Opinion
H047882
03-21-2022
GABRIEL ESCOBEDO, Plaintiff and Appellant, v. COUNTY OF SAN BENITO et al., Defendants and Respondents.
NOT TO BE PUBLISHED
(San Benito County Super. Ct. No. CU1700067)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Plaintiff Gabriel Escobedo filed a civil action against defendant County of San Benito and several Doe defendants. Plaintiff later filed an amendment to the complaint under Code of Civil Procedure section 474 substituting Ray Avila and Abraham Arrendondo for Does 1 and 2. Following a motion by defendants Avila and Arrendondo challenging the amendment and seeking dismissal of the case against them, the trial court dismissed Avila and Arrendondo by a signed and filed written order. (See § 581d.) Notice of entry of the dismissal order was served on plaintiff on October 7, 2019. More than 60 days later, on February 14, 2020, plaintiff filed a notice of appeal challenging the dismissal of the individual defendants. We determine that plaintiff's appeal is untimely, and therefore we will dismiss the appeal.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a civil complaint against the county and several Doe defendants alleging negligence for injuries he allegedly sustained after falling in his jail cell. The county answered the complaint and filed a motion for summary judgment. In response to the summary judgment motion, plaintiff filed a notice of "qualified nonopposition" on March 25, 2019. (Capitalization omitted.)
On April 2, 2019, two days before the scheduled hearing on the summary judgment motion, plaintiff filed an amendment to the complaint under section 474 substituting Avila and Arrendondo for Does 1 and 2.
On April 4, 2019, the trial court filed an order granting the county's motion for summary judgment.
Subsequently, the individual defendants, Avila and Arrendondo, filed a motion challenging plaintiff's amendment to the complaint and seeking dismissal of the case against them. The individual defendants contended that plaintiff unreasonably delayed in filing the amendment and that they suffered prejudice as a result.
Plaintiff filed opposition to the motion along with declarations by counsel and by plaintiff. Plaintiff contended that he did not know the names of the individual defendants and their relationship to the case until shortly before he filed the amendment to the complaint. The individual defendants filed a reply in support of their motion challenging the amendment.
After a hearing, on October 4, 2019, the trial court filed a signed, written order granting defendants' motion challenging plaintiff's amendment. The October 4, 2019 order stated, "Defendants Motion is GRANTED on the grounds that plaintiff unreasonably delayed in filing his Amendment to Complaint, and this delay resulted in specific prejudice to Defendants. Defendants RAY AVILA and ABRAHAM ARRENDONDO shall be dismissed with prejudice. Defense counsel shall prepare and submit a Judgment to the Court." (Italics added.) On October 7, 2019, the county served plaintiff with a notice of entry of the October 4, 2019 order, along with a file-stamped copy of the order. The notice of entry included a proof of service.
On December 11, 2019, the trial court filed a judgment which stated, "Summary Judgment having been entered on April 4, 2019 against [plaintiff] and in favor of Defendant [county], and further motion to add new Defendants having been denied; NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that [plaintiff] shall take nothing from Defendant [county]. Judgment IS HEREBY ENTERED in favor of Defendant [county] and against [plaintiff]. Defendant shall be entitled to recover costs to the extent permitted by law." On December 17, 2019, the county served plaintiff with a notice of entry of the judgment, along with a file-stamped copy of the judgment.
On February 14, 2020, plaintiff filed a notice of appeal from the "[j]udgment of dismissal under Code of Civil Procedure [s]ection 474."
III. DISCUSSION
As we have set forth above, plaintiff filed a notice of appeal on February 14, 2020, regarding the "[j]udgment of dismissal under Code of Civil Procedure [s]ection 474." He contends that the trial court erred in determining that he unreasonably delayed in amending the complaint to name Avila and Arrendondo as defendants.
Defendants contend that the appeal is not timely and that this court does not have jurisdiction to consider plaintiff's claim of error regarding Avila and Arrendondo. Defendants argue as follows: (1) the order dismissing Avila and Arrendondo and the notice of entry of the order were filed and served in October 2019, (2) the October 2019 dismissal order constituted an appealable judgment pursuant to section 581d and rule 8.104(e) of the California Rules of Court, and (3) plaintiff's February 14, 2020 notice of appeal was not filed within 60 days of the notice of entry of the October 2019 dismissal order.
All further rule references are to the California Rules of Court.
Plaintiff did not file a reply brief in this appeal and did not address the issue of the untimeliness of the appeal.
We agree with defendants for the following reasons. "If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Rule 8.104(b).) "The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]" (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (Van Beurden).)
Pursuant to the California Rules of Court, an appellant must ordinarily file the notice of appeal on or before the earliest of the following dates: (A) "60 days after the superior court clerk serves . . . a document entitled 'Notice of Entry' of judgment"; (B) "60 days after . . . [being] served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service"; or (C) "180 days after entry of judgment." (Rule 8.104(a)(1)(A)-(C).) As used in this rule, a" 'judgment' includes an appealable order." (Rule 8.104(e).)
