Filed 7/14/21 Brookshire v. Albers Yze CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CL BROOKSHIRE, B306001
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. BC699276)
v.
ALBERS YZE LLC et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, William F. Fahey, Judge. Dismissed.
Natalie Panossian-Bassler for Plaintiff and Appellant.
Maral I. Gasparian for Defendants and Respondents.
__________________________
INTRODUCTION
Plaintiff CL Brookshire appeals from his third motion to
vacate a judgment, brought a year and a half after entry of that
judgment. We dismiss the appeal as untimely pursuant to
California Rules of Court rules 8.104 and 8.108.1
FACTS AND PROCEDURAL BACKGROUND
Plaintiff has rented an apartment from defendant Albers
YZE LLC since December 2013. On March 29, 2018, plaintiff,
representing himself, filed a complaint against defendant,
alleging claims for breach of contract, breach of warranty of
habitability, violation of rent stabilization ordinances, and other
causes of action related to his tenancy. On May 23, 2018,
defendant demurred to two of the eight causes of action and
moved to strike portions of the complaint.
On June 18, 2018, plaintiff filed a peremptory challenge to
the assigned judge. (Code. Civ. Proc., § 170.6.)2 Two days later
the court struck the peremptory challenge as untimely. Plaintiff
did not seek writ review under section 170.3, subdivision (d)).
On June 22, 2018, defendant filed two notices of plaintiff’s
non-opposition, attesting to plaintiff’s failure to respond to
defendant’s demurrer and motion to strike.3 On June 27, 2018,
1
All further undesignated rule references are to the
California Rules of Court.
2
All further undesignated statutory references are to the
Code of Civil Procedure.
3 The parties dispute whether plaintiff actually did file an
opposition to the demurrer and motion to strike. A document
entitled “Opposition to Defendant’s Demurrer and Motion to
Strike Parts of the Complaint” is in the record with a file stamp
of June 11, 2018. Yet in an email from plaintiff to defendant’s
2
the trial court sustained the demurrer without leave to amend.
Even though the demurrer had been directed to only two of the
eight causes of action, the trial court dismissed the entire case
with prejudice. On June 29, 2018, the clerk served the parties
with a copy of the court’s minute order.4
The same day, plaintiff filed a “Challenge for Cause
According to § 170.1(a)(6)(A)(iii).” Later that day, the court
struck the section 170.1 challenge because plaintiff had failed to
file a proper declaration or verification, nor had he alleged valid
grounds for disqualification. Plaintiff did not seek writ review.
On July 11, 2018, defendant filed and served notice of entry
of judgment.
1. Motion for Reconsideration
On July 12, 2018, the day after notice of entry of judgment
was field and served, plaintiff filed a “Motion for Reconsideration
on Judgment on Demurrer and Strike June 27, 2018.” He argued
there was a clerical error and that he had in fact filed an
opposition to the demurrer and motion to strike on June 11, 2018.
Defendant also argued he filed a timely peremptory challenge on
April 20, 2018, but it did not appear “in the system.”5
On August 29, 2018, the court struck plaintiff’s motion for
reconsideration pursuant to sections 128.7, subdivision (a), and
counsel dated 10 days later (June 21, 2018), plaintiff wrote, “My
reasons for not responding to your moving papers is due to the
filed 170.6 in [sic] which will change the court date and allow me
to respond . . . .” For reasons that will be apparent, we find it
unnecessary to address the issue.
4 The minute order states in part, “Defendant’s demurrer is
well-taken and Plaintiff has failed to file an opposition.”
5 As we have observed, plaintiff also filed a peremptory
challenge on June 18, 2018.
3
2015.5, because plaintiff had failed to sign the motion and
declaration after having been advised of the defects. On
September 6, 2018, defendant served a notice of ruling striking
plaintiff’s motion for reconsideration. A copy of the court’s
minute order was attached.
2. First Motion to Vacate
Four months later, plaintiff filed a “Motion to Void and
Vacate any and All Order[s] or Judgments to Dismiss Made
According to CCP 473(d) and CCP 170.6 Filed on April 20, 2018,”
again arguing clerical errors with his filings and that his
preemptory challenge should have been granted. On March 5,
2019 the court denied plaintiff’s motion. The court stated:
“plaintiff’s remedy is not to make another motion for
reconsideration. Instead, he should have timely sought writ
review in the Court of Appeal.” On March 14, 2019, plaintiff filed
a Notice of Appeal, checking two boxes: “Judgment of dismissal
after an order sustaining demurrer” and “Other . . . CCP 473(d).”
