Filed 11/17/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
Conservatorship of the Person and Estate of B247366
LOUISE E. TOWNSEND.
___________________________________ (Los Angeles County
Super. Ct. No. KP010708)
BARBARA GONZALES, as Conservator,
etc.,
Petitioner and Respondent,
v.
AURORA LOAN SERVICES, LLC, et al.,
Petitioners and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Thomas F. Nuss, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21).
Appeal dismissed.
Early Sullivan Wright Gizer & McRae, Eric P. Early, Bryan M. Sullivan,
Allison S. Hyatt and Christopher Ritter for Petitioners and Appellants.
Law Office of Gary C. Wunderlin and Gary C. Wunderlin for Petitioner and
Respondent.
_________________________
In this dispute over title to real property, petitioner and respondent Nationstar
Mortgage, successor in interest to Aurora Loan Services, LLC (hereafter, Lender),1
attempts to appeal from a judgment in favor of petitioner Barbara L. Gonzales, as
conservator of the person and estate of Louise E. Townsend, following a trial before the
Honorable Thomas F. Nuss, a retired superior court judge appointed as a temporary
judge. Gonzales moved to dismiss the appeal because Lender’s notice of appeal was not
filed within 60 days after service of notice of entry of judgment (Cal. Rules of Court, rule
8.104(a)(1)(B)),2 and Lender’s motion to set aside and vacate the judgment submitted to
the temporary judge did not extend the time within which to appeal because it was not
timely filed with the superior court clerk as required under rule 2.400(b)(1), (2)3 and
1
Aurora Loan Services, LLC, the petitioner and respondent in the probate
proceedings, is successor in interest to Benchmark Lending Services LLC.
2
All references to any rule will be to the California Rules of Court.
3
Rule 2.400(b) provides: (1) “All original documents in a case pending before a
temporary judge or referee must be filed with the clerk in the same manner as would be
required if the case were being heard by a judge, including filing within any time limits
specified by law and paying any required fees. The filing party must provide a file-
stamped copy to the temporary judge or referee of each document relevant to the issues
before the temporary judge or referee. [¶] (2) If a document must be filed with the court
before it is considered by a judge, the temporary judge or referee must not accept or
consider any copy of that document unless the document has the clerk’s file stamp or is
accompanied by a declaration stating that the original document has been submitted to
the court for filing.”
2
section 633a, subdivision (a)4 of the Code of Civil Procedure.5 In this case, we must
determine whether submitting the motion to vacate to the temporary judge rather than
filing it with the superior court clerk extends the 60-day time period to appeal under
rule 8.108(c).
We conclude the time to extend the period to appeal is conditioned upon filing
with the superior court clerk a valid “notice of intent to move—or a valid motion—to
vacate the judgment” that satisfies all the statutory requirements. (Rule 8.108(c).)
Submitting the motion to vacate to a temporary judge is not a valid motion because it
does not comply with the Code of Civil Procedure and Rules of Court. Therefore, the
time to appeal was not extended. The rules governing posttrial motions involve drawing
bright lines marking the point when the trial court’s jurisdiction over a case ends and the
jurisdiction of the appellate court begins. We caution the bar that stipulating to a
temporary judge does not relieve the parties from complying with statutes that affect our
jurisdiction. Because the time to appeal was not extended, this appeal is untimely.
Accordingly, we dismiss the appeal.
4
Section 663a provides: “A party intending to make a motion to set aside and
vacate a judgment, as described in Section 663, shall file with the clerk and serve upon
the adverse party a notice of his or her intention, designating the grounds upon which the
motion will be made, and specifying the particulars in which the legal basis for the
decision is not consistent with or supported by the facts, or in which the judgment or
decree is not consistent with the special verdict, either: [¶] (1) After the decision is
rendered and before the entry of judgment. [¶] (2) Within 15 days of the date of mailing
of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or
service upon him or her by any party of written notice of entry of judgment, or within
180 days after the entry of judgment, whichever is earliest.”
5
Unless indicated, all further statutory references in this opinion will be to the
Code of Civil Procedure.
