City of Calexico v. Bergeson

Filed 5/13/21
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CITY OF CALEXICO, D076963
Plaintiff and Appellant,
v. (Super. Ct. No. ECU000297)
ROBERT BERGESON,
Defendant and Respondent;
RUDY ALARCON,
Real Party in Interest and
Respondent.
RUDY ALARCON,
Plaintiff and Appellant,
v. (Super. Ct. No. ECU000318)
CITY OF CALEXICO,
Defendant and Respondent.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of part III.A.
APPEALS from a judgment of the Superior Court of Imperial County,
L. Brooks Anderholt, Judge. Alarcon appeal affirmed; City of Calexico appeal
dismissed.
Liebert Cassidy Whitmore, Mark H. Meyerhoff, Stefanie K. Vaudreuil
and Stephanie J. Lowe for Plaintiff and Appellant in No. ECU000297 and for
Defendant and Respondent in No. ECU000318.
No appearance for Defendant and Respondent in No. ECU000297.
Adams, Ferrone & Ferrone, Robert L. Baumann and Jennifer Krikorian
for Real Party in Interest and Respondent in No. ECU000297 and for
Plaintiff and Appellant in No. ECU000318.
I.
INTRODUCTION
Rudy Alarcon filed a petition for writ of mandate seeking to invalidate
hearing officer Robert Bergeson’s1 decision upholding the City of Calexico’s
(City)2 termination of Alarcon’s employment as a City police officer.3 The
1 Bergeson is not a party to these appeals; his name appears in the
caption solely for titling purposes.
2 Alarcon’s employer is, at times, referred to in the record as the Calexico
Police Department. For ease of reference, we refer to Alarcon’s employer as
the City.
3 “Government Code section 3304, subdivision (b), which is part of the
Public Safety Officers Procedural Bill of Rights Act (PSOPBRA) (§ 3300 et
seq.), provides that ‘[n]o punitive action . . . shall be undertaken by any public
agency against any public safety officer . . . without providing the public
safety officer with an opportunity for administrative appeal.’ ” (Morgado v.
City and County of San Francisco (2017) 13 Cal.App.5th 1, 4.) It appears
from the record that hearing officer Bergeson considered Alarcon’s
2
City filed a petition for writ of mandate challenging Bergeson’s decision to
award Alarcon back pay based on his finding that the City failed to provide
Alarcon with sufficient predisciplinary notice of allegations that Alarcon had
been dishonest during the investigation that led to his termination.4
The trial court consolidated the petitions and, on September 24, 2019,
issued a written ruling that denied both petitions. As to Alarcon’s petition,
the trial court determined that Alarcon had not met his burden to establish
that the charges against him were barred by the applicable statute of
limitations. The trial court also found that the weight of the evidence
demonstrated that Alarcon had “used force” and “discourteous language”
during the arrest that led to his termination. With respect to the City’s
petition, the trial court determined that “the hearing officer’s lengthy finding
that the dishonesty charges were not properly noticed does not rise to the
level of an abuse of discretion.”
On November 7, 2019, Alarcon filed a notice of appeal from the trial
court’s September 24 ruling. On November 21, 2019, the trial court entered a
document titled “judgment” that incorporated the court’s September 24, 2019
ruling. On January 21, 2020, the City filed a cross-appeal from the
November 21 “judgment.”
In his appeal, Alarcon claims that the City’s termination of his
employment “represents an abuse of discretion.” We conclude that Alarcon
administrative appeal of the termination of his employment pursuant to this
statutory scheme.
4 The City’s petition for writ of mandate is not contained in the record.
Our description is drawn from the trial court’s ruling denying the City’s
petition.
3
has failed to establish any such abuse and we affirm the trial court’s denial of
his petition for writ of mandate.
With respect to the City’s cross-appeal, we conclude that the appeal is
untimely and must be dismissed. The September 24, 2019 ruling was a final
judgment from which the City failed to timely appeal. (See Laraway v.
Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582–583 (Laraway)
[concluding that an order that “completely resolved all issues between all
parties” on petitioner’s motion for writ of mandamus and prohibition and
complaint for injunctive and declaratory relief was a final judgment from
which no timely appeal was taken and stating that the “[r]ules of [c]ourt do
not provide, once a judgment or appealable order has been entered, . . . the
time to appeal can be restarted or extended by the filing of a subsequent
judgment or appealable order making the same decision”].)
Accordingly, we affirm the trial court’s denial of Alarcon’s petition for
writ of mandate and we dismiss the City’s cross-appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Alarcon’s arrest of M.V.
In the early morning hours of January 10, 2014, Alarcon assisted with
the arrest of a woman, M.V. Hearing officer Bergeson found that, during the
arrest, Alarcon “used excessive force” on M.V. Specifically, Bergeson found
that “for no apparent legitimate reason, [Alarcon] pushed [a handcuffed]
[M.V.] into [a police] car, causing injury to [M.V.’s] nose when it hit the back
seat.” Bergeson also found that Alarcon said “callate puta,” (italics omitted)
Spanish for “shut up, bitch,” to M.V. during the incident.
