Latin Power Music v. Corporativo Latin Power Music CA5

Filed 7/15/26 Latin Power Music v. Corporativo Latin Power Music CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

LATIN POWER MUSIC USA, LLC,
F089865
Plaintiff and Respondent,
(Super. Ct. No. CV-22-003928)
v.

CORPORATIVO LATIN POWER MUSIC, SA
DE CV, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. John D.
Freeland, Judge.
Singh, Singh & Trauben and Michael A. Trauben for Defendant and Appellant.
Scarborough Law and Tiffany P. Scarborough for Plaintiff and Respondent.
-ooOoo-
A lender sued a borrower for failing to repay a $350,000 loan. The borrower did
not respond to the lawsuit, and the lender obtained a default judgment. Approximately
18 months later, the borrower filed a motion pursuant to Code of Civil Procedure
section 473, subdivision (d) (section 473(d))1 to set aside and vacate the judgment. The
motion was denied.
The borrower did not file a timely notice of appeal with respect to the order
denying its motion. The borrower now contends the deadline to appeal that order was
extended by subsequent efforts to obtain relief in the trial court. Finding no merit in
those arguments, we dismiss the appeal for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Parties
Plaintiff below and respondent herein is Latin Power Music USA, LLC (plaintiff),
a California limited liability company based in Turlock. Defendant below and appellant
herein is Corporativo Latin Power Music, SA de CV (defendant), a Mexican corporation
based in Monterrey, Nuevo León, Mexico.
Trial Court Proceedings
Plaintiff sued defendant for breach of contract based on defendant’s alleged
nonpayment on a promissory note. The note memorialized a $350,000 loan “due and
payable on or before May 31, 2020.” Plaintiff’s civil complaint was filed in the
Stanislaus Superior Court on August 31, 2022.
In December 2022, plaintiff filed a proof of service of the summons and
complaint. In this filing, a registered process server attested to personally serving Jose
Serrano Montoya (Montoya) at a particular location in Turlock on October 27, 2022.
Montoya is defendant’s principal corporate officer and authorized agent for service of
process.

1 All undesignated statutory references are to the Code of Civil Procedure.

2.
In January 2023, plaintiff requested and received an entry of default against
defendant. Plaintiff served notice of the entry of default and its request for a clerk’s
judgment upon defendant by mail. Plaintiff also sent a courtesy copy of the notice to
defendant’s agent, Montoya, via e-mail.
In April 2023, plaintiff filed an amended request for a clerk’s judgment. This was
done to delete certain inapplicable fees and update the calculation of accrued interest.
Notice of the amended request was served upon defendant by mail.
On May 11, 2023, a default judgment (§ 585, subd. (a)) was entered against
defendant in the amount of $452,358 (rounded). This sum represented the outstanding
principal balance of the loan ($350,000) plus interest and costs. On June 1, 2023,
plaintiff filed and served a notice of entry of judgment. Service was accomplished by
mail, and a courtesy copy was sent to defendant’s agent, Montoya, by e-mail.
Approximately 18 months later, in December 2024, defendant filed a motion to set
aside and vacate the default judgment. The motion was made pursuant to section 473(d),
based on circumstances allegedly rendering the judgment void. The motion was
supported by sworn declarations from three individuals: Montoya, Armando Ayala, and
defendant’s attorney of record at the time.
Montoya’s declaration stated that he is “a music producer who produces and
creates music through [his] company, the defendant in this action.” Montoya
acknowledged that he may have been served with the complaint and summons on the date
specified in the proof of service (Oct. 27, 2022). According to his declaration, Montoya
was in Turlock at or around that time to meet with an individual named Kevin Berger,
whom he identified as plaintiff’s “member/manager” and his (Montoya’s) former
business partner. The declaration further explained that because Montoya does not
“speak, read or understand English,” he relied on declarant Armando Ayala to “translate
English to Spanish” for him during the meeting with Berger.

