Filed 2/6/98

CERTIFIED FOR PUBLICATION

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. Abraham Gorenfeld, Temporary Judge (pursuant to Cal. Const., art. VI, § 21) and William C. Beverly, Judge. Dismissed.

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Silverton Law Offices and William J. Cleary, Jr., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

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Plaintiff Audrey Bohan sued a medical group and several physicians for medical malpractice. The defendant medical group settled. Defendant Dr. Henry Cobeau obtained summary judgment, which was affirmed on appeal. Thus, neither the medical group nor Cobeau is party to this appeal, their case involvement having earlier been ended. Defendant Dr. Wendell Wong obtained a dismissal for failure to try the case against him within five years. (Code Civ. Proc., §§ 583.310, 583.360.) Bohan timely moved to vacate the judgment dismissing the case against Wong. The trial court denied Bohan’s motion to vacate.

Bohan purports to appeal from the judgment dismissing her case against Wong. Bohan argues the trial court abused its discretion in denying her request to set a trial date before the five year period expired. However, we must dismiss Bohan’s appeal because it was not timely filed.

PROCEDURAL HISTORY

On March 16, 1995, the trial court dismissed Bohan’s case against Wong. The trial court signed and filed the dismissal order on March 20, 1995. Also on March 20, Wong filed a "notice of ruling," dated March 16, notifying Bohan that the trial court dismissed the case against Wong on March 16. Proofs of service on Bohan’s attorney accompanied both the signed and filed dismissal order and the filed notice of ruling. Both proofs of service were dated March 16, 1995.

On April 19, 1996, Bohan filed a "motion to vacate dismissal" under section 473. The motion alleged the trial court "had a duty to set the case for trial before the five year statute ran and that no motion for a preference was necessary." Bohan also argued she filed a preference motion after the trial court refused to set a timely trial date, and she should be excused from any failure to do so earlier.

After a series of procedural steps not relevant here, the trial court, on June 22, 1995, denied Bohan’s motion to vacate. The order was entered in the minutes the same day, and did not direct preparation of an additional written, signed, and filed order. On June 30, 1995, Wong filed a "notice of ruling," accompanied by a proof of service, reflecting that on June 22 the trial court denied Bohan’s motion to vacate. The notice of ruling and the proof of service both were dated June 28, 1995.

On September 13, 1995, Bohan filed her notice of appeal, which was dated July 18, 1995. Bohan’s notice stated she appealed "from the unfiled Notice of Ruling prepared March 16, 1995; the unfiled, undated, and unsigned Order Dismissing this action; and the Order Denying the Motion to Vacate Dismissal dated June 22, 1995." In fact, as noted above, the clerk’s transcript demonstrates that the March 16 notice of ruling was filed on March 20, as was the filed, dated, and signed dismissal order. Thus, Bohan’s September 13 notice of appeal was filed 83 days after entry of the June 22 denial of her motion to vacate, 147 days after Bohan’s April 19 filing of her motion to vacate, and 177 days after the March 20 filing of the signed dismissal order.

DISCUSSION

Rule 2(a) generally prescribes when appeals must be filed: ". . . [A] notice of appeal from a judgment shall be filed on or before the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a document entitled ‘notice of entry’ of judgment; (2) 60 days after the date of service of a document entitled ‘notice of entry’ of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days after the date of entry of the judgment. For the purposes of this subdivision, a file-stamped copy of the judgment may be used in place of the document entitled ‘notice of entry’." (Emphasis added.)

However, the period prescribed by Rule 2(a) may be altered where, as here, a party moves to vacate a judgment within the time prescribed by rule 2(a): "When a valid notice of intention to move to vacate a judgment . . . is served and filed by any party on any ground within the time in which, under rule 2, a notice of appeal may be filed, . . . the time for filing the notice of appeal from the judgment is extended for all parties until the earliest of 30 days after entry of the order denying the motion to vacate; or 90 days after filing the first notice of intention to move to vacate the judgment; or 180 days after entry of the judgment." (Rule 3(b), emphasis added.)

Rule 2(b) defines the terms used in rules 2(a) and 3(b): "For the purposes of this rule: (1) The date of entry of a judgment shall be the date of its entry in the judgment book or, in a county following the procedure specified in . . . [s]ection 668.5 in lieu of maintaining a judgment book, the date of filing the judgment with the clerk pursuant to that section. (2) The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed, and filed, in which case the date of entry shall be the date of filing of the signed order. (3) The date of entry of an appealable order which is not entered in the minutes shall be the date of filing of the order signed by the court. . . ." (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 497-505, pp. 539-548 for further elaboration of these definitions.)  