4
B. The City’s termination of Alarcon’s employment as a police officer
In March 2015, the City issued a notice of intended disciplinary action
to Alarcon arising from his actions during M.V.’s arrest. The notice
recommended that Alarcon be terminated from his position as a City police
officer. The following month, the City terminated Alarcon’s employment.
Alarcon requested an administrative appeal of the discipline.
C. The hearing officer’s decision
In December 2017, after numerous nonconsecutive days of evidentiary
hearings, hearing officer Bergeson issued a final decision in Alarcon’s appeal.
Bergeson found that, during M.V.’s arrest, Alarcon used excessive force on
M.V. and directed discourteous language toward her. Bergeson also found
that Alarcon had been untruthful during the police department’s
investigation into the incident. Bergeson upheld the City’s termination of
Alarcon’s employment.
However, Bergeson also found that the City’s notice of intended
disciplinary action violated Alarcon’s procedural due process rights by failing
to clearly refer to Alarcon’s alleged dishonesty about the incident as a basis
for his termination. Bergeson awarded Alarcon back pay as a remedy for the
City’s procedural violation.
D. The parties’ petitions for writ of mandate
In April 2018, Alarcon filed a petition for writ of mandate challenging
his termination. The City filed a petition for writ of mandate in a separate
action challenging Bergeson’s decision to award Alarcon back pay.5
5 As noted in part I, ante, the City’s petition for writ of mandate is not
contained in the record.
5
E. The trial court’s ruling
After consolidating the petitions, and holding a hearing, the trial court
issued a ruling on September 24, 2019 denying both petitions for writ of
mandate in their entirety.
F. The appeals
As discussed in greater detail in part III.B, post, Alarcon timely filed an
appeal from the September 24 ruling. The City filed a cross-appeal in
January 2020, which we conclude is untimely.
III.
DISCUSSION
A. Alarcon’s appeal
Alarcon claims that the City abused its discretion in terminating his
employment as a City police officer.6
1. Governing law and standard of review
a. The law governing a public employee’s challenge to an agency’s
punishment for misconduct
In County of Siskiyou v. State Personnel Bd. (2010) 188 Cal.App.4th
1606, 1615, the court outlined the law governing a public employee’s
challenge to the degree of punishment imposed by a public agency due to
employee misconduct:
“ ‘The public is entitled to protection from unprofessional
employees whose conduct places people at risk of injury and
the government at risk of incurring liability.’ [Citation.]
Thus, ‘in the context of public employee discipline,’ the
‘overriding consideration’ is ‘the extent to which the
employee’s conduct resulted in, or if repeated is likely to
6 Alarcon contends that “[t]he disciplinary action at issue often is, as in
this case, the termination of employment.” He argues that this court must
“determine whether the punishment inflicted represents an abuse of
discretion by the agency.”
6
result in, “harm to the public service.” [Citations.] Other
relevant factors include the circumstances surrounding the
misconduct and the likelihood of its recurrence. [Citation.]’
[Citations.] [¶] . . . [¶] . . . ‘ “ ‘Neither an appellate court nor
a trial court is free to substitute its discretion for that of
the administrative agency concerning the degree of
punishment imposed.’ [Citations.]” [Citation.]’ [Citation.]
Thus, if reasonable minds may differ as to the propriety of
the penalty, there is no abuse of discretion.” (Ibid.)
b. An appellant’s burden to demonstrate error
“As with any civil appeal, we must presume the [order] is correct,
indulge every intendment and presumption in favor of its correctness, and
start with the presumption that the record contains evidence sufficient to
support the [order].” (Steele v. Youthful Offender Parole Bd. (2008)
162 Cal.App.4th 1241, 1251.) “An appellant has the burden to overcome the
presumption of correctness and show prejudicial error.” (Silva v. See’s Candy
Shops, Inc. (2016) 7 Cal.App.5th 235, 260 (Silva).)
2. Application
Alarcon fails entirely to carry his burden to demonstrate an abuse of
discretion. We consider each of the contentions that he raises in his brief on
appeal below.
First, Alarcon asserts, “There are several examples of the abuse of
discretion that was committed by [the City] in this case. Many of these
examples can be found during the testimony of the witnesses in the lower
court,[7] representing their reasons for their conduct as justification for the
outcome, rather than providing valid impartiality that should be present in
any such investigation.” However, apart from citations to three pages of an
7 The testimony to which Alarcon refers occurred during the
administrative hearings in this case; no witnesses testified in the trial court.