3
FACTUAL AND PROCEDURAL BACKGROUND6
1. Refinance Loan Giving Rise to Petitions Filed in Probate Court
In 2004, when Louise E. Townsend was 79 years old, she signed loan documents
to obtain a $341,250 home equity refinance loan on real property located at 2434 Bonita
Avenue, La Verne, California (the property). Townsend’s son apparently negotiated the
refinance loan on his mother’s behalf. The refinance loan was secured by a deed of trust
on the property, which required Townsend to first execute a grant deed conveying title to
the property from the Louise E. Townsend Trust back to her as an individual (grant
deed). Townsend signed a promissory note in favor of Lender. When escrow closed,
Townsend’s son accepted the refinance loan proceeds and placed the funds in a joint
account held in his and his mother’s name.
In 2005, Barbara Gonzales, Townsend’s daughter, first learned of the refinance
loan. Gonzales became successor trustee of Townsend’s trust when Townsend’s son
resigned. Gonzales also petitioned and received Letters of Temporary Conservatorship of
her mother’s person and estate, and later she received a general appointment as her
mother’s conservator.
Gonzales obtained the remaining $170,000 in refinance loan funds. She used the
proceeds to pay off a prior mortgage ($48,600) on the property, to pay various credit card
debts, to make property improvements, and to provide for Townsend’s care.
In total, approximately 24 monthly payments on the refinance loan were made on
behalf of Townsend’s estate. When Gonzales stopped making payments, the refinance
loan went into default and a foreclosure sale on the property was scheduled for July 25,
2008.
6
Only a brief summary of the facts is necessary because we conclude the appeal is
not timely.
4
In June 2008, before the scheduled foreclosure sale, Gonzales filed a petition to
determine title to the property (Prob. Code, § 850). The petition sought to have the grant
deed, deed of trust, and promissory note declared void because Townsend lacked
capacity, as she “had already been diagnosed with dementia and was incompetent to
manage her own financial resources or to resist fraud or undue influence.” Gonzales also
sought a determination that Lender had no interest in the property.7
Lender asserted numerous defenses to the petition. Lender also filed a petition to
assert a claim for an equitable lien against the property in the sum of $341,250, or in the
alternative Lender sought restitution of the refinance loan proceeds.
2. Trial, Judgment, Notice of Intention to Set Aside and Vacate Judgment
In October 2010, the parties stipulated to the appointment of Judge Nuss
(Cal. Const., art. VI, § 21) to conduct the trial.8 Thereafter, the trial was held in two
phases.
Throughout the proceedings before Judge Nuss, all counsel, including the probate
volunteer panel (PVP) attorney, submitted trial briefs, closing argument briefs, and
requests for a statement of decision directly to Judge Nuss at Inland Valley Arbitration
and Mediation Services (IVAMS). The parties did not file documents with the superior
court clerk in compliance with rule 2.400(b)(1), and Judge Nuss does not appear to have
rejected any documents that did not have a clerk’s file stamp (Rule 2.400(b)(2)).9
7
Gonzales filed a supplemental petition alleging that if the court determined
Townsend held title as a trustee of the Louise E. Townsend Trust, the asset would be
removed from the list of conservatorship assets and administered as a trust asset.
8
The proceedings before a temporary judge function as the equivalent of a direct
calendar judge from the time of appointment to conclusion of the case unless the parties
stipulate otherwise. (Knight et al., Cal. Practice Guide: Alternative Dispute Resolution
(The Rutter Group 2013) ¶ 6.87, p. 6-22.)
9
On October 22, 2013, the superior court granted Lender’s motion for an order
transferring records from Judge Nuss at IVAMS to the superior court file. The records
transferred included 33 trial submissions.
5
a. Statements of Decision, Judgment
In June 2011,10 following the conclusion of the first phase of the trial, Judge Nuss
issued a statement of decision granting Gonzales’s petition and denying Lender’s
petition. Judge Nuss found that based upon the testimony of Townsend’s treating
physician and a neurologist, along with Gonzales’s testimony, Townsend did not possess
the capacity to understand the refinance or the documents presented to her in connection
with the refinance loan. Thus, Townsend was “entirely without understanding and under
Civil Code [s]ection 38, she had no capacity to make a contract of any kind.”
