1 Filed 3/4/15 Mardikian v. Wawanesa General Ins. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

LILLIAN MARDIKIAN, Plaintiff and Appellant,

v. WAWANESA GENE RAL INSURANCE COMPANY, Defendant and Respondent. A144039
(San Mateo County Super. Ct. No. CIV526757)

I.
INTRODUCTION In this insurance coverage dispute, th e trial court entered judgment against Lillian Mardikian (plaintiff) after granting a summa ry judgment motion by Wawanesa General Insurance Company (defendant). Plaintiff filed a notice of appeal more than 60 days
after defendant served her with notice of entr y of the judgment. Accordingly, we grant defendant’s motion to dismiss this appeal.
II.
PROCEDURAL FACTS On September 17, 2014, the trial cour t granted a defense motion for summary judgment as to plaintiff’s co mplaint for breach of contract and breach of the implied covenant of good faith and fair dealing ar ising out of the denial of an automobile
insurance claim. The trial court found that there was no triable issue of material fact because undisputed evidence es tablished that plaintiff wa s not a named insured or2 otherwise entitled to insurance coverage under the subject policy. In reaching this conclusion, the court expre ssly found that plaintiff’s “self-serving” declarations attempting to create a triable issue of fact di rectly contradicted earlier sworn statements made by her son who was the na med insured under the policy. The resulting judgment was signed by th e court on October 31, 2014, and filed on November 6, 2014. Defendant served notice of entry of judgment by mailing a copy of the notice to plaintiff’s counsel on November 7, 2014. Defense counsel also emailed a courtesy copy of the notice to plaintiff’s c ounsel. On November 13, 2014, defendant filed a copy of the notice of entry of judgment with an attached proof of service that was completed on November 7, 2014. On January 12, 2015, plaintiff filed an in pro. per. notice of appeal which erroneously stated that the judg ment in this case was entere d on November 13, 2014. In her “Civil Case Information Sheet,” plaintiff correctly stated that judgment was entered on November 6, but erroneously stated that notice of entry of judgment was served on her on November 13, 2014.
III.
DISCUSSION
Rule 8.104 of the California Rules of Court (rule 8.104) provides that, absent circumstances not present here, a notice of app eal must be filed on or before the earliest of three dates: “(A) 60 days after the supe rior court clerk serves on the party filing the notice of appeal a document entitl ed ‘Notice of Entry’ of judg ment 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 served by a party with a document entitled ‘Notice of Entry’ of judgment or a file -stamped copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after en try of judgment.” (Rule 8.104(a)(1).) 1 “. . . If a

1 The time period is not extended by Code of Civil Proc edure section 1013 because subdivision (a) of that statute explicitly states that the five-day extension “ ‘shall not apply to extend the time for f iling . . . notice of appeal.’ ” ( Casado v. Sedgwick, Detert, Moran & Arnold (1994) 22 Cal.App.4th 1284, 1286.)3 notice of appeal is filed late, the reviewin g court must dismiss the appeal.” (Rule 8.104(b).) In this case, defendant served plainti ff with a document entitled notice of entry of judgment on November 7, 2014. Therefore, plaintiff was required to file her notice of appeal within 60 days after that date , on or before January 6, 2015. (Rule 8.104(a)(1)(B).) However, plaintiff did not f ile her notice of appeal until January 12, 2015. Since the notice of appeal was filed la te, this appeal must be dismissed. (Rule 8.104(b).) Pointing out that the copy of the notice of entry of judgment submitted in support
of defendant’s motion to di smiss this appeal contains a court-stamped date of November 13, 2014, plaintiff argues that “[i] t is impossible for this ‘complete document’
to have been served on a ny date prior to November 13, 2014.” However, the courtstamped date that plaintiff refe rences is the date that defenda nt filed a copy of its notice of entry of judgment with the proof of serv ice attached. The date defendant filed that document in the superior court is irrelevant to our inquiry; it does not alter the fact that the notice itself was served on pl aintiff on November 7, 2014. Alternatively, plaintiff contends that defendant’s service of the notice must be “presumed invalid.” To support this claim, plaintiff relies on the following standard language that appears on the pr inted proof of service form th at defendant used in this case: “I am aware that on motion of the pa rty served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing an affidavit.” Plaintiff mistaken ly invokes this proof of service language because she is the “party serv ed,” and she did not file a mo tion challenging the affidavit
of service. Plaintiff insists that defendant cannot verify the date of service because it allegedly used “ ‘stamps.com’ instead of traditional US [ sic ] postage” to mail the notice to plaintiff. First, contrary to plaintiff’s premise, the defendant did verify service by completing and filing a proof of service. S econd, even if plain tiff could verify her contention that the defendant used “stamp s.com,” she fails to explain how this4 circumstance would show that the postal can cellation date or postage meter date was more than one day after date of deposit. Citing Glasser v. Glasser (1998) 64 Cal.App.4th 1004 ( Glasser ), plaintiff contends that an evidentiary hearing must be held before the motio n to dismiss may be granted. The Glasser plaintiff opposed a motion to dismiss on the ground that the defendant’s notice of entry of judgment was not mailed. His opposition was supported by a declaration from plaintiff’s counsel w ho “aver[red] that he never received the judgment, proposed judgment, or a notice of entry of judgment,” and that on prior occasions during the litigation he did not re ceive other documents that had purportedly been served on him by the defendant. ( Id . at pp. 1008-1009.) In its summary of the factual and procedural background of the case, the Glasser court noted that the issue of
whether notice had been served was submitted for an eviden tiary hearing which resulted in a finding that notice of entry of judgment had been mail-served by the defendant. ( Id

. at p. 1009.) Nothing in Glasser supports plaintiff’s demand fo r an evidentiary hearing under
the circumstances of this case. Plaintiff does not actually dispute that notice of entry of judgment was mailed or that she received that notice. Further, there is no conflict in the
evidence which establishes th at plaintiff was mail-served with notice of entry of judgment on November 7, 2014, and that he r untimely notice of appeal was filed more than 60 days later on January 12, 2015. “Under California law, if an appeal is untimely, the appellate court has no jurisdiction to consider its me rits and the appeal must be dismissed. [Citations.]” ( Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 762; see also Van Beurden Ins. Services, Inc. v. Customized Wo rldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“The time for appealing a judgment is ju risdictional; once the de adline expires, the appellate court has no power to ente rtain the appeal. [Citation.]”].)
IV.
DISPOSITION The appeal is dismissed.5 _ ____________ ____________ RUVOLO, P. J.

We concur:

_____________ ____________ REARDON, J.

_____________ ____________ RIVERA, J.