Opinion
G052026
01-31-2017
EDWARD GILLIAM, Plaintiff and Appellant, v. MINION MILLER et al., Defendants and Respondents; STEVEN J. DONELL, as Receiver, etc. Movant and Respondent.
Edward Gilliam, in pro. per., for Plaintiff and Appellant. Minon Miller, in pro. per., for Defendant and Respondent. Ervin Cohen & Jessup, Byron Z. Moldo and Alexandra C. Gilinsky, for Movant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00565634) OPINION Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Dismissed. Edward Gilliam, in pro. per., for Plaintiff and Appellant. Minon Miller, in pro. per., for Defendant and Respondent. Ervin Cohen & Jessup, Byron Z. Moldo and Alexandra C. Gilinsky, for Movant and Respondent.
INTRODUCTION
This appeal by Edward Gilliam, who is representing himself, is a companion to another we decide today, the prior appeal. Nearly all of the issues he raised in this appeal are dealt with in the prior appeal, and we do not resurrect them here.
Gilliam v. Donell (Jan. 31, 2017, G051757) [nonpub. opn.].
The only documents available in the record for our review in this appeal are two minute orders, both issued after Gilliam had filed his notice of appeal in the prior appeal. One was a minute order denying a motion for reconsideration, an order Gilliam now claims the court was without jurisdiction to issue. The other is not an order at all; it merely summarized the status of the case as of April 2015.
The order denying the motion for reconsideration is not an appealable order, and the other "order" represented no decision by the trial court. There is nothing for us to review, and so we dismiss this appeal.
FACTS
Most of the issues Gilliam raised and discussed in this appeal were already raised in the prior appeal. We have dealt with them in the opinion for that case. Briefly, Gilliam sued several people and entities for malicious prosecution and fraudulent transfers. Most of the defendants defaulted, and Gilliam proceeded to a default prove-up. In December 2012, he got a default judgment of $53,000 against two of the defendants only: Minon Miller (Miller) and her company, Nonim, LLC. He failed to make his case for a judgment against the other defaulting defendants.
After a siege of several months, Gilliam finally got the trial court to appoint a receiver, Stephen Donell, to go after Miller's and Nonim's assets. There weren't any, at least not any the receiver could reach. Donell finally gave up, told the court the receivership estate was insolvent, and moved to be discharged. The court's minute order of February 5, 2015, granted Donell's request and surcharged Gilliam for approximately $64,000 in fees for Donell and the attorneys who had assisted him. The formal written order was entered on March 19. The surcharge order is one of the issues in the prior appeal. Gilliam filed his notice of appeal from the March 19 surcharge order on March 24, 2015.
In the meantime, Gilliam wanted the trial court to expand the default judgment to include defendants who had defaulted but who had not been named in the default judgment, that is, defendants other than Miller and Nonim. His request prompted the court to look at the file again and to recall that Gilliam had made his case for default judgment against only two defendants - Miller and Nonim. The December 2012 judgment itself, however, did not address the remaining defaulting defendants. Since Gilliam had not proved his case against them, judgment should have been entered in their favor. Accordingly, on December 5, 2013, the trial court entered an order nunc pro tunc modifying the December 2012 judgment to make it clear that the defendants other than Miller and Nonim were no longer in the case. The nunc pro tunc order is another subject dealt with in the prior appeal, noticed on March 24, 2015.
Gilliam also asked the trial court to impose "terminating sanctions" on the judgment debtors, Miller and Nonim, after they refused to respond to the receiver's requests for records and documents. This issue too is encompassed in the prior appeal.
The only new items in this appeal are two minute orders, both issued on April 28, 2015, after Gilliam filed his first notice of appeal. The first order denied Gilliam's motion for reconsideration of the court's order of February 5, 2015, the minute order surcharging Gilliam for the receiver's fees. Gilliam filed his motion for reconsideration of that order on February 23, 2015, but before it could be heard, he filed the notice of appeal from the surcharge order. The second order summarized the status of the case as of April 28, 2015.
Gilliam also filed two ex parte applications for reconsideration of the February 2 order on February 27, but the court denied these applications.
Gilliam checked three boxes on the notice of appeal form for the "judgment or order in this case" from which he appealed. The first was "judgment after court trial." There was no court trial between March 24, 2015, when he filed his first notice of appeal, and June 2, 2015, when he filed the second notice. There was no trial of any description within 180 days of the second notice. The second box checked was "judgment of dismissal under Code of Civil Procedure section 581d, 583.250, 583.360, or 583.430." These statutes deal with dismissals based on various grounds such as failure to prosecute, the granting of a motion for nonsuit, requests for dismissal, and failure to appear at trial. Nothing of the sort occurred in this case. Finally, Gilliam checked the box "Other (describe and specify code section that authorize[s] this appeal):" Gilliam inserted "12/5/13 ruling finally decided on 4/28/15 after first appeal on 3/24/15"[.] He did not specify a code section.
