Opinion
E079215
01-24-2024
CHAMPION MOTORSPORTS, INC., Cross-Complainant and Respondent, v. DUO LI, Cross-Defendant and Appellant.
Rimon and Ivan L. Tjoe; Ropers Majeski, Birgit Huber Willand, Stephen J. Erigero, and Pascale Gagnon, for Cross-Defendant and Appellant. Julander Brown &Bollard, Dirk O. Julander, M. Adam Tate, and Tiffany W. Harlan, for Cross-Complainant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. MCC1401104. Raquel A. Marquez, Judge. Treated as petition for writ of mandate and denied.
Rimon and Ivan L. Tjoe; Ropers Majeski, Birgit Huber Willand, Stephen J. Erigero, and Pascale Gagnon, for Cross-Defendant and Appellant.
Julander Brown &Bollard, Dirk O. Julander, M. Adam Tate, and Tiffany W. Harlan, for Cross-Complainant and Respondent.
OPINION
RAPHAEL J.
Years after judgment was entered against a company, the plaintiff successfully moved to amend the judgment to add an individual as the company's alter ego. The individual then unsuccessfully moved to set aside that judgment.
This appeal concerns the individual's second attempt, also unsuccessful, to set aside the judgment. Although we hold that the appeal is of a nonappealable order, instead of dismissing the appeal, we treat the appeal as a petition for writ of mandate and deny the petition.
Undesignated statutory references are to the Code of Civil Procedure.
I. BACKGROUND
In 2018, the trial court entered a judgment of about $4 million in favor of plaintiff and respondent Champion Motorsports, Inc. (Champion) and against OPL Auto Parts, Inc. (OPL) and others.
In 2020, Champion moved to amend the judgment to include defendant and appellant Duo Li and others as judgment debtors. Champion argued that Li is OPL's alter ego and should therefore be liable for the judgment against OPL. The trial court granted the motion in March 2021 and amended the judgment accordingly.
In September 2021, Duo Li, Baomin Li, and Alpha &Omega Global, Inc. (Alpha &Omega), who had all been added as judgment debtors, moved to set aside the amended judgment. The motion argued that the amended judgment was "void as to Baomin Li and Duo Li due to insufficient and improper service of process and for lack of personal jurisdiction." Their reply made the same contention, arguing that "the proof of service of the motion does not include service on Duo Li" and that "[t]herefore, the Court did not have jurisdiction or authority to add Duo Li as an additional judgment debtor."
Champion says Duo Li and Baomin Li are related, and we see nothing disputing this in the appellate record. To avoid confusion, we will refer to each of them by their first names. We intend no disrespect.
The trial court denied the motion in November 2021. The motion was denied "without prejudice" as to Baomin to give him an opportunity to show that Champion did not comply with the Hague Convention in serving him. The motion was denied with prejudice as to Duo and Alpha &Omega. In March 2022, the trial court granted Baomin's renewed motion to set aside the amended judgment because Baomin was improperly served.
Duo and Alpha & Omega filed a second motion to set aside the judgment, also in March 2022. The motion's title, the footer on each page, and the declarations submitted in support of the motion all refer to the motion as a "renewed" motion. Duo argued, as he did in the reply to the first set aside motion, that the court lacked personal jurisdiction over him because he was never properly served. Champion's opposition argued that Duo had been served. It did not mention section 1008. The trial court denied the motion, and in June 2022, Duo and Alpha &Omega appealed.
Duo and Alpha & Omega submitted a joint opening brief, but upon its request, we dismissed Alpha & Omega from the appeal in August 2023.
II. DISCUSSION
Duo contends that the trial court should have granted the second set aside motion because he was never served with a summons and because he is not OPL's alter ego. For the first time on appeal, Champion argues the second motion was a renewed motion under section 1008, subdivision (b) (section 1008(b)) and that orders denying renewed motions are not appealable.
Appealability means we have the ability to decide the appeal (see Griset v. Fair Political Practices Com'n (2001) 25 Cal.4th 688, 696), and "since the question of appealability goes to our jurisdiction, we are duty-bound to consider it" (Olson v. Cory (1983) 35 Cal.3d 390, 398). As we explain, the second motion was a renewed motion, and thus section 1008 governed it. Moreover, the order denying the second motion was nonappealable.
"Section 1008, subdivision (a) states the procedure for seeking reconsideration of a previous order. Section 1008, subdivision (b) sets out similar prerequisites for filing a renewed motion for an order that has previously been denied." (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 381.) Section 1008(b) states:
"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." (Italics added.)
