Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. (Super. Ct. No. 05CC09441)
Robert Lee Cissna, in pro. per., for Defendant and Appellant.
The Ryan Firm and Rummel Mor Bautista for Plaintiff and Respondent.
OPINION
MOORE, J.
* * *
Plaintiff and respondent Charles Barnes (Barnes) sued defendant and appellant Robert Cissna (Cissna) for specific performance of a contract concerning the sale of real property. A default judgment was entered against Cissna and Cissna now appeals. Barnes has filed a motion to dismiss the appeal as untimely filed. Cissna claims that, despite the fact the record contains a copy of a proof of service of notice of entry of judgment, he had no actual knowledge of the default judgment until shortly before he filed his notice of appeal. This being the case, he insists that the limitations period for filing a notice of appeal is inapplicable.
Cissna has failed to support his opposition with a sworn declaration regarding either the address at which he could have been served lawfully or his knowledge of entry of the default judgment. The only item in the record concerning service of the notice of entry of judgment is the proof of service showing service by both regular and certified mail more than four months before the notice of appeal was filed. The appeal is late, having been filed beyond the deadline of former California Rules of Court, rule 2(a), and this court has no jurisdiction to hear it. Barnes’s motion to dismiss is granted.
Former California Rules of Court, rule 2(a) was in effect in 2006, when the notice of appeal was filed. Current California Rules of Court, rule 8.104(a), discussed by the parties and in effect beginning in 2007, is substantially the same.
In the body of his opposition to the motion to dismiss, Cissna attempts to improperly file, in this court, a Code of Civil Procedure section 473.5 motion to set aside the default. A motion under this statutory provision must be filed in the trial court, not the appellate court. The dismissal of this appeal is without prejudice to Cissna’s filing a set aside motion in the trial court. Should Cissna decide to pursue such a motion, he is urged to do so with the assistance of an attorney, and mindful of the section 473.5 filing deadline.
I
FACTS
In February 2005, Barnes and Cissna executed a one-page, handwritten document entitled “Lease with Option to Purchase” and also a one-page typewritten “Lease Option Agreement Addendum.” The documents required, inter alia, a payment of $950 per month from Barnes to Cissna to keep the agreement in force. The documents contemplated a purchase price of $175,000 for three parcels of property located in Arch Beach Heights, in the event Barnes chose to purchase the property from Cissna. According to Barnes’s August 2005 complaint, he exercised his option to buy, but Cissna refused to perform the agreement. Barnes sought specific performance.
In January 2006, Barnes filed an application seeking court permission to serve Cissna by publication, via the Seal Beach News Enterprise. Attached to the application was the certificate of due diligence of a private investigator/process server named Walter E. Stewart. Among other things, Stewart declared that he had attempted to serve Cissna three times at 1739 E. Appleton St. in Long Beach and one time at 6300 W. Sunset Boulevard in Hollywood. He also declared that he believed Cissna was attempting to evade service. The court granted the application.
A default was subsequently taken against Cissna. The judgment ordered specific performance of the contract between the parties. The court required Barnes to pay $175,000 for the properties, minus certain allowable costs, attorney fees, advanced payments and liens. The judgment specifically identified a $20,892.60 lien in favor of Karlen Panosian as one to be paid. The judgment further provided: “In the event that Defendant Robert L. Cissna fails or refuses to deliver the quitclaim deeds as required by this Judgment, the Clerk of the Court is directed to execute a Quitclaim Deed, upon deposit [of] the amount of $150,011.73 in the client trust account of The Ryan Firm to be held for the benefit of and to be claimed by Defendant Robert L. Cissna.”
The Ryan Firm, attorneys for Barnes, served Cissna with notice of entry of judgment by regular and certified mail on June 23, 2006. The notice was sent to the Appleton Street address.
In a declaration filed on August 15, 2006, Attorney Carolyn A. Thorp of The Ryan Firm represented to the court that Barnes had deposited the ordered monies into the firm’s client trust account and that the funds payable to Cissna pursuant to the judgment would be released to him upon his application. The declaration specifically noted that the $20,892.60 judgment lien in favor of Karlen Panosian would be paid from the monies on deposit as ordered. Via the declaration, The Ryan Firm, on behalf of Barnes, requested that the court clerk executed quitclaim deeds because Cissna had failed to do so. Although the record does not contain copies of any deeds executed by the court clerk, the parties, in their briefing, agree that deeds were executed and recorded.
On October 31, 2006, Cissna filed a notice of appeal from the judgment on the basis that it was obtained by fraud. Barnes filed a motion to dismiss the appeal as untimely filed. Both the appeal and the motion are pending before this court.
II
DISCUSSION
A. Motion to Dismiss and Opposition:
In his motion to dismiss, Barnes states that Cissna had 60 days from service of notice of entry of judgment to file his notice of appeal. (Former Cal. Rules of Court, rule 2(a).) He asserts that, since the notice was served on June 23, 2006, Cissna’s October 31, 2006 notice of appeal was untimely. As he correctly asserts, this court is without jurisdiction to hear an untimely appeal. (Cal. Rules of Court, rule 8.60(d); Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.)