The December 5, 2013, order entered the nunc pro tunc judgment in favor of the defendants against whom Gilliam had failed to secure a default judgment in December 2012. The court's ruling on April 28, 2015, did not address this order; it addressed the receiver's surcharge order, which was the subject of Gilliam's motion for reconsideration. Indeed, because of the lapse of time, Gilliam's February 23, 2015, motion for reconsideration could not have addressed the order of December 5, 2013.
This motion also requested "terminating sanctions," which had not been the subject of the February 2 order and could therefore not be reconsidered.
DISCUSSION
A party representing him or herself on appeal "is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) We cannot give a self-represented party a better deal than he would have gotten if represented.
Here are the items we cannot review as part of this appeal:
1. Any objection Gilliam has to the default judgment entered in December 2012, including the omission of any defendant he believed should have been made part of the judgment and the standard of proof employed during the prove-up. Gilliam's remedy for any shortcomings he perceived in the default judgment as rendered in December 2012 was to appeal it. The period for such an appeal has expired.
2. Issues identified for review decided in the prior appeal, noticed on March 24, 2015. These issues include the December 5, 2013, nunc pro tunc order; the surcharge order for the receiver's fees; and the refusal to impose terminating sanctions on defendants. Gilliam has already appealed once, and he does not get to appeal these issues again.
3. Any issue regarding Miller's bankruptcy that was under the jurisdiction of the bankruptcy court, including whether she filed her 2013 bankruptcy in bad faith.
4. Whether Gilliam was entitled to relief pursuant to motions he did not make, such as a motion for sanctions under Code of Civil Procedure section 128.5 or a motion for attorney fees as an item of costs pursuant to Code of Civil Procedure section 685.080.
The only new features of this appeal are two minute orders, both issued on April 28, 2015, after Gilliam filed his notice for the prior appeal. The first order denied Gilliam's motion for reconsideration of the February 5, 2015, minute order surcharging him for the receiver's fees on the grounds that he had not shown new or different facts or law (see Code Civ. Proc., § 1008) or a valid reason for not previously presenting the arguments asserted. The second order, issued on the same day, summarized the status of the case. The takeaway from that "order" was that Miller was in bankruptcy, so enforcement of the default judgment was stayed as to her. The only party against whom the judgment was enforceable in state court as of April 2015 was Nonim.
Gilliam's June 2015 notice of appeal, did not, in fact, correctly identify any appealable order.
If we understand Gilliam correctly, he maintains now that the trial court did not have jurisdiction to hear and deny his motion for reconsideration, because the prior appeal was pending. It is unusual, to say the least, to ask the trial court for relief and then, when relief is denied, argue on appeal that the court did not have the power to give it. We need not ponder the SchrÖdinger's cat aspects of this argument, however.
An order denying a motion for reconsideration is not an appealable order unless it is part of the appeal from the underlying order. "Under [Code of Civil Procedure] section 1008, subdivision (g), the denial of a reconsideration motion is not separately appealable. However, if the underlying order that was the subject of reconsideration is appealable, the denial of reconsideration is reviewable as part of an appeal from the underlying order." (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 51; see Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1050.)
"An appellate court lacks jurisdiction to consider an appeal from a nonappealable order. [Citations.] The court must of its own motion dismiss such an appeal. [Citations.]" (Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 646-647.)
In this case, the order underlying Gilliam's motion for reconsideration was the order surcharging him for the receiver's fees. He appealed from that order in the prior appeal, not in this one. Had he waited to file his notice of appeal until the court ruled on the motion for reconsideration and appealed from both orders, we could have reviewed the reconsideration order along with the surcharge order. As it is, however, we cannot review either one in this appeal.
Were we to agree with Gilliam's argument that the order denying his motion for reconsideration was void for lack of jurisdiction because of the pending appeal, his position would not be improved. If the order was void, it had no effect. This does not mean, as Gilliam appears to believe, that the motion for reconsideration would be granted. If the court had no power to deny the motion because of the pending appeal, it also had no power to grant it. Gilliam would be in the same position as if he had never made the motion.
The second order is not an order at all. It did not direct anyone to do anything or resolve a disputed issue. (See Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605 [order is court's written ruling on motion]; Code Civ. Proc., § 1003.) There was no motion corresponding to this order. The second order simply summarized the status of the case as of April 28, 2015. The only remaining defendants were Miller and Nonim. Miller was in bankruptcy at that time, so the action was stayed as to her. The court awarded $53,555 against Miller and Nonim after the 2012 default prove-up. If Miller was discharged in bankruptcy, the default judgment would be enforceable only against Nonim. There is nothing for us to review in this "order."
The motion was designated "Chambers Work" and explained that the court reviewed the file before summarizing Miller's and Nonim's current status. The court's reference to the December 5, 2013, nunc pro tunc order as one of the documents it reviewed did not reanimate the issue. --------
DISPOSITION
The appeal is dismissed. Gilliam's request for judicial notice, filed on September 17, 2015, is denied. Miller's request for judicial notice, filed on December 14, 2015, is denied. Miller's motion to augment the record on appeal, filed on December 30, 2015, is denied. Gilliam's motion to strike Miller's motion to augment the record, filed on January 14, 2016, is denied. Respondent Stephen Donell is to recover his costs on appeal.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.