Filed 11/17/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Conservatorship of the Person and Estate of 

LOUISE E. TOWNSEND.

___________________________________

BARBARA GONZALES, as Conservator, 

etc.,

Petitioner and Respondent,

v.

AURORA LOAN SERVICES, LLC, et al.,

Petitioners and Appellants.

 B247366

 (Los Angeles County

 Super. Ct. No. KP010708)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Thomas F. Nuss, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21). 

Appeal dismissed.

Early Sullivan Wright Gizer & McRae, Eric P. Early, Bryan M. Sullivan,

Allison S. Hyatt and Christopher Ritter for Petitioners and Appellants.

Law Office of Gary C. Wunderlin and Gary C. Wunderlin for Petitioner and 

Respondent.

_________________________
2

In this dispute over title to real property, petitioner and respondent Nationstar 

Mortgage, successor in interest to Aurora Loan Services, LLC (hereafter, Lender),

1

attempts to appeal from a judgment in favor of petitioner Barbara L. Gonzales, as 

conservator of the person and estate of Louise E. Townsend, following a trial before the 

Honorable Thomas F. Nuss, a retired superior court judge appointed as a temporary 

judge. Gonzales moved to dismiss the appeal because Lender’s notice of appeal was not 

filed within 60 days after service of notice of entry of judgment (Cal. Rules of Court, rule 

8.104(a)(1)(B)),2and Lender’s motion to set aside and vacate the judgment submitted to 

the temporary judge did not extend the time within which to appeal because it was not 

timely filed with the superior court clerk as required under rule 2.400(b)(1), (2)3and 

 

1 Aurora Loan Services, LLC, the petitioner and respondent in the probate 

proceedings, is successor in interest to Benchmark Lending Services LLC.

2 All references to any rule will be to the California Rules of Court.

3 Rule 2.400(b) provides: (1) “All original documents in a case pending before a 

temporary judge or referee must be filed with the clerk in the same manner as would be 

required if the case were being heard by a judge, including filing within any time limits 

specified by law and paying any required fees. The filing party must provide a filestamped copy to the temporary judge or referee of each document relevant to the issues 

before the temporary judge or referee. [¶] (2) If a document must be filed with the court 

before it is considered by a judge, the temporary judge or referee must not accept or 

consider any copy of that document unless the document has the clerk’s file stamp or is 

accompanied by a declaration stating that the original document has been submitted to 

the court for filing.”
3

section 633a, subdivision (a)4of the Code of Civil Procedure.

5

In this case, we must 

determine whether submitting the motion to vacate to the temporary judge rather than 

filing it with the superior court clerk extends the 60-day time period to appeal under 

rule 8.108(c). 

We conclude the time to extend the period to appeal is conditioned upon filing 

with the superior court clerk a valid “notice of intent to move—or a valid motion—to 

vacate the judgment” that satisfies all the statutory requirements. (Rule 8.108(c).) 

Submitting the motion to vacate to a temporary judge is not a valid motion because it 

does not comply with the Code of Civil Procedure and Rules of Court. Therefore, the 

time to appeal was not extended. The rules governing posttrial motions involve drawing 

bright lines marking the point when the trial court’s jurisdiction over a case ends and the 

jurisdiction of the appellate court begins. We caution the bar that stipulating to a 

temporary judge does not relieve the parties from complying with statutes that affect our 

jurisdiction. Because the time to appeal was not extended, this appeal is untimely. 

Accordingly, we dismiss the appeal. 

 

4

Section 663a provides: “A party intending to make a motion to set aside and 

vacate a judgment, as described in Section 663, shall file with the clerk and serve upon 

the adverse party a notice of his or her intention, designating the grounds upon which the 

motion will be made, and specifying the particulars in which the legal basis for the 

decision is not consistent with or supported by the facts, or in which the judgment or 

decree is not consistent with the special verdict, either: [¶] (1) After the decision is 

rendered and before the entry of judgment. [¶] (2) Within 15 days of the date of mailing 

of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or 

service upon him or her by any party of written notice of entry of judgment, or within 

180 days after the entry of judgment, whichever is earliest.”