Former California Rules of Court, rule 2(a) provided: “Unless a statute or rule 3 provides otherwise, a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing 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 mailed; [¶] (2) 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 [¶] (3) 180 days after entry of judgment.”
In response to Barnes’s motion to dismiss, Cissna has filed a 13-page opposition in which he primarily argues the merits of the underlying case, instead of addressing the motion. However, he does recite that he never received any notice of the lawsuit until after a real estate agent pulled an October 2, 2006 preliminary report that showed Barnes was then the owner of the property. Cissna claims that the filing deadline under the California Rules of Court is inapplicable, because he had no actual knowledge of the litigation until he saw the preliminary report. He cites no authority in support of that proposition.
The record contains a copy of The Ryan Firm’s notice of entry of judgment, together with proof of service showing service by regular and certified mail at the Appleton Street address. Cissna cites no portion of the record to show whether or not he lived at that address and offers no sworn declaration on the topic. We observe that on page 31 of his opening brief, Cissna recites that “[a]t all times [he] lived at 135 Bonito, Long Beach, California, 90802 [and] [a]t no time did [he] represent that he lived at 1739 Appleton #2 or at 6300 Sunset Blvd.” He also explains that he took several cruises and “was gone a great deal” had service been attempted in 2005 or 2006. These recitations are not supported by the record and are not supported by sworn declaration. The only item in the record that reflects on service is the proof of service showing service on Cissna at the Appleton Street address. Cissna has failed to demonstrate that this service was defective. This being the case, the appeal must be dismissed as untimely filed.
We note that Cissna’s opposition to the motion to dismiss contains several items that do not belong in such an opposition. His opposition contains what he describes as two “counter motions” — one a California Code of Civil Procedure section 418.10, subdivision (a)(1) motion to quash service of summons (based on service by publication in the trial court) and one Code of Civil Procedure section 473.5 motion to set aside the default judgment. Cissna’s efforts to raise these points in his opposition fail for at least two reasons. First, any motion filed in the appellate court must comply with the requirements of California Rules of Court, rule 8.54(a). These “motions” did not. Second, a litigant seeking relief under these statutory provisions must file his or her motions in the trial court, not the appellate court. (Cf. Roy v. Superior Court (2005) 127 Cal.App.4th 337, 343-345 [motion to quash to be made before trial]; see Vorburg v. Vorburg (1941) 18 Cal.2d 794, 797 [trial court to determine showing of diligence in support of application for service by publication]; Sullivan v. Sullivan (1967) 256 Cal.App.2d 301, 303-304, [superior court has jurisdiction to set aside default judgment].) If Cissna desires to pursue these matters, he must file proper motions in the trial court.
Cissna also requests, in his prayer contained in the opposition, that this court give him leave to attack the judgment in favor of Panosian. Cissna explains that the Panosian case was similar to the one before us in several respects. He says that case also involved a lease with option to purchase, a plaintiff/purchaser who did not perform according to the terms of the agreement, a failure to serve him as defendant, and a purported service by publication. He complains that the trial court in the matter before us ought not have permitted Barnes to pay the Panosian judgment, which he is seeking to reverse.
The validity of the Panosian judgment is not before this court and we are powerless to pass upon it. Cissna has filed a notice of appeal from the default judgment in favor of Barnes, and this court, in this appellate case, reviews only matters arising in connection with that judgment. (People v. National Auto. & Cas. Co. (1966) 242 Cal.App.2d 150, 153 [no review of the record in another action].) We cannot, in this case, afford Cissna relief with respect to any other case. If Cissna were to file a successful motion to set aside the default judgment in favor of Barnes, and if it were determined that The Ryan Firm had paid off the Panosian lien, then any issues arising out of that payment would need to be addressed at that time. Until such time, however, there is nothing to address with respect to the Panosian judgment.
B. Appeal:
Although we have no jurisdiction to hear Cissna’s appeal, we note that even if his appeal had been timely, it likely would have failed in any event. In his 37-page opening brief, Cissna primarily addresses matters that are outside of the record. However, this court addresses only matters reflected in the record on appeal, not matters that were never presented to the trial court. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1; Estate of Locknane (1962) 208 Cal.App.2d 505, 509.) Furthermore, since Cissna’s brief primarily focuses on matters outside the record, it contains extremely few citations to the record. The failure to cite to the record is a violation of court rules. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Consequently, Cissna’s opening brief would have been subject to being stricken, if his appeal had been timely. (Ibid.; Cal. Rules of Court, rule 8.204(e).) If Cissna chooses to pursue this case in the trial court, he should bear in mind that litigants who represent themselves in court are held to the same standards as licensed attorneys. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.)
III
DISPOSITION
The motion to dismiss is granted. Barnes shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.