Opinion
A158403
03-21-2022
BERTHA DODSON, Plaintiff and Respondent, v. SECURITY OFFICERS & INVESTIGATIONS, LLC, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. MSC14-02068)
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
Jackson, P. J.
On July 8, 2019, the trial court issued an order granting plaintiff Bertha Dodson's motion for attorneys' fees and costs and denying defendant Security Officers & Investigations, LLC's (SOI) motion for attorneys' fees and costs (order). On July 11, 2019, plaintiff filed and served a notice of entry of the order. On September 3, 2019, SOI served Dodson with a notice of appeal from the order, but the notice of appeal was not filed in the superior court until September 13, 2019, 64 days after the notice of entry of the order was served. We lack jurisdiction over this appeal because the notice of appeal was not timely filed. Accordingly, we must dismiss the appeal.
The time limits for filing a notice of appeal are jurisdictional, and an untimely appeal must be dismissed. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.) California Rules of Court, rule 8.104(a)(1) provides that, subject to certain exceptions not applicable here, a notice of appeal must be filed "on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment . . .; [¶] (B) 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 . . .; [¶] (C) 180 days after entry of judgment." If the notice of appeal is filed late, the reviewing court must dismiss the appeal. (Cal. Rules of Court, rule 8.104(b).)
California Rules of Court, rule 8.104(e), states that" 'judgment' includes an appealable order if the appeal is from an appealable order."
The notice of entry of order was served on July 11, 2019. Sixty days from July 11, 2019, was September 9, 2019. The notice of appeal is dated September 3, 2019, and the proof of service states it was served on counsel for Dodson on September 3, 2019. However, the notice of appeal is stamped filed in the superior court on September 13, 2019. Dodson asserts in her respondent's brief that the appeal is untimely. SOI's reply brief does not address the issue.
Nothing in the record establishes that SOI timely filed its notice of appeal. The proof of service attached to SOI's notice of appeal states it was served only on Dodson's counsel on September 3, 2019. It does not establish that the notice of appeal was delivered to the superior court's clerk's office during business hours on that date. (Thompson, Curtis, Lawson & Parrish v. Thorne (1971) 21 Cal.App.3d 797, 801 [filing is complete when document is delivered to clerk, not when it is deposited in mail].)
The notice of appeal was stamped filed on September 13, 2019, and we presume this is the date it was received by the superior court clerk. (Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1125 [Evid. Code, § 664 presumption that" 'official duty has been regularly performed' . . . applies to the duties of clerks of court"; "we must presume, in the absence of affirmative evidence to the contrary, that the clerk performed his duty and endorsed the notice of appeal with the date it was in fact presented to him for filing"].) SOI offers no argument or evidence to overcome the presumption that its notice of appeal was filed on September 13, 2019. Accordingly, we dismiss the appeal as untimely.
DISPOSITION
The appeal is dismissed.
WE CONCUR: Needham, J., Burns, J.