Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 149059, Hugh M. Flanagan, Judge.
Jamar Evans, in pro. per., for Plaintiff and Appellant.
Kroloff, Belcher, Smart, Perry & Christopherson, J. Douglas Van Sant and Joshua J. Stevens for Defendant and Respondent.
OPINION
Kane, J.
Plaintiff Jamar Evans appeals following a judgment entered in favor of defendant, Mercy Medical Center, pursuant to an order granting defendant’s motion for terminating sanctions. After judgment was entered, plaintiff filed a motion for reconsideration that was denied. A few weeks later, plaintiff filed a notice of appeal, but it was more than 60 days after notice of entry of judgment was served on him. On these facts, we conclude plaintiff’s notice of appeal was untimely and consequently dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Plaintiff’s lawsuit arose out of his alleged need for emergency medical services on or about November 4, 2005. Plaintiff was allegedly transported to Mercy Medical Center by ambulance due to his experience of chest pains, cold sweats and extreme vomiting. Upon plaintiff’s arrival, defendant’s medical staff allegedly failed to provide adequate care to plaintiff and generally neglected his symptoms, including plaintiff’s continued vomiting. Plaintiff also alleged that another party, codefendant Riggs Ambulance Services, Inc. (Riggs), struck plaintiff on the sternum. Defendant allegedly failed to provide enough security guards to prevent Riggs’s conduct. In an amended version of plaintiff’s complaint, he claims to have suffered injury to his mind and body in the amount of “$250,000,000,000.00.”
We note that Riggs filed a motion in the trial court to have plaintiff declared a vexatious litigant. The record on appeal does not disclose the outcome of that motion. Riggs is not a party to the current appeal.
Once defendant was served with the complaint, plaintiff commenced what defendant now describes as a “long history of discovery abuses.” According to defendant, this history of discovery abuses included such things as failure to respond to discovery requests, failure to meet and confer, failure to pay monetary sanctions, and repeatedly serving the same set of interrogatories over and over again. The last straw came when plaintiff filed a motion to compel further responses to interrogatories after the 45-day deadline had expired—even though defendant’s counsel had previously informed plaintiff that it was too late to file such a motion. In response to the unwarranted and untimely motion, defendant filed both an opposition to plaintiff’s motion and a motion requesting terminating sanctions.
On August 23, 2007, the “ORDER AND JUDGMENT ON MOTION FOR TERMINATING SANCTIONS” was signed by the trial court and filed. It states: “IT IS HEREBY ORDERED that [defendant’s] Motion for Terminating Sanctions is hereby granted. [Plaintiff’s] Complaint, as it pertains to [defendant], is hereby terminated and judgment is hereby rendered in favor [of defendant].” On August 31, 2007, defendant filed the “NOTICE OF ENTRY OF ORDER AND JUDGMENT ON MOTION FOR TERMINATING SANCTIONS,” which duly notified plaintiff of entry of judgment pursuant to the order granting terminating sanctions. The proof of service shows that the notice of entry was served by mail to plaintiff on August 30, 2007. Plaintiff concedes being served with notice of entry of judgment at that time.
On the same date, the trial court denied plaintiff’s motion to compel further responses.
Thereafter, plaintiff filed a motion for reconsideration. The motion was not based on any new facts, circumstances or law in regard to the trial court’s order granting terminating sanctions. Indeed, the motion for reconsideration was apparently an attempt to reargue the motion to compel further responses. The minute order reflects that the motion for reconsideration was denied by the trial court on October 31, 2007, and a formal order to that effect was filed on November 26, 2007. A few days later, plaintiff was served with notice of entry of the order denying his motion for reconsideration.
Plaintiff’s notice of appeal was filed on November 20, 2007. Plaintiff appeals from the judgment entered pursuant to terminating sanctions and from the motion for reconsideration, contending the trial court abused its discretion.
DISCUSSION
I. Appeal from Judgment Untimely
“The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Ordinarily, in an appeal from a judgment, notice of appeal must be filed no later than 60 days after the party seeking to appeal has been served with notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a).) In the present case, plaintiff was served with notice of entry of judgment on August 30, 2007. His notice of appeal was not filed until November 20, 2007, well beyond the 60-day period. Accordingly, plaintiff’s appeal from the judgment is untimely and his appeal must be dismissed unless the time for appeal was extended by the filing of his motion for reconsideration. (See rule 8.108(e).)
