Filed 6/24/26 Trendy Textiles v. Harkham CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TRENDY TEXTILES, INC., B340769
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC430652)
v.
DAVID HARKHAM,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Elaine Lu, Judge. Affirmed.
Christie Gaumer for Defendant and Appellant.
Zee Law Group, Tappan Zee and Kimberly Barrientos for
Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Defendant and appellant David Harkham challenges the
denial of his motion to vacate a renewal of judgment pursuant to
Code of Civil Procedure section 683.170, subdivision (a).1 In
2010, plaintiff and respondent Trendy Textiles, Inc. filed suit
against Harkham and an entity defendant, contending they failed
to pay for custom textiles.2 The trial court entered a default
judgment after Harkham filed an answer but failed to pay the
related filing fees. In 2018, Trendy Textiles renewed the
judgment. In 2023, Harkham moved to vacate the renewal of the
judgment. The trial court denied the motion. Harkham now
appeals.
We conclude Harkham has forfeited his newly asserted
defenses to an action on the judgment, which he failed to raise in
his motion to vacate. He also has not established that the trial
court erred in rejecting his attempt to assert contract defenses
relevant to the underlying complaint as a defense to an action on
the judgment. We affirm the trial court order.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2010, Trendy Textiles filed a complaint against
The Robeworks, Inc. and Harkham (the defendants).3 The
complaint alleged causes of action for breach of contract and
money due. It asserted that in September 2008, the defendants
“entered into an agreement with Plaintiff for the payment upon
custom textiles ordered by Defendants. The terms of such
agreement include Defendants’ ‘personal guarantee to [] Trendy
1 Undesignated references are to the Code of Civil Procedure.
2 The entity defendant is not a party to this appeal.
3 The complaint alleged that The Robeworks, Inc. also does
business as Robeworks and Robeworks International.
2
Textiles for the outstanding balance of $59,025.14 . . . that The
Robe Works owes to Trendy Textiles, Inc.’ ” The complaint
further alleged that in October 2008, defendants breached the
agreement by failing to pay the remaining balance of $29,025.14,
despite Trendy Textiles performing its obligations, except those
which the defendants “prevented.”
In May 2010, Harkham filed an answer. In July 2010, the
clerk voided his answer for failure to pay required fees pursuant
to section 411.20, subdivision (b), within 20 days of the Clerk’s
Notice of Filing Fees Due. In December 2010, the court entered a
default judgment in the amount of $36,700.49 in favor of Trendy
Textiles.
In October 2018, Trendy Textiles filed an application for
renewal of judgment. The clerk issued a notice of renewal of
judgment in November 2018, which extended the enforceability of
the original judgment for 10 years from the date that Trendy
Textiles filed the application.
In November 2023, Harkham filed a motion to vacate the
renewal of judgment pursuant to section 683.170. Harkham
argued he had “a complete defense to the action for two reasons,
namely because (1) plaintiff never delivered the goods, and
(2) Mr. Harkham was not a party to the original obligation even
had plaintiff delivered the goods.”4
4 Harkham’s notice of motion also stated: “Additionally,
Mr. Harkham was not served with the application for renewal of
judgment nor the Notice of Entry of Judgment.” He asserted that
the application was served at the wrong address, and the court’s
Notice of Renewal of Judgment was only served on his counsel.
However, Harkham did not claim that improper service of either
3
In June 2024, the trial court denied Harkham’s motion,
concluding he failed to show he had a “defense to an action on the
judgment,” as required under section 683.170. The court
reasoned that because Harkham was in default, he had admitted
all well-pled allegations in the complaint. The complaint alleged
that each of the defendants had entered into the agreement with
Trendy Textiles and had personally guaranteed the outstanding
balance. The complaint also alleged that defendants breached
that agreement by failing to pay as promised, despite Trendy
Textiles performing all of its obligations, except to the extent
prevented by defendants. Thus, the court reasoned that
Harkham’s asserted defenses failed because the complaint’s
allegations to the contrary were presumed true.