Accordingly, the grant deed, deed of trust, and promissory note were void. Judge Nuss
further concluded there was no evidence presented at trial to support Lender’s defenses of
ratification, waiver, or estoppel.
On December 11, 2012, Judge Nuss resolved the remaining issues in the second
phase of the trial, rendering a second statement of decision. He awarded attorney fees to
Gonzales ($92,320.61) and to Townsend’s estate ($26,675). Gonzales also was awarded
$75,087.38 in credits for loan charges and loan payments to Lender. As to Lender’s
claim for reimbursement under Civil Code section 38, Judge Nuss concluded that Lender
waived the right to seek reimbursement by failing to raise the issue in its petition or at
trial. Absent waiver, Judge Nuss also stated he did not accept the claim for
reimbursement based upon the evidence presented at trial.
On December 13, 2012, the judgment, reflecting the findings in both statements of
decision, was filed in the superior court.
On December 13, 2012, Gonzales served a notice of entry of judgment.
3. Notice of Intention to Set Aside/Vacate Judgment
Lender moved pursuant to sections 662 and 663 to set aside and vacate the
judgment on the grounds that the judgment was legally erroneous with regard to the
amount owed to Lender on its reimbursement claim, and to the amount of attorney fees
10
Townsend died in March 2011.
6
awarded.11 Lender also sought to correct a factual error in the judgment. The motion
was served on December 28, 2012, and submitted to Judge Nuss at IVAMS on the same
day.
Gonzales opposed the motion and submitted her written brief to Judge Nuss at
IVAMS. She later objected to Lender’s untimely reply via e-mail to Judge Nuss at
IVAMS. Gonzales did not raise as an objection that Judge Nuss could not consider the
motion to vacate because Lender did not comply with rule 2.400(b)(1) or section 663a,
subdivision (a). Judge Nuss did not reject the motion even though it had not been filed
with the superior court clerk. (Rule 2.400(b)(2).) Instead, a hearing was set for
January 28, 2013, but due to scheduling issues Lender agreed to waive oral argument. A
month later, after the 60-day time period to file an appeal had expired, Gonzales’s
counsel sent a letter (Gonzales letter) to Judge Nuss at IVAMS informing him that the
motion to vacate was not filed with the superior court clerk as required under
section 663a, subdivision (a).
Judge Nuss did not issue a ruling on the motion to vacate.
4. Appeal, Motion to Dismiss
On March 1, 2013, the day after the Gonzales letter was sent to Judge Nuss,
Lender filed a notice of appeal. On March 13, 2013, Lender filed an amended notice of
appeal.
Gonzales moved to dismiss the appeal on the ground that the appeal was untimely
because the motion to vacate was not filed with the superior court clerk during the 15-day
jurisdictional time period after service of notice of entry of judgment, and therefore it was
11
Although the parties in their briefs refer to a motion for new trial, Lender did not
bring the motion pursuant to section 659. “As a general rule, the trial court may consider
only the grounds stated in the notice of motion. [Citations.] . . . The purpose of these
requirements is to cause the moving party to ‘sufficiently define the issues for the
information and attention of the adverse party and the court.’ [Citation.]” (Luri v.
Greenwald (2003) 107 Cal.App.4th 1119, 1125.) Thus, our discussion is limited to the
grounds stated, that is, sections 662 and 663.
7
not valid for purposes of extending the time in which to appeal. We deferred ruling on
the motion to dismiss.
DISCUSSION
1. The Appeal was Filed More than 60 Days After Service of Notice of Entry of
Judgment
“Compliance with the time for filing a notice of appeal is mandatory and
jurisdictional. [Citation.]” (Laraway v. Pasadena Unified School Dist. (2002)
98 Cal.App.4th 579, 582.) “ ‘Unless the notice is actually or constructively filed within
the appropriate filing period, an appellate court is without jurisdiction to determine the
merits of the appeal and must dismiss the appeal.’ [Citations.] The purpose of this
requirement is to promote the finality of judgments by forcing the losing party to take an
appeal expeditiously or not at all. [Citation.]” (Silverbrand v. County of Los Angeles
(2009) 46 Cal.4th 106, 113.)
