Blue Mountain Development Co. v. Carville

Decision Date22 June 1982
Citation132 Cal.App.3d 1005,183 Cal.Rptr. 594
PartiesBLUE MOUNTAIN DEVELOPMENT COMPANY, a Cal. corp., etc., Plaintiff and Appellant, v. Chester CARVILLE, et al., Defendants and Respondents. Civ. 25821.
CourtCalifornia Court of Appeals Court of Appeals
OPINION

TROTTER, Associate Justice.

The application of Blue Mountain Development Company (Blue Mountain), a judgment creditor, for a writ of execution on a dwelling (Code Civ.Proc., § 690.31, subd. (c)) was denied by the court below. Blue Mountain filed a motion for reconsideration (Code Civ.Proc., § 1008), and this motion was also denied. Blue Mountain has attempted to appeal from both rulings but we conclude, for the reasons stated below, that the appeal from the denial of the original application is untimely. We also conclude that the motion for reconsideration was properly denied because the application was not "based upon an alleged different state of facts."

FACTS

Blue Mountain obtained by assignment judgments against Larry Duff for $1,569.11 and $4,274.78. Abstracts of the two judgments were recorded in San Bernardino County in May 1979. In April 1979, one month earlier, Larry and Jean Duff, as husband and wife, had recorded a declaration of homestead on certain real property in Big Bear City. In July 1979, Larry and Jean Duff sold this property to Chester and Suzanne Carville.

Over a year later, in December 1980, Blue Mountain applied for a writ of execution. In the application, Blue Mountain maintained that the Carvilles took the property subject to judgment liens resulting from the recording of the abstracts of the two judgments it had obtained by assignment. Regarding the declaration of homestead recorded by Larry and Jean Duff, Blue Mountain alleged on information and belief that "Larry Duff neither resided on said homestead premises nor was said Larry Duff married at the time said homestead was filed or recorded," and consequently the declaration was invalid.

The Carvilles opposed the application. They maintained they were good faith purchasers as to whom the declaration of homestead was "conclusive evidence" of the facts stated therein. (See Civ.Code, § 1263, subd. 4.) The application for writ of execution was heard and denied on February 10, 1981. The Carvilles mailed a notice of ruling to counsel for Blue Mountain on the following day.

On February 20, 1981, Blue Mountain filed a motion for reconsideration. The motion was supported by the declaration of one A. L. Sullivan, who stated that he was "associated with" Blue Mountain and that on September 1, 1980, Chester Carville had stated to him that "when he and his wife took possession of their home at ... Big Bear City, California from Larry and Jean Duff that it was uninhabitable." Blue Mountain argued that this evidence proved the Carvilles were not good faith purchasers but rather they had purchased the property with notice of the falsity of the statement in the declaration of homestead that Larry and Jean Duff were residing on the premises.

The motion for reconsideration was heard and denied on March 10, 1981. The notice of appeal "from the order denying writ of execution on a dwelling house and the order denying reconsideration of said ruling" was filed almost two months later, on May 6, 1981.

APPEAL FROM ORIGINAL RULING IS UNTIMELY

A motion for reconsideration under Code of Civil Procedure section 1008 is treated for purposes of rule 3 of the Rules of Court in the same manner as a motion for new trial or a motion to vacate. (Dockter v. City of Santa Ana (1968) 261 Cal.App.2d 69, 74, 67 Cal.Rptr. 686.) In other words, subject to the qualifications stated in rule 3, the timely filing of a motion to reconsider normally extends the time for filing a notice of appeal from the original ruling until 30 days after entry of the order denying reconsideration. 1

As Blue Mountain filed a timely motion to reconsider the denial of its application for writ of execution, the time for filing a notice of appeal from the original ruling was extended until 30 days after entry of the order denying reconsideration. That order was entered on March 10 but the notice of appeal was not filed until May 6, well beyond the 30-day limit. The notice of appeal was also untimely under rule 2 of the Rules of Court because the 60-day period under rule 2 began to run when notice of the ruling on the original application was mailed on February 11 and it expired long before the notice of appeal was filed on May 6. Accordingly, the appeal from the order denying the application for writ of execution is untimely and the appeal must be dismissed.

