Sanad v. Sharif
Filed 9/30/08 Sanad v. Sharif 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
JAMAL SANAD, Plaintiff and Respondent, v. MOHSIN SHARIF, Defendant and Appellant. | A121723 (Alameda County Super. Ct. No. RG05 222226) |
Respondent Jamal Sanad has filed a motion to dismiss appellant Mohsin Sharifs appeal on the ground that the appeal is untimely. Sharifs notice of appeal, filed May 22, 2008, purports to appeal from a default judgment entered on September 12, 2007, and from an order entered April 9, 2008, denying Sharifs motion to set aside the judgment under Code of Civil Procedure section 473. The appeal is untimely as to the default judgment, but timely as to the order denying the motion to set aside the judgment. Accordingly, Sanads motion is granted in part and denied in part.
Discussion
California Rules of Court,[1] rule 8.108(c) provides, If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to moveor a valid motionto vacate the judgment, the time to appeal from the judgment 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 notice of intention to moveor motionis filed; or [] (3) 180 days after entry of judgment. Sanad does not contest the applicability of rule 8.108, but argues that even with the extension granted by rule 8.108, the notice of appeal was untimely as to the entry of the default judgment. Since the judgment was entered on September 12, 2007, under rule 8.108(c) the notice of appeal was due by April 18, 2008. Thus, the notice of appeal, filed on May 22, 2008, was untimely insofar as it purports to appeal from the default judgment.
The order denying Sharifs motion to vacate, however, is separately appealable as a special order made after a final judgment (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394). Under rule 8.104(a), the notice of appeal, filed within 60 days of notice of the order, was timely as to this order
Disposition
The motion to dismiss the appeal from the default judgment is granted. The motion to dismiss the appeal from the order denying the motion to vacate the judgment is denied. Issues concerning costs will be resolved at the conclusion of the present appeal. Sanads request for sanctions is denied.
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Pollak, J.
We concur:
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McGuiness, P. J.
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Siggins, J.
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[1] All references to rules are to the California Rules of Court.
