Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Charles Eric Powell v. County of Orange et al

August 8, 2011

CHARLES ERIC POWELL, PLAINTIFF AND APPELLANT,
v.
COUNTY OF ORANGE ET AL., DEFENDANTS AND RESPONDENTS.



Appeal from an order of the Superior Court of Orange County, David R. Chaffee. (Super. Ct. No. 07CC05613)

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

Dismissed.

INTRODUCTION

Plaintiff Charles Eric Powell appeals from an order denying his motion for reconsideration. He sought reconsideration of an order denying his motion to set aside an order dismissing the action in the trial court for lack of prosecution. We dismiss the appeal for lack of appellate jurisdiction.

We publish our opinion to emphasize two points. First, we join with those appellate courts holding an order denying a motion for reconsideration is not appealable. Second, an order of dismissal is ineffective as a judgment under Code of Civil Procedure section 581d (section 581d) unless it is in writing, signed by the trial court, and filed. A minute order that is not signed by the trial court does not qualify as a judgment under section 581d.

BACKGROUND

In May 2007, Powell filed a complaint against the County of Orange, the Orange County Sheriff, and two Orange County Sheriff's deputies (Defendants), asserting causes of action for civil rights violations, conspiracy to violate civil rights, false arrest, negligence, intentional infliction of emotional distress, violation of the California Constitution, assault and battery, and malicious prosecution. Powell filed a first amended complaint (the Complaint) in July 2007, and Defendants answered the Complaint in September 2007.

In September 2009, the trial court set an order to show cause regarding dismissal for lack of prosecution or failure to proceed. When Powell's counsel did not appear at the hearing on the order to show cause, the trial court issued a minute order dated October 7, 2009, dismissing the action without prejudice for lack of prosecution. The minute order is not signed, and a signed order made pursuant to section 581d does not appear in the clerk's transcript or in the superior court's register of actions.

In April 2010, Powell filed a "Motion to Set Aside Dismissal Judgment" (the set aside motion). The set aside motion was made pursuant to Code of Civil Procedure section 473, subdivision (b) (attorney fault) and included a declaration from Powell's trial counsel stating, "[d]ue to my mistake, inadvertence, surprise, or neglect I did not properly keep track of this case and did not respond to discovery." Defendants opposed the set aside motion.

On May 21, 2010, the same day as the hearing on the set aside motion, Powell filed a substitution of counsel. The trial court denied the set aside motion. A notice of ruling was served on May 24, 2010.

On June 4, 2010, Powell's new trial counsel filed a "Motion to Reconsider Denial of Motion to Set Aside Dismissal and Entry of Judgment; Alternatively to Set Aside the Dismissal of the Action and Judgment" (the Motion for Reconsideration). The Motion for Reconsideration was made pursuant to Code of Civil Procedure sections 473, subdivision (b) and 1008, and asserted the conduct of Powell's former counsel "goes beyond that of those factors set forth in C.C.P. § 473(b) and are more appropriately characterized as positive misconduct." The Motion for Reconsideration included declarations from Powell's trial counsel, former trial counsel, and from Powell himself. Defendants opposed the Motion for Reconsideration.

The trial court denied the Motion for Reconsideration at the hearing on July 2, 2010. The court concluded there were no new facts or law to support the Motion for Reconsideration, the Motion for Reconsideration was untimely, and the conduct of Powell's former counsel did not amount to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.