Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Richard Neidorf, Judge. Los Angeles County Super. Ct. No. SC088376
Michael Goland, in pro. per., for Petitioner.
No appearance for Respondent.
Law Office of Bret D. Lewis and Bret D. Lewis for Real Party in Interest.
DOI TODD, J.
Petitioner Michael Goland appeals from the trial court’s order denying his motion for reconsideration of an order denying his motion to set aside entry of default and a default judgment. Electing to treat petitioner’s appeal from a nonappealable order as a petition for extraordinary writ, we deny the petition. Petitioner offered no new or different facts, circumstances or law in support of his motion for reconsideration.
FACTUAL AND PROCEDURAL BACKGROUND
On December 6, 2005, real party in interest Dog at Home, Inc. (DAH) filed a complaint against petitioner for declaratory and injunctive relief. The complaint alleged that petitioner fraudulently recorded a deed of trust encumbering real property owned by DAH. On December 12, 2005, DAH filed a proof of service of the complaint, indicating that Lima Norris personally served petitioner with the summons and complaint on December 7, 2005 at 12:30 p.m. at 9221 Whitworth Drive in Beverly Hills.
On January 13, 2006, the clerk entered default against petitioner at DAH’s request. As part of the request, DAH’s counsel declared that he mailed a copy of the request for default to petitioner on January 9, 2006 at the address where he was served. Also on January 13, 2006, the trial court granted DAH’s ex parte application to reclassify the case to an unlimited civil case. On February 10, 2006, the trial court entered a default judgment against petitioner, determining that the deed of trust recorded by petitioner was void at its inception and enjoining petitioner from taking any action adverse to DAH. On April 3, 2006, DAH filed a proof of service of the default judgment, providing that Norris had personally served petitioner on March 29, 2006 at the Beverly Hills Courthouse.
Approximately six months later, on September 29, 2006, petitioner filed a motion to set aside the entry of default and default judgment, to which he attached a proposed answer. He made the motion on the ground that he had never been served with either the summons and complaint or the entry of default. He declared he had been evicted from the Whitworth Drive address in April 2005 and DAH’s counsel was aware of the eviction. DAH opposed the motion. It attached several declarations to the opposition, including that of Norris, who averred she had been a process server for five years, received a probable address for and description of petitioner from his ex-wife Susan Marlowe, and served an individual at that location matching Marlowe’s description. The precise description given by Marlowe was “that [petitioner] was approximately 6 feet tall, about 190 pounds, had hair that was somewhat curly, and had one arm that was smaller than normal, which looked to be the product of polio.” In reply, petitioner submitted additional declarations. Michael Sofris and Robert Nathan declared they had no recollection of petitioner being at the Whitworth Drive address on December 7, 2005. Sofris further declared he spoke with Norris the day she served petitioner with the default judgment, and she asked several individuals if they were petitioner before she correctly identified and served petitioner.
Following a January 11, 2007 hearing, the trial court denied the motion to set aside the default. At the hearing, the trial court indicated that the bases for its ruling were that petitioner failed to meet his burden to show he did not receive notice of the action and the motion was not brought within a reasonable time.
On January 31, 2007, petitioner brought a motion pursuant to Code of Civil Procedure section 1008 seeking reconsideration of the denial of his motion to set aside the default. He asserted that new facts arose in view of the trial court’s commenting on the untimeliness of his motion and declared that his counsel advised him strict time limits did not apply because the default judgment was the product of extrinsic fraud. He further asserted that he could not have been served by Norris on the date and at the time indicated on the proof of service and submitted the declaration of Robert Ives, who averred he had lunch with petitioner on December 7, 2005 from 12 noon to 1:30 p.m. DAH opposed the motion on the ground it failed to allege new or different facts, circumstances or law.
The trial court denied the motion at an April 24, 2007 hearing, finding that the motion failed to raise any facts that could not have been presented at the original hearing. A notice of ruling was filed on April 26, 2007 and petitioner filed a notice of appeal from the denial of the motion for reconsideration on June 22, 2007.
DISCUSSION
Petitioner’s arguments on appeal are directed primarily to the trial court’s denial of the motion to set aside the default. But petitioner did not appeal from that order. Instead, he appealed from the nonappealable denial of his motion for reconsideration. Nonetheless, we exercise our discretion to treat his appeal as a petition for extraordinary writ and deny the petition.
I. Appealability.
As a preliminary matter, we consider whether we have jurisdiction to consider petitioner’s appeal. The trial court’s order denying petitioner’s motion to set aside the default was an appealable order. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137.) DAH served a notice of ruling of that order on January 15, 2007. California Rules of Court, rule 8.104(a) sets forth the normal time to appeal, providing: “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (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; [¶] (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 [¶] (3) 180 days after entry of judgment.” As used in this rule a “judgment” includes an appealable order. (Rule 8.104(f).) Thus, absent rule 8.108 providing otherwise, petitioner should have filed his notice of appeal no later than March 16, 2007.
