Winick v. Sarafa

Filed 7/11/06 Winick v. Sarafa CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Janis Sammartino, Judge. Affirmed.

I.

INTRODUCTION

Jack M. Winick and Wendy Winick, as trustees of the Winick Family Trust dated May 17, 1984, and David Winick (the Winicks) appeal from a postjudgment order of the trial court denying their motion to vacate a renewal of judgment. The application for renewal of judgment at issue was filed by Karim Sarafa on March 16, 2005.

The Winicks initially challenged the renewal of judgment on timeliness grounds by filing a motion to vacate the renewal of judgment pursuant to Code of Civil Procedure^[1] section 683.170. Approximately two months after they filed their first motion to vacate, the Winicks moved ex parte to vacate the renewal of judgment on the ground that Sarafa had assigned his interest in the judgment to his attorney, Thomasina Reed, prior to the time he applied for a renewal of judgment. At the trial court's request, the Winicks refiled their motion according to the procedures for a noticed motion under the Code of Civil Procedure. After full briefing and a hearing on the issue, the trial court denied the Winicks' second motion to vacate the renewal of judgment, concluding that the Winicks failed to meet the procedural requirements for a renewed motion under section 1008, subdivision (b). The trial court further concluded that even if the Winicks' motion had been procedurally proper, Sarafa was the proper party to renew the judgment because Attorney Reed had not recorded the assignment and thus, was not the assignee of record.

The Winicks contend on appeal that the trial court erred in concluding that Sarafa could properly apply to renew the judgment after he had assigned his interest in the judgment to Attorney Reed. Although they failed to address the procedural aspect of the denial of their motion to vacate the renewal of judgment in their opening brief, in their

reply, the Winicks contend that the trial court waived any procedural defects in their motion in order to reach the merits of their argument.

We conclude that the trial court properly denied the Winicks' second motion to vacate the renewal of judgment. The Winicks failed to establish that the second motion

met the procedural requirements of section 683.170, which governs motions to vacate a renewal of judgment, or those of section 1008, subdivision (b), which sets forth the requirements for renewing a previously denied motion. We therefore affirm the postjudgment order of the trial court denying the Winicks' request to vacate the renewal of judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The original action apparently arose out of a dispute over the purchase of unimproved land. Although the record contains very little information about the original action, the Winicks' opening briefing describes the genesis of the case, albeit without citation to the record. From that description, it appears that the Winicks sued Sarafa and 10 other defendants, alleging breach of contract and a number of other claims. In September 1994, a trial court entered a judgment in favor of Sarafa and the 10 other defendants, awarding them costs and attorney fees. Following an appeal in which the defendants were awarded costs, the trial court issued an amended judgment in favor of the defendants in April 1995.

On March 16, 2005, Sarafa filed an application for renewal of judgment. The clerk of the court renewed the judgment in the amount of $251,349.12.^[2]

On April 14, 2005, the Winicks filed a motion to vacate the renewal of judgment, claiming that Sarafa's application for renewal was untimely. The trial court heard the motion, and on May 26, 2005, denied the Winicks' request to vacate the renewal of judgment.

After the trial court ruled on their motion to vacate the renewal of judgment, the Winicks discovered that Sarafa had assigned his interest in the judgment to Attorney Reed prior to the date on which he filed the application to renew the judgment. On June 15, the Winicks moved ex parte to vacate the renewal on the basis of this newly-discovered information. The Winicks contended that Sarafa did not have standing to renew the judgment because at the time he sought to renew it, he no longer had an interest in it. At the ex parte hearing, the trial court apparently requested that the Winicks file their request to vacate the judgment as a noticed motion. In response to the court's request, on June 20, 2005, the Winicks filed a second motion to vacate the renewal, on the same grounds raised in their ex parte application.

On July 14, 2005, the trial court issued a tentative ruling denying the Winicks' motion to vacate the renewal. The court heard oral argument on July 15, and on July 18, issued a minute order confirming the tentative decision. The trial court denied the motion on the basis that the motion failed to comply with the requirements for motions for reconsideration under section 1008, subdivision (b).^[3]

III.

DISCUSSION

The Winicks claim that the trial court erred in denying their motion to vacate Sarafa's renewal of judgment. They contend that Sarafa was not the proper party to renew the judgment because he assigned his interest in the judgment to Attorney Reed prior to applying to renew the judgment. They assert that the trial court erred when it concluded, as an alternative basis for denying the Winicks' motion, that Sarafa had standing to apply for a renewal of judgment, and specifically, that he was the only person who could have applied to renew the judgment since Attorney Reed was not the assignee of record at the time the judgment was renewed. The Winicks fail to address in their appellate briefing the primary basis of the trial court's ruling, i.e., that they did not bring a procedurally proper motion to vacate the renewal, and they offer no procedural basis on which the trial court could have properly considered their motion to vacate the renewal of judgment.