7
administrative record spanning 23 volumes and thousands of pages,8 Alarcon
provides no support for this assertion. This court is not “ ‘ “obligate[d] . . . to
cull the record for the benefit of the appellant.” ’ ” (Bains v. Moores (2009)
172 Cal.App.4th 445, 455.)
Moreover, neither of the purported examples of an abuse of discretion
to which Alarcon refers in his brief demonstrates any such abuse. First,
Alarcon notes, “Lieutenant Serrano testified that officers should report a use
of force to a sergeant every time they arrest someone.” Alarcon argues that it
“is a great stretch of the imagination to make such a general statement in
order to fit the purpose of [City’s] intent, that one would ever indicate that
every arrest constitutes a use of force.” However, Alarcon fails to present any
argument that he was terminated for failing to report his use of force, and the
cited testimony clearly does not establish that the City abused its discretion
in terminating Alarcon’s employment.9 Further, in its ruling denying
Alarcon’s petition, the trial court rejected Alarcon’s arguments “that the
evidence did not show that he had used force against [M.V.], [and] that he
had not used discourteous language.” Alarcon fails to address any of the
8 In his decision and award, Bergeson described the administrative
record as follows:
“[T]he present record is far from run of the mill when it
comes to the arbitration of public employee terminations.
The five volumes of the [City’s] evidence binders contain
143 exhibits consisting of 3,228 pages. Four additional
[City] exhibits and four ‘Appellant’ exhibits bring the
exhibits total to about 3,300 pages. The present record also
contains more than 1,800 pages of transcript.”
9 In fact, the hearing officer noted that it was Alarcon’s “use[ ] [of]
excessive force,” rather than merely Alarcon’s failure to report his use of
force, that resulted in his termination.
8
evidence on which the trial court based its rejection of the arguments that
Alarcon raised in that court; thus, he manifestly fails to establish an abuse of
discretion. (See Silva, supra, 7 Cal.App.5th at p. 260 [appellant has burden
to demonstrate error].)
Alarcon also asserts that the fact that the chief of police “allowed the
investigation to be pursued well past the statutory one year allotted timeline,
makes for an apparent abuse of discretion by [the City].” Alarcon fails to cite
the applicable statute of limitations or present any argument as to why the
trial court erred in concluding that “the statutory time limit [on the
investigation] was tolled due to [an] ongoing federal/criminal investigation
which is an exception to the time limit provided in [the governing statute].”
Thus, we conclude that Alarcon has failed to demonstrate any error premised
on the timeliness of the investigation into his misconduct. (See Silva, supra,
7 Cal.App.5th at p. 260.)
Accordingly, we conclude that Alarcon has not demonstrated that the
City abused its discretion in terminating his employment as a City police
officer due to his misconduct.10
B. The City’s cross-appeal must be dismissed as untimely
We must consider, sua sponte, whether we have appellate jurisdiction
over the City’s cross-appeal. (E.g., Drum v. Superior Court (2006)
139 Cal.App.4th 845, 849 [“because the timeliness of an appeal poses a
10 At oral argument, Alarcon asserted for the first time on appeal a claim
that M.V.’s statements should not have been admitted at the administrative
hearing because the statements constituted inadmissible hearsay. We
decline to consider this claim because it is well established that it is improper
to raise arguments for the first time on appeal at oral argument. (See, e.g.,
Palp, Inc. v. Williamsburg National Ins. Co. (2011) 200 Cal.App.4th 282, 291
[“ ‘We do not consider arguments that are raised for the first time at oral
argument’ ”].)
9
jurisdictional issue, we must raise the point sua sponte”].) For the reasons
discussed, post, we conclude that the City’s cross-appeal is untimely and
must be dismissed.
1. Factual and procedural background
a. The trial court’s September 24, 2019 ruling and the trial court
clerk’s service of that ruling on the parties
On September 24, 2019, the trial court entered a “Ruling and Order on
Writ of Mandate.” The signed five-page ruling completely resolved all of the
issues between the parties, providing in relevant part:
“In light of the foregoing, the Petition for Writ of Mandate
filed by the City is denied. [The City] has not met its
burden to show that the decision of the administrative
hearing officer was not supported by substantial evidence
in light of the record such that it constitutes an abuse of
discretion.
“In light of the foregoing, the Petition for Writ of Mandate
filed by Rudy Alarcon is denied; [Alarcon] has not met his
burden to show that the findings are not supported by the
weight of the evidence.”
That same day, September 24, the trial court clerk mailed a
“Declaration of Mailing,” together with a filed-endorsed copy of the
September 24 “Ruling and Order on Writ of Mandate”11 to the parties’
counsel. The Declaration of Mailing states:
“I, the undersigned, certify under penalty of perjury, that I
am a Deputy Clerk of the above entitled Court and not a
party to the within action; that I mailed a true and correct
copy on 09/24/2019 of the Ruling and Order on Writ of
Mandate dated 9/24/2019 to each of the persons listed
11 The September 24 ruling that the clerk sent to the parties contains a
stamp stating: “Endorsed”; the date (September 24, 2019); the trial judge’s
name; the clerk of court’s name; and a deputy clerk’s name.
