Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C-833021-5
Kline, P.J.
Respondents Hulda Clark dba New Century Press, Tim Bolen, Jan Bolen, Jurimed, and Dr. Clark Research Association (respondents), move this court for an order dismissing the appeal filed by appellants Stephen J. Barrett, M.D. and Christopher E. Grell (appellants), on the ground that the appeal is not timely pursuant to California Rules of Court, rule 8.104(a)(1). Because we conclude it is untimely, we shall exercise our inherent power to dismiss the appeal.
According to respondent’s counsel, Hulda Clark passed away on September 3, 2009, and no legal representative or successor has yet been appointed by a probate court.
All further rule references are to the California Rules of Court.
BACKGROUND
On March 23, 2009, the trial court entered an order dismissing appellants’ action for failure to bring the case to trial within the mandatory five-year period, pursuant to Code of Civil Procedure section 583.310 et seq. On March 26, 2009, the superior court clerk served by mail a file-stamped copy of the order of dismissal on the parties.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On March 31, 2009, appellant Grell sent a letter to the court requesting reconsideration of the order of dismissal. On April 7, 2009, the trial court judge responded, via email, stating, inter alia, that, “[i]f the plaintiffs disagree with the dismissal, they should file an appropriate motion.”
On April 10, 2009, appellants filed a purported motion for reconsideration, pursuant to sections 583.310 and 1008 on the ground that the court might have failed to consider pleadings, including attached exhibits, previously filed in this matter or, in the alternative, pursuant to section 473 on the ground that appellants had misunderstood that a prior order staying the action applied only to defendant Ilena Rosenthal. On June 29, 2009, the trial court entered its order after hearing, in which it stated, inter alia: “To the extent that this motion is treated as a true motion for reconsideration, it must be denied on procedural grounds. It is defective on its face. The moving parties did not give sufficient notice of the hearing. And they did not satisfy the requirements of Code of Civil Procedure Section 1006 [sic], which requires that a party seeking reconsideration present new facts or new law that could not have been presented earlier.
“I am willing, however, to take another look at the Order of Dismissal to assure myself that it was the correct ruling. A judge is allowed to do this at his or her own instance when necessary to prevent an injustice. [Citation.]
“Upon further review, I am as convinced as ever that dismissal of this action was the proper order for the court to make....”
The superior court clerk served the trial court’s order after hearing by mail on the parties on July 1, 2009.
On July 8, 2009, respondents filed a notice of appeal from the order of dismissal and the order denying the motion for reconsideration.
DISCUSSION
Respondents contend appellants’ appeal must be dismissed because the motion for reconsideration was procedurally invalid and deprived the trial court of jurisdiction to entertain the motion, which means that their notice of appeal was filed approximately one and one-half months after the statutory deadline for appeal had passed. (See rule 8.104(a)(1).)
I. Adequacy of the Notice of Entry of Order
Appellants claim that because they were served only with a file-stamped order of dismissal, rather than a “notice of entry” of judgment or order or a file-stamped judgment, pursuant to rule 8.104(a)(1) or (2), the 60-day time period for filing a notice of appeal was not triggered. Instead, according to appellants, the notice of appeal was timely filed within 180 days of the entry of order of dismissal, pursuant to rule 8.104(a)(3). Appellants are incorrect. Rule 8.104(a) does not require that a file-stamped copy of a judgment be served. Service of a file-stamped copy of an appealable order is adequate. (See, e.g., Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902 [60-day period for filing notice of appeal is triggered upon clerk’s mailing of a file-stamped copy of judgment “or appealable order”].) Consequently, the 60-day time period for appeal applied in this case. (See rule 8.104(a)(1); see also rule 8.104(d).)
Rule 8.104(a) provides in relevant part: “Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
Rule 8.104(d) provides in relevant part: “For purposes of this rule:
II. Timeliness of the Motion to Reconsider
Pursuant to section 1008, subdivision (a), a party must file a motion for reconsideration within 10 days after being served with notice of entry of the order being challenged. Respondents argue that because appellants failed to file their motion for reconsideration within this 10-day time period, their motion was procedurally invalid and therefore cannot extend the time to appeal.