Regarding the appealability of a dismissal order, section 581d states in relevant part: "All 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 shall constitute judgments and be effective for all purposes . . . ." In other words, an order of dismissal is considered a judgment when the order is (1) written, (2) signed by the court, and (3) filed in the action. (Ibid.) A dismissal order meeting these requirements is appealable. (See, e.g., Cox v. Superior Court (2016) 1 Cal.App.5th 855, 858 (Cox) [trial court's "order striking petitioner's civil complaint was signed by the judge and filed, and had the effect of dismissing the action against the individually named defendants, and thus constitutes an appealable judgment"]; City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 157 (City of Los Angeles) [signed and filed minute order dismissing the case constituted appealable order].)
Further, when a defendant is dismissed by order pursuant to section 581d, the order is final and appealable as between the plaintiff and that defendant, even though the case may be left open as between other parties in the action. (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 223, fn. 2 (Friendly Village) [dismissal order eliminating one defendant "is appealable even though the action is not terminated against the other defendants"]; see Katz v. Feldman (1972) 23 Cal.App.3d 500, 503, fn. 2 (Katz).)
In this case, the trial court's October 4, 2019 order stated, "Defendants RAY AVILA and ABRAHAM ARRENDONDO shall be dismissed with prejudice." The dismissal order was (1) in writing, (2) signed, and (3) filed by the court. The order was therefore appealable by plaintiff as to defendants Avila and Arrendondo. (§ 581d; Cox, supra, 1 Cal.App.5th at p. 858; City of Los Angeles, supra, 7 Cal.App.5th at p. 157; Friendly Village, supra, 31 Cal.App.3d at p. 223, fn. 2; Katz, supra, 23 Cal.App.3d at p. 503, fn. 2.)
We observe that the dismissal order, similar to the judgment, the order granting summary judgment, and an order continuing the summary judgment hearing date, all have a stamp of the judge's name on the signature line of the order or judgment rather than an actual signature. The use of stamp for the judge's name on the dismissal order satisfies the requirement that the order be "signed by the court" within the meaning of section 581d. (Brehm v. 21st Century Ins. Co. (2008) 166 Cal.App.4th 1225, 1234, fn. 5.)
We observe that the October 4, 2019 dismissal order also directed "[d]efense counsel," who represented the county and the two individual defendants, to "prepare and submit a Judgment to the Court." The subsequently filed judgment, however, did not expand the time in which plaintiff could file a notice of appeal challenging the dismissal of the individual defendants Avila and Arrendondo. Indeed, the subsequently filed judgment did not expressly mention the dismissal of these two individual defendants. Instead, the subsequently filed judgment stated that judgment was "ENTERED in favor of Defendant [county] and against [plaintiff]," after summary judgment had been granted in the county's favor and after a "motion to add new Defendants ha[d] been denied." In other words, the subsequently filed judgment was entered only in favor of defendant county, after the earlier dismissal of the individual defendants Avila and Arrendondo, whose dismissals were effected by the earlier October 4, 2019 order. The subsequently filed judgment in favor of the county, which had prevailed on a motion for summary judgment, was a necessary procedural step with respect to the county, because "[a]n order granting a motion for summary judgment is not an appealable order or judgment." (Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1816.) Rather, in the summary judgment context, "[a]n appeal lies from the judgment, not from an order granting a summary judgment motion. [Citations.]" (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14, fn. 1.) In contrast, as to the individual defendants who were dismissed by a written order that was signed and filed, the trial court's dismissal order itself "constitute[d] judgment[]" with respect to the individual defendants (§ 581d).
Moreover, "[o]nce a final, appealable order or judgment has been entered, the time to appeal begins to run. The Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision. Thus, once the [October 4, 2019] order was entered, the time within which to file a notice of appeal therefrom began to run, and could not be restarted by the relabeling of the trial court's earlier decision and then entering such 'judgment' at a later date." (Laraway v. Pasadena Unified Sch. Dist. (2002) 98 Cal.App.4th 579, 583.)
In sum, the October 4, 2019 order, which dismissed defendants Avila and Arrendondo, and which was in writing, signed by the court, and filed, was an appealable order as to those defendants. (§ 581d; Cox, supra, 1 Cal.App.5th at p. 858; City of Los Angeles, supra, 7 Cal.App.5th at p. 157; Friendly Village, supra, 31 Cal.App.3d at p. 223, fn. 2; Katz, supra, 23 Cal.App.3d at p. 503, fn. 2.) Plaintiff was served with a notice of entry of the order on October 7, 2019, along with a copy of the order. Plaintiff thereafter had 60 days to file a notice of appeal regarding the trial court's dismissal of the two individual defendants. (Rule 8.104(a)(1)(B) & (e).) Plaintiff's February 14, 2020 notice of appeal, which challenges the dismissal of the individual defendants, and which was filed more than 60 days after plaintiff was served on October 7, 2019, with notice of entry of the dismissal order, was untimely. Accordingly, we will dismiss the appeal. (Rule 8.104(b); see Van Beurden, supra, 15 Cal.4th at p. 56.)
IV. DISPOSITION
The appeal is dismissed.
WE CONCUR: DANNER, J., WILSON, J.