Dilday v. Jones CA5

Filed 1/12/22 Dilday v. Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

RUSSELL DILDAY et al.,
F077682
Plaintiffs, Cross-defendants and
Respondents, (Super. Ct. No. PCU261738)

v.
OPINION
MIKAL JONES et al.,

Defendants, Cross-complainants and
Appellants;

PLEASANT VALLEY CANAL COMPANY,

Cross-defendant and Respondent.

THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Glade F.
Roper, Judge.
Romaine Lokhandwala Law Group, William A. Romaine and Zishan
Lokhandwala for Defendants, Cross-complainants and Appellants.

* Before Franson, Acting P. J., Peña, J. and De Santos, J.
 Krase, Bailey, Reed-Krase and Alexander Reed-Krase; Klein, DeNatale, Goldner,
Cooper, Rosenlieb & Kimball and Catherine E. Bennett for Plaintiffs, Cross-defendants,
and Respondents Russell Dilday, Tanna Dilday, and Mary Ann Ferrero.
Kahn, Soares & Conway, Jennifer E. Dunne and David W. Kahn for Cross-
defendant and Respondent Pleasant Valley Canal Company.
-ooOoo-
This litigation arises from a dispute over an easement for a water pipe running
from a canal located on defendants’ property to plaintiffs’ property. After a court trial,
plaintiffs were awarded a prescriptive easement, actual damages, and punitive damages.
The threshold issue, which is dispositive, is whether defendants’ appeal is timely. The
notice of appeal was filed 79 days after plaintiffs served a notice of entry of judgment,
not within the 60 days specified by California Rules of Court, rule 8.104(a)(1)(B).1
Defendants filed a motion to reconsider after the final judgment, but such a motion does
not extend the time to appeal. (Rule 8.108(e); see Ramon v. Aerospace Corp. (1996) 50
Cal.App.4th 1233, 1236 (Ramon) [motion to reconsider filed after the judgment was
entered does not extend the time to appeal from the judgment].) Also, our review of the
record showed the final judgment remained in effect from the time it was filed. The
judgment was never revoked, vacated or modified, even though the trial court purportedly
granted the motion to reconsider and heard argument on defendants’ objections to the
tentative statement of decision.
Therefore, the appeal was filed late and must be dismissed. (Rule 8.104(b).)
FACTS
The plaintiffs in this action are Mary Ann Ferrero, Tanna Dilday, and Russell
Dilday. Tanna is Ferrero’s daughter and Tanna and Russell are married.

1 Subsequent references to a numbered “Rule” are to the California Rules of Court.

2.
 The defendants and cross-complainants are Mikal Alex Jones, his spouse Angela
Anderson, and Bi-Rite Auto Transport, Inc., a California corporation (Bi-Rite). The
corporate shares of Bi-Rite are owned by a family trust established by Jones’s
grandparents. At the time of trial, Jones was the trustee and sole beneficiary of the trust
and held all the corporate offices of Bi-Rite, except the office of corporate secretary held
by Anderson.
The cross-defendants are plaintiffs and Pleasant Valley Canal Company, a
California corporation (“Canal Company”). Canal Company’s predecessor was
organized in 1888. Canal Company is a mutual water company formed on December 19,
1924, with the issuance of 150 shares. Canal Company delivers water to its shareholders
using a canal or ditch that is eight miles long.
The facts defining the parties’ real estate and water rights are not material to our
decision that the appeal was filed late. Therefore, those rights and the events related to
the parties’ tort claims are not described in this opinion. (See Cal. Const., art. VI, § 14
[appellate decisions “shall be in writing with reasons stated”].)
PROCEEDINGS
In July 2015, shortly after an altercation between Jones and Russell Dilday,
plaintiffs filed this lawsuit. In October 2015, plaintiffs filed a first amended complaint
against defendants to establish a pipeline easement, to quiet title in a roadway easement,
and to recover actual and punitive damages.
The court trial began in October 2016 and, after continuances, the last witness
testified in May 2017. Closing arguments were presented in writing. In October 2017,
the trial court issued a tentative statement of decision. Defendants filed objections to the
tentative statement of decision and then filed a bankruptcy petition that stayed this
lawsuit. Plaintiffs obtained relief from the bankruptcy stay and proceedings in this
lawsuit resumed.

