Wang v. Xu CA2/5

Filed 1/17/23 Wang v. Xu 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
ZHENG WANG et al., B309283
Plaintiffs and Appellants, (Los Angeles County
Super. Ct.
v. No. BC696119)
ZHAOHUI XU, Executor,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis J. Landin, Judge. Dismissed.
Gipson Hoffman & Pancione, Kenneth I. Sidle, and Jason
Wallach; James A. Frechter for Plaintiffs and Appellants.
Michaelman & Robinson, Jeffrey B. Farrow, Reuben A.
Ginsburg, and Samantha Drysdale for Defendant and
Respondent.
Plaintiffs and appellants Zheng Wang and China General
Aviation, LLC (collectively, plaintiffs) filed a notice purporting to
appeal from a handful of trial court orders, including an order
granting a motion to dismiss the case on forum non conveniens
grounds. Zhaohui Xu (Xu), as executor of the estate of Wei Chen
(Chen), moved to dismiss the appeal, arguing the notice of appeal
was untimely. We agree the notice was untimely as to the final
judgment, conclude the remaining orders are not independently
appealable, and therefore dismiss the appeal.
I. BACKGROUND
A. The Complaint and Early Proceedings
In March 2018, plaintiffs filed a complaint against Chen
alleging ten causes of action including fraud, breach of contract,
and intentional interference with contract. The dispute centered
around a contest promoted by Chen:1 he allegedly promised to
pay the first Chinese woman to complete a flight around the
world a prize of one million Chinese yuan. The gist of plaintiffs’
complaint was that Wang won the contest but Chen did not pay
the prize.
Chen initially failed to respond to the complaint, and
default was entered against him. Prior to the entry of a default
judgment, however, Chen moved to set aside the default and the
trial court granted the motion.
Chen then filed a motion to dismiss the case on forum non
conveniens grounds. The trial court denied the motion without
1
The contest was also promoted by the Aircraft Owners and
Pilots Association of China.
2
prejudice.2 As part of its rationale for denying the motion, the
court stated Chen had not stipulated to waive the statute of
limitations defense in China; the court indicated that if Chen
were to so stipulate, the court would be inclined to grant the
motion.
B. The Trial Court Grants Dismissal
Chen died in an aviation accident in December 2018. Xu,
as executor of Chen’s estate, was substituted in as his successor
in interest. Xu filed another forum non conveniens motion to
dismiss the case, or, in the alternative, to stay the case until
litigation proceeded in China. In support of that motion, Xu filed
a declaration submitting to jurisdiction in China for the
allegations in the complaint, agreeing to accept service of any
complaint filed in China regarding the same allegations, and
agreeing to waive the statute of limitations defense in China for a
year following the date of the declaration. Wang opposed the
motion.
On August 24, 2020, the trial court granted the motion to
dismiss on forum non conveniens grounds in a signed, file-
stamped order. The court found China was a suitable alternative
forum and both the private and public interest factors indicated
the action would be best litigated in China. In addition to the
signed order, the court also issued an unsigned minute order that
incorporated the signed order’s analysis and stated the motion to
dismiss was granted and the complaint dismissed with prejudice.
2
Chen also filed a motion to quash the service of the
summons, which the trial court denied as well.
3
On August 27, 2020, Xu filed a “Notice of Ruling on
Defendant’s Motion to Dismiss for Forum Non Conveniens.” The
notice attached the file-stamped and signed August 24, 2020,
ruling granting the motion to dismiss and the associated minute
order.
C. Subsequent Proceedings
Plaintiffs filed a motion for reconsideration on September 8,
2020.
Ten days later, the trial court signed another order
dismissing the action with prejudice. Xu served and filed a
“Notice of Entry of Order Dismissing Action with Prejudice” for
that on September 22, 2020.
Wang nonetheless filed a supplemental declaration in
support of her motion for reconsideration in early October 2020.
On October 20, 2020, the trial court granted Xu’s ex parte
application to strike the supplemental declaration. Wang then
filed a second supplemental declaration in support of the motion
for reconsideration. On November 18, 2020, the trial court
granted Xu’s ex parte application to strike that second
supplemental declaration too. The trial court then issued an
order denying the motion for reconsideration on December 4,
2020.
Plaintiffs filed a notice of appeal that same day. The notice
of appeal states plaintiffs were appealing: (1) the August 24,
2020, ruling granting the forum non conveniens motion to
dismiss; (2) the August 24, 2020, minute order regarding the
ruling on the motion to dismiss; (3) the September 18, 2020, order
dismissing the action with prejudice; (4) the October 20, 2020,
order striking Wang’s supplemental declaration in support of the
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motion for reconsideration; (5) the November 18, 2020, order
striking Wang’s second supplemental declaration in support of
the motion for reconsideration; and (6) the December 4, 2020,
ruling denying the motion for reconsideration.
