Sack v. Miller

Filed 2/5/07  Sack v. Miller CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

            Plaintiffs Terrence Sack and Jay Pearl filed a notice of appeal from an order denying reconsideration of an earlier order sustaining a demurrer without leave to amend.  They seek review of both their motion to reconsider and the underlying demurrer.  Because the appeal is taken from a nonappealable order, we must dismiss it.

Background

            Plaintiffs originally brought this lawsuit on June 10, 2004 against the trustee and the beneficiary of a trust established by Ronald Moesle, who had died on June 1, 2002.  The complaint sought damages for breach of a contract to convey property to plaintiffs, breach of a contract to make a will, and specific performance.  It also claimed the right to the property under Probate Code section 850.

            Defendants demurred to the complaint on grounds that included statutory limitations described in Code of Civil Procedure sections 366.2 (one year after death for action against person who dies during limitations period), 366.3 (one year after death for claim arising from decedent's promise of distribution from estate or trust), and (alternatively) 339 (two years after discovery of harm for oral contract).[1]  The trial court sustained the demurrer with leave to amend.  The first amended complaint added a cause of action for fraudulent concealment of the existence of the trust.  The court, however, sustained defendants' demurrer to this pleading as well, citing sections 366.2 and 339.  The second amended complaint, which added a cause of action for dissolution and specific performance of an " investment club partnership," fared no better; it was sustained under sections 366.2, 366.3, and 339.

            The final pleading, the third amended complaint, re-alleged the previous six causes of action and further sought quiet title and reformation of two alleged agreements to effect transfers of the decedent's property to plaintiffs.  As on the previous occasions, defendants demurred on statute-of-limitations grounds, citing sections 366.2, 366.3, and 339.  On October 20, 2005, the trial court sustained the demurrer under section 366.2.  This time the court denied leave to amend " because plaintiffs have failed to show that the complaint can be amended to plead around the statute of limitations bar."   The court's order did not include a dismissal of the action, nor was there a subsequent judgment of dismissal entered.

            On October 31, 2005, plaintiffs moved for reconsideration of the order under section 1008, asserting new facts and circumstances and proposing a fourth amended complaint which included an express allegation that the claim under Probate Code section 850 did not arise until the instant of Ronald Moesle's death.  On January 11, 2006, the court denied plaintiffs' motion for reconsideration " because the proposed Fourth Amended Complaint fails to allege 'new or different facts, circumstances, or law[,'] as required by section 1008, or, alternatively, because 'new or different facts' alleged in the proposed amended [complaint] do not compel a different result."   Plaintiffs filed their notice of appeal from that order on January 31, 2006.

Discussion

            At the outset it is readily apparent that plaintiffs have appealed from a nonappealable order, the January 31, 2006 order denying their motion for reconsideration.  Defendants suggest that we nonetheless reach the merits of the appeal in the interests of procedural efficiency.  We cannot do so.  Defendants erroneously assume that plaintiffs have appealed from two nonappealable orders, the denial of the reconsideration motion and the underlying sustaining of the demurrer without leave to amend.  Were that so, we could exercise our discretion to deem the first order to incorporate a judgment of dismissal (since the order sustaining the demurrer is not in itself appealable) and thereby address the merits of that issue.  The record discloses, however, that the only order from which plaintiffs filed a notice of appeal was the order denying their motion for reconsideration.[2]  " The taking of an appeal is not merely a procedural step, but is jurisdictional, and where no appeal is taken from an appealable order, a reviewing court has no discretion to review its merits; the court must disregard all issues concerning the order on its own motion even if no objection has been made."   (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 158, emphasis added; see also Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 906 [on appeal from a judgment, the law does not allow review of any decision or order from which an appeal might previously have been taken].)  Accordingly, we will not address any issues related to the underlying demurrer to the third amended complaint. 

            Repeatedly in the past, appellate courts, including this one, have referred to a split of authority as to whether an order denying reconsideration is appealable.  (See, e.g., In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 80-81; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458.)  It is evident, however, that the clear majority now deems such orders to be nonappealable.  (In re Marriage of Burgard, supra, 72 Cal.App.4th 74, 81; Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242.) 

