Opinion
B155530.
7-3-2003
ONNIE WILLIAMS, Plaintiff and Appellant, v. J & J EQUIPMENT RENTAL et al., Defendants and Respondents.
Rastegar & Matern, Matthew J. Matern, Douglas W. Perlman, Eric S. Hall, and Sandra M. Falchetti for Plaintiff and Appellant. Tharpe & Howell, Robert B. Salley, and Paul W. Burke for Defendant and Respondent Nations Rents. Seifert, Farricker & Gilman and Steven L. Anderson for Defendant and Respondent Electric Eel Manufacturing Company.
This appeal arises out of the trial courts dismissal of appellant Onnie Williamss complaint and its subsequent denial of appellants two motions to set aside the dismissal. After appellants counsel, Peter M. Steinberg (Steinberg), failed to appear at a continued status conference and order to show cause for failure to serve the complaint, the trial court dismissed appellants lawsuit. Approximately nine months later, appellant moved to set aside the dismissal pursuant to Code of Civil Procedure section 473, subdivision (b). The trial court denied the motion. Two months later, appellant again moved to set aside the dismissal, this time pursuant to section 473, subdivision (d). The trial court denied that motion as well, and appellant filed the instant appeal.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In his opening brief, appellant purports to appeal from (1) the January 17, 2001, minute order dismissing his complaint; (2) the October 23, 2001, order denying his motion to set aside the dismissal; and (3) the December 18, 2001, order denying his second motion to set aside the dismissal. We are not persuaded by appellants arguments. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On May 11, 2000, appellant, represented by Steinberg, filed a lawsuit against J & J Equipment Rental (J & J Equipment) and National Rental for personal injury, product liability, and negligence. For six months, appellant and his attorney did not serve the complaint.
The trial court held a status conference on November 16, 2000, at which a contract attorney, Alma Guerra (Guerra), appeared for Steinberg. Guerra explained to the trial court that the defendant had not yet been served because attempts to obtain an accurate address from the secretary of state had proved unsuccessful. After a stern warning, including simple suggestions on how to obtain information to serve the complaint, the trial court continued the status conference and, because appellant had yet to serve his complaint, set an "O.S.C. re lack of timely service" for January 17, 2001. Apparently, Guerra did not contact Steinberg or otherwise expressly inform him of the continued hearing date. Similarly, it appears that Steinberg did not follow up with Guerra or contact the trial court or otherwise attempt to obtain information regarding what occurred at the November 16, 2000, status conference.
On January 17, 2001, no one appeared at the continued status conference, and, after "finding proper notice re this conference," the trial court dismissed the action without prejudice for failure to serve the complaint. The minute order indicates that notice of the dismissal was served on Steinberg.
Even though the minute order appears to have been served on Steinberg, he claims that he never received notice of the dismissal. Accordingly, he continued to litigate the case. Specifically, on January 19, 2001, he received information from Boykoff Investigations indicating that the owner of J & J Equipment was Nations West, Inc. Thereafter, on March 28, 2001, Steinberg received information from a different investigator, TransWest Investigations, Inc., regarding Nations Rent, Electric Eel Manufacturers, and J & J Equipment.
On April 16, 2001, Steinberg filed two amendments to the complaint pursuant to section 474, adding respondents Electric Eel Manufacturing Company (Electric Eel) and Nationsrent, Inc., (Nations Rent) as defendants.
During a telephone conversation in August 2001 with Nations Rents insurance carrier, Steinberg learned that the action had been dismissed. Accordingly, after obtaining a copy of the trial court file, on September 7, 2001, he filed a motion to set aside the dismissal pursuant to section 473, subdivision (b), arguing that the dismissal was the result of mistake, surprise, inadvertence, or excusable neglect because appellant did not have notice of the dismissal until August 2001, and that any penalty as a result of counsels error should not be imposed against appellant by way of a dismissal. Both Electric Eel and Nations Rent filed oppositions. The trial court denied the motion on October 23, 2001, reasoning that notice of the dismissal had been served by the trial court and that the motion was untimely.