A notice of appeal must be filed within 60 days after service (whether by the
superior court clerk or by a party) of a notice of entry of judgment or a file-stamped copy
of the judgment. (Rule 8.104(a).) For judgments, the judgment is “entered” on the date
of filing, or (in those counties maintaining a judgment book), the date of entry in the
judgment book. (§ 668.5; Rule 8.104(c)(1).)
“Only a timely filed notice of appeal can invoke the jurisdiction of this court.”
(Ramirez v. Moran (1988) 201 Cal.App.3d 431, 437.) “In strictly adhering to the
statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing
procedural missteps. Relief may be given for excusable delay in complying with many
provisions in the statutes and rules on appeal, such as those governing the time within
which the record and briefs must be prepared and filed. These procedural time
provisions, however, become effective after the appeal is taken. The first step, taking of
the appeal, is not merely a procedural one; it vests jurisdiction in the appellate court and
terminates the jurisdiction of the lower court.” (Estate of Hanley (1943) 23 Cal.2d 120,
123.)
8
When a 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 (1975)
15 Cal.3d 660, 674 (Hollister).) An untimely appeal is an “absolute bar” to appellate
jurisdiction. (Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 83.)
Here, the notice of entry of judgment was served on December 13, 2012. The time
to appeal expired on February 11, 2013. The notice of appeal was filed on March 1,
2013, outside the 60-day period. Thus, the appeal is untimely unless the time to appeal is
extended.
2. Lender’s Motion to Vacate Did Not Extend the Time to File an Appeal Because
it Was Not Valid as it Failed to Comply with the Procedural Requirements
The 60-day period is extended if, within that time period, any party serves and
files a “valid notice of intention to move—or a valid motion—to vacate the judgment.”
(Rule 8.108(c); see Payne v. Rader (2008) 167 Cal.App.4th 1569, 1573-1574.)12 “As
used in these provisions, the word ‘valid’ means only that the motion, election, request,
or notice complies with all procedural requirements; it does not mean that the motion,
election, request, or notice must also be substantively meritorious.” (Advisory Com.
com., Deerings Ann. Codes, Rules of Court (2014 ed.) foll. Rule 8.108, p. 201]; see also
Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1047
[“valid” motion to extend the time to appeal “complies with all procedural
requirements”].)
12
The time to appeal from the judgment is extended until the earliest of 30 days after
service (by the court clerk or a party) of the order denying the motion or a notice of entry
of that order, 90 days after the first notice of intention to move (or motion) to vacate the
judgment is filed, or 180 days after entry of judgment. (Rule 8.108(c).)
9
The procedural requirements for a valid motion to vacate are set forth in sections
663 and 663a. A party intending to make such a motion “shall file with the clerk and
serve upon the adverse party” a notice of intention to move, designating the grounds,
within the statutory time limits. (§ 663a, subd. (a).)
In Payne v. Rader, supra, 167 Cal.App.4th 1569, the court dismissed as untimely
an appeal from a judgment because the motion to vacate was procedurally infirm as it did
not state valid grounds for relief. (Id. at pp. 1574-1576.) The Payne court also rejected
appellant’s argument to deem the motion a new trial motion because the statutory
requirements had not been satisfied. (Id. at pp. 1575-1576.) The court reasoned: “Were
we to begin saving untimely appeals by allowing procedurally invalid posttrial motions to
be deemed entirely different motions, we would be subverting the carefully drawn
jurisdictional scheme. Such mischief is strictly forbidden. ‘In the absence of statutory
authorization, neither the trial nor appellate courts may extend or shorten the time for
appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune.’
[Citation].” (Id. at p. 1576.)
Like the appellant in Payne, Lender’s motion to vacate is procedurally infirm.