In contrast to rules 2 and 3, which govern appeals from superior court judgments, sections 473, 663, and 663a concern trial court motions to vacate judgments. Section 473, subdivision (b) permits the trial court to "relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Section 473, subdivision (b) requires that such a motion "be made within a reasonable time, in no case exceeding six months, after the judgment . . . was taken."

Section 663 permits a party to move to set aside and vacate a judgment based on an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . ." Section 663a requires that such a motion be filed "[w]ithin 15 days of . . . service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest." (Emphasis added.) Neither section 473 nor 663a addresses notice of appeal.

Rules 2(a)(3) and 3(b) prescribed the period in which Bohan had to file a notice of appeal or a motion to vacate. Bohan had 180 days under rule 2(a)(3) either to appeal or move to vacate. Assuming, as we do, that Wong did not serve Bohan with a copy of the dated, signed, and filed March 20 dismissal order, Bohan’s motion to vacate unquestionably was timely under rules 2(a)(3) and 3(b).

Because Bohan chose to pursue a timely motion to vacate before seeking appellate review, rule 3(b), not rule 2(a), controlled the time in which either party had to file an appeal after the trial court’s ruling on Bohan’s motion to vacate. Here, rule 3(b) required that Bohan file her notice of appeal on or before the earliest of: (1) 30 days after the June 22 entry of the order denying her motion to vacate, or July 22; (2) 90 days after the April 19 filing of the motion to vacate, or July 18; or (3) 180 days after the March 20 entry of judgment, or September 16. Thus, Bohan had to file her notice of appeal before July 18, the earliest of those three dates. However, Bohan did not file her notice of appeal until September 13. The fact that Bohan filed her notice of appeal before September 16, 180 days after entry of the judgment, is irrelevant, since rule 3(b) requires that the notice be filed on or before the earliest, not the latest, of the three relevant dates. Thus, Bohan’s notice of appeal was not timely filed.

"The time to file notice of appeal, both in civil and criminal cases, has always been held jurisdictional in California. A late notice is void; the time cannot be extended by waiver or estoppel, and the failure to file cannot be excused by the trial judge’s mistake or the adverse party’s fraud. [Citation.] [¶] The rules are explicit on this point. [Citations.]" (9 Witkin, Cal. Procedure, supra, § 506, p. 548.) "The time for filing a notice of appeal . . . shall not be extended. . . ." (Rule 45(c), emphasis added.) "The reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal. . . ." (Rule 45(e), emphasis added.)

"We . . . hold . . . that when . . . notice [of appeal] has not in fact been filed within the relevant jurisdictional period--and when applicable rules of construction and interpretation fail to require that it be deemed in law to have been so filed--the appellate court, absent statutory authorization to extend the jurisdictional period, lacks all power to consider the appeal on its merits and must dismiss, on its own motion if necessary, without regard to considerations of estoppel or excuse." (Hollister Convalescent Hosp., Inc. v. Rico, supra, 15 Cal.3d at p. 674, disapproving contrary dictum in Slawinski v. Mocettini (1965) 63 Cal.2d 70, 72.)

"‘The requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period.’ [Citation.] Under . . . rule 45(e), a reviewing court may relieve a party from a default occasioned by the failure to comply with the rules of court, except the failure to give timely notice of appeal. Thus, neither mistake, inadvertence, accident, misfortune, estoppel nor waiver can afford relief from the jurisdictional necessity of filing a timely notice of appeal. [Citation.] If it appears the appeal was not taken within the [applicable] period, the court has no discretion and must dismiss the appeal. [Citation.]" (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 361; accord, Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1488; 9 Witkin, Cal. Procedure, supra, §§ 506-509, pp. 548-556.)

In response, as discussed above, Bohan insists she was not properly served with the dated, signed, and filed March 20 dismissal order. If so, under rule 2(a)(3), Bohan would have had 180 days after the March 20 filing of the dismissal order, or until September 16, within which to file her appeal. Her September 13 filing of her notice of appeal thus would be timely. We accept this argument, as far as it goes: if Bohan was not properly served with the March 20 dismissal order, and rule 2(a) governs the timeliness of her appeal, her appeal was timely. Assuming, as we do, improper service, however, if rule 3(b) controls, Bohan can prevail only if we read it to grant her at least as much time within which to file her notice of appeal as she would have had if rule 2(a), not rule 3(b), controlled.

