Opinion
Judith Burgard appeals from a sanctions order entered by the family law court on August 12, 1997, and from an order denying her motion for reconsideration and assessing additional sanctions entered on October 31, 1997.
Facts
Judith Burgard married the late J. Keith Burgard in 1971 and separated from him in 1981. Judith petitioned for dissolution of marriage, and the parties’ marital status was terminated in 1990. Keith remarried shortly thereafter. By 1992, he became seriously ill. He died in 1994.
Before Keith’s death, the parties had never had their community property interests formally adjudicated by the court. They did enter into qualified domestic relations orders (QDRO’s), however, regarding two of Keith’s retirement plans.
The backdrop of this appeal is a third retirement plan that the parties did not divide prior to Keith’s death. Keith left the proceeds from this third plan to his second wife, Susan. When Susan applied to Kaiser for benefits under that plan, she discovered that Judith had sent a “notice of possible interest” to Kaiser. Because of that notice, Kaiser withheld Susan’s benefits and Susan was forced to litigate.
On January 13, 1997, Susan filed a motion in Judith and Keith’s marital dissolution action to be joined as a party and to obtain an order releasing any claimed interest of Judith in the third retirement plan.
Judith’s attorney filed no opposition but did attend the March 26th hearing. The court granted Susan’s joinder motion but continued the hearing on her motion to release Judith’s interest in the third retirement plan until May 8th to give Judith a second opportunity to file opposition. Again, however, Judith filed no opposition nor did she appear at the hearing. Evidence was presented by Susan’s certified public accountant (CPA) that the community interest in the third retirement plan was approximately
Judith’s attorney filed a motion for relief from default pursuant to Code of Civil Procedure section 473. He explained his absence at the hearing was the result of a calendaring mistake, but he did not explain why he did not file any opposition papers. Nor did he attach any proposed opposition to his motion for relief from default. Susan opposed the motion, pointing out its deficiencies, and requested sanctions pursuant to Family Code section 271 and Code of Civil Procedure section 128.5. On July 30, 1997, the court entered its order denying Judith’s Code of Civil Procedure section 473 motion and asked the parties to submit additional briefing on the question of sanctions.
After receiving and reviewing the parties’ briefs, the court entered its order on August 12, 1997, directing Judith to pay $10,864.88 to Susan in attorney’s fees and costs.
On August 22, 1997, Judith filed a motion for reconsideration of the sanctions order. She claimed the motion was “premised upon new facts and circumstances that were not brought to the court’s attention previously due to the fact that the document [a 1992 letter from Keith asking Judith to sign a spousal consent form so that he could borrow funds from one of his retirement plans] had not been discovered—Petitioner had no idea what the document was and that it had any affect [sic] upon the issues of this case.”
Susan opposed the motion for reconsideration, pointing out, inter alia, that the 1992 letter, always in Judith’s possession, could hardly be classified as “ ‘newly discovered’ ” evidence. She asked the court to “award additional fees and costs [under Family Code section 271] of no less than $3,335 for this frivolous motion,” and she attached an attorney declaration setting forth the hours spent in researching the issues, writing the brief, and attending the hearing on the motion.
After a hearing, the court on October 31, 1997, denied Judith’s motion for reconsideration and ordered her to pay to Susan the additional sum of $2,500 for attorney’s fees.
Judith filed a notice of appeal on November 25, 1997, from the “orders entered July 30, 1997,[
Discussion
1. August 12, 1997, Order Directing Judith to Pay $10,864.88 to Susan in Attorney’s Fees and Costs
As a general rule, the deadline for filing a notice of appeal is “the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a document entitled ‘notice of entry’ of judgment; (2) 60 days after the date of service of a document entitled ‘notice of entry’ of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days after the date of entry of the judgment.” (Cal. Rules of Court, rule 2(a).)
