Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for Los Angeles County, Ct. No. LC076166, James A. Kaddo, Judge.
Law Offices of Shelley A. Weinstein, Shelley A. Weinstein and Anthony A. Roach for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
WILLHITE, J.
Plaintiff Lenore Weinstein appeals from the denial of her motion under Code of Civil Procedure section 473 to vacate the dismissal of her premises liability complaint. The trial court denied the motion because Weinstein’s motion, although accompanied by her attorney’s declaration of fault, addressed only one of the two grounds upon which the dismissal was based. We affirm the order denying the motion.
Further undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
Plaintiff Weinstein, represented by attorney Shelley A. Weinstein, filed her complaint on October 30, 2006. At the time the complaint was filed, the clerk of the court served on plaintiff’s designated representative or attorney service a “Notice of: Status Conference/OSC re Dismissal and Case Management Conference.” In addition to setting dates and times for an initial status conference and a case management conference, the notice included the following language: “Any party who has failed to comply with the time requirements of [California Rules of Court, rule] 201.7 and [Los Angeles Superior Court rule] 7.7 are [sic] ORDERED TO SHOW CAUSE at this initial status conference why sanctions should not be imposed pursuant to [California Rules of Court, rule] 201.7(f) and (g). . . . The court may impose sanctions, including dismissal, for failure to timely serve the summons and complaint and file proof thereof. [¶] . . . Failure to appear at the initial status conference without good cause will result in the imposition of appropriate sanctions, including monetary sanctions, dismissal or striking of the answer.”
The California Rules of Court were renumbered effective January 1, 2007, and rule 201.7 is now rule 3.110. The rule requires complaints to be served within 60 days of filing (Cal. Rules of Court, rule 3.110(b) [former rule 201.7(b)]), and allows the trial court to impose sanctions for failing to comply with this requirement (Cal. Rules of Court, rule 3.110(f) [former rule 201.7(f)]).
The initial status conference was scheduled for February 13, 2007, nearly four months after the complaint was filed. Neither plaintiff nor her attorney appeared at the conference, and no defendant had been served by that time. The minute order from the conference states: “Conference is not held since plaintiff fails to appear or contact the Court. [¶] The Court finds that no defendants have been served and dismisses this case in its entirety pursuant to [Code of Civil Procedure section] 581 et seq. and [Government Code section] 68608.” A copy of the minute order was mailed to attorney Weinstein by the clerk of the court on February 13, 2007.
Nearly six months later, on August 10, 2007, plaintiff filed a motion under section 473 to vacate the dismissal of the complaint. The motion was supported by the declaration of attorney Weinstein, who stated that the failure to appear at the status conference (which she referred to as “the OSC”) was the fault of attorney Weinstein and not the fault of plaintiff Weinstein. Neither the declaration nor the memorandum of points and authorities addressed plaintiff’s failure to serve the defendant.
At the hearing on the motion to vacate, on September 18, 2007, the trial court chastised attorney Weinstein for referring to the hearing in her moving papers as an “OSC” rather than an “ISC” (initial status conference), and for delaying so long before bringing the motion. But the court also stated that it dismissed the case on the ground that the complaint was not served, and explained that it was denying the motion to vacate the dismissal because the moving papers did not address that issue. When attorney Weinstein orally tried to address her failure to serve the complaint, the court cut her off, and directed her to file a declaration. The court noted that it was denying the motion without prejudice, so plaintiff “can have a second shot at it.”
Plaintiff’s reference to the hearing as an “OSC” was not entirely unwarranted. The notice setting the initial status conference stated that any party who failed to comply with the time requirements regarding service of the complaint was ordered to show cause at the initial status conference why sanctions should not be imposed. Hence, because plaintiff had not complied with the time requirements, the initial status conference was also a hearing on the order to show cause.
By the time of the hearing, however, more than six months had passed since the dismissal order was entered, and plaintiff no longer could bring a second motion to vacate the dismissal under section 473.
On November 7, 2007, plaintiff filed a notice of appeal from the September 18, 2007 denial of her motion to vacate the dismissal.
DISCUSSION
Plaintiff raises three issues on appeal: (1) the trial court erred by holding a status conference before any responsive pleading was filed; (2) the trial court erred by dismissing the case for failure to comply with “fast track” guidelines; and (3) the trial court erred by refusing to vacate the dismissal because attorney Weinstein submitted an affidavit of fault and there is no diligence requirement under the attorney fault provision of section 473.
Had plaintiff timely appealed from the order of dismissal, we could address plaintiff’s first two issues. But she did not. Her notice of appeal does not refer to the dismissal order; it states that plaintiff appeals from the September 18, 2007 order denying her motion to vacate the dismissal. But even if we had the power to consider her notice of appeal from that order as an appeal from the earlier dismissal order, we could not do so in this case because the time to file a notice of appeal from the dismissal order had passed well before she filed the notice of appeal in this case.
The dismissal order was entered on February 13, 2007. Although the clerk of the court mailed a copy of the minute order to attorney Weinstein, it was neither entitled “Notice of Entry” nor file-stamped. Therefore, plaintiff had 180 days from entry of the order to file a notice of appeal. (Cal. Rules of Court, rule 8.104.) Although the filing of a valid motion to vacate the dismissal can extend the time to file a notice of appeal from the dismissal order (Cal. Rules of Court, rule 8.108), it does not extend the time past 180 days from entry of the dismissal. (Cal. Rules of Court, rule 8.108(b)(1)(C) [former rule 8.108(b)(3)]; see also City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 818; In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 109 [“The outside time limit for filing a notice of appeal remains 180 days after entry of judgment in all cases; authorized extensions of the filing period will not stretch the appeal deadline beyond this limit”].) Plaintiff’s notice of appeal was filed on November 7, 2007, almost nine months after the dismissal order was entered.
A timely notice of appeal is jurisdictional; if the notice is not timely, we have no jurisdiction to consider the appeal. Since the time in which to challenge the order dismissing the case had passed before plaintiff filed her notice of appeal, we have no jurisdiction to consider plaintiff’s first two arguments on appeal because they are challenges to the dismissal order. Therefore, we confine our discussion to plaintiff’s final argument: whether the trial court erred by denying plaintiff’s motion to vacate the dismissal.
Plaintiff contends the trial court erred because it faulted plaintiff for her lack of diligence in bringing the motion to vacate and because attorney Weinstein submitted an affidavit of fault, which mandates relief from dismissal under section 473, subdivision (b). Plaintiff is correct that lack of diligence is not a valid ground for denying a motion for relief under the mandatory provisions of section 473. (See, e.g., Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481, 1487.) But her contention that the submission of her attorney’s affidavit of fault required the court to grant her motion misses the mark.
It is true that the court must vacate a dismissal entered against a plaintiff if the plaintiff’s attorney submits an affidavit within six months of the dismissal that attests to the attorney’s mistake, inadvertence, surprise, or neglect that caused the dismissal. (§ 473, subd. (b).) Attorney Weinstein’s affidavit in this case, however, did not address the mistake, inadvertence, surprise, or neglect that caused the dismissal in this case. Although the minute order notes that no one appeared on behalf of plaintiff at the initial status conference, the primary ground for dismissal was plaintiff’s failure to serve the defendant. Attorney Weinstein’s affidavit attested to her mistake, inadvertence, surprise, or neglect that caused her failure to appear at the initial status conference, but it did not address her failure to serve the complaint. Therefore, the trial court properly found that the dismissal was not caused by the mistake, inadvertence, surprise, or neglect attorney Weinstein described in her affidavit, and denied plaintiff’s motion to vacate the dismissal.
Subdivision (b) of section 473 provides in relevant part: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.