            California Rules of Court, rule 3(d) (" rule 3(d)" ), does not save this appeal; it only extends the time to appeal from an appealable order or judgment after denial of a valid reconsideration motion.  There is no timeliness issue here; and the rule does not address appealability of orders denying reconsideration motions.  (See Advisory Committee comment to rule 3(d):  " The revised subdivision .  .  . takes no position on whether an order denying a motion to reconsider is itself appealable." )  Rule 3(d), briefly cited in plaintiffs' reply brief, is therefore inapposite. 

            Even if we were to consider the purported appeal, we would uphold the court's ruling.  Code of Civil Procedure section 1008 expressly prohibits the granting -- or even consideration -- of such motions unless they are " based upon new or different facts, circumstances, or law."  (Code Civ. Proc., § 1008, subds. (a), (e).)  In addition, the moving party is generally required to show a satisfactory explanation for the failure to present those new or different facts or law earlier.  (§ 1008(b); McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

            Here, the motion was based on the assertion by plaintiffs' counsel of the following " New Facts/Circumstances" :  " 1) The complaint now contains the express allegation that the conduct giving rise to the actions under [P]robate [C]ode §  850 did not arise until the instant of death.  Specifically that [sic] the decedent transferred property into a trust which did not honor his obligations to plaintiffs, but which could be corrected to honor those obligations right up until the instant of his death.  [¶]  2) After receiving defendants [sic] reply brief further research the [sic] of the laws applicable to the complaint disclosed authority that a [P]robate [C]ode §  850 action is not subject to the one[-]year statute of limitations of CCP  §  366.2 where, as in this instance, the breach did not arise until the instant of death.  I presented this authority in oral argument at the hearing on the motion.  I also explained that the living trust created by decedent Ron Moesle which appeared to dis-honor the obligations to Plaintiffs remained fully revocable and fully amendable until the instant of death, affording the decedent the opportunity to cure any potential breach right up until the instant of his death.  I also identified writings  .  .  . that evidenced the obligations and argued that the statute of limitations under Probate Code §  850 would be the four[-]year statute for breach of an obligation founded on a writing.  The ruling on the demurrer does not address the authority or argument."   Under the heading of " There are New New [sic] Circumstances," counsel only stated, " A court's failure to consider properly submitted points and authorities constitutes 'new circumstances' such that the trial court has jurisdiction to grant reconsideration under CCP §  1008(a).  Johnston v. Corrigan (2005) 127 [Cal.App.]4th 553, 556."

            From this argument there can be no question that plaintiffs were only renewing the argument they had made previously because they were dissatisfied with the trial court's rejection of their position.[3]  No new facts or circumstances were uncovered; there was only " further research" of existing law, prompted by defendants' response to plaintiffs' motion.  " [S]ection 1008 gives the court no authority when deciding whether to grant a motion to reconsider to 'reevaluate' or 'reanalyze' facts and authority already presented in the earlier motion."  (Crotty v. Trader (1996) 50 Cal.App.4th 765, 771; see also Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [reconsideration is not permitted merely because a litigant disagrees with the earlier ruling].)  Nor is there any indication that the trial court failed to consider plaintiffs' argument in opposition to the demurrer; consequently, plaintiffs' continued reliance on Johnston v. Corrigan, supra, 127 Cal.App.4th 553, 556, is misplaced.  Thus, even if we were to address the merits of the issue raised by plaintiffs' notice of appeal, we would find no error in the denial of plaintiffs' motion to reconsider under section 1008.[4]

Disposition

            The appeal is dismissed.

                                                                        _____________________________

                                                                        ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1]    All further statutory references (except those to Probate Code section 850) are to the Code of Civil Procedure.

[2]   Plaintiffs' Civil Case Information Statement is misleading in two respects.  It indicates that the appeal is from a judgment of dismissal after an order sustaining a demurrer.  It was not; there is no judgment of dismissal in this record.  Second, plaintiffs state that the date of the " judgment or order appealed from" was October 20, 2005, the date the court sustained defendants' demurrer.  That also is inaccurate.  The notice of appeal states that the order appealed from is the " order denying Plaintiffs [sic] motion for reconsideration entered on January 11, 2006."

[3] Similarly, on appeal plaintiffs claim that the trial court's " failure to consider properly submitted points and authorities constitutes 'new circumstances' such that the trial court had jurisdiction to grant reconsideration under CCP §  1008(a)."

[4]   Even those minority cases that have deemed a denial of reconsideration motion to be appealable have conditioned that status on the existence of new or different facts.  (See, e.g., Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1010-1011.)  Under that older line of authority, plaintiffs' appeal would still have been subject to dismissal.