Opinion
A166587
07-25-2024
ROSEMARIE GANOE, Plaintiff and Appellant, v. SIMONA FARRISE, Defendant and Respondent.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. RG19039475)
We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) We do not belabor "the facts of the case and its procedural history" because our opinion is unpublished, and the parties know or should know those facts. (People v. Garcia (2002) 97 Cal.App.4th 847, 851.)
DOUGLAS, J. [*]
Rosemarie Ganoe appeals from the dismissal of her legal malpractice suit against respondent Simona Farrise. For the reasons given below, we dismiss the appeal as untimely.
"Appellate jurisdiction depends upon a timely notice of appeal." (Adoption of Reed H. (2016) 3 Cal.App.5th 76, 82.) Unless certain exceptions apply, the deadline given by our Rules of Court for filing a notice of appeal from a judgment of dismissal is "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 or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (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 or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment." (Cal. Rules of Court, rule 8.104(a)(1).)
Further rule references are to the California Rules of Court.
Here, notice of entry of the August 2, 2022, judgment was served on August 9, so if no exceptions applied and extended the deadline, Ganoe's notice of appeal had to have been filed on or before October 10. (Rule 8.104(a)(1)(B).) However, Ganoe did not file her notice of appeal until November 10 - a full month later. Consequently, the appeal must be dismissed as untimely "[u]nless a statute or rules 8.108, 8.702, or 8.712 provides otherwise ...." (Rule 8.104(a).)
All subsequent references to dates are to the year 2022.
October 8 was 60 days after Ganoe received notice of entry of judgment, but because that sixtieth day fell on a Saturday, Ganoe's deadline for filing her notice of appeal was extended to the next weekday: Monday, October 10. (Civ. Proc. Code, § 12.)
Ganoe cites rule 8.108 as the operative exception. In relevant part, that rule extends the time for filing a notice of appeal upon the filing of "a valid notice of intention to move for a new trial," a "valid notice of intention to move - or a valid motion - to vacate the judgment," or "a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a) ...." (Rule 8.108(b), (c) &(e).) Here, where Ganoe filed under Code of Civil Procedure sections 663 and 1008 an August 8 motion to vacate the August 2 judgment and to reconsider an appealable order, as well as a September 16 "amended notice of motion to set aside the judgment and for new trial" (capitalization omitted) under Code of Civil Procedure section 657, the requisite inquiry concerns whether either or both of those filings were "valid" under rule 8.108, and thus served to extend the time for filing a notice of appeal.
We turn first to the question of whether Ganoe filed a valid motion to vacate the judgment. (Rule 8.108(c).) Code of Civil Procedure section 663 provides that upon a proper showing by the movant, a judgment may "be set aside and vacated by the same court, and another and different judgment entered ...." (Italics added.) But as Farrise correctly points out in her motion to dismiss, Ganoe's motion did not seek such relief; instead, Ganoe asked for "a new order setting this case for trial to proceed." As the court in Ramirez explained" 'the statute does not contemplate merely the setting aside of the judgment, as does a motion for new trial or a motion for relief from default under [Code of Civil Procedure section] 473. It expressly provides for vacating the judgment and entering of another judgement. Hence, an order of vacation, without directing entry of a new judgment, is void.'" (Ramirez v. Moran (1988) 201 Cal.App.3d 431, 435.) Because Ganoe's motion sought relief that is not contemplated by section 663 of the Code of Civil Procedure, it was not, strictly speaking, a motion to "set aside and vacate[]" the judgment under that statute. For that reason, it was not a "valid motion to vacate the judgment" as required by rule 8.108(c).
Next, we consider whether Ganoe filed a valid motion to reconsider under Code of Civil Procedure section 1008, subdivision (a). (Rule 8.108(e).) As Farrise observes in her motion to dismiss, "entry of judgment divests the trial court of authority to rule on a motion for reconsideration." (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237-1238.) Therefore, a postjudgment motion for reconsideration such as Ganoe's "can have no effect on the period within which to file a notice of appeal." (Id. at p. 1238.) Consequently, the period for Ganoe to file a notice of appeal was not extended by rule 8.108(e).
Finally, we address whether Ganoe filed a valid motion for a new trial under Code of Civil Procedure section 657. (Rule 8.108(b).) Because Ganoe was served with notice of entry of judgment on August 9, he was required to file any motion for a new trial by August 24. (Civ. Proc. Code, § 659.) But Ganoe did not invoke Code of Civil Procedure section 657 until September 16. Moreover, she failed to comply with Code of Civil Procedure section 659's requirement that a notice to move for a new trial "designate[] the grounds upon which the motion will be made." Because validity entails compliance with all procedural requirements, Ganoe failed to file a valid motion for a new trial. (Arega v. Bay Area Rapid Transit Dist. (2022) 83 Cal.App.5th 308, 315.)
In sum, Ganoe's notice of appeal was not filed within the normal time prescribed by rule 8.104, and there is no applicable exception to that rule. We must therefore dismiss the appeal as untimely. (Adoption of Reed H., supra, 3 Cal.App.5th at p. 82.) As a result, the parties' respective requests for judicial notice are moot. And because the right to oral argument exists only in cases considered on the merits, our dismissal of this appeal as untimely obviates the need for oral argument here. (Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871.)
DISPOSITION
The appeal is dismissed. The requests for judicial notice and the requests for oral argument are denied.
We concur: STREETER, Acting P. J., GOLDMAN, J.
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.