Passavanti v. Williams

• Decision Date: 10 December 1990
• Docket Number: No. E007110,E007110
• Citation: 225 Cal.App.3d 1602,275 Cal.Rptr. 887
• Parties: Jose PASSAVANTI, Plaintiff and Appellant, v. Erik WILLIAMS, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 887

275 Cal.Rptr. 887

225 Cal.App.3d 1602

Jose PASSAVANTI, Plaintiff and Appellant, v. Erik WILLIAMS, Defendant and Respondent.

No. E007110.

Court of Appeal, Fourth District, Division 2, California.

Dec. 10, 1990.

Certified for Partial Publication ^*.

[225 Cal.App.3d 1604] Edward K. Madruga, Indio, for plaintiff and appellant.

Sanger & Stein and Rick M. Stein, Palm Springs, for defendant and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

Plaintiff, Jose Passavanti, appeals from the judgment entered after the court granted defendant's third motion for summary judgment. We reverse, finding there are triable issues of fact.

I

TIMELINESS OF THE APPEAL

Before reaching the merits of the appeal, we must first determine whether the appeal was timely filed. The motion for summary judgment in this case was granted on June 14, 1989, and on June 19, 1989, an "Order Granting Motion For Summary Judgment And Judgment" was signed by the judge and filed. On the second page of this order and judgment, it is noted that the judgment was entered on the date filed, i.e., June 19th, in Judgment Book 144 at page 305. A conformed copy of this order and judgment was served on plaintiff on June 22, 1989. ¹

On July 5, 1989, plaintiff filed a "Notice of Motion and Motion for an Order Revoking Order Granting Defendant's Third Motion for Summary Judgment Made Pursuant To CCP Section 1008." The court denied this motion on August 16, 1989. On August 29, 1989, more than 60 days after service of the conformed copy of the judgment but within 30 days after the court denied the motion for reconsideration, plaintiff filed a notice of appeal from the judgment entered on June 19, 1989.

Under the California Rules of Court, ² a notice of appeal ordinarily must be filed within 60 days after written notice of entry of judgment has been served. (Rule 2.) Service of a conformed copy of the judgment indicating the judgment book and page on which the judgment has been entered is sufficient notice under rule 2(a). (National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 618, 206 Cal.Rptr. 696.) Rule 3 provides that the time within which to file a notice of appeal may be extended if a valid notice of intention to move for new trial or a valid motion to vacate the judgment or to vacate the judgment and enter a new and different judgment is filed. Here no motion for new trial or motion to vacate was filed and the question is whether a motion for reconsideration under Code of Civil Procedure section 1008 will extend the time in this case.

In prior decisions of this court, we have held that a motion for reconsideration of an appealable order will extend the time to file a notice of appeal from the order. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 250 Cal.Rptr. 435; Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 183 Cal.Rptr. 594; Dockter v. City of Santa Ana (1968) 261 Cal.App.2d 69, 67 Cal.Rptr. 686.) In reviewing these cases, it appears we made no distinction between final orders which are actually judgments and orders which clearly are not judgments but nonetheless are appealable. Upon further consideration, we now recognize that while Blue Mountain was correctly decided, Rojes and Dockter are incorrect to the extent they suggest that a postjudgment motion for reconsideration will extend the time to file a notice of appeal.

An "order" is defined in Code of Civil Procedure section 1003 as any "direction of a court or judge, made or entered in writing, and not included in a judgment...." ³ Since an application for an order is a motion (Code Civ.Proc., § 1003), another way of defining an order is the court's written ruling on a motion. A judgment on the other hand is the "final determination of the rights of the parties in an action or proceeding." (Code Civ.Proc., §§ 577, 1064.) Thus while there may be numerous orders made throughout a proceeding, there is only one judgment.

"[T]his basic distinction does not always hold true: Some determinations, though characterized as 'orders,' are in effect final judgments for purposes of appeal and res judicata. [Citation.] And some orders are not intermediate but are made after final judgment: e.g., orders granting or denying new trial, vacating judgment, and orders in connection with enforcement of judgments. [Citations.]" (7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 3, p. 454.) The distinction between orders and judgments is further blurred by the fact that certain orders, i.e., orders of dismissal, are considered the judgment (Code Civ.Proc., § 581d) and by the fact that sometimes the parties mislabel the judgment, referring to it instead as an order. The fundamental distinction remains, however, that a judgment, no matter how designated, is the final determination of the rights of the parties in an action. Thus, an "order" which is the final determination in the action is the judgment.

