding in the same manner as a trial witness. (CCP §§ 708.130, 708.140; see Shrewsbury Mgmt., Inc., supra, 332 Cal.App.5th at pp.1219, 1224-1225, [judgment creditor permitted to serve subpoena duces tecum on third party bank under CCP § 708.110 to obtain records for two entities' accounts over which judgment debtor had signatory authority]; see also Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate (2017) 11 Cal.App.5th 509, 514-515, [court can use CCP § 187 power to fashion appropriate procedure for third party examination to extent § 708.130 does not apply for the enforcement of a judgment].)
“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which this subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum.” (CCP § 1985.3(g).) Pursuant to a motion under section 1987.1, the court “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP § 1987.1(a).)

Though the parties do not raise the issue, the Court notes that the instant motion to vacate the renewal of judgment is timely.

“Once the notice of renewal is served, the debtor has [60] days to make a motion to vacate or modify the renewal.” (Altizer v. Highsmith (2020) 52 Cal.App.5th 331, 339 [bold and italics added]; CCP § 683.170(b).) “The judgment creditor shall serve a notice of renewal of the judgment on the judgment debtor. Service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk.” (CCP § 683.160(a), [bold and italics added].)

Here, the court record is bereft of any indication of any attempt to serve the notice of renewal on Defendant Harkham in the nearly six since the renewal of the judgment on October 18, 2018.[1] The only notice of renewal on file is the one that the Court served on Plaintiff’s Counsel. (See Notice of Renewal filed 11/7/18; Harkham 11/9/23 Decl. ¶ 5, Exh. 2.) As Plaintiff failed to file proof of service of the notice of renewal, the 60-day deadline from service of the notice of renewal to bring the instant motion to vacate the renewal of judgment has not begun to run.

Moreover, Defendant Harkham states that he did not receive notice of the renewed judgment until September 13, 2023 – when he received a Notice of Levy under writ of execution. (Harkham 11/9/23 Decl. ¶ 6, Exh. 3.)[2] After receiving this notice of levy, Defendant Harkham brought the instant motion 57 days later. (Harkham 11/9/23 Decl. ¶ 6.) Accordingly, the instant motion to vacate the renewal of judgment is timely.

Defendant Harkham Fails to Show any Grounds That Would Warrant the Vacating the Renewal of Judgment

Defendant Harkham contends that “pursuant to section 683.170(a), Mr. Harkham has a complete defense to the action for two reasons, namely because (1) plaintiff never delivered the goods, and (2) Mr. Harkham was not a party to the original obligation even had plaintiff delivered the goods.” (Motion to Vacate Renewal at p.3:24-27.) Both contentions are unavailing.

Because he is in default, Defendant Harkham admits all well pled allegations in the complaint. (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 749 [“Although by a default a defendant admits the allegations in the complaint, the defendant who fails to answer admits only facts which are well pleaded.”]; accord First American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 45.)

Here, the complaint alleges that on “September 10, 2008, Defendants, and each of them, entered into an agreement with Plaintiff for the payment upon custom textiles ordered by Defendants. The terms of such agreement include Defendants’ ‘personal guarantee to [ ] Trendy Textiles for the outstanding balance of $59,025.14 (under invoice #10053, 10056, 10058, 10059, 10060) that The Robe Works owes to Trendy Textiles, Inc.’” (Complaint ¶ 15, [bold and italics added].) On “October 21, 2008, Defendants breached the agreement by failing to make payment upon the remaining balance of $29,025.14 as agreed.” (Id. ¶ 18, [bold and italics added].) “Plaintiff has performed all conditions, covenants and promises required by it on its part to be performed in accordance with the terms and conditions of the contract, except in so far as such performance has been prevented by the acts and omissions of the Defendants.” (Id. ¶ 19.) Therefore, by virtue of his default, Defendant Harkham has already admitted that he was a party to the September 10, 2008 Agreement between Plaintiff and Defendant The Robeworks, Inc. dba Robeworks dba Robeworks International. By virtue of his default, Harkham further admits that Plaintiff performed all conditions, covenants and promises required of it under the September 10, 2008 Agreement including delivery of the goods at issue. Thus, contrary to Defendant Harkham’s claim in the instant motion, Defendant Harkham has conclusively admitted both that he was party to the September 10, 2008 Agreement and that Plaintiff performed under the Agreement.

