NOLAN v. ELAHIENo. B215950.

KATHERINE NOLAN, Plaintiff and Respondent,
v.
KAVE ELAHIE, Defendant and Appellant.

Court of Appeals of California, Second District, Division One.
Filed September 24, 2010.
Kave Elahie, in propria persona, Defendant and Appellant.
Ure Law Firm, Thomas B. Ure, for Plaintiff and Respondent Katherine Nolan.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

Kave Elahie (Elahie) obtained an order vacating Katherine Nolan's (Nolan) renewed judgment; subsequently the trial court granted Katherine Nolan's motion for reconsideration pursuant to Code of Civil Procedure section 10081 of Elahie's vacation motion. Elahie contends the "new" evidence Nolan presented at the reconsideration motion was not newly discovered and therefore she has not established her entitlement to relief under section 1008. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. Nolan's Judgment; Elahie's Bankruptcy.

On August 7, 1997, Nolan obtained a judgment against Elahie in the sum of $621,640.70. On January 24, 2000, Elahie filed for chapter 7 bankruptcy in the Central District of California, and on October 4, 2000, plaintiff obtained a determination in Elahie's bankruptcy proceedings that the majority of the judgment was nondischargeable.

2. August 2007 Renewal of Judgment; Elahie's Motion to Vacate.

On August 7, 2007, pursuant to Code of Civil Procedure section 683.110, Nolan filed a renewal of the judgment in the sum of $1,241,723.74, which included the original judgment amount of $621,640.70 and $620,063.04 in interest. Nolan obtained a renewal of the judgment.

On October 12, 2007, Elahie filed a motion to vacate the judgment on the grounds that the amount of the judgment was incorrect. Elahie contended the original judgment amount of $621,640.70 had been reduced pursuant to a bankruptcy court order in Elahie's chapter 7 proceedings to $616,095.93; further, any interest was stayed during the pendency of the bankruptcy and the correct amount of interest was $431,267.15. The motion was served on Nolan's attorney Thomas Ure.

On November 17, 2007, the trial court denied the motion on the grounds that the bankruptcy court order submitted in support of Elahie's motion failed to establish that the debts listed in the order was the same debt upon which Nolan's judgment was based, and further failed to establish how interest was calculated.

3. Elahie's Motion for Reconsideration of Denial of Motion to Vacate Renewal of Judgment.

On November 20, 2007, Elahie moved for reconsideration of the trial court's denial of his motion to vacate, and provided documentation to demonstrate the basis of the amount of the judgment and the interest calculation.

At the continued hearing held December 11, 2007, Nolan was not present.2 The trial court granted the motion on the basis Elahie had established Nolan's renewal of judgment contained incorrect amounts. The court gave Nolan 30 days to file a renewal of judgment in the correct amounts, ordering that "Plaintiff has 30 days from the date service of the notice is perfected to file another renewal in a different amount." Elahie served a notice of ruling on Ure at 800 Wilshire Boulevard, Suite 1050, Los Angeles, California. 90012.3

4. Nolan's Second Renewal of Judgment, April 2008; Elahie's Second Motion to Vacate.

On April 18, 2008, Nolan filed a second application for renewal of judgment in the amount of $1,080,833.20, composed of the judgment of $616,640.70 and interest in the amount of $464,172.50.

On November 5, 2008, Elahie filed a motion to vacate the renewal of judgment on the grounds it had not been made within 30 days pursuant to the court's ruling of December 11, 2007, and the 10-year statute of limitations of section 337.5 "to renew a judgment" had expired.

Nolan opposed the motion, arguing that the April 18, 2008 renewal was timely because the statute of limitations was tolled during Elahie's bankruptcy.

At the December 2, 2008 hearing, Nolan's counsel advised the court that he had received from Elahie several amended proofs of service, and after studying them realized that Elahie had not properly served on Nolan the notice of ruling on the court's December 11, 2007 grant of Elahie's reconsideration motion.4 Counsel advised the court he had never received the original notice vacating the judgment that gave Nolan 30 days' notice to file a corrected renewal of the judgment. Thus, counsel argued that because the court gave Nolan 30 days from the date of notice to file a new renewal of the judgment, the 30-day period had not yet run due to Elahie's defective service.

