Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. 678581, Richard E. L. Strauss, Judge.
BENKE, J.
In this case we recently affirmed orders reappointing a receiver and permitting the receiver to obtain records from third parties in whom the judgment debtor may have an interest. (McWethy v. Elansari [D047317, unpublished opinion filed March 14, 2007] (McWethy I).) On this appeal we affirm a later trial court order denying the judgment debtor's motion to vacate the underlying default judgment. The record fully supports the trial court's determination the motion was in fact an unsubstantiated and untimely motion to reconsider a prior motion to vacate the same default judgment.
SUMMARY
1. Initial Motion to Vacate
As we indicated in our opinion in McWethy I, the default judgment which is the subject of this appeal arises out of a 1992 lease agreement between plaintiff and respondent William H. McWethy, Jr., doing business as Palm Mountain Resort, and defendant and appellant Ahed Elansari. McWethy was the owner and operator of a Holiday Inn hotel in Palm Springs, California, and in 1992 McWethy leased the restaurant located in the hotel to Elansari for a term of 10 years. Among other matters, under the terms of the agreement Elansari promised to provide hotel guests with regular food service.
Elansari began operating the restaurant in 1992 but was not able to operate it profitably. For his part McWethy was not satisfied with the food service the restaurant provided the hotel's guests. In March 1994 Elansari and McWethy executed a written abandonment of the lease. The abandonment stated Elansari was voluntarily relinquishing possession of the restaurant and each party reserved their respective rights under the lease.
In July 1994 McWethy filed a complaint against Elansari. The complaint alleged eight causes of action. Each cause of action alleged a specific amount of damages and the total of the damages allegations was $1,000,450.
Initially, Elansari was represented by counsel, who filed an answer and cross-complaint. However, counsel for Elansari substituted out of the case in January 1995. Thereafter Elansari failed to respond to discovery which McWethy propounded, failed to respond to motions to compel and failed to respond to McWethy's motion for terminating sanctions. As a result of these lapses, the trial court entered Elansari's default.
At a prove-up hearing, the trial court awarded McWethy a total of $556,914.23 in damages. The amount awarded included not only rent due under the terms of the lease, but also substantial damages for the loss of business at the hotel due to Elansari's failure to provide hotel guests with adequate food service. In addition to damages, the trial court awarded McWethy $21,623 in attorney fees, $37,594 in prejudgment interest and $850 in costs. Accordingly, on October 3, 1995, the trial court entered a total judgment of $616,980 against Elansari.
In 1998 Elansari moved to set aside the default and default judgment. He argued his counsel failed to give him actual notice of McWethy's discovery requests and without his knowledge or consent, withdrew as counsel. Elansari also argued that the amount of the judgment exceeded the demand in the complaint. In June 1999, after extensive briefing and argument by the parties, the trial court denied Elansari's motion. In its tentative ruling denying the motion to set aside the default, the trial court stated: "The court finds that Defendant unreasonably delayed in bringing this motion. Even if Elansari had exercised diligence in bringing this motion, the court would still deny the motion because the evidence establishes that Elansari knew of and consented to the withdrawal [of his counsel] of record . . . in this action." Thereafter the trial court confirmed its tentative ruling. Elansari did not appeal from the order denying his motion to vacate.
2. Receivership and Renewal of Judgment
In 1999 the trial court also appointed a receiver. In March 2005 McWethy filed an application to renew his judgment which, with accrued interest, amounted to $1.2 million. Under the provisions of Code of Civil Procedure section 683.170, Elansari moved to vacate the renewal. Elansari argued the judgment exceeded the amounts prayed for in the complaint and improperly awarded McWethy duplicate damages. The trial court denied Elansari's motion on September 7, 2005, and he filed a timely notice of appeal.
3. Additional Receivership Orders
On September 28, 2005, shortly after Elansari's motion to vacate was denied, McWethy moved ex parte for an "Amended Order Appointing Post-Judgment Receiver." By way of the application for the amended order, McWethy asked that the trial court give the receiver permission to "allow the Receiver to seize and hold all of the books, records and indicia of ownership regarding any corporations, partnerships, limited liability companies and/or any other legal entities in which Judgment Debtors or any of them owns or controls any interest."
The trial court granted McWethy's application for the amended order.
On October 21, 2005, McWethy applied to the trial court for an "Order Expanding Receiver's Authority" (expansion order). By way of the expansion order, McWethy asked that the trial court give the receiver the power to seize and hold all financial books and records of the two corporations. The trial court granted the order.
Elansari filed a timely notice of appeal challenging the receivership orders. We consolidated Elansari's appeal from the order denying his motion to vacate the renewal of McWethy's judgment with the appeal from the amended and expansion orders and as indicated, affirmed both orders. Our opinion is now final. In affirming the order denying Elansari's motion to vacate renewal of the judgment, we found that default judgment did not exceed the amount prayed for in the complaint and that the substantive defenses Elansari raised could have been raised before entry of the judgment by demurrer or at trial and hence did not undermine the validity of the later judgment.
