Filed 2/5/ 21 Prince v. Pletcher CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

JESSICA PRINCE,

Plaintiff and Respondent

,

v

.
MITCHELL PLETCHER,

Defendant and Appellant

. B 296328

(Los Angeles County Super. Ct. No. BC520646 )

APPEAL from an order of the Superior Court of Los Angeles County, Robert L. Hess and Robert B. Broadbelt

, Judge s . Dismissed. No appearance for Plaintiff and Respondent.
Mitchell Pletcher , in pro. per., for Defendant and Appellant.2 ______________________ ____

Defendant , cross

- complainant, and appellant Mitchell
Pletcher 1 appeals from a post

- judgment order denying his
motion to vacate a judgment under Code of Civil Procedure
section 663

. 2 Because Pletcher’s notice of appeal was filed more than 180 days after Pletcher’s timely motion to vacate was denied by operation of law , we dismiss the appeal as untimely.

FACTUAL AND PROCEDURAL BACKGROUND

Jessica Prince sued Pletcher on September 9, 2013
, for
sexual harassment

. Pletcher filed a cross

- complaint against
Prince on November 30, 2015

, for interference with contract and economic relationships, and obtained an entry of default

1 Pletcher represented himself before the trial court and continues to represent himself on appeal. Self

represented litigants are held to the same legal standards as parties represented by attorneys. ( Kobayashi v. Superior Court (2009) 175 Cal.App.4th 53 6, 543.) “[M]ere self

representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney

rep resentation.” ( Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984

– 985.)

2 All further statutory references are to the Code of Civil Procedure, unless otherwise stated.3

on April 20, 2016. 3 Prince’s complaint was dismissed with prejudice on January 6, 2017

. 4 On December 11, 2017

, Judge Robert L. Hess entered default judgment “in favor of

cross

- complainant Mitchell Pletcher and against cross

defendant Jessica Prince in the amount of Zero Dollars ($0.00).” The clerk mailed a copy of the judgment to Pletcher on December 12, 2017. On December 27, 2017, Pletcher filed a notice of motion to vacate the judgment under section 663, seeking to vacate the court’s December 11, 2017 zero

- dollar judgment and enter a new judgment for $13,686,052. After a hearing on February 8, 2017, the court took the motion under
submission. The court did not issue a ruling on Pletcher’s December 27, 2017 motion to vacate.
O n May 11, 2018, the court issued an order of “reassignment pursuant to a recusal

, ” and transferred the

case to Judge Monica Bachner. Pletcher filed a peremptory

3 On June 18, 2020, Pletcher filed a request for judicial notice of filings and default j udgments from four cases related to the current case. Because the documents are not relevant to the issue of the timeliness of this appeal, Pletcher’s request for judicial notice is denied.

4 On our own motion, we take judicial notice of the dismissal order entered in L os A ngeles S uperior C ourt Case No. BC507823 on January 6, 2017. (Evid

. Code

, §§ 452, subd

. (d)(1), 459, subd

. (a) .) Case No. BC507823 was the lead case for several related cases, including C ase No. BC520646.4

challenge and the case was reassigned to Judge Howard L.
Halm. On October 2, 2018 , the court notified Pletcher that
the case had been reassigned to Judge Robert B. Broadbelt

. On October 18, 2018, Pletcher filed a “ Recalendared Motion to Vacate Judgment ” requesting the same relief as his original motion to vacate. At a hearing on December 20, 2018, Judge Broadbelt took Pletcher’s recalendared motion
under submission. On Februa ry 26, 2019, the court issued an order denying Pletcher’s recalendared motion to vacate.
On March 13, 2019 , Pletcher filed a notice of appea l, appealing from the February 26, 2019 post

- judgment order

. Prince has not filed a brief on appeal.

DISCUSSION

Despite the lengthy procedural history of this case in the trial court, the issue is whether the Pletcher’s March 13,
201 9 notice of appeal was timely. We conclude that it was

not. “‘[T]he timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction.’ ( Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) ‘ In the absence of statutory authorization, neither the trial nor appellate cou rts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations]. ’ ( Estate of Hanley (1943) 23 Cal.2d 120, 123; see Cal. Rules of Court, rule 8.60(d).) [¶]5

‘ Except as provided i n [California Rules of Court,] rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal. ’ (Cal. Rules of Court, rule 8.104(b).) ” ( Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 294.)