"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. [Citations.] On appeal, we examine the evidence in a light most favorable to the order under review and the trial court's ruling for an abuse of discretion. [Citations.]" (Fidelity Creditor Serv. v. Browne, supra, 89 Cal.App.4th at p. 199.)

The procedure for attacking the renewal of a judgment is provided in section 683.170. Under that section, a renewal of judgment may be vacated "on any ground that would be a defense to an action on the judgment." However, a judgment debtor must apply for an order vacating the renewal "[n]ot later than 30 days after service of the notice of renewal pursuant to Section 683.160 . . . ." (§ 683.170.)

Here, the application for renewal of judgment was filed on March 16, 2005. The document establishing service of the notice of renewal does not appear in the record on appeal. The Winicks bear the burden of establishing that their motion to vacate the renewal was timely. In failing to include a proper record from which this court can determine the date of service, they have failed to meet their burden.^[4]

Even if we attempt to piece together this incomplete record to determine whether the Winicks' second motion to vacate was timely under section 683.170, we must conclude that it could not have been. There is only a single mention of the date of service of the notice of renewal in the record ─ in Sarafa's brief in the trial court in opposition to the Winicks' second motion to vacate the renewal.^[5] In that brief, Sarafa asserted that the "record clearly demonstrates that notice of the renewal was served on the Plaintiffs on March 31, 2005." There is no evidence to indicate that this date is incorrect. In fact, the Winicks filed their original motion to vacate the renewal of judgment on April 14, suggesting that they were served with notice of the renewal some time between the date on which the renewal was filed, on March 16, and the date on which they filed their first motion to vacate the renewal. However, the Winicks did not file their second motion to vacate the renewal of judgment until June 15, 2005,^[6] which was 76 days after March 31, and more than 60 days after the date on which the Winicks filed their first motion to vacate the renewal of judgment.

On this record, there is no basis to conclude that the trial court had jurisdiction to hear the Winicks' motion under 683.170, let alone to grant it, since the motion was clearly filed well over 30 days after service of the renewed judgment. However, it appears that the trial court agreed to treat the Winicks' second motion to vacate the renewal as a renewed motion pursuant to section 1008, subdivision (b). Section 1008, subdivision (b), allows a party whose original motion is denied in whole or in part to make a new application for the same order if the application is supported by an affidavit detailing when and to what judge it was made; what was sought; what orders or decisions were made; and what new or different facts, law or circumstances would support a different outcome.^[7] Under the terms of section 1008, subdivision (e), these requirements are jurisdictional.^[8]

Again, the Winicks do not argue on appeal that they met the procedural requirements of section 1008, subdivision (b). Rather, they attempt to pass over this issue, apparently hoping that this court will find a reason to reach the substantive argument they made in trial court, i.e., that the renewal of judgment was ineffective because the wrong party made the application for renewal.^[9] In their reply brief, the Winicks do touch on the procedural issues, claiming that the trial court decided their motion on its merits and not on procedural grounds. Specifically, the Winicks contend that the "trial court waived any alleged defects that might have existed with regard to the requirements of CCP §1008(b)," by "hear[ing] and decid[ing] the motion on its merits." We disagree with this interpretation of the court's order.

The trial court's order provides:

"The Motion of Plaintiffs/Judgment Debtors to vacate the renewal of judgment is DENIED.

"On May 26, 2005, this Court denied Plaintiffs' prior motion to vacate the renewal of judgment. Now, Plaintiffs seek another order from this Court vacating the renewal of judgment. However, the Court finds Plaintiffs' instant Motion fails to meet the requirements of a renewed motion. (CCP §1008(b)).

"Even if Plaintiffs had complied with the requirements for brin[g]ing a renewed motion to vacate, Defendant Karim Sarafa properly renewed the judgment. Even though Mr. Sarafa assigned his interest in the judgment to his attorney, Thomasina Reed, Ms. Reed did not record the assignment and is not the assignee 'of record.' Thus, only Mr. Sarafa, as judgment creditor, had the authority to renew the judgment." (Italics added.)

Clearly, the trial court's primary ground for denying the Winicks' motion was that it was procedurally improper. The trial court then provided an alternative ground for denying the motion, addressing the substance of the motion. This alternative ground, however, was unnecessary to the court's ruling. Contrary to the Winicks' assertions, the trial court did not waive the motion's procedural defects. Rather, the court merely provided an alternative basis for denying the motion.

