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Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017

Donna@DonnaBader.com

 

 

 

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Thursday
Aug112011

Is an order denying a motion to reconsider appealable?

In Powell v. County of Orange, 2011 Cal.App. LEXIS 1024, the plaintiff appealed from an order denying his motion for reconsideration, which sought reconsideration of his earlier motion to set aside an order dismissing his action in the trial court for lack of prosecution.  The appellate court dismissed the appeal for lack of appellate jurisdiction.

The opinion was published for two reasons:  (1) to let attorneys know that the Court was joining with other appellate courts in holding an order denying a motion for reconsideration is not appealable, and (2) an order of dismissal, including a minute order not signed by the judge, does not qualify as a judgment under Code of Civil Procedure section 581d unless it is in writing, signed by the trial judge, and filed with the court.

In Powell, the plaintiff filed a civil rights action against the County of Orange and Orange County Sheriff, including two of its deputies.  Several years later, the trial court scheduled an order to show cause re dismissal due to plaintiff's lack of prosecution.  Plaintiff's attorney failed to show up at the hearing and the trial court issued a minute order dismissing the action.  The minute order was not signed and there was no formal, signed order prepared thereafter.

About seven months later, plaintiff's attorney filed a motion to set aside the "judgment" due to the attorney's fault in failing to "properly keep track of this case" and not responding to discovery.  The motion was denied.  New counsel for the plaintiff filed a motion to reconsider, which was also denied.  The plaintiff appealed from the order denying the motion for reconsideration.

The Court of Appeal (Fourth Appellate District, Division Three) in Santa Ana held that an order denying a motion for reconsideration is not appealable, even when the motion is based on new facts or law.  The opinion notes that Code of Civil Procedure section 1008, governing such motions, is being amended, effective January 1, 2012, to expressly provide an order denying a motion for reconsideration is not appealable, although if the order that was the subject of the motion is appeaalable, the denial of the motion for reconsideration can be reviewed by an appeal from that order.  (Opn. pgs. 5-6.) It did not help plaintiff that he labeled the motion alternatively as a motion to set aside the dismissal.  The motion was asking the trial court to re-decide the same previous motion.

The appellate court also held that an unsigned minute order was ineffective as a judgment of dismissal under Code of Civil Procedure section 581d, which requires a signed, written order that is filed with the court.  None was prepared in this case.  This error put plaintiff in the odd position, almost two years after the case was dismissed, of bringing a premature appeal as there was no judgment to appeal from.  In addition, the motion to set aside was also considered premature as no judgment had been entered that could be set aside by the trial court.

Even though the plaintiff had wasted a lot of money and time in bringing various motions and an appeal, he was now in the position of bringing a premature appeal.  Once the case goes back down to the superior court, a proper written order of dismissal will probably be prepared and the plaintiff will now have the ability to file an appeal from that judgment.  If he has the will and money to do so.

References (8)

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  • Response
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
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    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
  • Response
    Response: Len McDowall
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
  • Response
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
  • Response
    Response: Anthony Alles
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
  • Response
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
  • Response
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON
  • Response
    Is an order denying a motion to reconsider appealable? - Home - AN APPEAL TO REASON

Reader Comments (2)

An ethical perfect person cannot hold a candle in the courts to a rich criminal. Money wins. Living paycheck to paycheck people get screwed, even though they may be heads and shoulders above a person with money.
February 14, 2013 | Unregistered Commenterzaxk
Yes, money can make a difference, especially if a party can hire the "best" attorneys, experts, and present dazzling exhibits. But sometimes the truth manages to get in. I am very concerned about the lack of real access to the courts by people of low to moderate means. Litigation is a terrible expense and now everyone seems to require an expert to testify. I would probably raise the small claims court's jurisdiction. You should also appreciate that some trial attorneys will take cases on a contingency basis. Paying attorney's fees on a contingency basis may seem like a big chunk of change, if you win, but it does allow for little people to try cases against big defendants.
February 19, 2013 | Registered CommenterDonna Bader

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