Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 06 C 0358, Peter M. Schultz, Judge.
Mark Hungerford, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
Before Vartabedian, Acting P.J.; Wiseman, J.; and Levy, J.
Appellant, Mark Hungerford, an inmate at Avenal State Prison (Avenal), filed a petition for writ of mandate in the trial court under the California Public Records Act (Act). (Gov. Code, § 6250 et seq.) Appellant sought an order requiring Avenal Academic Vice-Principal R. Moser to provide him with copies of all records showing the dates and times that appellant had had access to the Avenal law library. Moser did not respond, apparently having never been served with the petition. The trial court nevertheless ruled and filed an order denying appellant’s petition on November 28, 2006.
All further statutory references are to the Government Code unless otherwise indicated.
Appellant mailed an objection to the trial court’s order on December 14, 2006, to which the court did not respond. Thereafter, appellant mailed a notice of appeal on January 8, 2007.
In his opening brief, appellant requests this court to issue a writ and reverse the trial court’s decision. According to appellant, the trial court abused its discretion in failing to liberally construe appellant’s petition, in not finding that the records of appellant’s access to the Avenal law library are “public records,” and in not ordering disclosure of the sought records.
As discussed below, appellant filed an appeal from a nonappealable order. In limited situations, an appellate court may treat the matter a writ proceeding. However, appellant did not file his notice of appeal within the statutory time for seeking writ review. Accordingly, the appeal will be dismissed.
DISCUSSION
The superior court order denying appellant access to the Avenal law library records “is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ.” (§ 6259, subd. (c).) However, in order to obtain review of the order, appellant was required to file a writ petition within 20 days after service upon him of a written notice of entry of the order. (Ibid.) This is the exclusive procedure for obtaining appellate review of trial court orders regarding a person’s right to obtain disclosure of public records under the Act. (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433.)
As noted above, appellant filed a notice of appeal from the court’s November 28, 2006, order denying his petition for writ of mandate. Nevertheless, in limited situations, an appellate court may determine the merits of an attempted appeal from a nonappealable judgment or order by treating the matter as a writ proceeding. (Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006.) This power is generally invoked where (1) the briefs and record contain in substance all the elements required by the California Rules of Court for an original mandate proceeding and (2) there are extraordinary circumstances justifying the exercise of that discretionary power. (Ibid.)
Here, however, even if we treat the appeal as a writ proceeding, the matter must be dismissed for lack of appellate jurisdiction because the appeal was not filed within the statutory time period for seeking writ review. Although the record does not contain a proof of service for the written order, appellant had actual notice of the order no later than December 14, 2006, when he mailed his objections to that order to the superior court. By the time appellant mailed his notice of appeal on January 8, 2007, another 25 days had elapsed. The notice of appeal was filed on January 10, 2007. Accordingly, under no circumstances did appellant file his notice of appeal within the 20-day time limit.
DISPOSITION
The appeal is dismissed.