Opinion
H050173
06-26-2023
JULIE FATIMA SKROMME, Plaintiff and Appellant, v. OCWEN LOAN SERVICING, LLC et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. 19CV02362
BAMATTRE-MANOUKIAN, ACTING P.J.
Julie Fatima Skromme (Skromme) filed a complaint on August 7, 2019, against Ocwen Loan Servicing, LLC (Ocwen) and PHH Mortgage Corporation (PHH) for claims arising out of the foreclosure of her property located on Amesti Road in Watsonville (the Watsonville property). PHH filed a motion for summary judgment pursuant to Code of Civil Procedure section 437c, which was unopposed. The motion was granted by the trial court. A formal order granting summary judgment and a separate judgment in favor of PHH were entered on April 19, 2022. Skromme thereafter filed a notice indicating her intention to move for reconsideration of the summary judgment order; approximately one month later, she filed formal motion papers. The court denied the motion for reconsideration.
The suit was in fact filed by Skromme and Peter Van Dyke. Van Dyke at one time was a co-owner of the subject property, acquiring an interest by a 2007 deed from Skromme. He was also a co-borrower in the loan transaction at issue in this case. He deeded his interest in the property back to Skromme in 2012. Judgment in the case was entered against both Skromme and Van Dyke. Van Dyke is not part of this appeal. Therefore, for simplicity, although Skromme and Van Dyke were co-plaintiffs, we will refer to Skromme as the sole plaintiff in the underlying action.
Ocwen serviced the loan at issue in this case from February 16, 2013 to May 1, 2019. PHH serviced the loan after May 1, 2019. As alleged in the answer to the complaint, there was actually only one entity existing as of the filing of the complaint, because PHH was the successor by merger to Ocwen. And the judgment identifies the prevailing party as "PHH MORTGAGE CORPORATION, successor by merger to Ocwen Loan Servicing, LLC[]." Accordingly, we will refer herein to the party defendant below as PHH.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Skromme filed a notice of appeal from the judgment and the separate order denying the motion for reconsideration. She contends that she was not properly served with the motion for summary judgment and that she so argued to the trial court at the hearing on the motion. She asserts that since she provided an adequate showing of improper service, the trial court erred in granting summary judgment and in subsequently denying her motion for reconsideration.
In her opening brief, Skromme makes various statements of alleged facts concerning her appearances at the hearings on the motion for summary judgment and later motion for reconsideration, including specific challenges to service of the moving papers that she purportedly raised at the time of those hearings. These factual allegations are not accompanied by citations to the appellate record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [matters referenced from the record in appellate briefs must be supported "by a citation to the volume and page number of the record where the matter appears"]. (All unspecified rules are the California Rules of Court.) Further, Skromme elected to proceed on appeal without reporter's transcripts of the proceedings, and therefore it cannot be determined from the record what transpired at the hearings, beyond what is contained in the subsequent court orders. We will therefore disregard any alleged facts presented in Skromme's appellate brief that are not supported by appropriate citations to the record. (See Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102 ["[f]actual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs"].)
We conclude that the notice of appeal challenging the judgment was not timely filed, and that Skromme's filing of a motion for reconsideration that was not "valid" did not extend the statutory deadline in which Skromme was required to file an appeal from the judgment. Therefore, this court lacks jurisdiction to consider Srkomme's appeal from the judgment. We conclude further that the order denying reconsideration, being a nonappealable order, cannot be considered by this court. as it is not an appealable order. Accordingly, we will dismiss the appeal from the judgment and the appeal from the nonappealable order denying reconsideration.
I. PROCEDURAL HISTORY
On August 7, 2019, Skromme filed a complaint against PHH involving a loan of $1,000,000 made to her in February 2007 that was secured by a deed of trust encumbering the Watsonville property. A notice of default was recorded in November 2018, and the property was sold at a trustee's sale on or about June 18, 2019. It was alleged in the complaint that Skromme applied for a loan modification. She was advised by Ocwen that she should, instead, engage in a trial program under which she would make three successive payments of $5,000 (an amount greater than the monthly payment required under their loan). Skromme alleged further that she was told that upon making those payments, the loan would be reinstated at a reduced interest rate of three percent. She complied with the trial program, and then PHH, the entity that had acquired the loan, modified it by nearly doubling the amount of the monthly payments that had existed under the original loan.
The Watsonville property had been owned by Skromme and her husband, John (or Jon) Skromme. He deeded his interest in the property to her in 2006.
