Jones v. Alonso CA2/2 ( 2015 )

Filed 3/5/15 Jones v. Alonso CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ERVIN LOUIS JONES, SR., B254133
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC512796)
v.
PILAR ALONSO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara
A. Meiers, Judge. Dismissed in part, affirmed in part.
Law Offices of Bahram Madaen, Bahram Madaen; Bryan K. Theis, for Plaintiff
and Appellant.
Law Offices of Anthony N. Ranieri, Anthony N. Ranieri, for Defendant and
Respondent.
******
Ervin Louis Jones, Sr. (plaintiff) appeals (1) the judgment dismissing his lawsuit
after sustaining a demurrer without leave to amend, and (2) the denial of his
postjudgment motion for relief from the judgment due to attorney error. We lack
jurisdiction over the first part of his appeal, and conclude the second part is without
merit. We accordingly dismiss as to the first part, and affirm as to the second part.
FACTUAL AND PROCEDURAL HISTORY
Pilar Alonso (defendant) loaned plaintiff money, secured by deeds of trust on four
parcels of property plaintiff owned. When plaintiff defaulted on the loans, defendant
foreclosed on the properties. Plaintiff subsequently sued defendant on 18 different
theories, seeking to quiet title, rescission, and compensatory and punitive damages.
Defendant demurred to the complaint, and his demurrer listed the hearing date of
September 26, 2013. Plaintiff filed a written opposition, and his papers also listed the
same hearing date. Because plaintiff’s counsel did not see the hearing listed on the
court’s website, she did not appear at the hearing. The trial court sustained the demurrer
without leave to amend, and entered judgment a week later—on October 3, 2013.
Plaintiff was served with notice of entry of that judgment on December 2, 2013.
On October 7, 2013, plaintiff filed a motion for reconsideration under Code of
1
Civil Procedure section 1008 and for relief from judgment under section 473,
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subdivision (b). The trial court denied that motion on January 16, 2014.
Plaintiff filed a notice of appeal on February 3, 2014.
DISCUSSION
In his notice of appeal, plaintiff appeals (1) the “[j]udgment of dismissal after an
order sustaining a demurrer,” and (2) “[d]enial of [the] motion to set aside the dismissal
of the entire action.”
1 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2 This order was omitted from the original clerk’s transcript, and we grant plaintiff’s
motion to augment the record with this order.
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I. Jurisdiction
We do not have jurisdiction over plaintiff’s appeal of the trial court’s order
sustaining the demurrer to his complaint. Where, as here, a party is served with a notice
of entry of judgment, that party has 60 days to file a notice of appeal. (Cal. Rules of
Court, rule 8.104(a)(1); § 1013, subd. (a) [time period not extended by five days for
mailing for notices of appeal].) Plaintiff filed his notice of appeal on February 3, 2014,
which is 63 days after he was served with the notice of entry of judgment on December 2,
2013. We are obligated to dismiss this untimely appeal. (Cal. Rules of Court, rules
8.104(b), 8.60(d).)
Plaintiff offers two reasons why dismissal is avoidable. First, he argues that he
extended the deadline for filing the notice of appeal from the trial court’s order sustaining
the demurrer when he filed his motion for reconsideration of that order. A “valid motion
to reconsider an appealable order” extends the time to file a notice of appeal. (Cal. Rules
of Court, rule 8.108(e), italics added.) But plaintiff’s motion to reconsider was not valid
because it was filed after judgment was entered. (Branner v. Regents of Univ. of Calif.
(2009) 175 Cal. App. 4th 1043, 1048 (Branner) [“A motion to reconsider is not valid if it
is filed after the final judgment is signed.”], citing Ten Eyck v. Industrial Forklifts Co.
(1989) 216 Cal. App. 3d 540, 545.) Second, plaintiff contends we may hear the appeal of
the trial court’s order denying his motion for reconsideration, which was filed only 18
days before his notice of appeal. However, “‘a denial of a motion for reconsideration is
never appealable under any circumstances.’” (Branner, at p. 1050, quoting Association
for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal. App. 4th 1625,
1633; Code Civ. Proc., § 1008(g) [“[a]n order denying a motion for reconsideration made
pursuant to [Code of Civil Procedure section 1008,] subdivision (a) is not separately
appealable” from an appeal of the underlying judgment].)
We must therefore dismiss for lack of jurisdiction the appeal of the order
sustaining the demurrer.
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II. Order denying relief from judgment
Plaintiff’s appeal of the trial court’s January 16, 2014 order denying his motion for
relief from judgment under section 473, subdivision (b) is properly before us, but lacks
merit. Section 473, subdivision (b) obligates a court to grant relief from a “default
judgment or dismissal” if the motion is filed within six months of the entry of judgment
and “is accompanied by an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise or neglect,” “unless the court finds that the default or dismissal
was not in fact caused by the attorney’s mistake, inadvertence, surprise or neglect.”
(§ 473, subd. (b).)
In this case, the trial court decided defendant’s demurrer on the merits. The
demurrer was fully briefed by both parties in advance of the hearing. Where, as here, one
of the parties does not appear at the hearing on the demurrer, a trial court is required to
“dispose[] of” the demurrer “on the merits” if the appearing party so requests. (Cal. Rule
of Court, rule 3.1320(f).) Here, the court’s order indicates that its ruling was “[b]ased
upon the papers submitted.” Further, the court’s ruling sustaining the demurrer without
leave to amend is consistent with a ruling on the merits. Plaintiff’s further argument that
the trial court’s decision to dismiss his complaint constitutes evidence that the court did
not rule on the merits overlooks that the remedy for the sustaining of a demurrer without
leave to amend is dismissal. (Michaels v. Mulholland (1953) 115 Cal. App. 2d 563, 564
[“After a demurrer is sustained without leave to amend, . . . no formal motion to dismiss
the action is necessary. The entry of a judgment of dismissal follows as a matter of
course.”].) In short, there is nothing in the court’s order to indicate that the ruling was
not based on the merits. (See Evid. Code, § 664 [“It is presumed that official duty has
been regularly performed.”]; cf. City of Los Angeles v. Glair (2007) 153 Cal. App. 4th 813,
818 fn. 5 [trial court not presumed to rule on merits of an untimely motion].) As a result,
plaintiff has not established the causal link between his attorney’s absence and the court’s
decision to sustain the demurrer. Without that link, he is not entitled to relief under
section 473, subdivision (b).
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DISPOSITION
The judgment is dismissed in part, and affirmed in part. We deny defendant’s
motion for sanctions on appeal because plaintiff’s appeal was not completely frivolous.
Nevertheless, defendant is entitled to his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
HOFFSTADT
We concur:
____________________________, P. J.
BOREN
____________________________, J.
CHAVEZ
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