Opinion
A165561
04-09-2024
DOMINIQUE VIVIAN, Plaintiff and Appellant, v. CALIFORNIA OFFICE OF ADMINISTRATIVE HEARINGS et al., Defendants and Respondents; GOLDEN GATE REGIONAL CENTER, Real Party in Interest.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 21CIV03368)
MEMORANDUM OPINION
Mayfield, J. [*]
Dominique Vivian appeals from a trial court order denying her petition for writ of administrative mandate (Code Civ. Proc., § 1094.5). We dismiss the appeal as untimely.
We resolve this case by memorandum opinion; in doing so, we provide an abbreviated factual recitation. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2022) 97 Cal.App.4th 847, 851.) We requested and received supplemental briefing on the appeal's timeliness. Because we dismiss the appeal without reaching the merits, the parties are not entitled to oral argument. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1254.)
In 2021, the Office of Administrative Hearings and Department of Developmental Services and the Golden Gate Regional Center (Regional Center) concluded Vivian was not eligible for services under the Lanterman Developmental Disabilities Services Act (Welf. & Inst. Code, § 4500 et seq.). Vivian challenged that decision in a writ petition. On April 29, 2022, the trial court issued a written order denying the petition. The order bears the bench officer's electronic signature and is stamped "filed." That same day, the trial court clerk signed an "Affidavit of Mailing" stating under penalty of perjury that she mailed to the parties "a true and correct copy of the attached document(s) ORDER AFTER HEARING RE PETITION FOR WRIT OF MANDATE, enclosed in an envelope, with proper and necessary postage thereon." On June 30, 2022-more than 60 days later-Vivian filed a notice of appeal.
There are two jurisdictional requisites to the exercise of appellate jurisdiction: the "existence of an appealable order or judgment" (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302) and the "timely filing" of a notice of appeal. (Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 294.) We assume for the sake of argument the order is appealable. (See Calexico v. Bergeson (2021) 64 Cal.App.5th 180, 190 (Calexico); Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43, 63-64, review granted, June 15, 2022, S274147.) But as explained below, we lack jurisdiction because the notice of appeal is untimely.
As relevant here, the 60-day deadline to appeal commences when "the superior court clerk serves on the party filing the notice of appeal . . . a filed-endorsed copy of the judgment, showing the date [it] was served." (Cal. Rules of Court, rule 8.104(a)(1)(A) (further rule references are to the Cal. Rules of Court); Valero Refining Company - California v. Bay Area Air Quality Management District Hearing Board (2020) 49 Cal.App.5th 618, 633 (Valero).) Service of a filed-stamped copy of an appealable order satisfies the "filed-endorsed" requirement. (Valero, at p. 633.) Rule 8.104(a)(1) requires the clerk to serve a "single document . . . sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed." (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905 (Alan).)
Vivian filed her notice of appeal more than 60 days after the trial court clerk mailed the parties a filed-stamped copy of the order accompanied by an affidavit of mailing showing the date the order was mailed. Thus, the appeal is untimely. (Calexico, supra, 64 Cal.App.5th at p. 194.) In her supplemental letter brief, Vivian offers no persuasive argument to the contrary. Instead- and citing no authority-she hedges that it "appears . . . the notice of appeal was timely" because the affidavit of mailing does not state "the document being served was a filed-stamped copy of the order." (Italics added.) This argument is meritless. Rule 8.104(a)(1)(A) requires the superior court clerk to serve a filed-endorsed copy of the judgment "showing the date [it] was served." The rule does not require the certificate of mailing or its equivalent to recite that the document being served is "filed-endorsed." The rule's clear and unambiguous language governs (Alan, supra, 40 Cal.4th at p. 902); we will not read into the rule a requirement that does not exist. (See Cahill Construction Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 777, 787.) Moreover, our high court has held a superior court clerk can satisfy rule 8.104(a)(1)(A) by "attaching a certificate of mailing to the file-stamped judgment or appealable order." (Alan, at p. 905.) That is what happened here.
This case bears striking resemblance to Calexico, supra, 64 Cal.App.5th 180. There, the superior court clerk served the appealing party with a filed-endorsed copy of an order denying a petition for writ of mandate together with a declaration of mailing showing the date of service. (Id. at p. 194.) The declaration provided," 'I, the undersigned, certify under penalty of perjury, . . . that I mailed a true and correct copy on 09/24/2019 of the [order] to each of the persons listed below, by depositing such notice in the United States Mail, enclosed in sealed envelopes with postage prepaid.'" (Id. at p. 186.) Calexico concluded the clerk's service of the filed-endorsed copy of the order, accompanied by the declaration of mailing, triggered the deadline to appeal. (Id. at p. 195.) Here too. The trial court clerk's affidavit of service-which attached the filed-stamped copy of the order and showed the date it was served-provided Vivian "with clear notice of the time to file an appeal from the [order] under Rule 8.104(a)(1)(A) and satisfied the single-document rule of Alan." (Calexico, at p. 194.)
Vivian's reliance on Valero, supra, 49 Cal.App.5th 618 and Alan, supra, 40 Cal.4th at 899, is misplaced. In Valero, we determined the superior court clerk's mailing of a "file-stamped copy of the appealable judgment accompanied by a proof of service" did not trigger the deadline to appeal because the "mailing was sent to an incorrect address." (Valero, at p. 633.) In Alan, the California Supreme Court concluded, as relevant here, that the mailing of a minute order that was not filed-stamped did not start the time to appeal. (Alan, at pp. 902, 905.) Plainly, these cases are inapposite.
Vivian also contends the record precludes a finding that a filed-stamped copy of the order "was in fact served." This argument defies logic. She submitted the filed-stamped order-accompanied by the affidavit of mailing-to this court with her civil case information statement. Moreover, there is only one order in the record titled "ORDER AFTER HEARING RE PETITION FOR WRIT OF MANDATE," and it bears a file stamp. We presume the clerk performed her duty when she mailed a copy of the order to the parties. (See Evid. Code, § 664.) And we will not indulge Vivian's theory that she might have received a non-filed-stamped order from the clerk, but submitted a filed-stamped order to this court.
In sum, we conclude the trial court clerk's service of the filed-stamped order, together with the affidavit of service, triggered the deadline to appeal. (Calexico, supra, 64 Cal.App.5th at p. 194.) Vivian's appeal, filed more than 60 days later, is untimely and must be dismissed. (Id. at p. 196; Meinhardt v. City of Sunnyvale, supra, 76 Cal.App.5th at p. 70, review granted; rule 8.104(b).) We also reject Vivian's cursory argument-unsupported by authority-that the time to appeal began to run when the Regional Center served notice of entry of the order in early May 2022. (See Filipescu v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 742 [second notice of entry of judgment does not recommence deadline to appeal].)
DISPOSITION
Vivian's untimely appeal is dismissed. The Regional Center is awarded costs on appeal. (Rule 8.278(a)(2).)
We concur:
Richman, Acting P.J. Miller, J.
Vivian v. California Office of Administrative Hearings et al.; Golden Gate Regional Center, RPI (A165561)
[*]Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.