Yazmajian v. Dokuzyan

Filed 4/27/07 Yazmajian v. Dokuzyan CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. James C. Chalfant, Judge. Dismissed.

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Richard Yazmajian, in pro. per., for Plaintiff, Cross-Defendant and Appellant.

Escandari & Michon and Alexander H. Escandari for Defendants, Cross-Complainants and Respondents Grigor Dokuzyan and Deborah E. Yazmajian.

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Plaintiff Richard Yazmajian appeals from the judgment entered against him on his complaint and on the cross-complaint of defendants Grigor Dokuzyan and Deborah E. Yazmajian. Because we conclude that the notice of appeal was not timely filed, we dismiss the appeal.

Plaintiffs complaint alleged claims for breach of contract and foreclosure of a mechanics lien. Defendants cross-complaint asserted contract and tort claims. At the close of trial, the parties and the court agreed that the court would decide the mechanics lien claim after the jury returned its verdict, and that the courts decision would be controlled by the jurys resolution of the contract claims.

On May 24, 2005, the jury returned its verdict, in which it resolved all of the contract claims against plaintiff. The trial court entered judgment in conformance with the jurys verdict on June 16, 2005, and defendants served notice of entry of judgment on the same day. The judgment provided that plaintiff takes nothing from defendants on his complaint, but it did not explicitly refer to the mechanics lien.

Plaintiff filed a notice of intention to move for new trial on July 6, 2005. Because it was filed more than 15 days after notice of entry of judgment, the notice of intention to move for new trial was untimely. (Code Civ, Proc.,  659.) It therefore did not extend the time to appeal from the judgment. (Cal. Rules of Court, rule 8.108(a) [appeal deadline is extended only by valid notice of intention to move for new trial].)

Pursuant to a stipulation by the parties, on August 10, 2005, the trial court entered an amended judgment making explicit the fact that plaintiff did not prevail on his mechanics lien claim. By minute order, the court stated that the original judgment was ordered vacated and set aside[,] because [i]t appears the or[i]ginal judg[]ment omitted the disposition of the Mechanics Lien. The Amended Judgment is signed and filed this date and is the final judgment in this case.

The amended judgment did nothing more than correct a clerical error in the original judgment by making explicit the disposition of the mechanics lien claim. The amendment consequently did not extend the time to appeal from the judgment.^[1] (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743-744.)

Plaintiffs deadline for filing his notice of appeal was therefore August 15, 2005, 60 days after notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a)(2).) Subject to one exception not applicable here, we have no power to extend the deadline. (Cal. Rules of Court, rules 8.66, 8.104(b).) Plaintiff filed his notice of appeal on August 26, 2005. Because the notice of appeal was filed late, we must dismiss the appeal. (Cal. Rules of Court, rule 8.104(b).)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. JACKSON, J.^*

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^[1] The minute orders language purporting to vacate[] and set aside the original judgment is of no consequence to our determination that the time to appeal was not extended. After the trial court entered judgment, it could correct clerical errors either sua sponte or on motion of a party, but the court was otherwise without jurisdiction to withdraw or alter the judgment except in accordance with statutory procedures. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182.) The court denied plaintiffs (untimely) motion for new trial, and there was no other procedural vehicle before the court that would have permitted it to vacate or set aside the judgment. Insofar as the court was merely correcting a clerical error, the amended judgment was valid but did not affect the appeal deadline. Insofar as the court purported to do more than correct a clerical error, its action was void and had no effect on the appeal deadline. (See Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236-1238.)

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)