Filed 12/11/13 Neff v. DeNoce CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


RONALD A. NEFF,                                                      B243414

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. LS020957)
         v.

DOUGLAS J. DENOCE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
James A. Steele, Judge. Dismissed.
         Patrick Laird Swanstrom for Defendant and Appellant.
         Law Offices of Michael D. Kwasigroch and Michael D. Kwasigroch for
Plaintiff and Respondent.
       Defendant and appellant Douglas DeNoce appeals from an order denying his
second special motion to strike under Code of Civil Procedure section 425.16.1
His first anti-SLAPP motion was also denied, and that decision was affirmed on
appeal. We lack appellate jurisdiction because (1) the record contains no final,
signed order from which an appeal may be taken and (2) the second anti-SLAPP
motion is, in substance, a renewal of the original anti-SLAPP motion, and an order
denying a motion to renew an anti-SLAPP motion is not appealable. Therefore, we
must dismiss this purported appeal.


               FACTUAL AND PROCEDURAL BACKGROUND
Neff’s Petition for Injunction Prohibiting Harassment
       On December 13, 2010, plaintiff and respondent Ronald Neff filed a request
for an order to stop civil harassment by DeNoce pursuant to section 527.6, along
with an application for a temporary restraining order (TRO). Neff contended that
DeNoce had stalked and harassed him through such conduct as aggressive driving,
minor verbal threats, obscene hand gestures, and leaving notes about where to park
his car. The court granted the TRO on December 13, 2010.


First Anti-SLAPP Motion
       On December 22, 2010, DeNoce filed a special motion to strike Neff’s
petition for civil harassment pursuant to section 425.16, alleging that the true
purpose of Neff’s petition seeking an injunction against harassment was “to stifle,
interfere with and restrain [DeNoce] from participating in and prosecuting his

1
       Such a motion is “commonly known as an anti-SLAPP (strategic lawsuit against
public participation) motion.” (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 280.) All
further statutory references are to the Code of Civil Procedure unless otherwise indicated.

                                            2
various civil actions against [Neff].” DeNoce, a former dental patient of Neff’s,
had sued Neff in 2008 for dental malpractice. Neff filed for bankruptcy in March
2010 and, according to DeNoce, fraudulently transferred real property to a trust in
order to keep the property out of the hands of his creditors. DeNoce therefore filed
an action to set aside the conveyance as a fraudulent transfer and filed a motion for
relief from the stay in bankruptcy court. In his anti-SLAPP motion, DeNoce
claimed that “[t]he chilling effect of the restraining orders here, where [Neff’s]
attorney objects to questions at depositions in the other civil cases on the grounds
of ‘harassment,’ would interfere with [DeNoce’s] prosecution of his other
matters.” The trial court denied the anti-SLAPP motion on the ground that it was
untimely.
      DeNoce appealed the denial of the anti-SLAPP motion.2 Although we
concluded that the trial court had abused its discretion in denying the anti-SLAPP
motion as untimely, we affirmed the order denying the motion on the ground that
DeNoce had failed to make a prima facie showing that the challenged cause of
action arose from protected activity. Contrary to DeNoce’s contention that Neff
filed the civil harassment petition solely to thwart DeNoce’s litigation against him,
we found that the principal thrust of Neff’s civil harassment petition was not to
enjoin DeNoce from engaging in litigation conduct, but to prevent him from
engaging in conduct irrelevant to the litigation, such as driving in a threatening
manner.




2
      We have taken judicial notice of the appellate record in the appeal from the order
denying DeNoce’s first anti-SLAPP motion, in case No. B230064.

