Filed 5/29/18 Zochlinski v. City of Davis CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----




HOWARD ZOCHLINSKI,

Plaintiff and Respondent,

v.

CITY OF DAVIS et al.,

Defendants and Appellants.
C078190

(Super. Ct. No. CVPT090002287)




Plaintiff Howard Zochlinski appeals the trial court’s dismissal of his petition for writ of mandate against the City of Davis. He was served with notice of entry of judgment of dismissal on November 4, 2014, and then filed a motion for a new trial, a motion for reconsideration, and a motion to vacate the judgment with the trial court on December 2, 2014. He did not file a notice of appeal from the judgment of dismissal until January 7, 2015 -- 64 days after he was served with notice of entry of judgment. Because plaintiff filed an untimely notice of appeal and none of the motions he filed served to extend the time in which to file it, we are required to dismiss his appeal for lack of jurisdiction.
PROCEDURAL AND FACTUAL BACKGROUND
On August 31, 2009, plaintiff filed a petition for multiple writs of mandate and prohibition against the City of Davis, various city officials, and an administrative hearing officer seeking to have the trial court “overturn, void and otherwise reverse” the order requiring him to abate the public nuisances existing on his property and pay administrative penalties. Plaintiff alleged the city and its officials arbitrarily enforced its abatement laws and discriminated against him based on his race and disability, and as retaliation for his “denunciation of the University of California” and for filing a lawsuit against the city for violating his civil rights. Pursuant to Code of Civil Procedure section 583.310, plaintiff had five years to bring his case to trial.
Over the next five years, plaintiff’s case was plagued with bouts of inactivity. From February 2010 to January 2013 plaintiff’s case sat dormant, resulting in defendants moving for dismissal for plaintiff’s failure to prosecute his case, which was denied because plaintiff filed an administrative record. Not until July 2014, did plaintiff make any additional filings with the trial court regarding his case. At that time the five-year deadline was approaching and plaintiff sought a stay, preferential trial setting, and leave to amend. Following a hearing, the trial court denied plaintiff’s motions, finding he failed to demonstrate with admissible evidence that he was excused from bringing the matter to trial within five years. On September 11, 2014, defendants moved to dismiss the case and the trial court granted that motion on October 14, 2014. Judgment was entered on November 3, 2014, and plaintiff was served with the notice of entry of judgment of dismissal on November 4, 2014.
On December 2, 2014, plaintiff filed a motion for reconsideration, a motion for a new trial, and a motion to vacate the judgment under section 473. On January 7, 2015, before the motions were heard, plaintiff filed his notice of appeal. The trial court later denied the motions finding it lacked jurisdiction to hear the motion for reconsideration, plaintiff’s motion for a new trial was untimely, and it lacked authority to consider plaintiff’s motion to vacate the judgment.
DISCUSSION
Defendants contend we lack jurisdiction to consider this appeal because plaintiff filed an untimely notice of appeal and none of the postjudgment motions extended the time in which to file it. We agree.
The filing of a timely notice of appeal is jurisdictional. If a notice of appeal is filed late, the court must dismiss the appeal. (Bourhis v. Lord (2013) 56 Cal.4th 320, 324-325; Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.) A notice of appeal must be filed “on or before the earliest of: [¶] (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment . . . ; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment . . . ; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1)(A)-(C).) Defendants served plaintiff with notice of entry of judgment on November 4, 2014. Plaintiff filed a notice of appeal on January 7, 2015 -- 64 days after he was served with notice of entry of judgment. Thus, plaintiff’s notice of appeal was untimely, unless another provision of law extended the time to file the notice of appeal.
California Rule of Court, rule 8.108 allows an extension of time to file a notice of appeal in certain circumstances. Among other provisions, the rule allows for additional time when a party serves a “valid” notice of intention to move for a new trial; a “valid” motion to reconsider an appealable order under section 1008, subdivision (a); or a “valid” notice of intention to move or a “valid” motion to vacate the judgment. (Cal. Rules of Court, rule 8.108(b)-(c), (e).) The word “valid” as used in California Rules of Court, rule 8.108 means “ ‘the motion or notice complies with all procedural requirements[, but] does not mean that the motion or notice must also be substantively meritorious.’ ” (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1047.) The question is whether plaintiff’s motions under these provisions were valid.
A motion for a new trial is valid if the party serves and files a notice “[w]ithin 15 days of . . . service upon him or her by any party of written notice of entry of judgment . . . .” (§ 659, subd. (a)(2).) Applying this rule here means that plaintiff had until November 19, 2014, to file a notice of motion for new trial. But plaintiff did not serve and file his notice of motion for new trial until December 2, 2014. Thus, plaintiff’s motion for new trial was untimely and not valid for purposes of extending the time to appeal. (Ramirez v. Moran (1988) 201 Cal.App.3d 431, 437.)
A motion for reconsideration is valid if the party applies for reconsideration within 10 days after service of written notice of entry of the order. (§ 1008, subd. (a).) The deadline for filing a timely motion for reconsideration expired on November 14, 2014. Plaintiff’s motion was not filed until December 2, 2014, after this ten-day period had expired. Further, a written order of dismissal precludes a trial court from entertaining a motion for reconsideration after the dismissal has been entered. (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181.) Dismissal was entered in plaintiff’s case on November 3, 2014, thus precluding the trial court from entertaining plaintiff’s December 2 motion to reconsider. Accordingly, plaintiff’s motion to reconsider was invalid and did not serve to extend the time for him to file a notice of appeal.
Plaintiff also sought to vacate the judgment under section 473. Section 473, subdivision (b), authorizes relief from judgment on the grounds of mistake, inadvertence, surprise, or excusable neglect. “ ‘Notwithstanding the broad construction afforded section 473, subdivision (b), the statute does not offer relief from mandatory deadlines deemed jurisdictional in nature.’ [Citation.] Generally, section 473 does not apply ‘to a party’s failure to comply with the applicable limitations period in which to institute an action,’ nor can it ‘extend the time in which a party must move for a new trial.’ ” (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211, quoting Maynard v. Brandon (2005) 36 Cal.4th 364, 372.) Plaintiff’s motion to vacate is premised on his alleged mistake and excusable neglect for the late filing of his motion for a new trial and reconsideration. Thus, he sought to extend the time to file his motion for a new trial and reconsideration through the filing of his motion to vacate. Because his failure to meet the deadlines to file both the new trial and reconsideration motions was jurisdictional, plaintiff’s motion to vacate under section 473 was invalid.
In his reply brief, plaintiff acknowledges he mistakenly believed the last day to file his notice of appeal was January 9, 2015. He asks this court “for consideration in equity as a court of justice.” We cannot consider his claims. “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (Cal. Rule of Court, rule 8.104(b), italics added.) The fact that plaintiff is a pro se litigant does not constitute good cause to save his untimely appeal. “Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Because plaintiff did not file his notice of appeal within the 60 days allowed by California Rules of Court, rule 8.104(a) and the 60-day period was not extended by plaintiff’s invalid motions, the appeal is untimely and must be dismissed.
DISPOSITION
Plaintiff’s appeal is dismissed. Costs on appeal are awarded to defendants. (Cal. Rules of Court, rule 8.278(a)(1).)



/s/
Robie, J.



We concur:



/s/
Raye, P. J.



/s/
Duarte, J.