225 Cal. App. 3d 1602

[No. E007110.

Fourth Dist., Div. Two.

Dec. 10, 1990.]

JOSE PASSAVANTI, Plaintiff and Appellant, v. ERIK WILLIAMS, Defendant and Respondent.

[Opinion certified for partial publication.*]

*1604Counsel

Edward K. Madruga for Plaintiff and Appellant.

Sanger & Stein and Rick M. Stein for Defendant and Respondent.

Opinion

HOLLENHORST, Acting P. J.

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.

*1605Under 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.

*1606“[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., § 58 Id) 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, supra, 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 (1988) 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, supra, Proceedings Without Trial, § 34, p. 349; 7 Witkin, Cal. Procedure, supra, 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 *1607judgment 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. (203 Cal.App.2d at p. 732.)

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, 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 *1608for 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, after judgment was entered, the plaintiffs brought a motion for reconsideration which was denied. Although the *1609appellate 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 label. (Id., at p. 863, fn. 3.) Since the opinion in Eddy does not state when the judgment was entered, whether or when notice of entry of judgment was given or when the order denying reconsideration was made, it cannot be determined whether the appeal from the judgment was timely under rule 2 or rule 3.

Even if we assume the trial court is free to ignore the label of á motion, it does not necessarily follow that appellate courts should do so as well, particularly when there is no indication that the motion was “construed” to be a different motion in the trial court.6 For an appellate court to construe a motion merely to “save” the appeal from dismissal may result in further problems and cannot be justified.

As the court in Ten Eyck v. Industrial Forklifts, supra, 216 Cal.App.3d 540, noted, “counsel [is] duty-bound to know the rules of civil procedure.” (Id., at p. 545.) Ordinarily, on appeal, where a party has failed to invoke the proper procedure to preserve error for appellate review, has invited the error by his own conduct or is otherwise estopped to assert error, we will decline to rule on the merits of the issue. For example, where a party objects to evidence on the wrong grounds then, even if the evidence was objectionable on other grounds, we will not reverse. The requirement that error be properly preserved for appellate review and the principle that waived or invited error will not be reviewed are primarily matters of appellate policy and may be ignored under certain exceptions. (See generally, 9 Witkin, Cal. Procedure, supra, Appeal, §§ 301-323, pp. 313-334.)

The timeliness of the appeal is not merely a matter of policy but rather is fundamental to this court’s jurisdiction. Accordingly, it has been held that the time to file an appeal cannot be extended by waiver or estoppel. (9 Witkin, Cal. Procedure, supra, Appeal, § 408, p. 403.) While the appellate courts should grant a right to appeal in doubtful cases (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 669 [125 Cal.Rptr. 757, 542 P.2d 1349]), we see no reason for holding counsel to a less demanding standard for purposes of extending the time for appeal than is required to preserve an issue for appellate review.7

*1610One might argue that in refusing to construe a motion for reconsideration to be a motion for new trial, the appellate court would be elevating form over substance and that if the motion, regardless of its label, arguably would qualify as a valid motion for new trial or a valid motion to vacate the judgment, this court should treat it as such. If the record clearly indicates that the parties and the trial court ignored the label and treated the motion as one for new trial or to vacate the judgment, good cause might exist for this court to also ignore the label. Where, however, there is no such indication in the record, an appellate court construing a motion for reconsideration to be some other motion could lead only to further complications.

For example, if we construe the motion for reconsideration to a be a motion for new trial or a motion to vacate for purposes of the timeliness of the appeal, should we not also construe it to be a motion for new trial or to vacate for purposes of review? If so, what standard of review would we employ in determining whether the court’s order denying or granting the motion was proper? Would we have to review its propriety, for example, under each of the seven alternate grounds for new trial listed in Code of Civil Procedure section 657 even though normally we only review the order granting or denying a new trial on the grounds specified by the party or the court? Should a party who fails to file a proper motion for new trial receive more liberal review of the court’s order on appeal than a party who properly files such a motion limiting its grounds? Further, if the appellate courts construe motions made in the trial court to be a different motion, what law should a trial court apply in ruling on the motion in the first instance?

As is evident from the foregoing discussion, we see little reason for and numerous problems created by appellate courts ignoring the procedure expressly followed in the trial court and construing a motion for reconsideration to be a different motion so as to extend the time to file a notice of appeal. Absent a showing of extremely good cause, we are disinclined to engage in the practice of “construing” motions and will hold counsel to the label they attach to their motions.

Having said that, we nonetheless feel compelled to treat the motion for reconsideration as a motion for new trial in this case. We do so only because of our own prior decisions in Dockter and Rojes which appear to approve of the procedure used by plaintiff in this case. Because of those decisions, we believe that good cause exists and fairness requires us to construe plaintiff’s motion for reconsideration in this case to be a motion for new trial or a motion to vacate the judgment under rule 3 and accordingly hold that the *1611filing of the motion extended the time to file notice of appeal from the judgment entered on June 19, 1989, and that the notice of appeal filed within 30 days after the court denied the motion for reconsideration was timely. We proceed to address the merits of the appeal.

II, III*

IV

Disposition

Judgment reversed. Plaintiff shall recover his costs on appeal. Both parties’ requests for sanctions are denied.

Timlin, J., and McDaniel, J., concurred.

Passavanti v. Williams
225 Cal. App. 3d 1602

Case Details

Name
Passavanti v. Williams
Decision Date
Dec 10, 1990
Citations

225 Cal. App. 3d 1602

Jurisdiction
California

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