Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCUKCVPO 01-86348
Kline, P.J.
Respondents Wayne Cottrell and Sharon Cottrell move this court for an order dismissing the appeal filed by appellant Skye Nickell, on the ground that the appeal is not timely pursuant to California Rules of Court, rule 8.104(a)(2). Because we conclude that the appeal is not timely, we shall exercise our inherent power to dismiss the appeal.
Respondents’ request for judicial notice of the relevant trial court documents filed in this matter is granted. (See Evid. Code, § 452.)
BACKGROUND
On April 18, 2008, the trial court filed an order dismissing appellant’s case for failure to bring the case to trial within the mandatory five-year period, pursuant to Code of Civil Procedure section 583.310 et seq. On April 21, 2008, respondents filed a notice of entry of order of dismissal in the trial court, showing proof of service of the notice on appellant’s counsel on April 18, 2008.
On September 10, 2008, appellant moved to set aside the order of dismissal and for reconsideration. (See Code Civ. Proc., ¶ 473, subd. (b).) On October 1, 2008, the trial court filed an order denying appellant’s motions. In its order, the court found that the order of dismissal was properly served on appellant’s counsel on April 18, 2008, that the 60-day time to appeal the order began to run on that date, and that the court was without jurisdiction over the matter. The court further found that appellant’s motion for reconsideration was untimely within the meaning of Code of Civil Procedure section 1008, given that appellant “and her counsel were personally present in open Court on March 26, 2008 when the Court announced its decision in open Court that the case was dismissed. Thereafter, [appellant’s] counsel was actually notified on at least 3 subsequent occasions in April of 2008 that [respondents] had submitted the formal Order of Dismissal to the Court. [Appellant’s] counsel waited approximately 5 months before bringing a motion for reconsideration.”
Section 1008, subdivision (a), of the Code of Civil Procedure provides in relevant part: “When an application for an order has been made to a judge, or to a court, and . . . granted . . ., any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Italics added.)
Also on October 1, 2008, appellant filed a notice of appeal.
DISCUSSION
Respondents contend that appellant’s appeal must be dismissed as untimely because her motion to set aside the order of dismissal and for reconsideration was untimely, which deprived the trial court of jurisdiction to entertain the motion, and her notice of appeal was filed some three months after the statutory deadline for appeal.
Appellant counters that her motion for reconsideration, which alleged that she had never been properly notified of the entry of an order of dismissal, changed the deadline for filing her notice of appeal to within 180 days of entry of the judgment and that she has filed her notice of appeal within that 180-day period. (Cal. Rules of Court, rule 8.104(a)(3).) In a declaration prepared by appellant’s counsel, he declares that he was never served with a copy of the notice of the order dismissing appellant’s case and that he diligently checked with the court clerk repeatedly to determine the status of the case.
However, in light of the trial court’s finding, supported by the trial court documents of which we have taken judicial notice, that the order of dismissal was properly served on appellant’s counsel on April 18, 2008 (see Code Civ. Proc., § 1013), appellant’s September 10, 2008 motion to set aside the dismissal/motion for reconsideration was untimely and the court was without jurisdiction to address the issues raised therein. (See Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 [under Code of Civil Procedure section 1013, subdivision (a), “service is complete at the time the document is deposited in the mail,” and “the sender does not have the burden of showing the notice was actually received by the addressee”]; accord, Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011.) Consequently, appellant had 60 days from the April 18, 2008 service of notice of entry of the order of dismissal to file her notice of appeal. (See Cal. Rules of Court, rule 8.104(a)(2).) Her October 1, 2008 notice of appeal, filed more than five months later, was untimely and her appeal must be dismissed.
DISPOSITION
The appeal is dismissed. Respondents are awarded their costs on appeal.
We concur: Haerle, J., Richman, J.