Morgan v. The Regents of the U. of Cal. CA2/5 ( 2022 )

Filed 8/9/22 Morgan v. The Regents of the U. of Cal. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
LEE ANN MORGAN, B311441
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC452100)
v.
THE REGENTS OF THE
UNIVERSITY OF
CALIFORNIA et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, H. Jay Ford, III, Judge. Dismissed.
Lee Ann Morgan, self-represented litigant, for Plaintiff and
Appellant.
Cole Pedroza, Kenneth R. Pedroza and Matthew S.
Levinson, for Defendants and Respondents.
I. INTRODUCTION
Plaintiff Lee Ann Morgan appeals from a judgment denying
her petition for writ of error coram nobis, which was entered
following an order sustaining a demurrer without leave to
amend. We dismiss the appeal as untimely.
II. BACKGROUND
A. Plaintiff’s First Action
On October 12, 2011, plaintiff filed her first amended
complaint against defendants the Regents of the University of
California, Jeffrey Wang, M.D., Rahoul Basho, M.D., and Joshua
Bales, M.D. for medical negligence. Summary judgment was
entered in favor of defendants on November 1, 2012. Plaintiff
filed a notice of appeal, but voluntarily dismissed it.
B. Plaintiff’s Second Action
On October 28, 2016, plaintiff filed a first amended
complaint against defendants for absence of informed consent,
battery, negligence per se, breach of fiduciary duty, fraud,
product liability, and negligence, concerning the same surgery.
Defendants demurred to the complaint on res judicata grounds,
which was sustained without leave to amend. The judgment of
dismissal was affirmed on appeal. (Morgan v. Wang, et al.
(Oct. 11, 2018, B284748) [nonpub. opn.].)
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C. Prior Petitions for Writ of Error Coram Vobis
On April 16, 2019, plaintiff filed a petition for writ of error
coram vobis in this court, seeking to vacate the judgments in the
2011 and 2016 actions. (Morgan v. Wang, et al., B296949.) On
May 10, 2019, we denied that petition.
On September 24, 2019, plaintiff filed another petition for
writ of mandate for error coram vobis, again seeking to vacate the
trial court’s prior two judgments in the 2011 and 2016 actions.
(Morgan v. Wang, et al., B300958.) On September 30, 2019, a
different division of this court of appeal denied the petition.
D. Current Petition
On June 23, 2020, plaintiff filed a petition for writ of
mandate and error coram nobis to vacate the November 1, 2012,
summary judgment.
On July 27, 2020, defendants demurred to the petition.
Plaintiff filed an opposition, and defendants filed a reply.
On October 14, 2020, the trial court issued an order
sustaining defendants’ demurrer without leave to amend. It
concluded that “[p]laintiff’s allegations fail to plead grounds for
issuance of a writ of coram nobis.”
On January 4, 2021, the trial court entered the judgment of
dismissal. On January 5, 2021, defendants served the notice of
entry of judgment.
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E. Postjudgment Motions
On January 15, 2021, plaintiff filed a motion for
reconsideration of the January 4, 2021, judgment pursuant to
Code of Civil Procedure1 section 1008, subdivision (a).2
Defendants filed an opposition. On February 11, 2021, the trial
court denied the motion.
On January 19, 2021, plaintiff filed a notice of intent to file
a motion to vacate the January 4, 2021, judgment pursuant to
section 663. And, on January 27, 2021, plaintiff filed her motion
to vacate the judgment. Defendants opposed the motion, and
plaintiff filed a reply. On February 25, 2021, the trial court
denied the motion.
On March 24, 2021, plaintiff filed her notice of appeal,
stating that she appealed from the “[j]udgment of dismissal after
an order sustaining a demurrer” entered on “January 5, 2021.”
III. DISCUSSION
“‘[T]he timely filing of an appropriate notice of appeal or its
legal equivalent is an absolute prerequisite to the exercise of
appellate jurisdiction.’” (K.J. v. Los Angeles Unified School Dist.
