Opinion
B226635
09-21-2011
AGUSTIN SANTOS-PINEDA, Plaintiff and Appellant, v. MARK WAECKER et al., Defendants and Respondents.
Agustin Santos-Pineda, in pro. per., for Plaintiff and Appellant. Mark Waecker, in pro. per., and Kathy Morozova for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC054944)
APPEAL from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Dismissed.
Agustin Santos-Pineda, in pro. per., for Plaintiff and Appellant.
Mark Waecker, in pro. per., and Kathy Morozova for Defendants and Respondents.
Plaintiff Agustin Santos-Pineda filed a purported appeal from an order that was deemed to be "a renewed motion for reconsideration." Under the prevailing view that an order denying a motion for reconsideration is not an appealable order (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1632-1633), we conclude that the appeal must be dismissed.
BACKGROUND
Plaintiff, who is in pro. per., has provided us with only a partial record of the trial court proceedings. Based on our review of that incomplete record, we have deduced the following facts.
Plaintiff filed a complaint (not included in the record) against defendants Mark Waecker and Mark Waecker, Professional Corporation (jointly, Waecker). Waecker filed a demurrer (not included in the record) to the complaint. Plaintiff did not oppose the demurrer, which the trial court (Judge Yvonne T. Sanchez) sustained without leave to amend on May 17, 2010.
Plaintiff filed a motion for reconsideration (not included in the record) on May 26, 2010. Judge Sanchez denied the motion on June 21, 2010.
Plaintiff then filed the motion (not included in the record) that is the subject of this appeal, which the trial court (Judge Raul A. Sahagun) described in its August 2, 2010 order of denial as "nothing more than a renewed motion for reconsideration." On August 9, 2010, plaintiff filed a notice of appeal from the August 2, 2010 ruling. The August 2 order stated:
"Plaintiff AGUSTIN SANTOS-PINEDA's motion for leave to amend is DENIED. C.C.P. section 473.
"By way of the subject motion, plaintiff (in pro per) seeks leave to amend his complaint based on inadvertence and excusable neglect. This is a legal malpractice action, filed on November 18, 2009. On May 17, 2010, the Court sustained defendants' demurrer without leave to amend.
"Plaintiff filed a motion for reconsideration on May 26. On June 21, that motion was denied, and the prior order sustaining the demurrer affirmed.
"Plaintiff argues, in essence, that his former counsel Howard Levine failed to properly defend the demurrer. In ruling on a demurrer, the Court determines whether a complaint properly states a claim. Here, the Court ruled it did not.
"Plaintiff also argues that various court clerks erred in refusing to file his amended pleading. The proposed pleading was not properly presented. A party may amend a pleading once as a matter of course at any time before a responsive pleading is filed, or after a demurrer is filed but prior to the hearing date. C.C.P. section 472. Plaintiff's attempts to file a first amended complaint came after the ruling on demurrer. Both on May 26 and June 21, the filing was properly rejected.
"Plaintiff's subject request to file an amended pleading is denied. The Court has already rejected his request, and the subject filing appears to be nothing more than a renewed motion for reconsideration. The case has been dismissed. If plaintiff elects to pursue this matter, it appears that the appellate court is the appropriate venue. . . ." (Italics added.)
DISCUSSION
Preliminarily, we note that no appeal was taken from the order of dismissal or the underlying order sustaining the demurrer without leave to amend. Accordingly, neither the order of dismissal nor the underlying order sustaining the demurrer is properly before us.
The sole order designated in the notice of appeal is Judge Sahagun's August 2, 2010 order denying what he deemed to be "a renewed motion for reconsideration." Under the prevailing view that an order denying a motion for reconsideration is not an appealable order (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles,
supra, 166 Cal.App.4th at pp. 1632-1633), we conclude that the appeal must be dismissed.
Originally, the parties did not address whether a ruling on a motion for reconsideration was an appealable order. They were given the opportunity to submit their position on the matter and both filed letter briefs.
DISPOSITION
The appeal is dismissed. Waecker is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
WILLHITE, Acting P. J.
MANELLA, J.