5 Unless indicated, all further statutory references in this opinion will be to the 

Code of Civil Procedure.
4

FACTUAL AND PROCEDURAL BACKGROUND6

1. Refinance Loan Giving Rise to Petitions Filed in Probate Court

In 2004, when Louise E. Townsend was 79 years old, she signed loan documents 

to obtain a $341,250 home equity refinance loan on real property located at 2434 Bonita 

Avenue, La Verne, California (the property). Townsend’s son apparently negotiated the 

refinance loan on his mother’s behalf. The refinance loan was secured by a deed of trust 

on the property, which required Townsend to first execute a grant deed conveying title to 

the property from the Louise E. Townsend Trust back to her as an individual (grant 

deed). Townsend signed a promissory note in favor of Lender. When escrow closed, 

Townsend’s son accepted the refinance loan proceeds and placed the funds in a joint 

account held in his and his mother’s name. 

In 2005, Barbara Gonzales, Townsend’s daughter, first learned of the refinance 

loan. Gonzales became successor trustee of Townsend’s trust when Townsend’s son 

resigned. Gonzales also petitioned and received Letters of Temporary Conservatorship of 

her mother’s person and estate, and later she received a general appointment as her 

mother’s conservator. 

Gonzales obtained the remaining $170,000 in refinance loan funds. She used the 

proceeds to pay off a prior mortgage ($48,600) on the property, to pay various credit card 

debts, to make property improvements, and to provide for Townsend’s care. 

In total, approximately 24 monthly payments on the refinance loan were made on 

behalf of Townsend’s estate. When Gonzales stopped making payments, the refinance 

loan went into default and a foreclosure sale on the property was scheduled for July 25, 

2008. 

 

6 Only a brief summary of the facts is necessary because we conclude the appeal is 

not timely. 
5

In June 2008, before the scheduled foreclosure sale, Gonzales filed a petition to 

determine title to the property (Prob. Code, § 850). The petition sought to have the grant 

deed, deed of trust, and promissory note declared void because Townsend lacked 

capacity, as she “had already been diagnosed with dementia and was incompetent to 

manage her own financial resources or to resist fraud or undue influence.” Gonzales also 

sought a determination that Lender had no interest in the property.7 

Lender asserted numerous defenses to the petition. Lender also filed a petition to 

assert a claim for an equitable lien against the property in the sum of $341,250, or in the 

alternative Lender sought restitution of the refinance loan proceeds. 

2. Trial, Judgment, Notice of Intention to Set Aside and Vacate Judgment

In October 2010, the parties stipulated to the appointment of Judge Nuss

(Cal. Const., art. VI, § 21) to conduct the trial.8 Thereafter, the trial was held in two 

phases. 

Throughout the proceedings before Judge Nuss, all counsel, including the probate 

volunteer panel (PVP) attorney, submitted trial briefs, closing argument briefs, and 

requests for a statement of decision directly to Judge Nuss at Inland Valley Arbitration 

and Mediation Services (IVAMS). The parties did not file documents with the superior 

court clerk in compliance with rule 2.400(b)(1), and Judge Nuss does not appear to have 

rejected any documents that did not have a clerk’s file stamp (Rule 2.400(b)(2)).

9

 

7 Gonzales filed a supplemental petition alleging that if the court determined 

Townsend held title as a trustee of the Louise E. Townsend Trust, the asset would be 

removed from the list of conservatorship assets and administered as a trust asset. 

8

The proceedings before a temporary judge function as the equivalent of a direct 

calendar judge from the time of appointment to conclusion of the case unless the parties 

stipulate otherwise. (Knight et al., Cal. Practice Guide: Alternative Dispute Resolution 

(The Rutter Group 2013) ¶ 6.87, p. 6-22.)

9 On October 22, 2013, the superior court granted Lender’s motion for an order 

transferring records from Judge Nuss at IVAMS to the superior court file. The records 

transferred included 33 trial submissions. 
6

a. Statements of Decision, Judgment

In June 2011,10 following the conclusion of the first phase of the trial, Judge Nuss

issued a statement of decision granting Gonzales’s petition and denying Lender’s 

petition. Judge Nuss found that based upon the testimony of Townsend’s treating 

physician and a neurologist, along with Gonzales’s testimony, Townsend did not possess 

the capacity to understand the refinance or the documents presented to her in connection 

with the refinance loan. Thus, Townsend was “entirely without understanding and under 

Civil Code [s]ection 38, she had no capacity to make a contract of any kind.” 

