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Filed 5/6/22 White v. Ponce CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

GAIL WHITE,

Plaintiff and Respondent,

v.

DIANE PONCE,

Defendant and Appellant.

E077097

(Super.Ct.No. PSC1907466)

OPINION

APPEAL from the Superior Court of Riverside County. Kira Klatchko, Judge. 

Dismissed.

Law Offices of Linda Scott and Linda Scott for Defendant and Appellant.

Gail White, in pro. per., for Plaintiff and Respondent.
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I. INTRODUCTION

On October 16, 2019, Gail White (plaintiff) filed a civil complaint against Diane 

Ponce (defendant) that alleged defendant breached an agreement to jointly invest in real 

property. A default was entered against defendant after she failed to file a responsive 

pleading. The trial court denied a motion to set aside the default on February 24, 2020, 

and a default judgment was entered against defendant on December 4.

On February 19, 2021, defendant filed a postjudgment motion seeking to set aside 

the default and the default judgment, purportedly pursuant to the provisions of Code of 

Civil Procedure1section 473. However, the trial court observed that there were “no 

substantive factual differences” between the motion and defendant’s prior motion to set 

aside, construed the motion as a motion for reconsideration, and denied the motion under 

the principles governing motions for reconsideration. The trial court’s order denying the 

postjudgment motion was entered on April 20, but served on April 28. On May 18, 

defendant filed a notice of appeal, purporting to appeal from the “default judgment” 

entered on April 28.

On appeal, defendant ignores the trial court’s decision to construe her 

postjudgment motion as a motion for reconsideration, instead treating the entire appeal as 

if the trial court ruled on her motion pursuant to section 473. We conclude that the 

postjudgment order of the trial court was, in substance and effect, a nonappealable order 

denying reconsideration. We further conclude that the notice of appeal cannot be 

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 Undesignated statutory references are to the Code of Civil Procedure.
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construed to encompass an appeal from the judgment permitting review of the trial 

court’s actual order denying defendant’s motion to set aside the default under 

section 473. Accordingly, we are without jurisdiction to consider defendant’s claim that 

the trial court erred in refusing to set aside the default or the default judgment, and we 

dismiss the appeal.

II. FACTS AND PROCEDURAL HISTORY

On October 16, 2019, plaintiff filed a civil complaint for breach of contract, fraud, 

breach of fiduciary duty, conversion, and unjust enrichment arising out of an alleged 

agreement with defendant to jointly purchase a parcel of real property. Specifically, 

plaintiff alleged that she and defendant entered into an oral agreement to jointly purchase 

a parcel of real property in 2006, the parties subsequently carried out their respective 

obligations under this agreement, and defendant breached the agreement in 2019 by 

failing to acknowledge plaintiff’s joint ownership in the property. Defendant was 

personally served on November 22, but failed to timely file a responsive pleading. As a 

result, a default was entered against defendant on December 24.

On January 7, 2020, defendant filed a motion to set aside the default pursuant to 

section 473, subdivision (b). The motion purported to request relief on the basis that (1) 

the default was void for lack of personal jurisdiction, and (2) the default was entered as a

result of mistake, inadvertence, or excusable neglect. However, the only fact offered in 

support of defendant’s request for relief was a vague statement by counsel that she 

believed she could resolve the matter prior to filing a responsive pleading, implying that 
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the default was the result of counsel.

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 Counsel’s declaration did not actually describe 

who was responsible for failing to file a responsive pleading but stated: “I thought that I 

was going to be able to resolve the jurisdictional issues and asserted lack of personal 

jurisdiction over defendant.” On February 24, 2020, the trial court denied the motion, 

finding that counsel’s declaration did not support granting relief, regardless of whether it 

was considered under the discretionary or mandatory provisions of section 473, 

subdivision (b).

On February 28, 2020, defendant filed a motion for reconsideration. However, the 

hearing for the motion for reconsideration was vacated pursuant to an emergency general 

order as the result of the COVID-19 pandemic. While the emergency general order 

provided instructions for placing vacated motions back on the trial court’s calendar, the 

record does not indicate defendant took any of the steps outlined in the emergency 

general order with respect to her motion for reconsideration.

On December 4, 2020, a default judgment was entered against defendant, and 

notice of entry of judgment was served on February 3, 2021.

