Marriage of Morris
Filed 11/12/09 Marriage of Morris CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of KELLI L. and JAMES E. MORRIS. | |
KELLI L. MORRIS, Respondent, v. JAMES E. MORRIS, Appellant. | E046363 (Super.Ct.No. SWD002585) OPINION |
APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. Dismissed.
James E. Morris, in pro. per., for Appellant.
James W. Wiley for Respondent.
1. Introduction
James Morris is representing himself, in propria persona, in a marriage dissolution action. Because James filed a belated notice of appeal, we dismiss his appeal.
2. Factual and Procedural Background
Kelli Morris filed a petition for dissolution on October 14, 2003.
The court filed a statement of decision on January 29, 2008.
The court filed judgment on May 22, 2008. Also on May 22, 2008, the court filed a notice of entry of judgment, including the clerks certificate of mailing that a copy was mailed to James on May 22, 2008.
The courts case report includes the following notation for June 4, 2008: PROOF OF SERVICE BY MAIL OF FINAL JUDGMENT OF DISSOLUTION ON JAMES E. MORRIS WITH MAILING DATE OF 06/02/08 FILED. The record does not contain a copy of this document.
James filed a notice of appeal on July 31, 2008.
3. Discussion
California Rules of Court, rule 8.104, subdivision (a), provides: [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 or a file-stamped copy of the judgment, showing the date either was mailed.
In the present case, the clerk mailed the notice of entry of judgment on May 22, 2008. A timely appeal had to be filed within 60 days. Because the notice of appeal should have been filed on or before July 21, 2008, the case must be dismissed.
The deadline for filing an appeal is jurisdictional: The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.) (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
Apparently, after the clerk mailed the notice of entry of judgment on May 22, 2008, another document, a proof of service of the judgment, was subsequently mailed on June 2, 2008, and filed on June 4, 2008. But there is no authority to extend the time to file a notice of appeal based on a duplicate notice mailed and filed later: 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 (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583); . . . we do not have jurisdiction to consider an appeal filed even one day after it expires (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161); . . . a trial court cannot restart the clock for filing a notice of appeal by vacating and re-entering a judgment on the ground that the appellant never received notice of entry of judgment. (Kimball Avenue v. Franco (2008) 162 Cal.App.4th 1224, 1226.)
4. Disposition
The appeal is dismissed for lack of jurisdiction. Kelli, as the prevailing party,
shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Hollenhorst
Acting P. J.
s/Miller
J.
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