The trial court denied Duo's first motion, and Duo's second motion sought the same order, which was to set aside the amended judgment. But there was no request for the trial court to reconsider its prior ruling in any way that would have made it a reconsideration motion per section 1008, subdivision (a). Section 1008(b) thus applies by its terms. It was a renewed motion.
Duo attempts to place the motion outside of section 1008(b) by pointing out the trial court said, in its minute order following the hearing on the first motion, that the moving parties had not "presented any argument as to why the Amended Judgment is void as to Duo Li or Alpha[ &Omega]." Duo argues this statement shows that the service and personal jurisdiction issues were raised for the first time in the second motion. However, this is neither relevant nor true. It is not relevant because section 1008(b) speaks only of applications "for the same order," which the second motion was, and says nothing of the bases for such an order. (See California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43 ["We conclude that appellants' second motion for attorney fees was a motion for 'the same order' (§ 1008, subd. (b)) they sought in their first motion, because they sought identical relief in both motions"].) Even if Duo raised a new issue in seeking the same order, then, section 1008(b) would govern. But it is not even true that Duo raised a new issue. The moving papers and reply for the first motion both raised the service and personal jurisdiction issues. Duo repeatedly referred to the second motion as a "renewed" motion in trial court, and it restated the same claim as the first one. The first motion stated that it was requesting the court to set aside the amended judgment because it was "void as to Baomin Li and Duo Li due to insufficient and improper service of process and for lack of personal jurisdiction," and the reply argued that "the proof of service of the motion [to amend the judgment] does not include service on Duo" such that the court "did not have jurisdiction or authority to add Duo Li as an additional judgment debtor." We thus find that the second motion was a renewed motion subject to section 1008(b).
The moving papers mentioned a failure of service of process but the reply mentioned a failure of service of Champion's motion. The two are not the same. (See § 17, subd. (b)(7) ["'Process' signifies a writ or summons issued in the course of a judicial proceeding."];Crane v. Dolihite (2021) 70 Cal.App.5th 772, 784 ["service of process protects a defendant's due process right to defend against an action by providing constitutionally adequate notice of the court proceeding"].) However, because of the procedural posture-a postjudgment motion to add a judgment debtor as an alter ego-an opponent of such a motion would, in many instances, not have already made an appearance in the case. Because the distinction between service of process and service of a motion has no bearing on how we resolve this case and was not a distinction that could have been relevant in trial court, we consider the two as synonymous for our purposes. (But seeKatzir's Floor and Home Design, Inc. v. M-MLS.com (9th Cir. 2004) 394 F.3d 1143, 1149-1150 [noting that "[a] prior judgment against a corporation '"can be made individually binding on a person associated with the corporation only if the individual to be charged . . . had control of the litigation" and that "[t]he purpose of the requirement that the party to be added to the judgment had to have controlled the litigation is to protect that party's due process rights"]; NEC Electronics Inc. v. Hurt (1989) 208 Cal.App.3d 772, 778-779 [discussing same].)
Turning to appealability, we find that the order is nonappealable. In Tate v. Wilburn (2010) 184 Cal.App.4th 150 (Tate), the Court of Appeal held that "an order denying a renewed motion pursuant to section 1008, subdivision (b) is not appealable." (Id. at p. 160, fn. omitted.) It based its holding on concerns that allowing such orders to be appealable would (1) make nonappealable orders or judgments appealable, (2) give a party "two appeals from the same decision," and (3) allow a party to "obtain an unwarranted extension of time to appeal." (Ibid.) Three cases have followed Tate. (See Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th 1247, 12521254; Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 364; Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.5th 967, 974.) But to date, no published case has addressed the potential conflict between a rule making all renewed motions nonappealable and section 904.1, subdivision (a)(2), which generally makes postjudgment orders appealable.
In Doe v. Westmont College (2021) 60 Cal.App.5th 753, the Court of Appeal cited the Tate line of cases and found that the motion before it was appealable. (Id. at pp. 760-761.) However, instead of disagreeing with Tate, it factually distinguished them, holding that a second motion requesting attorneys' fees "cannot be construed as a renewal" of an earlier motion requesting a different amount. (Id. at p. 761.)