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 Despite arguing the default was void for lack of personal jurisdiction, defendant 

submitted a declaration that did not contest the fact she had been personally served with 

the complaint. Nor did defendant contend she resided out of state at the time plaintiff 

alleged the parties entered into an agreement or at the time plaintiff alleged defendant 

breached the agreement. Thus, the factual basis of defendant’s challenge to personal 

jurisdiction is unclear. (Kroopf v. Guffey (1986) 183 Cal.App.3d 1351, 1358 

[“[D]omicile at the time the cause of action arose, in addition to allegations that the 

action is based on the defendant’s activities within the forum state, afford the state a 

constitutional basis for personal jurisdiction.”].)
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On February 19, 2021, defendant filed a postjudgment motion seeking to set aside 

the default and the default judgment, again under the provisions of section 473. 

Defendant argued that the default and the default judgment should be set aside for the 

same reasons already presented in the previous motion to set aside the default, but this 

time, defendant expressly argued that relief was mandatory due to the fault of counsel. 

However, in support of the motion, counsel submitted a declaration that attested to the 

same facts with respect to the failure to file a responsive pleading, stating: “[W]ith the 

belief that we would be able to resolve the dispute between [the parties], I failed to 

submit a responsive pleading by the 30th day after the asserted improper service and my 

belief that the court lacked personal jurisdiction over defendant. . . . [¶] I accept 

responsibility for this failure . . . .”

On April 20, 2021, the trial court considered defendant’s postjudgment motion,

determined the motion was, in substance, a motion for reconsideration of the trial court’s 

prior denial of defendant’s motion to set aside the default, and denied the postjudgment 

motion for failure to identify any new facts in support of the motion and for failure to 

request reconsideration within the time specified in section 1008.

On May 18, 2021, defendant filed a notice of appeal. The notice of appeal 

purports to appeal from a default judgment entered on April 28.

III. DISCUSSION

A. The April 20, 2021 Postjudgment Order Is Not Appealable

As an initial matter, we are forced to resolve the nature of the order which is the 

subject of this appeal. Defendant’s opening brief states that her appeal is from a 
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postjudgment order “served” on April 28, 2021, which appears to refer to the trial court’s 

postjudgment order dated April 20.

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 However, the parties disagree with respect to the 

characterization of this order. Defendant characterizes the order as “[t]he trial court’s 

order denying the motion to set aside the default judgment and default.” In contrast, 

plaintiff contends this postjudgment order is a nonappealable order denying 

reconsideration pursuant to section 1008. For the reasons set forth below, we agree with 

plaintiff that the postjudgment order of April 20, is a nonappealable order denying a 

motion for reconsideration.

1. The Postjudgment Order Is, in Substance and Effect, an Order Denying 

Reconsideration

“[I]t is not the label but rather the substance and effect of a court’s judgment or 

order which determines whether or not it is appealable.” (In re Marriage of Loya (1987) 

189 Cal.App.3d 1636, 1638; Dana Point Safe Harbor Collective v. Superior Court (2010) 

51 Cal.4th 1, 5 [“ ‘ “It is not the form of the decree but the substance and effect of the 

adjudication which is determinative.” ’ ”]; Joyce v. Black (1990) 217 Cal.App.3d 318, 

321 [“The substance and effect of the order, not its label or form, determines whether it is 

appealable . . . .” ]; Orton v. Daigler (1932) 120 Cal.App. 448, 450 [“The character of the 

document, whether it be an order or a judgment, may not be determined except by the 

substance and effect of its provisions.”].) Thus, in determining the nature of the order

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 The register of actions shows only one entry for April 28, 2021, which is the 

clerk’s certificate of mailing for the trial court’s order of April 20.
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which is the subject of this appeal, we look to the substance and effect of the trial court’s 

order and are not limited by the labels used by defendant.

Here, the trial court reviewed defendant’s postjudgment motion and concluded 

that “[t]here are no substantive factual differences between this motion, the original 

motion to set aside, or the prior motion for reconsideration.” Given this conclusion, the 

trial court construed defendant’s postjudgment motion as a motion for reconsideration 

and denied the postjudgment motion under legal principles applicable to motions for 

reconsideration.

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 It did not reach the issue of whether defendant’s showing would 

warrant setting aside the default or the default judgment under a properly submitted 

motion pursuant to section 473, subdivision (b).