On November 21, 2001, appellant again moved to set aside the dismissal, this time pursuant to section 473, subdivision (d). Appellant argued that the order of dismissal was void because neither he nor his attorney received "notice as to what the court would do in the event of a failure to appear." Nations Rent filed an opposition to the motion. That motion was denied on December 18, 2001, on the grounds that the motion constituted an improper motion for reconsideration. Further, the trial court found that sufficient notice had been given of the continued status conference to the appearing attorney as well as of the sanction imposed by the trial court.
On December 20, 2001, appellant filed his notice of appeal. The notice of appeal provides that appellant is appealing "from the order entered on October 23, 2001 and on December 18, 2001 . . . denying [his] motions to set aside the dismissal of [his] complaint."
DISCUSSION
I. The Appeal as to the January 17, 2001, Order of Dismissal is Improper and Untimely
In his opening brief, appellant purports to appeal the trial courts January 17, 2001 order dismissing his lawsuit. We disregard any argument pertaining to this issue in appellants briefs because it is outside the scope of appellants notice of appeal.
It is well-established that "the notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 1(a)(2).) Notwithstanding this rule mandating liberal construction of a notice of appeal in favor of its sufficiency, it does not apply when there is a clear intention to appeal from only one of two separately appealable judgments or orders. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625 [no relief from failure to include judgment on eighth cause of action in a notice of appeal from judgment on the tenth cause of action]; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal. App. 3d 35, 46-47, 269 Cal. Rptr. 228.) When several orders occurring close in time are separately appealable, each appealable order must expressly be specified in the notice of appeal. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) "An unexpressed intention or desire to appeal from [a different order] should not be read into that notice under the guise of a liberal construction." (Estate of Roberson (1952) 114 Cal. App. 2d 267, 270, 250 P.2d 179; see also City of Long Beach v. Crocker National Bank (1986) 179 Cal. App. 3d 1114, 1118, fn. 7, 225 Cal. Rptr. 227 ["The intent to appeal solely from the judgment is evidenced by the fact that Long Beach did not even refer to the denial of its motion to vacate the judgment when it summarized the proceedings below in its opening brief on appeal."].)
Here, appellants opening brief presents us with at least two separately appealable orders, namely the January 17, 2001, order of dismissal and the October 23, 2001, order denying his motion to set aside the dismissal. Both such orders are appealable. ( § 904.1, subds. (a)(1), (2); Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) Because appellants notice of appeal only identifies the two orders denying his motions to set aside the dismissal of his complaint — and not the dismissal itself — appellant has not properly noticed an appeal of this issue.
Whether the December 18, 2001, order denying appellants second motion to set aside the dismissal is appealable is discussed in section III, infra.
Even if the notice of appeal were construed to include the order of dismissal, the appeal still remains improper as it is untimely. California Rules of Court, rule 2(a) provides, in relevant part, that "a notice of appeal must be filed on or before the earliest of: [P] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [P] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [P] (3) 180 days after entry of judgment." "If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Cal. Rules of Court, rule 2(d).) "Compliance with the time for filing a notice of appeal is mandatory and jurisdictional." (Imuta v. Nakano (1991) 233 Cal. App. 3d 1570, 1579, fn. 11, 285 Cal. Rptr. 681; see also In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219.)
Here, appellants action was dismissed on January 17, 2001. However, he did not file his notice of appeal until December 20, 2001, 11 months later. Pursuant to California Rules of Court, rule 2, the purported appeal as to the order of dismissal is untimely and, accordingly, must be dismissed.
It should be noted that although the purported appeal of the January 17, 2001, order fails, we nevertheless consider whether the order was entered as a result of extrinsic mistake in section II.C., infra.
In his reply brief, appellant argues that because he did not receive notice that the trial court could dismiss the case at the continued status conference and because he did not thereafter receive notice that the case had been dismissed, the appeal is not untimely. There is no legal authority offered to support this proposition, and we deem this argument waived on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793, 897 P.2d 481 (Stanley); Sprague v. Equifax, Inc. (1985) 166 Cal. App. 3d 1012, 1050, 213 Cal. Rptr. 69 (Sprague).) In any event, in light of the clear language of California Rules of Court, rule 2 and the sound, constant case law confirming that the time deadlines in California Rules of Court, rule 2 are jurisdictional, we decline to adopt appellants argument.
