Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC227451 Victoria G. Cheney, Judge.
Catanzarite Law Corporation, Kenneth J. Catanzarite, Jim Travis Tice and Nicole M. Catanzarite for Plaintiffs and Appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker, Martin K. Deniston and Robert Cooper for Defendant and Respondent.
KITCHING, J.
INTRODUCTION
Plaintiffs Howard Sonn et al. (Sonn) filed a notice of appeal from an order denying plaintiffs’ motion for class certification filed on July 24, 2006. Defendant Daewoo Motor America, Inc. (Daewoo) moved to dismiss the appeal. This court initially denied the motion to dismiss, but stated that it would hear issues relating to appealability and the timeliness of the appeal at oral argument. Having heard the parties’ oral argument on these issues, we conclude that the appeal from the July 24, 2006, order was untimely because plaintiffs failed to appeal an earlier November 29, 2004, order denying class certification, which was a final, appealable order. After entry of that appealable order, the trial court granted plaintiffs’ motion for reconsideration, and on reconsideration denied plaintiffs’ motions for reconsideration and for renewal (Code Civ. Proc., § 1008, subds. (a) and (b)) in its July 24, 2006, order. After entry of the November 29, 2004, order, however, the trial court had no power to rule on a motion for reconsideration or for renewal, and under the circumstances of this appeal neither the reconsideration motion nor the renewal motion extended the time within which plaintiffs could file a notice of appeal. We therefore conclude that because plaintiffs failed to file a timely notice of appeal from the appealable November 29, 2004, order, this appeal should be dismissed.
The notice of appeal erroneously identifies this order as a July 25, 2006, order.
FACTUAL AND PROCEDURAL HISTORY
Plaintiffs’ notice of appeal states that the appeal is taken from a July 24, 2006, order denying plaintiffs’ motion for class certification. In fact, this was an order made after the trial court granted reconsideration pursuant to plaintiffs’ motion to reconsider the earlier order denying class certification. The relevant sequence of events is as follows:
November 29, 2004: by minute order and by formal order, the trial court denies plaintiffs’ motion to certify a nationwide class of all Daewoo Campus Advisors (DCA’s) and to certify a nationwide subclass of all DCA’s who purchased Daewoo automobiles through the DCA program. The superior court clerk serves notice of entry of the minute order only; no notice of entry of the formal written order is served.
December 9, 2004: plaintiffs file two motions: (1) a motion for reconsideration of the order denying class certification of the nationwide class of all DCA’s, and of the subclass of all DCA’s who purchased Daewoo automobiles through the DCA program; and (2) a renewed motion to certify a different class of all California DCA’s and a subclass of California DCA’s who bought Daewoo automobiles through the DCA program.
February 17, 2005: by minute order and formal order, trial court grants reconsideration, and allows defendant Daewoo to file a supplemental brief and plaintiffs to then file a supplemental brief. The formal order states that plaintiffs’ “renewal motion” is moot. The superior court clerk serves notice of entry of the minute order.
March 10, 2005, to July 24, 2006: Pursuant to the trial court’s February 17, 2005, order granting reconsideration and ordering supplemental briefs, the matter was submitted upon the filing of plaintiffs’ supplemental brief on March 10, 2005. For reasons that are unknown, the trial court did not make its ruling until July 24, 2006.
July 24, 2006: by formal order, the trial court denies plaintiffs’ reconsideration motion and renewal motion for class certification.
July 25, 2006: the superior court clerk serves notice of entry of the July 24, 2006, order.
August 22, 2006: plaintiffs file their notice of appeal from the July 24, 2006 order.
February 27, 2007: defendant Daewoo files a motion to dismiss the appeal.
March 20, 2007: plaintiffs file opposition to the motion to dismiss.
March 20, 2007: defendant Daewoo files a reply in support of the motion to dismiss.
April 30, 2007: this court denies the motion to dismiss, but states that at oral argument it will entertain argument on all issues, including appealability.