The motion was not “file[d] with the clerk” within 15 days after service of notice of entry
of judgment. (§ 663a, subd. (a).) The time period to file a motion to vacate is
jurisdictional and cannot be extended due to mistake, inadvertence, surprise, or excusable
neglect. (Advanced Building Maintenance v. State Comp. Ins. Fund (1996)
49 Cal.App.4th 1388, 1392-1395.)
By referring to the motion to vacate as “filed with Judge Nuss,” Lender appears to
contend the parties’ stipulation somehow excused compliance with the requirement to
“file with the clerk” the motion to vacate as stated in section 663a, subdivision (a). The
parties’ stipulation that Judge Nuss would preside over the trial conferred judicial power
to act as a temporary judge. The parties’ stipulation did not permit them or Judge Nuss to
ignore the Code of Civil Procedure, especially where the Legislature has carefully drafted
the jurisdictional scheme for posttrial motions. All statutes, Rules of Court, judicial
ethics, and case law remain applicable to the proceedings before a temporary judge.
10
a. Concepts of Estoppel or Justifiable Reliance Cannot Cure the
Default
Lender contends that “estoppel,” or concepts of justifiable reliance apply here
based upon the parties’ conduct so as to excuse the requirement of filing the motion to
vacate with the superior court clerk. As previously noted, the parties submitted trial
documents directly to Judge Nuss at IVAMS in violation of rule 2.400(b)(1). Judge Nuss
also accepted documents, including the motion to vacate, without a clerk’s file stamp in
violation of rule 2.400(b)(2). Gonzales did not raise the procedural defect in opposition
to the motion to vacate until it was too late to file the motion to vacate with the superior
court clerk or to timely appeal from the judgment. We recognize the equities may favor
Lender because had Gonzales opposed the motion on this ground, or had Judge Nuss
rejected the motion, Lender could have timely filed with the clerk the motion to vacate or
timely filed a notice of appeal. But, equitable relief from a default in failing to file a
timely appeal is not available.
In Hollister, supra, 15 Cal.3d 660, the court refused to relieve the appellants from
their default in failing to file a timely notice of appeal in a civil case under theories of
“ ‘substantial compliance,’ ” “ ‘justifiable reliance,’ ” or “ ‘quasi-estoppel’ ” when the
clerk misinformed counsel’s office of the entry date of the minute order denying the
motion for new trial. (Id. at pp. 665-667.) Rule 8.60(d) provides that a “reviewing court
may relieve a party from default for any failure to comply with these rules except the
failure to file a timely notice of appeal.” “No post-Hollister case has put even a minor
chink in the armor of the rule.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th
1484, 1488.)
In Hollister, supra, 15 Cal.3d 660, and in Estate of Hanley, supra 23 Cal.2d 120,
the California Supreme Court has made clear that a party’s reliance on misinformation or
misrepresentations by either the clerk or an opposing party is not sufficient to excuse the
strict jurisdictional rule enunciated above. (Hollister, supra, at pp. 665-667; Estate of
Hanley, supra, at p. 122.) “It may be assumed that the appellant has presented grounds
for relief which would be sufficient if relief could be granted. But the requirement as to
11
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.
[Citations.]” (Estate of Hanley, supra, at pp. 122-123.) Appellate jurisdiction is not a
matter of appellate court discretion.
b. Lender’s Cases Addressing Waiver are Inapposite
Lender argues that its motion to vacate is not procedurally infirm because it was
submitted to Judge Nuss within the jurisdictional 15-day time period in section 663a,
subdivision (a), and its failure to file the motion with the clerk as required by the Rules of
Court is not jurisdictional. This argument is not persuasive.
