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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
CODRINGTON, J.
I
INTRODUCTION
The parties to this appeal are plaintiff and respondent Hope Garcia and her son and his wife, defendants and appellants Mario A. Garcia and Veronica B. Garcia.1 Defendants appeal from a judgment after the court denied two motions to set aside a default judgment and granted sanctions against defendants and their lawyer.
By an order dated April 18, 2016, this court dismissed defendants' appeal of the order of January 6, 2016, involving the default judgment. Based on our order, this appeal is limited to considering only the order for sanctions entered on January 27, 2016. We affirm the judgment and the order for sanctions.
II
FACTUAL AND PROCEDURAL BACKGROUND
Although the appeal is limited to the propriety of the order for sanctions, we briefly summarize the proceedings involving the default judgment to give context to this opinion.
On December 4, 2013, Hope filed a complaint asserting seven causes of action for elder abuse against defendants, seeking to recover damages caused by defendants' squandering her financial assets. On January 8, 2014, Hope filed proofs of service against both defendants. Mario was personally served. Veronica was served by substituted service. At plaintiff's request, the court entered both defendants' defaults on March 13, 2014. The court entered a default judgment against both defendants on April 28, 2014, in the total amount of $443,576.40. Plaintiff served both defendants by mail with a notice of entry of judgment on August 6, 2014.
A. The First Motion to Set Aside the Judgment
On July 27, 2015, defendants, acting in propria persona, filed a motion to set aside the judgment. Defendants challenged the judgment on the grounds that they were never served with and had no notice of the summons and complaint. The motion did not include a supporting declaration.
Plaintiff opposed the motion as untimely because it was not brought within 180 days after service of the written notice of entry of the default judgment. (Code Civ. Proc., § 473.5, subd. (a)(ii); Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180.) Written notice of entry of the judgment was served on August 6, 2014, and defendants' motion was filed almost a year later on July 17, 2015. Additionally, defendants' motion was defective because it was not supported by a declaration and did not include a proposed response to the complaint. (Code Civ. Proc., § 473.5, subd. (b).)
On August 31, 2015, the court denied defendants' motion with prejudice, finding the motion was untimely and "there was no proposed answer or declaration setting forth factual basis for motion attached for courts review. [Sic.]"
B. The Second Motion to Set Aside Default Judgment
On December 3, 2015, defendants, now represented by a lawyer, Marcus Gomez, filed a second motion to set aside the default judgment, based on lack of personal service on Mario. Defendants also contended the proof of substituted service for Veronica had been subject to tampering. Mario submitted a declaration stating he had never been personally served because his house was protected by a security gate.
Plaintiff filed opposition, arguing that defendants' motion failed as an untimely motion for reconsideration. (Code Civ. Proc., § 1008.) Plaintiff also argued the second motion failed for similar reasons as the first motion.
The court denied the second motion on January 6, 2016, for lack of jurisdiction and the failure to supply new or different facts, circumstances, or law.
C. Motion for Sanctions
In January 2016, plaintiff filed a motion for sanctions (Code Civ. Proc., § 128.7) of $2,160 against defendants and their attorney, for filing a frivolous motion. The court granted the motion, imposing sanctions jointly and severally against Gomez and defendants.
III
SANCTIONS
Most of defendants' arguments on appeal involve the default judgment, which is not an appealable issue pursuant to this court's order of April 18, 2016, dismissing the appeal as to all issues other than the issue of sanctions. Only a single sentence of defendants' brief addresses the issue of sanctions: "Appellants and their counsel were erroneously sanctioned where the Court interpreted the December 7, 2015 Motion to be a Motion for Reconsideration of the Appellant's pro per July 27, 2015 Motion." In view of defendants' failure to present any salient argument on this point, we deem the issue waived. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817; In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 1004; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Nevertheless, in the interests of justice, we will briefly address the merits.
We review an order granting sanctions for abuse of discretion. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) Abuse of discretion involves considerations of due process and reasonableness. (Conservatorship of Becerra (2009) 175 Cal.App.4th 1474, 1482; On v. Cow Hollow Properties (1990) 222 Ca1.App.3d 1568, 1576.) Whether a pleading is frivolous, legally unreasonable, or without factual foundation is tested objectively. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 82.)
Code of Civil Procedure section 128.7 authorizes the court to impose monetary sanctions:
"(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
"(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
"(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
"(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
"(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
"(c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence."
Defendants' second motion to set aside the default judgment was in effect a motion for renewal or reconsideration. Code of Civil Procedure section 1008, subdivision (b), requires that a renewal motion be supported with new or different facts, circumstances, or law. Renewal motions must also be supported with an affidavit or declaration giving a satisfactory explanation for having failed to produce the new or different facts, circumstances, or law at the original hearing. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.) Trial courts are jurisdictionally barred from considering a renewal motion that fails to comply with the requirements of section 1008. (Code Civ. Proc., § 1008, subd. (e); Kerns, at pp. 383 and 391.)
Here, all of the evidence submitted in the second motion filed in December 2015 could have been included in the first motion filed in July 2015. The supporting declarations were inadequate. As such, defendants' second motion failed to meet the requirements of Code of Civil Procedure section 1008 as a matter of law. (Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 690.) Defendants' second motion was legally frivolous and the order granting plaintiff's motion for sanctions was correct.
The remainder of the arguments raised by both parties concerns the underlying default judgment, which is not properly the subject of this appeal. Therefore, we decline to conduct further analysis regarding the default judgment.
IV
DISPOSITION
Defendants' second motion was factually and legally frivolous as it included no new facts, circumstance, or law, and was unsupported by a declaration explaining why its evidence and legal authorities were not presented in the first motion.
We affirm the judgment and the order of the court granting sanctions. The prevailing party shall recover her costs on appeal.
HOLLENHORST, Acting P. J. and SLOUGH, J., concurs.