ISSUES
The issues are:
1. Whether entry of the November 29, 2004, order denying class certification was a final, appealable order;
2. If so, whether the order denying plaintiffs’ class certification motion deprived the trial court of the power to hear and rule on plaintiffs’ motion for reconsideration;
3. Whether the notice of appeal was untimely filed; and
4. Whether California Rules of Court, rule 8.108(d) provided an extension of time to file a notice of appeal.
1. The Appeal Should Be Dismissed Because the Notice of Appeal Was Untimely
a. The November 29, 2004, Order Denying Class Certification Was a Final, Appealable Order, and After Entry of That Order the Trial Court Had No Power to Rule on a Reconsideration Motion
i. The Order Denying Class Certification Was a Final, Appealable Order
“A decision by a trial court denying certification to an entire class is an appealable order.” (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) The denial of a class certification motion is a judgment, both in the sense that it is appealable and in the sense that its “ ‘legal effect’ ” is “tantamount to a dismissal of the action as to all members of the class other than plaintiff” and it “has virtually demolished the action as a class action. If the propriety of such disposition could not now be reviewed, it can never be reviewed.” (Daar v. Yellow Cab. Co. (1967) 67 Cal.2d 695, 699.) An order is “ ‘treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment.’ ” (Ibid.) Therefore an order denying class certification “is in legal effect a final judgment from which an appeal lies[.]” (Ibid.) “[A]n ‘order’ which is the final determination in the action is the judgment.” (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.)
ii. The Trial Court Had No Power to Rule on a Reconsideration Motion After Entry of the Appealable Judgment, Plaintiffs Were Required to Appeal From the November 29, 2004, Order Denying Class Certification, and Therefore Their August 22, 2006, Notice of Appeal Was Untimely
Treating an order denying class certification as a judgment makes such an order appealable, and also deprives the trial court of power to hear and rule on a motion for reconsideration pursuant to Code of Civil Procedure section 1008, subdivision (a). “After entry of judgment, the superior court did not have jurisdiction to entertain or decide a motion for reconsideration.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859, fn 29; see also Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236.) Consequently, after entry of judgment, a reconsideration motion can have no effect on the period within which to file a notice of appeal from that judgment. (Ramon, at p. 1238; Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.)
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
Therefore the plaintiffs were required to appeal from the November 29, 2004, order. Because they did not file a notice of appeal from that order within the time to appeal (May 31, 2005, 180 days from entry of Nov. 29, 2004, order), the appeal should be dismissed.
Because the last day to file the notice of appeal 180th day fell on Saturday, May 28, 2005, the 181st day fell on Sunday, May 29, 2005, and the 182nd day fell on Memorial Day, Monday, May 30, 2005, pursuant to Code of Civil Procedure section 12a, subdivision (a), the period within which to file the notice of appeal was extended to the next day which was not a holiday: Tuesday, May 31, 2005.
b. Because the Order Denying Class Certification Was the Appealable Order and Rule 8.108(d) Did Not Extend the Time to File a Notice of Appeal, the Notice of Appeal Was Untimely
i. The Order Denying the Motion for Reconsideration Was Not Appealable; the Order Denying Class Certification Was the Appealable Order
There is authority that an order denying reconsideration of an order denying class certification is not appealable. (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242.) The nonappealability of orders denying reconsideration has been followed as the majority rule. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459, and cases there cited; but see discussions of a split of authority regarding appealability of orders denying reconsideration motions in In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 80-81 and City of Los Angeles v. Glair, supra, 153 Cal.App.4th at p. 823, fn 8.) The policy reasons for determining that orders denying reconsideration motions are not appealable are “to eliminate the possibilities that (1) a nonappealable order or judgment would be made appealable, (2) a party would have two appeals from the same decision, and (3) a party would obtain an unwarranted extension of time to appeal.” (Annette F. v. Sharon S., supra, at p. 1459.)
California Rules of Court, Rule 8.108 also strongly suggests the nonappealability of an order denying a motion to reconsider an appealable order. Rule 8.108(a) through (d) lists various motions that may be filed after trial or after an appealable order, and indicates their effect on extending the time to appeal from the judgment or appealable order. Rule 8.108, however, expressly contemplates the separate appealability of only one such motion, a motion for judgment notwithstanding the verdict. (See Cal. Rules of Court, rule 8.108(c)(2); City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 822-823.)