The case was assigned Court of Appeal case No. B296420. On
December 16, 2019, defendant filed in this court a “Request for
Dismissal of Appeal (Civil Case).” On December 27, 2019, we
dismissed the appeal and issued the remittitur.
3. Plaintiff Declared a Vexatious Litigant
Ignoring our chronological order of events, we observe that,
on April 15, 2019, after the Notice of Appeal had been filed but
before it had been dismissed, the trial court granted defendant’s
motion to declare plaintiff a vexatious litigant. The trial court
found: “Plaintiff has had more than five state and federal cases
adversely determined against him in the last seven years and has
an extensive pattern of litigation including motions for
reconsideration, motions to vacate the judgment, writs, and
appeals. The Court thus finds Plaintiff CL Brookshire is a
4
vexatious litigant within the meaning of Code of Civil Procedure
section 391 [subdivision] (b)(1).”6
4. Second Motion to Vacate
Six months later, on October 15, 2019, plaintiff filed a
second “Motion to Void and Vacate any and All Orders or
Judgments to Dismiss Made According to CCP 473(d),” repeating
arguments previously made. On October 30, 2019, defendant
filed its opposition. On November 5, 2019, plaintiff filed a reply.
The record does not contain a ruling on this second motion.
5. Third Motion to Vacate
On December 12, 2019, plaintiff filed still a third “Motion to
Vacate the June 29, 2018 Ruling And Order To Dismiss With
Prejudice Per CCP 473(d).” Defendant filed its opposition. The
court heard the motion on January 14, 2020, and denied it. On
March 16, 2020, the court issued its “Statement of Decision,”
which stated in part that plaintiff’s motion “repeats his earlier
rejected motions to set aside and/or vacate the Court’s June 29,
2018 ruling.” On March 24, 2020, defendant served plaintiff with
the order and statement of decision.
On May 4, 2020, plaintiff filed a notice of appeal, seeking to
appeal from the “Judgment of dismissal after an order sustaining
demurrer,” and “Other, CCP 473(d).”7
6 Several months after the trial court declared plaintiff a
vexatious litigant, he retained counsel to pursue posttrial
proceedings. Plaintiff is represented by counsel in this appeal.
7 Plaintiff checked the same boxes on the May 4, 2020,
notice of appeal that he had ticked on his March 14, 2019 notice
of appeal in case No. B296420.
5
DISCUSSION
Plaintiff makes several, often overlapping arguments on
appeal: (1) he has standing; (2) a statement of decision is legally
and factually deficient; (3) the courtroom clerk failed to discharge
its duties; (4) the court did not provide a reporter and failed to
hold a hearing on the demurrer; (5) plaintiff should have been
allowed leave to amend following the order sustaining the
demurrer; and (6) the court abused its discretion by not vacating
the judgment.
But it is an argument offered by defendant that is
dispositive of this appeal: the appeal is “untimely and improper.”
Plaintiff responds that his notice of appeal was filed within
60 days of the proof of service of the court’s signed statement of
decision following his third motion to vacate and, thus, was
timely under California Rules of Court, rule 8.104 and 8.108.
1. The Governing California Rules of Courts
The rules governing the timeliness of an appeal are
complex. The consequences for the untimely filing of a notice of
appeal are severe and unbending: the appellate court has no
jurisdiction to excuse an untimely appeal. “ ‘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. In the
absence of statutory authorization, neither the trial nor appellate
courts may extend or shorten the time for appeal, even to relieve
against mistake, inadvertence, accident, or misfortune.’ ”
(Maynard v. Brandon (2005) 36 Cal.4th 364, 372–373.)
a. Rule 8.104
Two court rules inform our analysis of whether plaintiff’s
appeal is timely. The first, rule 8.104, subdivision (a)(1), provides
that “a notice of appeal must be filed on or before the earliest of:
6
[¶ ] (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 service; or [¶] (C) 180
days after entry of judgment.” (Italics added.) Here, defendant
served the “Notice of Entry of Judgment” on July 11, 2018.