                                            3
Second Anti-SLAPP Motion
      On July 18, 2012, DeNoce filed a second anti-SLAPP motion directed at the
same December 13, 2010 petition by Neff alleging harassment. The new motion
alleged that since the filing of the first anti-SLAPP motion, “substantial new
evidence” had become available to support the motion. In particular, DeNoce
alleged, the evidence demonstrated that Neff had obtained and then used the TRO
for the improper purpose of interfering with DeNoce’s pursuit of his other civil
actions against Neff. For instance, he contends that Neff invoked the TRO to
avoid obeying a subpoena in his bankruptcy case and to avoid answering
deposition questions in DeNoce’s medical malpractice suit against him.
      Neff opposed the second anti-SLAPP motion, asserting that (1) it was a
veiled motion for reconsideration of the original anti-SLAPP motion that did not
comply with the requirements for motions for reconsideration under section 1008,
and (2) the previous decision of the Court of Appeal affirming the denial of the
motion constituted the binding law of the case. In reply, DeNoce argued that “[i]t
goes without saying that any motion may be re-filed at any time based upon new
evidence,” and that the Court of Appeal “did not rule out a renewed Motion based
upon new facts.”
      The trial court deemed DeNoce’s second anti-SLAPP motion timely.
Addressing the merits, the court noted that DeNoce’s motion asserted the same
argument made in his original anti-SLAPP motion -- that Neff obtained and used
the TRO for the improper purpose of interfering with DeNoce’s pursuit of his other
legitimate civil actions against Neff -- but the second motion was supported by
purported “new evidence.” However, the court found that the “new evidence”
demonstrated only that Neff was trying to litigate cases relating to his bankruptcy



                                          4
proceeding and other unrelated cases, not harass DeNoce. The court thus denied
the motion.
         DeNoce purports to appeal from the denial of the second anti-SLAPP
motion. As discussed below, however, the record does not contain an appealable
order.


                                    DISCUSSION
I.       Lack of Appealable Order
         A. No Final Order Denying Second Anti-SLAPP Motion
         The appendix filed by DeNoce does not include a final order denying the
second anti-SLAPP motion; rather, it includes only the trial court’s August 16,
2012 tentative decision denying the motion.3 An appeal may not be taken from a
tentative decision. (In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789,
794; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1121.) On
our own motion, we have augmented the record to include a minute order dated
August 16, 2012, demonstrating that the trial court adopted its tentative decision.
(Cal. Rules of Court, rule 8.155(a)(1)(A) [“(a)(1) At any time, on motion of a
party or its own motion, the reviewing court may order the record augmented to
include: [¶] (A) Any document filed or lodged in the case in superior court.”].)
We note, however, that the minute order directed Neff to submit a proposed order.
As such, an appeal may not be taken from the August 16, 2012 minute order.
(Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304 [“[W]here findings of fact or a

3
       We also note that DeNoce violated the California Rules of Court by failing to
include the notice of appeal in his appendix. (Cal. Rules of Court, rules 8.124(b)(1)(B)
and 8.122(b)(1)(A).) However, our own clerk’s file shows a notice of appeal was filed on
August 17, 2012, and thus we may overlook DeNoce’s failure to include a copy in his
appendix. (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1261, fn. 5.)

                                           5
further or formal order is required, an appeal does not lie from a minute order.”];
Cal. Rules of Court, rule 8.104(c)(2) [“The entry date of an appealable order that is
entered in the minutes is the date it is entered in the permanent minutes. But if the
minute order directs that a written order be prepared, the entry date is the date the
signed order is filed.”]; Cole v. Patricia A. Meyer & Associates, APC (2012) 206
Cal.App.4th 1095, 1123, fn. 9.)
      We requested supplemental briefing on the question whether the appeal
should be dismissed for failure to obtain and include in the appellate record a
formal order. DeNoce filed a letter brief in which he concedes that the superior
court record contains no such order. However, he argues that this court would be
elevating form over substance were we to dismiss his appeal based on the lack of a
final, appealable order, when the parties have treated the trial court’s tentative
ruling as the final order on the anti-SLAPP motion. He further asserts that he
should not be penalized when it was Neff’s responsibility to submit a proposed
order. His arguments are not well-taken.
      “‘In California the right to appeal in civil actions is wholly statutory.
[Citation.] In order to exercise that right an appellant must have standing to
appeal, and must take an appeal from a statutorily declared appealable judgment or
order.’ [Citation.]” (Jordan v. Malone (1992) 5 Cal.App.4th 18, 21 (Jordan).)
“[A] court has no discretion to hear the merits of a case over which it lacks
jurisdiction.” (Planning & Conservation League v. Department of Water
Resources (1998) 17 Cal.4th 264, 274.) Further, even though Neff was the party
directed to prepare and submit a proposed order, his failure to do so does not
relieve DeNoce from the requirement of appealing from an appealable order.
(Jordan, supra, 5 Cal.App.4th at p. 21.) “[T]he ultimate responsibility rests with
the appealing party,” and DeNoce could have requested the trial court to compel

                                           6
Neff to prepare the order or requested permission to prepare and file the order
himself to perfect his appeal rights. (Ibid.)
      In sum, we do not address the merits of DeNoce’s appeal in the absence of
an appealable order.


