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

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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.

 B296328

 (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, 

Judges. Dismissed.

No appearance for Plaintiff and Respondent.

Mitchell Pletcher, in pro. per., for Defendant and 

Appellant.
2

__________________________

Defendant, cross-complainant, and appellant Mitchell 

Pletcher1 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. Selfrepresented litigants are held to the same legal standards as 

parties represented by attorneys. (Kobayashi v. Superior 

Court (2009) 175 Cal.App.4th 536, 543.) “[M]ere selfrepresentation 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 

representation.” (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 crossdefendant 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.

On 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 judgments 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 Los Angeles Superior Court 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 Case 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 February 26, 2019, the court issued 

an order denying Pletcher’s recalendared motion to vacate. 

On March 13, 2019, Pletcher filed a notice of appeal, 

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, 

2019 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 courts 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 in [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 postjudgment 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 rule5 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 filedendorsed 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

Filing and service of certain post-judgment motions 

may extend the time to appeal. (Rule 8.108.) If 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 judgment. (Rule 8.108(c); 

Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 

1101, 1108 (Starpoint).)

A. December 27, 2017 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 judgment to file an appeal from the 

judgment. However, rule 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. (§ 12a [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 extend 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 validly 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 has been no notice of entry of judgment. (§§ 12a 
8

[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, 2017 entry 

of judgment, well past the outside limit of 180 days provided 

in section 663a, subdivision (a)(2), and therefore untimely. 

As explained in Starpoint, supra, 201 Cal.App.4th at pages 

1108–1109, an untimely motion to vacate cannot extend the 

time to appeal from the judgment. To the extent Pletcher 

seeks to appeal the judgment, his appeal is untimely.

Time to Appeal Post-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 appeal from a judgment. (Rule 

8.104(e).)

Pletcher argues 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 

operation of law

If a validly 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, 476–480.) 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.)

The trial court’s authority to rule on Pletcher’s 

December 27, 2017 motion to vacate expired 60 days later, 

on February 26, 2018, resulting in a denial by operation of 

law. (§ 12a; Former § 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, ch. 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 order of the court.” (Former § 663a, subd.

(b); Stats. 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 that 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. The 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). The logical conclusion of Pletcher’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 an 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, the outside deadline for filing a motion to 
11

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.)

Because 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 the trial court 

lacked jurisdiction to rule on the recalendared motion. 

(Townsend, supra, 231 Cal.App.4th at pp. 702, 705–706.)

Even 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 resets 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 a 
12

motion for new trial is denied by operation of law, neither 

trial court nor appellate court can revive the 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 the 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.