Vande Vusse v. Bates

Filed 6/27/06 Vande Vusse v. Bates CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and an order of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Appeal of judgment dismissed; appeal of order affirmed.

Suzanne Bates, representing herself in pro per, appeals a jury verdict against her in a personal injury lawsuit filed by James Vande Vusse. She also appeals the trial court's dismissal of her cross-complaint against Vande Vusse and the trial court's denial of her subsequent motion to vacate that dismissal. Vande Vusse moves to dismiss the appeal as untimely.

As we explain, we conclude that the appeal from the judgments on the complaint and the cross-complaint must be dismissed as untimely. Although Bates's appeal of the trial court's order denying her motion to vacate the dismissal of the cross-complaint is timely, we conclude that there is no merit to Bates's appeal of that order, and we therefore affirm it.

I

FACTUAL AND PROCEDURAL BACKGROUND

Vande Vusse was a tenant in a rental property owned and managed by Bates and her mother.^[1] Vande Vusse filed a lawsuit against Bates, her mother and an entity that held some of their assets, alleging he was permanently blinded in one eye when he tripped on the uneven brick patio at the rental property, impaling his eye on piece of metal protruding from the ground.

Bates and the other defendants filed a cross-complaint against Van Vusse, alleging that he had failed to pay rent or properly maintain the rental property, and that he had converted personal property belonging to Bates.

Vande Vusse's complaint was tried to a jury, which found in favor of Vande Vusse in a special verdict. On June 20, 2003, the trial court entered judgment on the complaint jointly and severally against all defendants^[2] in the amount of $609,381.87 plus costs. An amended judgment was entered on October 22, 2003.

Bates filed a notice of appeal on August 29, 2003. She subsequently voluntarily dismissed the appeal on the ground that judgment was not yet final because the cross-complaint had not been resolved.

After dismissing the appeal, Bates requested that the trial court adjudicate the cross-complaint.^[3] Trial of the cross-complaint was scheduled for December 21, 2004, but Bates did not appear for trial. The trial court set a December 29, 2004 hearing on an order to show cause why the cross-complaint should not be dismissed and ordered Bates to submit a declaration from a physician explaining why she did not appear for trial and when she would be available for trial in the future.

Bates did not appear at the December 29, 2004 hearing on the order to show cause. Instead, she submitted a partially illegible handwritten note on a doctor's prescription pad with an unreadable signature stating that " '. . . Ms. Bates is being followed in clinic for venous statis, ulcers, and cellulitis to the lower extremities inhibiting her mobility,' " and stating, " 'please afford any reasonable accommodation.' " Reviewing the note, the trial court observed that it was not a declaration under penalty of perjury as required, did not indicate that Bates was unable to attend trial and did not state when Bates would be available. The trial court stated, ". . . I don't know what else to do but to dismiss this action because [Bates] has not complied with the court's orders. And I don't have any anticipation that she will comply or that she would come to court." The trial court accordingly dismissed the cross-complaint without prejudice in an order dated December 29, 2004.

The next day, Bates filed a motion to set aside the dismissal of the cross-complaint.^[4] The text of the motion explained that Bates did not submit a declaration from her doctor by December 29 explaining her inability to attend trial because (1) she was hospitalized; (2) she did not know the court needed a sworn statement (as opposed to an unsworn note); and (3) her regular doctor was unavailable because of the holidays. The only evidence supporting the motion was a declaration from Bates's doctor, stating that Bates was an inpatient at a skilled medical facility suffering from problems with her legs, as well as severe obesity, diabetes mellitus and hypothyroidism. The declaration stated that Bates was unable to sit up in a chair for more than two hours, and that although the doctor could not gauge when Bates's condition would improve, he estimated she should be able to sit up for longer periods of time in approximately one month.

On March 4, 2005, the trial court denied Bates's motion without prejudice, construing it as a motion for relief from judgment pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)). The trial court ruled that Bates's unsworn statements in her moving papers did not constitute evidence, and Bates thus had "not met her evidentiary burden of showing, with competent evidence, why she is entitled to relief."

Bates filed a renewed motion to set aside the dismissal of the cross-complaint on April 18, 2005. The renewed motion reattached the doctor's declaration but again failed to provide a declaration signed by Bates explaining why she should be afforded relief. The trial court denied the renewed motion in an order dated May 6, 2005. The trial court explained that "missing from [Bates's] motion was any evidence showing that the failure to timely present [the doctor's] declaration was excusable" under section 473(b). The trial court explained that the doctor's declaration was already before it during its consideration of Bates's original motion. Thus, "it was not a lack of [the doctor's] declaration on which the prior ruling was based." Instead, the ruling "was based on lack of evidence justifying relief under [section] 473(b)," which Bates had again failed to provide.

On July 5, 2005 (189 days after the trial court dismissed the cross-complaint), Bates filed a notice of appeal, which stated, "Ms. Bates appeals all rulings in [the superior court case] including those on the trial on Plaintiff's complaint as well as all rulings with regards to Ms. Bates' cross-complaint."