The trial court also took judicial notice of one of its own
records titled: “Plaintiff’s Summary of Case Pursuant to
California Rule of Court 388 [sic] In Support of Plaintiff’s
Request for Entry of Clerk’s Judgment filed on December 30,
2010.” According to the trial court, that document established
that Harkham signed a “personal guarantee” in favor of Trendy
Textiles, stating: “I hereby confirm my personal guarantee . . . for
the outstanding balance of $59,025.14 . . . .”5 On this basis, the
court concluded that Harkham was responsible for the amount
due even if he was not a direct party to the agreement.
On July 8, 2024, Harkham filed a motion for
reconsideration. The motion did not purport to present new or
document was a basis for the court to vacate the renewal of
judgment.
5 This document is not in the record on appeal. Harkham did
not include it in his appellant’s appendix.
4
different facts, circumstances, or law that would justify the court
reconsidering its prior order. Instead, the motion contended the
trial court should vacate the renewal of judgment because his
failure to pay the filing fee for his answer was due to excusable
neglect. The motion further asserted the judgment was procured
by extrinsic fraud and the amount of the judgment was excessive
because damages from plaintiff’s breach of the underlying
agreement would have offset all or part of the original judgment.
On August 22, 2024, Harkham appealed from the trial
court’s June 2024 order denying his motion to vacate.
In February 2025, the trial court denied Harkham’s motion
for reconsideration, finding that it lacked jurisdiction under
section 916 due to the pending appeal. The trial court ruled in
the alternative that Harkham’s arguments were not based on
new law, circumstances, or facts, as required to warrant
reconsideration under section 1008.
DISCUSSION
I. Harkham Has Not Established That the Trial Court
Abused Its Discretion in Denying His Motion to
Vacate the Renewal of Judgment
A. Applicable legal principles and standard of
review
A monetary judgment is generally enforceable for 10 years.
However, “a judgment creditor has two distinct methods by which
to continue to pursue collection of a judgment as it nears
expiration of the 10-year period of enforceability: the renewal of
judgment provisions set forth in section 683.110 et seq. [for an
additional 10-year period], or an independent action on the
judgment. Although the two methods are distinct, the defenses
available to the judgment debtor in the statutory procedure are
5
the same as in an independent action on the judgment.”
(Goldman v. Simpson (2008) 160 Cal.App.4th 255, 260–261
(Goldman); Fidelity Creditor Service, Inc. v. Browne (2001) 89
Cal.App.4th 195, 200–201 (Fidelity Creditor Service).)
Accordingly, if a judgment is renewed pursuant to
section 683.110, the judgment debtor may move to vacate it
pursuant to section 683.170, subdivision (a), “on any ground that
would be a defense to an action on the judgment . . . .”
The statutory “[r]enewal of a judgment is a ministerial act
performed by a court clerk upon receipt of an application for
renewal.” (Fidelity Creditor Service, supra, 89 Cal.App.4th at
p. 198.) “ ‘[R]enewal does not create a new judgment or modify
the present judgment. Renewal merely extends the enforceability
of the judgment.’ [Citation.] The renewed judgment ‘has no
independent existence’ from the original judgment.” (Goldman,
supra, 160 Cal.App.4th at p. 262, fn. omitted.) Thus, “[a]
successful motion under section 683.170 does not affect the
validity of the default or the default judgment. [Citation.] A
successful motion under section 683.170 vacates only the renewal
of the judgment thereby precluding its extended enforceability
under section 683.120.” (Fidelity Creditor Service, at pp. 203–
204.)
In the trial court, “[t]he 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.” (Fidelity Creditor Service, supra, 89 Cal.App.4th at
p. 199.) We review questions of law de novo. (Vines v. O’Reilly
Auto Enterprises, LLC (2024) 101 Cal.App.5th 693, 706.)