Unless otherwise indicated, all further rule citations are to the California Rules of Court.
Rule 8.108 extends the time to appeal otherwise provided in rule 8.104 for, among other matters, a motion for reconsideration of an appealable order. In pertinent part, the rule provides: “If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: [¶] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first motion to reconsider is filed; or [¶] (3) 180 days after entry of the appealable order.” (Rule 8.108(e).) Under rule 8.108, the time to file a notice of appeal from the order denying the motion to set aside the default was extended to May 1, 2007, 90 days after the January 31, 2007 filing date of the motion to set aside. Petitioner did not file his notice of appeal until June 22, 2007. Any appeal from the motion to set aside the default was therefore untimely. (Rule 8.104(b).)
In any event, petitioner did not purport to appeal from the motion to set aside the default. Rather, his notice of appeal specified that he was appealing from the order denying his motion for reconsideration. There is a split of authority as to whether an order denying a motion for reconsideration is appealable. (Morton v. Wagner (2007) 156 Cal.App.4th 963, 968.) The prevailing view is that such an order is not appealable because it is not among the appealable orders listed in Code of Civil Procedure section 904.1 and any consideration of the appeal would potentially allow two appeals from every decision. (Morton v. Wagner, supra, at p. 968; accord, Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633 [“the prevailing view among our appellate courts has been that an order denying a motion for reconsideration is not an appealable order under any circumstances”]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458 [“we are persuaded by the reasoning of the majority of recent cases that have concluded orders denying motions for reconsideration are not appealable”].) We adhere to the prevailing view and find that petitioner appealed from a nonappealable order.
Nevertheless, we have discretion to treat an appeal from a nonappealable order as a petition for writ of mandate. Generally that discretion should be exercised only in extraordinary circumstances. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1349; Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698.) We would normally be inclined to find that no extraordinary circumstances exist here. But because DAH did not seek dismissal of the appeal, both parties have fully briefed the matter on the merits and we seek to promote judicial economy, we exercise our discretion to treat the appeal as a writ petition.
II. The Trial Court Properly Exercised its Discretion in Denying the Motion for Reconsideration.
Because petitioner’s appeal from the order denying his motion to set aside the default was untimely under rules 8.104 and 8.108, our review is confined to the denial of his motion for reconsideration.
We review a trial court’s order denying a reconsideration motion for an abuse of discretion. (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 16; Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1027.) According to Code of Civil Procedure section 1008, subdivision (a), a motion for reconsideration may only be made “based on new or different facts, circumstances, or law. [Citation.] ‘To merit reconsideration, a party must give a satisfactory reason why it was unable to present its “new” evidence at the original hearing.’ [Citation.]” (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265; accord, New York Times v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
The trial court here properly exercised its discretion to conclude that petitioner failed to meet his burden to present any evidence that could not have been offered earlier. In his motion for reconsideration, petitioner submitted declarations averring that he delayed filing his motion to set aside the default because his counsel advised him that strict time limits would not apply, he was employed out of state for a significant portion of 2006, and he was often not well and experienced exhaustion that year. The trial court properly determined that all of this evidence could have been presented in support of the motion to set aside the default, admonishing petitioner: “This is not a rehearing of the original motion. You have to bring in new evidence that you couldn’t have had at the time, or new law or something new. You just can’t have another shot at the same motion and try to reargue it. It doesn’t work that way.” It also properly rejected petitioner’s contention that the trial court’s raising the untimeliness of his motion to set aside the default was a new issue, explaining that petitioner needed to raise all applicable theories in connection with the original motion. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1199 [explaining that a diligence requirement is implicit in Code Civ. Proc., § 1008, as “[w]ithout a diligence requirement the number of times a court could be required to reconsider its prior orders would be limited only by the ability of counsel to belatedly conjure a legal theory different from those previously rejected, which is not much of a limitation”].)
The trial court likewise properly exercised its discretion to conclude that the Ives declaration was neither new nor credible. Indeed, evidence about where and with whom petitioner had lunch on the day the complaint was served constituted knowledge “obviously always within [petitioner’s] possession, and no satisfactory explanation appeared for not bringing it out earlier.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Moreover, the trial court expressly found Norris more credible than petitioner or Ives. “[I]ssues of fact and credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) We defer to factual findings and credibility determinations “whether the trial court’s ruling is based on oral testimony or declarations.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) We see no basis to disturb the trial court’s rejection of petitioner’s belated evidence submitted in support of his motion for reconsideration. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140, fn. 5 [finding no basis to second guess trial court’s denial of motion for reconsideration when the ruling turned on questions of credibility and timeliness].)
DISPOSITION
The petition for extraordinary writ is denied. DAH is awarded its costs on appeal.
We concur: BOREN, P. J., ASHMANN-GERST, J.