Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC082619 Richard Adler, Judge.
Lozoya & Lozoya, Frank J. Lozoya IV for Defendants and Appellants.
Paul Kujawsky for Plaintiff and Respondent.
BOREN, P.J.
Dean K. Ladell and Global Manufacturing & Marketing LLC attempt to appeal from an order denying a motion to vacate default judgment. Because the appeal was untimely, we dismiss for lack of jurisdiction.
FACTS
On September 8, 2008, respondent Larry K. Egbert filed a complaint against appellants Ladell and Global for breach of contract and fraud. The summons and complaint were served on each defendant in October 2008. On November 24, 2008, Egbert filed a Request for Entry of Default. The trial court entered default against both defendants. After a failed attempt at submitting a default judgment package, Egbert eventually submitted conforming papers, and default judgment was entered on February 19, 2009.
Ladell and Global served a motion to vacate the default judgment (titled a Motion to Set Aside Default and Default Judgment) on July 14, 2009. Ladell contended that prior to the time the default judgment was entered, the parties had agreed to resolve the matter by engaging in business rather than litigating the case, and that the defaults and judgment were obtained by Egbert surreptitiously. Egbert disputed these contentions, claiming he never agreed to forego litigation, and that defendants were warned their defaults would be taken.
The trial court allowed certain limited depositions and additional briefing prior to submission of the motion to vacate. On October 22, 2009, the court heard the motion and, after taking the matter under submission, denied it, finding no basis to modify the default judgment.
Appellants’ notice of appeal was filed on December 18, 2009. Noting that the appeal appeared to be untimely pursuant to California Rules of Court, rule 8.108(c), on January 4, 2011, the clerk of this court requested letter briefs from the parties addressing the issue of timeliness. Appellants’ letter brief argues that the appeal was timely under Cope v. Cope (1964) 230 Cal.App.2d 218. Respondent counters that the appeal was untimely.
All further court rule references are to the California Rules of Court.
DISCUSSION
This court has no jurisdiction to consider a late-filed appeal, and, in the absence of statutory authorization, may not extend the time for filing a notice of appeal. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373.) An untimely appeal must be dismissed, either on a party’s motion or on the court’s own motion. (Rule 8.104(b); Estate of Hanley (1943) 23 Cal.2d 120, 123.)
Appellants’ appeal was untimely. A notice of appeal generally must be filed within the earliest of 60 days after service of notice of entry of judgment or a file stamped copy of the judgment, or 180 days after entry of judgment. (Rule 8.104(a).) Rule 8.108(c) provides that if a party files and serves a valid motion to vacate the judgment within the time prescribed by rule 8.104, the time to appeal from judgment is extended until the earliest of: (1) 30 days after service of an order denying the motion; (2) 90 days after the motion was filed; or (3) 180 days after entry of judgment.
Judgment was entered on February 19, 2009, and appellants filed their motion to vacate 145 days thereafter, on July 14, 2009. One hundred eighty days after entry of judgment- the earliest and thus effective deadline for appeal under rule 8.108(c)-was August 18, 2009. Appellants did not file their notice of appeal until December 18, 2009, well after the deadline. (See Rolen v. Rhine (1981) 117 Cal.App.3d 23, 26 [dismissing untimely appeal from withdrawn motion to vacate judgment].)
The record does not reflect service of notice of entry of judgment or service of a file stamped copy of the judgment. In their letter brief, appellants state that the trial court appears to have served notice of entry of judgment on February 19, 2009. However, the record citation relied on by appellants only refers to service of a minute order. Further, in the trial court proceedings, appellants claimed they never received the judgment.
Appellants’ citation to Cope v. Cope, supra, 230 Cal.App.2d 218, is unavailing. While Cope examined the issue of whether an order denying a motion to vacate a judgment is itself appealable, the case did not analyze the time requirements for such an appeal. (Id. at p. 228.) Appellants argue that respondent’s purported fraud in obtaining the default judgment was not at issue until the motion to vacate was brought (after judgment had already been entered), and an appeal would not have been appropriate prior to that time. One of the problems with this argument is that the motion to vacate was brought prior to the time the 180-day deadline expired, and appellants had notice of and presented to the trial court the purported fraud prior to expiration of the appellate deadline. Appellants could have sought to have their motion to vacate heard on an expedited basis or other appropriate relief, but did not do so.
Even if appellants could be excused from missing the rule 8.108(c)(3) 180-day after-judgment deadline, however, they had no excuse for failing to comply with rule 8.108(c)(1) and (2). Since the motion to vacate was filed on July 14, 2009, the rule 8.108(c)(2) 90-day deadline expired on October 13, 2009 (October 12, 2009, being a court holiday). Under rule 8.108(c)(1), since the order denying appellants’ motion to vacate was served on October 22, 2009, the last day to file a notice of appeal was November 23, 2009 (November 21, 2009, being a Saturday). Appellants’ December 18, 2009 notice of appeal was untimely under any measure, and we lack jurisdiction to hear the appeal.
DISPOSITION
The appeal is dismissed.
We concur: DOI TODD, J., ASHMANN-GERST, J.