Opinion
A115216
12-6-2006
MARIN COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Plaintiff and Respondent, v. SEAN H. KAO, Defendant and Appellant.
I.
INTRODUCTION
Appellant Sean H. Kao (Father) appeals from an order modifying his monthly child support obligation. Respondent Marin County Department of Child Support Services (DCSS) filed a motion to dismiss the appeal as untimely. We agree that the notice of appeal was untimely, and dismiss the appeal.
II.
BACKGROUND
The underlying action was initiated by DCSS in August 2005 to establish child support for Fathers minor child. In January 2006, Father filed a motion to modify child support. He sought to reduce his child support obligation in the amount of $683, on the basis that the minors mother was concealing her income, he was disabled and had terminated his employment. Following a hearing on May 11, the court denied his motion and entered an order that he pay $997 per month in child support effective May 1. A copy of the order, file-stamped May 31, was served by mail on Father on June 5.
Unless otherwise noted, all further dates indicated are in 2006.
On June 6, Father executed a substitution of attorney form, which was filed on June 12. On June 13, Father filed a motion for reconsideration of "an Order After Hearing made on May 31, 2006 and mailed on June 6, 2006." (Italics added.) The court denied the motion for reconsideration in an order filed July 21, which the clerk served on Fathers attorney on the same day. In the July 21 order, the court noted that Fathers motion for reconsideration was timely because "it does not appear that any . . . Notice [of Entry of Order] was ever filed."
Father filed a notice of appeal from the May 31 order on September 5, though he states in his opposition that it was filed on August 5.
III.
DISCUSSION
DCSS moves to dismiss this appeal on the basis that it is untimely under California Rules of Court, rules 2 and 3. Rule 2 provides in pertinent part "Unless a statute or rule 3 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 . . . .; [¶] (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." (Rule 2(a).) Rule 3 provides an exception when there has been a motion for reconsideration. "If any party serves and files a valid motion to reconsider an appealable order, . . . the time to appeal from that order is extended for all parties until the earliest of: [¶] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 90 days after the first motion to reconsider is filed; or [¶] (3) 180 days after entry of the appealable order." (Rule 3(d).) An extension under rule 3 "cannot operate to shorten the normal time for appeal; i.e., if a deadline prescribed by the extension rules precedes the applicable [rule] 2(a) deadline . . . , the longer . . . deadline governs. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) § 3:63, pp. 3-25-3-26, italics omitted.)
All further undesignated rule references are to the California Rules of Court.
Father claims that, because "[t]here never was mailed a Notice of Entry of the original [May 31] order," he had 180 days after the filing of the order to file his notice of appeal. Father is mistaken. Rule 2 provides that the notice of appeal is timely if filed by the earliest of the three options. Here, the earliest of those options was 60 days after Father was served by a party with either a "Notice of Entry" of judgment or a file-stamped copy of the judgment, accompanied by proof of service. (Rule 2(a)(2).) A file-stamped copy of the May 31 order was served by mail on Father on June 5 accompanied by a proof of service. Had Father not filed a motion for reconsideration, his notice of appeal would have been due within 60 days of June 5. This date is relevant here because rule 3 can only extend the time in which to file a notice of appeal. Had the file-stamped copy of the May 31 order not been served on Father, the 180-day period of rule 2 would have applied, and rule 3 would have been inapplicable because its application would have shortened the time in which to file the notice of appeal.
Once Father filed a motion for reconsideration, the time in which to file his notice of appeal was extended until "30 days after the superior court clerk mails . . . an order denying the motion . . . ." (Rule 3(d)(1).) The superior court clerk mailed the order denying his motion for reconsideration on July 21. Because Father was served with a file-stamped copy of the May 31 order, the 180-day period in which to file an appeal from that order did not apply. Accordingly, Fathers time in which to file the notice of appeal was extended by operation of rule 3 until August 21.
We take judicial notice of the fact that August 20, 2006, was a Sunday. (Evid. Code, § 451, subd. (f).)
IV.
DISPOSITION
The motion to dismiss the appeal is granted.
We concur:
Sepulveda, J.
Rivera, J.