6
B. Harkham’s defenses not timely raised in his
motion to vacate the renewal of judgment are
forfeited
On appeal, Harkham asserts two new defenses not included
in his motion to vacate the renewal of judgment: his inability to
pay the filing fee for his answer due to “excusable neglect” and
Trendy Textiles’s “extrinsic fraud.” Harkham concedes that he
did not raise these defenses in his motion to vacate. However, he
contends they are not forfeited because he asserted them in his
motion for reconsideration. In a supplemental letter brief,
Harkham explains that he raised these new arguments in
response to the trial court’s denial of the motion, which he asserts
was based on a “new rationale” the parties had not briefed.6
We acknowledge that although Trendy Textiles’s opposition
to the motion to vacate the renewed judgment argued that
Harkham “fail[ed] to point to any defects which would render the
judgment void therefore the Court is without statutory power
under the circumstances to vacate judgment,” it did not expressly
articulate the reasoning the trial court later employed, namely
that Harkham failed to assert a defense to an action on the
judgment, as required under section 683.170. However, with
respect to forfeiture, the fundamental problem Harkham faces is
that the trial court’s ruling directly addressed and rejected the
6 We invited the parties to file supplemental letter briefs
pursuant to Government Code section 68081 on the issue of
whether we had jurisdiction to consider what appeared to be
Harkham’s appeal from the denial of his motion for
reconsideration. Harkham’s response clarified that he is not
appealing from that order but only discussed the motion and
denial as part of his contention that he preserved these new
arguments for purposes of appeal.
7
two contract-based arguments in his motion. It found the
allegations of the complaint, which were admitted as true due to
his default, contradicted the asserted contractual defenses. As
discussed below, Harkham’s asserted contractual defenses did
not collaterally attack the judgment and therefore did not provide
a basis to grant his motion. Once the trial court made its ruling
and explained the law it was bound to follow, Harkham then
sought to raise new arguments, entirely unconnected to the
original motion, based on facts he had not presented to the trial
court. In other words, Harkham sought to litigate a new,
different motion.7 We thus disagree that Harkham preserved his
excusable neglect and extrinsic fraud arguments. Raising new
defenses at the hearing at which he suffered a defeat on the
original motion was too late.
Filing a motion for reconsideration did not solve the
problem. Harkham filed his notice of appeal in August 2024, well
before the trial court rejected the motion for reconsideration. As
the trial court correctly noted, once the notice of appeal was filed,
the court no longer had jurisdiction to consider the merits of the
7 Harkham contended in a settled statement that at the
hearing on the motion to vacate the renewed judgment, he asked
that the motion be “ ‘considered as a CCP 473 motion and
requested that be briefed. The court denied the request.
Plaintiffs’ counsel orally argued to counter the opposition, but the
points were not considered in its ruling.’ ” The trial court did not
certify this part of the settled statement, indicating that while
this might have occurred, the court could no longer recollect any
such alleged exchange. Even assuming the exchange occurred,
however, Harkham does not argue the trial court abused its
discretion in denying the request for further briefing on what
would have been a new and different motion.
8
motion for reconsideration. (Jack v. Ring LLC (2023) 91
Cal.App.5th 1186, 1211.) The notice of appeal foreclosed any trial
court ruling on the substance of the motion for reconsideration
that would provide a basis for appellate review of the arguments
in the motion.
Further, section 1008, subdivision (a), allows for a motion
for reconsideration “based upon new or different facts,
circumstances, or law . . . . The party making the application
shall state 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.) Harkham’s motion for reconsideration
did not advance new or different facts, circumstances, or law.
Filing a motion for reconsideration that simply made additional
arguments that could have been included in the motion to vacate
was insufficient to timely raise those arguments in the trial
court. (California Correctional Peace Officers Assn. v. Virga
(2010) 181 Cal.App.4th 30, 46–47 [court may not reconsider a
previous order absent party’s showing of diligence and that it
could not have presented the different law earlier].) Thus, filing
the reconsideration motion did not preserve the arguments for
appellate review.
Harkham did not assert the defenses of excusable neglect
and extrinsic fraud in his motion to vacate the renewal of
judgment. He cannot raise the defenses for the first time on
appeal, having failed to timely assert them in the trial court.
“ ‘As a general rule, theories not raised in the trial court cannot
be asserted for the first time on appeal; appealing parties must
adhere to the theory (or theories) on which their cases were tried.
This rule is based on fairness—it would be unfair, both to the
9
trial court and the opposing litigants, to permit a change of
theory on appeal . . . .’ [Citation.]” (Nellie Gail Ranch Owners
Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997; see also
Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1519.) This
rule of fairness applies here. Trendy Textiles did not have the
opportunity to address these arguments in its opposition to
Harkham’s motion to vacate the renewal of judgment.
