Opinion
NOT TO BE PUBLISHED
Santa Clara County, Super. Ct. No. CV817992.
RUSHING, P.J.
Appellant, Geun S. 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, the respondent filed a motion in this court 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 April 14, 2006, appealing from the judgment under Code of Civil Procedure section 904.1, subdivision (a)(3)-(13). The relevant sequence of events is as follows:
January, 6, 2005: The trial court grants the motion for judgment on the pleadings.
January 6, 2006: The trial court enters judgment. The clerk of the court mails a copy of the file-stamped judgment to the parties.
February 22, 2006: Appellant prepares a notice of entry of judgment.
The proof of service of this n otice is not in the record, so this court cannot determine when it was served.
February 27, 2006: Appellant files notice of entry of judgment.
April 14, 2006: Appellant files the notice of appeal.
While the 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 April 14, 2006, 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 February 27, 2006 “Notice of Entry of Judgment” did not extend the time to appeal.
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.
Appellant has not filed a memorandum of points and authorities in opposition to the motion to dismiss. Instead, appellant files a blanket statement of opposition, attaching a document entitled “Notice of Entry of Judgment” file stamped February 27, 2006.
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, the clerk of the trial court served a file-stamped copy of the order on January 6, 2006. Sixty days from this date was March 7, 2006. Since the notice of appeal was not filed until April 14, 2006, 98 days after the judgment was filed and mailed, the appeal is untimely.
Although the appellant makes no substantive argument in his opposition, he does state that the notice of appeal is timely because it was filed within 60 days of February 27, 2006, the date he filed the document entitled “Notice of Entry of Judgment.”
While rule 8.104 provides that the normal time to appeal may be triggered by either the trial court clerk mailing the notice or by a party serving the notice, subdivision (a) specifically states that “a notice of appeal must be filed on or before the earliest of . . .” these specified events. (Rule 8.104(a), emphasis added.) A party’s later-served notice of entry of judgment does not act to extend the time to appeal if the trial court clerk has already mailed a filed judgment to the parties. The time to appeal runs from the earliest triggering event. Here, that was the mailing of the file-stamped judgment on January 6, 2007, not the date the appellant filed the notice of entry of judgment.
Because the time to appeal expired 60 days after the trial court clerk mailed the file-stamped judgment, on March 7, 2006, the appellant’s April 14, 2006 notice of appeal is untimely. Therefore, we must dismiss the appeal.
Disposition
The motion to dismiss the appeal is granted. The appeal is hereby dismissed as untimely.
WE CONCUR: PREMO, J., ELIA, J.