Opinion
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of San Diego County, No. 37-2008-00083288- CU-CR-CTL, Timothy B. Taylor, Judge.
AARON, J.
I.
INTRODUCTION
Appellant Manuchehr Riazati appeals from a minute order of the trial court denying his ex parte application for relief from the court's earlier dismissal of a lawsuit that Riazati filed against the County of San Diego (the County) and an animal services officer.
The court dismissed the action after Riazati failed to file an amended pleading in response to the court's sustaining the defendants' demurrer to the complaint. Approximately one and a half months after the court dismissed the action and entered judgment in favor of the defendants, Riazati filed an ex parte application for relief from the dismissal. The trial court denied Riazati's application as an untimely motion for reconsideration under Code of Civil Procedure section 1008, and/or, alternatively, as a procedurally defective motion for relief from dismissal under section 347, subdivision (b).
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On appeal, Riazati does not present any argument as to why the trial court erred in denying his ex parte application. We may therefore properly treat any appellate issues as forfeited. However, even if we were to consider the merits of the trial court's ruling, it appears clear from the limited record on appeal that the trial court did not err in denying Riazati relief. We therefore affirm the order of the trial court.
II.
BACKGROUND
Riazati filed his complaint on May 5, 2008, seeking damages related to the County's enforcement of animal control ordinances. The County demurred to the complaint on a number of grounds, and on December 19, 2008, the trial court sustained the demurrer with leave to amend. The court granted Riazati 10 days to amend his complaint.
We take this information from the County's brief; the record provided on appeal does not include a copy of Riazati's complaint.
After the leave period expired, the County filed an ex parte application to dismiss the case with prejudice. The trial court held a hearing on the matter on January 13, 2009. Riazati did not attend this hearing. At the hearing, the court entered an order granting the County's request to dismiss the case, and also entered a judgment of dismissal.
On March 4, 2009, Riazati filed an ex parte application for an order "vacat[ing] the dismissal." The court held a hearing on March 11, 2009 on Riazati's application. The court indicated that it was not sure how to treat Riazati's application as a procedural matter. After hearing from the parties, the trial court denied Riazati's application. In a written minute order, the court addressed the viability of the application as either a motion for reconsideration under section 1008, or a motion for relief under section 473, subdivision (b).
Riazati filed a timely notice of appeal on April 13, 2009.
III.
DISCUSSION
Riazati's entire argument on appeal consists of the following three sentences:
"Officers of the Department of Animals clearly violated my right[s], when they entered my house without court permission or a search warrant [a number of] times. The[y] violated my rights, when they destroyed my house, and when they took my pets, which they have destroyed. [¶] They violated my civil rights, as their action is due to their racial bias."
"It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and ' " 'all intendments and presumptions are indulged in favor of its correctness.' " [Citation.]' [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are]... waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).) Because Riazati has failed to present cogent appellate arguments supported by legal authority, we may properly treat any appellate issues as having been forfeited.
Although denominated an issue of "waiver" by the court in Benach, supra, 149 Cal.App.4th at page 852, the failure to raise or support a legal claim is more properly characterized as "forfeiture" of that claim. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 ["'Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' [Citation.]"].)
Even if we were to consider Riazati's appeal on the merits, we would nevertheless conclude that the trial court did not err in denying Riazati's application. The trial court treated Riazati's application as either of two potential procedural devices - i.e., a motion for reconsideration under section 1008, or a request for discretionary relief from dismissal under section 473, subdivision (b). With respect to the court's denial of Riazati's application if considered as a motion for reconsideration, orders denying motions for reconsideration are not appealable orders, and thus no proper appeal could be taken from such an order. Regardless, the trial court correctly rejected the motion as untimely. Motions for reconsideration must be filed within 10 days of service of notice of entry of the relevant order. (§ 1008, subd. (a).) Riazati did not file his application for relief until a month and a half after the dismissal order had been entered.
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. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown."
The trial court also correctly rejected Riazati's application pursuant to section 473, subdivision (b). That provision requires a party seeking relief from dismissal of an action to include a copy of the proposed amended pleading and directs that an application not accompanied by a copy of the proposed pleading "shall not be granted." (§ 473, subd. (b).) Riazati did not include a copy of his proposed amended pleading. The court therefore could not grant him relief from dismissal pursuant to section 473, subdivision (b).
Although we are sympathetic to the problems that Riazati says he has experienced in his life as a result of the underlying events in this case, which he described at oral argument, we cannot ignore the procedural failings that resulted in the dismissal of Riazati's civil case against the County.
IV.
DISPOSITION
The order of the trial court is affirmed.
WE CONCUR: McCONNELL, P. J.BENKE, J.
Section 473, subdivision (b) provides in relevant 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party...."