3.
Montoya recalled that an unidentified woman approached him during the meeting
and handed him a sealed envelope. The woman allegedly “spoke no words at all” and did
not otherwise indicate “the nature of the documents she was handing [him].” Berger
allegedly stated that the envelope contained “‘expected contracts’” pertaining to the
matters about which he and Montoya were meeting. In reliance on Berger’s statement,
Montoya handed the envelope to his translator, Ayala, “to hold for [him] to give to [his]
legal counsel to review at a later date.”
The declaration of Ayala corroborated Montoya’s version of events. Ayala
recalled an unidentified woman handing a “packet” to Montoya during the meeting with
Berger. The woman made no statements, but Berger said, “‘Those are the expected
contracts.’” Ayala further attested to taking possession of the sealed packet at Montoya’s
request and eventually misplacing it. Since the packet was now lost, he and Montoya
were “not even sure” that it truly contained the complaint and summons in this lawsuit.
The declarations left several questions unanswered regarding defendant’s delay in
moving to set aside the judgment. Montoya claimed to have last seen Berger at their
meeting in 2022, but he contradicted himself in the same declaration by alleging that he
and defendant’s attorney met with Berger in March 2024 to discuss a separate legal
matter. It was during the March 2024 meeting that Montoya and defendant’s lawyer
allegedly first learned of the default judgment in this case. Montoya did not explain how
defendant could have been unaware of the lawsuit despite plaintiff’s service by mail and
e-mail of numerous legal notices concerning the default judgment proceedings in 2023.
Nor was any explanation provided as to why, given Montoya’s and defense counsel’s
admitted knowledge of the judgment in March 2024, defendant waited until December
2024 to seek relief.
Plaintiff opposed the motion. The opposition was supported by declarations from
three individuals: Berger, the process server, and plaintiff’s attorney of record. Berger’s
declaration explained that he is essentially plaintiff’s sole agent and operator. As relevant

4.
here, Berger attested to hiring the declarant process server to personally serve the
complaint and summons on Montoya as described in Montoya’s declaration. According
to Berger, however, the process server followed his express instructions to inform
Montoya in both English and Spanish “that he was being served .…” Montoya allegedly
opened the envelope and removed its contents during the meeting, whereupon he and
Berger “discussed the lawsuit with the assistance of his interpreter.”
Berger further declared, “I did not tell him that the envelope contained contracts. I
did not lie to Mr. Montoya or make any false or misleading statements to him about the
contents of the envelope. Mr. Montoya did not hand the envelope to his interpreter (or
anyone else) prior to opening the envelope and discussing the contents with me.”
The process server’s declaration corroborated Berger’s statements about providing
advance instructions on speaking to Montoya in both English and Spanish. She explained
that it was already her custom and practice to “tell a person that they are being served
when I serve them.” In this instance, Berger had told her “that whoever served
Mr. Montoya needed to speak Spanish.” The process server declared that she did in fact
tell Montoya in English and Spanish that he had been served. She further declared that
Berger “did not tell Mr. Montoya that the envelope [she] gave him contained contract
documents while [she] was present.”
The declaration of plaintiff’s attorney verified that service of the notices of entry
of default and default judgment were duly served upon defendant by mail in 2023. The
attorney further attested to sending courtesy copies to Montoya via e-mail. Proof of
delivery confirmation for the e-mailed notice of entry of judgment and accompanying
documents was attached to the declaration as an exhibit.
Defendant’s motion was heard on January 15, 2025. The trial court had issued a
tentative ruling to deny the motion, which it adopted after the matter was heard. Plaintiff
was instructed to prepare the written order, which the court signed on January 27, 2025.
It read, in pertinent part, “The Court finds that the Proof of Service of Summons, as well

5.
as the process server’s declaration in opposition to the motion, establish that proper
service was accomplished on 10-27-22. While the facts related in the motion may
suggest grounds for relief under [sections] 473[, subdivision ](b) or 473.5, the motion is
untimely under either of those sections. [¶] … After hearing the oral arguments of both
parties, the Court [finds the process server’s declaration] compelling that she told
Mr. Montoya in English and in Spanish that he was being served when she served him
with process .…”
A notice of entry of the order was duly served by plaintiff’s counsel on
January 28, 2025. On February 7, 2025, defendant served plaintiff with a motion for
reconsideration of that order. However, the motion was not filed with the trial court until
February 20, 2025. The motion for reconsideration was expressly made pursuant to
section 1008, subdivision (a) (section 1008(a)), which specifies a 10-day filing deadline
as calculated from the date of “service upon the [moving] party of written notice of entry
of the order” that is subject to reconsideration. (Ibid.)
Plaintiff contends it did not realize the motion for reconsideration was not filed at
the time of service. Defendant’s motion papers specifically represented that the motion
was “being filed” within the 10-day deadline of section 1008(a), and was therefore
“timely.” Plaintiff thus proceeded to oppose the motion on its merits. The trial court
apparently overlooked the untimeliness of the motion as well.
Defendant’s motion for reconsideration was primarily based on a declaration from
another person who was present during the October 2022 meeting between Montoya and
Berger. The declarant, David Hernandez, averred that “[t]o the best of [his]
recollection,” the process server did not say anything to Montoya when she handed him
the envelope. Hernandez further declared that Berger said the envelope contained
contracts. “To the best of [his] recollection[,] at no time did Kevin Berger discuss any
lawsuit or mention a lawsuit.”