The court examined Elahie's motion for reconsideration and his service of the motion and the court's ruling after the December 2007 hearing. The court noted that Elahie's notice of ruling failed to specify that Nolan had 30 days within which to file a renewal of judgment because it did not attach the actual tentative ruling, and that it was served on the wrong zip code (90012). The court stated, "it shows on its face it was sent to the wrong place. If the parties wish to file supplemental declarations, you can do that by the end of the day . . . on December 5th [2008], and when I receive those, the matter will stand submitted."

On December 5, 2008, Elahie filed two declarations. The first, Elahie's declaration, stated that after the December 11, 2007 hearing, he served a notice of ruling that attached the court's tentative ruling granting the motion and placed the notice of ruling in an envelope addressed to Thomas Ure at the correct zip code (90017) although the proof of service prepared and filed listed an incorrect zip code (90012). The notice of ruling was never returned as "undeliverable." The second declaration, Jamshid Tanha's declaration, stated that he owns a copy, mailing and messenger service. Elahie gave Tanha a prepared envelope addressed to Ure, and Tanha sent the notice of ruling to Ure using that envelope. Tanha examined the envelope and proof of service, determined the addresses to be the same, and served the notice of ruling. Tanha attached to his declaration a copy of the envelope he used to mail the notice to Ure; the handwritten envelope showed the correct zip code. On December 3, 2008, Elahie advised Tanha the December 11, 2007 proof of service contained an incorrect zip code, and Tanha prepared and filed an amended proof of service showing the correct zip code.

On December 9, 2008, the trial court granted Elahie's motion to vacate the renewed judgment as untimely filed. The court noted that Nolan did not file a declaration stating that the notice had not been received to rebut Elahie's showing, stating, "The court provided plaintiff's attorney with an opportunity to state under penalty of perjury that the notice was not received, but plaintiff's attorney did not accept the invitation."

5. Nolan's Motion for Reconsideration.

On December 16, 2008, Nolan filed a motion for reconsideration, arguing that Elahie failed to serve a copy of the court's tentative ruling with his Notice of Ruling of the December 11, 2007 hearing, and that service was defective because it was served on the wrong zip code. Nolan contended Elahie's evidence purporting to demonstrate that service was proper were forgeries because there were discrepancies in the handwriting on the envelope's zip code. Ure's declaration in support of the judgment stated that he never received a copy of the court's December 11, 2007 ruling, obtained a copy himself sometime in March 2008, and filed an application for renewal of judgment within 30 days of his actual receipt of a copy of the court's December 11, 2007 ruling.

Elahie opposed Nolan's request for reconsideration, arguing that Nolan had failed to explain why the new facts in support of the motion, namely, that counsel had not received Elahie's notice of ruling after the December 11, 2007 hearing, had not been discovered before.

At the January 23, 2009 hearing, Nolan advised the court that counsel had not filed a declaration because there "was nothing to add" to the court's finding at the December 2, 2008 hearing that Elahie's notice of ruling was defective on its face because it was served on the wrong zip code and failed to include the tentative ruling. Counsel stated that Elahie had filed additional evidence after the December 2, 2008 hearing, and that new evidence—particularly the altered envelope—was the basis of Nolan's motion for reconsideration.

After taking the matter under submission, the court granted Nolan's motion for reconsideration, withdrew the order vacating the April 18, 2008 renewal of Nolan's judgment, and denied Elahie's motion to vacate the renewal of judgment. Although the court stated "it is most tempting to deny plaintiff's motion for reconsideration because of counsel's failure to file the supplemental declaration, the court concludes, after a full review of the entire record of this affair, that justice in this matter requires that plaintiff's motion for reconsideration be granted." The court specifically rejected the veracity of Elahie's declarations that the envelope was mailed to Ure's correct zip code even though the proof of service listed the wrong zip code, finding the last two digits of the zip code on the copy of the addressed envelope provided by defendant have been altered from the original, that defendant's notice of the December 11, 2007 ruling was misaddressed, and plaintiff's attorney did not receive it.

