Morton v. Wagner

• Decision Date: 07 November 2007
• Docket Number: No. H028942.,H028942.
• Citation: 67 Cal.Rptr.3d 818,156 Cal.App.4th 963
• Court: California Court of Appeals Court of Appeals
• Parties: Gail MORTON, Plaintiff and Respondent, v. Walter L. WAGNER, Defendant and Appellant.

67 Cal.Rptr.3d 818

156 Cal.App.4th 963

Gail MORTON, Plaintiff and Respondent, v. Walter L. WAGNER, Defendant and Appellant.

No. H028942.

Court of Appeal, Sixth District.

November 7, 2007.

Walter L. Wagner, pro se.

David W. Brown, Monterey, for Plaintiff and Respondent Gail Morton.

RUSHING, P.J.

The trial court issued an injunction pursuant to Code of Civil Procedure section 527.6, prohibiting appellant, Walter L. Wagner from harassing respondent, Gail Morton. Appellant did not appeal that order. Instead, appellant filed a motion for reconsideration, which the trial court later denied by an order consisting of two parts. In one part, the court denied the motion to reconsider. In the other part of the order, the court designated the appellant a vexatious litigant. Appellant now appeals from both portions of the order. While the appeal was pending, this court requested that the appellant show cause as to why his appeal should not be dismissed as not timely filed. After the parties submitted letter briefs, the court ordered this issue considered with the substantive appeal after full record preparation and briefing. As an order denying a motion for reconsideration is not an appealable order, we will dismiss the appeal from that portion of the trial court's order. We consider the appeal from that portion of the order designating the appellant a vexatious litigant and reverse that order.

FACTUAL AND PROCEDURAL BACKGROUND

Because of ongoing harassment dating back to the 1970's when both appellant and respondent were in law school together, the trial court in 2001 issued a three year injunction requiring the appellant to stay at least 100 yards away from respondent. We affirmed that injunction on appeal.¹ Before that injunction expired on its own terms, the respondent petitioned the trial court to issue another injunction. The trial court granted that petition on January 24, 2005. Appellant timely moved for reconsideration of that order.

In addition to opposing the motion to reconsider, the respondent filed a motion to have the appellant deemed a vexatious litigant. The trial court stayed consideration of the motion for reconsideration until it could consider the vexatious litigant motion. On May 10, 2007, nearly four months after the entry of judgment, the trial court entered an order denying the motion for reconsideration, and declaring the appellant to be a vexatious litigant, subject to the prefiling order requirement of Code of Civil Procedure section 391.7.

Appellant's notice of appeal, filed June 7, 2005, purports to appeal from "the decision and order ... denying reconsideration ..." and the "decision granting issuance of a pre-filing order." Appellant's civil case information statement states that he is appealing from a judgment after court trial. After we received the notice of appeal and civil case information statement, we issued a notice to appellant stating that his appeal may be untimely. Both appellant and respondent responded to that notice. After considering each party's response, we directed the appeal to proceed, and ordered both the timeliness and appealability issues to be considered with the substantive appeal.

DISCUSSION

Appellant has not Appealed the Judgment

Despite appellant's statement to the contrary in the civil case information statement, he has not appealed the judgment granting the petition for an injunction. His notice of appeal identifies only the order denying the motion for reconsideration and designating him a vexatious litigant as the order from which the appeal is taken. While a notice of appeal must be liberally construed, it is the notice of appeal which defines the scope of the appeal by identifying the particular judgment or order being appealed. (Cal. Rules of Court Rule 8.100(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59, 10 Cal.Rptr. 161, 358 P.2d 289; D'Avola v. Anderson (1996) 47 Cal.App.4th 358, 361-362, 54 Cal. Rptr.2d 689.) Care must be taken in drafting the notice of appeal to identify the order or judgment being appealed so as not to mislead or prejudice the respondent. (See D'Avola v. Anderson, supra, 47 Cal. App.4th at 361-362, 54 Cal.Rptr.2d 689, citing 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 372, p. 374.) The notice here specifically and clearly excluded the judgment from the subject of the appeal. Even construing the notice of appeal liberally, we cannot construe it to include an appeal from the judgment because doing so would be prejudicial to the respondent. (Luz v. Lopes, supra, 55 Cal.2d at p. 59, 10 Cal.Rptr. 161, 358 P.2d 289.) Therefore, on appeal, we will address only the order denying the motion for reconsideration and deeming the appellant a vexatious litigant.²

The Order Denying the Motion to Reconsider is not an Appealable Order.

