McGee v. Auto Plus Towing CA1/1 ( 2024 )

Filed 5/31/24 McGee v. Auto Plus Towing 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
ANTHONY McGEE,
Plaintiff and Appellant,
A168642
v.
AUTO PLUS TOWING, (Alameda County
Super. Ct. No. 22-CV-021498)
Defendant and Respondent.
Appellant Anthony McGee secured a default judgment against
respondent Auto Plus Towing but contends that he should have been
awarded more money. In this memorandum opinion, we dismiss the appeal
as untimely.1
This dispute arose in February 2022 after Auto Plus towed and
impounded McGee’s car for the Oakland Police Department. Auto Plus sold
the car in a lien proceeding after McGee failed to pay the towing and storage
fees, but McGee had reason to believe that the car remained registered in his
name.
1 A memorandum opinion disposes of cases that raise “no substantial
issues of law or fact,” including appeals that raise “factual issues that are
determined by the substantial evidence rule.” (California Standards of
Judicial Administration, section 8.1.)
1
Proceeding without an attorney, McGee sued Auto Plus for negligence,
fraud, auto theft (or conversion), and forgery in November 2022. After Auto
Plus did not answer the complaint, McGee requested a default, which was
entered in January 2023.2 McGee then requested a court judgment and
sought $150,000, the amount specified in his complaint.
Following an unreported prove-up hearing, the trial court concluded
that Auto Plus was negligent in failing to timely transfer title from McGee to
the new owner. It ordered Auto Plus to pay McGee $500 in damages, and it
further ordered the towing company to provide McGee with written proof that
the title of the car had been transferred and was no longer in McGee’s name.
On March 17, the court entered an “ORDER re: Judgment.” After
summarizing the evidence, the order states, “Having heard and considered all
the evidence, the court finds JUDGMENT as follows.” A certificate of mailing
shows that the judgment was mailed to McGee on March 20.
The next day, on March 21, McGee filed a “Motion for Judgment Nun[c]
Pro Tunc to Correct Clerical Mistake.” (Emphasis omitted.) He “implore[d]
the Court to reconsider” the decision to award him only $500 and said he was
instead entitled to the $150,000 he sought in his complaint. The court denied
McGee’s motion by order dated June 23. McGee appealed on July 17.
If an appeal is untimely an appellate court lacks jurisdiction and must
dismiss the appeal on its own motion even if untimeliness is not raised by the
parties. (Estate of Hanley (1943) 23 Cal.2d 120, 123.) A party must file a
notice of appeal 60 days after the clerk of the superior court serves a notice of
entry of the judgment. (Cal. Rules of Court, rule 8.104(a)(1)(A).)3 Here, the
record indicates that the default judgment was mailed on March 20, which
2 All further date references are to the 2023 calendar year.
3 All rule references are to the California Rules of Court.
2
means the normal deadline to appeal was May 19, a date that transpired long
before McGee filed his notice of appeal on July 17.
McGee’s March 21 motion did not render the appeal timely. True, the
deadline to file a notice of appeal is extended when, before the deadline, a
party files “a valid notice of intention to move–or a valid motion–to vacate the
judgment.” (Rule 8.108(c).) McGee’s March 21 motion, while differently
titled, was essentially such a motion because it asked the court to vacate the
default judgment and enter a new judgment with higher damages. But
McGee’s appeal was still untimely. When a party files a motion to vacate, the
deadline to appeal from the judgment is extended until the earliest of: (1) 30
days after an order denying the motion is served (here, July 28), (2) 90 days
after the first notice of intention to move (or motion) is filed (here, June 20,
which was 91 days since June 19 was a holiday, rule 1.10(a)–(b)), or (3) 180
days after entry of judgment (here, September 13). (Rule 8.108(c)(1)–(3).)
The earliest of these three dates was June 20, nearly a month before McGee
filed his notice of appeal. The result is the same even if we were to construe
McGee’s motion as a motion for reconsideration. (Rule 8.108(e)(1)–(3) [same
deadlines as rule 8.108(c)].)
The appeal is dismissed. Each party shall bear their own appellate
costs.
3
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Langhorne Wilson, J.
_________________________
Siggins, J.*
*Retired Associate Justice of the Court of Appeal, First Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
McGee v. Auto Plus Towing A168642
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