Time to Appeal Judgment

Recognizing that Pletcher is appealing from a post

judgment order , not the judgment entered on December 11,
2017 , we still consider it necessary to explain why any appeal from the judgment itself was untimely. Unless a
statute or court rule 5 provides otherwise, a notice of appeal must be filed on or before the earliest of: “(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry ’ of judgment
or a filed

- endorsed 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 filed

endorse d copy of the judgment, accompanied by proof of

5 “Rules of Court have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law.” ( R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.)6

service; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a)(1).) 6
F iling and service of certain post

- judgment motions may extend the time to appeal. ( R ule 8.108.) I f a party serves and files a valid motion to vacate the judgment within the normal time to appeal from the judgment, the time to appeal is extended until the earliest of (1) 30 days after the court clerk mails, or a party serves, the order denying the motion to vacate or a notice of entry thereof, (2) 90 days after
the first notice of intention to move

— or motion

— is filed, or (3) 180 days after the entry of jud gment. ( R ule 8.108(c); Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101, 1108 ( Starpoint ) .)

A. December 27, 201 7 motion to vacate

It is undisputed that Pletcher filed a timely motion to vacate on December 27, 2017. No order denying the motion was served, so under rule 8.108(c), Pletcher had the earlier of 90 days after filing his motion (March 27 , 2018) or 180 days after entry of ju dgment to file an appeal from the judgment. However, r ule 8.108 can only extend the time to appeal from a judgment

, not shorten it ; if a longer time frame is available under rule 8.104(a)(1) than under rule 8.108, then the longer time frame under rule 8.104(a)(1)

governs . (See Matera v. McLeod (2006) 145 Cal.App.4th 44,

6 All further rule references are to the California Rules of Court.7

57 [applying former version of rule 8.108 to motion to vacate under 473, subdivision (b)].) Therefore, the deadline for a timely appeal of the judgment would be 180 days after December 27, 2017, or June 11, 2018. ( § 12 a [extending deadlines falling on a holiday or weekend to the following weekday] ; rule 8.104(a)(1)(C) [180 days] .)

B. October 18 , 2018 recalendared motion to vacate

Pletcher’s recalendared motion to vacate, filed October 18, 2018 , did not further extend the deadline to appeal the judgment. If a party files several consecutive motions, only those motions that are timely filed will exte nd a party’s time to appeal. ( Starpoint

, supra , 201 Cal.App.4th at p. 1108, citing Meier v. Heckel (1960) 183 Cal.App.2d 329, 331.) The appellants in Starpoint filed an initial, timely motion to vacate, but later filed a second motion, withdrawing and superseding the first. The appellate court reasoned that because the second motion was filed four days after the deadline to appeal had passed, it was not a valid ly filed motion and did not effectively extend the deadline to appeal. ( Starpoint

, supra , 201 Cal.App.4th at pp. 1108

– 1109.) Under section 663a, subdivision (a)(2), a party may file a motion to vacate up to 180 days after entry of judgment,
when there ha s been no notice of entry of judgment. (§§ 12a8

[extending deadlines falling on a holiday or weekend to the following weekday], 663a, subd. (a)(2) [180

– day time limit].) 7
Pletcher’s October 18, 2018 recalendared motion to
vacate was filed 311 days after the December 11, 2 017 entry of judgment , well past the outside limit of 180 days provided
in section 663a, subdivision (a)( 2 ), and therefore untimely

. A s explained in Starpoint

, supra , 201 Cal.App.4th at pages
1108

– 1109, a n untimely motion to vacate can not extend the time to appeal from the judgment. To the extent Pletcher seeks to appeal the judgment, his appeal is untimely.

Time to Appeal P

ost

- judgment Orders

An order denying a motion to vacate judgment is separately appealable as a post

- judgment order. (§ 904.1, subd. (a)(2); Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127.) When an order is appealable, it is subject to the same time
limitations governing an app eal from a judgment . (Rule 8.104(e).)
Pletcher argu e s the 180

- day clock for a timely appeal started running from the trial court’s February 26, 2019 order denying his October 18, 2018 recalendared motion to

vacate

. We disagree, and instead conclude that the 180

- day
clock started on February 26, 2018, when Pletcher’s timely December 27, 2017 motion to vacate was denied by operation
of law.

