ALDRICH, J.
Mahendra Patel, Praful Patel, and Sudha Patel (collectively, the Patels)
The Patels entered into a written real estate purchase and sales agreement with 7-Star to buy the 7 Star Suites Hotel in Chatsworth.
PacBell filed a complaint against the Patels and 7-Star, among others, seeking the unpaid balance on its Yellow Pages advertising contracts, attorney fees, and prejudgment interest. 7-Star reached a settlement with PacBell.
7-Star filed a cross-complaint against the Patels, alleging a cause of action for indemnity for the amount of the PacBell settlement. The complaint also alleged the Patels breached the terms of the agreement by continuing "to use the 7 Star Suites name and logo after 180 days from February 3, 2005, when escrow closed."
The Patels each separately filed answers to the cross-complaint. However, they failed to respond to discovery even after the trial court imposed monetary sanctions and ordered them to respond. Thereafter, the court imposed terminating sanctions by striking their answers and entering the Patels' default.
On August 11, 2008, pursuant to 7 Star's request, the trial court entered a default judgment against the Patels.
More than two years after the default judgment was entered, on October 22, 2010, the Patels, in propria persona, filed a motion to vacate on the ground that the 2008 default judgment exceeded the damages sought in the cross-complaint (first motion).
On January 13, 2011, Mahendra Patel filed a notice of appeal. By August 2011, the appeal was in default and was dismissed. The remititur issued on October 19, 2011.
The case summary submitted in the Patels' appendix indicates that they brought an ex parte application on December 24, 2012 before a different judge. According to the Patels, the application was to set aside the default judgment (second motion). The trial court denied the second motion.
In January 2013, the Patels brought an ex parte application and motion to vacate the 2008 default judgment on the same grounds as the first motion (third motion). 7-Star opposed the third motion because the identical motion already had been denied and the Patels failed to comply with section 1008 by setting forth "`new or different facts, circumstances, or law.'" The opposition also noted that the Patels had defaulted on their appeal. The trial court denied the third motion on January 14, 2013 "for the reasons set forth in the opposition."
On May 10, 2013, the trial court ruled on a noticed motion to vacate the default judgment (fourth motion) brought on the identical grounds as the first motion and supported by the declarations submitted in 2010. The court denied the fourth motion. The order states: "The court treats this motion as a motion to reconsider [the first motion], as this motion has been previously denied." The Patels timely filed a notice of appeal from the denial of this latest motion.
During this appeal, the Supreme Court granted review of Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (review granted July 17, 2013, S210804) to address whether successive motions brought pursuant to section 473, subdivision (b) for mandatory relief from a default judgment must meet the predicate requirements set forth in section 1008, subdivision (b), which requires a showing of new or different facts, circumstances, or law, not previously before the court when ruling on the first motion. We vacated submission of this case pending the Supreme Court's decision. After the Supreme Court issued its opinion in Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, holding that section 1008 governs renewed applications for mandatory relief from default (Even Zohar, at p. 833), we invited the parties to file supplemental letter briefs addressing the impact of that case, and whether section 1008, subdivision (b) "applies to all renewed motions."
The Patels contend the 2008 default judgment is void because it exceeded the maximum amount of damages alleged in 7 Star's cross-complaint.
The trial court invoked section 1008
Here, the trial court heard and considered the fourth motion and denied it. Although there is no specified period limiting when motions may be renewed (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 816), an order denying a motion pursuant to section 1008, subdivision (b) is not appealable. (Tate, supra, 184 Cal.App.4th at pp. 159-160.)
The appeal from the trial court's order of May 10, 2013 is dismissed as nonappealable. Respondent shall recover costs of appeal.
EDMON, P. J. and LAVIN, J., concurs.
"Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.