Rogers v. Moses CA2/5 ( 2020 )

Filed 8/18/20 Rogers v. Moses CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
TASHA ROGERS, B282126
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC563463)
v.
ANTONIA MOSES,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Gregory W. Alarcon, Judge. Dismissed.
Ronda Baldwin-Kenney for Defendant and Appellant.
Riley Law Group, Grant K. Riley, Philip Shakhnis, and
Tara Mitcheltree for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Antonia Moses purports to appeal from a
postjudgment order denying her motion for reconsideration. We
dismiss the appeal on two alternative grounds.
II. BACKGROUND
Plaintiff Tasha Rogers sued her landlord, defendant
Antonia Moses, for relocation fees after learning that the one-
bedroom unit plaintiff rented from defendant was not a legal
rental unit. On November 10, 2014, plaintiff filed her complaint
against defendant.
Trial began on August 14, 2015. On August 17, 2015,
during a recess, the parties agreed to settle the case. The parties
stated the terms of the settlement, in which defendant agreed to
pay plaintiff $35,000 in installments, on the record. The parties
also agreed to sign a stipulation for entry of judgment if
defendant failed to make the required payments.
Defendant defaulted on the first payment. On
October 16, 2015, plaintiff filed a motion for entry of judgment,
pursuant to Code of Civil Procedure1 section 664.6.
On January 19, 2016, the parties appeared for a hearing on
plaintiff’s motion for entry of judgment and the trial court
granted the motion.
On January 29, 2016, defendant filed a motion for
reconsideration pursuant to section 1008, subdivision (a).
On February 22, 2016, the trial court entered judgment.
1 Further statutory references are to the Code of Civil
Procedure.
2
On January 4, 2017, the trial court issued its order denying
defendant’s motion for reconsideration.
On March 6, 2017, defendant filed her notice of appeal,
stating that she appealed the trial court’s January 4, 2017, order.
III. DISCUSSION
“The right to appeal is wholly statutory. [Citation.]
[S]ection 904.1 lists appealable judgments and orders.” (Dana
Point Safe Harbor Collective v. Superior Court (2010) 51 Cal. 4th
1, 5.) “An order denying a motion for reconsideration is not
independently appealable.” (Mack v. All Counties Trustee
Services, Inc. (2018) 26 Cal. App. 5th 935, 937, fn. 1; see § 1008,
subd. (g) [“An order denying a motion for reconsideration made
pursuant to subdivision (a) is not separately appealable.
However, if the order that was the subject of a motion for
reconsideration is appealable, the denial of the motion for
reconsideration is reviewable as part of an appeal from that
order.”].) Because defendant purports to appeal from an
unappealable order, we dismiss the appeal.
Even if we were to liberally construe defendant’s notice of
appeal as an appeal of the court’s February 22, 2016, judgment,
we would conclude that it was untimely filed. Under the
California Rules of Court, rule 8.104(a)(1), defendant had 180
days from entry of the judgment, that is, until August 20, 2016,
to file her notice of appeal. (Cal. Rules of Court, rule
8.104(a)(1)(C).)2 Because defendant did not file her notice of
2 Rule 8.108(e) of the California Rules of Court provides for
an extension of time to appeal if a valid reconsideration motion is
filed under section 1008, subdivision (a), but only “until the
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appeal until March 6, 2017, we alternatively dismiss the appeal
as untimely.
earliest of: [¶] (1) 30 days after the superior court clerk, or a
party serves an order denying the motion or a notice of entry of
that order; [¶] (2) 90 days after the first motion to reconsider is
filed; or [¶] (3) 180 days after entry of the appealable order.”
Where, as here, a trial court enters judgment while a motion for
reconsideration is pending, the court is divested of jurisdiction to
hear the motion and the court’s subsequent denial of the
reconsideration motion does not extend the time to appeal the
judgment. (Safeco Ins. Co. v. Architectural Facades Unlimited,
Inc. (2005) 134 Cal. App. 4th 1477, 1481–1482.) Even if Rule
8.108(e) applied, the earliest of the three dates set forth in that
rule is 90 days after the motion to reconsider was filed, that is,
April 28, 2016.
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IV. DISPOSITION
The appeal is dismissed. Plaintiff is entitled to recover
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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