Moreover, the trial court’s February 17, 2005, grant of reconsideration did not vacate the underlying November 29, 2004, order denying class certification. (Annette F. v. Sharon S., supra, 130 Cal.App.4th at p. 1457.)
Consequently the November 29, 2004, order denying class certification remains the appealable order in this case. The question thus becomes whether California Rules of Court, rule 8.108(d) provides an extension of the time within which to file a notice of appeal from the November 29, 2004, order denying class certification.
ii. Rule 8.108(d) Does Not Extend the Time to Appeal From the November 29, 2004, Order Denying Class Certification, Which Makes Plaintiffs’ Notice of Appeal Untimely
Even if it were assumed that plaintiffs could file a post-judgment motion for reconsideration and that the trial court had power to rule on that motion, California Rules of Court, rule 8.108(d) would then govern whether such a reconsideration motion extends the time to file a notice of appeal from the November 29, 2004, order denying class certification. (We explore this possibility even though plaintiffs’ notice of appeal identified the order appealed from as “the order [of] July 25, 2006, that denied plaintiffs’ motion for class certification,” and nowhere references the November 29, 2004, appealable order.)
California Rules of Court, rule 8.108(d) states: “If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedures section 1008, subdivision (a), the time to appeal from the order is extended for all parties until the earliest of:
“(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
“(2) 90 days after the first motion to reconsider is filed; or
“(3) 180 days after entry of the appealable order.”
The formal, written order denying plaintiffs’ class certification motion was filed on November 29, 2004. The record does not contain service of a notice of entry of this order. A minute order reflecting this November 29, 2004, order was also entered on November 29, 2004, and the superior court clerk did serve a notice of entry of the minute order. Since no notice of entry of the trial court’s formal, written November 29, 2004, order was served, California Rules of Court, rule 8.104(a)(3) required the filing of a notice of appeal from that order within 180 days, or May 31, 2005, unless rule 8.108(d) extended that time to “the earliest of” three possible time periods.
The calculation of the three extensions of time in California Rules of Court, rule 8.108(d) produces the following results:
California Rules of Court, rule 8.108(d)(1) extends time to appeal to August 24, 2006 (30 days after the July 25, 2006, mailing of notice of entry of the order denying the reconsideration motion).
California Rules of Court, rule 8.108(d)(2) extends time to appeal to March 8, 2005 (90 days after the December 9, 2004, filing of the first motion to reconsider).
California Rules of Court, rule 8.108(d)(3) extends time to appeal to May 31, 2005 (180 days after the November 29, 2004, entry of the appealable order).
Therefore the March 8, 2005, extension of time in California Rules of Court, rule 8.108(d)(2), is “the earliest of” the three possible time periods. March 8, 2005, however, falls within the 180-day period within which to appeal and thus does not “extend” the time to appeal. (Rule 8.108 can only extend the appeal period that otherwise would apply under Rule 8.104. (Annette F. v. Sharon S., supra, 130 Cal.App.4th at p. 1456.) “Because rule [8.108(d)] cannot shorten an appeal period otherwise applicable under rule [8.104(a)], the appeal period in the circumstances of this case expired 180 days after entry of the order” denying plaintiff’s class certification motion, on May 31, 2005, the expiration date that applied under rule 8.104(a)(3). (Id. at pp. 1456-1457.))
Thus California Rules of Court, rule 8.108(d) provides no extension of the 180-day time to appeal. After May 31, 2005, plaintiffs’ notice of appeal was untimely. Plaintiffs filed their notice of appeal on August 22, 2006. This court therefore has no jurisdiction to consider this appeal (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56) and must dismiss it (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.).
