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Martinez v. Konialian

California Court of Appeals, Second District, Third Division
Apr 16, 2009
No. B207875 (Cal. Ct. App. Apr. 16, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County No. PC038611, Holly E. Kendig, Judge.

Law Office of L. Rae Connet and L. Rae Connet for Plaintiffs and Appellants.

Cole Pedroza, Kenneth R. Pedroza and Ashfaq G. Chowdhury; Gonzalez & Hulbert, Michael D. Gonzalez and Neil G. MacMillan for Defendants and Respondents.


CROSKEY, J.

Plaintiffs and appellants Virginia Martinez, Jose Hurtado, Vanessa Hurtado, and Victor Hurtado brought this medical malpractice action against defendants and respondents Jirair Konialian, Northridge Center for Reproductive Medicine, the Women’s Health Institute, Inc., and Patti Picciano. Plaintiffs allege that defendants impregnated plaintiff Martinez with a donor egg fertilized with sperm from her husband Jose Hurtado, without screening either Hurtado or the egg donor for cystic fibrosis, resulting in Vanessa Hurtado being born with cystic fibrosis, and Victor Hurtado being born a carrier of the disease. Plaintiffs alleged causes of action for fraud, wrongful life, and lack of informed consent.

After defendants successfully demurred to the fraud causes of action, defendants moved for summary judgment on the remaining causes of action. The motion was granted on January 11, 2008. On January 23, 2008, judgment was entered in favor of the defendants. On January 25, 2008, plaintiffs moved for reconsideration of the order granting summary judgment. The trial court ultimately denied the motion on the basis that the court lacked jurisdiction to consider it after judgment had been entered.

On March 7, 2008, defendants served a “Notice of Entry of Order Granting Defendants’ Motion for Summary Judgment.” The document gave notice of entry of both the order granting summary judgment and the judgment itself. In addition, it attached, as Exhibit B, a file-stamped copy of the court’s judgment. On May 7, 2008, 61 days after service of the file-stamped copy of the judgment, plaintiffs filed their notice of appeal.

Plaintiffs’ counsel submitted a declaration to this court indicating that she “had not previously noticed that the Notice of Entry of Order Granting the Motion for Summary Judgment[] had also mentioned the judgment.” She therefore argued that she had believed the notice of appeal could be filed 180 days after entry of judgment. Counsel’s declaration on this point is contradicted by the fact that she had prepared and, according to her declaration, planned to file the notice of appeal on the 60th day after service of the file stamped copy of the judgment. Had she “not noticed” that the judgment was discussed in, and attached to, the “Notice of Entry of Order Granting Defendant’s Motion for Summary Judgment,” there would have been no reason for counsel to plan to file the notice of appeal within 60 days of service of that notice.

California Rules of Court, rule 8.104(a)(2) provides that a notice of appeal must be filed within “60 days after the party filing the notice of appeal... is served... with... a file-stamped copy of the judgment, accompanied by proof of service.” As plaintiffs filed their notice of appeal 61 days after service of the file-stamped copy of the judgment, the notice of appeal was untimely.

California Rules of Court, rule 8.108(e) provides that the filing of a “valid” motion to reconsider extends the time to file a notice of appeal. In this case, however, the motion to reconsider was filed after judgment had been entered. The trial court has no jurisdiction to rule on a motion for reconsideration filed after entry of judgment. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.) As such, the motion for reconsideration cannot extend the time within which to file a notice of appeal. (Ibid.)

As the notice of appeal was untimely filed, the appeal must be dismissed.

DISPOSITION

The appeal is dismissed. Defendants shall recover their costs on appeal.

We Concur, KLEIN, P. J., ALDRICH, J.


Summaries of

Martinez v. Konialian

California Court of Appeals, Second District, Third Division
Apr 16, 2009
No. B207875 (Cal. Ct. App. Apr. 16, 2009)
Case details for

Martinez v. Konialian

Case Details

Full title:VIRGINIA MARTINEZ et al., Plaintiffs and Appellants, v. JIRAIR KONIALIAN…

Court:California Court of Appeals, Second District, Third Division

Date published: Apr 16, 2009

Citations

No. B207875 (Cal. Ct. App. Apr. 16, 2009)