3.
 The hearing on defendants’ objections to the tentative statement of decision was
reset for February 21, 2018. On the morning of the hearing, defendants’ attorney was not
present when the matter was called and he had not notified the court or opposing counsel
that he would be late. The court called the matter, overruled all of defendants’
objections, adopted its tentative statement of decision as the statement of decision, and
issued formal judgment. Subsequently, defendants’ attorney arrived at the courtroom and
was informed of the court’s actions.
Final Judgment
On February 26, 2018, the “FINAL JUDGMENT” was filed. It granted plaintiffs
a ten-foot-wide prescriptive pipeline easement centered along the buried water pipe that
ran from the edge of the Dildays’ parcel across the property owned by Bi-Rite to a weir
connected to the canal. The judgment also awarded Ferrero actual damages of
$19,513.37 and punitive damages of $97,576.85 against all defendants for interfering
with the pipeline; declared plaintiffs had a roadway easement to access the Dilday
property and quieted their title to that easement against any adverse claims by defendants;
awarded plaintiffs $50,000 in punitive damages against Jones and Bi-Rite for willful and
malicious injury caused by their interference with the roadway; denied plaintiffs’ claim of
damages for loss of a sale of the Dilday property; and awarded actual and punitive
damages against Jones for intentional infliction of emotional distress. The judgment
rejected defendants’ affirmative defenses, denied their causes of action against Canal
Company for trespass and waste, denied Jones’ claims against Russell Dilday for assault
and battery, and denied defendants’ cause of action against Russell Dilday and Ferrero
for trespass. The judgment denied all requests for attorney fees.
On March 6, 2018, plaintiffs’ attorney served and filed a notice of entry of
judgment that attached a file-stamped copy of the final judgment filed on February 26,
2018. The act of serving and filing the notice of entry of judgment triggered a 60-day

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period to appeal from the judgment. (See Rule 8.104(a)(1)(B).) The 60-day period
expired on Monday, May 7, 2018.
Motion after Judgment
On March 8, 2018, Defendants filed a “MOTION TO RECONSIDER/RELIEF
FROM DEFAULT.” The stated grounds for the motion were “that due to inadvertence of
counsel, the judgment was entered against these moving defendants in the absence of
argument [on defendants’ objections to the tentative statement of decision] and further,
that new or different facts would have been presented at the hearing on those objections
to compel a result different from the judgment hereinabove entered.” The attorney’s
declaration supporting the motion stated that heavy traffic had caused him to be about 10
minutes late for the hearing scheduled at 8:30 a.m. on February 21, 2018, and that when
he arrived in the courtroom he was advised the case had been called twice and the court,
not having been notified of counsel’s delay, concluded the hearing and adopted the
tentative statement of decision. The declaration also described newly discovered
evidence in the form of a “Notice of Consent to Use of Land” relating to the real property
on which the canal was located and stated the notice had been recorded by the Office of
the Recorder of Tulare County on October 18, 2010. The declaration asserted a proof of
service showed the notice had been served on plaintiffs.
On April 12, 2018, the motion was argued to the trial court. On April 23, 2018,
the court filed a “Ruling on Defendants’ Motion for Relief from Default and for
Reconsideration,” which stated:

“It would be manifestly unjust to deprive Defendants of the right to argue
their objections simply because their attorney got inadvertently caught in
traffic. The Court has the authority under Code of Civil Procedure §473(b)
to grant relief from an order or judgment ‘upon any terms as may be just.’
Accordingly, the Court will hold a hearing May 8, 2018 to allow
Defendants to argue their objections to the Proposed Tentative Decision
and Motion for Reconsideration.”

5.
 The ruling also directed defendants’ attorney to pay $750 each to the attorney for
plaintiffs and the attorney for Canal Company who had attended the February 21, 2018
hearing and stated that if the amount was not paid three days before the scheduled
hearing, the motions for relief and reconsideration would be denied and the hearing taken
off calendar.
On May 8, 2018, the hearing was held as scheduled. On May 10, 2018, the trial
court filed a “Ruling on Defendants’ Objections to Proposed Tentative Decision and
Statement of Decision and Motion to Reconsider.” The court’s ruling addressed 15
objections raised by defendants, denied a proposed modification on the ground there was
not credible evidence that Jones acted in self-defense during the July 14, 2015 altercation
with Russell Dilday, and analyzed the “Notice of Consent to Use of Land” presented as
the basis for the motion to reconsider. The court determined it would be procedurally
unfair to reopen the evidence when defendants were aware of the notice of consent and
had chosen not to present it as evidence during the trial. The court also gave three
reasons why the notice of consent, if admitted, would not change the outcome. As a
result, the court stated: “The request to modify, amend or revoke the judgment and
Proposed Statement of Decision or reopen the trial because of the discovery of the
Consent to Land Use is denied.” The ruling’s concluding paragraph stated:

“The Court has modified that Proposed Statement of Decision as set forth
above. None of the modifications change or alter the Judgment. The Court
has issued its final Statement of Decision this date. The Final Judgment
issued February 26, 2018 will remain the judgment of the Court.” (Italics
added.)
As described in the foregoing paragraph, the trial court also filed a 33-page
“Statement of Decision After Court Trial” on the same day as its ruling on defendants’
motion.

6.
Notice of Appeal
On May 24, 2018—that is, 79 days after the notice of entry of judgment was
served and filed—defendants filed a notice of appeal stating they appealed “from the
final judgment entered in said action on May 10, 2018 and all orders, rulings, and
decisions made by the court prior to the entry of said judgment.”
In June 2019, defendants notified this court that Jones had filed a bankruptcy
petition and asserted the automatic bankruptcy stay applied to this appeal. In July 2019,
this court issued an order staying the appeal as to all parties and requiring periodic status
reports. In October 2019, this court vacated its stay and set a date for filing the
appellants’ opening brief.
DISCUSSION
I. LEGAL PRINCIPLES DEFINING TIMELINESS OF AN APPEAL
The appeal process is initiated by filing a notice of appeal in the superior court.
(Rule 8.100(a)(1); Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The
Rutter Group 2021) ¶ 3:1, p. 3–1.) Pursuant to Rule 8.104, the notice of appeal must be
filed before the earliest of (1) 60 days after the superior court clerk serves a notice of
entry of judgment or a file-stamped copy of the judgment; (2) 60 days after a party files
and serves a notice of entry of judgment or a file-stamped copy of the judgment on the
person filing the notice of appeal; or (3) 180 days after entry of judgment. (Rule
8.104(a)(1)(A)–(C).) These deadlines are subject to statutory exceptions and the
extensions of time set forth in Rule 8.108. (Rule 8.104(a)(1).) Under Rule 8.108,
extensions result from valid motions (1) for new trial, (2) to vacate the judgment, (3) for
judgment notwithstanding the verdict, and (4) to reconsider an appealable order. (Rule
8.108(b)–(e); see Code Civ. Proc., §§ 629 [judgment notwithstanding verdict], 657 [new
trial], 663 [vacate], 1008 [reconsider].)

7.
 “The time for appealing a judgment is jurisdictional; once the deadline expires, the
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.) Rule
8.104(b) states that “[i]f a notice of appeal is filed late, the reviewing court must dismiss
the appeal.” Absent a public emergency, superior courts and appellate courts have no
authority to grant extensions of time to file a notice of appeal. (Rule 8.104(b); see Rule
8.66.) We noted the unforgiving nature of these principles in Baker v. Castaldi (2015)
235 Cal.App.4th 218, stating the deadlines for filing a notice of appeal “are jurisdictional
and will bar an appeal even where the trial court has arguably led a litigant astray.” (Id.
at p. 224, fn. 21.)2
Untimely appeals do not confer jurisdiction on the appellate court and, as a result,
appellate courts have a duty to “raise the point sua sponte.” (Drum v. Superior Court
(2006) 139 Cal.App.4th 845, 849.) The California Rules of Court impose requirements
on appellants that assist the reviewing court in fulfilling their sua sponte duty to
determine whether an appeal was filed late. First, appellants must file a completed civil
case information statement on mandatory Judicial Council form APP-004 and attach “a
copy of the judgment … that shows the date it was entered.” (Rule 8.100(g)(1).) Second,
the appellant’s opening brief, which must “[s]tate that the judgment appealed from is
final.” (Rule 8.204(a)(2)(B).)
II. THE APPEAL WAS FILED LATE
A. Contentions of the Parties
Part I.B. of Judicial Counsel form APP-004 addresses the timeliness of the appeal
by asking appellant to provide the date of entry of the judgment appealed from, the date a

2 The same principles apply in federal court. The United States Supreme Court has
made it “clear that the timely filing of a notice of appeal in a civil case is a jurisdictional
requirement,” and it “has no authority to create equitable exceptions to jurisdictional
requirements.” (Bowles v. Russell (2007) 551 U.S. 205, 214.)