The complaint contained 19 causes of action. There were seven causes of action of the complaint that existed when the summary judgment motion was filed: violation of Civil Code sections 2923.5, 2923.55 (first cause of action); violation of Civil Code section 2923.7 (third cause of action); breach of contract, i.e., the deed of trust (sixth cause of action); breach of implied covenant of good faith and fair dealing (seventh cause of action); declaratory relief (13th cause of action); violation of the Unfair Competition Law, Business and Professions Code section 17200 (18th cause of action); and accounting (19th cause of action).
After filing an answer, PHH filed a motion for judgment on the pleadings under section 438. The unopposed motion was granted in part and denied in part. The court granted the motion with leave to amend as to the second, fifth, eight, 12th, 14th, 15th, and 17th causes of action. It granted judgment on the pleadings without leave to amend as to the fourth, ninth, 10th, 11th, and 16th causes of action. Skromme did not amend the complaint. On January 13, 2022, the court therefore granted PHH's motion to strike the second, fifth, eighth, 12th, 14th, 15th, and 17th causes of action.
On January 27, 2022, PHH filed a motion for summary judgment, or, in the alternative, for summary adjudication pursuant to section 437c. The summary judgment motion included five separate proofs of service declaring that the moving papers were served by Federal Express upon Skromme to a street address in Carmel Valley, and served by Express Mail upon Skromme to a Carmel Valley post office box.
In its summary judgment motion, PHH argued that the first and third causes of action (violation of Civ. Code, §§ 2923.5, 2923.55, 2923.7) were without merit because the subject property was not owner-occupied, and PHH satisfied the requirements of Civil Code sections 2924.15 and 2923.7. PHH asserted further that the sixth and seventh causes of action (breach of contract, breach of covenant of good faith and fair dealing) had no merit because PHH had not breached the deed of trust or otherwise breached any agreement. PHH contended that the 13th cause of action (declaratory relief) was without merit because there was no actual controversy between the parties concerning their rights and duties under the deed of trust. PHH argued further that there was no merit to the 18th cause of action (violation of Bus. &Prof. Code, § 17200) because, inter alia, Skromme had no standing to sue and there was no predicate violation of the law by PHH. And PHH contended that the 19th cause of action for accounting had no merit because PHH owed Skromme no fiduciary duty, and it did not owe her any money that would warrant an accounting.
The summary judgment motion was unopposed. The court issued a tentative ruling granting the motion. After a hearing on April 14, 2022, and no party having contested the tentative ruling, the court granted the motion for summary judgment. A formal order granting summary judgment was filed on April 19, 2022. A separate judgment in favor of PHH was also filed April 19, 2022, the court reciting that it had previously granted PHH's motion for summary judgment. On May 5, 2022, PHH filed and served Skromme by mail a notice of entry of judgment, attaching a copy of the judgment to the notice.
Thereafter, on May 20, 2022-over one month after the court granted summary judgment and entered judgment in favor of PHH-Skromme filed a notice indicating her intention to file a motion under section 1008 for reconsideration of the summary judgment order. The notice was not accompanied by moving papers. On June 13, 2022, Skromme filed a motion for reconsideration. She stated in her notice of motion that "[n]ew or different facts or circumstances have been discovered since the date of the order." Skromme claimed in her memorandum of points and authorities that she was not served with a copy of the summary judgment motion, notwithstanding the statement by PHH's counsel at the hearing on that motion that the moving papers had been served upon Skromme by Federal Express. Skromme did not submit an affidavit or declaration under penalty of perjury attesting to the claimed new facts alleged in support of the reconsideration motion.
The motion was opposed by PHH. PHH argued that the motion for reconsideration should be denied because (1) it was untimely, (2) it was not properly noticed, (3) Skromme failed to identify any new facts or law, and (4) Skromme was in fact properly served with the summary judgment motion. After a hearing on July 1, 2022, the court denied Skromme's motion for reconsideration. The court concluded that the motion was untimely; it was defective because it was not accompanied by a supporting affidavit; and Skromme had not established in the motion new or different facts supporting reconsideration of the prior order granting summary judgment.
Skromme filed a notice of appeal on July 7, 2022. Her notice specified that the appeal was being taken from (1) the judgment after order granting summary judgment, and (2) the order denying her motion for reconsideration.
