Christie v. Piccolotti

Filed 11/14/08 Christie v. Piccolotti CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

Defendant James Piccolotti brings this pro se appeal from a judgment entered against him following a court trial at which he failed to appear.

The court entered judgment on March 13, 2007, in favor of plaintiff for $14,410.23, plus attorney fees and costs in an amount to be determined after plaintiff files a Memorandum of Costs and files a Motion for the Court to Determine the Amount of the Attorney Fees Awarded to Plaintiff.

The trial court entered its ruling on plaintiffs application for attorney fees on May 25, 2007, and awarded her $2,241.02 in attorney fees and $357.50 in costs. Defendant Piccolotti purported to file a notice of appeal on July 17 from both the judgment and the subsequent judgment for attorney fees on May 25, 2007.

Plaintiff Karen Christie asks that we dismiss the appeal as untimely. We agree.

When the judgment awards attorney fees but does not determine the amount, the judgment is deemed to subsume the postjudgment order determining the amount awarded, and an appeal from the judgment encompasses the postjudgment order. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.) Accordingly, the time for appeal ran from the date of the judgment, March 13, 2007, and the purported appeal on July 17, 2007, was untimely. (Cal. Rules of Court, rule 8.104(a).)

We shall dismiss the appeal.

BACKGROUND

From the very limited record on appeal, we glean the following facts.

This case apparently arises from a real estate transaction by which defendant Piccolotti sold his Sacramento home to Christie. Soon after the sale, Piccolotti moved to Lincoln City, Oregon, and lives there still.

Sometime after Piccolotti relocated to Oregon, Christie initiated this action, seeking damages for breach of contract and failure to disclose. Neither the documents evidencing the property sale nor the pleadings are in the record on appeal.

The matter proceeded to arbitration, where the arbitrator denied Christies claim. The award was served on Piccolotti at a Lincoln City, Oregon post office address.

Christie apparently sought trial de novo.

At his Lincoln City post office box address, Piccolotti received notification that the lawsuit was proceeding, and then received a notice of settlement conference and trial. But because his new employment in Oregon did not yet allow for leave or vacation, and because he had no money to make the trip to California, Piccolotti wrote the court that he would be unable to attend either the settlement conference or trial. He requested an undefined extension of the scheduled case management conference and other related matters.

In that letter, Piccolotti gave his return address as 5015 SW Dune, Lincoln City, Oregon, but he did not indicate he would no longer receive mail sent to the Lincoln City post office box address on file with the court as his address of record.

The clerks transcript reflects that a court trial was conducted on March 6, 2007 (all undesignated date references are to events in 2007). Piccolotti failed to appear. No reporters transcript of the trial appears in the record on appeal. The court entered judgment in Christies favor, awarded her damages in the principal sum of $14,410.23, plus attorney fees and costs. The judgment was filed on March 12 and the clerk mailed a notice of entry of judgment and declaration of mailing on the same day.

On May 25, the court entered its ruling granting Christies application for attorney fees and costs.

Piccolotti responded with a letter to the superior court, filed on July 17, by which he purported to appeal . . . the judgment entered in my absence on March 6, 2007, and the subsequent judgment for attorney fees on May 25, 2007. In the letter, he acknowledged having received notice of the trial date and stated he was informed after the trial that a judgment had been entered in his absence.

DISCUSSION

The Notice of Appeal Is Untimely

Christie contends in her respondents brief that Piccolottis appeal is untimely and we must dismiss it. We agree.

Rule 8.104(a) of the California Rules of Court provides in pertinent part that a notice of appeal must be filed on or before the earliest of 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment[,] 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 180 days after entry of judgment.

The judgment from which Piccolotti appeals was entered on March 6 and the attorney fees ruling, from which he also purported to appeal, on May 25, 2007. A Notice of Entry of Judgment and Declaration of Mailing was filed by the superior court clerk on March 12, and mailed to Piccolotti at his Lincoln City post office box address.

The post office box address was Piccolottis address of record and nothing in the clerks transcript or in the brief he filed on appeal indicates he ever brought to the courts attention that his post office box would no longer be a correct address for receipt of court correspondence. As a result, Notice of Entry of Judgment mailed on March 12 by the court to Piccolotti triggered the 60 day period within which he could timely appeal. (Cal. Rules of Court, rule 8.104(a)(1).) The time within Piccolotti could timely appeal expired May 11, 2007. His July 17 letter to the superior court, which we have construed as a notice of appeal, comes too late.

Unfortunately for Piccolotti, compliance with the time requirements for filing a notice of appeal is mandatory and constitutes a jurisdictional prerequisite for our review of this case. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Laraway v. Pasadena Unified Sch. Dist. (2002) 98 Cal.App.4th 579, 582.) Once the deadline expires, we have no power to entertain the appeal and must dismiss it. (Ibid.)

A postjudgment order awarding attorney fees is separately appealable. (Code Civ. Proc., 904.1, subd. (a)(2); Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) The failure to appeal an appealable order ordinarily deprives the appellate court of jurisdiction to review the order. (Ibid.)

However, when the judgment awards attorney fees but does not determine the amount, the judgment is deemed to subsume the postjudgment order determining the amount awarded, and an appeal from the judgment encompasses the postjudgment order. (Grant v. List & Lathrop, supra, 2 Cal.App.4th at p. 998.) The cases . . . confirm the ability to challenge an award of costs and/or fees by filing a separate notice of appeal. . . . [] However, requiring a separate appeal from such an order when the judgment expressly makes an award of costs and/or fees serves no apparent purpose. (Id. at p. 997.) Thus, when a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award. (Id. at p. 998.)

Accordingly, [i]n order to be appealable, a postjudgment order must also raise an issue different from those embraced in the judgment; otherwise it would give a party two chances to appeal the same ruling and thus (as in the present case) circumvent the time limit on appealing from the judgment. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651[]. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.)

An appeal from a post-judgment order which fails to raise any issue not embraced by the judgment may be dismissed. (Guillemin v. Stein, supra, 104 Cal.App.4th at p. 161.)

Piccolottis failure to meet these procedural requirements for filing a notice of appeal from the judgment is not excused because he was representing himself. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to the same restrictive procedural rules as an attorney].)^[1]

The appeal must be dismissed.

DISPOSITION

Piccolottis purported appeal from the judgment entered against him is dismissed. Christie is entitled to recover her costs on appeal. (Cal. Rules of Court, rule 8.278 (a)(1), (2).)

BLEASE , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Piccolotti knew about the pending trial date; when he did not receive a response from the court to his putative request for an extension of the trial date, it was incumbent upon him --at the very least -- to contact the court to learn whether his request had been received, granted or denied. Had he done so, he might also have learned how properly to file a change of address form with the court if, in fact, he could no longer receive mail at the post office box address on file with the court.