Accordingly, the grant deed, deed of trust, and promissory note were void. Judge Nuss 

further concluded there was no evidence presented at trial to support Lender’s defenses of 

ratification, waiver, or estoppel. 

On December 11, 2012, Judge Nuss resolved the remaining issues in the second 

phase of the trial, rendering a second statement of decision. He awarded attorney fees to 

Gonzales ($92,320.61) and to Townsend’s estate ($26,675). Gonzales also was awarded 

$75,087.38 in credits for loan charges and loan payments to Lender. As to Lender’s 

claim for reimbursement under Civil Code section 38, Judge Nuss concluded that Lender 

waived the right to seek reimbursement by failing to raise the issue in its petition or at 

trial. Absent waiver, Judge Nuss also stated he did not accept the claim for 

reimbursement based upon the evidence presented at trial. 

On December 13, 2012, the judgment, reflecting the findings in both statements of 

decision, was filed in the superior court. 

On December 13, 2012, Gonzales served a notice of entry of judgment. 

3. Notice of Intention to Set Aside/Vacate Judgment

Lender moved pursuant to sections 662 and 663 to set aside and vacate the 

judgment on the grounds that the judgment was legally erroneous with regard to the 

amount owed to Lender on its reimbursement claim, and to the amount of attorney fees 

 

10 Townsend died in March 2011. 
7

awarded.11 Lender also sought to correct a factual error in the judgment. The motion 

was served on December 28, 2012, and submitted to Judge Nuss at IVAMS on the same 

day. 

Gonzales opposed the motion and submitted her written brief to Judge Nuss at 

IVAMS. She later objected to Lender’s untimely reply via e-mail to Judge Nuss at 

IVAMS. Gonzales did not raise as an objection that Judge Nuss could not consider the 

motion to vacate because Lender did not comply with rule 2.400(b)(1) or section 663a, 

subdivision (a). Judge Nuss did not reject the motion even though it had not been filed 

with the superior court clerk. (Rule 2.400(b)(2).) Instead, a hearing was set for 

January 28, 2013, but due to scheduling issues Lender agreed to waive oral argument. A 

month later, after the 60-day time period to file an appeal had expired, Gonzales’s 

counsel sent a letter (Gonzales letter) to Judge Nuss at IVAMS informing him that the 

motion to vacate was not filed with the superior court clerk as required under 

section 663a, subdivision (a). 

Judge Nuss did not issue a ruling on the motion to vacate. 

4. Appeal, Motion to Dismiss

On March 1, 2013, the day after the Gonzales letter was sent to Judge Nuss, 

Lender filed a notice of appeal. On March 13, 2013, Lender filed an amended notice of 

appeal. 

Gonzales moved to dismiss the appeal on the ground that the appeal was untimely

because the motion to vacate was not filed with the superior court clerk during the 15-day 

jurisdictional time period after service of notice of entry of judgment, and therefore it was 

 

11 Although the parties in their briefs refer to a motion for new trial, Lender did not 

bring the motion pursuant to section 659. “As a general rule, the trial court may consider 

only the grounds stated in the notice of motion. [Citations.] . . . The purpose of these 

requirements is to cause the moving party to ‘sufficiently define the issues for the 

information and attention of the adverse party and the court.’ [Citation.]” (Luri v. 

Greenwald (2003) 107 Cal.App.4th 1119, 1125.) Thus, our discussion is limited to the 

grounds stated, that is, sections 662 and 663. 
8

not valid for purposes of extending the time in which to appeal. We deferred ruling on 

the motion to dismiss. 

DISCUSSION

1. The Appeal was Filed More than 60 Days After Service of Notice of Entry of 

Judgment

“Compliance with the time for filing a notice of appeal is mandatory and 

jurisdictional. [Citation.]” (Laraway v. Pasadena Unified School Dist. (2002) 

98 Cal.App.4th 579, 582.) “ ‘Unless the notice is actually or constructively filed within 

the appropriate filing period, an appellate court is without jurisdiction to determine the 

merits of the appeal and must dismiss the appeal.’ [Citations.] The purpose of this 

requirement is to promote the finality of judgments by forcing the losing party to take an 

appeal expeditiously or not at all. [Citation.]” (Silverbrand v. County of Los Angeles

(2009) 46 Cal.4th 106, 113.) 

