Geluz v. Richards

Filed 5/15/07 Geluz v. Richards 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

On November 30, 2006, following a bench trial, the trial court issued a tentative decision finding in favor of plaintiffs Eduardo and Dulce Geluz on a cause of action seeking specific performance of a contract. Pursuant to this decision, defendants Charles and Maria Richards were ordered to convey to plaintiffs their interest in certain real property upon plaintiffs payment of $51,121.10. The tentative decision directed plaintiffs to prepare a proposed statement of decision but noted that if plaintiffs failed to comply with the time limitations of California Rules of Court, rule 232 (now rule 3.1590),[1] the tentative decision would be deemed the courts statement of decision.

Rule 3.1590(e) provides that a party who has been designated to prepare a proposed statement of decision must submit such a statement within 15 days after the expiration of the time for filing proposals as to the content of the statement, or within 15 days after being designated by the court, whichever is later. If the proposed statement of decision and judgment are not served and submitted within that time, any other party who appeared at the trial may: (1) prepare, serve, and submit to the court a proposed statement of decision and judgment, or (2) serve on all other parties and file a notice of motion for an order that a statement of decision be deemed waived. (Ibid.)

There is no indication plaintiffs in this case prepared or filed a proposed statement of decision. Instead, on January 29, 2007, they filed and served a notice of entry of judgment referencing the courts November 30, 2006, tentative decision as the judgment in the action. Sixty-five days later, on April 4, 2007, defendants filed a notice of appeal. The notice stated that defendants appealed from the judgment entered in this case, filed and served on January 29, 2007. Plaintiffs now move to dismiss the appeal as untimely, and defendants have not opposed the motion.

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. (Rule 8.104(a), italics added.) These time limits are not extended when service is by mail. (Code Civ. Proc.,  1013, subd. (a).)

The sixtieth day after plaintiffs served their notice of entry of judgment fell on March 30, 2007, which was a court holiday; therefore, the last day for defendants to have timely filed their notice of appeal was Monday, April 2, 2007. Because the notice of appeal was filed more than 60 days after plaintiffs served defendants counsel with a notice of entry of judgment, this court is without jurisdiction to consider the appeal. (Rules 8.104(a)(2) & 8.104(b); Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.) We must therefore grant plaintiffs motion to dismiss the appeal.

DISPOSITION

The appeal is dismissed. Plaintiffs shall recover their costs on appeal as prevailing parties (rule 8.276(a)(2)); however, plaintiffs request for sanctions is denied.

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McGuiness, P.J.

We concur:

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Pollak, J.

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Siggins, J.

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[1] All references to rules are to the California Rules of Court.