Moreover, even if Defendant Harkham had not admitted that he was a party to the September 10, 2008 Agreement and that Plaintiff performed under the agreement, Defendant Harkham fails to meet his burden in showing that he has a complete defense to the action. (Fidelity Creditor Service, Inc., supra, 89 Cal.App.4th at p.199, [“The judgment debtor bears the burden of proving, by a preponderance of the evidence, that he or she is entitled to relief under section 683.170.”].)

In his declaration, Harkham concedes that he was affiliated with Defendant The Robeworks, Inc. dba Robeworks dba Robeworks International but states that he “did not personally order the goods in [his] own name or for [his] own personal account.” (Harkham 11/9/23 Decl. ¶ 2.) Harkham further states that “plaintiff did not timely deliver the goods that the Robeworks, Inc. ordered…” (Harkham 11/9/23 Decl. ¶ 2.) In fact, Harkham states that Plaintiff never delivered the goods. (Harkham 11/9/23 Decl. ¶ 7.) These facts are irrelevant and do not provide a complete defense to the instant action.

As set forth in “Plaintiff’s Summary of Case Pursuant to California Rule of Court 388 In Support of Plaintiff’s Request for Entry of Clerk’s Judgment” filed on December 30, 2010, Defendant Harkham signed a personal guarantee to Nielas Lee at Plaintiff setting forth in relevant part that:

I hereby confirm my personal guarantee to you and Trendy Textiles, Inc. for the outstanding balance of $59,025.14 (under invoice #10053, 10056, 10058, 10059, 10060) that The Robe Works owes to Trendy Textiles, Inc. in order to release the goods under PO # Robeworks-006-Grand (for Grand America Hotel)/31580 (for Little Nell).

(Plaintiff’s Summary of Case Pursuant to California Rule of Court 388 In Support of Plaintiff’s Request for Entry of Clerk’s Judgment filed 12/30/10 at Exh. A at p.1, [bold and italics added].)
Consistent with the allegations of the complaint, Defendant Harkham was a personal guarantor to the agreement between Plaintiff and Defendant The Robeworks, Inc. dba Robeworks dba Robeworks International. (See Complaint ¶ 18.) Thus, Harkham was technically not a direct party to the Agreement between Plaintiff and Defendant The Robeworks, Inc. dba Robeworks dba Robeworks International, Harkham personally guaranteed the payment owed to Plaintiff. It is thus irrelevant that Harkham did not personally order the goods or was not a direct party to the agreement between Plaintiff and Defendant The Robeworks, Inc. dba Robeworks dba Robeworks International. Moreover, Defendants had ordered, and Plaintiff had made custom textiles.

Accordingly, because Defendant Harkham fails to set forth any reason to vacate the renewal of judgment, Defendant Harkham’s motion to vacate the renewal of judgment is DENIED.

Defendant Harkham seeks to quash the deposition subpoena for production of bank records directed to JP Morgan Chase Bank, N.A. on the grounds that (1) no consumer notice was served, and (2) the information sought violates Defendant Harkham’s right to financial privacy.

“A subpoenaing party must give notice to a consumer when seeking its personal records through a third party subpoena.” (Thai v. Richmond City Center, L.P. (2022) 86 Cal.App.5th 282, 285; CCP § 1985.3(b),(e).)

Defendant Harkham claims that he did not receive the notice to consumer for the deposition subpoena for production of bank records directed to JP Morgan Chase Bank, N.A. (Harkham Decl. ¶ 2.) However, in conjunction with the opposition, Plaintiff filed proof of service of the Notice to Consumer reflecting service on Defendant Harkham by mail on October 5, 2023 at 9401 Alcott St., Apt. 303, Los Angeles, CA 90035. (Barrientos Decl. ¶ 5, Exh. A.) In the motion to vacate the renewal, Defendant Harkham concedes that his address was and currently is 9401 Alcot St., Apt. 303, Los Angeles, CA 90035. (Harkham 11/9/23 Decl. ¶ 4.) Because Plaintiff has filed proof of service of the notice to consumer with Defendant Harkham’s correct address, the presumption that service was proper applies. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441 [“It has been held that the filing of a proof of service creates a rebuttable presumption that the service was proper.”].) Harkham’s bare assertion that he did not receive the consumer notice is insufficient to rebut this presumption.

