Opinion
A148629
11-22-2017
In re the Marriage of LUBOV SAULEVA and VICTOR ALEXEEV. LUBOV SAULEVA, Respondent, v. VICTOR ALEXEEV, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. AF13688626)
Victor Alexeev appeals from a default judgment of dissolution of marriage and a motion for reconsideration of the trial court's order denying his motion to set aside the default judgment. After requesting supplemental briefing from the parties, we conclude his notices of appeal are untimely under California Rules of Court, rule 8.104(a). Accordingly, we are without jurisdiction to entertain the appeal.
I. BACKGROUND
We recite only the facts necessary to resolve this appeal.
In July 2013, Lubov Sauleva petitioned to dissolve her marriage to Alexeev. Sauleva subsequently sought entry of default, and the clerk entered default against Alexeev on March 25, 2014. Over a year later, on July 10, 2015, the trial court entered a default judgment of dissolution. The same day, the court clerk served a notice of entry of judgment on Alexeev by mail.
Alexeev subsequently moved to set aside and vacate the default and default judgment. On December 1, 2015, the trial court denied the motion following a hearing at which Alexeev appeared by telephone. Sauleva's counsel served a copy of the trial court's findings and order after hearing the same day by mail.
In January 2016, Alexeev filed a motion for reconsideration of the December 1, 2015 order denying his motion to vacate the default judgment. The trial court denied the motion for reconsideration on March 16, 2016. Alexeev filed a notice of appeal on April 22, 2016 (first notice of appeal), stating only that he was appealing from "Default judgment." The superior court subsequently notified Alexeev his notice of appeal would not be processed because it was incomplete. On June 17, 2016, he filed a second notice of appeal, stating he was appealing from "Default judgment" and "An order after judgment under Code of Civil Procedure section 904.1(a)(2)." The second notice specifically identified the date of entry of the order appealed from as March 16, 2016, and attached a partial copy of the court's March 16, 2016 order.
In respondent's brief on appeal, Sauleva argues, among other things, Alexeev's motion for reconsideration is not separately appealable. She also contends even if Alexeev had appealed from the trial court's December 1, 2015 order denying the motion to set aside the judgment, his appeal would not be timely. After independently reviewing the record, we asked the parties to submit supplemental letter briefs addressing whether the entire appeal should be dismissed as untimely.
II. DISCUSSION
In his opening brief, Alexeev contends his appeal concerns "the trial court's entry of default, denial of motion to set aside default, judgment of dissolution, and motion to reconsider." As we will explain, his appeal must be dismissed because it is improper or untimely as to all four items.
Neither the clerk's entry of default on March 25, 2014, nor the denial of his motion for reconsideration on March 16, 2016, is separately appealable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [order denying motion to vacate entry of default is not independently appealable but may be reviewed on appeal from the judgment]; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960 ["No appeal lies from the court clerk's entry of default; that entry is simply a ministerial act preceding the actual default judgment."]; Code Civ. Proc., § 1008, subd. (g) [denial of motion for reconsideration not separately appealable].)
Though the denial of the motion for reconsideration would be appealable as part of an appeal from the underlying order denying his motion to set aside entry of default and vacate the default judgment (Code Civ. Proc., § 1008, subd. (g)), that rule is inapplicable here for two reasons. First, neither of Alexeev's notices of appeal identify the December 1, 2015 order denying the motion to set aside the judgment. (See Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal "is sufficient if it identifies the particular judgment or order being appealed"]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 3:119.1, p. 3-53 [where several judgments and/or orders are separately appealable, each must be expressly specified].) In his first notice of appeal, filed April 22, 2016, Alexeev stated he was appealing only from "Default judgment," and did not include the date of entry of judgment. In his second notice of appeal, filed June 17, 2016, Alexeev stated he was appealing from "Default judgment" and "An order after judgment under Code of Civil Procedure section 904.1(a)(2)." He identified the date of entry of order as March 16, 2016. Thus, even liberally construing the second notice, it specified only the default judgment entered July 10, 2015 and the denial of the motion for reconsideration entered March 16, 2016, not the December 1, 2015 order.
Second, there is no dispute Sauleva's counsel served the December 1, 2015 order by mail the same day it was entered, triggering the 60-day deadline to appeal. (Cal. Rules of Court, rule 8.104(a)(1)(B).) Alexeev's notices of appeal were not filed until April 22, 2016 and June 17, 2016, both well after the 60-day deadline.
Though Alexeev noted in his supplemental brief that he filed a notice of appeal on January 12, 2016, we take judicial notice that he later abandoned that appeal from the "Default judgment." (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) In addition, while neither party discussed this issue in their briefing, we note Alexeev was incarcerated at the time he filed his April 22 and June 17, 2016 notices of appeal, and thus, the prison delivery rule may apply in this case. (See Cal. Rules of Court, rule 8.25(b)(5).) It is unclear when the notices were delivered to custodial officials for mailing, but in any event, it appears Alexeev signed both notices of appeal on April 6, 2016, still well beyond the 60-day deadline. Finally, while the service of a valid motion for reconsideration extends the deadline to appeal an underlying appealable order (Cal. Rules of Court, rule 8.108(e)), Alexeev does not contend his appeal was timely under that rule, and the record does not reflect his motion for reconsideration was timely filed or procedurally valid. (See Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048-1049.) In any event, as discussed above, his notices of appeal do not indicate he is appealing from the December 1, 2015 order. --------
Finally, Alexeev's appeal from the default judgment of dissolution entered on July 10, 2015, is also untimely. It is undisputed notice of entry of judgment was served by the court clerk on July 10, 2015, again triggering the 60-day deadline to appeal. (Cal. Rules of Court, rule 8.104(a)(1)(A).) Alexeev's first notice of appeal was filed over nine months later, on April 22, 2016.
"The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Cal. Rules of Court, rule 8.104(b) ["If a notice of appeal is filed late, the reviewing court must dismiss the appeal."].) Because Alexeev's notices of appeal are untimely, we must dismiss the action.
III. DISPOSITION
The appeal is dismissed as untimely. Respondent Lubov Sauleva is entitled to costs on appeal.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.