Opinion
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II(A) and III(A).
See footnote, ante, page 886
See footnote, ante, page 886
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. BC195461, Charles W. McCoy Jr., Judge. Dismissed. [Copyrighted Material Omitted] COUNSEL
Law Offices of John A. Schlaff and John A. Schlaff for Plaintiff and Appellant.
Yukevich & Sonnett, Anthony E. Sonnett, Stephanie A. Hingle; Michelman & Robinson, Carol Boyd, Lary Nathenson; Neumeyer & Boyd and Katherine Tatikian for Defendant and Respondent.
[REVIEW GRANTED BY CAL. SUPREME COURT]
OPINION
KITCHING, J.
I. INTRODUCTION
Plaintiff and appellant Keith Alan appeals an order denying a motion for class certification. In the unpublished portion of this opinion, we conclude that the order denying the motion for class certification was an immediately appealable order. Defendant and respondent American Honda Motor Co., Inc. has filed a motion to dismiss the appeal as untimely. We grant the motion.
In the published portion of this opinion, we conclude that Alan’s notice of appeal was not timely filed. On January 2, 2003, the court clerk mailed to plaintiff a file-stamped copy of the appealable order and a minute order showing the date it was mailed, thus triggering the 60-day time period set forth in rule 2(a)(1) of the California Rules of Court (hereafter Rule 2). Alan filed his notice of appeal on March 6, 2003, which was 63 days after the court clerk mailed to the parties the appealable order. Therefore, this court does not have jurisdiction to consider the merits of this appeal.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of Case and Factual Allegations *
B. The Trial Court’s Ruling on Plaintiff’s Motion for Class Certification
On January 2, 2003, the trial court denied plaintiff’s motion for class certification. The trial court’s ruling consisted of a minute order and a written statement of decision mailed to the parties on January 2, 2003. In the minute order, the court explained: “Ruling on Submitted Matter/Motion for Class Certification[.] [¶] The Court, having heard argument in this Motion, and read and considered the papers, now issues its; [sic] ‘Statement of Decision Re: Alan’s Motion for Class Certification’ this date. [¶] Copies of this minute order and the Statement of Decision are sent via U.S. Mail on January 2, 2003 to counsel of record . . . .”
The accompanying statement of decision bore a “Filed” file stamp of the Los Angeles County Superior Court, dated January 2, 2003. The statement of decision was signed by the trial court. In conclusion at page 5 of the statement of decision, the trial court ruled: “Alan’s Motion for Class Certification is denied.”
On March 6, 2003, plaintiff filed a notice of appeal “from the Court’s minute order dated January 2, 2003 in the above-referenced action, and from all the Court’s rulings and findings associated therewith.”
III. DISCUSSION
Defendant filed a motion to dismiss this appeal as untimely pursuant to Rule 2(a)(1). We conclude the motion is well taken.
A. The Order Denying Class Certification Was Immediately Appealable *
B. The Notice of Appeal Was Untimely
Failure to timely appeal an immediately appealable order requires dismissal of the appeal for lack of jurisdiction. (Filipescu v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 742 [48 Cal.Rptr.2d 736].)
Rule 2(a) provides in pertinent part: “[A] notice of appeal must be filed on or before the earliest of: [¶] (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; . . . or [¶] (3) 180 days after entry of judgment.” The trial court’s January 2, 2003, ruling complied with the requirements set forth in Rule 2(a)(1) and therefore triggered the 60-day time period in which to file a notice of appeal. The January 2, 2003, order showed the date it was mailed, and included a file-stamped copy of a five-page statement of decision signed by the trial court.
Pursuant to Rule 2(f), Rule 2(a) applies to judgments and appealable orders.
Plaintiff responds that the trial court’s January 2, 2003, ruling did not comply with Rule 2 because it consisted of two documents as opposed to one. Plaintiff suggests that had the trial court copied the language from the statement of decision directly into the minute order and affixed a file stamp to the minute order, then the trial court’s ruling would have complied with Rule 2(a)(1). Alternatively, plaintiff argues that Rule 2(a)(1) required the trial court to place a certificate of mailing or a proof of service directly upon the appealable order in order to show the date it was mailed. Plaintiff also asserts that, as a matter of law, a statement of decision cannot be an appealable order for purposes of Rule 2. We reject these assertions.
