Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. DR050078
RIVERA, J.
Joseph Royse appeals from an order denying his motion for leave to amend his complaint and from orders denying his motions for relief from judgment. He contends that the trial court abused its discretion in denying the motions. We dismiss the appeal from the order denying leave to amend and otherwise affirm.
I. FACTUAL BACKGROUND
We have previously set forth the facts underlying this personal injury action in Royse v. Lexington Ins. Co. (Nov. 26, 2008, A117798, A117875 [nonpub. opn.]). Royse was severely injured while operating a manlift on property located at 8028 Centerville Road in Ferndale (the property), known as the Lost Coast Ranch. In appeal nos. A117798 and A117875, we affirmed the trial court’s grant of summary judgments in favor of defendants Lexington Insurance Company (Lexington) and DC3-E, LLLP (DC3-E). (Id. at pp. 1-2.) In another appeal filed by Royse, we affirmed a summary judgment in favor of defendant Jonathan Phelps. (Royse v. Phelps (April 15, 2009, A121487) [nonpub. opn.].)
A jury trial followed against the remaining defendants which resulted in a defense verdict. Royse has appealed the judgments entered following jury verdicts rendered in favor of Heartworks Studios, LLC (Heartworks) (A126132) and against three other defendants: Pacific, Gas & Electric Co.; Darr-B, Inc.; and JLG Industries, Inc. (A125829). In addition, Royse has appealed the court’s grant of nonsuit in favor of defendant Esther Phelps (A125621).
Following our affirmance of the trial court’s grant of summary judgment in favor of Lexington and DC3-E in appeal nos. A117798 and A117875, Royse filed two separate motions for orders granting relief from the judgments in favor of Lexington and DC3-E pursuant to Code of Civil Procedure section 473, subdivision (b). In each motion, he alleged that the judgments against him were perpetrated by fraud through false declarations submitted by Lexington and DC3-E. In particular, Royse argued that declarations submitted by Anthony Keegan and Brad Thompson in an unrelated federal district court case demonstrated that Lost Coast Ranch was not insured under Lexington’s insurance policy, and that it was DC3-E that exercised control over Lost Coast Ranch employees. The trial court denied the motions, citing language from our opinion in case no. A121487, that Royse had failed to adduce any new evidence to contradict the findings below on his employment status at the time of the accident.
All further statutory references are to the Code of Civil Procedure.
Royse subsequently moved for leave to file an amendment to the fourth amended complaint to add Lost Coast Ranch, an unincorporated association, as a defendant. The trial court denied the motion. Royse appeals from the trial court’s orders.
II. DISCUSSION
A. Motion for Relief from Judgment
Royse contends that the trial court abused its discretion in denying his renewed motion for relief from judgment under section 473. He argues that the new evidence contradicts the declarations filed in this action, and shows that DC3-E exercised control over employees at Lost Coast Ranch and that Lexington misrepresented that it insured Lost Coast Ranch.
Royse timely filed his initial section 473 motions for relief from judgment on the ground of fraud shortly after filing the notices of appeal from the judgments in favor of DC3-E and Lexington. The trial court denied the motions without prejudice pending resolution of the appeals. Royse also moved to produce additional evidence on appeal. We denied the motion without prejudice “to whatever rights [Royse] may have to raise the matter in the trial court after remittitur issues....”
As Royse acknowledges, a motion under section 473 is addressed to the sound discretion of the trial court. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854; Martin v. Cook (1977) 68 Cal.App.3d 799, 807.) Under section 473, the court has the power to grant relief “from a judgment, dismissal, order, or other proceeding taken against [a party] through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).)
Royse’s contention rests on the assumption that documents submitted in an unrelated federal district court case can be judicially noticed to establish the facts contained in those documents (here, for example, the fact that DC3-E exercised control over employees at Lost Coast Ranch). In considering Royse’s first motion to set aside its ruling on his summary adjudication motion, the trial court took judicial notice of the existence of the documents but not of the truth of their content. In ruling on Royse’s renewed section 473 motion, the court did not address the issue.
As we explain, the documents alone could not be used to prove their content.
In Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1569 (Sosinsky), the court concluded that, while the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents is not necessarily entitled to notice. (Ibid.) “ ‘There exists a mistaken notion that [taking judicial notice of court records] means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file.’ ” (Id. at p. 1564, italics omitted.) A court may therefore take judicial notice that a prior order was entered, but it may not take judicial notice of the truth of factual findings made therein. (Ibid., and see Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145; Sosinsky, at pp. 1564-1565, 1568-1570.) Some courts have even questioned whether it is proper to take judicial notice of the truth of facts set forth in orders and judgments. (Sosinsky, supra, 6 Cal.App.4that pp. 1564-1569.) We conclude, accordingly, that judicial notice of the existence of documents from the federal case cannot constitute acceptance of the factual assertions contained in those documents and therefore cannot create issues of fact.
This does not preclude their use to prove their content provided they are properly authenticated.
Royse also contends that Lexington committed misrepresentation by issuing a policy on the ranch property even though it was not writing homeowners insurance policies for properties owned by limited liability companies, in this case, Heartworks. We have reviewed the record in its entirety and nothing in the record or in the proffered documents suggests that Lexington misrepresented any facts. Because Royse has not demonstrated any basis for equitable relief under section 473, the trial court properly denied the motion.
B. Motion for Leave to Amend the Complaint
Royse contends that the trial court erred in denying his motion to amend his fourth amended complaint to add Lost Coast Ranch, an unincorporated association, in place of a Doe defendant. We dismiss Royse’s appeal from the court’s order. The court’s postjudgment order denying Royse’s motion to amend his complaint does not meet the requirements for appealability.
While section 904.1, subdivision (a)(2) provides that an order made after an appealable judgment is itself appealable, two additional requirements must be met for appealability. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.) First, “the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment” and second, “ ‘the order must either affect the judgment or relate to it by enforcing it or staying its execution.’ ” (Id. at pp. 651-652.) Here, Royse has not met the second requirement; the motion to amend the fourth amended complaint does not enforce or stay execution of the judgment entered in favor of Lexington and DC3-E, and affirmed on appeal in 2008. Moreover, the motion did not affect Lexington or DC3-E as neither remained in the action. We therefore dismiss the appeal from the order denying leave to amend the complaint.
C. Sanctions
DC3-E requests sanctions, arguing that this appeal is frivolous. It, however, has not filed a motion. (See California Rules of Court, rule 8.276.) We therefore decline the request.
II. DISPOSITION
The appeal from the order denying the motion to amend the fourth amended complaint is dismissed as taken from a nonappealable order. The orders denying Royse’s motions pursuant to section 473 are affirmed. The parties shall bear their own costs on this appeal.
We concur: REARDON, Acting P.J. SEPULVEDA, J.