Opinion
No. F045075
December 10, 2004 [CERTIFIED FOR PARTIAL PUBLICATION] DEPUBLISHED March 23, 2005.
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
Appeal from the Superior Court of Kern County, No. CV-248385, Sidney P. Chapin, Judge.
Jonathan Morgan, in pro. per., for Plaintiff and Appellant.
J. Craig Jenkins for Defendant and Respondent.
It is well settled that a notice of appeal divests the trial court of jurisdiction to alter a judgment. A motion for reconsideration that is intended to affect the judgment, but which also purports to be a notice of appeal from the judgment, would therefore seem to be self-defeating as a motion for reconsideration. But can such a document nevertheless be valid as a notice of appeal? In the published part of this opinion, we hold that it can and that here it was. Therefore, plaintiff Jonathan Morgan filed a timely notice of appeal.
That said, however, in the unpublished part of the opinion, we conclude that the trial court did not err in sustaining defendant San Joaquin Community Hospital's demurrer without leave to amend as the action was barred by the statute of limitations. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
Plaintiff, a former prison inmate, is HIV-positive. He was treated with antiviral medications on the recommendation of a physician at defendant hospital. Acting in pro. per., he filed a complaint in Kern County Superior Court on October 11, 2002, alleging medical malpractice on the basis of side effects from the drugs. The complaint alleged that the harm was caused by negligence that took place on November 22, 1998, almost four years before the action was filed.
The limitations period for medical malpractice is one year from reasonable discovery of the injury or three years from the injury, whichever comes first, and in no event more than three years from the injury, unless tolled. (Code Civ. Proc., § 340.5.) Plaintiff amended the complaint in an attempt to allege facts sufficient to toll the limitations period. The trial court found his allegations inadequate. It sustained defendant's demurrer to plaintiff's second amended complaint on statute-of-limitations grounds, without leave to amend, and entered judgment for defendant on May 28, 2003.
Statutory references are to the Code of Civil Procedure unless stated otherwise.
The same day, plaintiff filed a document titled "Notice and Motion for Reconsideration (C.C.P. § 1008) and/or Notice of Appeal (C.C.P. § 904.1; CRC 2(c)." After a hearing, the court denied the motion for reconsideration on June 11, 2003. Defendant did not serve a notice of judgment on plaintiff until January 23, 2004. Plaintiff filed a second notice of appeal on March 3, 2004.
DISCUSSION
I. Timeliness of notice of appeal
The parties' arguments on the issue of timeliness of the appeal focus on the second notice of appeal. Defendant points out that this notice was filed over nine months after entry of judgment, exceeding the outer limit of 180 days that applies even though plaintiff filed a motion for reconsideration. (Cal. Rules of Court, rules 2(a), 3(d).) Plaintiff does not dispute this, but contends that the late filing should be excused because defendant caused it by delaying in providing notice of entry of judgment.
If these were the only issues, the appeal clearly would be untimely. California Rules of Court, rule 2(a), governing the normal time for filing a notice of appeal, and rule 3(d), governing the time for filing a notice of appeal when a motion for reconsideration has been filed pursuant to section 1008, both provide an outer limit of 180 days from entry of judgment. There is no authority supporting plaintiff's contention that delay in service of a notice of entry of judgment can alter this outer limit.
But the earlier document, purporting to be both a motion for reconsideration and a notice of appeal, supports a different conclusion. The document's title states that it is both a motion for reconsideration and a notice of appeal. It contains a notice of motion stating that on the designated date plaintiff "will move the Court to reconsider its Order Granting Defendant SJCH's Request to Take Judicial Notice in Support of SJCH's Demurrer to Second Amended Complaint and Order Sustaining Demurrer of Defendant SJCH to Plaintiff's Second Amended Complaint Without Leave to Amend and Judgment of Dismissal on May 6, 2003 (hereinafter `Orders')." It also contains a Memorandum of Points and Authorities, which concludes: "Wherefore, Plaintiff prays Court reconsider its Orders and or Plaintiff hereby [gives] Notice of Appeal to the erroneous rulings."
To be sure, this document reflects a self-represented litigant's multiple mistakes. The motion purported to be for reconsideration of orders granting judicial notice and sustaining the demurrer and of the entry of judgment. Initially, we question whether this was even a proper use of a motion under section 1008 to seek reconsideration of a judgment (as opposed to an order) (see, e.g., Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236 [ 58 Cal.Rptr.2d 217] [court cannot entertain motion for reconsideration of a judgment under section 1008]). In any event, the document was not a proper means of asking the trial court to reverse its decision. The filing of a valid notice of appeal "`divest[s] the trial court of jurisdiction over anything affecting the judgment.'" ( People v. Flores (2003) 30 Cal.4th 1059, 1064 [ 135 Cal.Rptr.2d 63, 69 P.3d 979].) If the notice of appeal was valid, it defeated plaintiff's effort to obtain reconsideration in the trial court.
As a notice of appeal, however, the document was valid. First, its language sufficiently informed the court and parties of plaintiff's intention to appeal from the judgment against him. A "notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 1(a)(2).) The clear intent of the document is to give notice of an intent to appeal from the judgment based on the sustaining of the demurrer, so the notice is adequate in this respect. The combining of the notice of appeal with a motion for reconsideration did not invalidate the document as a notice of appeal. (See Dept. Alcoholic Bev. Control v. Alcoholic Bev. Control Appeals Board (1959) 169 Cal.App.2d 785, 789-790 [ 338 P.2d 50] [document submitted to administrative agency that purported to be both a petition for reconsideration and a notice of appeal was a valid notice of appeal].)
Second, the notice was timely. The document is dated May 15, 2003, and was filed on May 28, 2003, the day on which judgment was entered. Presumably, it was prompted by the court's announcement during a hearing on May 6, 2003, that it was sustaining defendant's demurrer without leave to amend. We do not know whether it was filed earlier or later in the day than the actual entry of the judgment. If it was filed later, it was filed timely. If earlier, it was still filed timely rather than prematurely. (California Rules of Court, rule (2)(d)(1) ["A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment"] or rule (2)(d)(2) ["The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment"].)
See footnote, ante, page 1169.
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The judgment is affirmed. Costs are awarded to defendant.VARTABEDIAN, Acting P.J., and HARRIS, J., concurred.