II

DISCUSSION

A

Vande Vusse's Motion to Dismiss the Appeal

We first address Vande Vusse's motion to dismiss Bates's appeal as untimely. As we explain, we conclude that Bates's notice of appeal was untimely except for that portion of the appeal challenging the trial court's denial of Bates's motion to set aside the dismissal of the cross-complaint.

1. Bates's Appeal from the Judgment on the Complaint and Cross-complaint

Was Untimely

We first examine the timeliness of Bates's appeal of the judgments on the complaint and the cross-complaint.^[5] Where, as here, judgment is entered separately as to a complaint and a cross-complaint, "there is no final, appealable judgment until both have been resolved." (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1002; see also Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698 ["when a judgment resolves a complaint, but does not dispose of a cross-complaint pending between the same parties, the judgment is not final and thus not appealable"].) In that situation, the timeliness of the appeal is determined by reference to the date that judgment is entered finally resolving the controversy between the parties. (See ECC Construction, at pp. 1002-1003) [notice of appeal that was timely as to separately entered judgment on the complaint was also timely as to the judgment on the cross-complaint]; American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 557 [appeal of order dismissing a complaint was timely when filed within 60 days of the judgment dismissing the cross-complaint]; Knodel v. Knodel (1975) 14 Cal.3d 752, 762 [judgment entered on cross-complaint was the final dispositive order made by the trial court, with the timeliness of the appeal regarding previous interlocutory orders and judgments in the case measured by reference to the date of entry of the judgment on the cross-complaint].)

Here, the judgment on the complaint and the judgment on the cross-complaint both became final appealable judgments when the trial court dismissed the cross-complaint on December 29, 2004. Accordingly, December 29, 2004, is the date of final judgment by which to measure the timeliness of Bates's appeal of the judgments on the complaint and the cross-complaint. For the following reason we conclude that the appeal of the final judgment was not timely.

Bates filed her notice of appeal on July 5, 2005, which was 189 days after final judgment was entered on December 29, 2004. ^[6] The general rule is that a notice of appeal must be filed within the earliest of (1) 60 days after the superior court's mailing of notice of the judgment, (2) 60 days after service of the judgment by a party, or (3) 180 days after entry of the judgment. (Cal. Rules of Court, rule 2(a).)^[7] Here, if this general rule applied, because the clerk of the court mailed the dismissal order to Bates on December 29, 2004, Bates's notice of appeal would be timely if filed 60 days later (i.e., February 28, 2005, taking into account that February 27, 2005, fell on Sunday).

However, when, as here, a party files a statutory motion for relief from judgment under section 473(b) during the time prescribed to appeal from the judgment, the filing of the motion extends the time to appeal from the judgment. Specifically, rule 3(b) provides: "If, within the time prescribed by rule 2 to appeal from the judgment, any party serves and files a valid notice of intention to move -- or a valid motion -- to 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 move -- or motion -- is filed; or (3) 180 days after entry of judgment." (Italics added.)

Bates timely filed a motion to vacate the judgment of dismissal. The filing of that motion served to except her from the deadlines set forth in rule 2(a), and instead imposed the filing deadlines set forth in rule 3(b). However, even under the extended deadlines provided by rule 3(b) Bates's appeal is untimely. The notice of appeal was filed more than 180 days after entry of the December 29, 2004 final judgment, making it untimely under rule 3(b)(3), which states that the appeal must be filed "180 days after entry of judgment" if that date is the first occurring of the applicable deadlines.

"The failure to file a notice of appeal within the applicable time period deprives the appellate court of jurisdiction." (Maides v. Ralphs Grocery Co. (2000) 77 Cal.App.4th 1363, 1366; see also Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) Because Bates did not file her notice of appeal from the final judgment within the applicable time period, we lack jurisdiction over that appeal and, accordingly, dismiss it.

2. Bates's Appeal of the Trial Court's Order Denying Her Motion for

Relief from Dismissal of the Cross-complaint Was Timely Filed

Bates's notice of appeal can be fairly construed to indicate that, in addition to appealing the final judgment, she also appeals the trial court's denial of her motion for relief from dismissal of the cross-complaint. We separately analyze whether that appeal is timely.^[8]

Rule 2(a) governs the deadline for appealing from a postjudgment order, such as a motion to vacate a judgment. (See rule 40(c) [the term "judgment" as used in rule 2(a), which governs the time to file an appeal from a judgment, "includes any judgment or order that may be appealed"]; Socol v. King (1949) 34 Cal.2d 292, 297 [the time period to appeal from an order denying a motion to vacate a judgment should be calculated separately from the time to appeal from the judgment, and was timely when filed 60 days after the order].) As we have discussed, under rule 2(a) a notice of appeal must be filed within the earliest of (1) 60 days after the superior court's mailing of notice of the judgment or appealable order; (2) 60 days after service of the appealable judgment or order by a party; or (3) 180 days after entry of the appealable judgment or order. The record does not indicate when the dismissal order was served on Bates. However, under any set of facts, the notice of appeal is timely because it was filed within 60 days of the May 6, 2005 order denying the motion.