6.
The motion for reconsideration was heard on April 2, 2025. At the conclusion of
the hearing, the trial court adopted its tentative ruling to deny the motion. A written order
was signed on April 21, 2025. The order contained the following explanation:

“The Court questions the veracity of both the ‘new’ evidence Defendant
seeks to submit with this motion and Defendant’s purported explanation for
the failure to present such evidence earlier. In addition, Mr. Hernandez’s
declaration does not provide any factual information that was not
considered by the Court in connection with its prior ruling. However, even
assuming arguendo that Mr. Hernandez’ declaration constitutes ‘new facts
or circumstances’ within the scope of [section] 1008(a), the Court finds that
the information provided does not warrant reversal of its prior order
denying Defendant’s motion to set aside the default. The evidence
supporting the conclusion that service was properly accomplished remains
compelling, and Defendant’s ‘new’ evidence does nothing to change the
conclusion that the underlying motion was untimely under [sections] 473[,
subdivision ](b) and 473.5.”
A notice of entry of the order denying the motion for reconsideration was served
by plaintiff’s counsel on April 22, 2025.
Appellate Proceedings
Defendant filed a notice of appeal on May 20, 2025. As stated therein, the appeal
is taken from the order of “January 28, 2025,” denying defendant’s motion to set aside
the judgment. The appeal is said to be authorized by section 904.1, subdivision (a)(2),
and rule 8.108(e) of the California Rules of Court.2
In its opening brief, defendant contends the appeal is timely because it was filed
“within 30 days of service of the trial court’s April 22, 2025 order denying [the] motion
for reconsideration .…” This argument is based on rule 8.108(e). Defendant
acknowledges that the denial of a motion for reconsideration is not a separately
appealable order and is not reviewable unless the earlier ruling that was reconsidered is
appealable. (§ 1008, subd. (g).)

2 All undesignated rule references are to the California Rules of Court.

7.
Plaintiff, in the respondent’s brief, argues that the untimeliness of defendant’s
motion for reconsideration precludes application of the 30-day extension period upon
which defendant relies. In other words, the deadline for filing the notice of appeal was
not extended by rule 8.108(e). As such, defendant’s notice of appeal was filed too late
and the case must be dismissed for lack of appellate jurisdiction. Contingent on the
determination of jurisdiction, plaintiff further contends both motions were properly
denied and the judgment should be affirmed.
In the reply brief, defendant effectively concedes that the motion for
reconsideration was untimely. Defendant presents two arguments for finding the
existence of appellate jurisdiction. Those positions will be explained in the Discussion,
post.
DISCUSSION
“The time for appealing a judgment is jurisdictional; once the deadline expires, the
appellate court has no power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v.
Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) The same is
true with respect to appealable orders. (Marshall v. Webster (2020) 54 Cal.App.5th 275,
279–281.) “Appellate jurisdiction cannot be conferred by consent, stipulation, estoppel,
or waiver [citation], and the absence of appellate jurisdiction may be raised at any time.”
(Ponce-Bran v. Trustees of Cal. State University (1996) 48 Cal.App.4th 1656, 1660,
fn. 2; accord, Reyes v. Kruger (2020) 55 Cal.App.5th 58, 70.) “If a notice of appeal is
filed late, the reviewing court must dismiss the appeal.” (Rule 8.104(b).)
A notice of appeal is generally due within 60 days of service of a notice of entry of
the judgment or appealable order, unless a statute or rule provides otherwise.
(Rule 8.104(a)(1), (e).) As we will explain, the deadline to appeal from the order denying
defendant’s motion to set aside the judgment was March 31, 2025. The notice of appeal
was not filed until May 20, 2025. Defendant’s untimely motion for reconsideration did

