Gaoay v. Super. Ct.

Filed 6/26/08 Gaoay v. Super. Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE COURT*:

Petitioner Liza Jane Gaoay (Gaoay) contends that real party in interest Brent C. Maloys (Maloy) notice of appeal from a judgment rendered by the small claims court was untimely. Gaoay argues the superior court therefore lacked jurisdiction to consider the appeal and to reverse the judgment in her favor. We agree and reinstate Gaoays judgment.

On September 12, 2007, Gaoay sued Maloy in small claims court. Gaoays complaint was for $7,500. A trial on the suit was held on January 3, 2008.[1] The small claims court entered a judgment comprised of principal and interest in the total amount of $7,402.90 in Gaoays favor on January 14 and the clerk mailed a notice of entry of judgment the same day. Page two of the notice of entry of judgment states that you must begin your appeal by filing a form called a Notice of Appeal . . . and pay the required fees within 30 days after the date this Notice of Entry of Judgment was mailed or handed to you. (Original italics.) Thirty-one days later, on February 14a day past the statutory periodMaloy filed a notice of appeal. February 13, a Wednesday, was not a holiday.

Notwithstanding the fact the notice of appeal was filed one day late, and despite a request from Gaoay to strike the appeal from the calendar on that ground, the superior court heard the appeal on March 19, with Maloy present and Gaoay absent. A judgment issued March 19 in favor of Maloy and against Gaoay for $0, however, this judgment did not indicate how it impacted Gaoays judgment against Maloy. Presumably, the superior court intended to reverse Gaoays judgment against Maloy. On March 27, Gaoay moved for a rehearing or to vacate the judgment rendered on March 19. The motion was denied on April 14.

Gaoay filed her petition for writ of mandate in this court. We asked for opposition from Maloy, and notified the parties we were considering the issuance of a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) After considering the opposition, we conclude the issuance of a peremptory writ in the first instance is appropriate, as the petition may be decided under settled legal principles, and the issue to be resolved does not turn on disputed facts. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1259-1260.)

Discussion

Since Maloy filed his notice of appeal 31 days after the notice of entry of judgment, the superior court lacked jurisdiction to hear the appeal. (Code Civ. Proc.,  116.750, subd. (b).)

Lack of jurisdiction is a nonwaivable objection that may be raised at anytime. (2 Witkin, Cal. Procedure (4th ed. 1997) Jurisdiction,  12, p. 556.) Where the superior court has exceeded its jurisdiction, a writ is appropriate. (See ERA-Trotter Girouard Assoc. v. Superior Court (1996) 50 Cal.App.4th 1851, 1856-1858 [stating review is appropriate for  void acts in excess of jurisdiction ].) A writ is also appropriate  to secure . . . uniform interpretation of the statutes governing [the small claims courts] . . . . (Bricker v. Superior Court (2005) 133 Cal.App.4th 634, 637.)

Code of Civil Procedure section 116.750, subdivision (b), states that in an appeal from a judgment in a small claims action: A notice of appeal shall be filed not later than 30 days after the clerk has delivered or mailed notice of entry of the judgment to the parties. A notice of appeal filed after the 30-day period is ineffective for any purpose. (Italics added.) Moreover, even a failure of the clerk to give notice of the judgment . . . does not extend the time for filing the notice of appeal . . . . (Cal. Rules of Court, rule 8.904(b)(3).)

It is well settled that the timely filing of a notice of appeal is an essential jurisdictional requirement. (See, e.g., Nu-Way Associates, Inc. v. Keefe (1971) 15 Cal.App.3d 926, 927-928 [discovering notice of appeal was filed one day late and dismissing the appeal]; County of Los Angeles v. Jamison (1961) 189 Cal.App.2d 267 [notice of appeal filed one day late]; Taliaferro v. Davis (1963) 217 Cal.App.2d 215, 216 [noting time limit for filing notice of appeal is jurisdictional and dismissing appeal because notice of appeal was filed one day late].) [T]he 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. [Citations.] (Estate of Hanley (1943) 23 Cal.2d 120, 122, italics added.) By now, the well-established rule hardly needs restating that the time for filing a notice of appeal is absolutely jurisdictional, and cannot be extended by a trial or appellate court without statutory authorization . . . . (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 116, italics added; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007)  16:4, p. 16-5 (rev. #1, 2006) [The legal effect of the filing deadline . . . imposes a jurisdictional cut-off, beyond which an attempted appeal cannot be entertained.] (Original italics.).)

The outlier from this well-established rule is Mills v. Superior Court (1969) 2 Cal.App.3d 214 (Mills). Consistently with Estate of Hanley, supra, 23 Cal.2d 120, the Mills court held that the filing of a notice of appeal in small claims court is jurisdictional. (Mills, supra, at p. 217.) Next, the court asked whether the time to file a notice of appeal can be extended by a defendants reliance on the small claims clerks mistaken advice as to its duration? (Ibid.) The court answered that question in the affirmative. (Id. at pp. 217-220.) However, the continuing vitality of the Mills decision is doubtful in light the subsequent amendment of Code of Civil Procedure section 116.750, subdivision (b). That section states that a late filed appeal is ineffective for any purpose and lists no exceptions. (Code Civ. Proc.,  116.750, subd. (b), italics added.)

Even if the plain language of Code of Civil Procedure section 116.750, subdivision (b), did not call into question the holding in Mills, the facts are inapposite. In Mills, the court allowed the extension because a clerk twice misinformed the petitioner about the time requirement for filing a notice of appeal. (Mills, supra, 2 Cal.App.3d at p. 216.) There is simply nothing in the record to indicate that the clerk of the court misinformed Maloy. The record is to the contrary. Page two of the notice of entry of judgment expressly states that the notice of appeal must be filed within 30 days from the date the clerk mailed the notice of entry of judgment.

Since we find the superior court lacked jurisdiction to hear Maloys late filed appeal, we need not address Gaoays remaining arguments.

Let a peremptory writ of mandate issue directing the respondent court to vacate its March 19, 2008 judgment against Gaoay for $0 and to reinstate its January 14, 2008 judgment against Maloy for $7,317.90 and $85 in costs, for a total judgment of $7,402.90. Gaoay is entitled to recover her costs for this proceeding. (Cal. Rules of Court, rule 8.490(m)(1)(A).)

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* Ruvolo, P. J., Reardon, J. and Sepulveda, J.

[1] All subsequent undesignated date references are to the year 2008.