Lender’s argument is based upon a line of waiver cases addressing rule 2.831,
setting forth the requirements for a stipulation to appoint a temporary judge. In re
Richard S. (1991) 54 Cal.3d 857 held that when construing former rule 244 (now rule
2.831) the parties who have stipulated to a referee sitting as a temporary judge waive any
claim of error based on the failure to strictly adhere to the procedural requirements of the
rule. (In re Richard S., at pp. 863-866.) The California Supreme Court determined that
former rule 244 (now rule 2.831) “is directory rather than mandatory to the extent that it
imposes requirements beyond those expressed in article VI, section 21, and that no
purpose would be served by interpreting it as intended to void any action taken when the
requirements of the rule were not precisely fulfilled.” (In re Richard S., at p. 865; see
also Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1579 [any failure to strictly comply
with rule 2.831 by oral or implied stipulation to temporary judge’s appointment is a
“waiveable error”]; Estate of Fain (1999) 75 Cal.App.4th 973, 988-991 [tantamount
stipulation doctrine applies to appointment of temporary judge and any claim of error
based on failure to comply with written stipulation requirement is waived].)
“ ‘[T]he “mandatory” or “directory” designation does not refer to whether a
particular statutory requirement is obligatory or permissive, but instead denotes
“ ‘whether the failure to comply with a particular procedural step will or will not have the
effect of invalidating the governmental action to which the procedural requirement
relates.’ ” [Citation.]’ [Citation.]” (People v. Gray (2014) 58 Cal.4th 901, 909.) This
12
analysis turns on whether the requirement is intended to provide protection or benefit to
individuals or instead is designed to serve some collateral, administrative purpose. (Ibid.)
If the requirement serves an administrative purpose, it is merely directory, not mandatory
and failure to comply does not invalidate later governmental action. (Ibid.; In re
Richard S., supra, 54 Cal.3d at p. 866.) As we recently noted in Luckey v. Superior
Court (2014) 228 Cal.App.4th 81, “while it is not reversible error for a case to proceed
before a temporary judge on an oral or implied stipulation, [rule 2.831] nonetheless
required that such a stipulation be in writing.” (Id. at p. 103, fn. 21.) In other words,
even if Rules of Court are directory, the parties have to comply with them. Here, Lender
had to comply with rule 2.400(b), and a determination that the rule is mandatory or
directory affects whether the failure to comply with this procedural step will or will not
have the effect of invalidating subsequent rulings in the case.
Lender’s waiver cases also are inapposite because they do not address the failure
to comply with the Rules of Court and the Code of Civil Procedure in proceedings before
a temporary judge. Lender relies on Gridley v. Gridley, supra, 166 Cal.App.4th 1562, for
the proposition that all documents “filed” with a temporary judge are deemed
procedurally valid. The Gridley court did not so hold. On the issue of compliance with
rule 2.400, the court stated: “[W]e note that appellants take the position that documents
and pleadings that were filed with Justice Low are not part of this record unless they were
also contemporaneously filed in the superior court. It is too late in the game to raise this
complaint particularly in light of appellants’ decision not to provide a clerk’s transcript.
As a result of that decision, the parties have filed dozens of volumes of appendices. We
simply are not in a position to determine which of the thousands of documents that the
parties have filed in this court were properly filed in the court below.” (Gridley, at
pp. 1568-1569, fn. 2.) The Gridley court did not address whether a posttrial motion that
affects jurisdiction is “filed” when it is submitted to a temporary judge. “ ‘ “It is
axiomatic that cases are not authority for propositions not considered.” ’ [Citation.]”
(McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626.)
13
We also do not agree with Lender that the filing requirement in rule 2.400(b)(1)
strictly serves an administrative purpose, which would permit Judge Nuss to rule on the
motion to vacate if timely submitted. Rule 2.400 is intended to ensure open access to
records in any proceedings before temporary judges and referees. (Judicial Council of
Cal., Civil and Small Claims Advisory Com., Alternative Dispute Resolution: Access to
Hearings and Records in Proceedings Before Temporary Judges and Referees (2009)
p. 2.) The Judicial Council Advisory Committee’s report indicates that proposed
amendments to rule 2.400, effective January 2010 and applicable in this action, clarify
that “all original documents in proceedings conducted by either a temporary judge or a
referee must be filed with the court clerk, not deposited with the temporary judge or
referee.” (Judicial Council of Cal., at p. 2.) According to the report, the filing
requirement “ensure[s] that the court clerk’s office has the complete case file and can
make all nonconfidential portions of the file available to the public, as it does in any
equivalent case being heard by the court.” (Id. at p. 7.)