Plaintiff has presented no authority for the proposition that an appealable order must consist of one integrated written document in order to comply with Rule 2(a)(1). In fact, Rule 2(a)(1) appears to expressly contemplate and sanction the practice of trial court clerks mailing two documents, a file-stamped copy of the appealable order (or judgment) and a document, “showing the date [it] was mailed.” (Rule 2(a)(1).)
This conclusion is supported by Rule 2(a) which provides: “[A] notice of appeal must be filed on or before the earliest of: [¶] . . . [¶] (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[.]” Thus, Rule 2(a)(2) allows a party to trigger the 60-day time period in which to file a notice of appeal by serving the party filing the notice with two documents: (1) a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, and (2) a proof of service.
Thus, the language of Rule 2(a)(1) indicates that trial court clerks may mail to the party filing a notice of appeal two documents, a file-stamped copy of the appealable order and a document showing the date it was mailed.
In any event, the minute order, which showed the date it was mailed, expressly incorporated the statement of decision and stated that the statement of decision constituted the trial court’s ruling. Thus, on this record, the court clerk did not mail the parties two separate stand-alone documents as suggested by plaintiff.
Plaintiff also asserts that as a matter of law a document bearing the title “statement of decision” cannot constitute an appealable order. Plaintiff attempts to elevate form over substance. In Viejo Bancorp, Inc. v. Wood (1989) 217 Cal.App.3d 200 [265 Cal.Rptr. 620], the court explained: “ ‘Although the law relating to appealability speaks in terms of orders or judgments,’ it is well established ‘that it is not the label but rather the substance and effect of a court’s judgment or order which determines whether or not it is appealable. [Citation.]’ ” (Id. at p. 205, quoting In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638 [235 Cal.Rptr. 198]; see also Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [4 Cal.Rptr.2d 689]; Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 190 [205 Cal.Rptr. 433] [“The fact the trial court labels its ruling ‘a judgment’ is irrelevant in determining whether the decision is appealable.”]; and Estate of Lock (1981) 122 Cal.App.3d 892, 897 [176 Cal.Rptr. 358] [“By its terms, the decision constitutes a final determination on the petition and contemplates no further judicial action to give it vitality as an order. It is couched in terms of an order, as signed, filed and entered: in our view, it should be treated as final and appealable, notwithstanding its label.”].)
Moreover, it is established that a document filed by a trial court entitled “statement of decision” may constitute an appealable order or judgment in appropriate circumstances. (See MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1392 [23 Cal.Rptr.3d 622] [“Accordingly, ‘[a] memorandum of decision may be treated as an appealable order or judgment when it is signed and filed, and when it constitutes the trial judge’s determination on the merits. [Citations.]’ ”]; Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 896, fn. 1 [19 Cal.Rptr.2d 344] [“We are satisfied the statement of decision, deemed an order, is properly appealable.”]; Estate of Lock, supra, 122 Cal.App.3d at p. 897 [“Similarly, though denominated a ‘Decision,’ the trial court’s ruling here is in effect a final judgment.”].)
Pursuant to Viejo Bancorp, Inc. v. Wood, supra, 217 Cal.App.3d 200, the substance and effect of the trial court’s statement of decision in this case unambiguously indicates that it was an order denying class certification. The minute order clearly stated that the statement of decision was the ruling of the trial court. Moreover, the statement of decision concluded with the sentence: “Alan’s Motion for Class Certification is denied.” In addition, pursuant to MHC Financing Limited Partnership Two v. City of Santee, supra, 23 Cal.App.4th 1372, the trial court signed and filed the statement of decision. In this regard, the statement of decision shows that the trial court intended the statement of decision to be the final ruling of the trial court on Alan’s motion for class certification.
Plaintiff filed the notice of appeal on March 6, 2003. This was 63 days after the court clerk mailed plaintiff a copy of the file-stamped appealable order showing the date it was mailed, January 2, 2003. It was therefore untimely. Because Alan did not file a timely notice of appeal, this court is without jurisdiction to consider his appeal. (Filipescu v. California Housing Finance Agency, supra, 41 Cal.App.4th at p. 742.) In addition, a party that has not timely appealed from an appealable order is not entitled to obtain review of the appealable order by requesting that the Court of Appeal deem the untimely appeal to be a petition for writ relief. (Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 952 [281 Cal.Rptr. 507].)
DISPOSITION
The appeal is dismissed. Honda is awarded costs on appeal.
We concur: KLEIN, P.J., CROSKEY, J.