10
below, by depositing such notice in the United States Mail,
enclosed in sealed envelopes with postage prepaid”
b. Alarcon’s November 7, 2019 notice of appeal
On November 7, 2019, Alarcon filed a notice of appeal from the
September 24 ruling. Alarcon’s notice of appeal attached a file-stamped copy
of the September 24 ruling.
c. The trial court’s November 21, 2019 “judgment”
On November 21, the court entered a “judgment.” The “judgment”
states in relevant part:
“1. The Petition for Writ of Mandate filed by [the City]
under Code of Civil Procedure section 1094.5 (Case No.
ECU000297) is DENIED. A true and correct copy of the
Court’s Ruling and Order is attached hereto as Exhibit ‘A’
and incorporated herein.[12]
“2. Judgment in favor of Respondent Robert Bergeson and
Real Party in Interest Rudy Alarcon and against [the City]
is hereby entered for Case No. ECU000297.
“3. The Petition for Writ of Mandate filed by Petitioner
Rudy Alarcon under Code of Civil Procedure section 1094.5
(Case No. ECU000318) is DENIED. A true and correct
copy of the Court’s Ruling and Order is attached hereto as
Exhibit ‘A’ and incorporated herein.
“4. Judgment in favor of Respondent [the City] and against
Petitioner Rudy Alarcon is hereby entered for Case No.
ECU000318.”
The following day, November 22, the City served Alarcon with notice of
entry of the November 21 “judgment.”
12 The Exhibit “A” incorporated into the judgment is the September 24
“Declaration of Mailing,” and the September 24 “Ruling and Order on Writ of
Mandate.”
11
d. The trial court’s service of notice of Alarcon’s appeal
On December 3, 2019, the trial court clerk mailed a notice of Alarcon’s
appeal to the City.13
e. The City’s notice of cross-appeal
On January 21, 2020, the City filed a notice of cross-appeal. Although
the first page of the notice of cross appeal did not state the date of the
judgment from which the City was appealing, the City attached the
November 21, 2019 “judgment” (including Exhibit “A” containing the
September 24 “Declaration of Mailing,” and the September 24 “Ruling and
Order on Writ of Mandate.” The City’s notice of cross-appeal stated that the
original notice of appeal in the matter (i.e., Alarcon’s appeal) had been filed
on November 7, 2019 and that the superior court clerk had mailed notice of
the original appeal on November 13.14
f. Supplemental briefing on timeliness of the City’s cross-appeal
In February 2020, this court sent the parties a letter that stated:
“[City’s] notice of cross-appeal indicates [City] is cross-
appealing an order denying petition for writ of mandate
filed September 24, 2019, and that the superior court clerk
mailed notice of appellant Rudy Alarcon’s original appeal
on November 13, 2019. Under California Rules of Court,
rule 8.108(g), the time for [City] to file a cross-appeal was
extended until ‘20 days after the superior court clerk serves
notification of the first appeal,’ or until December 3, 2019,
in this case. [City’s] notice of cross-appeal filed January 21,
13 See footnotes 14 and 17, post.
14 As discussed in footnote 17, post, it appears that the trial court clerk
mailed a notice of Alarcon’s appeal to the City’s counsel on November 13, but
the November 13 mailing was sent to the wrong address. However, even
assuming that the City was not served with notice of Alarcon’s appeal until
December 3, 2019, for reasons stated in part III.B.3, post, the City’s cross-
appeal is still untimely.
12
2020, appears untimely. If a notice of appeal is filed late,
the appellate court is without jurisdiction to proceed and
must dismiss the appeal. (California Rules of Court, rule
8.104(b); Van Beurden Ins. Services, Inc. v. Customized
Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51,
56.)
“The court requests that within 10 days of the date of this
letter, [City] submit a letter explaining why its cross-appeal
should not be dismissed as untimely. Any other party may
also address the timeliness of the notice of cross-appeal by
letter within the same time period.”
In response to this court’s letter, the City filed a letter brief.15 In its
letter brief, the City described the procedural history of the case as follows:
“The County of Imperial Superior Court issued a ruling and
order denying the writ of mandate on September 24, 2019
(Imperial County Super. Ct. No. ECU000297). Since the
superior court did not issue a notice of entry of judgment,
the City filed a proposed judgment with the superior court,
which the superior court signed on November 21, 2019.
Immediately thereafter on November 22, 2019, the City
served a Notice of Entry of Judgment on all parties. The
Notice of Entry of Judgment is enclosed with this letter as
Attachment A.
“On November 4, 2019,[16] Appellant Rudy Alarcon filed a
Notice of Appeal. Alarcon filed his appeal prior to any
notice of entry of judgment issued by the superior court or
any party.
15 Alarcon did not file a response to our letter.
16 Although not material to our analysis, Alarcon actually filed his notice
of appeal on November 7, 2019.