2. Plaintiffs’ Renewal Motion Did Not Extend Time to Appeal the November 29, 2004, Appealable Order and Did Not Create a New, Appealable Order
Plaintiffs’ motion to renew, filed on the same day as their motion for reconsideration, (1) is not a renewal motion authorized by section 1008, subdivision (b); (2) does not extend the time to appeal from the November 29, 2004, appealable order; and (3) does not constitute an appealable order.
a. The Trial Court Lacked Power to Rule on Plaintiffs’ Purported Section 1008, Subdivision (b), Renewal Motion
Section 1008, subdivision (b) authorizes “[a] party who originally made an application for an order which was refused” to “make a subsequent application for the same order upon new or different facts, circumstances, or law . . . .” (Italics added.) The original motion sought certification of a nationwide class of DCA’s and of a nationwide subclass of DCA’s who purchased Daewoo automobiles through the DCA program. Plaintiffs’ December 9, 2004, renewal motion instead sought to certify a different class of all California DCA’s, and a different subclass of California DCA’s who bought Daewoo automobiles through the DCA program. Therefore plaintiffs’ December 9, 2004, renewal motion made an application for a different order than that previously applied for, and was thus not authorized by section 1008, subdivision (b). “No application . . . for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (§ 1008, subd. (e).) Because the purported renewal motion made by plaintiffs was not made according to section 1008, subdivision (b), the court could not consider it. In addition, “[t]his section applies to all applications for interim orders.” (§ 1008, subd. (g); italics added.) It therefore does not apply to a purported renewal motion made after an appealable order. For these reasons, the trial court lacked power to rule on the purported renewal motion filed on December 9, 2004.
b. Rule 8.108(d) Provides No Extension of Time to Appeal Because of Service and Filing of a Renewal Motion
By its express terms, California Rules of Court, rule 8.108 applies only to reconsideration motions pursuant to section 1008, subdivision (a). It does not create any extension of time to appeal a judgment because of the service and filing of a renewal motion made pursuant to section 1008, subdivision (b). “[California Rules of Court, rule 8.108], [s]ubdivision (d) . . . does not apply . . . when a party makes ‘a subsequent application for the same order’ ([Code Civ. Proc., § 1008], subd. (b)).” (Advisory Com. com., 23 pt. 2 West’s Ann. Court Rules (2006 ed.) foll. rule 8.108, p. 489.)
c. A Plaintiff Cannot Bring a Renewal Motion After Entry of an Appealable Order Denying Class Certification, and Therefore Cannot Appeal From the Order Denying the Renewal Motion
A renewal motion is authorized by section 1008, subdivision (b). A renewal motion differs from a reconsideration motion made pursuant to section 1008, subdivision (a) in several ways. Both motions, however, require the same showing of “new or different facts, circumstances, or law[.]”
Reconsideration motions (§ 1008, subd. (a)) can be made by “any party;” by contrast, renewal motions (§ 1008, subd. (b)) can be made only by “[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms[.]” A reconsideration motion must be made “within 10 days after service upon the party of written notice of entry of the order[;]” a renewal motion has no time limit. A reconsideration motion may make application “to reconsider the matter and modify, amend, or revoke the prior order[;]” a renewal motion is restricted to making “a subsequent application for the same order.”
As we have stated, after entry of judgment the superior court lacks jurisdiction to entertain or decide a motion for reconsideration brought pursuant to section 1008, subdivision (a). Should this rule also apply to renewal motions brought pursuant to section 1008, subdivision (b)?
Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806 (Stephen) gives an answer to this question, although its procedural facts differ from those in this appeal. In Stephen, the trial court denied a motion for class certification, plaintiff Stephen did not appeal that order within the time to file a notice of appeal, and thus the order became final. Nearly six months after entry of the order denying class certification, plaintiff filed a “renewed motion for class certification” purportedly pursuant to section 1008, subdivision (b), based on new facts. The trial court denied the motion as untimely, and Stephen appealed after entry of a formal order.
The Stephen opinion contains no discussion whether an order denying a renewal motion, made not only after entry of the appealable order to which the renewal motion pertains but also after the time to appeal that appealable order has ended, is an appealable order. In the case of a reconsideration motion, an order on such a motion made after entry of a judgment or appealable order is not appealable. By analogy, a renewal motion made after entry of a judgment or appealable should not be appealable either.