II. DISCUSSION
A. No Jurisdiction Over Appeal From Judgment
We first address whether Skromme filed a timely notice of appeal from the judgment. This involves a consideration of two issues: (1) whether the notice of appeal was filed within the time prescribed under the California Rules of Court; and (2) if the notice of appeal was untimely on its face, whether the time was extended by the filing of a motion for reconsideration.
1. Notice of Appeal Was Untimely
The California Supreme Court has "steadfastly adhered to the fundamental precept that the timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction." (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670, italics added (Hollister Convalescent Hosp.); see also Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) "[B]ecause the timely filing of a notice of appeal is a jurisdictional prerequisite for our review [citation], . . . we must dismiss an untimely appeal either upon motion of a party or upon our own motion [citation]." (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 610.)
Where a notice of entry of judgment has been served by a party, the deadline for the filing of a notice of appeal is "60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service...." (Rule 8.104(a)(1)(B).) The 60-day period is calculated by excluding the first day and including the last day, unless it is a holiday (Saturday, Sunday, or state-recognized holiday), in which case the last day is deemed to be the next day that is not a holiday. (§§ 12, 12a, subd. (a); see Nu-Way Associates, Inc. v. Keefe (1971) 15 Cal.App.3d 926, 928 (Nu-Way) [notice of appeal filed on the 61st day after service of notice of entry of judgment, excluding date of service, was untimely, compelling appellate court to dismiss appeal on its own motion].) Although section 1013 extends the time "to do any act" following service by mail (five calendar days), Express Mail (two court days), or facsimile transmission (two court days), the statute in all such instances expressly excludes the filing of a notice of appeal as an "act" so extended. (§ 1013, subds. (a), (c), (e).) "Service by mail of a triggering document does not extend the time to file a notice of appeal. The 60 days begins on the date of mailing and does not depend upon the party's actual receipt of the document. [Citation.]" (InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134-1135, fn. omitted.) "If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b), italics added.)
In considering whether the notice of appeal complied with the 60-day requirement under rule 8.104(a)(1)(B), we note that the relevant timeline here is as follows:
04/19/22: Order granting summary judgment filed; judgment entered. 05/05/22: Notice of entry of judgment served by PHH.
07/05/22: Deadline for Notice of Appeal from Judgment (60 days from 05/05/22 was 07/04/22, a holiday; time extended to the next day).
07/07/22: Notice of Appeal filed by Skromme from Judgment/Reconsideration Order (63rd day).
As is clearly evident, the notice of appeal from the judgment, filed by Skromme on July 7, 2022, i.e., 63 days after the service of the notice of entry of judgment, was untimely. (See rule 8.104(a)(1)(B).) As discussed above, the time limitations for filing a notice of appeal are jurisdictional, and are "applicable even though notice of appeal is filed but one day late. [Citations.]" (Nu-Way, supra, 15 Cal.App.3d at p. 928; see O'Donnell, Pacific Emp. Ins. Co., Interveners v. City and County of San Francisco (1956) 147 Cal.App.2d 63, 66-67 [where 60th day was a Sunday, extending deadline to Monday, notice of appeal filed on Tuesday, the 62nd day, was untimely, requiring dismissal of appeal].)
The record reflects that Skromme served the notice of appeal by mail upon PHH's counsel on July 5, 2022. This service date is of no consequence to our conclusion that the appeal is untimely; the time limitations for perfecting an appeal require that the notice of appeal be "filed on or before" (as applicable here) 60 days after a party's service of the notice of entry of judgment. (Rule 8.104(a)(1)(B), italics added.)
2. Motion for Reconsideration Did Not Extend Appeal Deadline
Rule 8.108 provides for extensions of time for the filing of a notice of appeal under limited circumstances. A circumstance potentially applicable here is the following: "If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the 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." (Rule 8.108(e), italics added.) The rule similarly provides an extension for an appeal notice in instances in which the appellant has filed a "valid" motion for new trial (id., subd. (b)), motion to vacate judgment (id., subd. (c)), or motion for judgment notwithstanding verdict (id., subd. (d)).
As noted by the court in Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1047 (Branner), "[r]ule 8.108 does not define the word 'valid.'" But the Branner court relied on the Advisory Committee comment to rule 8.108 in assisting to determine the meaning of the word "valid":" 'Subdivisions . . . (b)-(e) operate only when a party serves and files a "valid" motion or notice of intent to move for the relief in question. As used in these provisions, the word "valid" means only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious.'" (Branner, supra, at p. 1047, original italics.) As we will discuss, Skromme's motion for reconsideration was not a "valid" motion for at least two reasons.
