American Express National Bank v. Vaca CA1/2 ( 2024 )

Filed 4/30/24 American Express National Bank v. Vaca CA1/2
Received for posting on 5/14/24
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
AMERICAN EXPRESS NATIONAL
BANK,
Plaintiff and Respondent, A168165
v. (Alameda County
EDWARD VACA, Super. Ct. No. 22CV005110)
Defendant and Appellant.
MEMORANDUM OPINION1
This appeal arises out of a credit card debt collection action.
Representing himself, defendant Edward Vaca (Vaca) challenges a judgment
entered after the trial court granted plaintiff American Express National
Bank’s (American Express) motion for summary judgment. We dismiss the
appeal as untimely.
On January 10, 2022, American Express filed a complaint against Vaca
for $56,315.23 in unpaid credit card debt. Vaca filed an answer.
On August 12, American Express filed a motion for summary judgment
or, in the alternative, summary adjudication. The motion was accompanied
1 We resolve this case by memorandum opinion; in doing so, we provide
an abbreviated factual recitation. (Cal. Stds. Jud. Admin., § 8.1; see People v.
Garcia (2002) 97 Cal.App.4th 847, 851.)
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by a memorandum of points and authorities, a separate statement of
undisputed material facts, a declaration of American Express’s custodian of
records, and exhibits attached to the declaration.
The motion was set for hearing on December 15. Prior to that date,
Vaca failed to file an opposition to the motion and the trial court issued a
tentative ruling granting the motion.
At the hearing on December 15, 2022, Vaca contested the tentative
ruling and indicated he opposed the motion. The trial court continued the
hearing to February 2, 2023 and ordered Vaca to file a declaration explaining
why he failed to file a timely opposition.
Vaca did not file such a declaration. Instead, on January 17, 2023, he
filed an opposition to American Express’s summary judgment motion and a
response to its separate statement. Vaca did not submit any evidence in
support of his opposition.
After American Express filed a reply, the trial court issued a tentative
ruling granting the motion for summary judgment.
On February 2, the motion came on for hearing, but neither party
appeared or contested the tentative ruling. The trial court adopted the
tentative ruling as its final order.
On February 6, a judgment awarding American Express $57,318.23
was filed. On February 8, the trial court clerk mailed the parties a file-
stamped copy of the judgment.
On February 10, Vaca filed a motion for a new trial, which American
Express opposed. On March 28, after a hearing, the trial court denied the
motion for new trial.
Also on March 28, the trial court issued an “order to show cause
[(OSC)] why the judgment issued in this case on February 6, 2023 should not
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be set aside and vacated.” It stated: “[U]pon further review of the record
herein, the Court sua sponte identified a question with respect to the
evidence submitted by [American Express] in connection with the motion for
summary judgment.” The trial court invited the parties to respond to the
OSC.
On March 29, American Express mailed Vaca a notice of the order
denying his motion for new trial, as well as a notice of the hearing on the
OSC set for May 4.
On April 14, American Express filed a response to the OSC arguing
that the judgment could not and should not be vacated. Vaca did not file any
response to the OSC.
On May 4, after a hearing, the trial court issued its order discharging
the OSC and stating that “the [j]udgment shall remain in full force and
effect. . . .” On May 8, the trial court clerk mailed the parties a copy of the
order.
On June 28, Vaca filed a notice of appeal identifying the May 4 order
and checking the box for “judgment after court trial.”
There are two jurisdictional requisites to the exercise of appellate
jurisdiction: the existence of an appealable order or judgment (Jennings v.
Marralle (1994) 8 Cal.4th 121, 126) and the timely filing of a notice of appeal.
(Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 670.) In
his opening brief, Vaca purports to appeal from the judgment. We assume for
the sake of argument that his notice of appeal encompasses the judgment,
which is appealable. (Kasparian v. AvalonBay Communities, Inc. (2007)
156 Cal.App.4th 11, 14, fn. 1.) But as American Express argues, we lack
jurisdiction because the notice of appeal is untimely.
“[A] 60-day deadline to appeal commences when ‘the superior court
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clerk serves on the party filing the notice of appeal . . . a filed-endorsed copy
of the judgment, showing the date [it] was served,’ assuming (as is true here)
that nothing has triggered an even earlier deadline.” (Valero Refining
Company – California v. Bay Area Air Quality Management District Hearing
Board (2020) 49 Cal.App.5th 618, 633, citing Cal. Rules of Court,
rule 8.104(a)(1)(A) (further “rule” references are to the Cal. Rules of Court).)
The 60-day time to appeal began to run on February 8, 2023, when the trial
court clerk mailed the parties a file-endorsed copy of the judgment. Thus,
Vaca had until April 10, 20232 to file his notice of appeal unless the deadline
was extended based upon a recognized exception. (See rule 8.108(b)–(e).)
