Opinion
B207093
10-30-2008
MICHAEL REGAN, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, LOS ANGELES COUNTY BOARD OF EDUCATION et al., Defendants and Respondents.
Michael Regan, in pro per, for Plaintiff and Appellant. Gregory M. Bergman, Michele M. Goldsmith, and Mitchell C. Frederick for Defendants and Respondents.
Not to be Published
INTRODUCTION
After the trial court entered judgment against him in his wrongful termination case, plaintiff and appellant Michael Regan (plaintiff), representing himself, filed a motion to vacate the judgment that the court denied as untimely. Plaintiff then moved the trial court under Code of Civil Procedure section 473 for "equitable relief" (motion for equitable relief), claiming the trial courts finding of untimeliness was the result of an "extrinsic mistake of the court." The trial court denied the motion for equitable relief and plaintiff appealed from that postjudgment order.
All further statutory references are to the Code of Civil Procedure.
We hold that plaintiffs motion for equitable relief was, in substance, a motion to reconsider the trial courts postjudgment order denying plaintiffs motion to vacate. Because an order denying a motion for reconsideration is a nonappealable order, we lack jurisdiction to review that ruling. The appeal is therefore dismissed.
PROCEDURAL BACKGROUND
The trial court entered judgment against plaintiff on November 30, 2007. That same day, the court clerk mailed a notice of entry of judgment, but it had an incorrect case number—BC351870—instead of the correct case number—BC353333. After plaintiff telephoned the clerk and advised her of the error, the clerk mailed a second notice of entry of judgment with the correct case number on December 12, 2007.
On December 27, 2007, plaintiff filed a motion to vacate the judgment pursuant to section 663. On February 6, 2008, the trial court denied plaintiffs motion to vacate. According to the tentative ruling attached to the trial courts minute order, "The motion [was] not timely filed. The court signed and entered the judgment on November 30, 2007, and the clerk mail-served the entered judgment the same day. Plaintiff was required to move to vacate the judgment within 15 days. CCP 663a." (Italics added.)
Section 663 provides: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict."
Section 663a provides in pertinent part: "The party intending to make [a motion to vacate] . . . must file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either [¶] 1. Before the entry of judgment; or [¶] 2. Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest."
On February 26, 2006, plaintiff filed the motion for equitable relief, which he entitled "Motion for Equitable Relief from this Honorable Courts February 6, 2008 Order on the Grounds of Extrinsic Mistake of the Court. (Code Civ. Proc., § 473, 3rd paragraph.)" The motion was made on the grounds that the trial courts February 6, 2008, finding that the clerk mailed the notice of entry of judgment on November 30, 2007, was an "extrinsic mistake." According to plaintiff, the November 30, 2007, notice of entry of judgment was defective due to the incorrect case number and, therefore, his motion to vacate was timely because it was filed within 15 days of the service of the December 12, 2007, amended notice of entry of judgment.
On April 8, 2008, the trial court denied plaintiffs motion for equitable relief. On April 16, 2008, plaintiff filed a notice of appeal in which he identified the order from which he was appealing as the trial courts postjudgment order denying his motion for "Equitable Relief on Extrinsic Mistake of the Court."
DISCUSSION
A. Nature of Plaintiffs Motion
Because plaintiffs motion for equitable relief appeared in substance to be a request to the trial court to reconsider its order denying the motion to vacate the judgment, we requested letter briefs from the parties addressing the issue. The parties responded, and therefore had the opportunity to argue with respect to that issue. Because we believe there is no viable motion for equitable relief in this case, and based on the relief sought, we construe plaintiffs motion for equitable relief to be in the nature of a motion for reconsideration.
Although appellate courts are generally disinclined to ignore the label a party has attached to a motion and instead construe the motion to be a different motion, under certain circumstances, appellate courts have done so. (See 20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1261; Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1610.) Appellate courts that have construed motions as, in substance, other than they are labeled have done so where "extremely good cause" exists. (Ibid.)
The appealable or nonappealable nature of an order determines our jurisdiction to review it. (Lavine v. Jessup (1957) 48 Cal.2d 611, 613 ["no appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law . . ."].) Therefore, because the existence of jurisdiction is a fundamental prerequisite to the exercise of our power to review a trial courts order, there is "extremely good cause" to construe the nature of the motion for equitable relief in the first instance to ascertain whether the order denying that motion is appealable. (See Leone v. Medical Board (2000) 22 Cal.4th 660, 666-668 [Appellate jurisdiction refers to the reviewing courts power to review for and correct error in trial court judgments and orders].) To determine the nature of a motion, we focus on the relief sought. "`The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words. [Citation.]" (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.)