(2020) 8 Cal.5th 875, 881; see Cal. Rules of Court, rule 8.104(b)
[“If a notice of appeal is filed late, the reviewing court must
1 Further statutory references are to the Code of Civil
Procedure.
2 The motion, however, is not part of the record on appeal.
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dismiss the appeal”].)3 Ordinarily, a notice of appeal must be
filed no later than 60 days after the superior court clerk or party
serves on the appealing party a document entitled “‘Notice of
Entry’ of judgment or a filed-endorsed copy of the judgment,
accompanied by proof of service . . . .” (Rule 8.104(a)(1)(B).)
Here, defendants served plaintiff with the notice of entry of
judgment on January 5, 2021. Plaintiff filed her notice of appeal
on March 24, 2021, more than 60 days later.4
The Rules of Court provide several bases for extending the
time to appeal. (See rule 8.108.) If a party serves and files a
“valid notice of intention to move—or a valid motion—to vacate
the judgment,” the time to appeal is extended to the earliest of
several alternative deadlines. (Rule 8.108(c).) “A ‘valid’ motion
to vacate, for purposes of extending time for filing a notice of
appeal, means ‘a motion based on some recognized grounds for
vacation; it cannot be stretched to include any motion, regardless
of the basis for it.’” (Payne v. Rader (2008) 167 Cal.App.4th 1569,
1574 (Payne), disapproved on other grounds by Ryan v. Rosenfeld
3 Further rule references are to the California Rules of
Court.
4 We reject plaintiff’s contention that she “properly served
and submitted the Notice of Appeal on March 21, 2021 to the
Mosk Civil Appeals Unit . . . .” As an initial matter, the exhibit
she attaches in support of this contention, which is a receipt from
a private company called “One Legal,” is not part of the record on
appeal and we therefore do not consider it. (See Lona v.
Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) In any event,
even if plaintiff had filed her notice of appeal on March 21,
2021—and there is no record that she did—her appeal would still
be untimely.
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(2017) 3 Cal.5th 124, 135, fn. 3.) A motion to vacate under
section 663 may not be used to vacate a judgment following the
sustaining of a demurrer. (Payne, supra, 167 Cal.App.4th at
p. 1574.) Thus, plaintiff’s motion to vacate was not “valid” within
the meaning of rule 8.108(c) and did not extend the time for the
filing of a notice of appeal.
Nor did plaintiff’s January 15, 2021, motion to reconsider
the judgment extend the time for filing a notice of appeal.
Although rule 8.108(e) extends the time to appeal if “any party
serves and files a valid motion to reconsider an appealable order
under . . . section 1008, subdivision (a),” a purported motion for
reconsideration of a judgment, rather than an order, will not
extend the time for appeal from the judgment. (Ramon v.
Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236; Passavanti v.
Williams (1990) 225 Cal.App.3d 1602, 1607–1608.)
Finally, we reject plaintiff’s contention that her notice of
appeal was timely because it was filed within 23 days after
defendants served the notice of entry of the order denying her
motion to vacate on March 1, 2021. Plaintiff seeks to appeal from
the judgment, not from the trial court’s denial of her motion to
vacate. (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170 [“‘Our
jurisdiction on appeal is limited in scope to the notice of appeal
and the judgment or order appealed from’”]; Morton v. Wagner
(2007) 156 Cal.App.4th 963, 967 [“While a notice of appeal must
be liberally construed, it is the notice of appeal that defines the
scope of the appeal by identifying the particular judgment or
order being appealed”].) And, for the reasons we discuss above,
that appeal is untimely.5
5 Because we conclude that plaintiff’s appeal must be
dismissed as untimely, we do not consider whether plaintiff has
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IV. DISPOSITION
The appeal is dismissed. Defendants are entitled to their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
appealed from an appealable judgment. (People v. Gallardo
(2000) 77 Cal.App.4th 971, 982 [the denial of a petition for writ of
error coram nobis is appealable “unless the petition failed to state
a prima facie case for relief [citation] or the petition merely
duplicated issues which had or could have been resolved in other
proceedings [citations]”].)
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