Filed 3/25/14 Wilhite v. Drake CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

JACLYN CORNELIA WILHITE,

Plaintiff and Appellant,

v.

JIMMY F. DRAKE,

Defendant and Respondent.

F066567

(Super. Ct. No. CV-270988)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. 

Chapin, Judge.

Jaclyn Cornelia Wilhite, in pro. per., for Plaintiff and Appellant.

Kaufman Borgeest and Ryan, Jeffrey S. Whittington and Vanessa K. Manolatou 

for Defendant and Respondent.

-ooOoo-
2.

Plaintiff appeals from the judgment entered after defendant’s motion for summary 

judgment was granted. We conclude plaintiff’s appeal was untimely and she failed to 

identify any reversible error. Consequently, we dismiss plaintiff’s appeal.1

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, acting in propria persona, sued defendant for alleged dental malpractice. 

Defendant moved for summary judgment, supported by the declaration of defendant 

containing his expert opinion that his treatment of plaintiff met the applicable standard of 

care. Plaintiff failed to file opposition or appear at the hearing of the motion. The trial 

court granted the motion and entered judgment in favor of defendant. On October 3, 

2012, defendant served notice of entry of judgment on plaintiff. 

On November 6, 2012, plaintiff filed a motion to vacate the judgment, which the 

trial court denied on December 10, 2012. On January 7, 2013, plaintiff filed her notice of 

appeal from the judgment.

DISCUSSION

I. Timeliness of Appeal

Defendant contends plaintiff’s appeal must be dismissed because the notice of 

appeal was not timely filed. “The time for appealing a judgment is jurisdictional; once 

the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]” 

(Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. 

(1997) 15 Cal.4th 51, 56.) Ordinarily, when one of the parties serves a notice of entry of 

judgment on the other party, a notice of appeal must be filed within 60 days after the date 

 

1 We have effectively granted defendant’s July 22, 2013, Motion to Correct 

Defective Case Caption. The court’s practice is to determine independently the 

appropriate caption for each case, not to adopt the caption used on either party’s brief. 

We have determined and used the appropriate caption based upon the pleadings and 

papers filed in this court and in the trial court.
3.

of service of the notice of entry of judgment. (Cal. Rules of Court, rule 8.104.2) If, 

however, within the period of time for filing a notice of appeal, a party files a valid 

motion to vacate the judgment, the time to appeal from the judgment is extended until the 

earliest of: 30 days after the court clerk or a party serves an order denying the motion or 

a notice of entry of that order, 90 days after the motion was filed, or 180 days after entry 

of judgment. (Rule 8.108(c).) Here, plaintiff filed a motion to vacate the judgment 

within 60 days after service of the notice of entry of judgment. It was effective to extend 

plaintiff’s time for appealing only if it was a “valid” motion to vacate. (Ibid.)

As used in rule 8.108, “valid” means the motion complies with all applicable 

procedural requirements. (Advisory Com. com., Deerings Ann. Codes, Rules (2014 ed.) 

foll. rule 8.108.) The procedural requirements of a motion to vacate under Code of Civil 

Procedure section 473 include timely filing and service on the opposing party or parties. 

(Rule 8.108(c); McDonald v. Severy (1936) 6 Cal.2d 629, 631; Ramirez v. Moran (1988) 

201 Cal.App.3d 431, 437.) Additionally, the motion must be supported by a 

memorandum of points and authorities (rule 3.1112(a)) and “accompanied by a copy of 

the answer or other pleading proposed to be filed” by the moving party (Code Civ. Proc., 

§ 473, subd. (b)).

The motion filed by plaintiff consisted of a notice of motion and motion with 

documents attached.3 It indicated plaintiff was moving to vacate the summary judgment 

on the grounds it was entered due to plaintiff’s mistake and excusable neglect and the 

trial court’s inadvertence. Although the motion did not cite Code of Civil Procedure 

section 473, subdivision (b), the stated grounds for the motion indicate it was filed 

 

2 All further references to rules refer to the California Rules of Court.

3 These include copies of a subpoena duces tecum, cashier’s checks, a notice to 

compel an expert witness to attend court, and a letter from the attorney for that expert 

stating that he had not agreed to act as plaintiff’s expert.
4.

pursuant to that section. Plaintiff’s motion was not accompanied by a memorandum of 

points and authorities, a declaration attempting to establish mistake, inadvertence, or 

excusable neglect, or a proposed pleading (a proposed opposition to the motion for 

summary judgment). More importantly, the motion was not served on defendant. The 

record contains no proof of service filed in compliance with rule 3.1300(c) and the 

motion was denied in part because of “lack of statutory notice.”