Although the notice of appeal from the order denying the motion to reconsider was timely, respondent argues that the appeal from that order must be dismissed because it is not an appealable order. Appellant urges us to exercise our discretion to consider the trial court's order denying his motion for reconsideration to be appealable.

There is a split of authority as to whether an order denying a motion for reconsideration is separately appealable. (In re the Marriage of Burgard (1999) 72 Cal. App.4th 74, 80-81, 84 Cal.Rptr.2d 739.) The relatively recent enactment of rule 8.108(d) did not resolve this split of authority. The Advisory Committee comment to rule 8.108(d) of the California Rules of Court states that the revised rule takes no position on "whether an order denying a motion to reconsider is itself appealable (compare Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710-711, 269 Cal.Rptr. 605 [order appealable if motion based on new facts] with Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d [1151,] 1160-1160, 250 Cal. Rptr. 435 [order not appealable under any circumstances])." The Advisory Committee comment states that whether such an order is separately appealable is a "legislative matter[ ]." (Advisory Com. com., California Rules of Court, rule 8.108(d).) The legislature has yet to take a position on whether an order from a motion to reconsider is separately appealable.

Therefore, we must determine whether the order denying reconsideration should be considered an appealable order. The majority of recent cases have concluded that orders denying motions for reconsideration are not. appealable, even where based on new facts or law. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459, 30 Cal.Rptr.3d 914; see also In re Marriage of Burgard, supra, 72 Cal. App.4th at pp. 80-81, 84 Cal.Rptr.2d 739.) 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." (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242, 87 Cal. Rptr.2d 346; see also Crotty v. Trader (1996) 50 Cal.App.4th 765, 769, 57 Cal. Rptr.2d 818; Hughey v. City of Hayward (1994) 24 Cal.App.4th 206, 210, 30 Cal. Rptr.2d 678; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 333, fn. 1, 60 Cal. Rptr.2d 539; Estate of Simoncini (1991) 229 Cal.App.3d 881, 891, 280 Cal.Rptr. 393; In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1550, fn. 2, 267 Cal.Rptr. 764.) Nothing in the circumstances of this case persuades us to disregard the reasoning of those cases. We conclude the trial court's order denying appellant's motion for reconsideration is not an appealable order. (Annette F. v. Sharon S., supra, 130 Cal. App.4th at p. 1459, 30 Cal.Rptr.3d 914.)

Here, the trial court concluded that appellant's motion was not based on new facts or law, stating that appellant, "failed to satisfy the requirements of [California] Code of Civil Procedure [section] 1008. Instead, [appellant] argued the evidence did not support the issuance of an injunction and disputed the veracity of facts that supported the [Respondent's] initial application for a restraining order." As the motion to reconsider was not based on new facts or law, the appeal as to that order must be dismissed in its entirety as taken from a nonappealable order.

Order Designating Appellant a Vexatious Litigant

In addition to denying the motion for reconsideration, the trial court issued an order declaring the appellant a vexatious litigant. Appellant contends that this order was improper. We review the trial court's ruling that plaintiff is a vexatious litigant for substantial evidence. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219, 120 Cal.Rptr .2d 879 (Bravo).) Because the trial court is best situated to receive evidence and hold hearings on the question of whether a litigant is vexatious, on appeal, we are required to presume the order declaring a litigant vexatious is correct and to imply findings necessary to support that designation. (Bravo, supra, 99 Cal.App.4th at p. 219, 120 Cal.Rptr.2d 879.) Of course, we can only imply such findings where there is evidence to support them. Where there is insufficient evidence to imply findings in support of the designation, reversal is required. (Roston v. Edwards (1982) 127 Cal.App.3d 842, 848, 179 Cal.Rptr. 830.)

Evidence that a litigant is a frequent plaintiff or defendant alone is insufficient to support a vexatious litigant designation. (Rostov, v. Edwards, supra, 127 Cal.App.3d at 847, 179 Cal.Rptr. 830.) "[A] person is not a vexatious litigant unless a court has found that he comes within the definitions of [Code of Civil Procedure] section 391." (Ibid.)³ That section sets forth four separate definitions of vexatious litigant. A court must find that the litigant falls under one of the four. Here, the trial court found that appellant fell under the definition of vexatious litigant set forth in Code of Civil...