Payne v. Rader (167 Cal. App. 4th 1569, 2008)

Opinion

BUTZ, J.

Plaintiff William C. Payne appeals from (1) a judgment of dismissal entered after a demurrer to his amended complaint was sustained without leave to amend, and (2) a postjudgment order denying plaintiff’s motion to vacate the dismissal pursuant to Code of Civil Procedure section 663.

For reasons we will explain, the appeal from the judgment of dismissal is untimely, and no appeal lies from the order denying Payne’s section 663 motion. Hence, we shall dismiss both appeals.

PROCEDURAL HISTORY

On September 21, 2006, Payne filed an amended complaint for damages, indemnity and other relief against Richard E. Rader and several individual partners in the law firm of Rader, Rader, Goulart and Gray.

Defendants demurred to the complaint on grounds that all causes of action were barred by applicable statutes of limitations.

By minute order, the trial court sustained the demurrer without leave to amend. A judgment of dismissal was entered on January 11, 2007 (all further calendar references are to that year), and defendants served notice of entry of judgment on January 16.

On January 31, Payne filed a motion to vacate the judgment of dismissal. The motion stated that it was based on “several grounds under [section] 663.” Specifically, Payne complained that the trial court had committed legal error in ruling that his various causes of action were time-barred and in failing to grant leave to amend the complaint.

On March 13, the trial court issued a minute order denying Payne’s motion to vacate. The court ruled that “[a] judgment of dismissal entered after a demurrer has been sustained without leave to amend is not ‘within the category established by’ [section] 663.” The court thus concluded that the motion was procedurally improper, and denied it on that basis.

On March 20, Payne filed a notice of appeal from both the judgment of dismissal and the minute order denying his motion to vacate.

DISCUSSION

Compliance with the requirements for filing a notice of appeal is mandatory and jurisdictional. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674 [125 Cal.Rptr. 757, 542 P.2d 1349]; Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583 [120 Cal.Rptr.2d 213].) If a notice of appeal is not timely, the appellate court must dismiss the appeal. (Hollister, at p. 674; Laraway, at p. 583; Cal. Rules of Court, rule 8.104(b).)

I. The Appeal from the Judgment Is Untimely

A notice of appeal from a judgment must be filed on or before the earliest of (1) 60 days after the trial court’s mailing of the notice of entry of judgment, (2) 60 days after a party’s service of the notice of entry of judgment, or (3) 180 days after entry of judgment. (Rule 8.104(a)( 1)—(3).)

Defendants served their notice of entry of judgment on January 16. Since the 60th day, March 17, fell on a Saturday, the last day to file a notice of appeal under the 60-day rule was Monday, March 19. (§ 12a.) Payne’s notice of appeal was not filed until March 20. Thus, the appeal was untimely unless the appeal period was extended by some other .rule.

The only rule that could conceivably extend the period is rule 8.108(c), which provides that if, during the normal time for appeal from the judgment, any party serves and files a valid motion to vacate the judgment, the time to appeal from the judgment is extended until at least 30 days after the court clerk mails, or a party serves, the order denying the motion to vacate or a notice of entry thereof. Accordingly, Payne’s time to appeal was extended only if his section 663 motion was a valid one. (See Ten Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545 [265 Cal.Rptr. 29] [interpreting rule 8.108’s predecessor, former rule 3].)

A “valid” motion to vacate, for purposes of extending time for filing a notice of appeal, means “a motion based on some recognized grounds for vacation; it cannot be stretched to include any motion, regardless of the basis for it.” (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010 [148 Cal.Rptr. 273], italics added.) Section 663 lists two grounds for granting a motion to vacate: “A judgment or decree . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [