Leticia V.
v. Jonathan A.
Filed
8/14/13 Leticia V. v. Jonathan A. CA2/7
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SEVEN
LETICIA V.,
Petitioner
and Appellant,
v.
JONATHAN A.,
Respondent.
B233650
(Los
Angeles County
Super. Ct. No.
VF007381)
APPEAL from an order of
the Superior
Court
of
Los
Angeles County, Brian Gasdia, Judge. Appeal dismissed.
David S.
Karton for Petitioner and Appellant.
Bruce
Adelstein for Respondent.
______________________________________
Appellant
Leticia V. appeals from the order denying her motion to reconsider: (1) an order denying a motion to vacate a
stipulation she was not married to respondent Jonathan A.; and (2) a request
for attorney’s fees. As will be
discussed, this court does not have jurisdiction to reach the merits of the
issues on appeal because appellant is appealing from a non-appealable
order. Accordingly, we dismiss the
appeal.
Background
In 2004, appellant and respondent
participated in a wedding ceremony in Dana Point, California. The couple obtained their marriage license in
California in October, and held a ceremony in
November. Only the officiating deacon
signed the license; no witness at the wedding signed the document. They also failed to include the month, day,
year, city or town, or country of the ceremony.
On December 27, 2004, the Los Angeles County Recorder
sent both parties a notice the license had not been recorded and was expiring
soon. However, the marriage license was
never returned and never recorded with the County Recorder.
In August 18,
2005, the
parties applied for a second marriage license which they did not complete or
return, and for which they did not participate in a second marriage
ceremony. The parties had a child in
August 2005.
The Stipulation
After disputes arose over where the
couple would live and raise their child, both parties filed for dissolution of
the marriage in 2007. Respondent filed
for marital dissolution in Illinois, and appellant filed for dissolution
in Los Angeles County.
Appellant also filed a paternity action in the Los Angeles County
Superior Court.
In 2008 the parties entered into a
stipulation stating they were never married.
The parties also agreed to dismiss their respective dissolution actions with
prejudice. Pursuant to the stipulations
and the request of the parties, the court in California and the court in Illinois dismissed the dissolution actions
with prejudice. The paternity case
remained open.
Motion to Vacate and
First Motion for Reconsideration and Appeal
On February 3,
2010, two
years later, appellant filed a motion to vacate the stipulation and the order
of dismissal. Appellant argued that the
stipulation was either void or voidable as against public policy because as a
matter of law the parties could not stipulate to the legal conclusion that they
were never married. After oral argument,
the trial court took the motion under submission.
On April 28,
2010, the
trial court denied appellant’s motion to vacate the stipulation. In denying the motion, the trial court cited
Family Code section 306 and Estate of
DePasse (2002) 97 Cal.App.4th 92, in its “Statement of Decision,†finding a
marriage must be licensed and solemnized, with the license authenticated and
returned to the county reporter. The
trial court further noted that while the failure of a nonparty to comply with these requirements will not make the
marriage void, the failure of the parties
to the marriage will.
On May 10, 2010, appellant filed a motion for the
trial court to reconsider its April 28, 2010 order. Appellant argued that the legal authority the
court had relied upon to deny the order to vacate was inapplicable. At a hearing on July 20,
2010, the
trial court clarified that its earlier “Statement of Decision†had been a
tentative ruling. Nonetheless, the court
reaffirmed its prior decision.
On September
15, 2010,
appellant filed a notice of appeal
from the trial court’s July 20, 2010 order. This Court sent appellant a letter informing
her that an order denying a motion for reconsideration was not an appealable
order. On October 13,
2010,
appellant abandoned her appeal.
Request for
Attorney’s Fees
During the 2007-2010 time period, the
parties engaged in litigation regarding paternity, child support and custody
issues. Appellant sought attorney’s fees
from respondent in connection with these matters. Specifically in September 2009, appellant was
awarded $150,000 pendent lite attorney’s fees.
Thereafter, respondent sought to reduce or reschedule the attorney’s fee
payment. In June 2010, the court denied
the request. Thereafter appellant filed
a supplemental request for attorney’s fees seeking $350,000 in fees. On September 20, 2010 the trial court heard arguments and
received respondent’s income and expense declaration to determine the need for
attorney’s fees, their basis, the amount sought, and the necessity of the
award.