8.
not extend the jurisdictional deadline, and the trial court’s denial of that motion is not an
independently appealable order. Therefore, the appeal must be dismissed.
Legal Overview
Default judgments are appealable and, like other judgments, the ordinary deadline
for a notice of appeal is 60 days from service of the notice of entry of judgment. (See
Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766–767; rule 8.104(a).) However, a
defaulted party who fails to meet that deadline is not without recourse. There are other
ways to get a default judgment set aside. Section 473, subdivision (b) (section 473(b))
gives trial courts broad discretion to grant relief “from a judgment, dismissal, order, or
other proceeding taken against the party through the party’s mistake, inadvertence,
surprise, or excusable neglect.” (Ibid.) A different statute, section 473.5, authorizes
relief from a default judgment where “service of a summons has not resulted in actual
notice to a party in time to defend the action .…” (Id., subd. (a).)
A motion for relief under section 473(b) must be filed within six months “after the
judgment, dismissal, order, or proceeding was taken.” Section 473.5 also has a six-month
deadline, which is calculated from the date of “service on the [defaulted] party of a
written notice that the default or default judgment has been entered.” (Id., subd. (a).)
Here, since the notices of entry of default and default judgment were both served upon
defendant in 2023, the trial court was correct in noting that relief was no longer available
under sections 473(b) or 473.5. Defendant thus relied on section 473(d)).
There is no deadline for filing a section 473(d) motion, but the grounds for relief
are limited. (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 212.)
“Section 473(d) addresses the situation where the judgment is ‘void,’ such as when the
defendant has not been properly served.” (Id. at p. 215.) If the defendant was properly
served, the trial court has discretion to exercise its “‘“‘inherent equity power’”’” to vacate
the judgment upon a showing of extrinsic fraud or extrinsic mistake. (Department of
Industrial Relations v. Davis Moreno Construction, Inc. (2011) 193 Cal.App.4th 560,

9.
570; see Hoehn, supra, at p. 226.) “Extrinsic fraud only arises when one party has in
some way fraudulently been prevented from presenting his or her claim or defense.”
(Davis Moreno Construction, Inc., supra, at p. 570; see Rodriguez v. Cho (2015) 236
Cal.App.4th 742, 750.) Extrinsic mistake similarly refers to “circumstances extrinsic to
the litigation [that] have unfairly cost a party a hearing on the merits.” (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 981.)
An order denying relief under section 473(d) is appealable as an order made after a
final judgment. (§ 904.1, subd. (a)(2); Doppes v. Bentley Motors, Inc. (2009) 174
Cal.App.4th 1004, 1008–1009 (Doppes).) Depending on how long the moving party
waited to seek relief, the deadline to appeal from an order denying a section 473(d)
motion is generally 30 or 60 days from the notice of entry of the order. (See
rules 8.104(a)(1)(A)–(B), (e), 8.108(c)(1).) The deadline can be extended by filing and
serving “a valid motion to reconsider” the denial under section 1008(a), which results in
the notice of appeal being due “30 days after the superior court clerk or a party serves an
order denying the motion [for reconsideration] or a notice of entry of that order.”
(Rule 8.108(e)(1).)
As used in rule 8.108(e), the word “valid” means procedurally compliant in all
respects. (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043,
1047–1048.) If a motion for reconsideration is not filed within the 10-day deadline of
section 1008(a), the motion is not valid and does not extend the deadline to appeal an
earlier order. (Farmers Ins. Exchange v. Superior Court (2013) 218 Cal.App.4th 96, 102;
see Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 297 [noting “rule 8.108(e) extends
the time to appeal only for valid reconsideration motions” under § 1008(a)].) The
requirements of section 1008(a), which include the 10-day deadline, are jurisdictional;
they cannot be excused because of the moving party’s mistake, inadvertence, or
omissions that might otherwise constitute excusable neglect. (Id., subd. (e) [“[t]his
section specifies the court’s jurisdiction with regard to applications for reconsideration of

