Jonathan Neil & Associates Inc vs Peter Van Bregmann, Jr et al

Case Number

25CV01001

Case Type

Hearing Date / Time

Mon, 01/12/2026 - 10:00

Nature of Proceedings

Motion: Vacate

Tentative Ruling

Jonathan Neil & Associates, Inc. v. Peter Van Bregmann Jr., et al.                 

Case No. 25CV01001

           

Hearing Date: January 12, 2026                                

HEARING:              Motion of Defendant Peter Van Bregmann Jr. to Vacate Default and Default Judgment; Motion to Stay Enforcement

ATTORNEYS:        For Plaintiff Jonathan Neil & Associates, Inc.: Bruce A. Hatkoff, Natalia A. Minassian, Hatkoff & Minassian

                             For Defendant Peter Van Bregmann, Jr.: Self Represented

                                    For Defendant Van Bregmann Industries, Inc.: No Appearance/Default Entered                    

TENTATIVE RULING:

Defendant Peter Van Bregmann Jr.’s motion is denied.

Background:

This action commenced on February 18, 2025, by the filing of the complaint by plaintiff Jonathan Neil & Associates, Inc. (“plaintiff”) against defendants Van Bregmann Industries, Inc. (“VBI”) and Peter Van Bregmann, Jr. aka Peter Bregmann (“Bregmann”) (collectively “defendants”) for: (1) Open Book Account; (2) Account Stated; (3) Money had and Received; (4) Breach of Agreement; (5) Breach of Guaranty for Agreement; (6) Breach of Security Agreement; (7) Claim and Delivery; and (8) Conversion.

As alleged in the complaint:

Prior to the initiation of this action, BMO Bank N.A., successor to Bank of the West, assigned its interest in the sums due from defendants to plaintiff. (Compl., ¶ 1(b).)

Defendants executed a Business Line of Credit and Security Agreement wherein defendants were to pay plaintiff’s assignor the sums due in accordance with the terms in the agreement. (Compl., ¶ 18 & Exh. 1.)

Within the last four years, defendants defaulted and became indebted to plaintiff’s assignor, on an open book account, in the sum of $124,999.27. (Compl., ¶¶ 8, 19.)

Each of the defendants executed, and delivered to plaintiff’s assignor, a Commercial Guaranty whereby each of the defendants guaranteed and promised to be answerable to plaintiff’s assignor for all sums due by VBI to plaintiff’s assignor. (Compl., ¶ 24.)

On April 28, 2025, plaintiff filed a proof of service evidencing substituted service on VBI, of the summons, complaint, civil case cover sheet, and civil case cover sheet addendum, at a UPS Store located at 3905 State Street, Santa Barbara, on March 4, 2025. On March 10, 2025, the documents were mailed to VBI at the place where the copies were left. On April 29, 2025, plaintiff filed a proof of service evidencing the same substitute service on Bregmann.

Having received no answer, or other responsive pleading, to the complaint, on April 29, 2025, plaintiff filed a request for entry of default as to both defendants, which was entered by the Court Clerk.

On June 23, 2025, default judgment was entered against defendants in the total amount of $147,081.55, consisting of damages, prejudgment interest, attorney’s fees, and costs.

On June 25, 2025, Bregmann filed a motion to set aside default and default judgment, pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), arguing that service was invalid and that there is excusable neglect due to Bregmann’s homelessness. On September 22, 2025, Bregmann’s motion was denied on both substantive and procedural grounds.

Bregmann’s current motion to vacate default and default judgment is substantively identical to the prior motion and, in effect, constitutes an improper motion for reconsideration.

Plaintiff opposes the motion.

Analysis:

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. 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.” (Code Civ. Proc., § 1008, subd. (a).)

“A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” (Code Civ. Proc., § 1008, subd. (b).)

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008, subd. (e).)

“ ‘Code of Civil Procedure section 1008 governs motions for reconsideration of prior orders. It provides that ‘any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.’ ” [Citation.] ‘ “The name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008.” ’ [Citation.]” ’ [Citation.]” (Myers v. Superior Court (2022) 78 Cal.App.5th 1127, 1135, fn. 4.)

“ ‘The burden under section 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 original hearing. [Citation.]” (Cradduck v. Hilton Domestic Operating Co., Inc. (2025) 112 Cal.App.5th 284, 304.)

“The overriding purpose of Code of Civil Procedure section 1008 is to prevent duplicative motions.” (UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367.)

“A party seeking reconsideration . . . must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (Dickson v. Mann (2024) 103 Cal.App.5th 935, 951.)

Bregmann did not bring the motion for reconsideration under Code of Civil Procedure section 1008 and therefore, pursuant to the plain language of the statute and case law, the court lacks jurisdiction to grant the motion.

Further, even if the motion had been properly brought under the correct code section, Bregmann makes the same arguments that he previously made, and the court would reject those arguments for the same reasons that it previously did. There are no “new or different facts, circumstances, or law” set forth by Bregmann. Additionally, as the motion was brought more than 10 days after the first motion was denied, the present motion is untimely.