      B. Order Denying Renewed Anti-SLAPP Motion Is Not Appealable
      Even if DeNoce were able to procure a final, signed order denying his
second anti-SLAPP motion and we were to treat the instant appeal as being taken
from that order, we would still lack jurisdiction.


             1. Second Anti-SLAPP Motion Was a Renewal of Original Anti-
                SLAPP Motion

      For the reasons discussed below, DeNoce’s second anti-SLAPP motion must
be construed as a renewal of his original anti-SLAPP motion, arising under section
1008, subdivision (b).
      Section 1008, subdivision (b), provides: “A party who originally made an
application for an order which was refused in whole or part, . . . may make a
subsequent application for the same order upon new or different facts,
circumstances, or law, in which case it shall be shown by affidavit what application
was made before, when and to what judge, what order or decisions were made, and
what new or different facts, circumstances, or law are claimed to be shown.”
(§ 1008, subd. (b); see Stephen v. Enterprise Rent–A–Car (1991) 235 Cal.App.3d
806, 816 [“Subdivision (b) allows the party who originally applied for an order to
apply for the same order, also based on an alleged different state of facts, provided
the party shows by affidavit the history of the prior application and the alleged new



                                           7
facts.”]4 Further, subdivision (e) of section 1008 provides that “[t]his section
specifies the court’s jurisdiction with regard to applications for reconsideration of
its orders and renewals of previous motions, and applies to all applications to
reconsider any order of a judge or court, or for the renewal of a previous motion,
whether the order deciding the previous matter or motion is interim or final. No
application to reconsider any order or for the renewal of a previous motion may be
considered by any judge or court unless made according to this section.” (§ 1008,
subd. (e).) Section 1008 provides the sole avenue for seeking reconsideration of an
order or renewal of a previously denied motion, and thus “limit[s] the parties’
ability to file repetitive motions.” (Le Francois v. Goel (2005) 35 Cal.4th 1094,
1104.)
       Regardless of a motion’s title, if it raises the same issues as an earlier motion
by the same party that was previously denied, it is properly deemed a renewal of
the earlier motion under section 1008, subdivision (b). (Powell v. County of
Orange (2011) 197 Cal.App.4th 1573, 1577 (Powell) [“The name of a motion is
not controlling, and, regardless of the name, a motion asking the trial court to
decide the same matter previously ruled on is a motion for reconsideration under
Code of Civil Procedure section 1008”]; Gilberd v. AC Transit (1995) 32
Cal.App.4th 1494, 1502.) DeNoce’s second anti-SLAPP motion was captioned a
“Special Motion to Strike Petition for Civil Harassment.” He had filed an
identically-titled motion a year and a half earlier. DeNoce characterized the
second motion as a “renewed” motion to strike based on new facts, and Neff

4
       While section 1008, subdivision (b) permits a party to renew its own motion that
previously was denied, section 1008, subdivision (a) permits any party affected by an
order, regardless of whether it was denied or granted, to seek reconsideration of the order,
subject to certain prerequisites. (§ 1008, subds. (a), (b); see Kerns v. CSE Ins. Group
(2003) 106 Cal.App.4th 368, 381.)

                                             8
objected on the ground that it was an improper motion for reconsideration that did
not meet the requirements set forth in section 1008. As the trial court noted in its
ruling, DeNoce’s second anti-SLAPP motion was directed at the same petition
alleging harassment, and made the same arguments as the first anti-SLAPP motion,
the only difference being that it cited purported new evidence in support of the
arguments. On appeal, DeNoce does not dispute that his second anti-SLAPP
motion is governed by section 1008. Therefore, DeNoce’s second anti-SLAPP
motion constituted a renewal of its original anti-SLAPP motion governed by
section 1008, subdivision (b). (See Kunysz v. Sandler (2007) 146 Cal.App.4th
1540 , 1543 [“a motion for reconsideration under section 1008, subdivision (b), is
permitted in the context of anti-SLAPP motions”].)5


