Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV064134
Mihara, J.
By order filed September 6, 2006, the trial court granted defendant and respondent Paul Huang’s motion to quash service of summons and to dismiss for lack of personal jurisdiction. On November 28, 2006, plaintiff and appellant Phitech Corporation (“Phitech”) filed its notice of appeal. Phitech contends that the court erred in granting Huang’s motion and in denying a related request for a continuance to conduct jurisdictional discovery. We dismiss the appeal as untimely.
I. Background
Phitech, a Taiwanese corporation, has a distributorship agreement with Fortinet Corporation (“Fortinet”) to distribute Fortinet’s security products in Taiwan. Huang, who lives and works in Taiwan, is Fortinet’s vice president of sales in the area. In May 2006, Phitech sued Fortinet and Huang in Santa Clara County Superior Court, alleging that they improperly diverted sales from Phitech to other Taiwanese distributors. Fortinet is headquartered in Sunnyvale, California, and the distributorship agreement between the parties states that any arbitration shall take place in Santa Clara County, California and that any actions arising from or related to the agreement shall be governed by California law.
Huang specially appeared in the litigation to move to quash service of summons and to dismiss for lack of personal jurisdiction. Phitech opposed the motion and brought an ex parte application for a continuance to allow Phitech to conduct limited discovery into Huang’s California contacts. Huang opposed the continuance, and the trial court denied the request.
On September 1, 2006, the court signed an order granting Huang’s motion to quash and to dismiss for lack of personal jurisdiction. The order was filed on September 6, 2006, and Huang served notice of entry of the order on Phitech on September 7, 2006 via facsimile.
On October 12, 2006, Phitech moved for clarification of the court’s September order. Phitech requested that the trial court, to aid the appellate court in review, clarify whether it found “(1) that Phitech did not show that it was likely to find evidence in support of the contacts it alleged, or (2) that Phitech did not show that the contacts it alleged, even if proven, would be sufficient to establish either general or specific jurisdiction.” Fortinet opposed the motion for clarification, claiming that it represented an untimely motion for reconsideration and that any request for clarification was unsupported. Fortinet argued: “Phitech cannot escape the jurisdictional ten-day deadline by referring to its motion as a request ‘for clarification.’ The ten-day limit applies whenever a party asks a court to revisit a prior ruling, regardless of nomenclature.”
Phitech also requested clarification of the court’s additional ruling in the September order that granted Fortinet’s petition to compel arbitration and to stay the action.
On November 21, 2006, the trial court denied the motion for clarification. Phitech filed its notice of appeal in the trial court on November 28, 2006, approximately 82 days after being served with entry of the order granting Huang’s motion.
II. Discussion
“Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before . . . 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[.]” (Cal. Rule of Court, rule 8.104(a)(2).) “As used in (a) and (e), ‘judgment’ includes an appealable order if the appeal is from an appealable order.” (Rule 8.104(f); see also Code of Civ. Proc., § 904.1, subd. (a)(3) [designating order granting motion to quash service of summons as appealable].) Phitech concedes that it filed its notice of appeal more than 60 days after it received notice of the order. It contends, however, that its motion for clarification “stopped the running of the sixty-day clock.” Phitech argues, in particular, that because its motion for clarification was treated as a motion for reconsideration, the time to appeal was tolled while the motion was pending. We disagree.
All further rule references are to the California Rules of Court unless otherwise noted.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
Rule 8.108(e) 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 . . . .” (Italics added.) Phitech’s motion for clarification was not presented as a motion for reconsideration and did not meet the statutory requirements of section 1008. The motion was filed over one month after notice of the court’s order, well outside the 10-day deadline for motions for reconsideration. (See § 1008, subd. (a).) Moreover, it was not “based upon new or different facts, circumstances, or law,” as required by the statute. (Ibid.) Phitech in fact acknowledged in its moving papers that it was not challenging “the Court’s holding that it does not have personal jurisdiction over defendant Paul Huang, nor mov[ing] for reconsideration, because it cannot meet the requirements of Code of Civ. Proc. § 1008 requiring new facts or new law.”
Former rule 8.108(d) was renumbered rule 8.108(e), effective January 1, 2008, with no change to the substance.
Phitech, in its reply brief and again at oral argument on the motion, reiterated that its motion sought only clarification, not reconsideration of the order.
Any commentary by the trial court that the motion resembled a request for reconsideration does not make it a valid motion for purposes of the rule 8.108(e) exception. Phitech’s reliance on authority referring to a trial court’s ability to construe a motion with one label as a different type of motion is misplaced. (See, e.g., Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 [discussing a trial court’s ability to construe a motion for reconsideration as a motion for a new trial].) In denying Phitech’s motion, the trial court described it as one “for clarification” and did not deem it a motion for reconsideration.
Prior to its summary denial of the motion, the trial court stated: “Really this is an effort to get a reconsideration of a prior order. The order I wrote I thought was very clear. There wasn’t the evidence necessary that was presented by the plaintiff to even initiate discovery to determine whether or not jurisdiction should arise against the gentleman’s name.”
Phitech further contends that Fortinet and Huang are estopped from arguing that the motion for clarification was not a motion for reconsideration. It points to Fortinet’s argument before the trial court that the motion for clarification was, in fact, a request for reconsideration of the court’s ruling. This argument likewise is unavailing. Fortinet did not contend that the motion was a proper and valid motion for reconsideration, but argued that the motion for clarification disguised an improper request for reconsideration of the court’s order. That argument is not inherently contradictory to the one presented on appeal, and we find no basis for judicial estoppel.
Finally, Phitech argues that policy considerations require this court to extend the rule 8.108 exception to motions for clarification. However, competing policy concerns, such as the importance of the finality of judgments and final orders, militate against such an extension. As does the fact that motions for reconsideration are defined and limited by statute, and motions for clarification are not. Were we to extend the rule 8.108(e) exception to Phitech’s motion, Phitech would receive the statutory benefit afforded a valid section 1008 motion despite its failure to comply with the statutory requirements of section 1008. Phitech points to no authority supporting such a result.
We conclude that Phitech’s notice of appeal was untimely under rule 8.104, and that Phitech has not shown the applicability of a rule 8.108 exception. We therefore must dismiss the appeal. (Rule 8.104(b).)
III. Disposition
The appeal from the September 6, 2006 order granting the motion to quash service of summons and to dismiss for lack of personal jurisdiction is dismissed.
WE CONCUR: Bamattre-Manoukian, Acting P.J, Duffy, J.