Opinion
B163486.
7-17-2003
THE PEOPLE, Plaintiff and Respondent, v. GARY LEE HENSLEY, Defendant and Appellant.
Gary Lee Hensley, in pro. per., for Appellant. Robert G. Boehm, City Attorney, Amelia Ann Albano, Deputy City Attorney, for Respondent City of San Buenaventura. No appearance for Respondent People.
Gary Lee Hensley appeals from an order denying his petition to enforce a vacated 1992 order releasing property seized pursuant to a search warrant, and from the ensuing order denying his motion to reconsider that order. Because neither order is appealable, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On December 24, 1991, Gary Lee Hensley filed a claim opposing forfeiture pursuant to Health and Safety Code section 11488.5 , seeking the return of chemicals, books, lab equipment, and a handgun seized pursuant to a search warrant. On March 25, 1992, the trial court signed an order for return of the property pursuant to the parties stipulation. The next day, the prosecution moved for reconsideration of the order. On April 10, the court set aside and vacated its May 25, 1992, order. The court also dismissed Hensleys claim opposing forfeiture because the prosecution had not requested forfeiture of the property. No final judgment was entered in the action.
In the meantime, Hensley filed a separate action in November 1992 against the City of San Buenaventura (the City), seeking the return of the same property at issue in this appeal. The trial court ordered the return of Hensleys property "upon presentation [to the City police department] of a final judgment in [the] action." The judgment in that action was affirmed on appeal. Apparently, Hensley never presented a final judgment to the police department, and the property was subsequently destroyed.
Over 10 years later, Hensley filed a self-styled "Petition and Request to Enforce Prior Order and Judgment" in the instant action, seeking enforcement of the March 25, 1992, order for the return of his property. Hensley served a copy of the petition on the City, which was never a party to the proceedings. He also sought enforcement of a minute order filed in his other action against the City, and requested $ 50,000 in damages. The trial court denied the petition on September 23, 2002. A week later, Hensley filed a motion for reconsideration, which was denied on October 21, 2002. This appeal followed.
DISCUSSION
Hensley purports to appeal from the trial courts orders denying his petition to enforce a prior order and judgment and his motion for reconsideration of that order. We agree with the City that neither order is appealable.
Hensley contends that the 1992 order of dismissal should be appealable because it finally disposed of all issues in the case, and that the instant appeal should thus be construed as an appeal from an order after judgment. We cannot so construe the order, however, unless the record reflects that the order was (1) in writing, (2) signed by the court, and (3) filed. (Code Civ. Proc., § 581d.) The record does not satisfy these requirements, so we must treat Hensleys appeal from the denial of his petition as an appeal from an interlocutory order.
Under the one final judgment rule, interlocutory orders are only subject to review on appeal from the final judgment. (In re Matthew C. (1993) 6 Cal.4th 386, 393, 862 P.2d 765.) Accordingly, the order denying Hensleys petition is not appealable.
In any event, we would reject Hensleys claim that the trial court erred in denying his petition. To the extent the petition sought enforcement of an order filed in another case, the court lacked jurisdiction to enforce such an order. Besides, the order in the other case indicated that Hensley was entitled to the return of his property, and the judgment subsequently entered in that case required him to present a copy of the final judgment to the police department in order to obtain the property. Hensley appealed from the final judgment in that case, but did not challenge the requirement that he present a copy of the final judgment in order to obtain the return of his property. Because he declined his opportunity to appeal from that aspect of the judgment in the other case, the issue is now res judicata. (In re Matthew C., supra, 6 Cal.4th at p. 393.)
To the extent Hensleys petition sought enforcement of the courts order for the return of his property, it was finally decided in the other action that Hensley could obtain the property simply by presenting the police department with a copy of the final judgment. Hensley cannot be heard to complain more than 10 years after the fact that he has been aggrieved by his failure to follow the courts straightforward instructions.
With regard to the order denying Hensleys motion for reconsideration, that order is not appealable because the motion did not seek reconsideration of an appealable order. (Kasper v. Cedars-Sinai Medical Center (1998) 62 Cal.App.4th 780, 782.)
Moreover, an order denying a motion for reconsideration is not separately appealable. (Lim v. Silverton (1997) 61 Cal.App.4th Supp. 1, 4; Rojes v. Riverside General Hospital
(1988) 203 Cal. App. 3d 1151, 1160, disapproved on another point in Passavanti v. Williams (1990) 225 Cal. App. 3d 1602, 1605-1608, 275 Cal. Rptr. 887.)
The appeal is dismissed. Hensley shall bear costs on appeal.
We concur: GILBERT, P.J., and COFFEE, J. --------------- Notes: We take judicial notice of our nonpublished opinion in Hensley v. City of San Buenaventura (Dec. 13, 1994, B080773).