Kartiganer v.
Filed 6/18/13 Kartiganer v. Community Pet Hospital CA2/4
NOT TO BE PUBLISHED IN THE
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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FOUR
>
ADAM KARTIGANER, Plaintiff and Appellant, v. COMMUNITY PET HOSPITAL, Defendant and Respondent. | B240887 (Los Angeles County Super. Ct. No. NC056420) |
APPEAL
from an order of the Superior
Court of
County, Patrick T. Madden, Judge. Dismissed.
Adam
Kartiganer, in pro. per., for Plaintiff and Appellant.
Lewis
Brisbois Bisgaard & Smith and Judith M. Tishkoff for Defendant and
Respondent.
Plaintiff
Adam Kartiganer appeals the dismissal without prejudice of his action for
failure to timely serve the summons and
complaint. Because plaintiff did not
timely file a notice of appeal, we dismiss the appeal.
Plaintiff
filed the present action on August 8,
2011, against Community Pet
Hospital (Pet
Hospital), Dempsey’s Sports Bar and
Grill (Dempsey’s), and Does 1-50. The
complaint alleges that employees of the Pet
Hospital assaulted plaintiff on a
public street on August 6, 2009,
and then fled into Dempsey’s, where they were allowed to wash blood off
themselves and hide from police.
On
the same day plaintiff filed his complaint, the superior court filed a notice
entitled “Order to Show Cause Hearing.â€
It advised plaintiff he was required to attend an Order to Show Cause
Hearing on October 24, 2011,
to show cause why sanctions should not be imposed for his failure to file proof
of service of the summons and complaint pursuant to California Rules of Court,
rule 3.110(b) and (c). The notice stated
that to avoid a mandatory appearance, all required documents must be filed at
least five court days prior to the date of the hearing.
Plaintiff
neither served the summons and complaint prior to October 24, 2011, nor appeared at the October 24, 2011 hearing. Accordingly, the court dismissed the action
without prejudice “pursuant to Section 583.410(a) CCP.†The same day, the court clerk served
plaintiff by mail with a file-stamped copy of the minute order dismissing the
action.
On
April 23, 2012, plaintiff
filed a notice of appeal of the
judgment of dismissal. Thereafter, this court
directed plaintiff to show cause why the appeal should not be dismissed as
untimely. Plaintiff filed a response,
and the court deferred ruling pending full briefing of the appellate issues.
DISCUSSION
The filing of a timely notice of
appeal is a jurisdictional prerequisite.
“‘Unless the notice is actually or constructively filed within the
appropriate filing period, an appellate court is without jurisdiction to
determine the merits of the appeal and must dismiss the appeal.’ [Citations.]
The purpose of this requirement is to promote the finality of judgments
by forcing the losing party to take an appeal expeditiously or not at all. (In re
Chavez (2003) 30 Cal.4th 643, 650 . . . .)†(Silverbrand
v. County
113.) We therefore begin by considering
whether plaintiff’s notice of appeal was timely filed.
California
Rules of Court, rule 8.104(a) provides that a notice of appeal must be filed
“on or before the earliest ofâ€:
“(1)(A) 60 days after the superior court clerk serves
on 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
served;
“(B) 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
“(C) 180 days after entry of judgment.â€
As
used in this section, “judgment†“includes an appealable order if the appeal is
from an appealable order.†(Cal.
Rules Court, rule
8.104(e).)
Pursuant
to Code of Civil Procedure, section 581d, a written dismissal of an action
“shall be entered in the clerk’s register and is effective for all purposes
when so entered.†All dismissals ordered
by the court “shall be in the form of a written order signed by the court and
filed in the action and those orders when
so filed shall constitute judgments and be effective for all purposes
. . . .†(Italics
added; see also Bernard v. City of
Oakland (2012) 202 Cal.App.4th 1553, 1558, fn. 3 [“a written, signed order
dismissing a complaint is treated as an appealable judgmentâ€].) Thus, so long as it is “in the form of a
written order signed by the court and filed in the action,†an order of
dismissal is appealable. (E.g.,
Inc. (2009) 172 Cal.App.4th 908, 913.)
In
the present case, the trial court’s minute order dismissing the case was both
“signed by the court†and “filed in the action.†It therefore constituted a judgment within
the meaning of Code of Civil Procedure, section 581d. For plaintiff’s appeal to be timely,
therefore, plaintiff had to file a notice of appeal within 60 days of the date
that the superior court clerk served on plaintiff “a document entitled ‘Notice
of Entry’ of [the order of dismissal] or a file-stamped copy of the [order of
dismissal],†or 180 days after entry
of dismissal, whichever came first.
(Cal. Rules Court, rule 8.104.)
The
superior court clerk served plaintiff with a file-stamped copy of the order of
dismissal on October 24, 2011. To be
timely, plaintiff’s notice of appeal therefore had to be filed within 60 days
of service, i.e., on or before December 23, 2011. Plaintiff did not file his notice of appeal
until April 23, 2012; it therefore was untimely.
The
appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