A notice of appeal must be filed within 60 days after service (whether by the 

superior court clerk or by a party) of a notice of entry of judgment or a file-stamped copy 

of the judgment. (Rule 8.104(a).) For judgments, the judgment is “entered” on the date 

of filing, or (in those counties maintaining a judgment book), the date of entry in the 

judgment book. (§ 668.5; Rule 8.104(c)(1).) 

“Only a timely filed notice of appeal can invoke the jurisdiction of this court.” 

(Ramirez v. Moran (1988) 201 Cal.App.3d 431, 437.) “In strictly adhering to the 

statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing 

procedural missteps. Relief may be given for excusable delay in complying with many 

provisions in the statutes and rules on appeal, such as those governing the time within 

which the record and briefs must be prepared and filed. These procedural time 

provisions, however, become effective after the appeal is taken. The first step, taking of 

the appeal, is not merely a procedural one; it vests jurisdiction in the appellate court and 

terminates the jurisdiction of the lower court.” (Estate of Hanley (1943) 23 Cal.2d 120, 

123.) 
9

When a notice of appeal “has not in fact been filed within the relevant 

jurisdictional period—and when applicable rules of construction and interpretation fail to 

require that it be deemed in law to have been so filed—the appellate court, absent 

statutory authorization to extend the jurisdictional period, lacks all power to consider the 

appeal on its merits and must dismiss, on its own motion if necessary, without regard to 

considerations of estoppel or excuse.” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 

15 Cal.3d 660, 674 (Hollister).) An untimely appeal is an “absolute bar” to appellate 

jurisdiction. (Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 83.)

Here, the notice of entry of judgment was served on December 13, 2012. The time 

to appeal expired on February 11, 2013. The notice of appeal was filed on March 1, 

2013, outside the 60-day period. Thus, the appeal is untimely unless the time to appeal is 

extended. 

2. Lender’s Motion to Vacate Did Not Extend the Time to File an Appeal Because 

it Was Not Valid as it Failed to Comply with the Procedural Requirements

The 60-day period is extended if, within that time period, any party serves and 

files a “valid notice of intention to move—or a valid motion—to vacate the judgment.” 

(Rule 8.108(c); see Payne v. Rader (2008) 167 Cal.App.4th 1569, 1573-1574.)

12 “As 

used in these provisions, the word ‘valid’ means only that the motion, election, request, 

or notice complies with all procedural requirements; it does not mean that the motion, 

election, request, or notice must also be substantively meritorious.” (Advisory Com. 

com., Deerings Ann. Codes, Rules of Court (2014 ed.) foll. Rule 8.108, p. 201]; see also 

Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1047 

[“valid” motion to extend the time to appeal “complies with all procedural 

requirements”].) 

 

12 The time to appeal from the judgment is extended until the earliest of 30 days after 

service (by the court clerk or a party) of the order denying the motion or a notice of entry 

of that order, 90 days after the first notice of intention to move (or motion) to vacate the 

judgment is filed, or 180 days after entry of judgment. (Rule 8.108(c).) 
10

The procedural requirements for a valid motion to vacate are set forth in sections 

663 and 663a. A party intending to make such a motion “shall file with the clerk and 

serve upon the adverse party” a notice of intention to move, designating the grounds, 

within the statutory time limits. (§ 663a, subd. (a).) 

In Payne v. Rader, supra, 167 Cal.App.4th 1569, the court dismissed as untimely 

an appeal from a judgment because the motion to vacate was procedurally infirm as it did 

not state valid grounds for relief. (Id. at pp. 1574-1576.) The Payne court also rejected 

appellant’s argument to deem the motion a new trial motion because the statutory 

requirements had not been satisfied. (Id. at pp. 1575-1576.) The court reasoned: “Were 

we to begin saving untimely appeals by allowing procedurally invalid posttrial motions to 

be deemed entirely different motions, we would be subverting the carefully drawn 

jurisdictional scheme. Such mischief is strictly forbidden. ‘In the absence of statutory 

authorization, neither the trial nor appellate courts may extend or shorten the time for 

appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune.’ 