The jurisdictional time limits to appeal presuppose that filed documents are open
and available to the public, “in accordance with California’s ‘long-standing tradition of
open civil proceedings.’ [Citation.]” (In re Marriage of Mosley (2010) 190 Cal.App.4th
1096, 1102-1103.) “As a result, a judgment or appealable order is presumptively filed,
for purposes of the 180-day time limit on the file stamped date. That presumably is when
it became a public writing ‘for purposes of First Amendment access rights.’ [Citation.]”
(Id. at p. 1103.) The filing date of a motion to vacate affects our jurisdiction as it factors
into the jurisdictional time limits within which to appeal.
While there may be circumstances in which the failure to file documents with the
superior court clerk as required under rule 2.400(b) may be waived, a motion to vacate is
not one of those circumstances. There are substantive differences between submitting to
a temporary judge a trial brief or a motion to vacate. A motion to vacate focuses the
parties on the appellate process and challenges to the appealable judgment. If the
judgment is challenged on appeal, there is a jurisdictional time limit within which to do
so. A motion to vacate is part of the calculation to determine the jurisdictional time
14
limits to file an appeal. To extend the time to appeal, the procedural requirements in
section 663a must be met. We have no authority to rewrite the statute to create
exceptions in section 663a, subdivision (a) in proceedings before a temporary judge
where the parties submit the motion to vacate to the temporary judge but do not file it
with the clerk.
Although no case addresses this precise issue, we find instructive Dodge v.
Superior Court (2000) 77 Cal.App.4th 513, discussing the 60-day period in section 660
that gives the trial court authority to grant a motion for new trial. (Dodge, at p. 515.) In
Dodge, “[b]y letter dated April 12 (the 60th day after service of the judgment) and
postmarked April 13 (the 61st day after service of the judgment), the court simply stated
it ‘hereby grant[ed] the Motions for New Trial brought by counsel for the defendants.’ ”
(Id. at p. 516, fn. omitted.) The letter did not bear a file stamp. (Id. at p. 516, fn. 3.) The
Dodge court concluded that because the April 12 letter was not file-stamped, was not
entered in the minutes, and did not state the grounds for granting a new trial, it did not
sufficiently comply with the statutory requirements in sections 657 and 660 to grant the
new trial motions. (Dodge, at p. 523.) The court’s order and statement of reasons came
after the jurisdictional period, and no equitable relief was available because the 60-day
period was mandatory and jurisdictional. (Id. at p. 524.) As the court reasoned,
“Fairness has little to do with it. With jurisdictional deadlines, the rule, like the song, is
what a difference a day makes. If the statute is to provide exceptions, the job is for the
Legislature, not the courts, to carve them out.” (Ibid.)
Here, like Dodge, Lender’s motion to vacate did not comply with the procedural
requirements of section 663a. The motion bears no clerk file stamp indicating it was filed
within the 15-day period. (§ 663a, subd. (a).) Were we to accept Lender’s representation
of the date it “submitted” the motion to Judge Nuss, as Lender requests here, the date is
not accessible in the court records and raises no presumption that the motion was filed on
that date. Finality of the judgment would remain in doubt as the time limits to appeal
would be subject to a “submission” date that does not appear in any court records. A
judgment is not final until the time to appeal has expired. (Rule 8.104(a).) Based on the
15
court records, the time to appeal expired 60 days after service of notice of entry of
judgment because no valid motion to vacate was filed. At that point, the judgment was
final. When it comes to late appeals, we have no jurisdiction. If the statute is to provide
exceptions when the parties have stipulated to a temporary judge, the job is for the
Legislature, not the courts to establish them. Accordingly, Lender’s untimely appeal is
dismissed.
16
DISPOSITION
The motion to dismiss the appeal is granted. In the interests of justice, no party is
awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
CERTIFIED FOR PUBLICATION
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.
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