ORDER DENYING RECONSIDERATION IS APPEALABLE

Section 904.1 of the Code of Civil Procedure lists the superior court orders and judgments which are appealable. Orders on reconsideration motions are not specifically listed and the only category in which they might be included is "an order made after a judgment." (Code Civ.Proc., § 904.1, subd. (b).) Whether this category applies depends, in turn, on whether the order as to which reconsideration is sought is a judgment. If the original ruling is not final and appealable in its own right, then it is not a judgment and an order denying reconsideration cannot be appealable. "[A]n appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion." (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 43-44, 162 P.2d 8.) An order denying an application for a writ of execution on a dwelling is appealable (Code Civ.Proc., § 690.31, subd. (n)) and therefore the order denying reconsideration may be treated as an order made after judgment.

Even though the original ruling was embodied in an appealable order, an order denying reconsideration may still not be appealable if the reconsideration motion was based on exactly the same showing offered in support of the original application. (Dockter v. City of Santa Ana, supra, 261 Cal.App.2d 69, 75, 67 Cal.Rptr. 686. See also, Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 358, 110 Cal.Rptr. 353, 515 P.2d 297; Litvinuk v. Litvinuk, supra, 27 Cal.2d 38, 44, 162 P.2d 8.) In the present case, however, Blue Mountain's reconsideration motion was supported by additional evidence in the form of the declaration by A. L. Sullivan.

The Carvilles have cited Lavrischeff v. Blumer (1978) 77 Cal.App.3d 406, 143 Cal.Rptr. 567, and Farrar v. McCormick (1972) 25 Cal.App.3d 701, 102 Cal.Rptr. 190, for the proposition that orders denying reconsideration motions are not appealable. In those cases, however, litigants sought reconsideration of motions granted in favor of the opposing parties. Because former section 1008 authorized reconsideration only of an order denying rather than granting a motion, the reviewing courts concluded that the reconsideration motions were unauthorized and therefore the orders denying them were nonappealable.

These holdings have been rendered obsolete by the repeal and reenactment of section 1008 effective January 1, 1979. As it now reads, section 1008 does authorize a motion to reconsider an order granting a motion, and thus the rationale of Lavrischeff and Farrar is no longer valid. That rationale would not in any event apply to the present action because Blue Mountain sought reconsideration of the order denying its earlier motion.

Of course, care should be taken to distinguish a court's decision for or against reconsideration from its decision after reconsideration. If a litigant seeks reconsideration of an order denying a motion, such as a motion to intervene, the trial court may sometimes enter an order "denying reconsideration" when it is plain from the record that the first motion was denied without prejudice and the second ruling was intended to be a ruling on the merits of the motion for intervention rather than simply a denial of reconsideration. (See, e.g., Linder v. Vogue Investments, Inc. (1966) 239 Cal.App.2d 338, 339, fn. 1, 48 Cal.Rptr. 633; Majors v. County of Merced (1962) 207 Cal.App.2d 427, 435, 24 Cal.Rptr. 610; Carver v. Platt (1960) 179 Cal.App.2d 140, 142, 3 Cal.Rptr. 687; Bice v. Stevens (1958) 160 Cal.App.2d 222, 225-226, 325 P.2d 244.) To prevent confusion, trial court orders "denying reconsideration" should be restricted to instances where the court's ruling is based on failure to comply with the requirements of section 1008. In the present case, we presume in the absence of any contrary indication that this was the basis of the court's ruling.

This court has previously remarked that former section 1008 "did not purport to be an authorization statute nor did it purport to prescribe the requirements for a motion to renew." (Lopez v. Larson (1979) 91 Cal.App.3d 383, 393, 153 Cal.Rptr. 912.) However, section 1008 as reenacted now employs language of authorization (i.e., "any party ... may ... make application ... to reconsider the matter...."), and its provisions are properly viewed as requirements although, as we explain infra, a trial court may reconsider an interim ruling even though the requirements are not met.

Because the motion authorized by section 1008 is a statutory method for challenging an appealable order in the court rendering the order, an order denying reconsideration is appealable, subject to the qualifications previously stated. (See Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 282, 153 P.2d 714; 6 Witkin, Cal. Procedure (2d ed.) Appeal, § 94, pp. 4100-4102.) We conclude that the order denying Blue Mountain's reconsideration motion is appealable as an order made after judgment.

MOTION NOT SUPPORTED BY DIFFERENT STATE OF FACTS

Section 1008, subdivision (a), now provides: "When an application for an order has been made to a judge, or to the court...

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