WVJP 2017-2 LP v. Kohan

1

WVJP 2017-2 LP, a California Limited Partnership, Plaintiff and Respondent, v. NEJAT KOHAN, Defendant and Appellant.

E078457

California Court of Appeals, Fourth District, Second Division

July 31, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. CVPS2103085 Kira L. Klatchko, Judge. Appeal Dismissed.

Nejat Kohan, in pro. per., for Defendant and Appellant.

Wilson Elser Moskowitz Edelman &Dicker and Casey Zareh Donoyan for Plaintiff and Respondent.

OPINION

FIELDS J.

I. INTRODUCTION

In 2014, a judgment in excess of $4 million was entered against defendant and appellant Nejat Kohan (Kohan), arising out of a civil action in the Los Angeles County Superior Court. Plaintiff and respondent WVJP 2017-2 (WVJP) is the assignee of the judgment. As part of WVJP's efforts to enforce the judgment, it filed an application in the Riverside County Superior Court pursuant to Code of Civil Procedure^[1] section 704.740 et seq., seeking an order to sell property in which Kohan held an ownership interest (the property). The trial court granted the application in September 2021, and denied a motion for reconsideration of its order in December.

In February 2022, Kohan filed a notice of appeal from the order denying the motion for reconsideration, arguing that the trial court erred by refusing to independently make a factual finding inconsistent with findings already made against Kohan in the proceedings before the Los Angeles County Superior Court. We requested the parties provide supplemental briefing on issues related to our appellate jurisdiction, including (1) whether the appeal was taken from an appealable order (2) the timeliness of the appeal, and (3) the proper scope of our appellate review. Additionally, WVJP filed a motion to dismiss the appeal on the basis that the property has been sold, rendering the appeal moot.

We conclude that the appeal must be dismissed because we lack appellate jurisdiction and, even if we had jurisdiction to review the merits, the appeal has been rendered moot by the sale of the property.

II. PROCEDURAL HISTORY

In 2014, a judgment in excess of $4 million was entered against Kohan in a civil action filed in the Los Angeles County Superior Court. In 2019, WVJP obtained an assignment of the judgment.

In 2020, WVJP sought an order in the Los Angeles County Superior Court pursuant to section 708.510 et seq., seeking an assignment of Kohan's rights to payment from various sources of income. In opposition to this motion, Kohan acknowledged that he held an interest in real property located in Riverside County, but he claimed that rental income from the property could not be assigned to WVJP because the property was already encumbered by a deed of trust in favor of Kohan's brother as security for a loan. However, Kohan simultaneously claimed that income from his law practice could not be assigned to WVJP because the income was being used to pay a judgment in favor of his brother, arising from the same loan. The Los Angeles County Superior Court granted WVJP's request for an assignment order. As part of its findings in support of the order, the trial court found that the property in Riverside County could not be encumbered by the deed of trust in favor of Kohan's brother because Kohan's brother had already elected a remedy by obtaining a money judgment instead of foreclosing on the deed.

In 2021, WVJP filed an application seeking an order to sell the property located in Riverside County as part of its efforts to enforce the judgment. On September 29, 2021, the trial court granted the application and issued the requested order (sale order). The sale order was entered into the minutes, and the clerk of the court served notice of entry that same date.^[2]

On October 8, 2021, WVJP filed a motion for reconsideration of the sale order.

On December 7, the trial court entered an order denying appellant's motion for reconsideration and ordered the clerk of the court to give notice. The clerk filed a certificate of mailing on December 9, and WVJP served written notice the following day.

On January 27, 2022, the trial court entered a formal written order conforming to the sale order that had already been entered into the minutes.

On February 1, 2022, appellant filed a notice of appeal, purporting to appeal from an order entered on December 7, 2021.

On September 12, 2022, WVJP filed a motion to dismiss the appeal, informing this court that the property was sold pursuant to the sale order in April 2022. Kohan filed an opposition to the motion, but did not dispute the underlying fact that the property had been sold.

III. DISCUSSION

In this case, we decline to reach the merits of any of Kohan's arguments on appeal because we conclude that the appeal must be dismissed. As we explain, we lack appellate jurisdiction to review Kohan's claims, and we further conclude that the issues raised on appeal are moot in light of the sale of the property.

A. We Lack Appellate Jurisdiction to Review Kohan's Claims

"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) If it is "determined that the appeal is from a nonappealable order . . . [,] the reviewing court is without appellate jurisdiction," and "that court has no recourse other than to dismiss the appeal on its own motion." (Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 152; In re Javier G. (2005) 130 Cal.App.4th 1195, 1201 ["A reviewing court lacks jurisdiction to consider appeals from a nonappealable order, and has the duty to dismiss such appeals."].)

In this case, Kohan's notice of appeal purports to appeal from a postjudgment order entered December 7, 2021. The only order entered on that date was the trial court's order denying WVJP's motion for reconsideration. However, "[d]enial of a motion for reconsideration is not an appealable order." (People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 973; Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576 ["The majority of courts addressing the issue have concluded an order denying a motion for reconsideration is not appealable ...."].)

Given this record, we requested supplemental briefing specifically requesting that the parties address whether the appeal had been properly taken from an appealable order. In response, Kohan filed a supplemental brief, which merely argued that the sale order was directly appealable but ignored the fact that his notice of appeal identified only the order denying reconsideration as the order from which his appeal was taken. We recognize that a notice of appeal" 'must be liberally construed'" and, in some cases, it is appropriate to construe a notice of appeal from a nonappealable order as an appeal from an underlying, related order. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20-22 ["A reviewing court should construe a notice of appeal from an order denying a new trial to be an appeal from the underlying judgment when it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced."].) However, as we explain, the rule of liberal construction cannot be utilized to confer appellate jurisdiction in this case.

Like the requirement that an appeal be taken from an appealable order, "a timely notice of appeal is a prerequisite to appellate court jurisdiction." (Drum v. Superior Court (2006) 139 Cal.App.4th 845, 852; see Bourhis v. Lord (2013) 56 Cal.4th 320, 324325 ["The time to file notice of appeal, both in civil and criminal cases, has always been held jurisdictional in California."].)" 'An untimely notice of appeal is "wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion." '" (In re Chavez (2003) 30 Cal.4th 643, 650; Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842 [" 'If a notice of appeal is not timely, the appellate court must dismiss the appeal.' "].) Thus, an appeal from the denial of a motion for reconsideration will not be construed as an appeal from the related underlying order, if such an appeal would have been untimely. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-771 [dismissal of appeal from order denying reconsideration where appeal from underlying judgment would have been untimely]; Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669, 1682 [dismissal of appeal from order denying reconsideration where appeal would be untimely if construed as an appeal from the underlying order subject of reconsideration]; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1453 [same].)

As relevant here, a timely notice of appeal must be filed within 60 days after service of notice of entry of the order subject of the appeal. (Cal. Rules of Court, rule 8.104(a), (e).) The sale order was entered in the minutes on September 29, 2021 and the clerk of the court mailed notice that same date. Instead of appealing from the sale order, appellant opted to appeal from an order denying a motion for reconsideration pursuant to section 1008, subdivision (a).^[3] While the filing of a valid motion for reconsideration operates to extend the time to file a notice of appeal, it does so only until the earliest of: (1) 30 days after the superior court clerk or party serves an order denying reconsideration; (2) 90 days after the first motion to reconsider is filed; or (3) 180 days after entry of the appealable order. (Cal. Rules of Court, rule 8.108(e).) In this case, the motion for reconsideration was filed October 8...