Johnson v. Sasco Electric

Filed 8/16/07 Johnson v. Sasco Electric CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant, Andre Johnson, appeals from a judgment entered in his employment discrimination action after the trial court granted a motion for summary judgment. After this court received the notice of appeal and the civil case information statement, we sent a letter to appellant inquiring why the appeal should not be dismissed as untimely filed. Having received and considered letter briefs from both appellant and respondent, we find the appeal untimely pursuant to rule 8.104 of the California Rules of Court,[1] and dismiss the appeal.

Factual and Procedural Background

On July 28, 2006, the trial court granted respondent, Sasco Electrics motion for summary judgment. The trial court entered judgment thereafter on January 10, 2007. Respondent served a notice of entry of judgment on January 15, 2007. On March 15, appellant served and mailed the notice of appeal to the court of appeal. This court received the Notice of Appeal on March 16, 2007. The clerk of this court immediately forwarded the notice of appeal to the trial court, which received and filed it on March 19, 2007. After this court received and lodged the notice of appeal, we requested appellant to show cause why the appeal should not be dismissed as not timely filed pursuant to the rules of court. We received responses from both appellant and respondent and now consider them.

Discussion

The California Rules of Court set out the requirements for filing notices of appeal. Rule 8.100(a)(1) provides that To appeal from a superior court judgment an appellant must serve and file a notice of appeal in that superior court. (Emphasis added.) Rule 8.104(a)(2) provides that an appellant has 60 days from the date the notice of entry of judgment is served to file a notice of appeal. Here, the notice of entry of judgment was served on January 15, 2007. Therefore, the last day to file the notice of appeal in the superior court was March 16, 2007.

It is undisputed that appellant failed to file the notice of appeal in the superior court, as required by rule 8.100. Instead, he mailed it to this court on March 15, 2007, and it arrived in this court on March 16, 2007. As a courtesy to appellant, this court forwarded the notice of appeal to the superior court. The notice arrived at the superior court on March 19, 2007. By then, the 60 day time period had expired.

Appellant concedes that he sent the notice of appeal to this court and that the notice was filed in the superior court late. However, he contends that the error was merely technical and that respondents have not been prejudiced. He points to the well-established public policy favoring allowing parties the right to appeal, in arguing that the appeal should be allowed to proceed.

Appellants error of presenting the notice of appeal to the Court of Appeal for filing cannot be construed as merely technical because the time to appeal had run before the Notice could be filed in the Superior Court. The time for appealing a judgment is jurisdictional; once the deadline expires, an appellate court has no power to entertain the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.(1997) 15 Cal.4th 51, 56.)

The fact that appellant sent the notice to this court within the time to appeal does not save his appeal because under rule 8.100, this is not the court where the notice must be filed. There is a good reason for this requirement. The filing of a notice of appeal in the superior court sets into motion the entire appellate process. For example, it triggers the trial court clerks duty to notify the parties of the appeal. (Rule 8.100(d).) It also begins the running of time for the designation of the record and the time to file a cross-appeal. (Rules 8.108(e) & 8.120(a).) All of these actions, triggered by the filing of the notice, must occur at the trial court. Sending the notice of appeal to the court of appeal does not set the appellate process into motion any more than if appellant had delivered the notice of appeal to a private shipping company on the 60th day.

Appellants argument that we should allow the appeal to proceed despite its untimely filing because public policy favors allowing parties to appeal is inopposite. While it is well settled that public policy favors disposition of appeals on their merits, this rule relates to the construction of notices of appeal where there is some form of technical noncompliance. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. ( 1959) 169 Cal.App.2d 785, 790; Jarkieh v. Badagliacco (1945) 68 Cal.App.2d 426, 429.) This policy has no bearing on the timeliness of appeals. Because timeliness is jurisdictional and not procedural, the court of appeal has no discretion to extend the time to file the notice of appeal under any circumstances. (Beresh v. Sovereign Life Ins. Co. of California (1979) Cal.App.3d 547; In re Hanleys Estate (1943) 23 Cal.2d 120, 123.)

Appellants notice of appeal was filed in the superior court 63 days after the respondent served the notice of entry of judgment. Therefore, despite the appellants attempt to file the notice of appeal in this court before the time to appeal had expired, we must dismiss the appeal on our own motion as untimely. (Taliaferro v. Davis (1963) 217 Cal.App.2d 215, 216.)

Disposition

The appeal is dismissed as untimely filed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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[1] All further rules references will be to the California Rules of Court unless otherwise specified.