Because the motion to vacate did not comply with the procedural requirements for 

such a motion, it was not a valid motion to vacate. Because it was not a valid motion to 

vacate, the time for filing a notice of appeal was not extended by rule 8.108. The 60-day 

period for filing a notice of appeal commenced on October 3, 2012, when defendant 

served notice of entry of judgment. The last day for filing the notice of appeal was 

Monday, December 3, 2012. Plaintiff’s notice of appeal was not filed until January 7, 

2013. The appeal was not timely filed pursuant to rule 8.104, and this court does not 

have jurisdiction to consider it. “If a notice of appeal is not timely, the appellate court 

must dismiss the appeal. [Citations.]” (Payne v. Rader (2008) 167 Cal.App.4th 1569, 

1573.) Plaintiff’s appeal was not timely, and we must dismiss it.

II. Failure to Identify Any Reversible Error in the Judgment

Even if this court had jurisdiction to consider the appeal, plaintiff has not 

identified any prejudicial error in the trial court proceedings. On appeal, the judgment is 

presumed correct and the burden is on the appellant to affirmatively demonstrate error. 

(Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) The appellant must raise claims of 

reversible error and present argument and authority on each point made. (In re Sade C.

(1996) 13 Cal.4th 952, 994.) “An appellant must provide an argument and legal authority 

to support his contentions. This burden requires more than a mere assertion that the 

judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or 

supported by argument or citation to authority, [they are] ... waived.’ [Citation.] It is not 

our place to construct theories or arguments to undermine the judgment and defeat the 
5.

presumption of correctness. When an appellant fails to raise a point, or asserts it but fails 

to support it with reasoned argument and citations to authority, we treat the point as 

waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 

852.) In that event, the court may, in its discretion, deem the appeal to be abandoned and 

dismiss it. (In re Sade C., supra, at p. 994.)

Plaintiff appealed from the judgment entered after the trial court granted 

defendant’s motion for summary judgment. In defendant’s motion, he presented 

evidence and argument addressing each cause of action in plaintiff’s first amended 

complaint. Plaintiff failed to oppose the motion. Because plaintiff presented no expert 

evidence contradicting defendant’s evidence that his treatment of her met the applicable 

standard of care, the court found there was no triable issue of material fact and granted 

the motion.

The arguments plaintiff raises in her briefs do not address the propriety of the trial 

court granting summary judgment. Her first argument concerns her efforts to subpoena 

an expert to testify at trial. Her second argument seems to address the summary 

judgment motion, but fails to identify any legal error that justifies reversal of the 

judgment. She concedes she failed to file opposition to the motion. She concedes she 

missed multiple hearings in her case, including the hearing on the motion for summary 

judgment. Plaintiff seems to argue that, because she was working on other aspects of her 

case—preparing to subpoena an expert for trial, preparing a second amended complaint, 

responding to defendant’s motions in limine—she was unable to prepare a timely 

opposition to the motion for summary judgment. She does not assert that she timely 

asked for and was improperly denied a continuance to prepare her opposition or obtain 

the evidence necessary to oppose the motion. (See Code Civ. Proc., § 437c, subd. (h).) 

Rather, she argues she should have been given an extension of time to file opposition 

when she made her motion to vacate the judgment after summary judgment had already 
6.

been granted. Thus, she has identified no error in the trial court’s granting of the motion 

for summary judgment or in the entry of judgment against her.

Plaintiff argues she promptly filed a motion to vacate the judgment, and the trial 

court’s denial of that motion because it lacked statutory notice was incorrect. She asserts 

the motion to vacate, as it appears in the record, is incomplete, and she filed and served it 

in accordance with Code of Civil Procedure section 1005, subdivision (b). Plaintiff’s 

notice of appeal, however, indicates she is appealing from the judgment only, not from 

the postjudgment order denying her motion to vacate. Further, it was plaintiff’s burden to 

provide an adequate record to demonstrate the claimed error, and plaintiff did not request 

correction or augmentation of the record to include the entire motion to vacate. “[A] 

party challenging a judgment has the burden of showing reversible error by an adequate 

record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) “[E]rrors not reflected in the trial 

record will not, and indeed cannot, sustain a reversal on appeal.” (Yield Dynamics, Inc. v. 

TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.)

Plaintiff has not identified any prejudicial error in the trial court’s grant of 

summary judgment in favor of defendant. She has not supported any assertion of 

prejudicial error with an adequate record and reasoned argument, supported by citations 

to authorities and to the record, demonstrating that error. This ground also justifies 

dismissal of plaintiff’s appeal. (In re Sade C., supra, 13 Cal.4th at p. 994.) Although 

plaintiff is representing herself, “[a] party proceeding in propria persona ‘is to be treated 

like any other party and is entitled to the same, but no greater consideration than other 

litigants and attorneys.’” (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 

956, 958, fn. 1.)
7.

DISPOSITION

The appeal is dismissed. Costs on appeal are awarded to defendant.

_____________________

Kane, Acting P.J.

WE CONCUR:

_____________________

Peña , J.

_____________________

LaPorte, J.⃰

 

⃰

Judge of the Kings Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.