Although the caption of the motion for equitable relief refers to section 473, the supporting papers reveal that plaintiff was seeking to convince the trial court to change its finding that the motion to vacate was untimely and make a new finding of timeliness. Thus, regardless of the motions caption, the nature of the relief sought was clearly a reconsideration of a prior finding of the trial court. Accordingly, we construe the motion for equitable relief as a formal request to the trial court for reconsideration of its prior order denying the motion to vacate.
B. Jurisdiction
If plaintiffs motion for equitable relief is treated as a motion for reconsideration, an issue arises as to whether the trial courts order denying that motion is appealable. "In Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473 [121 Cal. Rptr. 477, 535 P.2d 341], the Supreme Court suggested without discussion that an order denying a motion for reconsideration is appealable when the motion raised new facts or law. (Id. at p. 477, fn. 2, citing Farrar v. McCormick (1972) 25 Cal.App.3d 701, 705-706 .) The unspoken but implicit reasoning of Freeman is that, where a motion for reconsideration presents new facts or law, the new facts or law cannot otherwise be reviewed on the appeal from the underlying order. In the years after Freeman, a handful of appellate courts have followed its lead. (See, e.g., Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710-711 .) [¶] More recently, however, 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. (See, e.g., Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161 ; Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 [an order denying a motion for reconsideration is never appealable regardless of whether new facts were raised]; In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81 ; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242 ; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1457-1459 [acknowledging a "split of authority" but observing that the prevailing view among appellate courts is that a denial of a motion for reconsideration is never appealable under any circumstances].)" (Association for Los Angeles Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633.)
We agree with the prevailing view that an order denying a motion for reconsideration is not an appealable order. Under that line of authority, we would have no jurisdiction to review the order from which plaintiff appeals. Moreover, even if we followed the broader view that an order denying a motion for reconsideration is appealable if new facts or law have been presented, plaintiff did not present any new facts or law with his motion. Thus, that procedural defect in the motion would preclude review of the order denying it in any event.
C. Section 473
Assuming, arguendo, that we must treat the motion for equitable relief under the label plaintiff assigned to it—a motion ostensibly brought under section 473—we would nevertheless affirm the order denying that motion. Section 473, subdivision (b) provides in pertinent part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (Italics added.) As that express language provides, a motion under section 473 arises when a party establishes mistake, inadvertence, surprise, or excusable neglect. Plaintiffs motion, however, is not based on his mistake, inadvertence, surprise, or neglect. It is premised solely upon a purported mistake of the trial court, i.e., the trial courts finding in connection with plaintiffs motion to vacate, that notice of entry of judgment was served by mail on plaintiff on November 30, 2007. But, as noted, section 473 is not the appropriate procedural vehicle to remedy such a purported judicial error. Accordingly, even if plaintiffs motion is treated literally as labeled, it is defective and was properly denied by the trial court.
D. Extrinsic Fraud
Plaintiff contends that his motion for equitable relief was not a request to reconsider the trial courts denial of his motion to vacate. Instead, according to plaintiff, it was a motion requesting the trial court to invoke its equitable power to set aside the order denying his motion to vacate based on extrinsic fraud. But as defendants correctly observe, the motion that plaintiff contends he made lies only from a final judgment and may be based only on facts that occurred prior to judgment. "After relief is no longer available under Code of Civil Procedure section 473 for mistake, inadvertance [sic ], surprise or excusable neglect, an otherwise valid and final judgment may only be set aside if it has been obtained through extrinsic, not intrinsic, fraud. . . . [¶] Fraud is extrinsic where the defrauded party was deprived of the opportunity to present his or her claim or defense to the court, that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding." (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068.)
Here, defendant seeks to set aside a postjudgment order, not the underlying judgment itself. Therefore, plaintiffs motion cannot reasonably be construed as anything other than a motion to reconsider a postjudgment order. As discussed, the trial courts order denying that motion is not appealable.
CONCLUSION
We recognize that those who appear in pro per, whether highly educated or not, are at a severe disadvantage in attempting to navigate through the procedures applicable to litigants in judicial proceedings. A pro per party "`is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. [Citations.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) We are therefore required to follow the applicable law and procedures and dismiss the appeal because we lack jurisdiction to hear it.
DISPOSITION
Plaintiffs appeal is dismissed.
We concur:
TURNER, P. J.
KRIEGLER, J.