Additionally, Harkham’s excusable neglect and extrinsic
fraud defenses do not concern pure issues of law based on
undisputed facts. (See C9 Ventures v. SVC-West, L.P. (2012) 202
Cal.App.4th 1483, 1492 [even if forfeited, an appellate court may
consider a new argument based on “pure issue of law on
undisputed facts”].) Harkham’s excusable neglect defense is
based on his asserted inability to pay a filing fee. His extrinsic
fraud defense rests on his assertion that the judgment was
excessive due to Trendy Textiles’s untimely delivery of the robes
and the “rejection of the delivery.” Both defenses raise factual
questions involving facts not in the record.
Harkham’s new defenses, not raised in the motion to vacate
the renewal of judgment, are forfeited.
C. Harkham has not established that the trial
court abused its discretion in denying his
motion to vacate the renewal of the judgment
Harkham’s motion to vacate the renewal of judgment
pursuant to section 683.170, subdivision (a), asserted two
defenses. Harkham contended he had a “complete defense to the
action because he was not a party to the underlying obligation,”
and “defendants deny that the robes were delivered timely, so
there was no obligation to pay for the robes.” Harkham’s opening
brief on appeal does not argue that the trial court erred by
10
rejecting these asserted defenses. Instead, the brief’s analysis is
confined to a discussion of the defenses of excusable neglect and
extrinsic fraud, addressed above.
Harkham’s reply brief asserts for the first time that the
trial court erred in rejecting the two defenses he raised in the
motion to vacate. This was too late. “An appellant may not put
off to its reply brief the presentation of a legal argument
supporting a claim of error asserted in its opening brief, for to do
so would unfairly deprive the respondent of the ability to rebut
the argument.” (LNSU #1, LLC v. Alta Del Mar Coastal
Collection Community Assn. (2023) 94 Cal.App.5th 1050, 1070.)
We therefore generally do not consider arguments raised for the
first time in a reply brief. (Paulus v. Bob Lynch Ford, Inc. (2006)
139 Cal.App.4th 659, 685; Reichardt v. Hoffman (1997) 52
Cal.App.4th 754, 764.)
Even if we were to consider Harkham’s arguments in the
reply, we would conclude the trial court did not abuse its
discretion. The trial court found that Harkham’s default, and the
resulting admission of the complaint’s allegations, nullified the
defenses Harkham sought to raise. (Vasey v. California Dance
Co. (1977) 70 Cal.App.3d 742, 749 (Vasey) [“by a default a
defendant admits the allegations in the complaint” that are “well
pleaded”].)
Harkham contends that when pursuing a motion to vacate
the renewal of judgment, a party in default should not be
presumed to admit the well-pleaded allegations of the complaint.
This is incorrect. “Section 683.170 . . . addresses renewed
judgments. It allows a judgment debtor to oppose a renewed
judgment by establishing a defense to an action on the judgment.
[Citations.] A successful motion under section 683.170 does not
11
affect the validity of the default or the default judgment.”
(Fidelity Creditor Service, supra, 89 Cal.App.4th at p. 203.)
The defenses Harkham asserted in his motion to vacate the
renewal of judgment are defenses to the underlying complaint’s
contract claim, not “defense[s] to an action on the judgment.”
(§ 683.170.) As the Goldman court explained, “[i]n an
independent action on a judgment, the debtor may challenge the
judgment ‘in accordance with the rules and principles governing
collateral attack’ [citations], including ‘lack of personal or subject
matter jurisdiction . . . . Nonjurisdictional errors, however, are
not appropriate procedural targets within this context.’
(Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950.) Such a
collateral attack challenges the jurisdiction of the court to enter
the original judgment.” (Goldman, supra, 160 Cal.App.4th at
pp. 261–262.) Generally, “errors of substantive law, such as
insufficiency of the evidence and failure to state a cause of action,
are nonjurisdictional errors that provide no basis for a collateral
attack on a final judgment.” (Backlund v. Stone (2025) 115
Cal.App.5th 580, 596.)
Harkham’s arguments in the motion to vacate concern the
substantive merits of the complaint. They do not constitute a
collateral attack on the judgment.8 The trial court did not abuse
8 At oral argument, Harkham asserted that under In re
Marriage of Thompson (1996) 41 Cal.App.4th 1049 (Thompson),
he could assert contractual defenses in his motion to vacate the
renewal of judgment. Thompson is inapposite. In that case, the
trial court vacated a renewal of judgment after finding that a
father who had been ordered to pay child support had already
paid the amount that the assignee of the child support arrears,
the County of Stanislaus, had told him he still owed on the
12
its discretion in rejecting Harkham’s defenses as a basis to vacate
the renewal of the judgment.
