Filed 2/5/21 Prince v. Pletcher CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JESSICA PRINCE, B296328
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. BC520646)
v.
MITCHELL PLETCHER,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert L. Hess and Robert B. Broadbelt,
Judges. Dismissed.
No appearance for Plaintiff and Respondent.
Mitchell Pletcher, in pro. per., for Defendant and
Appellant.
__________________________
Defendant, cross-complainant, and appellant Mitchell
Pletcher1 appeals from a post-judgment order denying his
motion to vacate a judgment under Code of Civil Procedure
section 663.2 Because Pletcher’s notice of appeal was filed
more than 180 days after Pletcher’s timely motion to vacate
was denied by operation of law, we dismiss the appeal as
untimely.
FACTUAL AND PROCEDURAL BACKGROUND
Jessica Prince sued Pletcher on September 9, 2013, for
sexual harassment. Pletcher filed a cross-complaint against
Prince on November 30, 2015, for interference with contract
and economic relationships, and obtained an entry of default
1 Pletcher represented himself before the trial court
and continues to represent himself on appeal. Self-
represented litigants are held to the same legal standards as
parties represented by attorneys. (Kobayashi v. Superior
Court (2009) 175 Cal.App.4th 536, 543.) “[M]ere self-
representation is not a ground for exceptionally lenient
treatment. Except when a particular rule provides
otherwise, the rules of civil procedure must apply equally to
parties represented by counsel and those who forgo attorney
representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 984–985.)
2 All further statutory references are to the Code of
Civil Procedure, unless otherwise stated.
2
on April 20, 2016.3 Prince’s complaint was dismissed with
prejudice on January 6, 2017.4 On December 11, 2017,
Judge Robert L. Hess entered default judgment “in favor of
cross-complainant Mitchell Pletcher and against cross-
defendant Jessica Prince in the amount of Zero Dollars
($0.00).” The clerk mailed a copy of the judgment to Pletcher
on December 12, 2017.
On December 27, 2017, Pletcher filed a notice of motion
to vacate the judgment under section 663, seeking to vacate
the court’s December 11, 2017 zero-dollar judgment and
enter a new judgment for $13,686,052. After a hearing on
February 8, 2017, the court took the motion under
submission. The court did not issue a ruling on Pletcher’s
December 27, 2017 motion to vacate.
On May 11, 2018, the court issued an order of
“reassignment pursuant to a recusal,” and transferred the
case to Judge Monica Bachner. Pletcher filed a peremptory
3 On June 18, 2020, Pletcher filed a request for judicial
notice of filings and default judgments from four cases
related to the current case. Because the documents are not
relevant to the issue of the timeliness of this appeal,
Pletcher’s request for judicial notice is denied.
4 On our own motion, we take judicial notice of the
dismissal order entered in Los Angeles Superior Court Case
No. BC507823 on January 6, 2017. (Evid. Code, §§ 452,
subd. (d)(1), 459, subd. (a).) Case No. BC507823 was the
lead case for several related cases, including Case No.
BC520646.
3
challenge and the case was reassigned to Judge Howard L.
Halm. On October 2, 2018, the court notified Pletcher that
the case had been reassigned to Judge Robert B. Broadbelt.
On October 18, 2018, Pletcher filed a “Recalendared
Motion to Vacate Judgment” requesting the same relief as
his original motion to vacate. At a hearing on December 20,
2018, Judge Broadbelt took Pletcher’s recalendared motion
under submission. On February 26, 2019, the court issued
an order denying Pletcher’s recalendared motion to vacate.
On March 13, 2019, Pletcher filed a notice of appeal,
appealing from the February 26, 2019 post-judgment order.
Prince has not filed a brief on appeal.
DISCUSSION
Despite the lengthy procedural history of this case in
the trial court, the issue is whether the Pletcher’s March 13,
2019 notice of appeal was timely. We conclude that it was
not.
“‘[T]he timely filing of an appropriate notice of appeal
or its legal equivalent is an absolute prerequisite to the
exercise of appellate jurisdiction.’ (Hollister Convalescent
Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) ‘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 [citations].’ (Estate of Hanley (1943)
23 Cal.2d 120, 123; see Cal. Rules of Court, rule 8.60(d).) [¶]
4
‘Except as provided in [California Rules of Court,] rule 8.66,
no court may extend the time to file a notice of appeal. If a
notice of appeal is filed late, the reviewing court must
dismiss the appeal.’ (Cal. Rules of Court, rule 8.104(b).)”
(Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 294.)