An exception to the 60-day time limit set forth in rule 2 applies in cases where a party files a motion for new trial or a motion to vacate a judgment. Rule 3(a) states: “When a valid notice of intention to move for a new trial is served and filed by any party and the motion is denied,
Numerous courts have treated a motion for reconsideration like a motion for a new trial or a motion to vacate a judgment entitled to the 30-day extension of rule 3(a). (See, e.g., Blue Mountain Development Co. v. Carville (1982)
But even if this court were to agree with the courts treating a motion for reconsideration like a motion for new trial entitled to the 30-day extension of rule 3(a), Judith’s appeal would still be untimely. As the court explained in Miller v. United Services Automobile Assn. (1989)
The Miller court stated, “A reading of rule 3(a) (allowing a 30-day appeal extension following denial of a new trial motion) with section 660 (allowing 60 days for denial of the new trial order by operation of law) indicates the maximum extension of appeal time when a new trial motion is involved is 90 days. [H] . . . RD While Miller would have us find the motion for reconsideration analogous to the new trial motion for some purposes (e.g., so he can take advantage of the rule 3(a) extensions), but not for other purposes (e.g., so he is not subject to the entry of the order by operation of law per § 660) [,] . . . [we conclude that if a] motion for reconsideration is ‘subject to the qualifications stated in rule 3[,]’ [] [then] the procedural restrictions central to a rule 3(a) motion for new trial, including section 660, [should also apply]. Therefore, the notice of appeal was untimely in that it was filed more than 30 days after denial of the motion by operation of law, and not within the maximum 90-day period.” (Miller v. United Services Automobile Assn., supra, 213 Cal.App.3d at pp. 226-228, italics added, fns. omitted; accord, Gill v. Hughes (1991)
Applying the Miller rule to this case, the August 12, 1997, order was deemed denied on October 11, 1997. Because the notice of appeal was not filed within 30 days of that date, it is time-barred.
2. October 31, 1997, Order Denying Motion for Reconsideration
“Courts are split as to whether an order denying reconsideration (Code Civ. Proc., § 1008) is appealable. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 1993) § 2:158, p. 2-49.) Some courts allow the appeal if the underlying order was appealable and the motion for reconsideration was based on new or different facts. [Citation.] Other courts deem orders denying reconsideration analogous to nonappealable orders denying a new trial and, thus, treat them as nonappealable. [Citations.]” (Alioto Fish Co. v. Alioto (1994)
Most of the recent cases consider a motion for reconsideration never appealable. (See, e.g., Crotty v. Trader, supra,
Assuming we were to maintain the position we held in Santee v. Santa Clara County Office of Education, supra,
Under these circumstances, we conclude the October 31, 1997, order denying reconsideration was not appealable even under the line of authority that holds such an order is appealable when the motion for reconsideration is based on “new or different facts.”
3. October 31, 1997, Order Awarding Additional Sanctions
The court’s October 31, 1997, order not only denied Judith’s motion for reconsideration, it also ordered her to pay Susan an additional $2,500 in attorney’s fees and costs
Family Code section 271 provides that the court may impose an award of attorney’s fees and costs “in the nature of a sanction” where the conduct of a party or attorney “furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”
A sanction order under Family Code section 271 is reviewed under the abuse of discretion standard. “ ‘[T]he trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . .’ [Citations.]” {In re Marriage of Daniels (1993)
Applying the applicable standard to the case at bar, we conclude there was no abuse of discretion in assessing additional sanctions. Judith’s prior conduct had resulted in an earlier sanction award and her new motion for reconsideration did not present any new or different facts. Susan was obligated to respond to an unnecessary motion, to write a brief, to research the law on motions for reconsideration, to appear at yet another hearing. Her attorney documented
Disposition
The judgment is affirmed.
Premo, J., and Elia, J., concurred.
Notes
In her November 25, 1997, notice of appeal, appellant indicated she was appealing from three orders, the first entered on July 30, 1997, the second on August 12, 1997, and the third on October 31, 1997. In her brief on appeal, she abandons any argument regarding the July 30, 1997, order, apparently recognizing that the time for appealing from that order had long passed. Respondent Susan Burgard did not file a brief in opposition to this appeal.
A11 of Keith’s retirement plans were based on his service as a physician for the Permanente Medical Group (Kaiser).
In that letter, Keith assured Judith, “I am Not reducing your interest in these funds. The court will decide what your interest is and there will be more than enough to cover your interest.”
See footnote 1, ante.
All further references to “rules” or “rule” are to the California Rules of Court.
A new trial motion is denied by operation of law 60 days from the date of the notice of entry of judgment (a jurisdictional limitation). (Code Civ. Proc., § 660.)
Approximately 10 years ago, before the recent spate of opinions holding that motions for reconsideration are never appealable, we noted in Santee v. Santa Clara County Office of Education (1990)
The court’s order did not specify that the award was authorized by Family Code section 271; however, Susan had requested additional fees pursuant to that section in the amount of $3,335. The court’s order was its ruling on her request.