Case Number: KS017525    Hearing Date: September 02, 2014    Dept: J

In Re Petition of Quality Loan Service Corporation (KS017525)

(1) MOTION FOR RECONSIDERATION; (2) MOTION TO SET ASIDE AND VACATE JUDGMENT

Moving Party: Claimant Teresa Gamboa Hutton

Respondent: No timely opposition filed

POS: Moving OK

The Petition herein was filed on 10/23/13, by the Trustee under a Deed of Trust secured by real property that was sold at a trustee’s sale on 7/12/13, seeking a determination of claims to surplus proceeds.

On 11/1/13, Petitioner deposited $101,406.80 with the court.

The petition came on for hearing to determine the distribution of surplus funds on 7/23/14. The court, after taking the matter under submission, issued an order awarding all of the surplus funds on deposit with the court to claimant James Gamboa.

Claimant Teresa Gamboa Hutton (“Claimant”) now moves for reconsideration of the court’s July 23, 2014 order based on newly acquired facts, circumstances and law pursuant to CCP § 1008. Claimant also moves pursuant to CCP § 663 for an order to set aside and vacate the judgment of July 23, 2014 and enter a new judgment in favor of Claimant.

MOTION FOR RECONSIDERATION:

Either the moving or opposing party can seek reconsideration by the same judge within 10 days upon showing “new or different facts, circumstances or law.” (CCP § 1008(a); Hennigan v. White (2011) 199 Cal.App.4th 395, 406.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) 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.” (New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212–213.) A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) However, once judgment is entered, the court cannot entertain or decide a motion for reconsideration. [But the court has discretion to treat it as a motion for new trial.] (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.)

There are three stringent requirements to move for a new trial based on newly-discovered evidence: (1) newly-discovered evidence; (2) material to the outcome of the case; and (3) reasonable diligence to discover and produce the evidence at trial (sometimes referred to as “strict diligence”). Lack of sufficient diligence is the most common reason for denying the motion. (Plancarte v. Guardsmark, LLC (2004) 118 Cal.App.4th 640, 646.) The evidence must be newly-discovered—i.e., evidence that was not known and could not reasonably have been known at the time of trial; for example, evidence that was willfully suppressed by a party and that came to light only after trial. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161–1162.) The evidence also must be material—i.e., it must be of a type likely to bring about a different result. (Id. at 1161.)

The court awarded all of the surplus funds on deposit with the court to Mr. Gamboa and thus, resolved all the issues presented by the petition. Thus, it appears that Claimant cannot challenge the court’s July 23, 2014 order pursuant to CCP § 1008. Further, even if such challenge could be made pursuant to CCP § 1008 and/or the court treats this motion as a motion for new trial, Claimant fails to demonstrate that she could not, with reasonable diligence, have discovered or produced the “new evidence” at the prior hearing and/or that the “new” evidence is material. Thus, Claimant’s motion for reconsideration [and/or motion for new trial] is denied.

MOTION TO VACATE:

The trial court is empowered to set aside a judgment based on incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts materially affecting the substantial rights of the moving party and entitling the party to a different judgment. (CCP § 663.) A CCP § 663 motion does not allow the court to reweigh the facts. It lies only on the basis of uncontroverted evidence. (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.)

Claimant fails to demonstrate an incorrect or erroneous legal basis for the court’s decision, not consistent with or not supported by the facts. The court’s decision was based on the documents submitted and filed by Claimant. While Claimant also appears to challenge Quality Loan Service Corporation’s authority to foreclose on the subject property, such challenge was not previously made and no evidence supporting such challenge was submitted to the court. Further, even if such evidence was presented at the hearing, it still would not support Claimant’s claim to the surplus funds. Accordingly, Claimant’s motion to vacate is denied.