NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV 518807) MEMORANDUM OPINION
We conclude this matter is proper for disposition by memorandum opinion in accordance with California Standards of Judicial Administration, section 8.1.
Plaintiffs Brownstone Lofts, LLC and 2141 Forest View LLC filed a lawsuit against defendant Otto Miller and other defendants in 2013. In January 2020, the trial court entered an order dismissing the suit for failure to bring the action to trial within five years. Plaintiffs appealed from the order of dismissal.
After requesting supplemental briefing from the parties, we conclude the appeal is untimely. Accordingly, we dismiss the appeal.
We state only the facts necessary to resolve this appeal.
On January 2, 2013, plaintiff Brownstone Lofts, LLC (Brownstone) filed a lawsuit against Otto Miller and Miller Residential Development Corporation (defendants) for breach of contract and other causes of action. In 2015, the complaint was amended to add 2141 Forest View LLC as a plaintiff. Plaintiffs alleged, among other things, that Miller had agreed to act as a general contractor and development consultant on real estate development projects undertaken by Brownstone's managing member, Monica Hujazi, but instead used funds intended for "the Brownstone project" on other development projects, failed to account for the funds, and then abandoned the Brownstone project.
Plaintiffs also alleged Miller misrepresented that he and his company were licensed contractors in California.
On October 31, 2019, defendants Miller and Miller Residential Development Corporation filed a motion to dismiss for lack of prosecution under Code of Civil Procedure sections 583.310, 583.360, subdivision (a), 583.410, and 583.420 for failure to prosecute the action and bring it to trial within five years. Plaintiffs opposed the motion, and on December 19, 2019, the trial court heard the motion. On January 9, 2020, the trial court filed an order dismissing the case for lack of prosecution, and the order was entered in the register of actions the same day as "Dismissal—Lack of Prosecution." Defendants served a "Notice of Entry of Judgment or Order" by mail the following day, on January 10, attaching the trial court's January 9 dismissal order.
All statutory references are to the Code of Civil Procedure.
On January 28, 2020, plaintiffs filed a "Notice of Motion and Motion for Relief from Waiver of Oral Arguments (CCP § 473(b)) or in the Alternative, for Reconside[r]ation." After the trial court received opposition and reply briefs, a hearing was held on June 19. The trial court issued a tentative ruling, and in a minute order issued on June 19, adopted its tentative ruling denying the motion. A formal written order denying the motion for relief from waiver and motion for reconsideration was signed by the trial court on July 14, and filed on July 15. On July 17, 2020, plaintiffs filed their notice of appeal.
"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.4th 51, 56; Cal. Rules of Court, rule 8.104(b) ["If a notice of appeal is filed late, the reviewing court must dismiss the appeal."].)
Plaintiffs' notice of appeal states plaintiffs are appealing from a "Judgment of dismissal under Code of Civil Procedure, §§ 581d, 583.250, 583.360, or 583.430." After plaintiffs filed their civil case information sheet (CCIS) in this court, we returned it, requesting that plaintiffs resubmit it with the order or judgment being appealed. Plaintiffs resubmitted the CCIS with an attachment captioned, "Judgment Being Appealed," followed by defendants' January 10, 2020 notice of entry of judgment or order and the trial court's January 9, 2020 dismissal order.
The notice of appeal states that the date of judgment or order appealed from was June 19, 2020. The only order entered on that date was the trial court's minute order on the motion for relief from waiver of oral argument, or in the alternative, for reconsideration.
In their opening brief on appeal, plaintiffs state: "This appeal challenges the order of the Superior Court of California, County of San Mateo, Department 1 (Law and Motion), issued on January 9, 2020, and served on January 10, 2020, dismissing appellants' case. An order denying appellants' motion for reconsideration was entered on July 14, 2020. [¶] The order from which this appeal is taken is a Final Judgment."
After the matter was fully briefed, we requested the parties file supplemental letter briefs addressing whether the appeal was timely in light of the facts that (1) the order of dismissal appealed from was filed on January 9, 2020; (2) the notice of entry of judgment or order was served by mail on January 10, 2020; and (3) the notice of appeal was filed July 17, 2020.
Defendants filed a supplemental brief arguing that plaintiffs' appeal is untimely because it was filed more than 180 days after entry of the order dismissing the case for lack of prosecution and none of the grounds to extend the time to appeal under California Rules of Court, rule 8.108 exist in this case.
Plaintiffs filed a supplemental brief arguing the appeal "should be considered timely" because the parties had already filed their briefs and defendants did not argue the appeal was untimely. Plaintiffs also wrote the following: "On January 9, 2020, the court issued its order dismissing the case. To the extent plaintiff has represented that the document was a judgment her counsel was likely mistaken. The Judicial Council Form the defense served on plaintiff is titled, 'Notice of Entry of Judgment or Order.' Thus, it is unclear whether the January 9, 2020, order was a final judgment, or rather, only a[n] order granting the defense's motion to dismiss."