13
“The superior court clerk served the City with notification
of Alarcon’s original appeal on December 3, 2019.[17]
Enclosed in this letter as Attachment B is the County of
Imperial Superior Court’s Declaration of Mailing, dated
December 3, 2019. The Notice of Appeal Filed is dated
November 13, 2019 but it was not served on the City until
December 3, 2019.”18
The City argued that, pursuant to California Rules of Court, rule 8.104
(Rule 8.104) and California Rules of Court, rule 8.108 (Rule 8.108),19 it had
until January 21, 2020 to file an appeal—60 days after the City’s November
22, 2019 service of notice of entry of the November 21, 2019 “judgment.”
After receiving the City’s letter, this court issued an order permitting
the City’s cross-appeal to proceed but stating that “the timeliness of the
appeal is subject to further consideration during the pendency of the
appeal.”20
17 The City stated the following in a footnote:
“The superior court’s Certificate of Mailing attached to the
Notice of Appeal Filed is dated November 13, 2019,
however, the superior court served it to our firm’s old office
address. Our firm notified the superior court of its address
change in June or July 2019. Thereafter, the superior court
served the Notice of Appeal Filed with a Declaration of
Mailing to our new and correct address on December 3,
2019.”
18 The City attached the November 22, 2019 notice of entry of judgment
and the December 3, 2019 declaration of mailing to its letter brief.
19 We discuss those rules in part III.B.2, post.
20 Neither party addressed the timeliness of the City’s cross-appeal in
their primary briefing in this court.
14
2. Principles of appellate jurisdiction
“A reviewing court has jurisdiction over a direct appeal only when there
is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset).)
“Compliance with the time for filing a notice of appeal is mandatory
and jurisdictional. [Citation.] If a notice of appeal is not timely, the
appellate court must dismiss the appeal. [Citation.]” (Laraway, supra,
98 Cal.App.4th at p. 582; see Rule 8.104, Rule 8.108.)
Rule 8.104 provides in relevant part:
“(a) Normal time
“Unless a statute or rules 8.108, 8.702, or 8.712[21]
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 filed-endorsed 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 filed-endorsed copy of the
judgment, accompanied by proof of service; or
“[¶] . . . [¶]
“(b) No extension of time; late notice of appeal
21 As discussed, post, Rule 8.108 may operate to extend the time for filing
an appeal under certain circumstances.
California Rules of Court, rule 8.702 pertains to cases under the
California Environmental Quality Act. California Rules of Court, rule 8.712
pertains to appeals of orders dismissing or denying a petition to compel
arbitration. Neither has any relevance to this case, and no other statute
provides for a different time for the filing of a notice of appeal in this case.
15
“Except as provided in rule 8.66,[22] no court may extend
the time to file a notice of appeal. If a notice of appeal is
filed late, the reviewing court must dismiss the appeal.
“[¶] . . . [¶]
“(e) Appealable order
“As used in (a) and (d), ‘judgment’ includes an appealable
order if the appeal is from an appealable order.”
Rule 8.108 provides in relevant part:
“(a) Extension of time
“This rule operates only to extend the time to appeal
otherwise prescribed in rule 8.104(a); it does not shorten
the time to appeal. If the normal time to appeal stated in
rule 8.104(a) is longer than the time provided in this rule,
the time to appeal stated in rule 8.104(a) governs.
“[¶] . . . [¶]
“(g) Cross-appeal
“(1) If an appellant timely appeals from a judgment or
appealable order, the time for any other party to appeal
from the same judgment or order is extended until 20 days
after the superior court clerk serves notification of the first
appeal.”
22 California Rules of Court, rule 8.66 provides for a tolling of time periods
specified in the rules of court due to a public emergency. This rule has no
relevance to this appeal.
16
3. Application
a. The 60-day period under Rule 8.104
i. The September 24 ruling was an appealable judgment
under Laraway
An order granting or denying a petition for writ of mandate that
disposes of all of the claims between the parties is an immediately appealable
final judgment.23 In Laraway, the petitioner filed a petition for a writ of
mandamus and prohibition as well as injunctive and declaratory relief,
seeking certain public records from a school district and several of its
employees (collectively “District”). (Laraway, supra, 98 Cal.App.4th at
pp. 580–581.) On August 23, 2000, the trial court entered an “ ‘order
regarding petitioner’s motion for writ of mandamus, prohibition, injunctive
and declaratory relief . . . .’ ” (Id. at p. 581, italics added in Laraway.) The
August 2000 order “completely resolved all issues between all parties.” (Id.
at p. 582.)24 The Laraway court noted that the August 2000 order did not
23 An order denying a petition for writ of mandate is not appealable if
causes of action or issues remain pending between the parties or some
further action on the petition is contemplated. (See, e.g., Griset, supra,25 Cal.4th at p. 697 [“ ‘the denial of a petition for writ of mandate is not
appealable if other causes of action remain pending between the parties’ ”].)
24 Specifically, in the order, the trial court in Laraway denied the
petitioner’s requests for a writ of mandamus or prohibition or for injunctive
relief. (Laraway, supra, 98 Cal.App.4th at p. 581.) The order also denied in
part and granted in part the petitioner’s request for declaratory relief, and
directed the District to provide the petitioner with a copy of a particular
public record. (Ibid.)
