Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC07282, Dennis S. Choate, Judge.
Law Offices of Kenneth Lance Haddix, Kenneth Lance Haddix and Matthew W. Wolfson for Plaintiff and Appellant.
Ducote & Frasca, Harold A. Ducote, Jr., Joanne M. Frasca; Watkins, Blakely & Torgerson, and Noel K. Torgerson for Defendants and Respondents.
OPINION
O’LEARY, J.
L & J Assets (L & J) appeals from a judgment in favor of Helen M. Weatherby. We agree with Weatherby the appeal was untimely and must be dismissed.
The defendants were Helen M. Weatherby, as an individual, and Helen M. Weatherby, as trustee of her living trust. For convenience, we will refer to her in the singular only as Weatherby.
FACTS AND PROCEDURE
Because we dismiss, we need not set forth the facts in great detail. Suffice it to say, L & J was the assignee of an unpaid credit card debt owed by Weatherby’s former husband, incurred by him after the couple was legally separated. In a breach of contract action against Weatherby’s former husband, L & J also asserted a cause of action against Weatherby alleging a certain piece of real property owned by her (the “Mediterranean Property”) had been fraudulently conveyed to her by her former husband. L & J recorded a lis pendens against the Mediterranean Property and another owned by Weatherby (the “Seven Seas Property”) that had not been mentioned in L & J’s complaint.
The trial court granted Weatherby’s motion to expunge the lis pendens and at the same time granted her motion to compel the deposition of L & J’s most knowledgeable representative, which L & J had been resisting. When those orders were ignored, Weatherby filed a motion for issuance of a terminating sanction and for an order directing the clerk of the court to sign notices withdrawing the lis pendens. L & J then attempted to file a request for dismissal of its action without prejudice as to Weatherby only (and not as trustee of her trust). The court ordered the dismissal was of no legal effect, and subsequently ordered L & J’s complaint dismissed with prejudice as to Weatherby (individually and as trustee of her trust).
Weatherby then filed a motion seeking her attorney fees incurred to expunge the lis pendens. On September 7, 2006, that motion was granted. On October 17, 2006, the trial court entered a judgment in Weatherby’s favor and awarded her attorney fees and costs of $21,385. On January 5, 2007, L & J filed its notice of appeal from the October 17, 2006, judgment.
Weatherby filed a motion to dismiss the appeal as untimely, which we ordered would be decided in conjunction with the appeal. Her motion is accompanied by a notice of entry of judgment filed in the superior court on November 8, 2006. A proof of service of the notice of entry of judgment, signed under penalty of perjury by an employee of Weatherby’s counsel, states the notice of entry of judgment and order were served by being deposited by her in the mail on October 19, 2006, addressed to L & J’s counsel. In its opposition, L & J’s attorney states he never received the notice of entry of judgment.
DISCUSSION
Weatherby contends L & J’s appeal is untimely. We agree.
“The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Ordinarily, an appeal must be filed on or before the earliest of the following dates: “(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a).)
Because the matter is jurisdictional, the appellate court has no authority in civil cases to extend the time for filing a notice of appeal or to grant relief from the failure to file a timely notice of appeal. (Cal. Rules of Court, rules 8.104(b), 8.60(e); see also In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 114.) “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (Cal. Rules of Court, rule 8.104(b), italics added.)
The record before us demonstrates that on October 19, 2006, Weatherby served L & J by mail with a document called “Notice of Entry of Judgment,” a file-stamped copy of the judgment from which L & J now appeals, and a proof of service stating the documents were served on October 19, 2006. Mailed service is completed at the time of deposit in the mail and any time extensions applicable to mailed service of other documents are expressly inapplicable to extend the time to file a notice of appeal. (Code Civ. Proc., § 1013, subd. (a).) Accordingly, L & J had 60 days from October 19, 2006, the date the “Notice of Ruling” and the file-stamped copy of the judgment were served, to file its notice of appeal. Its notice, filed 81 days later on January 5, 2007, was untimely.
L & J’s argument is unpersuasive. Its attorney stated in his declaration that he never received the notice of entry of judgment. But “the sender does not have the burden of showing the notice was actually received[.]” (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.) Glomming onto Weatherby’s counsel’s statement in the moving papers that his office “filed and served” the notice of entry of judgment on October 19, 2006, L & J argues that because the notice of entry of judgment was not filed until November 8, 2006, the inescapable conclusion is that “the document was prepared [by Weatherby’s counsel] on or about October 19, 2006, [but] it did not get ‘out the door’ . . . until sometime well after that date.”
Of course, the argument ignores the obvious: the notice of entry of judgment, the file-stamped copy of the judgment, and the proof of service, were mailed on October 19, 2006, as stated in the proof of service. And the documents were filed with the court thereafter. Indeed, in a supplemental declaration, the office employee who signed the proof of service under penalty of perjury states exactly that—she deposited the documents in the mail on October 19, and thereafter she gave them to their attorney service for filing with the court.
As noted in Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 3:32, pages 3-13 to 3-14, it is the date of service of the documents that triggers the 60-day appeal deadline, not the party’s receipt of the documents or the date of filing the notice of entry and the proof of service with the court clerk. Service of the notice of entry of judgment was complete upon its deposit in the mail on October 19, 2006, and L & J’s notice of appeal filed 81 days later was untimely.
This is not a case in which the procedure followed in Glasser v. Glasser (1998) 64 Cal.App.4th 1004 (Glasser), of remanding the matter to the trial court for an evidentiary hearing on service is necessary. In Glasser, appellant’s counsel submitted a declaration stating not only that had he not received the notice of entry of judgment, but detailing an extensive past history of having not received other documents which had purportedly been served on him by respondent. In addition, the proof of service on the notice of entry of judgment was dated December 13, 1996, despite the fact that the judgment itself was signed and dated on December 16, 1996. Further, the appellant contended that although the proof of service indicated the judgment was attached to the notice of entry of judgment, the proof of service filed with the court did not include a judgment attached to the proof of service. It was in light of these many factual discrepancies that the Glasser court ordered an evidentiary hearing be held on the issue of whether the notice of entry of judgment was in fact served on the date indicated in the proof of service. (Id. at pp. 1008-1009.)
Here, in contrast, L & J’s only factual claim is its counsel’s statement he did not receive the notice of entry of judgment. A simple claim of “I never got it” is not sufficient to establish the document was not served on the date indicated in the proof of service signed under penalty of perjury.
DISPOSITION
The appeal is dismissed as untimely. The Respondents are awarded their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.