Moreover, the fact that appellant timely appealed from the orders denying his motions to set aside the dismissal does not render the appeal timely as to the order of dismissal itself. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 108-109 (Eben-King & King).)
II. The Trial Court Did Not Abuse Its Discretion in Denying Appellants
First Motion to Set Aside the Dismissal
A. Standard of Review
Ordinarily, a motion to set aside a dismissal, whether pursuant to section 473 or based upon equitable grounds, is "addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse." (Davis v. Thayer (1980) 113 Cal. App. 3d 892, 904, 170 Cal. Rptr. 328 (Davis); see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981, 884 P.2d 126 (Rappleyea); Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479, 243 Cal. Rptr. 902, 749 P.2d 339 (Shamblin ).) In other words, appellate courts will disturb discretionary trial court rulings only upon a showing of "a miscarriage of justice." (Blank v. Kirwan (1985) 39 Cal.3d 311, 331, 216 Cal. Rptr. 718, 703 P.2d 58; Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal. Rptr. 65, 468 P.2d 193 (Denham).) "Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] `"`The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citations.] [Citation.]" (Eben-King & King, supra, 80 Cal.App.4th at p. 118.) On appeals challenging discretionary trial court rulings, it is the appellants burden to establish an abuse of discretion. (Ibid .; see also Blank, supra, 39 Cal.3d at p. 331; Denham, supra, at p. 566.)
It is also the policy of the law to favor, whenever possible a hearing on the merits. (Shamblin, supra, 44 Cal.3d at p. 478.) Therefore, an order denying relief under section 473 is subject to closer appellate scrutiny than one granting relief, and doubts are resolved in favor of the party seeking relief. (Rappleyea, supra, 8 Cal.4th at p. 980.) This policy coexists with the general rule that appealed judgments and orders are presumed correct and "all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham , supra, 2 Cal.3d at p. 564.)
When the resolution of the matter also involves factual disputes, the trial courts necessary resolution of disputed factual issues must be affirmed if supported by "substantial evidence." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624.) This test examines whether the record as a whole demonstrates substantial evidence in support of the appealed judgment or order. The rule requires that "when a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination. . . ." (Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873-874, 197 Cal. Rptr. 925.)
The "conflicting evidence" and "conflicting inference" rules are corollary to the substantial evidence rule and require the appellate courts to view the record in the light most favorable to the respondent and to resolve all evidentiary conflicts and indulge all reasonable inferences in support of the judgment or order. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal. Rptr. 79, 536 P.2d 479; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.)
B. Appellants First Motion to Set Aside the Dismissal Was Untimely
Section 473, subdivision (b) provides, in relevant part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . dismissal . . . was taken." "The six-month time limit for granting relief under section 473 is jurisdictional and relief cannot be granted under section 473 if the application for such relief is instituted more than six months after the entry of the judgment, order or proceeding from which relief is sought. [Citations.]" (Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal. App. 3d 725, 735, fn. 3, 216 Cal. Rptr. 300; see also Rappleyea, supra, 8 Cal.4th at p. 980.)
In this case, the dismissal was entered on January 17, 2001. Appellant did not file his motion to set aside the dismissal until September 7, 2001, more than six months after the dismissal. Given these facts, relief under section 473, subdivision (b) was unavailable.
Appellant urges that his motion was not untimely because the six-month statutory period was tolled until he received actual notice that the lawsuit had been dismissed. Appellant offers no legal authority to support this proposition, and we therefore deem this argument waived. (Stanley, supra, 10 Cal.4th at p. 793; Sprague, supra, 166 Cal. App. 3d at p. 1050.) In any event, appellants argument is untenable in light of (1) the well-established rule set forth above that relief under section 473 is unavailable after the six-month period has lapsed, and (2) the substantial evidence that Steinberg was served with a copy of the trial courts minute order dismissing the complaint. Properly interpreted, the minute order indicates that Steinberg was served with notice of the dismissal and that he was required to give appropriate notice of said dismissal. The fact that he failed to do so and that no separate proof of service was filed is irrelevant to this analysis.
