Judge Elaine Lu, Case Number: BC430652, Date: 2025-02-26 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 a motion to vacate the renewal of judgment. On June 24, 2024, the Court denied Defendant Harkham’s motion to vacate the renewal of judgment. (Order 6/24/24.)

On July 8, 2024, Defendant Harkham filed the instant motion for reconsideration of the Court’s June 24, 2024 Order denying Harkham’s motion to vacate the renewal of judgment. On August 22, 2024, Defendant Harkham filed an appeal of the Court’s June 24, 2024 Order denying Defendant Harkham’s motion to vacate the renewal of judgment. On October 4, 2024, Plaintiff filed an opposition to the instant motion. On February 13, 2025, Defendant Harkham filed a reply.

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. The party making the application shall state 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.

As the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499 stated, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence, meaning the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)

Defendant Harkham seeks reconsideration of the June 24, 2024 Order denying Harkham’s motion to vacate the renewal of judgment “pursuant to Code of Civil Procedure sections 1008 and 683.170 on the grounds that Harkham’s answer in this action was stricken during a time that he had conflicting issues for money and could not allocate the funds to reinstate the filing fee.” (Motion at p.2:4-7.)

Defendant Harkham’s Appeal Divests this Court of Jurisdiction to Hear the Instant Motion

“Under [Code of Civil Procedure] section 916, ‘the trial court is divested of’ subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196–197.) “The purpose of the automatic stay under section 916 is to preserve ‘the status quo until the appeal is decided’ [Citation], by maintaining 'the rights of the parties in the same condition they were before the order was made[.]” [Citation]. Otherwise, the trial court could render the ‘appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’” (Id. at p.198.) “ ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ [Citations.]” (Cunningham v. Magidow (2013) 219 Cal.App.4th 298, 304.)

Here, on November 9, 2023, Defendant Harkham filed a motion to vacate the renewal of judgment. On June 24, 2024, the Court denied Defendant Harkham’s motion to vacate the renewal of judgment. (Order 6/24/24.) On August 22, 2024 – before the hearing on the instant motion for reconsideration – Defendant Harkham filed a notice of appeal of the June 24, 2024 Order, perfecting the appeal and staying all matters embraced or affected by the June 24, 2024 Order. (CCP § 916(a); Varian Medical Systems, Inc., supra, 35 Cal.4th at pp.196–197.) If the Court were to grant the instant motion to reconsider its prior ruling denying Harkham’s motion to vacate renewal of judgment and thereby vacate the renewal of judgment, Harkham’s appeal would be mooted. Accordingly, the instant motion is clearly a matter “embraced in” or “affected” by the pending appeal for purposes of Code of Civil Procedure section 916. Thus, the Court lacks jurisdiction to rule on the instant motion.

Regardless of the statutes Defendant Harkham cites as grounds for the instant motion – i.e., Code of Civil sections 1008 and 683.170 – the instant motion is a motion for reconsideration because “the name of the motion is not controlling. The requirements for a motion for reconsideration ‘apply to any motion that asks the judge to decide the same matter previously ruled on.’” (R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 373.) Thus, for Defendant Harkham to prevail on the instant motion, the motion must satisfy the requirements of a motion for reconsideration.

“A motion for reconsideration must be based on new or different facts, circumstances or law [Citation], and facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [bold added].) “According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Here, Defendant Harkham fails to provide any new facts, circumstances, or law that would warrant reconsideration of the Court’s prior June 24, 2024 Order.

In the instant motion for reconsideration, Harkham states that on May 24, 2010, he filed an answer to the complaint denying the allegations and raising several affirmative defenses. (Harkham Decl. ¶ 3.)[1] On June 25, 2010, the Court Clerk notified Defendant Harkham that the filing fee had been returned and that he needed to provide good funds by July 12, 2010. (Harkham Decl. ¶ 4.) However, Harkham states that he “was unable to do so because of monetary needs, including medical issues and a foreclosure on his then residence-condominium.” (Harkham Decl. ¶ 4.) On July 13, 2010, the Court voided Harkham’s answer to the complaint, and default was entered on July 30, 2010. (Harkham Decl. ¶ 4.) A default judgment against Harkham was entered on December 30, 2010. (Harkham Decl. ¶ 5.) Harkham now contends that “[b]ecause the [June 24, 2024] order was based on the entry of default when there was an answer, and because Harkham’s failure to pay the filing fee for the answer was due to excusable neglect in having to pay medical bills, the default should have been set aside and the answer considered.” (Motion at p.5:1-4.)

In the prior motion to vacate the renewal of judgment, Defendant Harkham argued 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 filed 11/9/23 at p.3:24-27.) In the June 24, 2024 Order, the Court concluded that these assertions failed as a matter of law. Defendant Harkham was in default and therefore conceded the well pleaded allegations that Plaintiff’s delivered the goods or were excused from their obligations to deliver the goods, and that Harkham was a party to the original obligation. (See 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; Order 6/24/24 at pp.6:1-7:5.) Further, in the Court’s June 24, 2024 Order, the Court found that regardless of the default, Harkham also failed to meet his evidentiary burden in showing that he had a complete defense to the action. (Order 6/24/24 at pp.7:6-8:13.)

Defendant Harkham’s motion for reconsideration fails to address the Court’s finding that Harkham also failed to meet his evidentiary burden in showing that he had a complete defense to the action. (Order 6/24/24 at pp.7:6-8:13.) Moreover, the fact that Defendant Harkham had monetary issues preventing Harkham from paying the filing fee for the answer is not a new fact that would constitute grounds for reconsideration.

Presumably, Defendant Harkham has been aware this entire time that he was in default as of July 30, 2010. (Harkham Decl. ¶ 4.) Thus, as of the filing of Defendant Harkham’s original motion to vacate the renewal of judgment on November 9, 2023, Defendant Harkham was aware that he had admitted all well pleaded allegations of the complaint. (First American Title Ins. Co., supra, 87 Cal.App.5th at p.45.) Defendant Harkham also knew as of filing the original motion to vacate the renewal of judgment on November 9, 2023, that he had been unable to pay the answer filing fees due to medical issues and due to a foreclosure on his then residence-condominium. Thus, as a matter of law, Defendant Harkham’s monetary difficulties in paying the answer filing fees are not newly discovered facts on which a motion for reconsideration can be based. (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 [“A motion for reconsideration must be based on new or different facts, circumstances or law [Citation], and facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’”] [bold added].)

Accordingly, it would be in excess of this Court’s jurisdiction to grant the instant motion for reconsideration based on Defendant Harkham’s purported economic hardship in 2010. (Gilberd, supra, 32 Cal.App.4th at p.1500.)

Based on the foregoing, Defendant David Harkham’s motion for reconsideration of the Court’s June 24, 2024 Order denying Harkham’s motion to vacate the renewal of judgment 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] The Court notes that Harkham’s declaration incorrectly cites the year that he filed his answer as May 24, 2024 – more than a decade after judgment had already been entered against him. Pursuant to the Court’s own records, Defendant Harkham filed his answer on May 24, 2010.