Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. S-1500-CV-255134. Sidney P. Chapin, Judge.
Harry M. Reynolds, in pro. per, and for Plaintiffs and Appellants.
Robie & Matthai, James R. Robie, Michael J. O’Neill, and Natalie A. Kouyoumdjian for Defendant and Respondent.
OPINION
Wiseman, J.
FACTUAL AND PROCEDURAL HISTORIES
This is an appeal from a grant of summary judgment in favor of State Farm General Insurance Company (State Farm) in a property damage action. The plaintiffs, the Reynolds, suffered water damage in their home in 1998 when dual-pane windows leaked. The windows were replaced in 1998, but continued to fog and leak. The Reynolds were not insured by State Farm until April 2001. The windows were again replaced in May 2001, but the leak continued. Mold was discovered in 2003. State Farm told the Reynolds the damage was not covered by their policy and formally declined coverage on July 11, 2003. The Reynolds sought reconsideration of their claim. The experts determined the damage was from defective construction and a lack of flashing, which are excluded from the policy, and not from high winds or other peril. State Farm stood by its position that the claim was not covered under the policy. Ultimately, the Reynolds sued the window company and State Farm on a number of theories. The action was filed on March 25, 2005.
State Farm moved for summary judgment on the grounds that there were no triable issues of fact concerning whether the damage was covered under their policy and that the Reynolds failed to sue within the one-year time frame under the policy (one year from date of claim denial). The trial court granted summary judgment in favor of State Farm, finding that the claim was made on May 21, 2003, that it was formally denied no later than November 19, 2003, and that the action was not filed until March 25, 2005, beyond the one-year contractual limitations period.
Although the issues on appeal challenge the propriety of granting summary judgment in favor of State Farm, the Reynolds face a more serious challenge. State Farm has moved to dismiss the appeal on the grounds that it was untimely filed and that this court lacks jurisdiction to consider the merits of the appeal. We agree and are compelled to dismiss the appeal.
Discussion
The order granting summary judgment was issued in February 2006. Judgment was entered formally on May 10, 2006. On May 30, State Farm served an endorsed copy of the judgment, along with a proof of service giving the date of service as May 30, 2006. Proof of service was filed with the trial court on August 24, 2006, attached to a document entitled “Proof of Service Re: Mailing of Endorsed Judgment by Court under CCP § 437c.” This document included as attachments the endorsed copy of the judgment entered on May 10 and a proof of service stating that an endorsed copy of the judgment was served on the Reynolds on May 30.
According to California Rules of Court, rule 8.104, the time for filing an appeal is 60 days from the date that the party appealing is served with a document entitled, “Notice of Entry of Judgment,” or a file-stamped copy of the judgment with proof of service setting the date of service. The May 30 document meets these requirements. The service of the file-stamped judgment bearing a facsimile signature of the law-and-motion judge started the running of the 60-day time period to file the notice of appeal. (Filipescu v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 740-741.) The rule requires only that the document give notice of when the judgment or order was filed and served. A file-stamped copy of the judgment is sufficient to do so. (Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1122-1123; Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 85 [appeal timely despite fact that notice of entry incorrectly identified date of entry of judgment].)
On August 18, State Farm subsequently served on the Reynolds a document entitled “Notice of Entry of Judgment,” which was received by Reynolds on August 20. This document does not refer to an earlier service. On August 22, State Farm, apparently recognizing its error in sending the August 18 document, wrote a letter to Reynolds asking them to disregard the August 18 document and noting that the August 18 document had not been filed with the court. Enclosed with the August 22 letter was a “Proof of Service Re: Mailing of Endorsed Judgment by Court under CCP § 437c.” This document had been sent to the court for filing and had attached to it the May 30 proof of service. The Reynolds claim they never received the earlier copy of the endorsed judgment and believed the August 18 document was the official notice of entry by which they calculated their time for filing appeal. Their notice of appeal was filed on October 6, 2006.
Mailing of the documents entitled “Notice of Entry” or “Proof of Service Re: Mailing of Endorsed Judgment by Court under [Code of Civil Procedure] § 437c” did not trigger a second time frame for filing the notice of appeal. The rule provides an either/or proposition and it is the earliest of the two dates that defines the start of the time in which to file an appeal. (Cal. Rules of Court, rule 8.104.) Once the time frame was triggered by service of the endorsed copy of the judgment, the clock started ticking. The second document had no effect and could not extend the time for filing the notice of appeal. (Filipescu v. California Housing Finance Agency, supra, 41 Cal.App.4th at p. 742 [court rejects argument that second 60-day time period triggered when defense counsel served document entitled “Notice of Entry of Judgment” after endorsed copy of judgment served on plaintiff].)
Mailed service is complete at the time of deposit in the mail and receipt is presumed. (Code Civ. Proc., § 1013, subd. (a); Evid. Code, § 641.) Whether the presumption of receipt has been rebutted is a question of fact to be resolved in the trial court. (See, e.g., Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1010-1011.) The sender does not have the burden of showing that the notice was actually received by the addressee, and a claim that the endorsed judgment was never received is insufficient to rebut the presumption on appeal. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 [this court rejects plaintiff’s contention that notice mailed by defendant was never received, finding service complete at time endorsed judgment deposited in mail, and dismissed untimely appeal].)
Further, the Reynolds admit receiving notice on August 24 that State Farm had filed a proof of service stating that an endorsed copy of the judgment had been served on May 30, 2006. They also acknowledge they knew that service of an endorsed copy of the judgment would start the time for appeal running and should have known that the 60-day appeal period had already expired. Yet, the Reynolds made no effort to challenge the proof of service in the trial court. Instead, they waited until October 6 to file the notice of appeal. If the Reynolds had doubted the veracity of the process server’s representations, they were obligated to raise their challenge in a timely manner before the trial court with appropriate extrinsic evidence. Having failed to challenge the presumption of service in the trial court, they are precluded from raising the issue here. (See, e.g., Glasser v. Glasser, supra, 64 Cal.App.4th at pp. 1010-1011; Sharp v. Union Pacific R.R. Co., supra, 8 Cal.App.4th at p. 360.)
The record establishes service of the endorsed judgment on May 30, 2006. The notice of appeal was filed more than 60 days later. “The requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period.” (Stuart Whitman, Inc. v. Cataldo (1986) 180 Cal.App.3d 1109, 1113.) We have no authority to extend or shorten the time for appeal, even to grant relief for mistake, inadvertence, accident, or misfortune. (Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 836.) For all these reasons, we lack the power to consider the issues on appeal and must dismiss the appeal as untimely filed.
DISPOSITION
State Farm’s motion to dismiss is granted. Costs are awarded to State Farm. (Cal. Rules of Court, rule 8.276(a)(2).)
WE CONCUR: Vartabedian, Acting P.J, Harris, J.