Under rule 8.108(b), where, as here, a “party serves and files a valid
notice of intention to move for a new trial” within the normal time to appeal
the judgment under rule 8.104, the time to appeal is extended to the earliest
of three options: (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) “30 days
after denial of the motion by operation of law,” or (3) “180 days after entry of
judgment.” (Rule 8.108(b)(1)(A)–(C).) In this case, the first option sets the
earliest deadline. (Rule 8.108(b)(1)(A).) The 30-day time to appeal began to
run on March 29, 2023, when American Express mailed Vaca a notice of the
order denying his motion for new trial. Thus, Vaca had until April 28, 2023
to file his notice of appeal. But he did not do so until June 28, 2023—two
months after the extended deadline. Therefore, his appeal is untimely.
Contrary to Vaca’s assertions in his reply brief, the trial court’s
issuance of an OSC “why the judgment . . . should not be set aside and
vacated” did not further extend the time to appeal from the judgment. None
2 60 days after service of the judgment was April 9, 2023, which fell on
a Sunday. The next business day was April 10, 2023.
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of the authorities he cites supports his position.
Vaca relies on rule 8.108(b), which, as noted, extends the normal time
to appeal from a judgment upon the filing of a valid notice of intention to
move for new trial. Vaca, however, fails to articulate how this rule applies
with regard to the OSC, and we are not persuaded that it does. For one, Vaca
does not explain how the OSC, for which the trial court did not identify any
statutory or decisional basis, qualified as a motion for new trial, let alone a
valid one. (See Advisory Com. cmt., rule 8.108 [“As used in these provisions,
the word ‘valid’ means only that the motion, election, request, or notice
complies with all procedural requirements. . .”].) Even if it could be construed
as such, the extensions in rule 8.108, including in subdivision (b), apply upon
the filing of the particular motion or request for relief by a “party.” (See rule
8.108(b)–(e); see also Advisory Com. cmt., rule 8.108 [“Subdivisions (b)–(f)
operate only when a party serves and files a ‘valid’ motion, election, request,
or notice of intent to move for the relief in question”].) And here, the issuance
of the OSC was an action taken by the trial court sua sponte. Thus, we
disagree that rule 8.108(b) was triggered by the issuance of the OSC.
Even if it were, Vaca’s notice of appeal would still be untimely. As
mentioned, filing a valid motion for new trial extends the time to appeal from
the judgment to the earliest of three options. (Rule 8.108(b)(1).) The first
option—30 days after the superior court clerk serves an order denying the
motion—sets the earliest deadline in this case. (Rule 8.108(b)(1)(A).) To the
extent the OSC may be construed as a valid motion for new trial, such
“motion” was “denied” when the trial court declined to vacate the judgment
and discharged the OSC. The trial court clerk mailed the parties a copy of
the order discharging the OSC on May 8, 2023, triggering the 30-day time to
appeal. Vaca thus had until June 7, 2023 to file his notice of appeal. But, as
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noted, he did not do so until June 28, 2023, rendering his appeal untimely.
Likewise unavailing is Vaca’s reliance upon In re Marriage of Varner
(1997) 55 Cal.App.4th 128. That case addressed in part the time limits for
filing a motion to set aside a marital dissolution judgment under certain
Family Code sections. It had nothing to do with the timeliness of an appeal,
much less “support[ ] the notion that post-judgment motions or hearings,
such as an OSC, can extend the timeline for appeal” as Vaca contends.
In sum, Vaca’s purported appeal from the judgment is untimely and
must be dismissed. (Rule 8.104(b); Estate of Hanley (1943) 23 Cal.2d 120,
123.)3
DISPOSITION
Vaca’s untimely appeal is dismissed. American Express is awarded
costs on appeal. (Rule 8.278(a)(2).)
3 We note that Vaca requested oral argument in response to a notice
sent by this court’s clerk, as a matter of course, when the appeal was fully
briefed. A party’s right to oral argument exists in any appeal “ ‘considered on
the merits and decided by a written opinion.’ ” (Moles v. Regents of University
of California (1982) 32 Cal.3d 867, 871; accord, Lewis v. Superior Court
(1999) 19 Cal.4th 1232, 1254–1255.) Because we dismiss this appeal without
reaching the merits, Vaca is not entitled to oral argument, which we find in
this instance to be unnecessary to our procedural dismissal of this appeal.
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_________________________
Richman, Acting P. J.
We concur:
_________________________
Miller, J.
_________________________
Mayfield, J. *
American Express National Bank v. Vaca (A168165)
* Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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