Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. FDI07763509
Reardon, J.
The marriage of appellant Laurie Lambert-Connolly and respondent James Joseph Connolly was dissolved in January 2008. In October 2008, the trial court found no community property assets or debts to divide. A few days later, Connolly was ordered to make monthly payments of $350 in spousal support to Lambert-Connolly for two years. These property and spousal support orders were reflected in court minutes and orders, but were not reduced to judgment until January 11, 2010. Notice of entry of that judgment was given by mail on the same day.
On February 16, 2010, Lambert-Connolly filed a motion to set aside the judgment. When the trial court denied the motion on April 22, 2010, it cited lack of evidence of any changed circumstances. Lambert-Connolly filed a notice of appeal from the April 2010 order on May 3, 2010. For reasons that we shall explain, the purported appeal must be dismissed.
She also sought a writ of supersedeas, which was denied.
I. ORDER DENYING MOTION TO SET ASIDE
Lambert-Connolly expressly purports to appeal from the April 22, 2010 order denying her motion to vacate the earlier judgment. An order denying a motion to vacate is usually not an appealable order. However, an order denying a statutory motion to vacate may be appealable as an order after judgment. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394; see Code Civ. Proc., § 904.1, subd. (a)(2); see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 197, 200, pp. 273-274, 275-278.) The motion that Lambert-Connolly filed does not appear to be a statutory basis for a motion to set aside, as it does not cite any of the applicable statutes. (See Code Civ. Proc, . §§ 473, 597, 663, 663a.) Thus, this exception to the general rule does not appear to apply.
Even if we construe the motion to set aside to be a statutory motion, Lambert-Connolly can only challenge issues that could not have been raised on appeal from the underlying judgment. An order after judgment is not appealable unless the issues raised in the appeal from the order after judgment differ from those that could be raised in an appeal of the underlying judgment itself. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651; see 9 Witkin, Cal. Procedure, supra, Appeal, §§ 183, 197, pp. 260, 273-274.) In her appeal, Lambert-Connolly appears to challenge the trial court’s marital property and spousal support determinations—the same issues that could have been raised on appeal from the January 2010 judgment. She did not appeal this judgment. As the order denying the Lambert-Connolly’s motion to set aside the judgment is not an appealable order, we have no jurisdiction to consider an appeal from it, but must dismiss the purported appeal. (See Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369.)
II. JUDGMENT
Even if we construe Lambert-Connolly’s notice of appeal liberally as an attempt to appeal from the January 2010 judgment, the appeal must be dismissed. In these circumstances, the notice of appeal would be untimely. (Cal. Rules of Court, rule 8.100(a)(2).) Typically, a notice of appeal must be filed within 60 days of the notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1).) A valid motion to vacate a judgment can extend the normal time for filing a notice of appeal. (Cal. Rules of Court, rule 8.108(c).) However, Lambert-Connolly’s motion to set aside was not valid because it was not timely filed.
A party seeking to move to vacate a judgment must file a notice of intent to make a motion to set to aside within 15 days of the date of mailing of the notice of entry of judgment. (Code Civ. Proc., § 663a, subd. 2.) The time for filing this notice of intent is not extended when service of the judgment is made by mail. (See Code Civ. Proc., §§ 663a, 1013.) Thus, Lambert-Connolly was required to file a notice of intent to move to set aside the January 11, 2010 judgment by January 26, 2010. She did not file a notice of intent. The motion to set aside was not filed until February 16, so even if we construed it as a notice of intent to vacate the judgment, it was filed after the statutory time for filing had run. As the motion to set aside was untimely filed, the time for filing a valid notice of appeal from the January 2010 judgment cannot be extended beyond the normal 60 day period. (See Cox v. Certified Grocers of Cal. Ltd. (1964) 224 Cal.App.2d 26, 30 [untimely notice of motion for new trial]; Cal. Rules of Court, rule 8.108(c).) That period having run in March 2010, Lambert-Connolly’s May 2010 notice of appeal cannot be deemed to constitute an appeal from the judgment, either.
In September 2010, Lambert-Connolly filed a second notice of appeal in this matter, challenging a determination that she was in default in this appeal because of her failure to pay fees for a clerk’s transcript. As a clerk’s transcript was later provided, we deem this issue to be moot.
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 [timeliness]; see also 9 Witkin, Cal. Procedure, supra, Appeal, §§ 85-86, 614, pp. 145-147, 689-690.)
The purported appeal is dismissed.
We concur: Ruvolo, P. J.Sepulveda, J.