Dannelley v. Wu CA4/3

Filed 3/16/23 Dannelley v. Wu CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOHN MICHAEL DANNELLEY and
MARY A. DANNELLEY,
G062072
Plaintiffs and Respondents,
(Super. Ct. No. 30-2020-01161801)
v.
OPINION
HOWARD WU,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Andrew
Minegar, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Appeal dismissed.
The Bensamochan Law Firm and Eric Bensamochan for Defendant and
Appellant.
Beinert Katzman Littrell Williams, Anthony R. Bisconti and Carlos A.
Nevarez for Plaintiffs and Respondents.
After allegedly losing a significant monetary investment in hotel and resort
properties, and an anticipated return on such investment, respondents John Michael
Dannelley and Mary A. Dannelley sued appellant Howard Wu and others for breach of
contract, fraud, and unfair business practices, among other claims. Appellant answered the
complaint. Thereafter, following multiple discovery related orders, the trial court granted
an unopposed motion by respondents for terminating sanctions against appellant and struck
his answer.
On June 28, 2022, the trial court entered a default judgment against
appellant, awarding respondents approximately $3.3 million in damages. Respondents
mail served a notice of entry of judgment on appellant a couple weeks later. Nearly five
months later, on December 5, 2022, appellant filed a notice of appeal.
Prior to the filing of the appellate record, this Court stayed the appeal on its
own motion and requested informal briefing from the parties concerning the timeliness of
appellant’s appeal. Having reviewed those briefs and evidence submitted in conjunction
therewith, we conclude the appeal is untimely and must be dismissed.
DISCUSSION
“Under California law, if an appeal is untimely, the appellate court has no
jurisdiction to consider its merits and the appeal must be dismissed.” (Sanchez v.
Strickland (2011) 200 Cal.App.4th 758, 762; Cal. Rules of Court, rule 8.104(b).) When
any party serves upon the party filing the notice of appeal a document entitled “‘Notice of
Entry’ of judgment”, the appealing party has 60 days to file a notice of appeal. (Cal.
Rules of Court, rule 8.104(b).) If no such document is served by a party, and the court
clerk does not mail a document similarly titled, a party has 180 days within which to file
a notice of appeal. (Ibid.)
Here, respondents served appellant with a notice of entry of judgment on
July 12, 2022 (the notice). The associated proof of service indicates the notice was
2
deposited for processing via regular mail, addressed to appellant at two different
addresses.
Appellant does not claim any irregularity in respondents’ service of the
notice. He does not claim, for example, respondents failed to mail the notice or the
addresses to which it was sent are incorrect. Instead, he asserts he never received the
notice, and therefore he had 180 days from entry of judgment to file his appeal.
Receipt of a mailed notice of entry of judgment is not required to trigger the
60-day window to appeal. “[S]ervice is complete at the time the document is deposited in
the mail. [Citation.] . . . [T]he sender does not have the burden of showing the notice
was actually received by the addressee.” (Sharp v. Union Pacific R.R. Co. (1992)
8 Cal.App.4th 357, 360; see also Jackson v. Bank of America (1983) 141 Cal.App.3d 55,
58-59 [upholding validity of notice of entry of default judgment despite failure to include
floor or suite number of addressee located in “one of the largest buildings in Los
Angeles”].) “[T]he risk of failure of the mail is on the addressee[.]” (Meskell v. Culver
City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)
Seemingly recognizing the frailty of his non-receipt argument, appellant
contends his appeal is timely because the default judgment is void. So his argument
goes, the judgment is void because the trial court awarded damages which exceed the
amount demanded in the complaint, and a void judgment may be attacked and set aside at
any time.
Appellant misses the mark. A void final judgment is appealable.
(Conservatorship of Romo (1987) 190 Cal.App.3d 279, 283.) Thus, an appeal from such
a purported judgment must be timely even if the sole argument we are asked to consider
is whether the judgment is void. (See ibid. [appeal from allegedly void appealable order
must be timely]; Shank v. Blackburn (1923) 61 Cal.App. 577, 580-582 [dismissing
untimely appeal from purportedly void judgment].) If, as here, the appeal from the
judgment is untimely, a party’s recourse is to seek relief from the trial court. (See Rochin
3
v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239 [party may
challenge void judgment by bringing motion to vacate it or filing action in equity seeking
relief from it].)
Because respondents’ notice of entry of judgment was effective to start the
60-day period for filing a notice of appeal, and because appellant’s appeal was filed long
after the 60 days expired, the appeal must be dismissed. (Estate of Hanley (1943) 23
Cal.2d 120, 123.)
DISPOSITION
The appeal is dismissed. Respondents are entitled to their costs on appeal.
DELANEY, J.
WE CONCUR:
GOETHALS, ACTING P. J.
SANCHEZ, J.
4