This problem aside, Stephen holds that “no policy in the law allowed Stephen to ‘renew’ a class certification motion which had been denied on the merits by a final appealable order.” (Stephen, supra, 235 Cal.App.3dat p. 811.) “Because California allows direct appeals of death-knell orders, a plaintiff who fails to appeal from one loses forever the right to attack it.” (Ibid.) Thus by failing to appeal the November 29, 2004, order denying class certification, the Sonn plaintiffs have lost the ability to seek review of that order and it is final and binding on both them and on the trial court.
Stephen rejected the plaintiff’s claim that California law favored the bringing of successive motions on class certification. (Stephen, supra, 235 Cal.App.3d. at p. 812.) Although valid authority endorsed successive motions on new evidence after a court had initially granted certification of a class, no authority “allowed relitigation where, as here, the court initially and on the merits denied certification.” (Id. at p. 813.) This authority, while not specifically addressing section 1008, was “directly at odds with allowing a plaintiff to ‘renew’ a motion that has produced an unappealed and final order denying class certification.” (Stephen, at p. 814.) Stephen explains the policy underlying this prohibition: “If the law allowed both [direct appeals of death-knell orders] and successive motions to certify, we could have endless appeals violating the state’s policy against piecemeal appellate litigation.” (Ibid.) Stephen thus held that because plaintiff took no appeal of the order denying class certification, it became final and binding, and “[s]tate law policy did not allow him a ‘renewed’ opportunity to seek certification.” (Id. at p. 816.)
The facts of Stephen differ procedurally from those of this appeal, in that the plaintiff in Stephen brought the renewal motion after the time to appeal had ended. This fact led Stephen to its alternative holding that plaintiff’s section 1008, subdivision (b), motion—if it could be brought at all—was untimely because it was made after the earlier, appealable order was final, i.e., the time to appeal that order had ended. In this connection, Stephen states: “We hold that a plaintiff cannot invoke section 1008, subdivision (b), to circumvent” the principle that “California does not, as a matter of precedent or policy, allow relitigation of whether to certify a class once a death-knell order denying certification has become final.” (Stephen, supra, 235 Cal.App.3d at p. 817.) “Otherwise, the disposition of the action would only be as to the particular state of facts presented when the prior motion was denied. New appealable orders could result each time new facts were offered. This would pose an intolerable expansion of the right to appeal since the ‘new facts’ requirement of section 1008, subdivision (b), has been interpreted to include not just facts previously unknown, but also ‘new evidence of the meaning of those facts . . . . ’ [Citation.] There would be little incentive for plaintiffs to marshal evidence efficiently if they could reopen the matter by offering . . . ‘liberalized’ showings of ‘mere testimony casting old facts in a new light.’ ” (Stephen, at p. 817.)
Stephen differs from the case at bench because the Stephen plaintiff brought the section 1008, subdivision (b), renewal motion after the time to appeal the underlying order denying class certification had ended. In the case at bench, the Sonn plaintiffs brought their section 1008, subdivision (b), renewal motion during the time to appeal the underlying November 29, 2004, order denying class certification. However, no ruling on the Sonn plaintiffs’ renewal motion occurred until long after the time to appeal ended. Even if it is assumed that a plaintiff can bring a renewal motion after entry of an appealable order denying class certification—a question Stephen recognized but did not decide (Stephen, supra, 235 Cal.App 3d at p. 817, fn 6)—nonetheless Stephen bars the Sonn plaintiffs’ renewal motion. It states that a renewal motion must be brought within whatever time limit California Rules of Court, rule 8.104 establishes as the time within which to appeal the appealable order which is the subject of the renewal motion. (Stephen, at p. 818.) Although the Sonn plaintiffs’ renewal motion met this requirement—as it was brought 10 days after entry of the November 29, 2004, order—the trial court ruled on that renewal motion long after the time within which to appeal the November 29, 2004, order ended. Therefore the trial court no longer had jurisdiction to make that ruling.
The appealable order continued to be the November 29, 2004, order. Because the Sonn plaintiffs did not appeal that order, it became final and this appeal should be dismissed.
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to defendant.
We concur: KLEIN, P. J., CROSKEY, J.