Respondents_briefBriefCal. Super. - 4th Dist.January 2, 2019Electronically Filed by Superior Court of California, County of Orange, 02/07/2020 04:08:00 PM. 30-2019-01043431-CL-JR-CJ C - ROA #33 - DAVID H. YAMASAKI, Clerk of the Court By Michael Porter, Deputy Clerk. Appellate Div. No. 30-2019-01043431 EXEMPT FROM FILING FEES PER GOVERNMENT CODE § 6103 In the Superior Court of California County of Orange APPELLATE DIVISION SCHUYLER LIFSHULTZ, Appellant, Vs. SAN JUAN CAPISTRANO CODE ENFORCEMENT, Respondent. Appeal from The Superior Court, County of Orange Civil Case No. 30-2017-00958536 Hon. Timothy Stafford, Judge RESPONDENT’S SUPPLEMENTAL BRIEF REGARDING TIMELINESS OF APPEAL (Related to ROA #18) JEFFREY S. BALLINGER, BAR NO. 205531 DENISE GRIMES, BAR NO. 156363 GREGG W. KETTLES, BAR NO. 170640* KANDICE L. KIM, BAR NO. 295227 BEST BEST & KRIEGER LLP 18101 VON KARMAN AVENUE, SUITE 1000 IRVINE, CALIFORNIA 92612 GREGG.KETTLES @ BBKLAW.COM TELEPHONE: (949) 263-2600 FACSIMILE: (949) 260-0972 Attorneys for Respondent San Juan Capistrano Code Enforcement PRINTED ON RECYCLED PAPER TABLE OF CONTENTS Introduction .........eeeeeeeeeeeeveeiieeens Timeliness of appeal is jurisdictional, and jurisdiction may not be conferred by waiver............ The notice of appeal was filed late Conclusion ....cueeeeeeeeeeeeeeeeeeeeeeeennn, TABLE OF AUTHORITIES PAGE Cases Baker v. Castaldi (2015) 235 Cal. APP.AT 218... eas 5 Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660........oouiiiiiiiiete tee 5,6 Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cald™ 51. eset sbeebs 5 Rules California Rules of Court, rule 8.822, subd. (a)(1) ......ceoevvrviiivriiiinennnnnnn. 6,7 Introduction A timely appeal is jurisdictional.! Appellate jurisdiction cannot be waived. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 665-666 (“Hollister”).) Appellant Schuyler Lifshultz (“Lifshultz”) filed his notice of appeal late, more than 90 days after entry of the minute order from which he appeals. (See Cal. Rules of Court, rule 8.822.) Lifshultz’s appeal must therefore be dismissed. Timeliness of appeal is jurisdictional, and jurisdiction may not be conferred by waiver Lifshultz argues that Respondent City of San Juan Capistrano (the “City”) has waived any argument regarding timeliness by not raising it in the City’s respondent’s brief. Lifshultz’s authorities in support are inapposite. (Appellant’s Supplemental Brief (“ASB”) at 4.) They address the concept of waiver generally, and not in the context of timeliness of appeal. (Id.) “The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.” (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4" 51, 56.) Appellate jurisdiction may not be conferred by party consent, stipulation, estoppel, or waiver. (Hollister, 15 Cal.3d at 666 (“Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver.”); Baker v. Castaldi (2015) 235 Cal. App.4™ 218, 225 (“Jurisdiction cannot be conferred upon an appellate court by waiver.”).) An untimely appeal must be dismissed, either on respondent’s motion or the court’s own motion (sua sponte). (Hollister, 15 Cal.3d at 666-667; see Cal. Rules of Court, rule 8.822, subd. (d) (“If a notice of appeal is filed late, the appellate division must dismiss the appeal.”).) This supplemental brief is filed in response to the court’s order of January 22, 2020, inviting the parties to brief the timeliness of the appeal. The notice of appeal was filed late Lifshultz does not dispute that the time to appeal is governed by the deadlines set out in California Rules of Court, rule 8.822. (ASB at 4-5.) Nor does he dispute that rule 8.822 provides thee different deadlines to file a notice of appeal: (1) 30 days after the clerk serves a notice of entry of the judgment/order being appealed; (2) 30 days after notice of entry is served by a party; or (3) 90 days after entry of the judgment/order. (Id.; Cal. Rules of Court, rule 8.822, subd. (a)(1).) Significantly, the Rules of Court provide that the notice of appeal “must be filed on or before the earliest” of these 3 deadlines. (Cal. Rules of Court, rule 8.822, subd. (a)(1) (emphasis added).) In other words, the shortest deadline controls. There is no dispute that the order that Lifshultz appeals is a minute order dated August 2, 2018. (ASB at 5, citing 2 CT 314.) 