8.
notice of entry of judgment was served, and whether “a motion for new trial, for
judgment notwithstanding the verdict, for reconsideration, or to vacate the judgment
[was] made and denied.” Defendants’ civil case information statement asserted the date
of entry of the judgment appealed from was “2/26/2018” and answered “yes” to the
question about motions. It also stated the motion was filed on March 8, 2018, the motion
was denied on May 10, 2018, and the denial was served on May 10, 2018.
Defendants addressed the timeliness of their appeal in their opening brief’s
statement of appealability, asserting:

“The judgment entered pursuant to the Superior Court’s order granting
judgment in favor of Plaintiffs on February 26, 2018 set aside by its order
of April 23, 2018 and reinstated by its order of May 10, 2018, is an
appealable final judgment in accordance with the provisions of Code of
Civil Procedure sections 904.1 and 906.”
Under this view of procedural events, defendants imply that the time for filing an
appeal was reset on May 10, 2018, when the judgment was, in their view, “reinstated” by
the court’s order.
The question of the timeliness of defendants’ appeal was raised by plaintiffs in
their respondents’ brief. Plaintiffs contend defendants’ notice of appeal was filed late
and, therefore, this court lacks jurisdiction and must dismiss the appeal. (Rule 8.104(b)
[“If a notice of appeal is filed late, the reviewing court must dismiss the appeal”].)
Defendants’ reply brief does not address plaintiffs’ arguments about the
untimeliness of the appeal. As a result, that brief did not address any of the case law
discussing the legal effect of a motion to reconsider filed after the judgment is entered.
Also, their reply brief did not address the legal principles applicable to an appellate
court’s interpretation of a trial court’s orders and judgment.
Despite the lack of argument and citation to authority in the appellants’ reply brief,
we interpret the contents of defendants’ civil case information statement and their
opening brief as presenting two grounds for concluding the appeal was timely filed.

9.
First, the February 26, 2018 judgment was vacated and subsequently reinstated and, as a
result, the time period for filing the appeal ran from the date of reinstatement. Second,
the motion filed on March 10, 2018, extended the time for filing an appeal from the
judgment filed on February 26, 2018. We reject both grounds and conclude the appeal
was filed late.
B. The Final Judgment Was Not Vacated and Reinstated
Defendants’ contention that the February 26, 2018 judgment was vacated and
subsequently reinstated requires us to interpret the orders of the trial court filed after the
judgment was filed. It is well established that when an appellate court must determine
the meaning of an order or judgment, it applies the same rules used in ascertaining the
meaning of any other writing. (Mendly v. County of Los Angeles (1994) 23 Cal.App.4th
1193, 1205; Verner v. Verner (1978) 77 Cal.App.3d 718, 724.) Interpreting the orders
presents a question of law subject to our independent evaluation. (Mendly, supra, at p.
1205.)
Our interpretive process begins by addressing whether the trial court’s
postjudgment orders are ambiguous on the question of their legal effect on the February
26, 2018 judgment. (See Estate of Careaga (1964) 61 Cal.2d 471, 475–476 [generally,
where language is clear and explicit, it governs the interpretation of the writing]; Verner,
supra, 77 Cal.App.3d at p. 724 [where a judgment is ambiguous, courts may examine the
entire record to determine its meaning].)
As described below, our review of the language in the orders filed on April 23,
2018, and May 10, 2018, and the surrounding circumstances leads us to conclude the
language in those orders is not ambiguous. Those orders are not reasonably susceptible
to being interpreted to mean the trial court revoked, vacated or suspended the February
26, 2018 judgment.