The statute authorizing a motion to reconsider requires that the moving party file a supporting affidavit or declaration stating, inter alia, "what new or different facts, circumstances, or law are claimed to be shown." (§ 1008, subds. (a), (b); see Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 296.) Thus, in Branner, the court concluded that the motion to reconsider in that case was not valid and did not meet the requirements of rule 8.108(e) because the motion was not accompanied by an affidavit or declaration. (Branner, supra, 175 Cal.App.4th at p. 1048.)
Here, at no time-either in the filing of the notice of intention to move to reconsider or the later filing of the notice of motion and memorandum in support of the motion to reconsider-did Skromme submit an affidavit or declaration in support of the motion setting forth, inter alia, the new or different facts, circumstances or law the justified reconsideration of the summary judgment order. This was a procedural defect that rendered the motion invalid. (Branner, supra, 175 Cal.App.4th at p. 1048.)
Furthermore, the law is clear that once a judgment is entered, the trial court is divested of authority to rule on a motion for reconsideration. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192 (Sole Energy).) It necessarily follows that "if the trial court has no power to rule on a reconsideration motion after judgment, such a motion can have no effect on the period within which to file a notice of appeal." (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1238, fn. omitted.) This was the holding in Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545 (Ten Eyck), where the court concluded that the "plaintiff's motion for reconsideration did not have th[e] effect [of extending the time to file a notice of appeal] because it was filed after the judgment was signed and was therefore invalid. [Citations.]" (See also Branner, supra, 175 Cal.App.4th at p. 1048.)
Here, Skromme's motion for reconsideration was filed-in a form not recognized by statute as a notice of intention to file a motion-on May 20, 2022, over one month after judgment was entered (on April 19, 2022). The trial court thus had no authority to decide the motion. (Sole Energy, supra, 128 Cal.App.4th at p. 192.) It was an invalid motion for reconsideration that did not, under rule 8.108(e), extend the time for filing a notice of appeal. (Ten Eyck, supra, 216 Cal.App.3d at p. 545.)
The notice of appeal of the judgment was untimely under rule 8.104(a)(1)(B). The time was not extended under rule 8.108(e) by the subsequent filing of Skromme's invalid motion for reconsideration. This court has no jurisdiction to consider Skromme's appeal from the judgment. (Hollister Convalescent Hosp., supra, 15 Cal.3d at p. 670.)
B. Appeal From Reconsideration Order Is Not Cognizable
The statute that permits a party aggrieved by an order granting or denying a motion to seek reconsideration of that order, section 1008, subdivision (a), reads in part: "When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." The denial of a reconsideration motion under section 1008, "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." (§ 1008, subd. (g); see George v. Shams-Shirazi (2020) 45 Cal.App.5th 134, 138.)
Since Skromme was not the party who moved for summary judgment, we are not concerned here with subdivision (b) of section 1008, which permits the party who had originally made the application for relief to bring a motion to reconsider the resulting order based "upon new or different facts, circumstances, or law."
Skromme's motion for reconsideration challenged the court's prior order granting PHH's motion for summary judgment. An order granting summary judgment is not an appealable order. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) Rather, "a party seeking to appeal from a summary judgment must await the trial court's entry of judgment. (Code Civ. Proc., § 437c, subd. (m)(1).)" (Davis v. Superior Court (2011) 196 Cal.App.4th 669, 672.) Accordingly, the exception under section 1008, subdivision (g) that would permit the appeal of a reconsideration order does not apply here; the underlying summary judgment order that was the subject of Skromme's motion for reconsideration was not appealable.
The appeal from the nonappealable order denying Skromme's motion for reconsideration must be dismissed. (See Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302 ["existence of an appealable order . . . is a jurisdictional prerequisite to an appeal. . . [and] if the order . . . is not appealable, the appeal must be dismissed"].)
Although it is unnecessary to reach the issue because the appeal of the reconsideration order must be dismissed, it is clear that such an appeal, if cognizable, would have no merit, since the trial court had no authority to decide the motion because it was filed after the judgment was entered. (Sole Energy, supra, 128 Cal.App.4th at p. 192.)
III. DISPOSITION
The appeals filed on July 7, 2022, from (1) the judgment entered on April 19, 2022, and (2) the order denying motion for reconsideration made July 1, 2022, are dismissed.
WE CONCUR: DANNER, J., WILSON, J.