In a footnote, the Laraway court noted that the August 2000 order did
not award attorney fees or costs, but observed that this fact was irrelevant to
a determination of whether the order was a final judgment. (Laraway, supra,
98 Cal.App.4th at p. 582, fn. 3.)
17
“contemplate nor direct the preparation of any further order or judgment.”
(Ibid.) In January 2001, the trial court in Laraway filed a judgment that
“simply reiterated that the court had ‘ruled by Order dated August 23, 2000’
on the petition, set forth the same rulings as contained in the order denying
the petition, added a provision that judgment was entered in favor of
respondent and against petitioner, and awarded respondent $0 in costs
against petitioner.” (Ibid.) In late March or early April 2001,25 the
petitioner filed a notice of appeal from the January 2001 judgment. On April
19, 2001, the District filed a cross-appeal from that same judgment. (Ibid.)
The Laraway court concluded that the August 2000 order was “properly
treated as a final judgment” because it “contemplated no further action, such
as the preparation of another order or judgment [citation], and disposed of all
issues between all parties.” (Laraway, supra, 98 Cal.App.4th at p. 583.) The
Laraway court added that “the subsequent judgment entered on January 29,
2001 was simply a repetition of the August 23, 2000 order.” (Ibid.) The
Laraway court concluded that the Court of Appeal lacked jurisdiction over
the appeal and the cross-appeal from the January 2001 judgment, reasoning:
“Once a final, appealable order or judgment has been
entered, the time to appeal begins to run. The [r]ules of
[c]ourt do not provide, once a judgment or appealable order
has been entered, that the time to appeal can be restarted
or extended by the filing of a subsequent judgment or
appealable order making the same decision. Thus, once the
August 23, 2000 order was entered, the time within which
to file a notice of appeal therefrom began to run, and could
not be restarted by the relabeling of the trial court’s earlier
decision and then entering such ‘judgment’ at a later date.
25 The Laraway court noted that the notice of appeal contained in the
record was dated March 28, but was not file stamped. (Laraway, supra,
98 Cal.App.4th at p. 582, fn. 4.)
18
“Because the parties failed to file timely notice of appeal
from the August 23, 2000 order, the petitioner’s appeal and
respondent’s cross-appeal, filed more than 180 days after
entry of the August 23, 2000 order, were untimely, and
both such appeals must be dismissed.” (Ibid.)
Laraway is in accord with well-established law. (See, e.g., Breslin v.
City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1073–1074
[determining that “order effectively disposing of all four causes of action pled
in the petition notwithstanding the lack of a formal judgment so stating,” was
appealable and treating “the trial court’s order denying issuance of a writ of
mandate as the equivalent of a final judgment on all of these causes of
action”]; Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th
536, 539 [“the appealability of the denial of a petition for writ of mandate is
based on whether the trial court contemplated taking any further action.
Where no further action is contemplated, the order denying the petition for
writ of mandate is a final judgment in a special proceeding”]; accord Griset,
supra, 25 Cal.4th at p. 699 [“we conclude the 1991 superior court ruling . . .
was a final judgment” because “the superior court’s denial of plaintiffs’
petition for a writ of mandate disposed of all issues in the action between
plaintiffs and the [defendant]”]; see also Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2020) ¶ 2:38 [“If it is a final
judgment in legal effect, even a seemingly nonappealable ‘order’ may be an
appealable final judgment,” citing, inter alia, Laraway, supra, 98 Cal.App.4th
at p. 583].)
In the September 24 ruling, the trial court denied all of the parties’
claims for relief in their entirety, and did not contemplate any further action
in the case. Thus, as in Laraway, the September 24 ruling is “properly
treated as a final judgment” because it “contemplated no further action, such
19
as the preparation of another order or judgment [citation], and disposed of all
issues between all parties.” (Laraway, supra, 98 Cal.App.4th at p. 583.)
While the City correctly notes in its letter brief that “the City filed a
proposed judgment with the superior court, which the superior court signed
on November 21, 2019,” as in Laraway, this second judgment “simply
reiterated” that the court had ruled on the petition and “set forth the same
rulings as contained in the order denying the petition.” (Laraway, supra,
98 Cal.App.4th at p. 582.) There is nothing in the September 24 ruling itself,
nor anything else in the record, demonstrating that the trial court
contemplated that the court or the parties would take further action in the
case such that the September 24 ruling was not final and therefore,
appealable. The mere fact that the trial court entered a subsequent
judgment after issuing the September 24 ruling is irrelevant, because the
September 24 ruling was itself a final judgment. (See Laraway, supra, at
p. 583.)
ii. The trial court clerk served the City with a filed-
endorsed copy of the September 24 ruling, showing the
date that the ruling was served
In Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894(Alan), the Supreme Court considered whether, in light of the text of former
rule 8.104(a)(1),26 the former rule “require[d] a single, self-sufficient
26 The version of former Rule 8.104(a)(1) at issue in Alan provided that,
unless a relevant statute or rule of court provided otherwise, a notice of
appeal must be filed “60 days after the superior court clerk mails 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
mailed. . . . ” (Alan, supra, 40 Cal.4th at p. 898, italics added, quoting former
Rule 8.104(a)(1).)