7 Earlier deadlines apply if a party has been served with notice of entry of judgment. (§ 663a, subd. (a)(2).)9 A. December 27, 2018 motion to vacate denied by

o peration of l aw

If a validl y filed motion to vacate is not ruled upon by the court within the statutory time frame, it is denied by operation of law, and the trial court’s authority to rule on the motion expires. ( Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 47 6

– 480.) Before statutory amendments took effect on January 1, 2019, the trial court had 60 days to determine a
motion to vacate. 8 (Former § 663a, subd. (b) ; Stats. 2014, ch. 93, § 3.)
T he trial court’s authority to rule o n Pletcher’s December 27, 2017 motion to vacate expired 60 days later, on February 2 6 , 2018, resulting in a denial by operation of
law. (§ 12a ; F ormer § 663a, subd. (b) ; Stats. 2014, ch. 93, § 3.) Because there was no notice of entry of order , Pletcher had 180 days to file an appeal from the denial of his motion by operation of law, until August 27 , 2018

. (§ 12a; rule

8 Effective January 1, 2019, the statutory window was expanded to 75 days. (Stats. 2018, c h. 317, § 2. ) Under the relevant former statutory language “the power of the court to rule on a motion to set aside and vacate a judgment shall expire

. . . 60 days after filing of the first notice of intention to move to set aside and vacate the judgment. If that motion is not determined within the 60

- day period, or within that period, as extended, the effect shall be a denial of the motion without further ord er of the court.” ( F ormer § 663a, subd

. (b); S tats. 2014, ch. 93, § 3.)10

8.104(a)(1)(C).) His notice of appeal

, filed more than six
months later on March 13, 2019, was untimely. Pletcher argues tha t while his December 27, 2017 motion may have been denied by operation of law, the deadline to appeal was not triggered because there was never any entry of order or notice of entry of order. We are not persuaded

. T he plain language of rule 8.104 (a)(1)(C) contains no reference to a requirement of notice to trigger commencement of the period to appeal, in contrast to the express notice requirements in subdivisions (a)(1)(A) and (a)(1)(B). T he logical conclusion of Pl etcher’s proposed interpretation would be that whenever a post

- judgment order lacked a notice of entry of order, a party would have an unlimited time to appeal such a n order

.

B. October 18, 2018 motion to vacate was invalid

Pletcher argues that his March 13, 2019 notice of appeal timely appealed Judge Broadbelt’s February 26, 2019 order denying his October 18, 2018 recalendared motion to vacate the judgment. No appeal lies, because the
recalendared motion was untimely

. 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 must file and serve a notice of intention to move to vacate, designating the grounds, within the statutory time limits. (§ 663a, subd. (a).) As discussed earlier, t he outside deadline for filing a motion to11

vacate judgment is 180 days after entry of judgment. (§ 663a, subd. (a)(2); see also Airs Aromatics, LLC v. CBL Data Recovery Technologies

, Inc. (2020) 50 Cal.App.5th 1009, 1013, fn. 6 [trial court lacks jurisdiction to rule on untimely section 663 motion to vacate]; Conservatorship of Townsend (2014) 231 Cal.App.4th 691, 702 ( Townsend ) [“time period to file a motion to vacate is jurisdictional”]. ) The time period to file a motion to vacate is jurisdictional and cannot be extended due to mistake, inadvertence, surprise, or excusable neglect. ( Townsend

, supra , at p. 702 ; Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388, 1392

– 1395 .)
B ecause the trial court entered judgment on December 11, 2017
, any motion to vacate filed after June 11 , 2018 was untimely

. Pletcher’s October 18, 2018 recalendared motion

to vacate was untimely and invalid

, and t he trial court lacked jurisdiction to rule on the recalendared motion

. ( Townsend

, supra , 231 Cal.App.4th at pp. 702, 705

– 706.)
E ven if we were to assume that the recalendared motion was somehow timely and valid

— which we do not

— that motion was denied by operation of law 60 days after filing, on December 17, 2018 , and the trial court lacked authority to rule on the motion after that date. ( Garibotti

, supra , 243 Cal.App.4th at pp. 477

– 480.) Pletcher provides no authority for his position that the court’s February 26,
2019 order somehow reset s the clock, allowing him to appeal
what would otherwise be a void order. (See, e.g., Maroney v
Iacobsohn (2015) 237 Cal.App.4th 473, 485

– 486 [after a12

motion for new trial is denied by operation of law, neither trial court nor appellate court can revive th e motion] ; Laraway v. Pasadena Unified School Dist . (2002) 98 Cal.App.4th 579, 583 [once a judgment or appealable order has been entered, the time to appeal cannot be restarted or extended by the filing of a subsequent judgment or appealable order making t he same decision].) In sum, Pletcher’s appeal is untimely, regardless of whether we measure the timeliness of his appeal from the judgment, or from the denial by operation of law of his December 27, 2017 motion to vacate. Accordingly, we dismiss Pletcher’s untimely appeal.

DISPOSITION

The appeal is dismissed

. Because respondent Jessica Prince did not file a brief or otherwise make an appearance, no costs are awarded on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

MOOR, J.

We concur:

RUBIN, P. J. BAKER, J.