Time to Appeal Judgment
Recognizing that Pletcher is appealing from a post-
judgment order, not the judgment entered on December 11,
2017, we still consider it necessary to explain why any
appeal from the judgment itself was untimely. Unless a
statute or court rule5 provides otherwise, 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
or a filed-endorsed copy of the judgment, showing the date
either was served; [¶] (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 a filed-
endorsed copy of the judgment, accompanied by proof of
5 “Rules of Court have the force of law and are as
binding as procedural statutes as long as they are not
inconsistent with statutory or constitutional law.” (R.R. v.
Superior Court (2009) 180 Cal.App.4th 185, 205.)
5
service; or [¶] (C) 180 days after entry of judgment.” (Cal.
Rules of Court, rule 8.104(a)(1).)6
Filing and service of certain post-judgment motions
may extend the time to appeal. (Rule 8.108.) If a party
serves and files a valid motion to vacate the judgment within
the normal time to appeal from the judgment, the time to
appeal is extended until the earliest of (1) 30 days after the
court clerk mails, or a party serves, the order denying the
motion to vacate or a notice of entry thereof, (2) 90 days after
the first notice of intention to move—or motion—is filed, or
(3) 180 days after the entry of judgment. (Rule 8.108(c);
Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th
1101, 1108 (Starpoint).)
A. December 27, 2017 motion to vacate
It is undisputed that Pletcher filed a timely motion to
vacate on December 27, 2017. No order denying the motion
was served, so under rule 8.108(c), Pletcher had the earlier
of 90 days after filing his motion (March 27, 2018) or 180
days after entry of judgment to file an appeal from the
judgment. However, rule 8.108 can only extend the time to
appeal from a judgment, not shorten it; if a longer time
frame is available under rule 8.104(a)(1) than under rule
8.108, then the longer time frame under rule 8.104(a)(1)
governs. (See Matera v. McLeod (2006) 145 Cal.App.4th 44,
6 All further rule references are to the California Rules
of Court.
6
57 [applying former version of rule 8.108 to motion to vacate
under 473, subdivision (b)].) Therefore, the deadline for a
timely appeal of the judgment would be 180 days after
December 27, 2017, or June 11, 2018. (§ 12a [extending
deadlines falling on a holiday or weekend to the following
weekday]; rule 8.104(a)(1)(C) [180 days].)
B. October 18, 2018 recalendared motion to vacate
Pletcher’s recalendared motion to vacate, filed October
18, 2018, did not further extend the deadline to appeal the
judgment. If a party files several consecutive motions, only
those motions that are timely filed will extend a party’s time
to appeal. (Starpoint, supra, 201 Cal.App.4th at p. 1108,
citing Meier v. Heckel (1960) 183 Cal.App.2d 329, 331.) The
appellants in Starpoint filed an initial, timely motion to
vacate, but later filed a second motion, withdrawing and
superseding the first. The appellate court reasoned that
because the second motion was filed four days after the
deadline to appeal had passed, it was not a validly filed
motion and did not effectively extend the deadline to appeal.
(Starpoint, supra, 201 Cal.App.4th at pp. 1108–1109.)
Under section 663a, subdivision (a)(2), a party may file a
motion to vacate up to 180 days after entry of judgment,
when there has been no notice of entry of judgment. (§§ 12a
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[extending deadlines falling on a holiday or weekend to the
following weekday], 663a, subd. (a)(2) [180–day time limit].)7
Pletcher’s October 18, 2018 recalendared motion to
vacate was filed 311 days after the December 11, 2017 entry
of judgment, well past the outside limit of 180 days provided
in section 663a, subdivision (a)(2), and therefore untimely.
As explained in Starpoint, supra, 201 Cal.App.4th at pages
1108–1109, an untimely motion to vacate cannot extend the
time to appeal from the judgment. To the extent Pletcher
seeks to appeal the judgment, his appeal is untimely.
Time to Appeal Post-judgment Orders
An order denying a motion to vacate judgment is
separately appealable as a post-judgment order. (§ 904.1,
subd. (a)(2); Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127.)
When an order is appealable, it is subject to the same time
limitations governing an appeal from a judgment. (Rule
8.104(e).)
Pletcher argues the 180-day clock for a timely appeal
started running from the trial court’s February 26, 2019
order denying his October 18, 2018 recalendared motion to
vacate. We disagree, and instead conclude that the 180-day
clock started on February 26, 2018, when Pletcher’s timely
December 27, 2017 motion to vacate was denied by operation
of law.
7 Earlier deadlines apply if a party has been served
with notice of entry of judgment. (§ 663a, subd. (a)(2).)
8
A. December 27, 2018 motion to vacate denied by
operation of law
If a validly filed motion to vacate is not ruled upon by
the court within the statutory time frame, it is denied by
operation of law, and the trial court’s authority to rule on the
motion expires. (Garibotti v. Hinkle (2015) 243 Cal.App.4th
470, 476–480.) Before statutory amendments took effect on
January 1, 2019, the trial court had 60 days to determine a
motion to vacate.8 (Former § 663a, subd. (b); Stats. 2014, ch.
