Rodriquez v. San Diego City Attorney

Filed 6/6/06 Rodriquez v. San Diego City Attorney CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Linda B. Quinn, Judge. Dismissed.

Plaintiff Humberto Rodriguez appeals from an order denying what the trial court construed as a motion to vacate the dismissal of his case without prejudice.^[1] Because the order is not appealable, we dismiss Rodriguez's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2002, Rodriguez, acting in propria persona, filed a lengthy complaint naming the "San Diego City Attorney" and Deputy City Attorney David Sherman as defendants in connection with a prior criminal matter in which Sherman prosecuted Rodriguez for disturbing the peace of a school, and resisting a police officer (Pen. Code, §§ 415.5, subd. (a)(2); 148, subd (a)). Defendants demurred to the complaint, asserting Government Code section 821.6 prosecutorial immunity. The court sustained the demurrer and gave Rodriquez fifteen days to file an amended complaint.^[2] Rodriguez did not do so. On November 19, 2004, the court dismissed Rodriguez's case without prejudice for failure to file an amended complaint.

On January 28, 2005, Rodriguez filed a document entitled "Oral Arguments and Plaintiff's Supporting Declarations in Opposition of the Dismissal of the Case." In that pleading, Rodriguez challenged the trial court's dismissal of his case on theories, in essence, that defendants did not serve him with anything specifying a date by which to file his amended complaint and thus he did not receive proper notice; the trial court abused its discretion; and it acted without impartiality in dismissing the complaint. Construing the document as a motion to vacate the dismissal, the court tentatively denied Rodriguez's request without prejudice because the motion lacked a supporting memorandum of points and authorities and was untimely served. Because Rodriguez did not thereafter appear, he was deemed to have waived oral argument and the court's order became final. In February 2005, Rodriguez filed the present appeal.

DISCUSSION

Defendants contend Rodriguez does not appeal from a final and appealable order. The contention has merit.

An appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Code Civ. Proc., § 904.1.^[3]) While the denial of a statutory motion to vacate a judgment has been held appealable as an order after judgment (Norager v. Nakamura (1996) 42 Cal.App.4th 1817, 1819, fn. 1 [order denying section 663 motion]; Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 294 fn. 4 [order denying section 473 motion]), orders denying nonstatutory motions to vacate are generally not appealable. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691; Whelan v. Rallo (1997) 52 Cal.App.4th 989, 992 fn. 3; Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 202; see Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 282; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 2:174, p. 2-94.) "The theory is that a plaintiff may not utilize an appeal from an order refusing to vacate as an indirect means of attacking an appealable order of dismissal." (Daley v. Butte County (1964) 227 Cal.App.2d 380, 388.)

Rodriguez's motion to vacate was not a true statutory motion under either section 473^[4] or section 663.^[5] Rodriguez did not identify either section as a ground for relief, nor did he rely on case authority referring to those statutes. Indeed, the motion was not based upon any statutory authority at all. A section 473 motion seeks relief from situations "against which [a party's own] ordinary prudence could not have guarded." (Price v. Hibbs (1964) 225 Cal.App.2d 209, 217.) Rodriguez's assertions that the court lacked impartiality and abused its discretion plainly do not invoke section 473 relief. Nor is there any basis to interpret Rodriguez's motion as arising under section 473 based on his contention he lacked adequate notice due to improper service.^[6] Such a claim may give rise to a due process violation, but it does not sound in section 473. (See e.g., Smith v. Jones (1917) 174 Cal. 513, 515-516 [defendant's motion to vacate judgment on grounds of lack of service and notice of a pending action raised a due process violation and "cannot be said to arise from any mistake, inadvertence, surprise, or neglect on his part"].)

Similarly, we cannot characterize Rodriguez's motion as brought under section 663. A section 663 motion challenges the court's judgment as erroneous based on "uncontroverted evidence" or "incorrect conclusions of law." (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 14.) Such a motion requests the trial court "to vacate its judgment and enter 'another and different

judgment.' " (Forman v. Knapp Press, supra, 173 Cal.App.3d at p. 203.) Rodriguez did not ask the court to enter another and different judgment; rather, he sought an order that would allow his case to continue in an impartial court. (Ibid.; compare Howard v. Lufkin (1988) 206 Cal.App.3d 297, 303 [pleading was clearly a motion to vacate judgment under section 663 by asserting trial court's decision was against the law and requesting relief that the judgment entered should be vacated and a new judgment entered in its place].)

