Filed 8/14/18 Schumann v. Al-Nur Islamic Center 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DIANE SCHUMANN et al.,

Plaintiffs and Appellants,

v.

AL-NUR ISLAMIC CENTER et al.,

Defendants and Respondents.

E067606

(Super.Ct.No. CIVRS1305357)

O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Dismissed.

Law Office of Betty C. Carrie Teasdale and Betty C. Carrie Teasdale for Plaintiffs and Appellants.

Khan Law Group and Jason J. Allison for Defendants and Respondents, Al-Nur Islamic Center, Rashid Ahmed, and Kabir Ahmed.

Jean-Rene Basle, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Defendant and Respondent, County of San Bernardino.

I. INTRODUCTION

Plaintiffs and appellants, Diane Schumann, Don Lange, Eva Chittenden, Marjorie Seifert, and Carol Yonan, appeal from a December 13, 2016, order denying their fourth application for a preliminary injunction against defendants and respondents, Al-Nur Islamic Center (Al-Nur), Rashid Ahmed, Kabir Ahmed, and County of San Bernardino (the County). The trial court denied the fourth application on the ground it constituted an unsupported motion for reconsideration of the court’s orders denying plaintiffs’ three prior applications, including their third application, which was denied on October 11, 2016. (Code Civ. Proc., § 1008.)

We agree that the fourth application was in substance and effect an unsupported motion for reconsideration of the third application. Thus, the fourth application was properly denied on this ground. In addition, the order denying the fourth application is not separately appealable (§ 1008, subd. (g)), but is appealable only from the order it asked the court to reconsider—the October 11, 2016, order denying the third application. Because plaintiffs have not appealed from the October 11, 2016, order denying their third application, this appeal must be dismissed. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576-1577, 1579.)

II. FACTS AND PROCEDURE

For several years, Al-Nur operated a “place of worship” in a 2,200-square-foot, single-family home, located on 1.54 acres, pursuant to a series of one-year temporary use permits (TUP’s) issued by the County. Among other things, the TUP’s allowed Al-Nur to hold gatherings in and on the property of up to 30 people at one time. According to the record on appeal, the most recent TUP was issued in February 2016 and was to be effective from March 1, 2016, to March 1, 2017 (the 2016 TUP).

In 2013, plaintiffs filed the present action for trespass, which was later consolidated with a separate action for nuisance. In October 2013, the trial court (Judge Joseph Briscoe) issued a preliminary injunction prohibiting Al-Nur and Kabir Ahmed from using the property in a manner that generated dust that drifted onto the plaintiffs’ properties.

Between 2014 and 2016, plaintiffs applied, four times, for a further preliminary injunction prohibiting Al-Nur and other defendants from holding gatherings of more than 30 people on the property, and from violating other terms and conditions of the TUP’s. All of these applications were denied.

Plaintiffs’ third application—filed in June 2016 and denied in August 2016—was denied on the ground plaintiffs failed to show they had exhausted their administrative remedies by asking the County to enforce the terms and conditions of the TUP’s before they sought injunctive relief in the trial court.

Plaintiffs’ fourth application—filed in October 2016 and denied in December 2016—was denied on the ground it constituted an unsupported motion for reconsideration of the court’s prior orders denying plaintiffs’ prior applications. (§ 1008.) Plaintiffs appeal solely from the December 13, 2016, order denying their fourth application.

III. DISCUSSION

Plaintiffs claim their fourth application was not a motion for reconsideration of any of their prior applications, including their third application (§ 1008), and was erroneously denied on this ground. We disagree. As we explain, the fourth application was in substance and effect a motion for reconsideration of the third application. Thus, the fourth application was properly denied on the ground it constituted an unsupported motion for reconsideration of the third application.

A. Plaintiffs’ Fourth Application Was Properly Denied on the Ground It Constituted an Unsupported Motion for Reconsideration of Their Third Application (§ 1008)

1. Applicable Legal Principles

“[S]ection 1008 imposes special requirements on renewed applications for orders a court has previously refused.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 (Even Zohar).) To begin with, a party must move for reconsideration of a previously denied order “within 10 days” after the party is served with written notice of entry of the previously denied order. (§ 1008, subd. (a).) The motion must include an affidavit stating “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, subds. (a), (b).) The affidavit must also “show diligence with a satisfactory explanation for not presenting the new or different information earlier . . . .” (Even Zohar, supra, at p. 833.)

Section 1008 also “specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions . . . .” (§ 1008, subd. (e).) Unless the court has decided to reconsider one of its prior orders, and has asked the parties to litigate whether the prior order should be reversed or modified, a party is not authorized to make, and the court is not authorized to grant, a party’s written motion for reconsideration which does not meet the requirements of section 1008 (or § 437c, subd. (f)(2), which does not apply here). (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.) The purpose of section 1008 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, supra, 61 Cal.4th at pp. 839-840.)

