Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. P186803, William H. Kronberger, Jr., Judge. Appeal dismissed.
McDONALD, Acting P. J.
Jeffry Bryan (Jeffry) appeals a judgment granting the Probate Code section 850 petition to recover property filed against him by, and awarding damages to, Patricia Bryan (Patricia), as the administrator of the estate of Connie Bryan (Connie). On appeal, Jeffry apparently contends the trial court erred by: (1) proceeding with the trial on the petition without accommodating his disability; and (2) finding his trial testimony was not credible. Patricia filed a motion to dismiss Jeffry's appeal, asserting his notice of appeal was untimely filed. Because we conclude his notice of appeal was untimely filed, we grant that motion and dismiss the appeal.
All statutory references are to the Probate Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Because we dismiss the appeal as untimely filed, we present only a brief description of the factual and procedural background, which is based, in large part, on the parties' representations because of an incomplete record on appeal.
On June 30, 2003, Connie died. The probate court appointed Patricia as the administrator of Connie's estate. Patricia, as administrator, filed a petition to recover estate property from Jeffry (§ 850), for an accounting (§ 10950), and for double damages (§ 859). On June 28, 2007, following a trial, the probate court issued a seven-page statement of decision, stating in part:
"In summary, the Court enters Judgment for [Patricia] for the BMW in the amount of $6,125; for the jewelry listed in trial exhibits 16 through 22 in the amount of $10,050; and for the Decedent's personal effects listed in trial exhibit 23 in the amount of $22,420. Therefore, the total amount of General Damages awarded to [Patricia] is $38,570. The Court also awards Special Damages per Section 859 of the Probate Code for Bad Faith in the amount of $38,570. The Court also awards [Patricia] her extraordinary Attorney's fees on the Section 850 petition and her costs as the prevailing party. The total damages awarded are $77,140, plus allocation of the extraordinary attorneys fees and costs. Said damages and fees are to be first surcharged against [Jeffry's] share of the estate . . . by [Patricia]."
On September 17, Jeffry filed a notice of appeal challenging the probate court's June 28 judgment.
DISCUSSION
I
Motion to Dismiss
In her motion to dismiss, Patricia contends Jeffry's appeal should be dismissed because his notice of appeal was untimely filed.
A
On October 11, Patricia filed a motion to dismiss Jeffry's appeal, arguing his notice of appeal was untimely filed. She attached to her motion file-stamped copies of: (1) the probate court's June 28 statement of decision; and (2) the probate court clerk's certificate of service by mail showing a copy of that statement of decision was mailed on June 28 by the clerk (Jeri Booker, a San Diego County Superior Court Deputy Clerk) to Jeffry at his Lemon Grove address and to Patricia's counsel at his San Diego address. Patricia argued that Jeffry's September 17 notice of appeal was untimely because it was not filed within the 60-day period after the court clerk served him with a copy of the court's judgment pursuant to California Rules of Court, rule 8.104(a)(1).
All rule references are to the California Rules of Court.
On October 26, Jeffry filed his response to Patricia's motion to dismiss, arguing that he was confused by the copy of the Statement of Decision served on him. He argued he was confused by: (1) the "lined out" word "[PROPOSED]" before the title "STATEMENT OF DECISION;" and (2) the existence of two file-stamps on the first page, one of which was dated June 4 and its "lined-out" word "FILED" was corrected with the handwritten letters "Recd" (presumably an abbreviation of the word "Received"), which line-out and correction were initialed (apparently with the initials "JB" of the court clerk).
On October 30, we issued an order stating that we would consider Patricia's motion to dismiss with the appeal.
B
Rule 8.104(a) provides:
"Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
"(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." (Italics added.)
Jeffry does not argue, and the record does not show, that any of the exceptions to rule 8.104(a) apply in the circumstances of this case.
Statement of Decision as Judgment.
A statement of decision generally is not appealable as a final judgment. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901; MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1392.) That general rule's "practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments." (Alan, at p. 901.) Nevertheless, "[r]eviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits. [Citations.]" (Ibid.) "[I]t is well settled that the substance or effect of the judgment and not its designation is determinative of finality. A memorandum [or statement] of decision may be treated as an appealable order or judgment when it is signed and filed, and when it constitutes the trial judge's determination on the merits. [Citations.]" (Estate of Lock (1981) 122 Cal.App.3d 892, 896.) Because in the circumstances of this case, the probate court's June 28 statement of decision was signed by the probate judge and filed by the court and its substance reflects the court's final decision on the merits of Patricia's petition, it is an appealable final judgment for purposes of rule 8.104(a).
The record on appeal does not contain any subsequently filed order or judgment that would show the June 28 statement of decision was not the probate court's final determination on the merits of the petition.
