Filed 4/29/15 Chong v. Navarro CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

HECTOR CHONG, Plaintiff and Appellant,

v. SAMUEL NAVARRO et al., Defendants and Respondents. D065732

(Super. Ct. No. ECU07292)

APPEAL from a judgment of the Su perior Court of Imperial County, Jeffrey B. Jones, Judge. Appeal dismissed. Law Offices of Francisco Javier Aldana and Francisco J. Aldana for Plaintiff and Appellant. Wilson Elser Moskowitz Eldelman & Dick er, Peter M. Hughes and Patrick W. Berry for Defendants and Respondents.

Hector Chong appeals from an order di smissing his case after the trial court granted Samuel Navarro's and Mainas Farms, Inc.'s (together, Re spondents) motion for2 terminating sanctions against Chong for disc overy abuses. We dismiss the appeal as untimely.
BACKGROUND Chong filed a complaint agai nst Respondents for personal injuries sustained after a motor vehicle accident. During the course of discovery, Chong failed to respond to Respondents' discovery requests. The tria l court ordered Chong to provide full and complete responses with out objections. Chong failed to co mply with the court's order in that he provided late response s, refused to answer numerous interrogatories, and included objections. When Chong failed to timely cure the deficiencies, Respondents moved for terminating sanctions, which were granted. On August 16, 2013 , Chong moved to reconsider and set aside the court's order granting terminating sanctions. Chong's moti on included a request for relief under Code of Civil Procedure section 473 based on his attorney's mistak e, inadvertence, surprise or neglect. The trial court ruled it could not pr oceed on the reconsideration motion because at that point, there was no writte n terminating sanctions order. On October 3, 2013, the trial court serv ed its order granting motion for terminating sanctions on the parties. On October 9, 201 3, Respondents served a notice of ruling on their motion for terminating sanctions. On October 21, 2013, Chong filed a second application for rec onsideration and to set aside the order granting Respondent's motio n for terminating sanctions. In February 2014, after multiple con tinuances, the trial court declined to hear Chong's application for reconsideration based on a determ ination that it was untimely. The trial court also denied3 Chong's request to set aside the order dism issing his complaint under Code of Civil Procedure section 473. On April 1, 2014, Chong filed his notice of appeal. The notice of appeal indicates Chong is appealing from a judgment after an order granting a summary judgment motion and from an "Order Denying Motion for Rec onsideration on Motion for Terminating Sanctions." Respondents moved to dismiss Chong's appeal on various grounds, including that it was untimely. We issued an order st ating we would consider Respondent's motion to dismiss and Chong's oppos ition thereto with the appeal.
DISCUSSION Preliminarily, we note th at although Chong's notice of appeal indicates he is appealing from a judgment after an order granting a motion for summary judgment, no summary judgment was filed in this case. Accordingly, we disreg ard that portion of Chong's notice of appeal. On the remaining portion of the notice of appeal, Chong indicates he is appealing from an "Order Denying Mo tion for Reconsideration on Motion for Terminating Sanctions." "An order denyin g a motion for reconsiderati on . . . is not separately appealable. However, if the order that was th e subject of a motion for reconsideration is appealable, the denial of the motion for reconsid eration is reviewable as part of an appeal from that order." (Code Civ. Proc., § 1008 , subd. (g).) Accordingly, we construe Chong's notice of appeal as being from the tr ial court's order dismissing his complaint. California Rules of Court, rule 8.104(a)(1 ) provides that an appeal must be filed before the earliest of "(A) 60 days after th e superior court clerk se rves on the party filing4 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 served; [¶] (B) 60 days after the party filing the notice of appeal serves or is serv ed by a party with a do cument entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment." (All rule re ferences are to the California Rules of Court.) Here, the trial court served its order gr anting motion for termin ating sanctions on the parties on October 3, 2013. On Octobe r 9, 2013, Respondents served a notice of ruling on their motion for term inating sanctions. The trial court's order stated Chong's complaint was stricken. Thus, the order c onstituted a judgment of dismissal under Code of Civil Procedure section 581d, which prov ides that "[a]ll dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed sh all constitute judgments and be effective for all purposes." The trial court's service of its order on October 3, 2013, triggered Chong's sixtyday deadline to file his notice of appeal unde r California Rules of Court, rule 8.104(a). Thus, Chong's notice of appeal in this case wa s due in December 2013. He did not file a notice of appeal until April 1, 2014. Accordingly, the appeal was untimely. Even if we give Chong the benefit of the extension of time allowed by rule 8.108(c) based on his request for relief under Code of Civil Procedure section 473, subdivision (b), his appeal is still untimely. Rule 8.108( c) provides the following: "If within the time prescrib ed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to mo ve—or a valid motion—to vacate the judgment,5 the time to appeal from the judgment is extended for all parties until the earliest of: [¶] (1) 30 days after the superior court clerk, or a party serves an order denying the motion or a notice of entry of that order; [¶] (2) 90 da ys after the first notice of intention to move— or motion—is filed; or [¶] (3) 180 days afte r the entry of judgment." (Rule 8.108(c), italics added.) Chong filed his second application to set aside the order granting Respondents' motion for terminating sanctions on October 21, 2013. The record is not clear as to when the clerk of the superior court or Respondent s served Chong with the order denying that motion or notice of entry of the order. Th is date, however, is immaterial to our discussion because pursuant to rule 8.108(c ), we look to the ea rliest of the three alternative deadlines. Thus, if Chong's appeal was untimely under any of the alternatives, we must dismiss the appeal. In this case, even if we ignore Chong' s first application to set aside the order granting terminating sanctions, he had 90 days after he fi led his second motion to set aside to initiate his appeal. Given that Ch ong filed his second motion on October 21, 2013, he was required to file his notice of appe al within 90 days of that date, which was January 19, 2014. Chong did no t file his notice of appeal un til April 1, 2014. Thus, it is untimely under rule 8.108(c). "[N]o court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the review ing court must dismiss the appeal." (Cal. Rules of Ct., rule 8.104(b).) Accordingly, the appeal is untimely under any circumstance and must be dismissed.6 DISPOSITION Respondents' motion to dismiss the appeal is granted. The appeal is hereby dismissed as untimely. Respondents are entitled to costs on appeal.

M C INTYRE, J. WE CONCUR:
M C CONNELL, P. J. AARON, J.