10.
its orders”]; Cradduck v. Hilton Domestic Operating Co., Inc. (2025) 112 Cal.App.5th
284, 304–305.)
Analysis
To recap the pertinent dates, notice of entry of the order denying the
section 473(d) motion was served on January 28, 2025. Defendant had 60 days to appeal
from that order unless the deadline was extended by statute or rule. (§ 904.1,
subd. (a)(2); rule 8.104(a)(1)(B), (e).) Because the 60th day fell on a weekend, the last
day to file a notice of appeal was March 31, 2025. (See §§ 12a, 12b; rule 8.60(a).)
Defendant’s notice of appeal was not filed until May 20, 2025.3
Defendant served its motion for reconsideration on February 7, 2025, but did not
file it with the court until February 20, 2025. The filing date is confirmed by the clerk’s
file stamp on the notice of motion and the trial court’s register of actions, which shows
that the filing fees were charged and paid on February 20, 2025. The register of actions
shows no activity in between the notice of entry of order on January 28, 2025, and the
filing of the motion for reconsideration on February 20, 2025.
Whatever the explanation for defendant’s procedural mishap, the late filing
invalidated the motion for reconsideration and precluded application of rule 8.108(e)’s
30-day extension provision. That the trial court heard the motion and ruled on it does not
cure the jurisdictional defect. (See § 1008, subd. (e) [specifying the jurisdictional nature
of the statutory requirements]; In re Marriage of Furie (2017) 16 Cal.App.5th 816, 831

3 In respondent’s brief, it is argued that the deadline to appeal based on notice of entry of
the order was February 27, 2025. Plaintiff mistakenly relies on rule 8.108(c)(1)—erroneously
cited in the brief as rule 8.104(c)(1)—which only applies to an order denying a motion to vacate
a judgment if the motion was made “within the time prescribed by rule 8.104 to appeal from the
judgment, .…” (Rule 8.108(c).) It is undisputed that defendant’s motion to vacate the judgment
was filed long after the deadline for a direct appeal from the judgment had expired. As
explained, the order denying defendant’s motion falls within a category of postjudgment orders
that are appealable pursuant to section 904.1, subdivision (a)(2). (Doppes, supra, 174
Cal.App.4th at pp. 1008–1009.)

11.
[courts do not have jurisdiction to consider untimely motions filed under § 1008(a)].)
“‘In the absence of statutory authorization, neither the trial nor appellate courts may
extend or shorten the time for appeal [citation], even to relieve against mistake,
inadvertence, accident, or misfortune [citations].’” (Rowan v. Kirkpatrick, supra, 54
Cal.App.5th at p. 294.)
Defendant does not deny that its motion for reconsideration was untimely.
However, because the trial court heard the motion and formally denied it by written
order, defendant asks us to construe those actions as an invocation of the court’s inherent
authority to reconsider its earlier denial of the section 473(d) motion sua sponte. The
argument is based on Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois).
Defendant purports to understand Le Francois as broadly recognizing that trial courts
have inherent authority to reconsider their own prior rulings at any time and for any
reason. The holding is actually narrower, but the case is unhelpful to defendant either
way.
The questions decided in Le Francois were as follows: “May a trial court
reconsider interim orders it has already made in the absence of new facts or new law? If
so, may it do so only on its own motion, or may a party move for reconsideration
[without presenting new facts or law]?” (Le Francois, supra, 35 Cal.4th at p. 1101.) The
answers to those questions are yes, yes, and no. (Id. at pp. 1107–1108.)
A trial court has inherent authority to “reconsider its prior interim orders” for the
purpose of “correct[ing] its own errors.” (Le Francois, supra, 35 Cal.4th at p. 1107.)
“But a party may not file a written motion to reconsider that has procedural significance
if it does not satisfy the requirements of section 437c, subdivision (f)(2) [if it seeks
reconsideration of summary judgment/adjudication], or 1008.” (Id. at p. 1108.)
Regardless of the impetus, which is unrestricted and can be sparked even by a party’s
suggestion, “any action to reconsider a prior interim order must formally begin with the
court on its own motion.” (Ibid.)