Unless otherwise indicated, all further references to rules are to the California Rules of Court.
II. Time to Appeal Not Extended by Postjudgment Motion for Reconsideration
A postjudgment motion for reconsideration will not extend the time for appeal from the judgment. (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236-1238; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605-1608 (Passavanti).) As noted in Safeco Ins. Co. v. Architectural Facades Unlimited, Inc., supra, 134 Cal.App.4th at page 1482, “[a]s soon as the trial court entered judgment on …, it lost jurisdiction to consider the motion for reconsideration. Therefore, the motion for reconsideration can have no effect on the plaintiff's period of time to file a notice of appeal.” Hence, the Court of Appeal held that former rule 3 (later renumbered as rule 8.108) did not extend the time for appeal in that case. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc., supra,at p. 1482.) The same principle applies here. At the time plaintiff filed his motion for reconsideration, judgment had long since been entered in the case. Therefore, plaintiff’s motion for reconsideration did not extend the time for an appeal from the judgment.
Plaintiff relies on Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005 (Blue Mountain). The same court that decided Blue Mountain later disapproved of the misleading language in that opinion, which suggested a party could file a postjudgment motion for reconsideration. (Passavanti, supra, 225 Cal.App.3d at pp. 1607-1608, fn. 5.) We agree with Passavanti and the subsequent appellate court decisions holding that a postjudgment motion for reconsideration will not extend the time for appeal from the judgment. (See Ramon v. Aerospace Corp., supra, 50 Cal.App.4th at pp. 1236-1238; Safeco Ins. Co. v. Architectural Facades, Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481-1482.)
III. Order Denying Motion for Reconsideration Was Not Separately Appealable
Finally, we consider whether appeal was available from the trial court’s denial of plaintiff’s motion for reconsideration. We conclude it was not for two reasons. First, as already noted, once judgment was entered, the trial court lost jurisdiction to consider the motion for reconsideration. Plaintiff’s basis for appeal, if any, was the judgment, not the denial of a motion that the trial court had no jurisdiction to even consider. Second, even if that were not so, plaintiff still could not separately appeal from the order denying his motion for reconsideration, as we now explain.
The question is whether such an order is “appealable.” The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) Appealability depends on the nature of the motion and order below. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1413; Code Civ. Proc., § 904.1 et seq.) There is a split of authority in the appellate courts whether orders denying motions for reconsideration are appealable. (Huh v. Wang, supra, at p. 1413.)
The prevailing view is that an order denying a motion for reconsideration is not an appealable order under any circumstances. (See, e.g., Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633; Morton v. Wagner (2007) 156 Cal.App.4th 963, 968-969; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Crotty v. Trader (1996) 50 Cal.App.4th 765, 769; Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161.) “These courts have concluded that orders denying reconsideration are not appealable because ‘Section 904.1 of the Code of Civil Procedure does not authorize appeals from such orders, and to hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal.’” (Morton v. Wagner, supra, at p. 968, quoting Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242.)
The minority view is that an appeal may be taken from an order denying a motion for reconsideration if (1) the underlying order was appealable, and (2) the motion for reconsideration actually presented new or different facts. (Santee v. Santa Clara Office of Education (1990) 220 Cal.App.3d 702, 710-711.) As explained in a recent case rejecting this view: “The unspoken but implicit reasoning … is that, where a motion for reconsideration presents new facts or law, the new facts or law cannot otherwise be reviewed on the appeal from the underlying order.” (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles, supra, 166 Cal.App.4th at p. 1633.)
Nothing in the circumstances of the present case persuades us that we should disregard the sound reasoning of the prevailing view noted above that an order denying a motion for reconsideration is not appealable under any circumstances. However, we need not decide the question of which of the two positions is correct because even if we followed the minority approach, the order in this case would still be nonappealable because plaintiff did not support the motion for reconsideration with new or different facts. Thus, the order denying the motion for reconsideration was not appealable even under the minority view. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.)
We conclude that the order denying plaintiff’s motion for reconsideration was not an appealable order. For the reasons explained herein, plaintiff has failed to file a timely appeal and, accordingly, his appeal is dismissed.
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to defendant.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.