Because the appeal is timely as to the trial court's denial of the motion for relief from dismissal of the cross-complaint, we deny Vande Vusse's motion to dismiss the appeal insofar as it relates to that ruling.

B

The Trial Court Did Not Abuse Its Discretion in Denying the

Motion for Relief from the Dismissal of the Cross-complaint

We review the trial court's ruling denying a motion to vacate a judgment pursuant to section 473(b) for abuse of discretion. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) The trial court abuses its discretion in denying relief under section 473(b) when it "exceed[s] the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.)

On appeal, although Bates does not directly address whether the trial court abused its discretion in denying her motion for relief under section 473(b), she argues that "the court dismissed her cross-complaint improperly as physical inability is good cause for nonattendance of two (2) court dates." She also challenges the order denying relief under section 473(b) as "difficult to follow." We liberally construe these arguments as raising a challenge to the trial court's ruling denying Bates's motion for relief from the dismissal of the cross-complaint. However, as we explain, we conclude that the trial court did not abuse its discretion in denying the motion.

The trial court dismissed the cross-complaint because Bates had failed to submit a declaration from her doctor before the December 29, 2004 order to show cause hearing that explained why Bates failed to show up for trial and when Bates would be available. Section 473(b) gives a trial court the discretion to vacate a dismissal upon a showing of "mistake, inadvertence, surprise, or excusable neglect." Thus, the issue before the trial court in Bates's motion for relief from dismissal under section 473(b) was whether Bates established that mistake, inadvertence, surprise, or excusable neglect caused her failure to timely submit the doctor's declaration.

As the trial court pointed out, a motion for relief under section 473(b) requires evidence demonstrating the moving party is entitled to the relief being sought. "While section 473 authorizes a court to relieve a party from default suffered through inadvertence, surprise, excusable neglect or mistake, 'these words are not meaningless, and the party requesting such relief must affirmatively show that the situation is one which clearly falls within such category.' [Citation.] '[A] party who seeks relief under [section 473] must make a showing that due to some mistake, either of fact or of law, of [her]self or of [her] counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which [s]he seeks relief should be reversed. In other words, a burden is imposed upon the party seeking relief to show why [s]he is entitled to it, and the assumption of this burden necessarily requires the production of evidence. [Citations.]' " (Kendall v. Barker (1988) 197 Cal.App.3d 619, 623-624, italics added.)

Here, Bates did not provide evidence explaining why she failed to comply with the court's order that she submit a declaration from her doctor in response to the trial court's order to show cause. Instead, she merely discussed her situation in unsworn motion papers. Even when given a chance to correct that error by bringing a renewed motion supported by evidence, she failed to submit a declaration explaining why on December 29, 2004, she had failed to comply with the order to show cause to submit a doctor's declaration explaining why she did not show up for trial. Under these circumstances, the trial court was well within its discretion to deny Bates's motion for relief pursuant to section 473(b).

Accordingly, we affirm the trial court's order denying relief from dismissal of the cross-complaint.

DISPOSITION

We dismiss Suzanne Bates's appeal of the judgment on the complaint and cross-complaint. We affirm the trial court's order denying relief from dismissal of the cross-complaint under Code of Civil Procedure section 473, subdivision (b).

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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^[1] The record is not clear as to what kind of an ownership interest Bates had in the property. During a portion of the trial court proceedings, Vande Vusse disputed whether Bates had any ownership interest.

^[2] Bates's mother died shortly before the trial on Vande Vusse's complaint, and her mother's estate was substituted as a defendant.

^[3] Of the three parties that filed the cross-complaint, Bates alone requested that the cross-complaint be adjudicated. Thus, the trial court clarified that the trial on the cross-complaint would be limited to the claims asserted by Bates.

^[4] Bates represented herself in pro per in the filing of the motion to set aside the dismissal. However, she was represented by counsel throughout the adjudication of Vande Vusse's complaint.

^[5] The written order of dismissal of the cross-complaint constitutes a judgment under Code of Civil Procedure section 581d, which provides that written orders of dismissal "shall constitute judgments and be effective for all purposes."

^[6] Bates argues that in determining whether her appeal of the judgment on the complaint is timely, we should start from the premise that she filed her notice of appeal as to that judgment on August 29, 2003, not July 5, 2005. However, as we have discussed, the appeal filed on August 29, 2003, was premature and was voluntarily dismissed on that ground. Because the appeal was dismissed and is not before us, we do not consider its filing date in determining the timeliness of the present appeal.

^[7] All rule references are to the California Rules of Court.

^[8] An order denying a motion to vacate a judgment under section 473 is an appealable order. (See Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1469.)