10.
 The April 23, 2018 order stated (1) it would be unjust to deprive defendants of the
right to argue their objections to the tentative statement of decision; (2) the trial court had
the authority under Code of Civil Procedure section 473, subdivision (b) to grant relief
from an order or judgment upon any terms as might be just; and (3) the court would hold
a hearing on May 8, 2018, to allow defendants to argue their objections. Thus, the only
relief granted was to allow defendants to argue their objections. The order referred to the
fact that the court had “issued formal judgment,” but did not state the judgment was
impacted in any way by the grant of a hearing. Thus, the order cannot be interpreted to
mean the judgment had been revoked, vacated or suspended.
The May 10, 2018 order plainly states that defendants’ “request to modify, amend
or revoke the judgment … is denied.” This language necessarily implies that the
judgment was in effect when the order was filed. This implication was confirmed by the
next and final paragraph of the May 20, 2018 order, which states none of the
modifications to the statement of decision “change or alter the Judgment” and “[t]he
Final Judgment issued February 26, 2018 will remain the judgment of the Court.” The
reference to the absence of changes or alterations to the judgment and the words “will
remain the judgment” plainly signify that the judgment continued in effect since it was
filed on February 26, 2018, and was not modified or changed based on the arguments
presented at the May 8, 2018 hearing.3
To summarize, the text of the April 23, 2018 order and May 10, 2018 order
unambiguously establishes that the final judgment filed on February 26, 2018, was not

3 If the judgment had been modified and if the modification had been substantial,
the appeal period would have been restarted on the date the modified judgment was filed.
(See Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 765 [substantial modification
test determines whether amendment to judgment restarts the period for filing a notice of
appeal]; CC–California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th
1042, 1048 [substantial modification to a judgment starts a new appeal period that runs
from the amended judgment].) However, there were no modifications in this case,
substantial or otherwise.

11.
revoked, vacated or suspended and, therefore, that it remained in effect from the date it
was filed. Consequently, we reject the argument that defendants’ appeal was timely
because the final judgment had been revoked and was reinstated by the May 10, 2018
order.
C. Defendants’ Motion Did Not Extend the Appeal Period
Next, we consider whether the “MOTION TO RECONSIDER/RELIEF FROM
DEFAULT” that defendants filed on March 8, 2018, extended the time to appeal. Rule
8.108 identifies certain motions that extend the time to appeal. Motions for relief from
default are not mentioned, but motions to reconsider are addressed:

“If any party serves and files a valid motion to reconsider an appealable
order under Code of Civil Procedure section 1008, subdivision (a), the time
to appeal from that order is extended for all parties until the earliest of: [¶]
(1) 30 days after the superior court clerk or a party serves an order denying
the motion or a notice of entry of that order; [¶] (2) 90 days after the first
motion to reconsider is filed; or [¶] (3) 180 days after entry of the
appealable order.” (Rule 8.108(e), italics added.)
The text plainly states that the motion to reconsider must relate to “an appealable
order.” (Rule 8.108(e).) Based on this text and existing case law, one practice guide
states: “A purported motion for ‘reconsideration’ of a judgment will not extend to time
for appeal from the judgment.” (Eisenberg, Cal. Practice Guide: Civil Appeals and
Writs, supra, ¶3:94.7, p. 3–46.) As support, the practice guide cited several cases,
including Passavanti v. Williams (1990) 225 Cal.App.3d 1602 (Passavanti), which states:

“A court may reconsider its order granting or denying a motion and may
even reconsider or alter its judgment so long as judgment has not yet been
entered. Once judgment has been entered, however, the court may not
reconsider it and loses its unrestricted power to change the judgment. It
may correct judicial error only through certain limited procedures such as
motions for new trial and motions to vacate the judgment.” (Id. at p. 1606,
italics added; see Ramon, supra, 50 Cal.App.4th at p. 1236 [motion to
reconsider filed after the judgment was entered does not extend the time to
appeal from the judgment].)

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 In view of the trial court’s April 23, 2018 order granted a hearing on defendants’
motion, we note that the practice guide addressed the effect of granting a hearing on a
motion to reconsider:

“The trial court’s mere grant of a hearing on a motion to reconsider an
appealable order does not have the effect of vacating the order so as to
cancel the running of the period within which to appeal. Thus, in such a
case, the time to appeal the order begins to run from the date of its entry.”
(Eisenberg, Cal. Practice Guide: Civil Appeals and Writs, supra, ¶3:94.9, p.
3–47.)
Based on the text of Rule 8.108(e) that refers to a valid motion to reconsider an
appealable order and the principles set forth in Ramon and Passavanti, we conclude that
defendants’ “MOTION TO RECONSIDER/RELIEF FROM DEFAULT” did not extend
the time to appeal from the February 26, 2018 final judgment. Therefore, defendants’
notice of appeal filed 79 days after the notice of entry of judgment was served and filed
was late and we lack the jurisdiction to consider the merits of the appeal.
DISPOSITION
The appeal is dismissed. Plaintiffs and Canal Company shall recover their costs
on appeal.

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