Green Century Development v. Yuan CA2/5 ( 2014 )

Filed 10/21/14 Green Century Development v. Yuan CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
GREEN CENTURY DEVELOPMENT, B250846
LLC,
(Los Angeles County Super. Ct.
Plaintiff and Respondent, No. KC058045)
v.
JOHN YUAN,
Defendant and Appellant;
NORIKO KOMIYAMA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Salvatore
Sirna, Judge. Appeal dismissed.
John Yuan, in pro. per., for Defendant and Appellant.
John M. Gantus & Associates and John M. Gantus for Defendant and Respondent.
___________________
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Appellant John Yuan purports to appeal from a postjudgment notice of ruling
denying a motion to reconsider a motion for reconsideration in this interpleader action.
Because the notice of ruling and the order denying the motion for reconsideration are not
appealable orders, we dismiss the appeal.
FACTS AND PROCEDURAL BACKGROUND1
Dissolution Proceedings
Yuan and respondent Noriko Komiyama were married on February 6, 1993.
Janetech Group, Inc., was incorporated in California on March 26, 1993. Yuan was listed
as Janetech’s agent for service of process at an address in Walnut, California. Yuan and
Komiyama held title to the Walnut property as joint tenants. However, in August 1997,
Yuan and Komiyama filed a joint petition for dissolution of marriage stating there were
no community assets or liabilities and neither party had any interest in real property. A
dissolution judgment was granted on March 2, 1998.
In September 2006, plaintiff Green Century Development, LLC executed a
promissory note in the amount of $252,000 secured by a deed of trust in favor of
Janetech. Payment was due on November 11, 2009.
On June 11, 2007, Komiyama filed a motion to set aside the dissolution judgment
except as to dissolution of status. The motion was based on evidence of the grant deed to
the Walnut property, records from the California Secretary of State’s Office, and a grant
deed showing Janetech held an undivided 68 percent interest in real property in Imperial
County. The trial court vacated the dissolution judgment except as to status on July 20,
2007. On January 26, 2009, the court entered a dissolution judgment that awarded to
1Portions of the facts and procedural background are taken from the prior
opinions in this case and the related dissolution proceedings.
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Komiyama all rights, title, and interest in and to the promissory note. On February 23,
2009, Yuan filed an appeal from the dissolution judgment (dissolution appeal I).
The Interpleader Action
On February 29, 2010, Green Century filed an interpleader action against Yuan,
Komiyama and other defendants in response to conflicting claims as to ownership of the
promissory note. On October 19, 2010, Division Three of this appellate court affirmed
the dissolution judgment. (Yuan v. Komiyama (Oct. 19, 2010, B214461) [nonpub. opn.].)
On November 10, 2010, Komiyama filed a motion for summary judgment in the
interpleader action on the ground that the dissolution judgment which was affirmed on
appeal awarded all interest in the promissory note to her. On January 24, 2011, the court
granted the motion for summary judgment. On January 28, 2011, Yuan filed a notice of
appeal from the ruling (interpleader appeal I). On February 2, 2011, the court entered an
order granting summary judgment and a judgment in favor of Komiyama.
On May 12, 2011, Yuan filed a motion in the interpleader action in the court to set
aside the summary judgment, which was heard and stayed pending the resolution of
interpleader appeal I. This appellate division liberally construed the notice of appeal to
encompass the February 2, 2011 judgment and affirmed the order granting summary
judgment in favor of Komiyama on October 1, 2012. (Green Century Development, LLC
v. Yuan (Oct. 1, 2012, B230616) [nonpub. opn.].)
In the dissolution proceedings, Yuan had filed a notice of appeal from a
postjudgment order denying Yuan’s motion for reconsideration of a motion concerning
omitted assets (dissolution appeal II). Division Three of this appellate court dismissed
Yuan’s appeal from the ruling on the motion for reconsideration as nonappealable and
otherwise affirmed the order. (Yuan v. Komiyama (Sept. 26, 2012, B230427) [nonpub.
opn.].)