90 days after this date is October 31, 2018. There is no dispute that no notice of the order, either by the clerk or by the parties, was given such that the deadline to notice the appeal would have been before October 31, 2018. For example, the City did not give notice of the order on, say August 5, 2018, which would have meant that the appeal would be due 30 days after that, on September 4, 2018. Because October 31, 2018 was the earliest of the three possible deadlines, the notice of appeal was due on or before that date. Lifshultz did not file his notice of appeal until January 2, 2019—more than two months after the deadline. In a futile attempt to avoid this, Lifshultz points to his filing of a notice of entry of the order, and argues that his appeal is timely because it was filed on January 2, 2019, within 30 days of his filing of a notice of entry. (ASB at 5.) But the January 2, 2019 deadline based on notice of entry is later than the October 31, 2018 deadline based on entry of the order itself. Under the Rules of Court the earlier of the two deadlines, October 31, 2019, controls. (See Cal. Rules of Court, rule 8.822, subd. (a)(1).) Indeed, Lifshultz’s notice of entry was not filed or served until December 3, 2018 [ASB at 5, citing 2 CT 314], well after the time to file a notice of appeal had already expired. Essentially Lifshultz is arguing that a notice of entry can resurrect an untimely appeal. Under his theory, so long as the appeal is filed within 30 days of a notice of entry, the appeal is timely, even if the notice of entry is filed years after the order being appealed. This would be an absurd result. It is also contradicted by the plain language of the Rules of Court, which provides that the notice of appeal must be filed on or before the “earliest” of the three deadlines provided. (See Cal. Rules of Court, rule 8.822, subd. (@)(1).) Conclusion Lifshultz’s misguided effort to resurrect a late appeal should be turned back and his appeal dismissed. Dated: February 7, 2020 Respectfully submitted, BEST BEST & KRIEGER LLP By: /s/ Gregg W. Kettles JEFFREY S. BALLINGER DENISE GRIMES GREGG W. KETTLES KANDICE L. KIM Attorneys for Respondent SAN JUAN CAPISTRANO CODE ENFORCEMENT CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court, rule 8.204(c)(1), I certify that Respondent’s Supplemental Brief Regarding Timeliness of Appeal of San Juan Capistrano Code Enforcement contains 1,400 words (including footnotes) as counted by the Microsoft Word 2010 Program. Dated: February 7, 2020 Respectfully submitted, BEST BEST & KRIEGER LLP By: /s/ Gregg W. Kettles JEFFREY S. BALLINGER DENISE GRIMES GREGG W. KETTLES KANDICE L. KIM Attorneys for Respondent SAN JUAN CAPISTRANO CODE ENFORCEMENT PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address is 300 S. Grand Avenue, Suite 2500, Los Angeles, California 90071. X [>< On February 7, 2020, I served the following document(s): RESPONDENT’S SUPPLEMENTAL BRIEF REGARDING TIMELINESS OF APPEAL By United States mail. I enclosed the documents in a sealed envelope or package for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing with postage fully prepaid. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in Los Angeles, California. I am a citizen or employed in the county where the mailing occurred to the addressee listed below. Honorable Timothy Stafford Department C66 Orange County Superior Court 700 Civic Center Drive West Santa Ana, CA 92701 Alison Targoff Orange County District Attorney 401 Civic Center Drive West Santa Ana, CA 92701 By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. By e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Charles S. Krolikowski, Esq. Attorneys for Appellant Jason Moberly Caruso, Esq. Schuyler Lifshultz Newmeyer & Dillion LLP Tel: (949) 854-7000 895 Dove Street, 5th Floor Fax: (949) 854-7099 Newport Beach, CA 92660 charles.krolikowski @ndlf.com jason.caruso @ndlf.com Law Offices of Stephen Bartol Stephen Bartol P.O. Box 1913 Garden Grove, CA 92842 stephenbartol @ gmail.com I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 7, 2020, at Los Angeles, California. /s/ Susan Segovia Susan Segovia