An order of dismissal signed by the trial court and filed in the action is a judgment for all purposes. (§ 581d; Moorer v. Noble L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 741, fn. 3 [order of dismissal signed by trial court and entered by court clerk constitutes a judgment under § 581d].) The trial court's signed order dismissing the action for lack of prosecution was filed January 9, 2020, and defendants served notice of entry by mail the following day. Under California Rules of Court, rule 8.104(a)(1), a notice of appeal must be filed on or before the earliest of (1) 60 days after the superior court clerk serves notice of entry of judgment or a filed-endorsed copy of the judgment; (2) 60 days after any party serves notice of entry of judgment or a filed-endorsed copy of the judgment; or (3) 180 days after entry of judgment. Under this rule, plaintiffs had 60 days from the date defendants served notice of entry of judgment (Jan. 10, 2020) to file their notice of appeal. (Cal. Rules of Court, rule 8.104(a)(1)(B).) Even if defendants had not served notice of entry of judgment, plaintiffs still would have had to file the notice of appeal within 180 days of the judgment, or by July 7, 2020.
Plaintiffs contend, however, that the time to file a notice of appeal was extended in this case. Citing California Rules of Court, rule 8.108(e), plaintiffs argue that "[a] motion for reconsideration may be brought within 30 days after service of the order denying the motion, within 90 days after the first motion for reconsideration is filed, or within 180 days after the entry of the order, whichever is earliest," and contend they filed their notice of appeal within two days of the trial court's denial of the motion for reconsideration. But as plaintiffs recognize, the rule extends the time to appeal until the earliest of three dates, one of which is 180 days after entry of the appealable order. (Cal. Rules of Court, rule 8.108(e).) Thus, plaintiffs still would have had to file their notice of appeal within 180 days of the order of dismissal, or by July 7.
In any event, a motion for reconsideration cannot extend the time to appeal from a judgment, because once judgment is entered, the trial court loses jurisdiction to hear the motion for reconsideration. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607-1608 (Passavanti) [postjudgment motion for reconsideration is improper and will not extend the time to appeal]; Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481-1482.) Nor is an order denying a motion for reconsideration a separately appealable order. (§ 1008, subd. (g).) --------
Plaintiffs also argue a motion for reconsideration can be construed as a motion for new trial, and if we view their motion for reconsideration as a motion for new trial, the appeal was timely. But again, the rule extending the time to appeal when a motion for new trial is filed extends the time to appeal until the earliest of three dates, one of which is 180 days after entry of judgment. (Cal. Rules of Court, rule 8.108(b).) Accordingly, plaintiffs' notice of appeal filed more than 180 days after entry of judgment is untimely.
Plaintiffs urge us to "follow the ruling in Passavanti[, supra, 225 Cal.App.3d 1602]," in which the trial court construed an improper motion for reconsideration as a motion for new trial, but that case is distinguishable. First in Passavanti, the court explained at length that appellate courts generally "should not construe a motion expressly identified as being a particular motion [in the trial court] to be an entirely different motion in the appellate court," noting that efforts to " 'save' " appeals from dismissal "may result in further problems and cannot be justified." (Id. at pp. 1608-1609.) Although the court ultimately did construe the motion for reconsideration at issue in that case as a motion for new trial, it emphasized it was doing so only because two of its prior decisions appeared to have approved of the procedure. (Id. at p. 1610.) That is not the situation here.
More importantly, in Passavanti, the notice of appeal was timely filed under the rules extending the time to appeal upon service and filing of a motion for new trial. (Passavanti, supra, 225 Cal.App.3d at p. 1604.) There, the judgment was entered for the defendant June 19, 1989, and a copy was served on the plaintiff on June 22. On July 5, the plaintiff filed a motion for reconsideration, which was denied August 16, and the plaintiff filed the notice of appeal on August 29. (Ibid.) The notice of appeal was filed more than 60 days after service of the judgment under the normal rules, but within 30 days of the denial of the motion, and was thus timely under the rules extending the time to appeal. (Id. at pp. 1604, 1611.) Here, however, and unlike the plaintiff in Passavanti, plaintiffs filed their notice of appeal more than 180 days after entry of judgment, and thus the notice of appeal was not timely even under the rules allowing an extension of time to appeal.
In their supplemental brief, plaintiffs note that no party raised this issue. This court, however, has jurisdiction, or power, to decide an appeal only when the appellant timely files a notice of appeal. (Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 294.) An untimely appeal must be dismissed, whether on respondent's motion or the court's own motion. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666-667 (Hollister).)
Finally, plaintiffs contend "fundamental fairness" compels allowing the appeal to proceed. Plaintiffs argue they could not reasonably have been expected to file an appeal without first knowing the outcome of the motion for reconsideration, and that plaintiffs should not be punished because the court set the hearing on the motion for reconsideration "all the way in the summer."
The timely filing of an appeal, however, is not a matter within our discretion. (See Hollister, supra, 15 Cal.3d at p. 666 [" 'In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. Nor can jurisdiction be conferred upon the appellate court by the consent or stipulation of the parties, estoppel, or waiver.' "].) Because plaintiffs' notice of appeal is untimely under any applicable deadline, we lack jurisdiction to consider it and must dismiss the appeal.
On our own motion, the appeal is dismissed as untimely. Defendants Otto Miller and Miller Residential Development Corporation are entitled to costs on appeal.
MARGULIES, J. WE CONCUR: HUMES, P. J. BANKE, J.