LBS Financial CU v. Gehron
Filed 11/5/13 LBS Financial CU v. Gehron CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
LBS FINANCIAL CU,
Plaintiff and Respondent,
v.
GEORGE J. GEHRON et al.,
Defendants and
Appellants.
G047837
(Super. Ct.
No. 30-2011-00519786)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, William M. Monroe, Judge. Appeal dismissed.
George J. Gehron, in
pro. per., and Cheryl L. Gehron, in pro. per.; Bret D. Lewis & Associates
and Bret D. Lewis, for Defendants and Appellants.
Prenovost, Normandin,
Bergh & Dawe, Karel Rocha and Kristin Godeke Baines, for Plaintiff and
Respondent.
This appeal is
untimely and must therefore be dismissed.
The court granted respondent’s summary judgment motion and entered
judgment in its favor on August 28,
2012. Respondent served a
notice of entry of judgment on September
10, 2012. Appellants did not
file their notice of appeal until December
21, 2012, more than 60 days after service of the
and we may not entertain an appeal when the notice is filed too late.
FACTS
facts of this case are simply stated.
Appellants George and Cheryl Gehron bought a boat on credit from Newport
Boats. When they failed to make required
payments, respondent LBS Financial CU, as Newport Boats’ assignee, sued to
collect the amounts owing under the contract and to repossess the boat. LBS moved for summary judgment on both
issues, the Gehrons having failed to comply with the court’s writ of
possession. Before the motion for
summary judgment could be heard, the Gehrons returned the boat, so the court
ruled only on LBS’s claim for contract damages.
The court awarded LBS its damages plus interest and ordered LBS to sell
the boat and to credit the Gehrons with the proceeds. This judgment was entered on August 28, 2012. LBS served a notice of entry on the Gehrons
on September 10.
LBS subsequently moved
to obtain attorney fees under the contract.
At the same time, it filed a memorandum of costs. The judgment was amended to add costs and
attorney fees on October 23, 2012. The judgment was amended yet again, on
October 29, to correct an error in wording.
LBS served the Gehrons with notices of entry for each of these amended
judgments. The amended judgments did not
change the original amount of damages and interest or make any other
substantive changes in the original award.
The Gehrons filed their
notice of appeal from the judgment after an order granting a summary judgment
motion on December 21, 2012.
A
notice of appeal must be filed no later than 60 days after the superior court
clerk serves on the appealing party a notice of entry of judgment or a
file-stamped copy of the judgment, 60 days after the appealing party serves or
is served with a notice of entry of judgment, or 180 days after entry of
judgment, whichever is earliest. (Cal.
Rules of Court, rule 8.104(a).) These
deadlines can be extended under certain circumstances not pertinent here. (See Cal. Rules of Court, rule 8.108.) The timely filing of a notice of appeal is
jurisdictional, and a Court of Appeal has no power to entertain an appeal once
the deadline has expired. (Van Beurden Ins. Services, Inc., v.
Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
In this case, the court
entered the judgment from which the Gehrons appeal – after an order granting
LBS’s summary judgment motion – on August
28, 2012. The appeal clock
started running on September 11, the day after LBS served the notice of entry
of judgment on the Gehrons. They did not
file their notice of appeal until December 21, over a month after the time to
appeal from the judgment had expired.
If an amended judgment
substantially alters an original judgment, the time for filing a notice of
appeal starts anew. (
Cal.App.4th 758, 764-765.) In this case,
however, the amended judgment filed in October merely added costs and attorney
fees after a postjudgment hearing on these issues. A modification to add costs and fees is not a
substantial alteration of the original judgment and does not restart the
appellate clock. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214,
222.) If the Gehrons were dissatisfied
with the outcome of the hearing on the fees and costs, they could have filed a
separate notice of an appeal from postjudgment orders, (ibid.) which, if it had been filed on December 21, would have been
timely. There was no appeal from these
orders, however. The only order
identified in the Gehrons’ notice was the one granting LBS’s motion for summary
judgment. An appellate court’s
jurisdiction is limited in scope to the notice of appeal and the judgment
appealed from. (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504.) The time to appeal that judgment expired 60
days after service of the notice of entry, well before December 21.
Appellants argued for
the first time on appeal that we must reverse because the trial court did not
have jurisdiction to hear the case. They
contend the case had to be brought in federal
court under the Ship Mortgage Act, 46 U.S.C. §§ 31301 et seq., as a
proceeding to foreclose on a preferred ship mortgage.
jurisdiction and appellate court jurisdiction.
It may be that the superior court did not have jurisdiction and that the
case should have been brought in federal court, under the Ship Mortgage
Act. And it is true that subject-matter
jurisdiction may be raised for the first time on appeal. (People
v. Lara (2010) 48 Cal.4th 216, 225.)
But “even a void judgment or order is appealable [only] if that judgment
or order is otherwise appealable.†(
(2005) 35 Cal.4th 180, 200.) Regardless
of the issues in an appeal, the appellate court cannot hear it unless the
appellant files a timely notice. (
Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th at p. 56.) As we have explained, that did not happen
here.
The appeal must be
dismissed because we, the Court of Appeal, lack jurisdiction over it. Whether the superior court had jurisdiction
is, at this point, moot because we cannot consider it.
The
appeal is dismissed. Respondent is to
recover its costs on appeal.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
name="_ftn1" title=""> [1] Assuming that
the Ship Mortgage Act applies, the obvious response for appellants when they
were sued in state court was to demur on grounds of lack of jurisdiction (Code
Civ. Proc., § 430.10, subd. (a)) or to petition to remove the case to the
district court. They did neither, and
they never raised the jurisdiction issue in the trial court when LBS moved for
summary judgment.
