Fullerton Medical Group v. Burton
Filed 3/19/07 Fullerton Medical Group v. Burton CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
FULLERTON MEDICAL GROUP, Plaintiff and Appellant, v. JOSEPH M. BURTON et al., Defendants and Respondents. | A116648 (San Francisco County Super. Ct. No. CGC-04-428693) |
Respondents Joseph M. Burton and Duane Morris LLP have filed an unopposed motion to dismiss this appeal as untimely.
Judgment was entered in favor of respondents on October 30, 2006, and, on the same day, the clerk of the superior court mailed counsel for all parties a file-stamped copy of the judgment. Respondents served a notice of entry of judgment on November 2, 2006. (Code Civ. Proc., 664.5, subd. (a).) Appellant Fullerton Medical Group filed a notice of appeal on January 2, 2007.
In general, a notice of appeal must be filed on or before the earliest of: [] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a), italics added.)
Considering the fact that January 1, 2007, was a court holiday, appellant filed its notice of appeal within 60 days after a notice of entry of judgment was served by respondents (Cal. Rules of Court, rule 8.104(a)(2).) However, the superior court clerk mailed appellant a file-stamped copy of the judgment, with a proof of service, on October 30, 2006, and California Rules of Court, rule 8.104(a) requires timeliness to be calculated based on the earliest notice provided to the appellant. Because the notice of appeal was filed more than 60 days after the superior court clerk mailed appellants counsel a file-stamped copy of the judgment, this court is without jurisdiction to consider the appeal. (Cal. Rules of Court, rule 8.104(a)(1) & (b); Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.) We must therefore grant respondents motion to dismiss the appeal.
Disposition
The appeal is dismissed.
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Siggins, J.
We concur:
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Parrilli, Acting P. J.
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Pollak, J.
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