Service by a party triggers the 60-day appeal period under rule
8.104, subdivision (a)(1)(B). The notice of appeal in the present
appeal was filed on May 4, 2020, nearly two years after service of
the notice of entry of judgment and, obviously, well beyond the
60-day limit under rule 8.104, subdivision (a)(1)(B). The appeal
is untimely if we use that yardstick. Plaintiff does not contend
otherwise.
b. Rule 8.108
Instead, plaintiff argues that we should measure the
timeliness of the appeal by the extended time periods set out in
rule 8.108. That rule extends the prescribed period for filing a
notice of appeal when a party has filed certain post judgment
motions. Two of those motions are implicated here—a motion for
reconsideration and a motion to vacate the judgment. Because
plaintiff filed both a motion for reconsideration and three motions
to vacate, we briefly describe the rule for each.
Where there is a “valid motion to reconsider,” “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.)
7
When a party serves a “valid” motion to vacate, “the time to
appeal from the judgment 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 notice of intention to
move--or motion--is filed; or [¶] (3) 180 days after entry of
judgment.” (Rule 8.108(c); italics added.)
2. Plaintiff Failed to Timely Appeal
On July 12, 2018, plaintiff brought a motion for
reconsideration pursuant to section 1008, subdivision (a). On
August 29, 2018, the court struck plaintiff’s motion because it
was unsigned. The court’s decision to strike the motion for
reconsideration was a ruling that the motion was not valid under
section 8.108, subdivision (e). The motion did not extend the time
to file a notice of appeal.
The next postjudgment event occurred on January 18,
2019: plaintiff filed his first motion to vacate pursuant to section
473, subdivision (d). On March 5, 2019 the trial court denied
plaintiff’s motion. The clerk served the court’s order on plaintiff
the same day. Under rule 8.108, subdivision (c)(1), plaintiff had
30 days to file his notice of appeal. Plaintiff did file a timely
notice of appeal on March 14, 2019. But, he dismissed that
appeal on December 16, 2019.
Plaintiff then filed two more motions to vacate, one on
October 15, 2019, and another on December 12, 2019.8 The third
motion was heard on January 14, 2020. The court issued its
statement of decision in March 16, 2020, and the clerk served it
on plaintiff that same day. On May 4, 2020, plaintiff filed his
notice of appeal from both the original “judgment of dismissal”
8 As we have observed, the record does not include a ruling
on the second motion to vacate.
8
and from the “CCP 473(d)” order, denying his third motion to
vacate.
The May 4, 2020 notice of appeal did not provide this court
with jurisdiction to review any of the rulings the trial court made
in this case. As to the underlying judgment, the initial 60 days
expired on September 10, 2018. Even if the first motion to vacate
extended the time to file the appeal, plaintiff dismissed the
ensuing appeal. At the time of the dismissal, the appeal period
had long expired. Plaintiff’s suggestion that his subsequent,
repetitive filings of motions to vacate based on the same grounds
somehow revived his expired time for appeal does not come with
legal support. And for good reason – if a new appeal period were
to commence after the denial of each successive motion to vacate
no appeal would be untimely. “The rule allowing an aggrieved
party to challenge an order void on its face at any time does not
mean a party may perpetually move to vacate the order until he
or she receives a favorable ruling.” (Pittman v. Beck Park
Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021, fn. 13.)
“ ‘Somewhere along the line, litigation must cease.’ ” (Gillies v.
JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) The
first motion to vacate (filed in January 2019) was the only motion
that extended plaintiff’s time to file a notice of appeal and the
timeliness of his appeal evaporated with plaintiff’s dismissal of
that appeal.
Even if we were to measure the time to appeal from the
denial of the third motion to vacate, plaintiff fares no better. As
relevant here, rule 8.108, subdivision (c)(1) provides that an
appeal following the denial of a motion to vacate must be filed:
“(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.” The
clerk served plaintiff with the order denying plaintiff’s third
motion on March 16, 2020. Plaintiff filed the notice of appeal on
9
May 4, 2020 – 49 days after notice of entry of judgment. It was
too late.
DISPOSITION
The appeal is dismissed. Defendant Albers YZE LLC is
awarded costs on appeal.
RUBIN, P.J.
WE CONCUR:
MOOR, J.
KIM, J.
10