In his reply brief, Duo does not cite Tate or the cases following it, let alone contend that they were wrongly decided. Instead, as he did in the opening brief, Duo cites section 904.1, subdivision (a)(2), which provides that postjudgment orders are appealable. We are not convinced. First, as our Supreme Court has stated, "not every postjudgment order that follows a final appealable judgment is appealable." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin).) Thus, Duo's bare citation to the statute does little in light of his failure to cite Tate or the other cases. Second, Duo has made no attempt to argue that those cases should be construed as carving out an exception for postjudgment orders. And third, the facts here are an example of why finding appealability would allow a party to "'obtain an unwarranted extension of time to appeal'" (Tate, supra, 184 Cal.App.4th at p. 160). The deadline for appealing Duo's first motion was May 2022, but Duo filed his notice of appeal in June 2022.
Lakin went on to describe three additional requirements. "The first requirement . . . is that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment....[¶] The second requirement . . . is that 'the order must either affect the judgment or relate to it by enforcing it or staying its execution.'" (Lakin, supra, 6 Cal.4th at pp. 651-652.) And "[t]he prerequisite that the underlying judgment must itself be final is sometimes described as a third requirement of appealable postjudgment orders." (Id. at p. 651, fn. 3.)
The minute order of the hearing on the first motion indicates that the parties waived notice, so Duo had 180 days to appeal unless the court or one of the parties served notice of entry of the order. (Cal. Rules of Court, rule 8.104(a)(3), (e).) There is no such notice of entry in the appellate record, and the first motion was denied in November 2021, so the deadline was in May 2022.
Despite finding the order nonappealable, we will treat the appeal as a petition for a writ of mandate. (See Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 ["we have the discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate"].) We do this for two primary reasons. First, despite our determination that the order is nonappealable, we have done so without the guidance of any known, published cases addressing the apparent conflict between section 904.1, subdivision (a)(2) and the Tate line of authority, or even discussion from the parties' briefing on renewed postjudgment orders. (See H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1367 [treating appeal as writ petition after finding order nonappealable because "[t]he appealability of the order was not clear as the only published case addressing the issue held it was appealable"].) For instance, Champion argues that the order is nonappealable without ever addressing section 904.1, subdivision (a)(2), and as noted, Duo cites only section 904.1, subdivision (a)(2) and never mentions Tate or the cases that have followed it. The other reason we will treat the appeal as a writ petition is that, though supplemental briefing may provide more helpful guidance on the broader issue, the bottom-line result from the parties' perspective would not change for reasons we discuss below. Thus, "[t]o dismiss the appeal rather than exercising our power to reach the merits through a mandate proceeding would, under the unusual circumstances before us, be '"unnecessarily dilatory and circuitous."'" (Olson v. Cory, supra, 35 Cal.3d at p. 401.) Whether we dismiss the appeal or treat it as a writ petition, Champion prevails, so we treat the appeal as a writ petition to forestall extraneous proceedings and promote judicial economy.
Duo did not comply with section 1008(b)'s requirements, and thus the trial court properly denied the motion. In addition to section 1008(b)'s stated requirements, which include an affidavit stating "what new or different facts, circumstances, or law are claimed be shown," courts, including this one, "have construed section 1008 to require a party . . . to show diligence with a satisfactory explanation for not having presented the new or different information earlier." (Even Zohar Construction &Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; see People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974 ["To merit reconsideration, a party must also provide a satisfactory reason why it was unable to present its 'new' evidence at the original hearing."].)
The second motion contained neither an affidavit stating "what new or different facts [or] circumstances" Duo was relying on nor an explanation for why such material was not presented with the first motion. The only relevant difference between the two motions was that only the second motion was accompanied by a declaration from Duo stating that he was never served. But as just noted, there was no attempt to explain why such a declaration was not included in the first motion. In his reply brief on appeal, Duo contends only that section 1008 "is irrelevant to the appealed order"; he does not argue that the second motion would have satisfied section 1008's requirements if it applied.
In the second motion, Duo claimed both that he was never served with summons and that he was never served with Champion's motion papers. (See ante, fn. 4.)
Because Duo's second set aside motion did not comply with section 1008(b), the trial court lacked the authority to grant it. Section 1008 states that it is jurisdictional. Section 1008, subdivision (e), states that "[t]his section specifies the court's jurisdiction with regard to . . . renewals of previous motions" and that "[n]o application . . . for the renewal of a previous motion may be considered by any judge or court unless made according to this section." As a result, the trial court did not err when it denied the second motion.
III. DISPOSITION
The appeal is treated as a petition for a writ of mandate, and the petition is denied. Champion to recover its costs on appeal.
We concur: FIELDS Acting P. J. MENETREZ J.