On November 4,
2010, the
court awarded appellant an additional $45,000 in fees.
Appellant’s February
2011 Motion
On February 3,
2011,
appellant filed a motion in the trial court to “vacate prior denial of motion
to vacate stipulation . . . .â€
Specifically, the motion requested that the court “review and/or
reconsider†the April 28, 2010 order denying the motion to vacate the
stipulation that the parties were never married, and the May 10, 2010 motion
(which sought reconsideration of the
April 28, 2010 decision) based on In re
Marriage of Cantarella (2011) 191 Cal.App.4th 916. Appellant argued that Cantarella constituted new law regarding the legal requirements for
a valid marriage. In support of her
request appellant relied on Code of Civil Procedure section 1008.
Appellant’s February 3, 2011 motion
also sought reconsideration of the November 4, 2010 attorney’s order: “[t]he Court is requested to explain more
fully, in response to [appellant’s] more detailed presentation below, the basis
and scope of the Court’s fee award of $45,000, as set forth in its ‘Ruling On
Submitted Matter,’ entered November 4, 2010.â€
In addition, appellant asked the court to reconsider the amount of the
award and to increase the amount to $340,000 based on the evidence presented in
connection with the original request.
of the attorney’s fee order, appellant cited to Code of Civil Procedure section
1008, and in the alternative to In re
Marriage of Hobdy (2004) 123 Cal.App.4th 360 [holding that Code of Civil
Procedure section 1008 does not apply to renewed fee requests brought under
Family Code section 2030]. In response
to respondent’s argument that appellant had not provided a new income and
expense declaration or complied with the rules of court to support a new or
renewed fee request under Family Code section 2030, appellant clarified that
she had not filed a new fee request, but
instead that she had simply asked the trial court to clarify, and/or review the
“prior fee request. If the Court chooses
to do as Leticia has requested, no further evidence (such as a ‘new’ Income and
Expense . . . Declaration) would be proper.â€
During the hearing on the motion, the
trial court acknowledged Cantarella
constituted new law. Nonetheless, in the
July 29, 2011 order, the trial court denied the motion, ruling that
court also rejected appellant’s arguments concerning the attorney’s fees
request and denied appellant additional fees.
Appellant timely filed an appeal of
the July 29, 2011 order.
Appellant’s appeal centers on two
issues: (1) whether the trial court properly denied her motion to reconsider
the order denying the motion to vacate the stipulation; and (2) whether the
trial court properly denied her requests for attorney’s fees. We address these matters in turn.
I.
Stipulation
Code of
Civil Procedure section 904.1 governs appealablity of orders and
judgments. (Code
Civ. Proc., § 904.1.)
name="_ftnref3" title="">[3]
Respondent contends that this court does not have jurisdiction to decide
the merits of this appeal because the July 29, 2011 order is not an appealable order
under Code of Civil Procedure section 904.1.
According to respondent, under prevailing case law trial court orders
denying reconsideration brought under Code of Civil Procedure 1008
are not appealable under any circumstance.
In general
an order denying a motion for reconsideration is not appealable, even when the
motion is based on new facts or law. In
Cal.App.4th 1573, 1576-1577, our colleagues in the Court of Appeal, Fourth
District observed: “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. [Citations.]
‘These courts have concluded that orders denying reconsideration are not
appealable because ‘Section 904.1 of the Code of Civil Procedure does not
authorize appeals from such orders, and to hold otherwise would permit, in
effect, two appeals for every appealable decision and promote the manipulation
of the time allowed for an appeal.’
[Citation.]†(
Cal.App.4th at pp. 1576-1577.) Indeed,
Division Two of the First District Court of Appeal adhered to this view in
765. There, the court concluded
reconsideration orders are non-appealable because otherwise a “party would have
two appeals from the same decision.†(
motion for reconsideration is not appealable, even when based on new facts or
law.†(Powell v. County of Orange, supra, 197 Cal.App.4th at p. 1576.)