Bohan first argues that rule 3(b) does not control because it applies only to "valid" motions to vacate or set aside judgments, and her motion was not "valid." Bohan relies on Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1178, which holds that "section 473 does not provide grounds to oppose a motion to dismiss. A motion under section 473 may only be brought when dismissal has already been granted, and for the limited purpose of belatedly contesting the dismissal motion on its merits." The quoted passage, however, demonstrates that one may base a motion to vacate on section 473. Bohan implies that because her challenge to the dismissal was primarily legal, i.e., the trial court had erred in not setting the case before the five year period expired, it was not properly brought under section 473.

Generally, rule 3(b) does require that the motion to vacate be valid, that is, based on recognized grounds for vacating a judgment, as opposed to the more general grounds for reconsidering an order. (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010-1011.) More specifically, section 473 motions are governed by rule 3(b). (Duncan v. Sunset Agricultural Minerals (1969) 273 Cal.App.2d 489, 491-492; 9 Witkin, Cal. Procedure, supra, § 487, pp. 532-533.) We reject Bohan’s request, unsupported by any authority, to depart from Duncan. In fact, "[r]ule 3(b) . . . applies to any valid notice of intention to move to vacate a judgment on any ground. (Estate of Lacy (1975) 54 C[al].A[pp].3d 172, 177 . . . .)" (9 Witkin, Cal. Procedure, supra, § 488, p. 533.) Bohan says "we’re forced to argue against ourselves, the [section] 473 motion was invalid because it sought to vacate a dismissal for failure to prosecute[,]" relying on Wilcox v, Ford, supra, 206 Cal.App.3d 1170. We are confident Bohan would not have made that argument had the trial court granted her motion. Moreover, Bohan’s motion argued the trial court erred in not setting a trial date before the five year period expired, erred again in finding she should have sought a preferential trial setting, and should have excused her for any mistake in not doing so. Such challenges were validly brought under sections 663 and 473. Bohan properly sought to vacate a judgment, not merely reconsider an order. (Cf. § 1008; see Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1604-1610; 9 Witkin, Cal. Procedure, supra, §§ 490-491, pp. 534-536.) Thus, Bohan’s motion to vacate was valid and timely. As such, it falls within rule 3(b), which expressly prescribes when notice of appeal must be filed in cases where a party first seeks to vacate the judgment in the trial court.

Bohan next argues that rule 3(b) speaks of "extending" the time for filing notice of appeal where a party moves to vacate the judgment. Bohan asks us to interpret rule 3(b) to include the underscored language so that it would read: "When a valid notice of intention to move to vacate a judgment . . . is served and filed . . . within the time in which, under rule 2, a notice of appeal may be filed, . . . the time for filing the notice of appeal from the judgment is extended . . . until the earliest of 30 days after entry of the order denying the motion to vacate where notice of entry of the judgment was given pursuant to rule 2(a)(1) or [(a)](2); or 90 days after filing the first notice of intention to move to vacate the judgment; or 180 days after entry of the judgment where no notice of entry of judgment was given." While conceding that her interpretation would not "extend" the time in which she could file her notice of appeal, because her interpretation would give her the same 180 days to appeal despite her moving to vacate, Bohan argues such an interpretation at least would not shorten the 180-day appeal period beyond what it would have been had she not moved to vacate the judgment.

The problems with Bohan’s argument are insurmountable. First, it requires us to substantially rewrite a facially clear rule. Second, Bohan argues her interpretation would have the maximum period of 180 days from entry of judgment control all appeals where no notice of entry of judgment is given. This interpretation would also eliminate the second date under rule 3(b), 90 days after filing the notice to vacate. Moreover, it would have the effect of eliminating rule 3(b) entirely where no notice of entry is given. Had that been the drafters’ intent, they could have inserted motions to vacate within rule 2 rather than written an extra rule to control them. Clearly, Bohan’s interpretation would completely alter the relevant period where a party seeks post-judgment review in the trial court. We cannot so interpret rule 3(b).

The scheme now is clear: the longest period in which one can timely file a notice of appeal is 180 days from the entry of judgment. A shorter period may apply if a party seeks post-judgment trial court review, or gives notice of entry of judgment, or if the clerk gives such notice. Bohan’s interpretation would substantially change that scheme. To the extent Bohan argues that the rules and statutes should be changed to permit appeals in situations like this, her arguments should more appropriately be addressed to the Judicial Council and the Legislature than to a court interpreting facially clear guidelines.

Bohan’s appeal was untimely. Thus, we must dismiss her appeal.

DISPOSITION

We dismiss the appeal. The parties are to bear their own costs on appeal.

CERTIFIED FOR PUBLICATION.

ORTEGA, J.

We concur:

SPENCER, P.J. VOGEL (Miriam A.), J.