Nguyen v. Young CA1/1 ( 2013 )

Filed 6/27/13 Nguyen v. Young CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
TRANG TU NGUYEN,
Plaintiff and Respondent,
A135369
v.
WING YOUNG, (Marin County
Super. Ct. No. CV042642)
Defendant and Appellant.
Defendant Wing Young appeals from a judgment entered against him on the basis
of an arbitration award. Because the notice of appeal was not filed in a timely manner,
we dismiss his appeal.
I. BACKGROUND
On June 15, 2004, Trang Tu Nguyen filed a complaint against Capacon Corp.
(Capacon), LH GAO Construction, and Young, the owner of Capacon. The complaint
alleged causes of action for breach of contract and negligence arising from the
construction of a single-family home in San Rafael. Capacon filed a separate action
against Nguyen and his lenders for nonpayment of the construction expenses. The
actions were consolidated, and the matter was sent to binding arbitration on stipulation of
the parties in November 2005.
On December 14, 2011, according to the court’s docket sheet, Nguyen’s counsel
appeared before the court and made an “ex parte request for court to enter judgment for
plaintiff to file abstract of judgment.” The docket sheet states that, at the time of the
appearance, Nguyen’s counsel told the court “plaintiff will waive time for filing notice of
appeal due to the defendant being unavailable until April.” On December 19, 2011, the
court executed a “Judgment of the Court Following Binding Arbitration” against Young
for $156,097, and against Capacon for $215,777. The judgment contains the following
handwritten paragraph, initialed by the court: “4. Plaintiffs, as a condition of Entry of
Judgment until May 12, 2012 by which to file a Notice of Appeal [sic].”
On December 23, 2011, Nguyen’s counsel served on Young a document entitled,
“Notice of Entry of Judgment of the Court Following Binding Arbitration.” The notice
does not attach a copy of the court’s judgment. Instead, it states, “You are hereby
notified that Judgment has been entered as follows,” followed by a quotation of three of
the four paragraphs of the judgment. It omits the handwritten paragraph apparently
added by the trial court. The document is accompanied by a proof of service by mail.
Young’s notice of appeal from the judgment was filed on May 2, 2012.
Recognizing the potentially untimely nature of the appeal, we directed both parties to file
supplemental letter briefs addressing the issue in an order of March 20, 2013.
II. DISCUSSION
The time to appeal a judgment of the superior court is governed by California
Rules of Court, rule 8.104(a), which states: “Unless a statute or rule 8.108 provides
otherwise, a notice of appeal must be filed on or before the earliest of: (1) [¶]
(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 file-stamped 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 file-stamped copy of the judgment, accompanied by proof of service; or [¶]
(C) 180 days after entry of judgment.” Assuming the validity of Nguyen’s notice of entry
of judgment, rule 8.104(a)(1)(B) required Young to file his notice of appeal within 60
days of the service of the notice of entry, or February 21, 2012. The notice of appeal,
filed May 2, 2012, was therefore untimely by more than two months. Because a timely
notice of appeal is a jurisdictional prerequisite to this court’s consideration of an appeal,
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Young’s appeal must be dismissed. (Cal. Rules of Court, rule 8.104(b); Dakota
Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504.)
We acknowledge that Nguyen’s attorney told the court Nguyen would not enforce
the deadline for appeal and the trial court wrote a provision into the judgment that, while
garbled, appears intended to extend Young’s time for appeal until May 12, 2012. Neither
of these preserves the timeliness of the appeal, however, because Nguyen and the trial
court both lacked the power to extend the jurisdictional deadline for the filing of a notice
of appeal.
The trial court’s lack of power is explicitly stated in California Rules of Court,
rule 8.104(b): “Except as provided in rule 8.66, no court may extend the time to file a
notice of appeal.” Because rule 8.66 applies only in the case of natural disasters, it is
inapplicable.
Counsel similarly lacked the authority to stipulate to a valid extension of time to
appeal. In Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, the Supreme
Court disapproved a line of authority that had relaxed the requirements for the filing of a
notice of appeal. In affirming the need for a timely notice under the applicable rules, the
court held: “The expiration of a jurisdictional period is not, and by its nature cannot, be
affected by the actions of the parties. To reiterate the words of [Estate of Hanley (1943)
23 Cal.2d 120]: ‘It is immaterial whether the misrepresentations concerning the date
upon which the order was filed [are] wilful or inadvertent, whether the reliance thereon
[is] reasonable or unreasonable, or whether the parties seeking to dismiss are acting in
good faith or not. . . . [T]he 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.’ [Citation.] [¶] . . . [W]hen such notice has not in
fact been filed within the relevant jurisdictional period . . . the appellate court . . . 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.” (Id. at p. 674, italics
added by Hollister; see also Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357,
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361 [“neither mistake, inadvertence, accident, misfortune, estoppel nor waiver can afford
relief from the jurisdictional necessity of filing a timely notice of appeal”].)
We also recognize the form of Nguyen’s notice of entry of judgment is unusual.
California Rules of Court, rule 8.104 does not, however, prescribe any particular form for
a notice of entry of judgment, other than requiring it to bear the title “ ‘Notice of Entry’
of judgment,” as Nguyen’s did. (Cal. Rules of Court, rule 8.104(a)(1)(B); Delmonico v.
Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 85.) There is no requirement for
the notice to attach a copy of the actual judgment or state the date of its entry. (Cal.
Rules of Court, rule 8.104(a)(1)(B).) On the contrary, a notice of entry of judgment is
sufficient even if it misstates the date of entry of judgment, since, under rule 8.104, the
critical date is the date of service of the notice of entry, not the date the judgment was
entered. (Delmonico, at p. 85; In re Marriage of Eben-King & King (2000)
80 Cal.App.4th 92, 114.)
A notice of entry of judgment is ineffective only if it fails to provide actual notice
that a judgment has been entered. (In re Marriage of Eben-King & King, supra,
80 Cal.App.4th at p. 114.) Nguyen’s notice, in addition to being entitled “Notice of Entry
of Judgment of the Court Following Binding Arbitration,” states, “You are hereby
notified that Judgment has been entered as follows” and relates the material provisions of
the judgment. This indisputably provided Young with actual notice that the judgment
had been entered. Because his notice of appeal was thereafter untimely filed, we lack the
jurisdiction to consider his appeal.
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III. DISPOSITION
The appeal is dismissed.
_________________________
Margulies, Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
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