Moreover, in
Tate v. Wilburn (2010) 184
Cal.App.4th 150, the appellate court concluded that reconsideration orders on
motions filed pursuant to section 1008, subdivision (b), like those filed
pursuant to section 1008, subdivision (a), are nonappealable. The court stated: “As indicated by the text
of section 1008, motions for reconsideration under section 1008, subdivision
(a), and renewed motions under section 1008, subdivision (b) are closely
related. [Citation.] A party filing either a motion under section
1008, subdivision (a) or (b) is seeking a new result in the trial court based
upon ‘new or different facts, circumstances, or law.’ [Citation.]â€
(Tate v. Williams, supra, 184
Cal.App.4th at pp. 159-160.) The court
further stated the policy underlying the rule that orders denying motions for
reconsideration under section 1008, subdivision (a) are non-appealable—i.e.,
“to eliminate the 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 – apply with equal force to an order denying a renewed motion pursuant
to section 1008, subdivision (b).†(
that a party may obtain an unwarranted extension of time to appeal is actually
more of a concern with respect to a renewed motion under section 1008,
subdivision (b), in light of the fact that such a motion may be brought at any
time, while a motion for reconsideration [under subdivision (a) ] must be
brought ‘within 10 days after service upon the party of written notice of entry
of the [underlying] order.’
[Citation.]†(
We agree with the rationale expressed in the Tate decision and adopt it here.
Here
although labeled as a motion to “vacate prior denial of motion to vacate
stipulation based on new case,†appellant sought “review and/or
reconsider[tion]†of the April 28, 2010 order denying of the motion to vacate
the stipulation that the parties were never married, and (2) the May 10, 2010
motion to review and reconsider the April 28, 2010 decision. Appellant cited Code of Civil Procedure
section 1008 as the legal basis to reconsider these orders. In view of these circumstances, and based on
the authorities discussed above, we conclude the trial court’s order denying
appellant’s motion filed pursuant to section 1008 (whether characterized a
motion for reconsideration under subdivision (a) or a renewed motion under
subdivision (b)
title="">[5]) is a nonappealable
order. Accordingly, we lack jurisdiction
to address the merits and must dismiss the appeal.
In reaching
this conclusion we reject appellant’s argument that we should reach the merits
of the motion because the lower court considered them. The court in Tate considered this same argument: “[w]e also reject [appellant’s]
argument that because the trial court considered his renewed motion on the
merits, ‘[t]his created an appealable order in and of itself, regardless of
whether an order on a motion to renew is appealable.’ The fact that the trial
court considered the matter on the merits does not establish that this court
has appellate jurisdiction over [appellant’s] appeal.†We agree with this analysis.
the order denying the February 3, 2011 motion to vacate the stipulation.
II. Reconsideration of Attorney’s Fees
Order
Respondent also
asserts that appellant cannot maintain her appeal of the attorney’s fees
order. Respondent argues that the order
denying fees was a denial of a motion for reconsideration of the November
4, 2010
order. Before this court, appellant
responds that her February 3, 2011 motion for attorney’s fees was not a
motion for reconsideration of the prior fees order. Instead, she argues that it was an entirely
separate and new motion, which is appealable under In re Marriage of Hobdy (2004) 123 Cal.App.4th 360 (
Under the circumstances of this case, respondent has the better
argument.
Family Code
section 2030, subdivision (a)(1) provides that “the court shall ensure that
each party has access to legal representation to preserve each party’s rightsâ€
by ordering one party to pay to the other party, “whatever amount is reasonably
necessary for attorney’s fees and for the cost of maintaining or defending the
proceeding during the pendency of the proceeding.†Subdivision (c) of Family Code section 2030
provides, “The court shall augment or modify the original award for attorney’s
fees and costs as may be reasonably necessary for the prosecution or defense of
the proceeding, or any proceeding related thereto, including after any appeal
has been concluded.†A party may move
for “a temporary order making, augmenting, or modifying an award of attorney’s
fees, including a reasonable retainer to hire an attorney, or costs or bothâ€
under Family Code section 2031, subdivision (a)(1). Family Code section 2031, subdivision (b)(1)
allows such a motion to be made orally, without notice, “[a]t the time of the
hearing of the cause on the merits.â€
It is clear
from the statutory language that a party may bring more than one motion for
attorney fees under Family Code sections 2030 and 2031. Family Code section 2031 refers to temporary
orders “augmenting, or modifying†an attorney fees award, and Family Code
section 2030, subdivision (c) provides that the court may augment or modify the
original award “as may be reasonably necessary.†What is reasonably necessary at one point may
be different than what becomes reasonably necessary as the litigation
progresses. Thus, the clear intent of
these provisions is that a party is not limited to but one motion for fees.
