Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M55031
RUSHING, P.J.
Appellant, Scott Beutel, appeals from an order after judgment awarding attorney fees to respondent Ruth E. Barker. While the appeal was pending, the respondent filed a motion in this court to dismiss the appeal as untimely. Finding that the appeal from this order was timely filed pursuant to rule 8.104 of the California Rules of Court, we deny the motion to dismiss the appeal.
All further rules references will be to the California Rules of Court unless otherwise specified.
Factual and Procedural Background
Appellant’s notice of appeal, filed on July 6, 2007, appeals from an order after judgment under Code of Civil Procedure section 904.1, subdivision (a)(2). The relevant sequence of events is as follows.
On May 1, 2007, the trial court entered an order after judgment awarding attorney fees against appellant in favor of respondent in the amount of $25,000, and the clerk of the trial court served a copy of the filed order on the same date.
On July 6, 2007, appellant’s notice of appeal was filed in the trial court. After the notice of appeal was filed, the respondent moved to dismiss the appeal in this court as not timely filed under rule 8.104, subdivision (b).
Discussion
In the motion, respondent contends that the notice of appeal, filed on July 6, 2007, was untimely because the order after judgment was served by the trial court clerk on May 1, 2007. Under rule 8.104, he asserts, appellant was required to file a notice of appeal no later than 60 days from the service of the order, or July 1, 2007. Appellant argues that the notice of appeal was timely delivered to the court, but that the court failed to timely file stamp the notice of appeal. The burden is on appellant to show timely filing. He has met this burden by his declaration as well as the support provided by the declaration of the trial court showing delivery on a date before it was file-stamped. Therefore, the motion is properly denied.
The Appeal was Timely Presented for Filing Under Rule 8.104
Pursuant to rule 8.104, an appellant has 60 days to file a notice of appeal from the date the trial clerk mails a file-stamped copy of the order appealed. (Rule 8.104.) The clerk of the trial court mailed a file-stamped copy of the order here on May 1, 2007. Sixty days from this date was July 1, 2007. The notice of appeal is file stamped July 6, 2007; five days after the deadline. On its face, the notice of appeal appears untimely.
In his opposition, appellant contends that he timely submitted the notice of appeal for filing on June 29, 2007, but that the trial court erred in failing to file the notice of appeal on the date it was presented for filing. Pursuant to rule 8.25(b)(1), “A document is deemed filed on the date the clerk receives it.” The alleged delay by the trial court between receipt and filing is not evident from the record on appeal. Therefore, in the interest of fairness, this court ordered the record augmented with additional evidence relating to the date the notice of appeal was presented to the trial court for filing.
This court requested that the trial court clerk submit a declaration regarding the purported discrepancy between the date the notice of appeal was received and the date it was filed. This declaration reasonably supports a conclusion that the notice of appeal was not filed the day it was presented to the court for filing. The clerk’s declaration states, in relevant part, that, “On July 6, 2007, I found Scott Beutel’s Notice of Appeal in my ‘In Basket’. I do not know when Scott Beutel brought his Notice of Appeal to the Monterey Superior Court as my ‘In Basket’ processing is on-going and never completely empty at the end of each court day. . . . [¶] I pulled case M55031, attached the Notice of Appeal to the front of the file and file tracked the case and document in our case management system to Elizabeth Chan, Appeals Clerk at 1:52 p.m. on July 6, 2007.” While it is reasonable to conclude from this declaration that the notice of appeal was not file-stamped the day it was received, the declaration sheds no light on when the notice was actually presented. The only evidence of when the notice was actually presented is appellant’s own statement that it was presented on the June 29, 2007. Since there is no evidence contradicting appellant’s contention that he presented the notice of appeal to the trial court on the 29th, we must accept that representation and conclude that appellant presented the notice of appeal before the time to appeal expired.
We hereby order the record on appeal augmented with the “Clerk’s Declaration” filed October 1, 2007.
Of course a notice of appeal, which is timely presented for filing, could still be refused under circumstances that warranted refusal such as failure to comply with the rules of court. However, the only basis to refuse to file a document which has a jurisdictional deadline is where the proposed document fails to comply with rule 2.100 et seq. (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777-778; Carlson v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1276, fn. 7; Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 1107.) There is no evidence here that the notice of appeal failed to comply with rule 2.100.
Having shown that he presented the notice of appeal to the trial court for filing on June 29, 2007, a time within the time prescribed by rule 8.104, and there being no lawful basis to refuse to file the notice, we shall deem the notice of appeal timely filed. (Rule 8.25(b)(1); Lezama-Carino v. Miller (2007) 149 Cal.App.4th 55, 59; Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167.)
Disposition
The motion to dismiss the appeal is denied.
WE CONCUR: PREMO, J. ELIA, J.