Rong C. v. Lloyd B.
Filed 9/12/07 Rong C. v. Lloyd B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
RONG C., Plaintiff and Respondent, v. LLOYD B., Defendant and Appellant. | B191444 (Los Angeles County Super. Ct. No. KF 006089) |
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Richard D. Hughes, Commissioner (pursuant to Cal. Const. art. VI, 21). Appeal dismissed.
Davert & Loe, Richard K. Faulkner for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant Lloyd B. (Lloyd) appeals from an order after judgment denying his motion to set aside the default and default judgment (motion to set aside) entered against him and in favor of respondent Rong C. (Rong). Because Lloyd filed his notice of appeal more than 90 days after the filing of his motion for reconsideration, his appeal is untimely and therefore dismissed.
PROCEDURAL BACKGROUND
A. Default Judgment
On July 13, 2004, Rong filed a verified Petition to Establish Parental Relationship naming Lloyd as the respondent and alleging that Lloyd was not the father [of her recently born child], but his name [was] on the birth certificate. On August 24, 2004, Rong filed a request to enter default stating that a copy of the request had been provided to the clerk addressed to Lloyd at an address that he later admitted was his address. The request advised that a default had been entered by the clerk on August 24, 2004, and that the clerk mailed a copy to Lloyd on August 25, 2004.
On September 13, 2004, the trial court entered a judgment that identified Rong as the mother of the child, but did not identify anyone as the father. The judgment stated that the childs last name was changed from B. to C., and that the birth certificate must be amended to conform to the judgment by changing the childs last name. The judgment also provided that the trial court retained jurisdiction over child support because [Lloyd] is not the father of the minor child. The voluntary declaration of paternity has been rescinded. The minute order entered September 13, 2004, stated that the trial court had granted a Judgment of Non-[Paternity]. Rong also filed on September 13, 2004, a notice of entry of judgment. The clerks certificate of mailing reflects that on September 13, 2004, the clerk mailed a true and correct copy of the notice of entry of judgment to Lloyd at the same address shown on the request for entry of default.
B. Motion to Set Asideand Order for Genetic Testing
On May 6, 2005, Lloyd filed his motion to set aside. On June 3, 2005, Lloyd appeared in propria persona at the hearing on his motion to set aside. The trial court ordered genetic testing to establish paternity[1]and, in response, Rongs attorney informed the court that Rong and the child were living in China. The trial court indicated that if Rong did not cooperate in the court-ordered genetic testing, the court would rule against her. The trial court continued the matter to August 3, 2005.
On August 3, 2005, Lloyd appeared, represented by counsel, making a special appearance. Rongs attorney represented to the trial court that Rong was in China because her visa expired June 19, 2005, and that she would not be allowed back into the United States for two years. In response, the trial court stated: I think Ill set aside the [j]udgment and let [Lloyd] take whatever action. I think he has the right to set aside the judgment under the circumstances. After further argument, the trial court indicated that its tentative ruling was to grant the motion to set aside, but reserved making a final ruling pending the outcome of the genetic tests. The trial court continued the matter to October 5, 2005.
On October 5, 2005, Lloyd appeared in propria persona at the continued hearing on the motion to set aside. Rongs attorney informed the trial court that Rong could not locate any laboratories near her residence in China that would send the letter of verification required by Long Beach Genetics, the laboratory in the United States that had been selected to perform the genetic tests. The trial court stated that it would set this for a hearing for the reasons that I stated before. If theres no cooperation on the part of [Rong], I think I have no choice except to set aside [the default and default judgment]. The trial court set an order to show cause[2]hearing for October 28, 2005.
C. October 28, 2005, Order Denying the Motion to Set Aside
On October 28, 2005, the trial court held a hearing on Lloyds motion to set aside and on an Order to Show Cause―Child Custody―Visitation―Injunctive Order―The Minor Child Be Returned to the United States. Lloyd appeared in propria persona. After hearing oral argument, the trial court denied Lloyds motion to set aside and took the order to show cause off calendar.
D. Motion for Reconsideration and the Reinstatement of the
Order for Genetic Testing
On November 4, 2005, Lloyd filed a motion for rehearing and reconsideration (motion for reconsideration). On December 9, 2005, Lloyd appeared in the trial court represented by counsel. His attorney informed the trial court that he had just substituted into the case and had filed a supplemental declaration and memorandum of points and authorities. The trial court continued the matter to January 6, 2006, to review Lloyds supplemental paperwork.
At the January 6, 2006, continued hearing on Lloyds motion for reconsideration, Lloyd appeared represented by counsel. After hearing extensive oral argument from both parties, the trial court reinstated its genetic testing order and reserved ruling on the motion pending the results of the tests.
E. March 24, 2006, Order Denying the Motion for Reconsideration
On March 24, 2006, Lloyd appeared represented by counsel at the continued hearing on his motion for reconsideration. After hearing argument from Lloyds attorney, the trial court[3]denied the motion for reconsideration, and indicated that even if it reconsidered the October 28, 2005, order denying the motion to set aside, it would nevertheless deny that motion as untimely under Code of Civil Procedure section 473.5.