[Citation].” (Id. at p. 1576.) 

Like the appellant in Payne, Lender’s motion to vacate is procedurally infirm. 

The motion was not “file[d] with the clerk” within 15 days after service of notice of entry 

of judgment. (§ 663a, subd. (a).) The time period to file a motion to vacate is 

jurisdictional and cannot be extended due to mistake, inadvertence, surprise, or excusable 

neglect. (Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 

49 Cal.App.4th 1388, 1392-1395.) 

By referring to the motion to vacate as “filed with Judge Nuss,” Lender appears to 

contend the parties’ stipulation somehow excused compliance with the requirement to 

“file with the clerk” the motion to vacate as stated in section 663a, subdivision (a). The 

parties’ stipulation that Judge Nuss would preside over the trial conferred judicial power 

to act as a temporary judge. The parties’ stipulation did not permit them or Judge Nuss to 

ignore the Code of Civil Procedure, especially where the Legislature has carefully drafted 

the jurisdictional scheme for posttrial motions. All statutes, Rules of Court, judicial 

ethics, and case law remain applicable to the proceedings before a temporary judge. 
11

a. Concepts of Estoppel or Justifiable Reliance Cannot Cure the 

Default

Lender contends that “estoppel,” or concepts of justifiable reliance apply here

based upon the parties’ conduct so as to excuse the requirement of filing the motion to 

vacate with the superior court clerk. As previously noted, the parties submitted trial 

documents directly to Judge Nuss at IVAMS in violation of rule 2.400(b)(1). Judge Nuss 

also accepted documents, including the motion to vacate, without a clerk’s file stamp in 

violation of rule 2.400(b)(2). Gonzales did not raise the procedural defect in opposition 

to the motion to vacate until it was too late to file the motion to vacate with the superior 

court clerk or to timely appeal from the judgment. We recognize the equities may favor 

Lender because had Gonzales opposed the motion on this ground, or had Judge Nuss 

rejected the motion, Lender could have timely filed with the clerk the motion to vacate or 

timely filed a notice of appeal. But, equitable relief from a default in failing to file a 

timely appeal is not available. 

In Hollister, supra, 15 Cal.3d 660, the court refused to relieve the appellants from 

their default in failing to file a timely notice of appeal in a civil case under theories of 

“ ‘substantial compliance,’ ” “ ‘justifiable reliance,’ ” or “ ‘quasi-estoppel’ ” when the 

clerk misinformed counsel’s office of the entry date of the minute order denying the 

motion for new trial. (Id. at pp. 665-667.) Rule 8.60(d) provides that a “reviewing court 

may relieve a party from default for any failure to comply with these rules except the 

failure to file a timely notice of appeal.” “No post-Hollister case has put even a minor 

chink in the armor of the rule.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 

1484, 1488.) 

In Hollister, supra, 15 Cal.3d 660, and in Estate of Hanley, supra 23 Cal.2d 120, 

the California Supreme Court has made clear that a party’s reliance on misinformation or 

misrepresentations by either the clerk or an opposing party is not sufficient to excuse the 

strict jurisdictional rule enunciated above. (Hollister, supra, at pp. 665-667; Estate of 

Hanley, supra, at p. 122.) “It may be assumed that the appellant has presented grounds 

for relief which would be sufficient if relief could be granted. But the requirement as to 
12

the time for taking an appeal is mandatory, and the court is without jurisdiction to 

consider one which has been taken subsequent to the expiration of the statutory period. 

[Citations.]” (Estate of Hanley, supra, at pp. 122-123.) Appellate jurisdiction is not a 

matter of appellate court discretion.

b. Lender’s Cases Addressing Waiver are Inapposite

Lender argues that its motion to vacate is not procedurally infirm because it was 

submitted to Judge Nuss within the jurisdictional 15-day time period in section 663a, 

subdivision (a), and its failure to file the motion with the clerk as required by the Rules of 

Court is not jurisdictional. This argument is not persuasive. 