Because we find that the trial court did not abuse its discretion in denying appellants motion to set aside the dismissal for statutory tardiness, we next discuss whether the trial court erred in refusing to exercise its inherent equitable authority to set aside the dismissal.
C. The Trial Court Did Not Abuse Its Discretion by Refusing to Exercise Its Equitable Power to Overturn the Dismissal
Where more than six months have passed since the entry of an order, a trial court has the inherent equitable power to grant relief from the order or proceeding where there has been extrinsic fraud or mistake. (Rappleyea, supra, 8 Cal.4th at p. 981; Weitz v. Yankosky (1966) 63 Cal.2d 849, 855, 48 Cal. Rptr. 620, 409 P.2d 700.) "Extrinsic mistake is found when [among other things] . . . a mistake led a court to do what it never intended. . . ." (Rappleyea, supra, at p. 981.) However, where the complaining party contributes to the mistake, equitable relief properly is denied. (In re Marriage of Stevenot (1984) 154 Cal. App. 3d 1051, 1064-1065, 202 Cal. Rptr. 116 (Stevenot); Davis, supra, 113 Cal. App. 3d at p. 911.)
"To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered." (Stiles v. Wallis (1983) 147 Cal. App. 3d 1143, 1147-1148, 195 Cal. Rptr. 377 (Stiles).)
Here, appellant has failed to demonstrate that the order of dismissal was entered as a result of extrinsic mistake. On appeal, appellant has the burden of properly presenting and sufficiently developing his arguments. (Stanley, supra, 10 Cal.4th at p. 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19, 878 P.2d 521; In re David L. (1991) 234 Cal. App. 3d 1655, 1661, 286 Cal. Rptr. 398.) Quite simply, appellant has not met that burden herein. In his opening brief, he merely assumes extrinsic mistake exists and thereafter attempts to explain how the three Stiles requirements have been satisfied. Appellant has not shown, as he is required to do, that extrinsic mistake occurred in the first place and that the trial court did not intend to dismiss his complaint. Without this prerequisite, the Stiles elements are irrelevant and appellant is not entitled to equitable relief.
We note that appellant did not raise this argument with the trial court in his first motion to set aside the dismissal, thereby waiving it on appeal. (California State Auto. Assn. Inter-Ins. Bureau v. Antonelli (1979) 94 Cal. App. 3d 113, 122, 156 Cal. Rptr. 369; In re Cheryl E. (1984) 161 Cal. App. 3d 587, 603, 207 Cal. Rptr. 728; People v. Lilienthal (1978) 22 Cal.3d 891, 896, 150 Cal. Rptr. 910, 587 P.2d 706.) Nevertheless, in an effort to dispose of all issues discussed by the parties, we resolve it herein.
In fact, it appears that no extrinsic mistake occurred when the trial court entered the order of dismissal. It gave notice of the continued status conference and order to show cause to Guerra, who appeared on behalf of Steinberg, at the initial status conference. Despite proper notice having been given by the trial court, when no one appeared at the continued hearing, the trial court dismissed the complaint. The fact that Guerra may have failed to communicate with Steinberg and/or Steinberg failed to follow up with either Guerra or the trial court does not equate with extrinsic mistake. (Stevenot , supra, 154 Cal. App. 3d at p. 1065.)
III. The Trial Court Did Not Abuse Its Discretion in Denying Appellants Second Motion to Set Aside the Dismissal of His Complaint
A. The December 18, 2001, Order is Not Appealable
In its brief, Nations Rent urges that the December 18, 2001, order denying appellants second motion to set aside the dismissal is not appealable because it amounted to nothing more than a motion for reconsideration, and orders denying motions for reconsideration are not appealable. We agree.