Harkham’s reliance on Fidelity Creditor Service is
misplaced. In that case, the parties agreed that the defendant
was not served with the original summons and complaint and
first learned of the lawsuit after default judgment was entered.
(Fidelity Creditor Service, supra, 89 Cal.App.4th at pp. 198–199.)
The original judgment was thus invalid for lack of service. (Id. at
p. 207.) The appellate court found that the trial court should
have granted the defendant’s motion to vacate the renewal of
judgment because “the Supreme Court has held, under
circumstances indistinguishable from the present case, that the
failure to have served the summons and complaint is a defense to
an action on a judgment.” (Id. at p. 202.) Since “the undisputed
failure to have served process is a defense to a separate action on
a judgment . . . the undisputed failure to have served the
judgment. Therefore, the County was prevented from further
collecting on the judgment under principles of equitable estoppel
and accord and satisfaction. (Id. at p. 1054.) On appeal, the
issue was whether there was sufficient evidence to support that
finding. The Court of Appeal observed that, pursuant to statute,
a court “may vacate renewal of the judgment on any ground that
would be a defense to an action on the judgment. (§ 683.170,
subd. (a).) That the judgment was satisfied by an accord and
satisfaction is such a defense. (See § 724.010, subd. (a) . . . .)” (Id.
at p. 1058, italics added, citations omitted.) The reviewing court
then reversed, finding insufficient evidence that the parties
“reached an accord and satisfaction” of the judgment. (Id. at
p. 1059.) Thus, Thompson did not concern whether the defendant
was initially liable under a contract, but whether a judgment that
was being renewed had already been satisfied. Thompson
provides no support for Harkham’s arguments.
13
summons and complaint also provides a basis for a motion to
vacate a renewed judgment. (§ 683.170, subd. (a).)” (Ibid.) Here,
in contrast, Harkham’s asserted contractual defenses did not
collaterally attack the judgment based on the lack of jurisdiction.
Harkham also cites Vasey, supra, 70 Cal.App.3d 742, for
the proposition that allegations deemed admitted for purposes of
a default judgment do not validate “acts in excess of jurisdiction.”
The Vasey court considered a motion to set aside the default
judgment. The defendant contended, and the appellate court
agreed, that the trial court acted in excess of its jurisdiction when
it awarded damages in an unlawful detainer action that were
unrelated to the unlawful detention at issue. (Id. at p. 748.)
Here, the contract defenses Harkham asserted as a basis for
vacating the renewal of judgment do not call into question the
trial court’s jurisdiction to enter the original default judgment.
Harkham further contends that a “guarantor has the same
defenses available to the principal obligator . . . namely that
Respondent could not show its performance as required to prove
the cause of action for breach of contract.” As we understand it,
this argument, too, seeks to assert a defense to Trendy Textiles’s
contract claim and is not a collateral attack on the judgment.
To the extent this argument also concerns the trial court’s
determination that Harkham could be held liable for breach of
the parties’ contract because he signed a document personally
guaranteeing the money due, we note that Harkham did not
include in the appellate record the document on which the trial
court relied. The absence of the document prevents us from
evaluating the trial court’s ruling interpreting that document.
“ ‘ “[I]f the record is inadequate for meaningful review, the
appellant defaults and the decision of the trial court should be
14
affirmed.” ’ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594,
609.)
Finally, Harkham’s reply brief also appears to challenge
the validity of the default judgment on the ground that the clerk’s
act of striking the answer was improper and insufficient to justify
default under section 585, subdivision (a). He further contends
that since an answer was on file, no court could deem him to have
admitted the allegations in the complaint. However, not only has
he asserted these arguments for the first time on appeal in his
reply brief, he did not raise them in any form in the trial court.
Respondent had no opportunity to respond, either in the trial
court, or on appeal. For the reasons explained above, these
arguments are forfeited and we decline to consider them.
15
DISPOSITION
The order denying Harkham’s motion to vacate the renewal
of the judgment is affirmed. Trendy Textiles is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EGERTON, Acting P. J.
KARNOW, J.*
* Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
16