Opinion
A130279
08-17-2011
In re the Marriage of ERIK D. JOHNSON and JOY L. JOHNSON. ERIK D. JOHNSON, Appellant, v. JOY L. JOHNSON, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RF09463371)
In this marital dissolution action, the trial court issued a June 29, 2010 order relating to the medical and therapeutic needs of the minor children of appellant Erik D. Johnson and respondent Joy L. Johnson. Erik was ordered to pay $2500 attorney fees and $2500 in sanctions, as well. On July 15, Erik sought reconsideration of this order. (Code Civ. Proc., § 1008.) The trial court denied the motion for reconsideration on September 9.
All subsequent dates refer to the 2010 calendar year, unless otherwise indicated.
On November 8, Erik filed a notice of appeal from the June 29 order, virtually all aspects of which he challenges in his opening brief. In her brief, Joy asserts various procedural defects in this appeal, only one of which we need address. She contends that
Erik's notice of appeal was untimely. For various reasons, we agree that this appeal must be dismissed.
Erik filed no reply brief to dispute this or any other of Joy's procedural arguments.
Typically, a notice of appeal must be filed within 60 days of the notice of entry of the challenged order. (Cal. Rules of Court, rule 8.104(a)(1).) In his civil case information statement, Erik states that notice of entry of the order was given on June 29. A valid motion for reconsideration can extend the normal time for filing a notice of appeal. (Cal. Rules of Court, rule 8.108(e).) However, it is unclear whether Erik's motion for reconsideration was valid.
The motion for reconsideration appears to have been untimely filed. A party affected by a trial court order may apply for reconsideration of that order within 10 days after service of written notice of entry of the order. (Code Civ. Proc., § 1008, subd. (a).) The time for filing a timely motion for reconsideration expired on July 9, ten days after the June 29 order. Erik's motion was not filed until July 15, after this ten-day period had expired.
Even if the motion for reconsideration was valid, it would only extend the time for filing the notice of appeal for no more than 90 days from the filing of the July 15 motion for reconsideration. (See Cal. Rules of Court, rule 8.108(e)(2).) As that extended period ran through October 13, Erik's November 8 notice of appeal was not timely filed, even if the normal time for filing a notice of appeal was extended by the filing of a valid motion for reconsideration.
Under these circumstances, we have no jurisdiction to consider the merits of the purported appeal, but must dismiss it. (See Ramirez v. Moran (1988) 201 Cal.App.3d 431, 437-438; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 614, pp. 689-690.)
In light of this conclusion, we need not address any of the other procedural challenges that Joy raises to this appeal.
The purported appeal is dismissed.
Reardon, J. We concur: Ruvolo, P. J. Rivera, J.