DISCUSSION

Elahie contends the court erred in granting Nolan's motion for reconsideration because she did not present new or different facts than those presented at the motion to vacate heard December 2, 2008. He also contends the court lacked jurisdiction to reinstate the judgment after its 10-year statute of limitations for renewal had expired under section 337.5, and the limitations period was not stayed by the bankruptcy proceeding. We disagree.

I. RELIEF UNDER SECTION 1008

Section 1008, subdivision (a) provides in relevant part that a party may apply for reconsideration of a prior court ruling on the basis of "new or different facts, circumstances, or law." The party must demonstrate "what new or different facts, circumstances, or law are claimed to be shown." (§ 1008, subd. (a).) Section 1008 is jurisdictional; "[n]o 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." (§ 1008, subd. (e).) Section 1008 is intended to reduce the number of reconsideration motions heard by judges. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1098.)

The party seeking reconsideration based on new or different facts must also provide a satisfactory explanation why the evidence was not presented sooner. (Jones v. P.S. Development Co. (2008) 166 Cal.App.4th 707, 724.) We review the trial court's ruling under the abuse of discretion standard. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

In New York Times Co., supra, 135 Cal.App.4th 206, the court held that evidence that easily could have been obtained with deposition testimony during discovery did not constitute "new or different evidence" under section 1008. (Id. at p. 213.) New York Times, on which Elahie relies, is distinguishable. Here, Elahie filed a declaration after the December 2, 2008 hearing which purported to verify that he had properly served the December 11, 2007 notice of ruling on Ure. Nolan did not have an opportunity to respond to this new evidence prior to the time the court ruled on the motion because of the short time frame within which the court required the parties' declarations. The facts here are analogous to Hollister v. Benzl (1999) 71 Cal.App.4th 582, 585, in which the court granted relief on a motion to reconsider because the newly-produced documents had been requested but were not produced at the time of the earlier hearing. Thus, for purposes of section 1008, Elahie's declaration filed after the hearing constituted "new or different facts" entitling Nolan to seek relief under section 1008.5

II. STATUTE OF LIMITATIONS

Elahie argues that the pendency of his bankruptcy did not extend the period for Nolan to renew her judgment. Therefore, he contends that even if the trial court's grant of Nolan's motion for reconsideration was proper, the renewal of her judgment in April 2008 was untimely under the 10-year limitations period of section 337.5.6

Under the Enforcement of Judgments Law (§ 680.010, et seq.), a judgment may not be enforced after 10 years from the date of its entry. (§ 683.020.)7 However, an enforceable judgment may be renewed pursuant to section 683.120, subdivision (a) by filing an application for renewal with the court in which the judgment was rendered; the court retains jurisdiction to enter the renewal. (Goldman v. Simpson (2008) 160 Cal.App.4th 255, 263.) The application may be filed any time prior to the expiration of the 10-year enforcement period. (§ 683.020; Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369, 372.) The filing of the renewal application results in automatic renewal of the judgment. (§ 683.150; OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2008) 168 Cal.App.4th 185, 191.) The debtor has 30 days after service of the notice of renewal to file a noticed motion to vacate the renewed judgment. (§ 683.170, subd. (b); Goldman v. Simpson, supra, 160 Cal.App.4th at p. 261.) The motion to vacate must be served on the judgment creditor's attorney of record. (§§ 683.170, subd. (b); 684.010.)

A debtor's bankruptcy petition automatically enjoins commencement or continuation of most debt enforcement proceedings, including "any to create, perfect or enforce" any lien against the debtor's property. (11 U.S.C. § 362, subd. (a)(4).) Where the renewal period would expire during the automatic stay, the renewal period is extended until 30 days after expiration of the automatic stay. (11 U.S.C. § 108, subd. (c); In re Lobherr (Bankr. C.D. Cal. 2002) 282 B.R. 912, 916.) Therefore, a creditor with a judgment on a nondischargeable debt that would expire during the pendency of the debtor's bankruptcy has 30 days after expiration of the automatic stay within which to renew the judgment. (In re Spirtos (9th Cir. 2000) 221 F.3d 1079, 1080-1081.)