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Motions for Reconsideration
On April 3, 2013, Yuan filed a motion in the interpleader action for
reconsideration of his motion to set aside the summary judgment. On May 9, 2013, the
court denied the motion. The court found Yuan’s motion was untimely and “not
supported by any new or different facts, circumstances, or law, which Yuan could not,
with reasonable diligence, have discovered or produced at the hearing,” and therefore did
not meet the requirements of Code of Civil Procedure section 1008.2
On May 24, 2013, Yuan filed a motion for reconsideration of the motion for
reconsideration of the motion to set aside the summary judgment. The court denied it for
the same reasons that it denied the first motion for reconsideration. On July 25, 2013,
Komiyama filed a notice of ruling reflecting the denial of the second motion for
reconsideration. Yuan filed a notice of appeal from the July 25, 2013 notice of ruling.
DISCUSSION
Appealability
A. Notice of Ruling
Yuan purports to appeal from the July 25, 2013 notice of ruling. Notices of ruling
are not among the judgments or orders set forth in section 904.1 from which appeals may
be taken.
“A ‘notice of ruling’ is not an appealable judgment or order . . . .” (Shpiller v.
Harry C’s Redlands (1993) 13 Cal. App. 4th 1177, 1178 (Shpiller).) In Shpiller, the court
stated that it would no longer “save” erroneous appeals by “notify[ing] counsel, by
2All further statutory references are to the Code of Civil Procedure, unless
otherwise specified.
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clerk’s letter or order, of the court’s opinion that the court has no jurisdiction to review
the judgment or order appealed, and to allow 15 to 20 days for the appellant to file a file-
stamped copy of an appealable ruling or to contest the Court of Appeal’s opinion.” (Id. at
p. 1180.) The purpose in the change of policy was to “encourage appellants not to file
appeals prematurely and to conserve judicial resources.” (Ibid.) Whether a court
employs a procedure to save erroneous appeals is “entirely discretionary.” (Ibid.)
Because a notice of ruling is not appealable, we dismiss Yuan’s appeal.
B. Motion for Reconsideration
Even if we were to deem Yuan’s appeal to be taken from an order denying the
motion for reconsideration, we would dismiss the appeal.
Section 1008, subdivision (a) provides in relevant part, “[w]hen an application for
an order has been made to the judge, or to a court, and refused in whole or in part, or
granted, or granted conditionally, or on terms, any party affected by that 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.” Section 1008, subdivision (g) expressly states that “[a]n order denying a
motion for reconsideration made pursuant to subdivision (a) is not separately appealable.”
The policy reasons for concluding that motions for reconsideration are
nonappealable include eliminating 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 . . . .”
(Tate v. Wilburn (2010) 184 Cal. App. 4th 150, 158-159, internal quotations omitted.)
The court denied Yuan’s motion to reconsider the motion to reconsider the motion
to set aside the summary judgment because it was untimely and Yuan did not allege any
new facts or law that could not have been raised at trial. Because Yuan appeals from
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denial of a motion to reconsider, which is nonappealable, we have no jurisdiction to
entertain this appeal. Accordingly, we dismiss the appeal.
Sanctions
Komiyama requests sanctions be imposed on Yuan for taking a frivolous appeal
and filing a frivolous motion under California Rules of Court, rule 8.276(a)(1) and (3). A
party seeking sanctions on appeal must file a separate motion and include a declaration.
(Cal. Rules of Court, rule 8.276; Kajima Engineering and Construction, Inc. v. Pacific
Bell (2002) 103 Cal. App. 4th 1397, 1402; Committee to Save Beverly Highlands Homes
Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal. App. 4th 1247, 1273, fn. 10.)
Absent compliance with the procedural separate motion requirement, a sanctions request
must be denied. (Kajima Engineering and Construction, Inc. v. Pacific Bell, supra, at p.
1402; Committee to Save Beverly Highlands Homes Assn. v. Beverly Highlands Homes
Assn., supra, at p. 1273, fn. 10.) Komiyama did not file a separate sanctions motion.
Accordingly, we must deny Komiyama’s sanctions request.
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DISPOSITION
The appeal is dismissed. Respondent Komiyama is awarded her costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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