Application of Rule 8.104(a)(1) .
Patricia asserts that rule 8.104(a)(1) applies to bar Jeffry's appeal because his notice of appeal was not filed within the 60-day period after the probate clerk served him by mail with a file-stamped copy of the June 28 statement of decision. As quoted above, rule 8.104(a)(1) requires that a notice of appeal be filed no later than "60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed." The California Supreme Court recently construed rule 8.104(a)(1)'s requirements, stating:
"[W]e conclude that rule 8.104(a)(1) does indeed require a single document--either a 'Notice of Entry' so entitled or a file-stamped copy of the judgment or appealable order--that is sufficient in itself to satisfy all of the rule's conditions, including the requirement that the document itself show the date on which it was mailed. That having been said, we see no reason why the clerk could not satisfy the single-document requirement by attaching a certificate of mailing to the file-stamped judgment or appealable order, or to a document entitled 'Notice of Entry.' " (Alan v. American Honda Motor Co., Inc., supra, 40 Cal.4th at p. 905, italics added.)
In the circumstances of this case, the probate court clerk attached a certificate of mailing to the copy of the file-stamped statement of decision served by mail on Jeffry. That certificate of mailing showed the copy of the file-stamped statement of decision (with its attached certificate of mailing) was mailed to Jeffry on June 28. Accordingly, the 60-day period for filing a notice of appeal began on June 28 and ended on August 27. (Rule 8.104(a)(1).) Because Jeffry's notice of appeal was not filed until September 17, it was untimely under rule 8.104(a)(1).
Although Jeffry argues he was confused by the "lined out" word "[PROPOSED]" before the judgment's title "STATEMENT OF DECISION," no reasonable person could infer from deletion of that word that the Statement of Decision was not a final decision and was instead, as Jeffry argues, merely a draft document. Furthermore, no ambiguity was created by the absence of initials of the probate judge or court clerk adjacent to that deletion of the word "[PROPOSED]." Objectively reviewing the file-stamped copy of the statement of decision served on Jeffry, we conclude it could only be reasonably construed as a final decision of the court and not as merely a draft subject to further revision.
Jeffry also argues he was confused by the existence of two file-stamps on the first page of the statement of decision. One file-stamp was dated June 4 and its "lined-out" word "FILED" was corrected with the handwritten letters "Recd" (presumably an abbreviation of the word "Received"), which line-out and correction were initialed (apparently with the initials "JB" of the court clerk). The second file-stamp remained unaltered, bearing the word "FILED" and the date "JUN 28 2007." Again, no reasonable person could be confused by the two file stamps. The June 4 stamp was corrected and initialed to show it was "received" by the court (presumably in draft form from Patricia's counsel) and was not "filed" by the court on that date. The June 28 stamp shows the statement of decision was "filed" by the court on that date. Objectively reviewing the file-stamped copy of the statement of decision served on Jeffry, we conclude the existence of the two file-stamps on the statement of decision (one showing its receipt by the court and the other showing its filing by the court) was not confusing and could not have misled a reasonable person regarding when the 60-day period for filing a notice of appeal began to run under rule 8.104(a)(1).
In any event, the later of the two dates (i.e., June 28) was the date on which the 60-day period actually began to run under rule 8.104(a)(1). Therefore, Jeffry could not have been prejudiced by any confusion regarding which of the two dates (June 4 or June 28) applied for purposes of the rule 8.104(a)(1) appeal period.
Finally, although Patricia's counsel subsequently mailed a notice of entry of judgment to Jeffry on July 20 pursuant to rule 8.104(a)(2), that did not delay the running of, or otherwise extend, the 60-day period under rule 8.104(a)(1) for purposes of filing his notice of appeal. Rule 8.104(a) provides that a notice of appeal must be filed on or before the earliest of the three appeal periods set forth in rule 8.104(a)(1), (2), and (3). If the court clerk has served the appealing party with a certificate of mailing attached to a copy of a file-stamped judgment, the other party's later-served notice of entry of judgment does not act to extend the time in which to file a notice of appeal. Therefore, the 60-day period for filing a notice of appeal in this case began on June 28 and not July 20. (Rule 8.104(a).) Accordingly, Jeffry's notice of appeal was untimely filed on September 17. Because Jeffry's notice of appeal was filed late, we do not have jurisdiction to consider this appeal and must dismiss it. (Rule 8.104(b); Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 828-829.)
II
Contentions on Appeal
Because we dismiss Jeffry's appeal as untimely, we do not address the merits of his contentions on appeal.
DISPOSITION
The motion to dismiss the appeal is granted. The appeal is hereby dismissed as untimely. Patricia is entitled to costs on appeal.
WE CONCUR: O'ROURKE, J., IRION, J.