Lender’s argument is based upon a line of waiver cases addressing rule 2.831, 

setting forth the requirements for a stipulation to appoint a temporary judge. In re 

Richard S. (1991) 54 Cal.3d 857 held that when construing former rule 244 (now rule 

2.831) the parties who have stipulated to a referee sitting as a temporary judge waive any 

claim of error based on the failure to strictly adhere to the procedural requirements of the 

rule. (In re Richard S., at pp. 863-866.) The California Supreme Court determined that 

former rule 244 (now rule 2.831) “is directory rather than mandatory to the extent that it 

imposes requirements beyond those expressed in article VI, section 21, and that no 

purpose would be served by interpreting it as intended to void any action taken when the 

requirements of the rule were not precisely fulfilled.” (In re Richard S., at p. 865; see 

also Gridley v. Gridley (2008) 166 Cal.App.4th 1562, 1579 [any failure to strictly comply 

with rule 2.831 by oral or implied stipulation to temporary judge’s appointment is a 

“waiveable error”]; Estate of Fain (1999) 75 Cal.App.4th 973, 988-991 [tantamount 

stipulation doctrine applies to appointment of temporary judge and any claim of error 

based on failure to comply with written stipulation requirement is waived].) 

“ ‘[T]he “mandatory” or “directory” designation does not refer to whether a 

particular statutory requirement is obligatory or permissive, but instead denotes

“ ‘whether the failure to comply with a particular procedural step will or will not have the 

effect of invalidating the governmental action to which the procedural requirement 

relates.’ ” [Citation.]’ [Citation.]” (People v. Gray (2014) 58 Cal.4th 901, 909.) This
13

analysis turns on whether the requirement is intended to provide protection or benefit to 

individuals or instead is designed to serve some collateral, administrative purpose. (Ibid.) 

If the requirement serves an administrative purpose, it is merely directory, not mandatory

and failure to comply does not invalidate later governmental action. (Ibid.; In re 

Richard S., supra, 54 Cal.3d at p. 866.) As we recently noted in Luckey v. Superior 

Court (2014) 228 Cal.App.4th 81, “while it is not reversible error for a case to proceed 

before a temporary judge on an oral or implied stipulation, [rule 2.831] nonetheless 

required that such a stipulation be in writing.” (Id. at p. 103, fn. 21.) In other words, 

even if Rules of Court are directory, the parties have to comply with them. Here, Lender 

had to comply with rule 2.400(b), and a determination that the rule is mandatory or 

directory affects whether the failure to comply with this procedural step will or will not 

have the effect of invalidating subsequent rulings in the case. 

Lender’s waiver cases also are inapposite because they do not address the failure 

to comply with the Rules of Court and the Code of Civil Procedure in proceedings before 

a temporary judge. Lender relies on Gridley v. Gridley, supra, 166 Cal.App.4th 1562, for 

the proposition that all documents “filed” with a temporary judge are deemed 

procedurally valid. The Gridley court did not so hold. On the issue of compliance with 

rule 2.400, the court stated: “[W]e note that appellants take the position that documents 

and pleadings that were filed with Justice Low are not part of this record unless they were 

also contemporaneously filed in the superior court. It is too late in the game to raise this 

complaint particularly in light of appellants’ decision not to provide a clerk’s transcript. 

As a result of that decision, the parties have filed dozens of volumes of appendices. We 

simply are not in a position to determine which of the thousands of documents that the 

parties have filed in this court were properly filed in the court below.” (Gridley, at 

pp. 1568-1569, fn. 2.) The Gridley court did not address whether a posttrial motion that 

affects jurisdiction is “filed” when it is submitted to a temporary judge. “ ‘ “It is 

axiomatic that cases are not authority for propositions not considered.” ’ [Citation.]” 

(McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626.) 
14

We also do not agree with Lender that the filing requirement in rule 2.400(b)(1)

strictly serves an administrative purpose, which would permit Judge Nuss to rule on the 

motion to vacate if timely submitted. Rule 2.400 is intended to ensure open access to 

records in any proceedings before temporary judges and referees. (Judicial Council of 

Cal., Civil and Small Claims Advisory Com., Alternative Dispute Resolution: Access to 

Hearings and Records in Proceedings Before Temporary Judges and Referees (2009)

p. 2.) The Judicial Council Advisory Committee’s report indicates that proposed 

amendments to rule 2.400, effective January 2010 and applicable in this action, clarify 

that “all original documents in proceedings conducted by either a temporary judge or a 

referee must be filed with the court clerk, not deposited with the temporary judge or 

referee.” (Judicial Council of Cal., at p. 2.) According to the report, the filing 

requirement “ensure[s] that the court clerk’s office has the complete case file and can 

make all nonconfidential portions of the file available to the public, as it does in any 

equivalent case being heard by the court.” (Id. at p. 7.) 

