Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 56-2008-00316312, Glen M. Reiser, Judge
Peter Bash, in pro. per., for Plaintiff and Appellant.
Howard Gold, for Defendant and Respondent.
COFFEE, J.
The trial court granted summary judgment in favor of respondent Peter Conseza on appellant Peter Bash's complaint for breach of contract and misrepresentation. Bash does not appeal from the judgment, but he appeals from two post judgment orders. He contends that the trial court should have granted relief from judgment pursuant to Code of Civil Procedure section 473, subdivision (b), and should have granted his motion for new trial, based on evidence that he had not previously presented in opposition to the motion for summary judgment. We affirm.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
We also deny appellant's request for judicial notice of pages 31, 268-269, 149 and 151 of the reporter's transcript in his prior appeal (Bash v. Cosenza (June 25, 2009, B207426) [nonpub. opn.]), because page 269 was not presented to the trial court in the present case and the remaining pages are already a part of the record on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Bash brought this action against Cosenza for breach of an oral employment contract and for misrepresentation. The action arose from Cosenza’s alleged engagement of Bash to write a television documentary.
In a prior appeal (Case No. B207426), we affirmed the judgment in favor of Cosenza and against Bash on other causes of action arising from the same series of events.
Cosenza moved for summary judgment. He declared that no contract existed between the parties. He also submitted prior testimony that tended to prove he had not entered into any contract with Bash and had not made any misrepresentations to him.
In opposition, Bash did not file any affidavit or other admissible evidence. Bash had obtained a continuance of the hearing on the motion in order to gather opposing evidence. (§ 437c, subd. (h).) On July 8, 2009, the court granted summary judgment and awarded costs to Cosenza.
Bash moved the trial court for relief from judgment pursuant to section 473, subdivision (b). He asserted that judgment was entered against him as a result of poor advice from a self-help legal center. On August 3, 2009, the court denied the motion for relief.
About five months later, Bash sought leave to move for a new trial. He offered new evidence consisting of his affidavit and an affidavit from Cosenza’s neighbor. The neighbor declared that he was present when Bash and Cosenza argued about legal issues, and that Bash later said he had not been paid. On January 13, the court denied the motion for new trial.
On January 21, 2010, Bash a filed notice of appeal from the August 3 order denying relief. In February, we advised him by letter that his appeal may be untimely. On March 15, 2010, he filed another notice of appeal, this time from the January 13 order denying his motion for new trial.
By letter, has asked us to dismiss the appeal on the grounds that the order denying relief was non-appealable, and that both the appeal from the order denying relief and the appeal from the motion for a new trial should be deemed to be untimely appeals from the order granting summary judgment. In an order dated March 22, 2010, we deferred resolution of these jurisdictional issues pending completion of briefing.
DISCUSSION
Order Granting Motion for Summary Judgment
We do not review the order granting summary judgment because Bash has not filed a notice of appeal from the judgment or from the order granting summary judgment. Even if we were to deem the appeal to be an appeal from the judgment, we would affirm because Cosenza’s evidence established that the action was without merit as a matter of law and Bash offered no admissible evidence in opposition to raise a triable issue of material fact. (§ 473c, subds. (a) & (c).)
Order Denying Relief From Judgment
The order denying relief from judgment pursuant to section 473, subdivision (b) is appealable under section 904.1, subdivision (a)(2) (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1413-1414), but Bash's appeal from this order is untimely. Bash filed his notice of appeal from the order denying relief on January 21, 2010, more than 60 days after the clerk gave notice of entry of the order. (Cal. Rules of Court, rule 8.104(a)(1).) The clerk gave notice to Bash by mail on August 6, 2009, at the address he had provided on his first amended complaint. Even if the appeal from this order were timely, we would affirm. The court did not abuse its discretion when it determined that Bash acted with inexcusable neglect when he submitted no affidavit or other admissible evidence in opposition to the motion for summary judgment. Negligent failure to produce opposing evidence does not warrant relief. (Cochran v. Linn (1984) 159 Cal.App.3d 245, 252.) The rules of civil procedure apply equally to self-represented litigants. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.)
Order Denying Motion for New Trial
The January 13 order denying Bash’s motion for a new trial is not appealable. (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156.) It is reviewable only on appeal from the underlying judgment. (§ 906; Hamaski v. Flotho (1952) 39 Cal.2d 602, 608.) Bash has not appealed from the judgment. Even if we were to construe the appeal as one from the underlying judgment (Walker v. Los Angeles County Transportation authority (2005) 35 Cal.4th 15, 18), we would affirm because the court did not err when it granted summary judgment, as previously explained. The same result would follow if we were to construe the appeal as one from an order denying the motion for reconsideration. Appellant did not demonstrate any new or different facts, circumstances or law and did not otherwise comply with the requirements of section 1008.
DISPOSITION
The judgment is affirmed. Appellant's request for judicial notice is denied. Costs on appeal are awarded to respondent.
We concur: GILBERT, P.J., YEGAN, J.