Opinion
A131353
11-03-2011
DAIMLER CHRYSLER FINANCIAL SERVICES AMERICA, Plaintiff and Respondent, v. ANDRE REZOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCS028932)
Defendant Andre Rezos, appearing in propria persona, appeals from a default judgment entered against him in Solano County Superior Court in April 2007. As plaintiff Daimler Chrysler Financial Services America argues, this appeal is untimely pursuant to California Rules of Court, rule 8.104. Therefore, we dismiss defendant's appeal.
All further court rule references are to the California Rules of Court.
BACKGROUND
The clerk's transcript submitted to this court contains some, but not all, of the documents filed, and rulings made, by the court below. It does contain three relevant documents, they being a judgment, "register of action," and notice of appeal.
The table of contents of the clerk's transcript prepared by the Solano County Superior Court Clerk refers to a document entitled "Civil Docket Report" as a "Register of Action." We refer to it by the court's designated title.
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Specifically, the court filed a judgment by default in the amount of $74,122.70 on April 24, 2007. The register of action indicates that a motion for an order setting aside and vacating default and the default judgment was filed by defendant almost a year later, on April 17, 2008. The register of action further indicates the motion was opposed by plaintiff and heard on June 13, 2008, and that a minute order was filed by the court that same date. The motion, opposition, and content of the ruling is not contained in the record. The register of action does not relate the court's ruling and the minute order is not contained in the clerk's transcript. However, defendant states in his opening brief that he filed a motion to set aside default that was "overulled" [sic] by the court.
Defendant filed his notice of appeal on February 24, 2011. The notice, signed by defendant, states that he is appealing from a judgment after court trial and a "notice of levy," and indicates that these were entered on "2.14.11 and/or 2.15.11." The register of action does not contain references to any such documents.
DISCUSSION
We begin with the proposition that "[p]ro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
In his opening brief, defendant states that his appeal "is from the judgment of the Solano County Superior Court by Deault [sic]" and states that his appeal is authorized by the Code of Civil Procedure section 585, subdivision (b), which provides for entry of judgment by default. Based on unverified documents attached to his brief, which defendant contends show his payment for, and ownership of, a Mercedes-Benz E500 sedan, defendant asks that the "judgment be reversed" and "asks that this court . . . reverse the decision of the trial court and vacate the award of damages." Defendant does not raise any issues regarding any notice of levy; therefore we do not address it further.
Plaintiff first argues that we cannot overturn the decision of the lower court after the filing of an untimely appeal, requiring that we dismiss the appeal. Plaintiff also argues that, assuming defendant is entitled to this appeal, he fails to show any error by the trial court and has submitted an insufficient appellate brief, improper documents, and an inadequate record.
In his reply brief, defendant responds to a number of plaintiff's arguments, but does not address plaintiff's contention that we must dismiss his appeal as untimely. He contends, without explaining why it matters, that he was not aware of the filing of the complaint and that service of the summons and complaint was to someone other than him by substituted service. He further contends that plaintiff "by this manipulations" was able to obtain a default judgment and garnish his bank account for $10,649.30, and that after he noticed the disappearance of this money from his bank account, he filed a motion to set aside the default judgment. The record does contain a proof of service of summons indicating substituted service to a "co-resident, competent member of the household" at an address in Vallejo, California that is the same as that listed for appellant on his notice of appeal. However, none of defendant's other factual contentions are supported by any citations to the record. " ' "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." ' [Citation.] Because '[t]here is no duty on this court to search the record for evidence' [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citation]." (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [noting that the California Rules of Court require factual assertions to be supported by citations to the record].) Accordingly, we disregard these contentions.
We agree with plaintiff that defendant's appeal from the court's judgment is untimely, requiring that we dismiss it. Rule 8.104 provides that notices of appeal must be filed at most 180 days after entry of judgment. (Rule 8.104(a)(1)-(4).) "If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b), Dakota Payphone, LLC v. Alcatraz (2011) 192 Cal.App.4th 493, 504.)
Rule 8.104 states that its time deadlines are subject to certain exceptions. (Rule 8.104(a), (b).) However, defendant does not contend that any apply, nor does he argue that his appeal is authorized pursuant to any statute other than Code of Civil Procedure section 585, subdivision (b), which does not provide any grounds for arguing that he is exempt from the requirements of rule 8.104. The only exception stated in rule 8.104 that could conceivably apply is stated in rule 8.108. (Rule 8.104(a).) It provides that, if a party serves and files a valid notice of intention to move, or a valid motion, to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earlier of 30 days from service of an order denying the motion or a notice of that order, or 90 days after the first notice of intention to move, or motion, is filed, or 180 days after entry of judgment. (Rule 8.108(c).)
Based on these rules and the record before us, we conclude that defendant's appeal is untimely. The court's judgment by default was filed on April 24, 2007. Defendant was required at best to file a notice of appeal no later than 180 days after entry of that judgment. He did not do so. Furthermore, the record indicates that defendant did not file his motion to vacate the judgment within his time to appeal as required by rule 8.108, not filing it until April 2008. Therefore, we are required to dismiss his appeal pursuant to rule 8.104(b).
Even if we assume for the sake of argument that defendant filed a timely, valid notice of motion, or valid motion, to vacate the judgment, he concedes that the court rejected it. The only conclusion that can be drawn from examining the register of action is that the court did so on June 13, 2008, when, the register of action indicates, the motion was heard and a minute order was filed. In any event, defendant's notice of appeal would still be untimely because at best, he was required to file his notice of appeal 90 days after his motion to vacate the judgment was filed in the absence of being served with an order denying his motion, and ignoring that 180 days had already passed after the court's entry of judgment. (Rule 8.108(c), see Stein v. York (2010) 181 Cal.App.4th 320, 324-325 [an appeal from a default judgment was timely because defendant's motion to vacate was within the time to appeal from the judgment and his notice of appeal was filed within the time allowed for, pursuant to rule 8.108(c)].)
Given our conclusion, we do not need to address the other issues raised by the parties.
DISPOSITION
Defendant's appeal is dismissed.
Lambden, J. We concur: Haerle, Acting P.J. Richman, J.