Judge: Katherine Chilton, Case: LAM05K15910, Date: 2023-03-08 Tentative Ruling

Case Number: LAM05K15910    Hearing Date: March 8, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR RECONSIDERATION

MOVING PARTY:   Defendant Kenneth Gregory, in propria persona

RESP. PARTY:         Plaintiff/Judgment Creditor Assignee Collect Access, LLC

MOTION FOR RECONSIDERATION

(CCP § 1008)

TENTATIVE RULING:

Defendant/Debtor Kenneth Gregory’s Motion to Vacate (Default, Renewal of Judgment, and Default Judgment) (i.e., Motion for Reconsideration) is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          Filed on March 3, 2023.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of March 7, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

This case arises from an unlawful detainer action brought on December 10, 1996 in Case No. 96U30120.  On November 3, 2005, Plaintiff/Creditor Ventura Canyon Apartments (“Plaintiff”) filed an application for and renewal of judgment in the instant case, LAM05K15910, against Defendants/Debtors Kenneth and Pamela Gregory (collectively, “Defendants” or “Debtors”).  The judgment was initially entered on January 7, 1997, in the sum of $2,489.00, entered again on November 3, 2005, for $2,645.89, and last entered on October 21, 2015 in the sum of $5,013.82.  (12-16-20 Assignment of Judgment.)  On December 16, 2020, the judgment was assigned to Collect Access LLC.  (Ibid.)  Collect Access LLC filed an Abstract of Judgment on October 27, 2022.

On October 12, 2022, Defendant/Debtor Kenneth Gregory filed a Motion to Set Aside/Vacate Default and Default Judgment, which was voided because the Request to Waive Court Fees was denied, and Defendant/Debtor failed to make the payment or request a hearing.  (10-28-22 Clerk’s Notice of Voiding of Filing.)  Defendant/Debtor filed a subsequent Motion to Set Aside/Vacate Default and Default Judgment on November 2, 2022.  Defendant/Debtor’s Motion was denied for several reasons, including failure to serve Plaintiff/Creditor and untimely filing.  (11-28-22 Minute Order.)

On December 19, 2022, Defendant/Debtor Kenneth Gregory filed the instant Motion to Vacate (Default, Renewal of Judgment, and Default Judgment) (“Motion”).  Given that Defendant/Debtor requests that the Court reconsider its ruling on November 28, 2022, “in light of newly discovered facts, information, circumstances, evidence and law,” the Court determines that the instant motion is a Motion for Reconsideration.  (Mot. p. 1.)

On February 27, 2023, the Court, on its own motion, continued the hearing on the Motion to March 8, 2023.

Plaintiff/Judgment Creditor Assignee Collect Access, LLC filed a late Opposition on March 3, 2023.

No reply has been filed.

II.              Legal Standard

Code of Civil Procedure § 1008 provides, in pertinent part:

“(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 an 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.

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.

…

(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. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

(Code Civ. Proc. § 1008(a), (b), (e).)

A motion for reconsideration under § 1008 requires that the moving party present new or different facts that were not previously considered by the Court.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.)  However, the burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”  (Ibid.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that § 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)  Reconsideration cannot be granted based on claims that the court misinterpreted the law in its initial ruling because this is not a "new" or "different" matter.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

III.            Discussion

On November 28, 2022, the Court denied Defendant/Debtor’s Motion to Set Aside/Vacate Default and Default Judgment, filed on November 2, 2022, due to inadequate service, and untimely filing, among other deficiencies.  (11-28-22 Minute Order.)

On December 19, 2022, Defendant/Debtor Kenneth Gregory filed the instant Motion to Vacate (Default, Renewal of Judgment, and Default Judgment) (“Motion”).  Given that Defendant/Debtor requests that the Court reconsider its ruling on November 28, 2022, “in light of newly discovered facts, information, circumstances, evidence and law,” the Court determines that the instant motion is a Motion for Reconsideration.

Code of Civil Procedure § 1008(a) mandates that a motion for reconsideration of a previous ruling must be filed “within 10 days after service upon the party of written notice of entry of the order.”  The Court’s November 28, 2022, ruling was served on Defendant/Debtor on the same day.  (11-28-22 Certificate of Mailing.)  Thus, the Court finds that Defendant/Debtor’s instant motion to reconsider the November 28, 2022, ruling was not filed timely.

Accordingly, Defendant/Debtor’s Motion is DENIED.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant/Debtor Kenneth Gregory’s Motion to Vacate (Default, Renewal of Judgment, and Default Judgment) (i.e., Motion for Reconsideration) is DENIED.

Moving parties are ordered to give notice.