12.
The California Supreme Court repeatedly used the phrases “interim rulings” and
“interim orders.” (Le Francois, supra, 35 Cal.4th at pp. 1097–1098, 1100–1101, 1105,
1107–1109.) The opinion cautions, “What we say about the court’s ability to reconsider
interim orders does not necessarily apply to final orders, which present quite different
concerns.” (Id. at p. 1105, fn. 4.) Here, the denial of defendant’s section 473(d) motion
to set aside the judgment was a final order.
In In re Marriage of Barthold (2008) 158 Cal.App.4th 1301 (Barthold), an
appellate panel concluded that the distinction between interim orders and final orders
does not matter if the time to appeal the order under reconsideration has not expired. (Id.
at pp. 1312–1313 & fn. 9.) The Barthold court did not reach the issue of whether
reconsideration is permissible if the earlier ruling is no longer appealable. (Id. at p. 1313,
fn. 9.) The opinion emphasizes, however, “that in order to grant reconsideration on its
own motion, the trial court must conclude that its earlier ruling was wrong, and change
that ruling based on the evidence originally submitted.” (Id. at p. 1314; accord, In re
Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469–1470.)
Defendant does not address the limitation emphasized in Barthold. That limitation
is also clear from the Le Francois opinion itself. Moreover, defendant acknowledges that
here, the trial court ruled on its motion for reconsideration after the deadline to appeal the
denial of the section 473(d) motion had expired. Although defendant contends Le
Francois should be read as permitting such reconsideration, it cites no authority for that
proposition and acknowledges there is no case law to support it. “[A] trial court
generally may not correct judicial error in an appealable order or judgment after the time
to appeal has passed.” (Coastline JX Holdings LLC v. Bennett (2022) 80 Cal.App.5th
985, 1017.) “This circumstance may well have been the issue the Supreme Court had in
mind when it indicated in Le Francois that ‘… final orders … present quite different
concerns’ from interim orders.” (Barthold, supra, 158 Cal.App.4th at p. 1313, fn. 9.)

13.
Notwithstanding the principles discussed above, defendant argues that the trial
court’s act of ruling on its section 1008(a) motion “can only be characterized as sua
sponte reconsideration.” This position is untenable. The judge below obviously did not
realize the motion for reconsideration was untimely. The court’s order denying the
motion was exclusively based on consideration of a newly obtained declaration and other
material defendant presented as new facts and/or new evidence. The court’s actions
cannot be viewed as an exercise of the inherent authority to reconsider a prior ruling
when there is no indication it was “prompted by anything other than the [defendant’s]
motion,” i.e. the presentation of purportedly new facts or evidence, and “there [is]
nothing in the record indicating that the trial court believed its original ruling was in
error.” (Barthold, supra, 158 Cal.App.4th at p. 1311, citing New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 215.)
Put differently, the problem with defendant’s theory is that it assumes the trial
court acted sua sponte in “weigh[ing] the new Hernandez declaration on reconsideration.”
Such conduct is not permitted under Le Francois. To lawfully reconsider a prior ruling
on its own motion, the trial court must do so based on intervening changes in the law
(§ 1008, subd. (c)), or a reassessment of the evidence presented in the earlier proceeding
(Barthold, supra, 158 Cal.App.4th at p. 1314). To reconsider a prior ruling sua sponte
but on the basis of new facts or new evidence constitutes an abuse of discretion. (See,
e.g., In re Marriage of Ankola (2020) 53 Cal.App.5th 369, 383 [holding trial court erred
by rescinding order “based on new evidence, rather than the evidence presented at the
original proceeding”]; cf. Cox v. Bonni (2018) 30 Cal.App.5th 287, 312–313
[reconsideration held proper where it was “evident the trial court did not reconsider its
order based on any of the purportedly new law or facts in [the] defendant’s motion, but
on its own realization that its earlier order was in error, as permitted by Le Francois”].)
Were we to indulge the fiction that the court knew defendant’s motion for
reconsideration was untimely but ruled on it anyway, the record could only be construed

14.
as indicating it treated the invalid section 1008(a) motion as a renewed motion under
section 1008, subdivision (b). In other words, a renewed motion to set aside the
judgment. “[A]fter expiration of the 10-day period to move for reconsideration, a party
‘may make a subsequent application for the same order upon new or different facts,
circumstances, or law.’ [Citation.] Such a motion does not seek reconsideration of the
earlier motion but, instead, is simply a new motion that is permitted by the existence of
new law or facts—in effect, it renews the earlier motion by submission of a new motion
raising the same issues.” (UAS Management, Inc. v. Mater Misericordiae Hospital
(2008) 169 Cal.App.4th 357, 367, quoting § 1008, subd. (b).)
“Although the two subdivisions differ in certain minor details, each sets out the
same essential requirements.” (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368,
381.) For our purposes, the key distinction between section 1008 subdivisions (a) and
(b), is that section 1008(a) has a short filing deadline, which corresponds to the rule
allowing such motions to extend the deadline to appeal the ruling under reconsideration
and making a denial of the reconsideration motion “reviewable as part of an appeal from
[the earlier] order.” (§ 1008, subd. (g); accord, rule 8.108(e).) There is no deadline to
file a motion under section 1008, subdivision (b), but orders denying such motions are
not appealable. (Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.5th
967, 973–975; Chango Coffee, Inc. v. Applied Underwriters, Inc. (2017) 11 Cal.App.5th
1247, 1252 (Chango); Tate v. Wilburn (2010) 184 Cal.App.4th 150, 160.)
“The [rule 8.108(e)] extension applies only where a party moves for
reconsideration under [section] 1008(a). It does not apply where the trial court
reconsiders an order on its own motion [citations] or where a party makes a renewed
motion—i.e., a subsequent application for the same order [under section 1008,
subdivision (b)] [citations].” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and
Writs (The Rutter Group 2025) ¶ 3:93:5; accord, Advisory Com. com., rule 8.108(e).)
Therefore, regardless of how the trial court’s ruling on defendant’s second motion is