In this court, Xu filed a motion to dismiss the appeal,
arguing the notice of appeal was untimely. An opposition to the
motion and a reply followed.
II. DISCUSSION
By operation of statute, the trial court’s signed order
granting Xu’s motion to dismiss on August 24, 2020, constituted a
final judgment. Xu served a file-stamped copy of that judgment
on plaintiffs three days later, thereby commencing the 60-day
deadline to file a notice of appeal from the judgment. Plaintiffs
did not file their notice of appeal until December 2020, well
beyond the 60-day deadline, and plaintiffs’ motion for
reconsideration did not extend the deadline to appeal. Because
none of the other orders from which plaintiffs noticed an appeal
are independently appealable, we shall dismiss the appeal.
A. Background Law
“‘Compliance with the time for filing a notice of appeal is
mandatory and jurisdictional. [Citations.] If a notice of appeal is
not timely, the appellate court must dismiss the appeal.’” (Ellis
v. Ellis (2015) 235 Cal.App.4th 837, 842 (Ellis); accord, Dakota
Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 [“If
the appeal is untimely, this court has no jurisdiction to consider
it, and it must be dismissed.”]; Cal. Rules of Court, rule 8.104(b)
[“If a notice of appeal is filed late, the reviewing court must
dismiss the appeal.”].)
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Unless a statute or court rule provides otherwise, a notice
of appeal must be filed on or before the earliest of: “(A) 60 days
after the superior court clerk serves on the party filing the notice
of appeal a document entitled ‘Notice of Entry’ of judgment or a
filed-endorsed copy of the judgment, showing the date either was
served; [¶] (B) 60 days after the party filing the notice of appeal
serves or is served by a party with a document entitled ‘Notice of
Entry’ of judgment or a filed-endorsed copy of the judgment,
accompanied by proof of service; or [¶] (C) 180 days after entry of
judgment.” (Cal. Rules of Court, rule 8.104(a)(1).)
Regarding the appealability of a dismissal order, Code of
Civil Procedure section 581d states, “A written dismissal of an
action shall be entered in the clerk’s register and is effective for
all purposes when so entered. [¶] All dismissals ordered by the
court shall be in the form of a written order signed by the court
and filed in the action and those orders when so filed shall
constitute judgments and be effective for all purposes, and the
clerk shall note those judgments in the register of actions in the
case.” (Code Civ. Proc., § 581d.)
B. Plaintiffs’ Appeal of the Judgment Is Untimely
The August 24, 2020, ruling granting the motion to dismiss
constituted a final judgment because it left no further issues to be
adjudicated between the parties (see Walton v. Mueller (2009)
180 Cal.App.4th 161, 167) and satisfies the requirements of
section 581d: it was an order granting a motion to dismiss the
entire case, was in writing, was signed by the court, and was filed
in the matter. It was therefore an appealable judgment, as all
parties agree.
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California Rules of Court, rule 8.104(a)(1)(B) provides that
the deadline to appeal is 60 days after either service of a “Notice
of Entry” or service of a “filed-endorsed copy of the judgment,
accompanied by proof of service . . . .” Xu served a notice of ruling
that attached a file-stamped copy of the order granting the
motion to dismiss and was accompanied by a proof of service.
While plaintiffs are correct that the August 27, 2020, notice of
ruling, alone, would not have satisfied rule 8.104(a)(1)(B) (e.g.,
Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399; 20th
Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666,
671), the attachment of the file-stamped copy of the ruling itself
did, and that was sufficient to commence the running of the 60-
day deadline to appeal. That means the notice of appeal—filed
well over three months later—is untimely.
Plaintiffs’ reliance on Alan v. American Honda Motor Co.,
Inc. (2007) 40 Cal.4th 894 (Alan) to suggest Xu’s service of the
order was insufficient to trigger the running of the deadline is
unpersuasive. As plaintiffs themselves acknowledge, Alan
considered whether a clerk’s mailing of a minute order without a
document entitled “Notice of Entry” was sufficient to commence
the running of the deadline. Our high court concluded it was not,
emphasizing that the minute order was not file stamped. (Id. at
902.) The facts before us in this case are different, both because
they involve service by a party (not a court clerk) and, more
importantly, because Xu attached a file-stamped copy of the
court’s signed dismissal order to the notice of ruling. The holding
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in Alan therefore does not compel a conclusion that there is a
problem with service of the judgment here.3
No subsequent filings in the case extended or otherwise
affected the unmet deadline to appeal. The filing of the motion
for reconsideration had no effect because a motion for
reconsideration of a judgment, as opposed to an order, does not
extend the time for appeal. (Ramon v. Aerospace Corp. (1996) 50
Cal.App.4th 1233, 1236; Passavanti v. Williams (1990) 225
Cal.App.3d 1602, 1607-1608.) And, in any event, “entry of
judgment divests the trial court of authority to rule on a motion
for reconsideration.” (Safeco Ins. Co. v. Architectural Facades
Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481-1482 (Safeco).)
