Opinion
B231966
12-22-2011
OGOCHUKWU O. IKE, Plaintiff and Respondent, v. EDMUND C. IKE, Defendant and Appellant.
Edmund C. Ike, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PD040683)
APPEAL from a judgment of the Superior Court of Los Angeles County, Rafael A. Ongkeko, Judge. Dismissed.
Edmund C. Ike, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Edmund C. Ike, in propria persona, appeals from an order of the trial court denying his motion for reconsideration. The court previously awarded child support to appellant's former wife, respondent Ogochukwu Ike, and ordered appellant to attend family counseling with the couple's children. We follow the prevailing view that an order denying a motion for reconsideration is not an appealable order and conclude that the appeal must be dismissed. (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1050.)
FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2007, a judgment of dissolution of the marriage between appellant and respondent was entered by Temporary Judge Friedenthal. Custody of the two minor children was awarded solely to respondent.
On May 24, 2007, Judge Friedenthal presided over a trial on reserved issues and ordered each party to pay one half of the reporter's fees from prior trial dates. The court filed a second partial judgment, ordering appellant to pay respondent $1,253 per month in child support and finding that he was capable of earning $3,500 per month.
On November 27, 2007, Judge Friedenthal ordered that Nigerian property held in respondent's name be awarded to her as her sole property. The court also gave full faith and credit to a Nigerian court judgment and found that a third child, Chelsea Ike, was the legally adoptive daughter of appellant and respondent.
On June 15, 2010, appellant filed an Order to Show Cause, requesting modifications in child custody, child visitation, and child support orders. Appellant asserted that respondent, respondent's attorney, Judge Friedenthal, and later Judge Ongkeko conspired to steal his interest in the community assets of the marriage, resulting in a loss of $500,000 to him. Appellant further asserted that he had been prevented from seeing his children for three years and that he had earned no income since July 2008 because of disability or unemployment. Appellant filed an Income and Expense Declaration, in which he stated that he earned $9 an hour as a security guard. He estimated respondent's monthly income to be $10,600, based on her alleged admission in court in 2007.
On January 31, 2011, the court held a hearing and issued an order, reducing appellant's child support responsibility to $531 per month and ordering appellant to attend family counseling with the children. The court continued the matter to April 11, 2011, for review.
On February 22, 2011, appellant filed a motion for reconsideration. Appellant challenged the award of $531 monthly child support, arguing that respondent had understated her income. He challenged the court's order that he participate in family counseling on the basis that it limited his contact with his children and punished him. Appellant also challenged the court's finding that he was Chelsea's father, arguing that respondent adopted her only to increase the amount of child support she received.
On March 23, 2011, the trial court denied appellant's motion for reconsideration as untimely, reasoning that the motion was due on February 14 but was not filed until February 22. (Code Civ. Proc., § 1008, subd. (a).) In addition, the court noted that there was no change of circumstances. Appellant filed a timely notice of appeal.
DISCUSSION
Code of Civil Procedure section 1008, subdivision (a), provides in relevant part: "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order."
"Although there is some inconsistent authority, 'the prevailing view among appellate courts is that a denial of a motion for reconsideration is never appealable under any circumstances.' [Citation.]" (Branner v. Regents of University of California, supra, 175 Cal.App.4th at p. 1050.) Although some courts have allowed the appeal if the motion for reconsideration was based on new or different facts, "'[t]he majority of recent cases have concluded that orders denying motions for reconsideration are not appealable, even where based on new facts or law. [Citations.] 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." [Citations.]'" (Malatka v. Helm (2010) 188 Cal.App.4th 1074, 1082-1083; see In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81.)
Appellant's motion was not based on new facts or circumstances, and he raises none on appeal. We conclude that the order is not appealable and that the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J. We concur: EPSTEIN, P. J. SUZUKAWA, J.