2. Analysis

In its written order denying the fourth application, the court correctly observed that plaintiffs were seeking the same relief in their fourth application that they sought in their prior applications, including their third application. For our purposes, it is sufficient to note that plaintiffs sought substantially the same injunctive relief in their third and fourth applications. In their third and fourth applications, plaintiffs asked the court to prohibit Al-Nur and other defendants from “[u]sing the [p]roperty as a place of worship” or “for any other non-residential purpose” and from “[h]olding events at the [p]roperty, including but not limited to [o]pen [h]ouses, gatherings on the second Saturday of each month, gatherings for breakfast meetings, and any and all other gatherings in violation of the San Bernardino County Development Code . . . .”

The court also correctly noted that the fourth application did not include an affidavit advising the court of the prior applications (§ 1008, subd. (a)), or identifying any “new or different facts, circumstances, or law” that would have supported a reconsideration of the order denying the third application. (Id. at subds. (a), (b); Even Zohar, supra, 61 Cal.4th at pp. 833, 839.) For these reasons, the fourth application was properly denied on the ground it constituted an unsupported motion for reconsideration of the court’s prior October 11, 2016, order denying the third application.

Plaintiffs claim their fourth application was not a motion for reconsideration of the order denying their third application because their fourth application sought “more limited” relief than their third application. To be sure, in their third application, but not in their fourth, plaintiffs expressly asked the court to prohibit Al-Nur and other defendants from “[h]olding gatherings or events at the [p]roperty during the pendency” of their administrative appeal challenging the issuance of the 2016 TUP, and from “[h]olding gatherings or events at the [p]roperty with more than 30 persons at one time.” In addition, the third application did not ask the court to prohibit the property from being used as “a private club,” while the fourth application added this request. But these distinctions are not substantive. By broadly asking the court, in their fourth application, to prohibit Al-Nur and other defendants from “[h]olding . . . any and all . . . gatherings in violation of the San Bernardino County Development Code,” plaintiffs effectively sought the same relief in their fourth application, and more, as they sought in their third application.

Plaintiffs also claim their fourth application was not “an improper” motion for reconsideration because, in denying their third application, the court “invited a new application for a preliminary injunction under the condition that [plaintiffs] show they had ‘exhausted administrative remedies.’” As support for this claim, plaintiffs point out that the court, in its order denying the third application, stated: “Until [p]laintiffs can present evidence of their complaints or requests [to the County] for enforcement [of the TUP, the] County’s refusal to enforce the TUP, and the exhaustion of administrative remedies, the Court has no choice but to deny the request for a preliminary injunction.” We disagree that, by this statement, the court “invited” a motion for reconsideration of its order denying the third application. (Even Zohar, supra, 61 Cal.4th at p. 840 [§ 1008 does not limit court’s ability to reconsider its previous orders on its own motion].) And even if the court “invited” plaintiffs to move to reconsider its prior order denying the third application, the fourth application did not meet the requirements of section 1008 in that it was unsupported by any affidavit meeting the requirements of section 1008, subdivisions (a) and (b).

Lastly, plaintiffs claim they met the affidavit requirement because, in support of their fourth application, they submitted their counsel’s declaration “attesting to the attempts to exhaust administrative remedies with 18 letters, i.e., to ask and plead with County officials to take some action to enforce the San Bernardino County Development Code” against Al-Nur and other defendants, but [t]he County ignored all of these letters.” This affidavit explained that plaintiffs had appealed the 2016 TUP to the County board of supervisors, but it did not aver that plaintiffs had ever asked the County to enforce the terms and conditions of the 2016 TUP against Al-Nur and other defendants. In any event, this affidavit did not meet the requirements of section 1008. It did not show any new or different facts, circumstances, or law to justify further review of the issues presented in the third application. Further, it did not show why, with reasonable diligence, plaintiffs could not have submitted evidence of their attempts to exhaust their administrative remedies with the County in support of their third application, filed in June 2016—if, in fact, plaintiffs had ever asked the County to enforce the terms and conditions of the 2016 TUP. (§ 1008, subds. (a), (b); Even Zohar, supra, 61 Cal.4th at pp. 833, 839.)

B. This Appeal Must Be Dismissed

As noted, plaintiffs have appealed solely from the December 13, 2016, order denying their fourth application—that is, from the order denying their motion to reconsider the court’s October 11, 2016, order denying their third application. They may not do so. An order denying a motion for reconsideration is not “separately appealable.” (§ 1008, subd. (g).) Instead, such an order is appealable only from the prior order that was the subject of the motion for reconsideration, if that order is appealable. (Ibid.) The October 11, 2016, order denying the third application, though previously appealable (§ 904.1, subd. (a)(6)), is no longer appealable because the time for appealing it has passed. (Cal. Rules of Court, rule 8.104.) For this reason, this appeal must be dismissed. (Powell v. County of Orange, supra, 197 Cal.App.4th at pp. 1576-1577, 1579.)

IV. DISPOSITION

The appeal is dismissed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.