Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV817992
RUSHING, P.J.
Appellant, John H. Lee, appeals from a judgment entered after the trial court granted a motion for judgment on the pleadings without leave to amend. While the appeal was pending, respondent filed a motion here to dismiss the appeal as untimely. Finding that the appeal from the judgment is untimely pursuant to rule 8.104 of the California Rules of Court, we will grant the motion and dismiss the appeal.
All further rules references will be to the California Rules of Court unless otherwise specified.
Factual and Procedural Background
Appellant filed a notice of appeal on August 7, 2007, appealing from the judgment under Code of Civil Procedure section 904.1, subdivision (a)(3)-(13). The relevant sequence of events is as follows:
On March 8, 2005, the trial court granted respondent Shapell Industry of Northern California’s unopposed motion for judgment on the pleadings, and entered judgment in favor of defendant on January 6, 2006, against plaintiffs Guen S. Lee, John H. Lee and Do H. Kim. The same day, the clerk of the trial court mailed a copy of the file-stamped judgment to plaintiffs Guen S. Lee and Do H. Kim, but not appellant John H. Lee. On April 14, 2006, coplaintiff Guen S. Lee filed the notice of appeal from the judgment, and respondent moved to dismiss the appeal as untimely. In an opinion filed on June 29, 2007, we dismissed the appeal finding it untimely pursuant to rule 8.104, subd. (a)(1).
Thereafter, on July 23, 2007, a notice of entry of judgment was served on appellant John H. Lee. This notice did not have a party caption identifying the party serving it, but the proof of service attached to the notice was signed by Sung. W Yoon, the same person who had signed all prior proofs of service on behalf of plaintiffs Guen S. Lee, John H. Lee and Do H. Kim. On August 6, 2007, 14 days after that notice, and 577 days after the original judgment, appellant John H. Lee filed a notice of appeal, challenging the January 6, 2006 judgment.
While this appeal was pending, the respondent filed a motion to dismiss which we now consider.
Discussion
In the motion, respondent contends that the notice of appeal, filed on August 6, 2007, was unitmely. Respondent asserts that rule 8.104 requires appellant to file a notice of appeal no later than 60 days from the date the trial clerk mailed the judgment to the parties, or March 7, 2006. Respondent argues that appellant’s July 23, 2007 “Notice of Entry of Judgment” did not extend the time to appeal, and that we already determined this issue in a nonpublished opinion, Lee v. Shapell Industry of Northern California, Inc. (Jun. 29, 2007, H030083). Respondent also requested that we award sanctions in the amount of $2,300.00 because the appeal is frivolous and taken solely for the purposes of delay.
Because the timeliness issue is dispositive of the motion, we need not address respondent’s alternative ground for dismissal which is that the opening brief is deficient and that appellant is a vexatious litigant. We note, however, as far as we can determine, appellant has not been deemed to be a vexatious litigant pursuant to Code of Civil Procedure section 391.7 in any court in this state and there is no motion currently pending pursuant to this section before this or any other court.
Appellant did not initially file a memorandum of points and authorities in opposition to the motion to dismiss. However, when we sent notice, pursuant to rule 8.276 subdivision (c), that we were considering awarding sanctions, appellant filed a response opposing both the motion to dismiss and the request for sanctions. Appellant argued that his appeal was not frivolous because he has not filed any previous appeals, and that the request for sanctions is improper because the motion requests sanctions against “Guen S. Lee” who is not a party in this appeal.
In his opposition, the appellant correctly pointed out that respondent had captioned the motion to dismiss with plaintiff Guen S. Lee’s name and had served the motion addressed to Guen S. Lee, not appellant John H. Lee. Appellant stated that he had never been served with a motion to dismiss. Although Guen S. Lee and John H. Lee have the same service address, the court directed respondent to serve the motion on the proper appellant. On July 14, 2008, respondent filed an amended proof of service on the appellant John H. Lee. This court had already sent notice to appellant John H. Lee pursuant to rule 8.276 subdivision (c) that it was considering awarding sanctions against him.
The time limits for filing a notice of appeal are jurisdictional and are governed by rule 8.104 subdivision (a). This rule states that “a notice of appeal must be filed on or before the earliest of . . .” the events enumerated in subdivisions (1)-(3). (Rule 8.104(a), emphasis added.) Pursuant to rule 8.104(a)(1) an appellant has 60 days from the date the superior court clerk mails a file-stamped copy of the judgment in which to file a notice of appeal. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905.) Here, while the clerk of the trial court served a file-stamped copy of the order on January 6, 2006, to coplaintiffs Guen S. Lee and Do H. Kim, the clerk did not list appellant John H. Lee on the notice of mailing. Therefore, rule 8.104(a)(1) does not apply.
Rule 8.104 subdivision (a)(2) provides that an appellant has 60 days from the date a party serves a “Notice of Entry of Judgment” in which to file an appeal. Here, appellant was served with such a notice on July 23, 2007. Although 60 days from that date is September 21, 2007, the time to appeal runs from the earliest triggering event in subdivisions (1)-(3) of rule 8.104. Here, the earliest date under rule 8.104 subdivision (a) is calculated by applying subdivision (a)(3) which provides that an appeal must be filed no later than 180 days from the date of judgment. Judgment was entered on January 6, 2006, and 180 days from that date was July 5, 2006. A party’s self-serving notice of entry of judgment, served well after the expiration of the 180 days does not act to extend the time to appeal beyond that date under any circumstances.
Because appellant’s time to appeal expired on July 5, 2006, 180 days after the entry of judgment, the appellant’s August 6, 2007 notice of appeal is untimely.
Sanctions
It is obvious from the sequence of events that the appellant served the July 23, 2007 notice of entry of judgment directly in response to this court’s opinion dismissing the appeal of the coplaintiff Guen S. Lee. In dismissing that appeal, we held that a party’s subsequently served notice of entry of judgment did not act to extend the time to appeal where the clerk had previously mailed a filed-stamped copy of the judgment to the parties. We concluded that since the time ran from the earlier of the two events, the appeal was untimely even though it had been filed within 60 days of the notice of entry of judgment because it was not filed within 60 days of the clerk’s mailing. Despite, this holding, appellant served yet another self-serving notice of entry of judgment on himself more than 20 months after entry of judgment and filed a notice of appeal based on the date of this notice. This attempt to resurrect appellate rights which had long since expired has no arguable basis in law and could only have been done to harass and cause further delay to the respondents. Therefore, sanctions are warranted. Sanctions in the amount of $1,000 are awarded to respondent.
Lee v. Shapell Industries of Northern Caliornia, Inc., supra, nonpublished opinion.
Disposition
The motion to dismiss the appeal is granted. The appeal is hereby dismissed as untimely. Sanctions in the amount of $1,000 are awarded to respondent.
WE CONCUR: PREMO, J., ELIA, J.