The record amply supports the trial court’s decision to construe and resolve 

defendant’s motion as a motion for reconsideration. “The proposition that a trial court 

may construe a motion bearing one label as a different type of motion is one that has 

existed for many decades. . . . Neither the Legislature, nor the California Supreme Court, 

nor any Court of Appeal has ever challenged that notion. . . . The principle that a trial 

court may consider a motion regardless of the label placed on it by a party is consistent 

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 The trial court’s decision to construe the motion as a motion for reconsideration 

was unequivocal and unambiguous. At the hearing on the motion, it directly addressed 

defense counsel and stated: “You are wanting to set aside the judgment, a valid 

judgment, based on a motion to quash that you never filed going back a year when you 

attempted to set aside a default which was denied. . . . You’re back here. You have 

called it something else, but it really appears to be a motion for reconsideration of the 

orders from last February. . . . You waited until after the . . . judgment was entered,

intentionally it sounds like, because you just thought that would be easier to get a second 

bite at the apple. . . . This is not really an attempt to set aside the judgment. It’s an 

attempt to get a reconsideration of a prior motion.”
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with the court’s inherent authority to manage and control its docket.” (Sole Energy Co. v. 

Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193; California Correctional Peace 

Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43 (California Correctional Peace 

Officers Assn.) [“ ‘ “The nature of a motion is determined by the nature of the relief 

sought, not by the label attached to it. The law is not a mere game of words.” ’ ”].) Here, 

the trial court denied a motion to set aside the default on February 24, 2020. Defendant’s 

postjudgment motion sought identical relief,

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relying on the same legal authority,

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the same underlying facts.

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 While the postjudgment motion sought to set aside the default judgment as well 

as the underlying default, this is not a relevant distinction in this case. Setting aside a 

default judgment without also setting aside the underlying default is an “ ‘ “idle act.” ’ ” 

(Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, 273.) Thus, 

the postjudgment motion necessarily also sought to set aside the underlying default—the 

same relief sought in the prior motion brought under section 473, subdivision (b).

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 While defendant’s postjudgment motion explicitly referenced the provision for 

mandatory relief under section 473, subdivision (b), as an additional ground for setting 

aside the default, submitting an additional declaration of attorney fault in support of a 

subsequent motion to set aside a default does not exempt such a motion from the 

requirement that it comply with section 1008. (Even Zohar Construction & Remodeling,

Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840-841 [second motion to set 

aside default must comply with rules pertaining to motions for reconsideration, even if 

second request submits a new declaration attesting to attorney fault]; California 

Correctional Peace Officers Assn., supra, 181 Cal.App.4th at p. 43 [changing legal 

theory or statutory basis in support of a request for the same relief does not exempt party 

from normal rules pertaining to reconsideration].)

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 With respect to setting aside the underlying default, the declarations in support 

of the postjudgment motion offered no new facts. Both the original motion and 

postjudgment motion identified the same mistake, by the same individual, as a basis for 

relief, stating that defendant’s attorney failed to file a responsive pleading because she 

believed she was going to informally resolve the issue with plaintiff. The postjudgment 

motion added no new facts in support of the request to set aside the underlying default 

[footnote continued on next page]
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the trial court’s decision to construe defendant’s postjudgment motion as a motion for 

reconsideration.

Finally, to the extent defendant could have argued the trial court erred in 

construing and resolving her postjudgment motion as a motion for reconsideration, any 

such claim was abandoned by defendant’s failure to address the issue in her appellate 

briefs. “ ‘ “Issues not raised in an appellant’s brief are deemed waived or abandoned” ’ ” 

on appeal. (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 

467, 554-555; see Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 

[“Courts will ordinarily treat the appellant’s failure to raise an issue in his or her opening 

brief as a waiver of that challenge.”].) Defendant’s opening brief does not argue the trial 

court erred in concluding her postjudgment motion was, in substance and effect, a motion 

for reconsideration and does not argue the trial court erred in its application of the laws 

pertaining to motions for reconsideration.

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 Instead, plaintiff simply ignores the issue in 

its entirety, arguing as if the trial court had ruled on her postjudgment motion as a motion 

to set aside under section 473, subdivision (b). Having failed to raise the issue in her 

opening brief, defendant must be deemed to have abandoned any claim of error with 

and, instead, simply included an additional statement by counsel, stating, “I accept 

responsibility for this failure.”

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 Nor does it appear defendant could have successfully argued otherwise. 

Generally, “[o]nce the trial court has entered judgment, it is without power to grant 

reconsideration [, and] [t]he fact that a motion for reconsideration may have been pending 

when judgment was entered does not restore this power to the trial court.” (APRI Ins. Co. 

S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 182.)
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respect to the trial court’s decision to construe and determine her postjudgment motion as 

a motion for reconsideration.

In light of this record, the postjudgment order of April 20, 2021, is, in substance 

and effect, an order denying reconsideration.

2. An Order Denying Reconsideration Is Not Appealable

“The 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. 

[Citations.] ‘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.” ’ ” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576-1577; see

Morton v. Wagner (2007) 156 Cal.App.4th 963, 968-969.) Given our conclusion that the

postjudgment order at issue in this case constitutes an order denying reconsideration, we 

must also conclude that the order cannot be reviewed on direct appeal because an order 

denying reconsideration is nonappealable.