             2. Order Denying Renewed Anti-SLAPP Motion is Not Appealable
      Prior to 2012, there was a split in decisional authority over whether an order
denying a motion for reconsideration under section 1008 was separately
appealable. As the court noted in Powell, supra, 197 Cal.App.4th 1573, “[t]he
majority of courts addressing the issue have concluded an order denying a motion
for reconsideration is not appealable, even when based on new facts or law.
(Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043,


5
        Unlike a motion for reconsideration of an order brought pursuant to section 1008,
subdivision (a), which must be brought within 10 days (§ 1008, subd. (a)), there is no
specified period limiting when a renewal of a previous motion pursuant to section 1008,
subdivision (b) may be filed. (Stephen v. Enterprise Rent–A–Car, supra, 235 Cal.App.3d
at p. 816.) Generally, an anti-SLAPP suit must be brought within 60 days after service of
the complaint, but the trial court has discretion to allow the filing of an anti-SLAPP
motion “at any later time upon terms it deems proper.” (§ 425.16, subd. (f); see Lam v.
Ngo (2001) 91 Cal.App.4th 832, 840.) Thus, the trial court had discretion to treat
DeNoce’s second anti-SLAPP motion as timely.

                                            9
1050; Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008)
166 Cal.App.4th 1625, 1633; Morton v. Wagner (2007) 156 Cal.App.4th 963, 968;
Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1459; Reese v. Wal–Mart
Stores, Inc. (1999) 73 Cal.App.4th 1225, 1242; Crotty v. Trader (1996) 50
Cal.App.4th 765, 769; Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d
1151, 1160–1161 (Rojes), overruled on another ground in Passavanti v. Williams
(1990) 225 Cal.App.3d 1602, 1605. ‘These courts have concluded that orders
denying reconsideration are not appealable because “Section 904.1 of the Code of
Civil Procedure does not authorize appeals from such orders, and to hold otherwise
would permit, in effect, two appeals for every appealable decision and promote the
manipulation of the time allowed for an appeal.”’ [Citation.]” (Powell, supra, 197
Cal.App.4th at pp. 1576-1577; see also Annette F. v. Sharon S., supra, 130
Cal.App.4th at pp. 1458-1459 [“‘The same policy reasons for determining that
denials of motions to vacate judgments and motions for new trial are not
appealable are applicable to denials of motions for reconsideration: namely, to
eliminate the possibilities that (1) a nonappealable order or judgment would be
made appealable, (2) a party would have two appeals from the same decision, and
(3) a party would obtain an unwarranted extension of time to appeal. [Citations.]’
[Citation.]”].) The Powell court agreed with the majority line of cases and
“conclude[d] an order denying a motion for reconsideration is not appealable, even
when based on new facts or law.” (Powell, supra, 197 Cal.App.4th at p. 1577; but
see Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005,
1011 [“order denying reconsideration may be treated as an order made after
judgment” and thus an appealable order, if the original ruling is an appealable
order and if the motion for reconsideration is based on new and different facts],
overruled by Rojes, supra, 203 Cal.App.3d at p. 1160 [“We have now determined

                                         10
that the better ruling is that a denial of a motion for reconsideration is a
nonappealable order.”]; Santee v. Santa Clara County Office of Education (1990)
220 Cal.App.3d 702, 710 [“An order denying a motion for reconsideration thereof
which raises new facts is . . . appealable.”]).
      An amendment to section 1008, subdivision (g), effective January 1, 2012,
has since clarified that “[a]n 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.”
(§ 1008, subd. (g); see Assem. Bill No. 1067 (Reg. Sess. 2011–2012) § 1.) This
amendment thus resolved the split in favor of the majority of courts that had
concluded that an order denying a motion for reconsideration is not appealable,
even when based on new facts and law, unless the appeal from the motion for
reconsideration is coupled with an appeal from the underlying judgment or order.
(Powell, supra, 197 Cal.App.4th at p. 1576.)
      DeNoce’s second anti-SLAPP motion falls not under subdivision (a) of
section 1008, but under subdivision (b), as a renewal of a previously-denied anti-
SLAPP motion. Subdivision (g) does not address the appealability of orders
denying renewed motions pursuant to section 1008, subdivision (b). In their
briefing, the parties did not address the appealability of the order denying
DeNoce’s renewed anti-SLAPP motion, but we requested and received
supplemental briefing from DeNoce on the issue.
      In his letter brief, DeNoce makes no argument that an appeal from an order
denying a renewed motion under section 1008, subdivision (b) should be
appealable where an appeal from an order denying a motion for reconsideration
under section 1008, subdivision (a), is not. Rather, he suggests that denials of both