The jurisdictional time limits to appeal presuppose that filed documents are open 

and available to the public, “in accordance with California’s ‘long-standing tradition of 

open civil proceedings.’ [Citation.]” (In re Marriage of Mosley (2010) 190 Cal.App.4th 

1096, 1102-1103.) “As a result, a judgment or appealable order is presumptively filed, 

for purposes of the 180-day time limit on the file stamped date. That presumably is when 

it became a public writing ‘for purposes of First Amendment access rights.’ [Citation.]” 

(Id. at p. 1103.) The filing date of a motion to vacate affects our jurisdiction as it factors 

into the jurisdictional time limits within which to appeal.

While there may be circumstances in which the failure to file documents with the 

superior court clerk as required under rule 2.400(b) may be waived, a motion to vacate is 

not one of those circumstances. There are substantive differences between submitting to 

a temporary judge a trial brief or a motion to vacate. A motion to vacate focuses the 

parties on the appellate process and challenges to the appealable judgment. If the 

judgment is challenged on appeal, there is a jurisdictional time limit within which to do 

so. A motion to vacate is part of the calculation to determine the jurisdictional time 
15

limits to file an appeal. To extend the time to appeal, the procedural requirements in 

section 663a must be met. We have no authority to rewrite the statute to create 

exceptions in section 663a, subdivision (a) in proceedings before a temporary judge

where the parties submit the motion to vacate to the temporary judge but do not file it

with the clerk. 

Although no case addresses this precise issue, we find instructive Dodge v. 

Superior Court (2000) 77 Cal.App.4th 513, discussing the 60-day period in section 660 

that gives the trial court authority to grant a motion for new trial. (Dodge, at p. 515.) In 

Dodge, “[b]y letter dated April 12 (the 60th day after service of the judgment) and 

postmarked April 13 (the 61st day after service of the judgment), the court simply stated 

it ‘hereby grant[ed] the Motions for New Trial brought by counsel for the defendants.’ ” 

(Id. at p. 516, fn. omitted.) The letter did not bear a file stamp. (Id. at p. 516, fn. 3.) The 

Dodge court concluded that because the April 12 letter was not file-stamped, was not 

entered in the minutes, and did not state the grounds for granting a new trial, it did not 

sufficiently comply with the statutory requirements in sections 657 and 660 to grant the 

new trial motions. (Dodge, at p. 523.) The court’s order and statement of reasons came 

after the jurisdictional period, and no equitable relief was available because the 60-day 

period was mandatory and jurisdictional. (Id. at p. 524.) As the court reasoned, 

“Fairness has little to do with it. With jurisdictional deadlines, the rule, like the song, is 

what a difference a day makes. If the statute is to provide exceptions, the job is for the 

Legislature, not the courts, to carve them out.” (Ibid.) 

Here, like Dodge, Lender’s motion to vacate did not comply with the procedural 

requirements of section 663a. The motion bears no clerk file stamp indicating it was filed 

within the 15-day period. (§ 663a, subd. (a).) Were we to accept Lender’s representation 

of the date it “submitted” the motion to Judge Nuss, as Lender requests here, the date is 

not accessible in the court records and raises no presumption that the motion was filed on 

that date. Finality of the judgment would remain in doubt as the time limits to appeal 

would be subject to a “submission” date that does not appear in any court records. A 

judgment is not final until the time to appeal has expired. (Rule 8.104(a).) Based on the 
16

court records, the time to appeal expired 60 days after service of notice of entry of 

judgment because no valid motion to vacate was filed. At that point, the judgment was 

final. When it comes to late appeals, we have no jurisdiction. If the statute is to provide 

exceptions when the parties have stipulated to a temporary judge, the job is for the 

Legislature, not the courts to establish them. Accordingly, Lender’s untimely appeal is 

dismissed. 
17

DISPOSITION

The motion to dismiss the appeal is granted. In the interests of justice, no party is 

awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

CERTIFIED FOR PUBLICATION

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.