F. Notice of Appeal
On May 23, 2006, Lloyd filed his notice of appeal. The notice provided that Lloyd was appealing from the Order denying the Motion to Set Aside Default made on October 28, 2005. . . . The notice does not identify or reference the March 24, 2006, ruling denying Lloyds motion to reconsider.
DISCUSSION
At oral argument, we granted Lloyd leave to file a supplemental letter brief on the issue of whether his notice of appeal was untimely. On August 21, 2007, Lloyd filed a letter brief contending, inter alia, that the trial courts January 6, 2006, orderreinstating the June 3, 2005, genetic testing ordereffectively granted Lloyds motion for reconsideration, and operated to set aside the default and default judgment. Therefore, according to Lloyd, the March 24, 2006, ruling (which was not formally entered as an order until July 11, 2006) purporting to deny Lloyds motion for reconsideration was, in effect, an order vacating the January 6, 2006, order setting aside the default and default judgment. Consequently, under Lloyds characterization of the trial courts various orders, the time within which to file his notice of appeal did not begin to run until the entry of the July 11, 2006, order denying the motion for reconsideration. We disagree.
The trial court denied Lloyds motion to set aside on October 28, 2005. That was an appealable order after judgment. (See Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660. 663 [motion to vacate under Code Civ. Proc., 663]; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394 [motion to vacate under Code Civ. Proc., 473].) Lloyd filed his motion for reconsideration on November 4, 2005. The trial court denied the motion for reconsideration on March 24, 2006 (but did not enter the formal written order until July 11, 2006), and Lloyd did not file his notice of appeal until May 23, 2006. The notice of appeal unequivocally states that Lloyd is appealing from the Order denying the Motion to Set Aside Default made on October 28, 2005 . . . .
The May 23, 2006, notice of appeal was filed more than 180 days after entry of the order denying the motion to set aside. Hence, unless the time to file the notice of appeal is extended, the notice is untimely pursuant to California Rules of Court, rule 8.104(a)(3): Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of: [] . . . (3) 180 days after entry of judgment. (Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1456.)
Because Lloyd filed a motion for reconsideration, the time for filing the notice of appeal can be extended pursuant to California Rules of Court, rule 8.108(d) which states: If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of: [] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [] (2) 90 days after the first motion to reconsider is filed; or [] (3) 180 days after entry of the appealable order. (Italics added.)
Under rule 8.108(d), the earliest of the three possible time periods within which to file the notice of appeal expired February 2, 200690 days after Lloyd filed his motion for reconsideration. The time frames for filing a notice of appeal are read literally, insofar as possible. (Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 260 [Within reason, [former] rule 2 is read literally]; 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672 [[former] rule 2 must stand by [itself] without embroidery]; Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1123 [change in [former] rule 2 read literally].) Thus, although the trial court had not yet ruled on the motion for reconsideration when the ninetieth day passed, the time to file the notice of appeal expired on February 2, 2006. (Cal. Rules of Court, rule 8.108(d)(2).)
Moreover, even assuming, arguendo, the February 2, 2006, date is not controlling, Lloyd would nevertheless have had to file the notice of appeal within 180 days of the entry of the order denying the motion to set aside. (Cal. Rules of Court, rule 8.108(d)(3).) The trial court entered that order on October 28, 2005, meaning that the 180 day time period expired on April 26, 2006. But Lloyd did not file his notice of appeal until almost a month later on May 23, 2006. Thus, even under the later 180 day time frame, the notice of appeal was untimely.
Finally, the 30 day time frame under California Rules of Court, rule 8.108(d)(1) is inapplicable under these facts. There is no evidence of service of an order denying the motion for reconsideration or a notice of ruling. Absent evidence of service of the order or a notice of ruling, we cannot determine when, if ever, the 30 day period began to run and, in any event, it is inapplicable because rule 8.108(d) provides that the time to appeal is extended to the earliest of the three possible dates, which, as noted, was February 2, 2006.
We have a duty to raise issues concerning appellate jurisdiction on our own motion. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Olson v. Cory (1983) 35 Cal.3d 390, 398.) Having raised the issue and afforded Lloyd the opportunity to submit a letter brief addressing it, we conclude that the notice of appeal is untimely and that the appeal must be dismissed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
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[1] The trial court initially concluded that Lloyds motion to set aside was timely because the two-year period in Family Code section 7646 for bringing a motion to set aside a judgment establishing paternity applied to Lloyds motion, as opposed to the 180 day period in Code of Civil Procedure sections 473 and 473.5. Family Code section 7646 applies to judgments establishing paternity, and does not specifically mention judgments establishing nonpaternity, as the one at issue in this case. Because Lloyds notice of appeal is untimely, however, we do not have to deal with Lloyds contention that Family Code section 7646 applies here.
[2] Although the record is unclear, it appears that the order to show cause was the result of an ex parte filing by Lloyd, and that the order was directed at Rong requiring her to appear and show cause why the motion to set aside should not be granted due to her failure to comply with the order requiring genetic testing.
[3] Prior to the March 24, 2006, hearing, Commissioner Richard D. Hughes presided over all the hearings in this matter, but Commissioner Rocky L. Crabb presided over the March 24 hearing.