As noted in part III.B.2, ante, Rule 8.104(a)(1), currently provides for
an appeal period of “60 days after the superior court clerk serves on the party
20
document that satisfies all the rule’s conditions,” including specifying the
date that the document was mailed. (Alan, supra, at p. 902.) The Alan court
explained that the text of former rule 8.104(a)(1) was ambiguous with respect
to this issue:
“This case . . . reveals an ambiguity in [former] rule
8.104(a)(1). The rule refers to ‘a document entitled “Notice
of Entry” of judgment or a file-stamped copy of the
judgment, [footnote omitted] showing the date either was
mailed.’ ([Former] Rule 8.104(a)(1), italics added.) The
reference to ‘a document . . . or a file-stamped copy of the
judgment’ appears to contemplate a single document that
itself shows the date on which it was mailed and, thus,
satisfies all of the rule’s requirements without reference to
other documents. This initial clarity is obscured, however,
by subdivision (a)(1)’s final participial phrase—‘showing
filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or
a filed-endorsed copy of the judgment, showing the date either was served.”
(Italics added.)
The Advisory Committee comment that accompanied the amendment of
Rule 8.104(a)(1) to refer to service of a notice of entry of judgment or filed-
endorsed copy of the judgment rather than the mailing of a notice of entry of
judgment or file-stamped copy of the judgment provided:
“Under subdivision (a)(l), a notice of entry of judgment (or a
copy of the judgment) must show the date on which the
clerk served the document. The proof of service establishes
the date that the 60-day period under subdivision (a)(l)
begins to run.” (Advisory Comment to former Rule 8.104(a),
as eff. Jan. 1, 2010, italics added.)
This comment remains as part of the official Advisory Committee
comments to Rule 8.104, albeit reformulated to reference Rule 8.104(a)(1)(A).
(Advisory Comment to Rule 8.104(a).)
We need not consider whether the Alan court’s “single document”
holding remains good law in light of this amendment to 8.104(a)(1)(A) and
the accompanying amendment to the Advisory Comment, because we
conclude that the clerk’s September 24 mailing of the September 24 ruling
and declaration of mailing satisfied Alan and triggered the 60-day period for
the City to appeal.
21
the date either was mailed . . . .’ (Ibid.) If that phrase
modifies the immediately preceding, alternative nominal
phrases—‘a document entitled “Notice of Entry” of
judgment’ and ‘a file-stamped copy of the judgment’—the
interpretation suggested above is correct: [former] rule
8.104(a)(1) requires a single document, sufficient in itself to
satisfy the rule’s conditions. Alternatively, if the final
participial phrase modifies the noun ‘clerk’ that appears
earlier in the sentence, then the rule demands only that the
clerk show in some manner—and not necessarily on the
face of the ‘Notice of Entry’ or appealable order—the date
on which he or she mailed that document.” (Alan, supra, at
pp. 900–901.)
The Alan court resolved the issue by concluding that, although former
rule 8.104(a)(1) did require the mailing of a single document that satisfies the
rule’s date-of-mailing condition, a clerk could satisfy this condition by
attaching a certificate of mailing to the document being served attesting to
the date of its mailing:
“[W]e conclude that rule 8.104(a)(1) does indeed require a
single document—either a ‘Notice of Entry’ so entitled or a
file-stamped copy of the judgment or appealable order—
that is sufficient in itself to satisfy all of the rule’s
conditions, including the requirement that the document
itself show the date on which it was mailed. That having
been said, we see no reason why the clerk could not satisfy
the single-document requirement by attaching a certificate
of mailing to the file-stamped judgment or appealable order,
or to a document entitled ‘Notice of Entry.’ Obviously[,] a
document can have multiple pages. But the rule does not
require litigants to glean the required information from
multiple documents or to guess, at their peril, whether such
documents in combination trigger the duty to file a notice of
appeal. ‘Neither parties nor appellate courts should be
required to speculate about jurisdictional time limits.’
[Citation].” (Alan, supra, 40 Cal.4th at p. 905, italics
added.)
22
In this case, on September 24, the trial court clerk served the City with
a filed-endorsed copy of the September 24 ruling27 together with a
declaration of mailing that showed the date that the clerk served the ruling.
