Kirby, William W v. Toplean, Pete

7. S-CV-0043355 Kirby, William W v. Toplean, Pete

Judgment creditors are advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Motion for Reconsideration

Plaintiffs and judgment creditors James W. Kirby and Sarah Kirby-Gonzalez move the court to reconsider its February 11, 2026 ruling denying an order to sell real property. The motion is unopposed.

Relevant Procedural History

On September 1, 2020, judgment was entered in this action for judgment creditors against judgment debtors Pete Toplean and Top Investment Property, LLC in the amount of $182,916. Judgment creditors filed an application for an order for sale of a dwelling that had been owned by judgment debtors Pete Toplean and Top Investment Property, LLC but has been transferred to a third party, Akashbir S. Mann.

On October 28, 2025, when the application first came on for hearing, the court continued the matter to permit judgment creditors to file and serve a declaration referenced in but not included with the application. Judgment creditors filed a declaration of James W. Kirby on November 7, 2025.

At the continued hearing, the court issued a tentative ruling denying the application for various deficiencies. At oral argument, judgment creditors requested another continuance, which the court permitted.

On January 29, 2026, judgment creditors filed a declaration of James W. Kirby, an amended declaration of James W. Kirby, and a supplemental brief. At the second continued hearing, the court issued another tentative ruling denying the application for various deficiencies. At oral argument, judgment creditors requested the opportunity to submit additional information, which the court permitted and deemed the matter under submission on February 10, 2026.

Judgment creditors filed a supplemental declaration on February 10, 2026. The court issued its ruling on submitted matter on February 11, 2026, denying the application because (1) the notice of levy as provided as Exhibit A to the February 10, 2026 Kirby declaration was addressed to the Placer County Recorder rather than the person against whom an order for sale of dwelling is sought; (2) failure to submit a copy of the recorded abstract of judgment, and (3) no citation to authority that would permit this court to order the sale of real property in this enforcement of judgments action against a third-party purchaser. Judgment creditors timely moved the court for reconsideration.

Ruling on the Motion

Preliminarily, the motion was initially filed on March 2, 2026 and served with sufficient notice. An amended motion was filed on June 8, 2026, only 15 court days prior to the hearing. The amended motion was served by mail on June 5, 2026 and personally on June 6, 2026. Under either calculation, notice was deficient. As the motion may not be granted based on this procedural deficiency, the court elects to reach the merits.

A motion for reconsideration requires a showing of new or different facts, circumstances, or law along with a satisfactory explanation as to why the evidence was not presented at an earlier time. (Code Civ. Proc., § 1008; Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) The moving party bears the burden of showing that the information supporting reconsideration is such that the moving party could not, with reasonable diligence, have discovered or produced it earlier. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–13.)

Here, judgment creditors respond to the court’s first concern by providing proofs of service of notice of levy as Exhibit B. Judgment creditors indicate they did not have these proofs of service from the sherif’s department back when the motion was originally heard. While the court takes judgment creditors at their word that they did not have these documents when the motion was originally heard, these documents do not change the outcome of the motion because they do not address the court’s concern as judgment creditors have not provided a notice of levy directed to any judgment debtor.

As to the court’s second concern regarding the recorded abstract of judgment, judgment creditors correctly point out that they did provide the recorded abstract of judgment provided as Exhibit L to the Kirby declaration filed January 29, 2026. While the court acknowledges its mistake, this does not change the outcome of the motion.

Judgment creditors next re- brief the issue of forcing a sale of real property against a third-party purchaser in the underlying enforcement of judgment action. Judgment creditors cite to portions of Miller and Starr, Code of Civil Procedure section 697.390, and Federal Deposit Ins. Corp. v. Charlton (1993) 17 Cal.App.4th 1066. Of the new authorities cited, judgment creditors fail to present any reason why they could not have been cited when the motion was initially heard. Moreover, judgment creditors continue to focus on the language in Charlton that the judgment lien was enforceable against a third-party purchaser while failing to acknowledge that the third-party purchaser was a party in the Charlton case.

Judgment creditors still have not cited to any authority that supports an order for sale of real property may be made against a non-party to an action out of the underlying enforcement of judgments action.

In sum, judgment creditors fall short of showing newly discovered information that could not have reasonably been presented to the court when this motion was initially decided. The motion for reconsideration is denied.

8. S-CV-0045347 Grayot, Chad v. Exclusive Auto Group

Request to Seal Records

Plaintiff and defendant Exclusive Auto Group, Inc., through their respective counsel, submitted to the court a stipulation and proposed order thereon to seal seven documents that have already been filed into this case. The court issued a Presiding Judge Notice setting this hearing. The parties have not submitted any additional information in the intervening time.

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