                                           11
motions should be treated the same with respect to their appealability. He suggests
that under the recent amendment to section 1008, subdivision (g), a motion for
reconsideration is appealable if the underlying order was appealable. His
interpretation of section 1008, subdivision (g) is incorrect. That provision provides
that an order denying a motion for reconsideration made pursuant to subdivision
(a) is not separately appealable, and provides only that “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), italics added.) Therefore, the provision prohibits a separate appeal from a
motion for reconsideration under section 1008, subdivision (a), and does not assist
DeNoce’s argument that he properly may appeal from the denial of his renewed
anti-SLAPP motion under section 1008, subdivision (b), merely because the order
denying his first anti-SLAPP motion was appealable.
      In determining whether the order denying DeNoce’s renewed motion under
section 1008, subdivision (b) is appealable, we find guidance in Tate v. Wilburn
(2010) 184 Cal.App.4th 150 (Tate). In that decision, the Court of Appeal noted the
“extensive body of case law concerning the appealability of an order denying a
motion for reconsideration under section 1008, subdivision (a).” (Tate, supra, 184
Cal.App.4th at p. 159.) The court further reasoned as follows: “As indicated by
the text of section 1008, motions for reconsideration under section 1008,
subdivision (a), and renewed motions under section 1008, subdivision (b) are
closely related. (See Kerns v. CSE Ins. Group [supra] 106 Cal.App.4th 368, 381
[‘Although the two subdivisions differ in certain minor details, each sets out the
same essential requirements.’].) A party filing either a motion under section 1008,
subdivision (a) or (b) is seeking a new result in the trial court based upon ‘new or
different facts, circumstances, or law.’ (§ 1008, subds. (a), (b).) [¶] Most

                                         12
importantly for purposes of this case, the reasons that this court identified in
Annette F., supra, 130 Cal.App.4th at pages 1458 through 1459, as supporting the
conclusion that an order denying a motion for reconsideration under section 1008,
subdivision (a) is not appealable—i.e., to eliminate the possibilities that (1) a
nonappealable order or judgment would be made appealable, (2) a party would
have two appeals from the same decision, and (3) a party would obtain an
unwarranted extension of time to appeal—apply with equal force to an order
denying a renewed motion pursuant to section 1008, subdivision (b). Indeed, the
possibility that a party may obtain an unwarranted extension of time to appeal is
actually more of a concern with respect to a renewed motion under section 1008,
subdivision (b), in light of the fact that such a motion may be brought at any time,
while a motion for reconsideration must be brought ‘within 10 days after service
upon the party of written notice of entry of the [underlying] order.’ (§ 1008, subd.
(a)).” (Tate, supra, 184 Cal.App.4th at pp. 159-160.) The court thus held that an
order denying a renewed motion pursuant to section 1008, subdivision (b) is not
appealable. (Id. p. 160.)
      We agree with the reasoning of Tate and likewise conclude that an order
denying a renewed motion pursuant to section 1008, subdivision (b) is not
appealable. Therefore, we lack jurisdiction to consider DeNoce’s appeal.6




6
       Although we have discretion to treat a purported appeal from a nonappealable
order as a petition for writ of mandate (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002)
96 Cal.App.4th 1357, 1366-1367), that discretion should be exercised only in
extraordinary circumstances. (Ibid.; In re Marriage of Lafkas (2007) 153 Cal.App.4th
1429, 1434.) We find no such extraordinary circumstances here and thus decline to treat
DeNoce’s purported appeal as a petition for writ of mandate.
                                            13
                    DISPOSITION
The appeal is dismissed. Respondent to have his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                               WILLHITE, J.




We concur:




EPSTEIN, P. J.




MANELLA, J.