In any event, the trial court was without jurisdiction to consider the substance of the Winicks' motion under section 1008, subdivision (b), because the motion was procedurally defective.^[10] First, neither the ex parte motion papers nor the papers filed pursuant to the noticed motion relating to the second motion to vacate the renewal suggest that the motion was being brought pursuant to the provisions of section 1008, subdivision (b). "It is elemental that a notice of motion must state in writing the 'grounds upon which it will be made.' [Citations.] Only the grounds specified in the notice of motion may be considered by the trial court. [Citations.]" (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545.) Thus, on this basis alone, the trial court should not have considered the second motion as a renewed motion to vacate under section 1008, subdivision (b).^[11]

Further, the motion papers do not meet the requirements of section 1008, subdivision (b). The statute requires that a moving party show 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." (§ 1008, subdivision (b).) The Winicks did submit a declaration from Walter Chung, their attorney, in support of their ex parte motion to vacate the renewal of judgment. However, that declaration did not include any of the information that is required under subdivision (b) of section 1008.^[12] In fact, the declaration included only (1) a statement that Chung is an attorney and could testify to the facts attested to in the declaration; (2) a statement that a copy of a facsimile of the assignment of judgment with special power of attorney was attached to the declaration; (3) a statement that a copy of Sarafa's application for renewal of judgment was attached to the declaration; and (4) a statement that a copy of the amended judgment was attached to the declaration. The declaration does not include any of the information that must be submitted by affidavit under section 1008, subdivision (b). As a renewed motion under section 1008, the Winicks' motion is procedurally defective, and thus fails.

The Winicks claim that the trial court waived any alleged defects in their motion papers. However, the requirements of section 1008 cannot be waived. "[A] party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section . . . 1008." (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108, italics omitted.) Absent full compliance with section 1008, the Winicks' motion had no procedural significance as a renewed motion. To the extent the Winicks argue that the trial court decided on its own motion to reconsider the issue, we reject this contention. "Unless the requirements of section . . . 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion." (Ibid.) The trial court did not indicate in any manner that it was, on its own motion, reconsidering its earlier ruling denying the Winicks' motion to vacate the renewal.

We conclude that the trial court properly denied the Winicks' request to vacate the renewed judgment. The Winicks cite no proper ground that would have allowed the trial court to grant the relief they were seeking.

IV.

DISPOSITION

The order of the trial court is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

McINTYRE, J.

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^[1] Further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] "Renewal of a judgment is a ministerial act performed by a court clerk upon receipt of an application for renewal. [Citations.]" (Fidelity Creditor Serv. v. Browne (2001) 89 Cal.App.4th 195, 198.) Pursuant to section 683.150, subdivision (a), "Upon the filing of the application, the court clerk shall enter the renewal of the judgment in the court records."

^[3] Although the trial court denied the motion on the basis that it failed to meet the requirements of section 1008, subdivision (b), the court went on to state that even if the Winicks' motion had been procedurally proper, the court would have found in favor of Sarafa on the ground that the assignment had not been recorded and, thus, Sarafa, as the judgment creditor, possessed the authority to renew the judgment despite the existence of the assignment. We discuss the basis of the trial court's order further in section III, post.

^[4] The Winicks did not contend in the trial court, and do not contend on appeal, that Sarafa failed to serve them with a notice of renewal, as is required under section 683.160.

^[5] The Winicks failed to include in the record on appeal Sarafa's opposition to their second motion to vacate the renewal of judgment. Sarafa included the opposition as an exhibit to his respondent's brief on appeal. We interpret Sarafa's offer of this document as a request to augment the record, and we grant the request. This document, along with a number of other documents, should have been included in the record for this appeal.

^[6] To be clear, the Winicks filed an ex parte motion to vacate the judgment on June 15, 2005. After the court indicated that a noticed motion would be proper, on June 20, the Winicks refiled their request in compliance with the requirements governing noticed motions. However, even if we consider the date of their renewed motion to vacate the renewal of judgment to be June 15, the date on which they filed their ex parte request, the Winicks' motion was still untimely under section 683.170.

^[7] Section 1008, subdivision (b) provides: "A party who originally made an application for an order which was refused in whole or 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 ex parte motion."

^[8] Section 1008, subdivision (e) provides: "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."

^[9] In their opening brief, the Winicks do not even mention section 1008, subdivision (b) or the trial court's conclusion that they failed to meet its procedural requirements.

^[10] The Winicks have not offered any other statutory basis that would allow the trial court to hear their challenge to the renewal of judgment. Thus, this decision should not be interpreted as concluding that there is no procedural mechanism that would allow a party in the Winicks' position to challenge a renewal of judgment as defective and/or void.

^[11] A "court may overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground. In that situation, the trial court may treat the supporting papers as curing the defective notice. [Citations.]" (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126-1127.) We have no way of knowing whether the Winicks' supporting papers discussed section 1008, subdivision (b), because their memorandum of points and authorities in support of the motion was not included in the record on appeal.

^[12] This declaration was not included in the original record, and was submitted by the Winicks only in response to Sarafa's argument that the Winicks' motion was procedurally improper.