93, § 3.)
The trial court’s authority to rule on Pletcher’s
December 27, 2017 motion to vacate expired 60 days later,
on February 26, 2018, resulting in a denial by operation of
law. (§ 12a; Former § 663a, subd. (b); Stats. 2014, ch. 93,
§ 3.) Because there was no notice of entry of order, Pletcher
had 180 days to file an appeal from the denial of his motion
by operation of law, until August 27, 2018. (§ 12a; rule
8 Effective January 1, 2019, the statutory window was
expanded to 75 days. (Stats. 2018, ch. 317, § 2.) Under the
relevant former statutory language “the power of the court to
rule on a motion to set aside and vacate a judgment shall
expire . . . 60 days after filing of the first notice of intention
to move to set aside and vacate the judgment. If that motion
is not determined within the 60-day period, or within that
period, as extended, the effect shall be a denial of the motion
without further order of the court.” (Former § 663a, subd.
(b); Stats. 2014, ch. 93, § 3.)
9
8.104(a)(1)(C).) His notice of appeal, filed more than six
months later on March 13, 2019, was untimely.
Pletcher argues that while his December 27, 2017
motion may have been denied by operation of law, the
deadline to appeal was not triggered because there was
never any entry of order or notice of entry of order. We are
not persuaded. The plain language of rule 8.104(a)(1)(C)
contains no reference to a requirement of notice to trigger
commencement of the period to appeal, in contrast to the
express notice requirements in subdivisions (a)(1)(A) and
(a)(1)(B). The logical conclusion of Pletcher’s proposed
interpretation would be that whenever a post-judgment
order lacked a notice of entry of order, a party would have an
unlimited time to appeal such an order.
B. October 18, 2018 motion to vacate was invalid
Pletcher argues that his March 13, 2019 notice of
appeal timely appealed Judge Broadbelt’s February 26, 2019
order denying his October 18, 2018 recalendared motion to
vacate the judgment. No appeal lies, because the
recalendared motion was untimely.
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 must file and serve a notice
of intention to move to vacate, designating the grounds,
within the statutory time limits. (§ 663a, subd. (a).) As
discussed earlier, the outside deadline for filing a motion to
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vacate judgment is 180 days after entry of judgment.
(§ 663a, subd. (a)(2); see also Airs Aromatics, LLC v. CBL
Data Recovery Technologies, Inc. (2020) 50 Cal.App.5th 1009,
1013, fn. 6 [trial court lacks jurisdiction to rule on untimely
section 663 motion to vacate]; Conservatorship of Townsend
(2014) 231 Cal.App.4th 691, 702 (Townsend) [“time period to
file a motion to vacate is jurisdictional”].) The time period to
file a motion to vacate is jurisdictional and cannot be
extended due to mistake, inadvertence, surprise, or
excusable neglect. (Townsend, supra, at p. 702; Advanced
Building Maintenance v. State Comp. Ins. Fund (1996) 49
Cal.App.4th 1388, 1392–1395.)
Because the trial court entered judgment on December
11, 2017, any motion to vacate filed after June 11, 2018 was
untimely. Pletcher’s October 18, 2018 recalendared motion
to vacate was untimely and invalid, and the trial court
lacked jurisdiction to rule on the recalendared motion.
(Townsend, supra, 231 Cal.App.4th at pp. 702, 705–706.)
Even if we were to assume that the recalendared
motion was somehow timely and valid—which we do not—
that motion was denied by operation of law 60 days after
filing, on December 17, 2018, and the trial court lacked
authority to rule on the motion after that date. (Garibotti,
supra, 243 Cal.App.4th at pp. 477–480.) Pletcher provides
no authority for his position that the court’s February 26,
2019 order somehow resets the clock, allowing him to appeal
what would otherwise be a void order. (See, e.g., Maroney v
Iacobsohn (2015) 237 Cal.App.4th 473, 485–486 [after a
11
motion for new trial is denied by operation of law, neither
trial court nor appellate court can revive the motion];
Laraway v. Pasadena Unified School Dist. (2002) 98
Cal.App.4th 579, 583 [once a judgment or appealable order
has been entered, the time to appeal cannot be restarted or
extended by the filing of a subsequent judgment or
appealable order making the same decision].)
In sum, Pletcher’s appeal is untimely, regardless of
whether we measure the timeliness of his appeal from the
judgment, or from the denial by operation of law of his
December 27, 2017 motion to vacate. Accordingly, we
dismiss Pletcher’s untimely appeal.
DISPOSITION
The appeal is dismissed. Because respondent Jessica
Prince did not file a brief or otherwise make an appearance,
no costs are awarded on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)
MOOR, J.
We concur:
RUBIN, P. J. BAKER, J.
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