There are two recognized exceptions to the general rule of nonappealability of orders denying nonstatutory motions: (1) where the underlying judgment is void; or (2) where the defendant has no meaningful opportunity to appeal from the judgment. (Carlson v. Eassa, supra, 54 Cal.App.4th at p. 691; In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1043.) Neither exception, however, applies to permit Rodriguez's purported appeal from the court's January 28, 2005 order. The underlying judgment was not void; it was a valid dismissal without prejudice based on Rodriguez's failure to amend his complaint within the time period given, and Rodriguez had notice and an opportunity to be heard before the dismissal. (Cf. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193.) Rodriguez also had a meaningful opportunity to appeal from the order dismissing his case. The court adequately stated grounds for Rodriguez's appeal from its involuntary dismissal, namely that Rodriguez had failed to file an amended complaint within the given time period. (See In re Marriage of Brockman, supra, 194 Cal.App.3d at 1043 [An exception lies where there is "no effective appeal from the judgment," such as where the trial court did not state grounds for appeal].) Absent these circumstances, no appeal will lie from the court's order denying Rodriguez's nonstatutory motion.

In contending that the court's January 28, 2005 order denying Rodriguez's motion is not final and appealable, defendants focus on the court's designation of its order as "without prejudice." We agree the order is interlocutory and therefore not appealable under section 904.1, subsection (a), however, the mere fact the court used the phrase "without prejudice" is not dispositive of the order's finality. "[A]n appellate court must determine from the substance and effect of the order or judgment wither it is final or interlocatory. The label placed upon the order or judgment the trial court is not conclusive." (Peninsula Properties Co. v. Santa Cruz County (1951) 106 Cal.App.2d 669, 678.)

Here, the court's order was based on procedural deficiencies alone: lack of service and the absence of points and authorities. The order allowed Rodriguez to refile his motion following proper procedural requirements. In short, the substance and effect of the court's order contemplated further action by Rodriguez. Under the circumstances, we cannot conclude it is a final order. (See Jacobs-Zorne v. The Superior Court of Los Angeles (1996) 46 Cal.App.4th 1064, 1070.)

Rodriguez has asked in the alternative that we treat his appeal as a petition for an extraordinary writ. An appellate court, in its discretion, may treat the nonappealable order as a writ in "limited situations . . . where (1) the briefs and record contain in substance all the elements prescribed by rule 56 of the California Rules of Court for an original mandate proceeding and (2) there are extraordinary circumstances justifying the exercise of that discretionary power." (Coronado Police Officers Ass'n v. Carroll (2003) 106 Cal.App.4th 1001, 1006.) Here, Rodriguez has not supported his request with argument or authority sufficient to satisfy either prong of this test. (Cal. Rules of Court, rule 56 (b).)^[7] The trial court granted Rodriguez at least one opportunity to cure the defects in his complaint and he could have filed a properly noticed and supported motion to vacate the dismissal of his case. Rodriguez has not shown "unusual or compelling circumstances" to justify treating this appeal as a writ. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1294.)

DISPOSITION

The appeal is dismissed. Defendants shall recover their costs on appeal.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] Rodriguez's notice of appeal states he appeals from "the proposed judgment upon the court's ruling on 01/28/05." Because Rodriguez has unambiguously identified the date of the court's order that he is challenging, we do not construe his appeal as from the court's earlier order of dismissal. Although generally a notice of appeal must be liberally construed, this rule does not apply when the appellant's intention to appeal from a judgment or order is clear. (Cal. Rules of Court, rule 1(a)(2); Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.)

^[2] The record contains an earlier April 2003 order granting Rodriguez's request to file a second amended complaint. It is not clear from the record whether Rodriguez in fact filed a second amended pleading, and whether defendants demurred from that or some other pleading. The point is not material to our discussion, however. The relevant fact is that Rodriguez was given an opportunity but did not amend his operative pleading.

^[3] All statutory references are to the Code of Civil Procedure unless otherwise stated.

^[4] Section 473, subsection (b) provides in part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."

^[5] Section 663 provides in part: "A judgment or decree, when based upon a decision by the court . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, . . . materially affecting the substantial rights of the party and entitling the party to a different judgment . . . [for an] [i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts."

^[6] We observe that contrary to Rodriguez's assertion, the record suggests he indeed had actual notice of the date by which he was to file an amended complaint; the court identified the date in its order granting Rodriguez leave to amend after a telephonic hearing at which Rodriguez appeared.

^[7] We note that throughout his briefing, Rodriguez has not complied with court rules as by citing to the record, and he has not advanced any pertinent or intelligible legal argument regarding the court's error in denying his motion to vacate the dismissal of his case or any other issue. Had we reached the merits, we would have rejected his appellate arguments on these grounds alone. (See Cal. Rules of Court, rule 14(a)(1)(C); Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 827 fn. 1; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.)