Harper v. Gilmore-Island CA1/2 ( 2015 )

Filed 3/30/15 Harper v. Gilmore-Island CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION TWO
GREGORY HARPER,
Defendant and Appellant,
A140900
v.
AVERINE GILMORE-ISLAND, (Alameda County
Super. Ct. No. RF 12655394)
Plaintiff and Respondent.
Gregory Harper attempts to appeal from a protective order against him in favor of
Averine Gilmore-Island, which order was entered January 25, 2013. Harper’s appeal was
filed February 4, 2014. Gilmore-Island’s respondent’s brief did not argue that the appeal
was untimely, and so on our own motion we asked Harper to address the issue in a
supplemental letter brief. We have reviewed that brief and conclude that the appeal is
untimely by any measure and must be dismissed.
A timely appeal is a prerequisite to the court’s jurisdiction. Because it is, an
untimely appeal must be dismissed, which can be done on motion of respondent or the
court’s own motion. (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660,
666-667; Estate of Hanley (1943) 23 Cal.2d 120, 123 [“court has no discretion but must
dismiss the (untimely) appeal of its own motion even if no objection is made”].)
1
California Rules of Court, rule 8.104(a)1 deals with the “normal time” to file a
notice of appeal, which includes the earliest of 60 days after notice of entry of judgment
or 180 days after judgment. Rule 8.108 deals with “extending the time to appeal.”
The record here reflects that following a trial on January 25, 2013, the Honorable
Thomas Reardon granted the petition of Gilmore-Island for a protective order, protecting
her from Harper. The minute order for that date reflects the following:
“Cause called for trial: January 25, 2013.
“Petitioner Averine Gilmore-Island appearing in pro per with daughter-in-law
Maxine Johnson-Gilmore.
“Respondent Gregory Harper appearing represented by Dewaun Lackhart.
“Kashra Kamooneh, Shelima Simmons, Nora Burnette and Latasha Mitchell
appearing as witnesses for Petitioner.
“The parties and witnesses are sworn by the Court.
“Petition for Protective Order (Elder or Dependent Adult Abuse) Granted.
“The protected person’s name is Averine Gilmore-Island.
“The restrained person’s name is Gregory Harper, Male, Ht.: 5’10”, Weight: 260,
Race: Black, Hair Color: Black, Eye Color: Brown, Age: 49, Born:
“This Order, except for an award of lawyer’s fees, expires at midnight on
01/25/2018.
“There was a hearing on 01/25/2013 at 11:00, Dept. 4
“This is a Court Order.”
The order originally entered by the clerk’s office erroneously stated that it would
expire midnight January 25, 2013. That error was then corrected, and an amended order
was entered, reflecting that the expiration date was January 25, 2018. Harper admits that
the amended order was served on him on August 16, 2013.
On October 11, 2013, Harper moved for reconsideration and to vacate the order.
The motion was heard by Judge Reardon on December 6, and denied.
1
All subsequent rule references are to the California Rules of Court.
2
On February 4, 2014, Harper filed his notice of appeal from the protective order
filed January 13, 2013. That appeal was not timely.
As the leading treatise puts it, discussing rule 8.108: “c. Extension by motion to
vacate judgment [¶] (1) [3:77] Earliest of three potential deadlines: Service and filing
of a valid motion or notice of intention to move to vacate a judgment within the CRC
8.104(a) normal appeal deadline ([¶]3:10 ff.) extends the earliest time for any party to
appeal the judgment until the earliest of the following three dates: [¶] (a) [3.78] 30-day
deadline: Thirty days after the superior court clerk or a party serves an order denying the
motion or notice of entry of that order. [CRC 8.108(c)(1); Stein v. York (2010) 181
Cal.App.4th 320, 324-325; [citation]] [¶] Withdrawal of a motion to vacate is deemed the
equivalent of a denial of the motion, thus triggering the 30-day extension. [Citations.]
[¶] (b) [3.79] 90-day deadline: Or, 90 days after filing of the first motion or notice of
intention to move to vacate the judgment. [CRC 8.108(c)(2); [citations] [¶] (c) [3.80]
180-day deadline: Or, 180 days after entry of judgment (the outside time limit,
[¶] 3.62). [CRC 8.108 (c)(3)].” (Eisenberg et al., Cal. Practice Guide: Civil Appeals &
Writs (The Rutter Group 2014) §§ 3.77-3.80, pp. 3-38-3-29.)
Harper’s supplemental letter brief argues that the appeal is timely, arguing as
follows: “Here, the appeal of the court’s December 6, 2013, ruling was filed on
February 4, 2014, well within the 60 day time limit prescribed by Rule 8.104.) Such
argument is disingenuous, as it directly contradicts the statements in appellant’s brief and
the civil case information sheet Harper’s counsel signed on February 28, 2014, that the
date of the order appealed from was “1/25/13.” The argument is also wrong, as it ignores
rule 8.108, and also the law that an order denying reconsideration is not appealable, as we
ourselves have held. (Crotty v. Trader (1996) 50 Cal.App.4th 765, 771.)
The appeal is dismissed.
3
_________________________
Richman, J., Acting P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
4