15.
construed, neither the motion nor the court’s denial of it operated to extend the deadline
to appeal the January 2025 order denying the original section 473(d) motion.
As a second and partially alternative position, defendant submits that the denial of
its motion for reconsideration was a separately appealable order. This argument is based
on the general principle that an order giving effect to a void judgment is also void and
may be appealed for that reason. Defendant argues that denying a motion to reconsider
an earlier refusal to set aside an allegedly void judgment is an act that gives effect to the
allegedly void judgment. Therefore, according to defendant, the ruling is independently
appealable regardless of any procedural problems with the motion itself. We are not
persuaded.
“‘While a denial of a motion to set aside a previous judgment is generally not an
appealable order, in cases where the law makes express provision for a motion to vacate
such as under … section 473, an order denying such a motion is regarded as a special
order made after final judgment and is appealable under [… section 904.1,
subdivision (a)(2)].” (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32
Cal.App.5th 166, 171.) As discussed, section 473(d) is the procedural mechanism by
which a party can seek relief from a void judgment. “The reason for allowing the appeal
is that an order giving effect to a void judgment is also void and is subject to attack.”
(County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 110.) Thus, the principle upon
which defendant relies is the reason why the order denying its section 473(d) motion is
appealable. (Ibid.; see Carr v. Kamins (2007) 151 Cal.App.4th 929, 933 [deeming order
denying a nonstatutory motion to vacate judgment appealable for same reason].)
Defendant cites no authority for treating the denial of a reconsideration motion as
independently appealable merely because it concerns an earlier motion to set aside a
judgment. “Orders denying motions for reconsideration are not appealable.” (Coastline
JX Holdings LLC v. Bennett, supra, 80 Cal.App.5th at p. 1016.) Orders denying renewed
motions made under section 1008, subdivision (b) are not appealable. (Chango, supra,

16.
11 Cal.App.5th at p. 1252.) These rules exist “‘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 .…’” (Id. at pp. 1252–1253.)
“The rule allowing an aggrieved party to challenge an order void on its face at any
time does not mean a party may perpetually move to vacate the order until he or she
receives a favorable ruling.” (Pittman v. Beck Park Apartments Ltd. (2018) 20
Cal.App.5th 1009, 1021–1022, fn. 13.) The position urged by defendant would
essentially allow multiple appeals from the same decision and permit litigants to
manufacture appellate jurisdiction with procedurally defective postjudgment motions.
“Section 1008’s purpose is ‘“to conserve judicial resources by constraining litigants who
would endlessly bring the same motions over and over, or move for reconsideration of
every adverse order and then appeal the denial of the motion to reconsider.”’” (Even
Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th
830, 839–840.)
“California follows a ‘one shot’ rule under which, if an order is appealable, appeal
must be taken or the right to appellate review is forfeited.” (In re Baycol Cases I & II
(2011) 51 Cal.4th 751, 761, fn. 8, citing § 906.) Defendant had its shot to appeal from
the order declining to set aside the judgment under section 473(d), but it missed the
deadline. This court cannot grant relief from the mistake or create appellate jurisdiction
when it does not otherwise exist. (See Marshall v. Webster, supra, 54 Cal.App.5th at
p. 279; In re Marriage of Mosley (2010) 190 Cal.App.4th 1096, 1101 [“[w]e are
powerless to extend the time to file a notice of appeal, or to hear untimely appeals”].)

17.
DISPOSITION
The appeal is dismissed for lack of appellate jurisdiction.

MEEHAN, J.
WE CONCUR:

DETJEN, Acting P. J.

SNAUFFER, J.

18.