Section 1008, subdivision (a) provides in full: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”
Rule 8.108(e) provides: “If any party serves and files a valid motion to reconsider an appealable order under [subdivision (a) of section 1008] the time to appeal from that order is extended for all parties until the earliest of:
We conclude that appellants’ motion for reconsideration was not timely filed within 10 days after service of the notice of entry of the order of dismissal. That notice was served on March 26, 2009. Appellants did not file their motion for reconsideration until 15 days later, on April 10, 2009. Thus, because the motion was not timely filed, it was procedurally invalid and did not increase the time period within which they could file a notice of appeal. (See § 1008, subd. (a); see also, e.g., Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1047 [“a timely motion to reconsider... extends the time to appeal from an appealable order for which reconsideration was sought”], italics added.)
Appellants counter that, because the notice of entry of order was served by mail, they had an additional five days pursuant to section 1013 in which to file their motion to reconsider. Therefore, according to appellants, their motion-filed 15 days after service of the notice of entry of order-was timely.
Section 1013, subdivision (a), provides in relevant part: “In case of service by mail, .... [t]he service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California....”
The provisions of section 1013, however, are not applicable to jurisdictional time limits. (See Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 274 [“Consistent with the Legislature’s exemptions of notice of appeal, section 1013 has been held to be inapplicable to other statutes that set forth jurisdictional deadlines”].) The 10-day time limit set forth in section 1008 is expressly jurisdictional. Subdivision (e) of section 1008 provides: “This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
Thus, appellants’ failure to comply with the deadline set forth in section 1008 deprived the trial court of jurisdiction to entertain the motion and, accordingly, there was no extension of the time period within which appellants were required to file their notice of appeal. Consequently, appellants had 60 days from the March 26, 2009 service of the notice of entry of order of dismissal to file their notice of appeal. (See rule 8.104(a)(1).) Their July 8, 2009 notice of appeal, filed more than 100 days later, was untimely and their appeal must be dismissed.
In light of this conclusion, we need not address the other grounds offered by respondents for finding that the motion for reconsideration was invalid and/or did not extend the time within which to appeal. However, we do wish to mention the rule, raised in respondents’ reply to appellants’ opposition to the motion to dismiss, that a court loses jurisdiction to rule on a motion to reconsider after entry of judgment. (See APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181.) Since an order of dismissal is a judgment (§ 581d), the trial court may not rule on a motion to reconsider after an order of dismissal is filed. (Ibid.) “Moreover, if the trial court has no power to rule on a reconsideration motion after judgment, such a motion can have no effect on the period within which to file a notice of appeal.” (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1238, fn. omitted.)
DISPOSITION
The appeal is dismissed. Respondents are awarded their costs on appeal.
Respondents’ request for sanctions, first raised in their reply to appellants’ opposition to the motion to dismiss, which includes no argument or citation to authority, is denied. (See, e.g., Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.)
We concur: Lambden, J., Richman, J.
The action was filed on November 3, 2000. Ilena Rosenthal, a defendant not involved in this appeal, filed an anti-SLAPP motion on May 7, 2001, which was granted by the trial court, then was partially reversed by a panel of this court, and was ultimately affirmed by the California Supreme Court on November 20, 2006.
“(1) 60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was served;
“(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; or
“(3) 180 days after entry of judgment.”
“(1) The entry date of a judgment is the date the judgment is filed under [section 668.5], or the date it is entered in the judgment book.
“(2) The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes. But if the minute order directs that a written order be prepared, the entry date is the date the signed order is filed; a written order prepared under rule 3.1312 or similar local rule is not such an order prepared by direction of a minute order.
“(3) The entry date of an appealable order that is not entered in the minutes is the date the signed order is filed.”
“(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
“(2) 90 days after the first motion to reconsider is filed; or
“(3) 180 days after entry of the appealable order.” (Italics added.)
Following the filing of respondents’ reply, appellants filed a request that we disregard the reply. Appellants have provided no authority for the proposition that we do not have the discretion to consider respondents’ reply. Rather, they merely quote rule 8.54, which describes the general procedural requirements for filing a motion or opposition in a reviewing court. Moreover, even were we to ignore the reply, the result in this matter would not be different.
Appellants further assert that respondents’ motion to dismiss this appeal, filed eight months after the filing of the notice of appeal and two months after the filing of appellants’ opening brief, should be denied “on the grounds of the equitable doctrine of [Laches].” However, because the notice of appeal was not timely filed, we have no jurisdiction to entertain this appeal, regardless of the purported equities involved. (See rule8.104(b); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal”].)