Here, therefore, there was no tolling of the 10-year section 683.110 time period during the pendency of Elahie's bankruptcy.

Nonetheless, due to Elahie's failure to properly serve the December 11, 2007 order on Nolan, Nolan's filing of the amended renewal on April 18, 2008 was timely. Service of papers to an incorrect address is not proper notice. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288.) "Section 1013, subdivision (a) provides that the mailing of a notice is complete when it is posted in an envelope `addressed to the person on whom it is to be served, at his office address as last given by him on any document which he has filed in the cause and served on the party making service by mail; otherwise at his place of residence. . . .'" (Triumph Precision Products, Inc. v. Insurance Co. of North America (1979) 91 Cal.App.3d 362, 365, italics omitted.) "[S]trict compliance with statutory provisions for service by mail is required, and improper service will be given no effect. [Citations.]" (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 511.)

Fundamentals of due process are notice and an opportunity to be heard. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286.) In Gamet, an order became effective only upon proof of service; because the order was not properly served, it did not become effective. (Id. at p. 1285-1286.) Here, the parties do not dispute Nolan filed timely an application for renewal of the original judgment on August 7, 2007 and obtained a renewal of the judgment at that time. The court's tentative ruling specified that the 30-day time limit of the court's December 11, 2007 order did not run until notice was properly given under section 1013. Thus, because Nolan provided unrebutted evidence that she did not receive notice that the renewal had been vacated on December 11, 2007, and she filed her amended renewal within 30 days of her receipt of notice of December 11, 2007, Elahie cannot claim that Nolan's April 18, 2008 amended renewed judgment was untimely.8

DISPOSITION

The order of the superior court is affirmed. Appellant is to recover her costs on appeal.

We concur:

ROTHSCHILD, Acting P. J.

CHANEY, J.

FootNotes


1. All statutory references herein, unless otherwise noted, are to the Code of Civil Procedure.
2. Thomas Ure, Nolan's counsel, did not attend the hearing because he understood only the amount of the judgment was in dispute.
3. This zip code is incorrect; the correct zip code is 90017. Further, Ure later alleged that the Notice of Ruling, which only stated that the motion was granted, did not contain an attached copy of the court's tentative ruling setting forth the 30-day time limit for Nolan to resubmit her renewal of judgment.
4. For example, on November 26, 2008, Elahie filed an amended proof of service relating to his November 5, 2008 motion to vacate the second renewal of judgment, stating that the motion had been served on Thomas Ure at 811 Wilshire Blvd., Suite 1000, Los Angeles, California 90017.
5. Contrary to Elahie's contention, the court at the December 2, 2008 hearing did not order Nolan to file a declaration. Rather, the court stated the proof of service showed "on its face" it was sent to the wrong address, and they could file declarations "if the parties wish[ed]."
6. Section 337.5 provides a 10-year statute of limitation for "3. An action upon a judgment or decree of any court of the United States or of any state within the United States."
7. The judgment renewal procedure is a different mechanism to extend the life of a judgment than an independent action to enforce a judgment. (Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 200-201.) The 10-year period during which a judgment may be renewed differs from the 10-year statute of limitations on an action to enforce a judgment under section 337.5. (See Green v. Zissis (1992) 5 Cal.App.4th 1219, 1222.) After 10 years, under section 683.020, a judgment may not be enforced. An action on the judgment may lie, however, if the 10-year period of section 337.5 has not yet run. (Ibid.) Section 337.5 is subject to equitable tolling, while section 683.020 is not; therefore, the two periods may differ. (Pratali v. Gates (1992) 4 Cal.App.4th 632, 638.) Elahie's arguments under section 337.5 are therefore misplaced, as the statute does not govern the time period within which a judgment may be renewed.
8. The procedures to vacate a renewal under section 683.170 contemplate that a new or different renewal may be entered if the amounts of the renewed judgment are incorrect. (§ 683.170, subd. (c).) Nothing in section 683.170 provides any further time limits on when a corrected or amended renewed judgment must entered; indeed, a vacated and new judgment may, depending on the circumstances and as was the case here, be entered under this section after the 10-year period of section 683.110 has expired.

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