4. Second Motion to Vacate
On March 3, 2006, following entry of the receivership orders, Elansari filed a second motion to vacate the default judgment. In his second motion to vacate Elansari argued he recently discovered evidence that contradicted damages evidence McWethy presented at the 1995 prove-up hearing and that McWethy had failed at the prove-up hearing to show that Elansari was an alter ego responsible for tort damages. Elansari also argued he recently discovered billing records produced by McWethy's counsel which showed that after Elansari's first attorney withdrew as counsel she continued to have telephone conferences with McWethy's counsel. According to Elansari, this evidence established that counsel was in fact responsible for his default.
The trial court denied Elansari's second motion to vacate on the grounds that it was in fact a motion to reconsider its 1999 order denying his first motion to vacate and Elansari failed to meet the procedural requirements of Code of Civil Procedure section 1008. Alternatively, the trial court found that nothing Elansari presented in support of his second motion undermined the trial court's previous damages determination and nothing he presented was new evidence within the meaning of the section 1008. The court further found that, like the 1998 motion, the 2006 motion was untimely. Finally, the court rejected Elansari's contention his prior attorney was responsible for the fact that his default had been entered.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
DISCUSSION
I
Where as here, the moving party has alleged that a judgment was entered by virtue of extrinsic fraud, an order denying a motion to reconsider is appealable. (See Cope v. Cope (1964) 230 Cal.App.2d 218, 228.) We review orders denying motions for reconsideration and motions for relief from a default or default judgment for abuse of discretion. (See Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027; Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1041.) An abuse of discretion will not be found unless the trial court is shown to have engaged in "'arbitrary determination, capricious disposition or whimsical thinking.'" (In re Cortez (1971) 6 Cal.3d 78, 85.) Thus, an abuse of discretion is shown only where the trial court "exceeds the bounds of reason, all of the circumstances before it being considered." (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) Importantly, we are bound by the trial court's factual findings if they are supported by substantial evidence. (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.)
II
As the trial court noted, in his reply memorandum Elansari conceded that his 2006 motion to vacate the judgment was in fact a motion under section 1008 to reconsider the trial court's 1999 order denying his first motion to vacate. Section 1008, subdivision (b), provides in pertinent part: "A party who originally made an application for an order which was refused . . . 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." (Italics added.) Elansari's motion was not supported by the required affidavit. In light of this failure to meet the requirements of the statute, the trial court clearly had the discretion to sanction Elansari. (See Radlinski v. Superior Court (1960) 186 Cal.App.2d 821, 823.) In our view the trial court also had the discretion to deny the motion.
III
However, there was a more fundamental problem with Elansari's motion. Simply reciting new evidence will not support reconsideration. To merit reconsideration, a party must give the trial court some satisfactory reason why it was unable to present its "new" evidence at the original hearing. (Lucas v. Santa Maria Public Airport Dist., supra, 39 Cal.App.4th at pp. 1027-1028; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)
Here, Elansari did not offer the trial court any convincing reason why, at the time he made his 1998 motion to vacate, he could not present the evidence he later produced in support of his 2006 motion. In his second motion to vacate he presented evidence which, he argued, showed that in 1994 McWethy was able to promptly relet the restaurant. There is nothing in the record which supports any inference that this evidence was not available to Elansari at the time he made his 1998 motion. The same is true with respect to Elansari's contention that his default was taken as a result of his attorney's malfeasance. As we have noted, in both his 1998 and 2006 motions Elansari argued he was not adequately informed by his counsel about his outstanding discovery obligations. Plainly, the 1996 billing records which support this contention were available in 1998 as well as 2006. Hence, the billing records were not new evidence within the meaning of section 1008. (Lucas v. Santa Maria Public Airport Dist., supra, 39 Cal.App.4th at pp. 1027-1028.)
In short, Elansari did not meet his burden on a motion to reconsider.
IV
The fact the evidence Elansari relies upon could have been produced at the time of his first motion to vacate also fully supports the trial court's alternative determination that Elansari's motion was untimely. By it terms, section 1008 requires that a motion for reconsideration be brought within 10 days after an order is entered. However, the 10-day period is not conclusive provided that relief is sought within a reasonable time. (Phelps v. Superior Court (1982) 136 Cal.App.3d 802, 815.) The nearly 10 years which passed between the time the default judgment was entered and the second motion to vacate was made was not, by any measure, reasonable, especially where, as here, there is no satisfactory explanation for the lengthy delay.
V
Finally, we note that with respect to Elansari's renewed effort to attribute the underlying default to his former counsel, the trial court correctly determined that on the merits this claim fails. As the trial court noted, in its 1999 order denying the initial motion to vacate, the trial court found Elansari knew about and consented to counsel's withdrawal well before his default was taken. Nothing in Elansari's second motion undermined this determination. Hence, evidence as to contacts McWethy's counsel had with Elansari's former counsel after her withdrawal has no bearing on the fact that at the time the default was taken, Elansari was solely responsible for meeting his discovery obligations.
DISPOSITION
Order affirmed. Respondent to recover his costs of appeal.
WE CONCUR: McCONNELL, P. J., AARON, J.