(See pt. III.B.1.a, ante.) This mailing provided the City with clear notice of
the time to file an appeal from the September 24 ruling under Rule
8.104(a)(1)(A) and satisfied the single document rule of Alan.28 Decisions
from the Court of Appeal are in accord. (See Marshall v. Webster (2020)
54 Cal.App.5th 275, 280 (Marshall) [“[t]he [appealable] order granting
defendant’s anti-SLAPP motion was filed on May 11, 2018, and the clerk
served a signed, filed-endorsed copy of the ruling the same day. Accordingly,
under rule 8.104(a)(1)(A), the notice of appeal from that order had to be filed
within 60 days of May 11” (fn. omitted)];29 Russell v. Foglio (2008)
160 Cal.App.4th 653, 657 (Russell) [concluding that 60-day appeal period
triggered by clerk’s mailing of file-stamped copy of appealable order
“accompanied by a clerk’s endorsement of the date of mailing to the parties”].)
While the City correctly states in its letter brief that “the superior court
did not issue a notice of entry of judgment,” as discussed above, the sixty day
period to appeal in Rule 8.104 (a)(1)(A) is triggered by the clerk’s service of “a
document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the
judgment, showing the date either was served.” (Italics added.) Thus, the
27 We concluded in part III.B.3.a.i, ante, that the September 24 ruling was
a judgment.
28 We assume for purposes of this decision that Alan’s single-document
rule remains good law. (See fn. 26, ante.)
29 The Marshall court noted that the “order included a certification of
mailing to the parties dated and signed on May 11, 2018, by E. Fisher, deputy
clerk of the court.” (Marshall, supra, 54 Cal.App.5th at p. 278.)
23
trial court clerk’s service of a file-endorsed copy of the September 24 ruling
that included a declaration of mailing showing the date that the ruling was
served triggered the sixty day period to appeal contained in Rule 8.104
(a)(1)(A). (See Alan, supra, 40 Cal.4th at p. 905; Marshall, supra,
54 Cal.App.5th at p. 280; Russell, supra, 160 Cal.App.4th at p. 657.)
iii. The “normal time” for the City to appeal under Rule
8.104(a)
Because the trial court clerk served the City with a filed-endorsed copy
of the September 24 ruling that same day, showing the date that the ruling
was served, the “normal time” (Rule 8.104(a)) for the City to appeal the
September 24 ruling expired on November 25, 2019 — 62 days after
September 24. (See 8.104(a)(1) [“a notice of appeal must be filed on or before
the earliest of . . . (A) 60 days after the superior court clerk serves on the
party filing the notice of appeal . . . a filed-endorsed copy of the judgment,
showing the date [it] was served”].)30
We reject the City’s argument, raised in its letter brief, that it had until
January 21, 2020 to file an appeal—60 days after the City’s November 22,
2019 service of notice of entry of the November 21, 2019 “judgment.” As
explained in part III.B.3.a.i, ante, the fact that the trial court entered a
document denominated a “judgment” on November 21, 2019 after having
issued the September 24 ruling is irrelevant, because the September 24
30 Because November 23, 2019 was a Saturday, the 60-day period expired
on Monday November 25, 2019. (See Cal. Rules of Court, rule 1.10 [“The time
in which any act provided by these rules is to be performed is computed by
excluding the first day and including the last, unless the last day is a
Saturday, Sunday, or other legal holiday, and then it is also excluded”].)
24
ruling was itself a final judgment. (See Laraway, supra, 98 Cal.App.4th at
p. 583.) In short, the City’s 60-day period to appeal was not restarted by the
trial court’s issuance of the November 21, 2019 “judgment” that merely
reiterated the rulings contained in the court’s September 24 ruling.
b. The City’s time to appeal was extended pursuant to Rule
8.108(g) to no later than December 23, 2019
Alarcon timely appealed from the September 24, 2019 judgment. The
trial court clerk served the City with notice of Alarcon’s appeal no later than
December 3, 2019.31 Thus, pursuant Rule 8.108(g)(1), the City was required
to file its cross-appeal no later than December 23, 2019. (See Rule 8.108(g)(1)
[“[i]f an appellant timely appeals from a judgment or appealable order, the
time for any other party to appeal from the same judgment or order is
extended until 20 days after the superior court clerk serves notification of the
first appeal”].)
c. The City’s notice of cross-appeal was filed later than
December 23, 2019 and thus is untimely
The City filed its notice of cross-appeal on January 21, 2020, which is
after December 23, 2019—the latest day on which the City could have filed
its cross-appeal. Thus, the City’s cross-appeal is untimely and must be
dismissed. (Laraway, supra, 98 Cal.App.4th at p. 582; Rule 8.104(b).)
31 As noted in part III.B.1.f, ante, the City stated in its February 6, 2020
letter to this court that “the superior court clerk served the City with
notification of Alarcon’s original appeal on December 3, 2019,” and explained
that the trial court clerk had previously sent a notification of Alarcon’s appeal
to the City’s counsel’s former address.
25
IV.
DISPOSITION
With respect to Alarcon’s appeal from the September 24, 2019 ruling
denying Alarcon’s petition for writ of mandate, the judgment is affirmed.
The City’s cross-appeal is dismissed.
The parties are to bear their own costs on appeal.
AARON, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
26