Absent express statutory authority, most orders are not appealable. The reason for this is the belief that piecemeal disposition and multiple appeals in a single action would be oppressive and costly and that a review of intermediate rulings should await the final disposition of the case, i.e., can be reviewed upon appeal from the judgment. (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 43, pp. 66-67.)

Perhaps most importantly in terms of the present case, orders and judgments are also distinguishable by the proper methods for attacking the order or judgment in the trial court. A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment. (Ten Eyck v. Industrial Forklifts (1989) 216 Cal.App.3d 540, 545, 265 Cal.Rptr. 29; Eddy v. Sharp (1989) 199 Cal.App.3d 858, 863, fn. 3, 245 Cal.Rptr. 211; Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 882, 213 Cal.Rptr. 547; 6 Witkin, Cal.Procedure (3d ed. 1985) Proceedings Without Trial, § 34, p. 349; 7 Witkin, Cal.Procedure (3d ed. 1985) Judgment, § 66, p. 500.)

In Verdier v. Verdier (1962) 203 Cal.App.2d 724, 22 Cal.Rptr. 93, the court held that under rule 3, a motion to vacate a preliminary injunction would extend the time within which to file a notice of appeal from the order granting the injunction. The only issue in Verdier was whether rule 3 applied to extend the time to appeal from a judgment only or whether it also authorized extensions of time to appeal from an order. As rule 40 defined judgment as including an order from which an appeal lies, the court in Verdier held that rule 3 applies to appeals from judgments and orders and that, therefore, the appeal from the order filed within 30 days after the court denied the motion to vacate was timely. (Id., at p. 732, 22 Cal.Rptr. 93.)

Relying on Verdier, this court, in Dockter, determined that a motion for reconsideration of an order denying a petition for relief from the Government Code claim filing requirements extended the time to appeal from the order. In reaching this result, we first determined that the "order" was actually a judgment in that it was a final determination of the parties' respective rights in the petition proceeding. With that determination, it should have followed that the motion for reconsideration, having been made after judgment was entered, was improper and therefore did not extend the time to appeal the judgment. Instead, we merely held that the motion for reconsideration extended the time to file a notice of appeal. By failing to distinguish an appealable order as in Verdier from a judgment, we erroneously implied that a motion for reconsideration is proper after judgment is entered and will extend the time for appeal of the judgment under rule 3.

We repeated our mistake in Rojes v. Riverside General Hospital, supra, 203 Cal.App.3d 1151, 250 Cal.Rptr. 435 which also involved an order denying a petition for relief from the Government Code claim-filing requirements. Again, this "order" was actually a judgment. ⁴ The motion for reconsideration was not proper and therefore should not have extended the time to appeal the order. To the extent, Dockter and Rojes hold that a postjudgment motion for reconsideration will extend the time within which to file a notice of appeal from the judgment, we overrule our prior decisions. ⁵ Accordingly, a motion for reconsideration filed after judgment was entered will not extend the time to appeal from the judgment.

Having determined that a postjudgment motion for reconsideration will not extend the time for appeal under rule 3, the next question we must address is whether we should construe the motion for reconsideration in this case to be a motion for new trial or a motion to vacate for purposes of rule 3. Although, as we explain, we will construe the motion in this case to be a motion for new trial and therefore find the appeal to be timely filed in this case, we do so only because of our prior decisions in Dockter and Rojes. However, we believe, generally, appellate courts should not construe a motion expressly identified as being a particular motion to be an entirely different motion in the appellate court.

We recognize that there are cases which appear to suggest that trial courts may consider a motion regardless of its label. For example, in Eddy v. Sharp, supra, 199 Cal.App.3d 858, 245 Cal.Rptr. 211, after judgment was entered, the plaintiffs brought a motion for reconsideration which was denied. Although the appellate court noted that a motion for reconsideration is not proper after judgment has been entered, it nonetheless stated that the trial court was free to consider the motion regardless of its...