In
second motion under Family Code section 2030 after denying the first. On appeal, the husband argued that the trial
court did not have jurisdiction to rule on the second motion as it was a motion
for reconsideration that did not conform to the jurisdictional requirements for
reconsideration motions found in Code of Civil Procedure section 1008. (Id. at
p. 364.) The appellate court rejected
the argument, holding that Family Code section 2030 prevailed over the more
general statute so that subsequent fee motions need not comply with Code of
Civil Procedure section 1008.
attorney fees motions can never be construed as
It is
generally true that an order pertaining to a request for pendente lite attorney
fees “possesses the essential elements of a final judgment,†which is
appealable under Code of Civil Procedure section 904.1, subdivision (a). (In re
Marriage of Skelley (1976) 18 Cal.3d 365, 368.) On the other hand, as discussed elsewhere
here, an order denying a motion for reconsideration is not appealable.
Since Family
Code section 2030 allows the court to augment or modify an order for fees as
“reasonably necessary,†a renewed motion seeking fees that have become
reasonably necessary would not, strictly speaking, be a motion for
reconsideration of a prior order so that the court’s ruling as to it would be
appealable for the reasons described in In
re Marriage of Skelley,
under the same circumstances, merely because she is unhappy with the court’s
original order, the motion is, in substance and effect, a request that the court
reconsider its prior ruling. (See
(1960) 177 Cal.App.2d 600, 603 [“The nature of a motion is determined by the
nature of the relief sought, not by the label attached to itâ€].) Even if Hobdy
is correct that Code of Civil Procedure section 1008 does not deprive the trial
court of jurisdiction to rule upon such a motion, where the trial court refuses
to reconsider and change its prior decision, the court’s order is still an
order denying a motion for reconsideration.
Allowing the litigant to appeal the ruling would give her two appeals
from the same order.
Appellant’s
February 3, 2011 motion for attorney fees was brought asserting the same
circumstances to those under which she made the prior motion, asking the court,
in effect, “to reconsider the matter and modify, amend, or revoke†the November
4, 2011 order. (Code Civ. Proc., § 1008,
subd. (a).) The February
3, 2011
motion was not different from the prior motion.
It was not triggered by the occurrence of a different proceeding. In fact when respondent asserted that
appellant could not seek additional fees in the February 3, 2011 motion because
she had not prepared the required income and expense declaration or complied
with the rules of court for a fee request, appellant responded that she was not
required to do so because it was not a new request for fees—the court could
consider the motion based on the facts in the record at the time of the prior
ruling. This argument is self-defeating
because it demonstrates that, in substance, the February 3,
2011 motion
for attorney fees, was a motion for reconsideration of the November
4, 2010
order. Appellant had an opportunity to
appeal from that original fee order but did not do so. If the trial court’s July
29, 2011
order denying the February 3, 2011 motion were appealable, appellant
would, in effect, have two opportunities to appeal from the same order. We
conclude, therefore, that the trial court’s denial of the February
3, 2011
motion was the denial of a motion for reconsideration and is not
appealable.
The appeal is
dismissed. Respondent is awarded
WOODS,
J.
We concur:
PERLUSS, P. J. ZELON,
J.
name="_ftn1" title="">
[1] In the
November
4, 2010 order the trial court
also ruled on a pending Order to Show Cause and respondent’s motion to compel
discovery responses and appellant’s request for sanctions against
respondent.
name="_ftn2" title="">
[2] Appellant
also asked the court to reconsider the aspect of the November 4, 2010 order that concerned the motion to compel and her
request for sanctions against respondent in connection with the motion to
compel. These matters are not before us
on appeal.