Further, the trial court’s entry of a seemingly redundant order
dismissing the case with prejudice in September 2020 does not
affect the timeliness of plaintiffs’ appeal either because that
second judgment did not result in “‘a substantial change in the
3
To the extent plaintiffs rely on Alan to contend service was
deficient because the judgment was not served independently and
was instead attached to the notice of ruling, Alan does not
support that proposition. California Rules of Court, rule
8.104(a)(1)(B) (which applies to service by a party), unlike rule
8.104(a)(1)(A) (which applies to service by the clerk) expressly
contemplates the inclusion of at least one additional document by
providing the notice or copy of the judgment must be
“accompanied by proof of service.” (Alan, supra, 40 Cal.4th at
904 [differing language in two subdivisions of the rule led to
different interpretation and requirements].) Furthermore, even
the single-document rule contemplated by Alan may be satisfied
by attaching one document to another. (Id. at 905 [“[o]bviously a
document can have multiple pages”].)
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rights of the parties . . . .’”4 (Ellis, supra, 235 Cal.App.4th at 842;
see also City of Calexico v. Bergeson (2021) 64 Cal.App.5th 180,
195.)
C. The Post-Judgment Orders Are Not Separately
Appealable
Having concluded plaintiffs’ appeal of the August 24, 2020,
judgment was not timely, the rest of the orders designated in the
notice of appeal are not appealable either.
Motions for reconsideration are not separately appealable.
A litigant may appeal a ruling on a motion for reconsideration
only by appealing the underlying order. (Code Civ. Proc., § 1008,
subd. (g) [“An order denying a motion for reconsideration . . . is
not separately appealable. However, if the order that was the
subject of a motion for reconsideration is appealable, the denial of
the motion for reconsideration is reviewable as part of an appeal
from that order”].) Because plaintiffs filed their motion for
reconsideration after the entry of judgment, the reconsideration
4
Even if we considered the September 2020 order dismissing
the case with prejudice as the operative final judgment in the
case, plaintiffs’ appeal would still be untimely. Xu served a
notice of entry of that order on September 22, 2020. The trial
court had no jurisdiction to consider the pending motion for
reconsideration. (Safeco, supra, 134 Cal.App.4th at 1481-1482;
see also Kasper v. Cedars-Sinai Medical Center (1998) 62
Cal.App.4th 780, 782-783 [entry of judgment is an implied denial
of a pending motion for reconsideration].) An appeal of the
September 2020 judgment would accordingly have to have been
noticed in November to be timely, but plaintiffs’ notice of appeal
was not filed until December 4, 2020.
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ruling is a nonappealable order. (Reynolds v. City of Calistoga
(2014) 223 Cal.App.4th 865, 871 [“denial of [a] motion for
reconsideration [is] not appealable but [is] reviewable on [a]
timely appeal of the underlying order”]; Powell v. County of
Orange (2011) 197 Cal.App.4th 1573, 1576 [“The majority of
courts addressing the issue have concluded an order denying a
motion for reconsideration is not appealable, even when based on
new facts or law”].)
The only remaining orders identified in plaintiffs’ notice of
appeal, i.e. the two orders striking supplemental declarations
submitted in connection with the motion for reconsideration, are
similarly not independently appealable. “Under [Code of Civil
Procedure] section 904.1, subdivision (a)(2), an appeal may be
taken from an order made after an appealable judgment. Despite
the broad language of section 904.1, subdivision (a)(2), not all
postjudgment orders are appealable. [Citation.] To be
appealable, a postjudgment order must satisfy two requirements:
(1) the issues raised by the appeal from the order must be
different from those arising out of the appeal from the judgment,
and (2) the order must affect, enforce, or stay execution of the
judgment. [Citation.]” (SCC Acquisitions, Inc. v. Superior Court
(2015) 243 Cal.App.4th 741, 748.) The declaration-striking
orders concerned supplemental declarations plaintiffs submitted
in support of their motion for reconsideration and the orders do
not affect, enforce, or stay execution of the judgment.5
5
Indeed, it would be logically inconsistent for the
declaration-striking orders to be independently appealable when
the reconsideration order, as we have already explained, was not
independently appealable itself.
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DISPOSITION
The appeal is dismissed. Xu is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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