Accordingly, Defendant Harkham’s claim that Plaintiff failed to serve the notice to consumer is not a basis to quash the subpoena to JP Morgan Chase Bank, N.A.

The right of privacy in the California Constitution (art. I, § 1), “protects the individual's reasonable expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [italics in original]; See Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [“In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.”].)

As the Supreme Court has “previously observed, the right of privacy extends to sexual relations (Vinson v. Superior Court, supra, 43 Cal.3d at p. 841, 239) and medical records (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 41.).” (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Similarly, the constitutional right to freedom of association requires protection of a person’s membership in associations, whether they pertain to religious, political, economic, or even purely social matters. (Britt v. Superior Court (1978) 20 Cal.3d 844, 852; see also Pacific-Union Club v. Superior Court (1991) 232 Cal.App.3d 60, 71.) Further, “‘Courts have frequently recognized that individuals have a substantial interest in the privacy of their home.’ [Citation.]” (Puerto, supra, 158 Cal.App.4th at p.1252.) The Supreme Court has also found that there is a legally protected privacy interest in tax returns. (Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 512-513.) There is also a general privacy interest in one’s financial information. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 655; see also Burrows v. Superior Court (1974) 13 Cal.3d 238, 243, [“A bank customer's reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes.”].)

In establishing a privacy interest “the burden [is] on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.” (Williams, supra, 3 Cal.5th 531, 557.) “Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.” (Ibid.)

Here, while the subpoena to JP Morgan Chase Bank, N.A. may invade Defendant Harkham’s financial privacy rights, Defendant Harkham fails to show that the proposed invasion of privacy outweighs Plaintiff’s right to discovery. Notably, no party has filed the subpoena at issue. Thus, the Court has no way to determine whether the specific wordage or specific information sought is overbroad. Because it is Defendant Harkham’s burden to show that the privacy interest is overbroad, Defendant Harkham fails to do so by failing to provide necessary evidence to support the claim that the subpoena improperly invades Harkham’s right to financial privacy.

Plaintiff requests sanctions of $1,625.00 for Defendant’s filing of the instant motion without meeting and conferring pursuant to Code of Civil Procedure § 2025.410(c) and for Defendant’s unsuccessfully bringing the instant motion to quash under Code of Civil Procedure § 2025.410(d). As the Enforcement of Judgments Law governs post judgment discovery, and as Defendant brings the instant motion under Code of Civil Procedure § 1987.1, Code of Civil Procedure § 2025.410 is inapplicable. Accordingly, the Court denies Plaintiff’s request for sanctions.

Based on the foregoing, Defendant David Harkham’s motion to vacate the renewal of judgment is DENIED.

Defendant David Harkham’s motion to quash the subpoena for business records directed to JP Morgan Chase Bank, N.A. is DENIED.

The Judicial Assistant shall give notice to Defendant, and Defendant is ordered to file proof of service of the instant order on all other parties within 5 days.

[1] Because it is relevant to the disposition of the instant motions, the Court takes judicial notice of its own court records. Specifically, the Court takes judicial notice of the Complaint, the Notice of Renewal filed on November 7, 2018, and Plaintiff’s Summary of Case Pursuant to California Rule of Court 388 In Support of Plaintiff’s Request for Entry of Clerk’s Judgment filed on December 30, 2010. (American Contractors Indemnity Co. v. County of Orange (2005) 130 Cal.App.4th 579, 581, Fn. 1 [on its own motion, the Court of Appeal took judicial notice of the trial court’s records]; Evid. Code, § 452(d).)

[2] Harkham also claims that the October 18, 2018 Application for Renewal of Judgment “indicates that it was served on David Harkham at 450 South Maple Drive, #301, Beverly Hills, CA 90212; however, [Harkham’s] residence address was and is 9401 Alcot St., Apt. 303, Los Angeles, CA 90035, and so [Harkham] did not receive the application.” (Harkham Decl. ¶ 4, Exh. 1.) However, the attached exhibit and the October 18, 2018 Application for Renewal of Judgment does not contain any proof of service or indication that Plaintiff served Harkham at any address.