A motion for reconsideration may only be brought if the party moving for reconsideration can offer "new or different facts, circumstances, or law" which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. ( § 1008, subd. (a); see Jade K. v. Viguri (1989) 210 Cal. App. 3d 1459, 1467, 258 Cal. Rptr. 907.) A motion for reconsideration will be denied absent a strong showing of diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Where evidence addressed in the motion for reconsideration was available to a party before the initial motion was heard, such evidence is not considered "new" evidence for purposes of a motion for reconsideration. (See Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028.) In other words, the party seeking reconsideration must provide not only new evidence, but also a satisfactory explanation for failing to present that evidence earlier. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)
The same diligence requirement applies to motions to reconsider based upon "different" law. "If a trial court has no jurisdiction to reconsider a prior order on the basis of different facts in the absence of a satisfactory explanation for the failure to present them earlier, it cannot have jurisdiction to reconsider on the basis of `different law absent the same showing of diligence, because there is no basis for any distinction either in the statute or in reason." (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1200.)
This statute is jurisdictional. ( § 1008, subd. (e).) If the moving party does not present new or different facts, circumstances, or law, then the trial court lacks jurisdiction to entertain reconsideration. If the statutory requirements are not met, then the motion will be denied.
Although appellants second motion pursuant to section 473 presented two new legal arguments as to why the trial court should set aside the dismissal, he failed to present a satisfactory explanation for failing to offer these theories earlier, namely in the first motion to set aside the dismissal. As the trial court aptly stated, there appears to be no reason why appellants original motion to set aside the dismissal could not have included the arguments first raised in the second motion. In fact, the second motion consists of the same facts as the first motion, only with a new legal twist. Accordingly, the trial court correctly determined that the second motion was nothing more than a motion for reconsideration.
Given that we agree with the trial courts characterization of the second motion, we have then been called upon to review the order denying appellants de facto motion for reconsideration. Orders denying motions for reconsideration are not appealable (Crotty v. Trader (1996) 50 Cal.App.4th 765, 769, disagreed with on other grounds in Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1156.) Accordingly, we are without jurisdiction to review the December 18, 2001, order.
B. The Trial Court Did Not Err in Denying the Second Motion to Set Aside the Dismissal
Regardless, reviewing the trial courts order on the merits, we find no error. Appellant was given notice of both (1) the potential sanctions for failing to appear at a status conference and order to show cause, and (2) the continued hearing date. Specifically, after filing the complaint, Steinberg received a notice of status conference from the trial court. That notice specifically provides as follows: "If you fail to appear at the conference, the case will be dismissed." At the November 16, 2000, status conference, the trial court continued the hearing to allow appellant more time to serve the complaint. Because the January 17, 2001, status conference merely was a continued status conference and order to show cause, the same rules governing the initial status conference applied, including the sanction of dismissal for failure to appear. Steinberg failed to appear, and the case was dismissed in accordance with the notice of status conference.
Moreover, Steinberg (and therefore appellant) received sufficient notice of the continued hearing date. At Steinbergs request, Guerra appeared at the November 16, 2000, status conference. Guerra received notice at that status conference of the continued hearing date, thereby imputing knowledge to Steinberg and appellant. (Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444-447.) Guerra and Steinbergs failure to communicate and/or Steinbergs error in not following up with either Guerra or the trial court as to what occurred at the status conference is not respondents or the trial courts problem.
IV. Appellants Remaining Arguments
In his reply brief, appellant raises several arguments for the first time on appeal, namely (1) that the trial court had no authority to dismiss the action pursuant to sections 575.2, subdivision (b) and 583.410, subdivision (a); (2) because less severe sanctions were available, dismissal was improper (Gov. Code, § 68608, subd. (b)); and (3) that appellant never received notice that his compliant might be dismissed at the January 17, 2001, status conference. To the extent these arguments are not resolved, supra, we will not consider arguments first raised in a reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
Nations Rents motion to strike appellants arguments first raised in the reply brief is therefore moot.
DISPOSITION
The judgment and orders of the trial court are affirmed. Respondents are entitled to costs on appeal.
We concur: BOREN, P. J., and DOI TODD, J.