B. Defendant’s Appeal Cannot Be Construed To Encompass Review of Matters Beyond 

the Postjudgment Order

We acknowledge that defendant’s notice of appeal in this case is ambiguous, 

purporting to appeal from the default judgment dated April 28, 2021. Thus, we also 

consider whether the notice of appeal can be construed as an appeal from the default 

judgment, which would permit review of the trial court’s actual order denying her 
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original motion to set aside the default.

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 Generally, “we must liberally construe a notice 

of appeal in favor of its sufficiency,” and “[a] notice of appeal shall be ‘ “liberally 

construed so as to protect the right of appeal if it is reasonably clear what [the] appellant 

was trying to appeal from, and where the respondent could not possibly have been misled 

or prejudiced.” ’ ” (In re J.F. (2019) 39 Cal.App.5th 70, 75.) Thus, because defendant 

expressly referenced the default judgment in her notice of appeal, a liberal construction of 

the notice would suggest defendant was also trying to appeal from the default judgment. 

However, as we explain, defendant’s notice of appeal in this case cannot be construed as 

an appeal from the judgment.

An appeal must be taken 60 days after service of notice of entry of judgment or 

180 days after judgment, whichever occurs earlier. (Cal. Rules of Court, 

rule 8.104(a)(1).) “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. 

Servs. v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51, 56.) In this 

case, notice of entry of judgment was served on February 3, 2021. Thus, by the time 

defendant filed her notice of appeal on May 18, the time to appeal from the judgment had 

already expired.

Normally, the filing of a motion to set aside the judgment extends the time within 

which to appeal from that same judgment. (In re Marriage of Eben-King & King (2000) 

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 Generally, the trial court’s denial of a motion to set aside a default may be 

reviewed on appeal from the judgment. (Kester Motors, Inc. v. Haddad (1952) 

109 Cal.App.2d 369, 373.)
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80 Cal.App.4th 92, 108 [motion to set aside pursuant to section 473 constitutes a motion 

to vacate within the meaning of court rule extending time to appeal].) However, the 

extension of time expressly applies only when a party files a “valid” motion to vacate the 

judgment. (Rules of Court, Rule 8.104 (a)(1).)10 In this case, the trial court determined 

that defendant’s postjudgment motion was not a valid motion to set aside the judgment 

but rather a motion for reconsideration that should have been brought pursuant to section 

1008. Further, as we have already pointed out, defendant has not argued the trial court 

erred with respect to this determination.

Unlike a valid motion to set aside under section 473, a motion for reconsideration 

does not operate to extend the time to appeal from a judgment. (Passavanti v. Williams

(1990) 225 Cal.App.3d 1602, 1607-1608 [“[A] motion for reconsideration filed after 

judgment was entered will not extend the time to appeal from the judgment.”]; Ramon v. 

Aero. Corp. (1996) 50 Cal.App.4th 1233, 1236 [same].) Thus, defendant’s notice of 

appeal in this case cannot be construed to encompass an appeal from the default 

judgment, as any such appeal would have been untimely.

C. The Appeal Must Be Dismissed

“ ‘An appealable judgment or order is essential to appellate jurisdiction, and the 

court, on its own motion, must dismiss an appeal from a nonappealable order.’ ” 

(Daugherty v. City and County of San Francisco (2018) 24 Cal.App.5th 928, 942; Olson 

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 To hold otherwise would permit a party to extend the time to appeal simply by 

filing any document styled as a motion to vacate or motion to set aside the judgment, 

regardless of the substance of the motion, thereby permitting a party to circumvent or 

manipulate the time limitations for filing an appeal.
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v. Cory (1983) 35 Cal.3d 390, 398 [court is “dutybound” to consider the question of 

appellate jurisdiction on its own motion]; Olmstead v. West (1960) 177 Cal.App.2d 652, 

654-655 [“[I]t is the duty of an appellate court on its own motion to dismiss an appeal 

from a judgment which is not appealable.”].)

Because defendant’s notice of appeal cannot be construed to include an appeal 

from the default judgment, the scope of any appeal is limited to the postjudgment order. 

However, because the postjudgment order in this case is, in substance and effect, an order 

denying reconsideration, it constitutes a nonappealable order. In the absence of an 

appealable judgment or order, this court is without jurisdiction to consider defendant’s 

claims of error, and the appeal must be dismissed.

IV. DISPOSITION

The appeal is dismissed. Plaintiff is to recover her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.