Springfield v. Metropolitan Trans. System CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. 37-2010-00092437-CU-PO-CTL
- Trial judge
- Luis R. Vargas
- Outcome
- dismissed — Dismissed.
- Area
- civil
- Panel
- Cynthia Aaron (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court sustained a demurrer to the plaintiff's complaint without leave to amend and entered judgment in favor of the defendant. The Court of Appeal dismissed the appeal as untimely, finding that the plaintiff failed to rebut the presumption of service of the notice of entry of judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Dismissal of appeal for untimeliness“The notice of appeal, filed in February 2012, was therefore untimely.” | de novo | correct | agree with court The court correctly applied the jurisdictional deadline for filing a notice of appeal. The plaintiff failed to provide sufficient evidence to rebut the presumption of service established by the defendant's proof of service, rendering the appeal untimely under Rule 8.104. |
Authorities
- relied: Van Beurden Ins. Servs. v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51 — The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.
- relied: In re Jordan (1992) 4 Cal.4th 116 — Unless the notice of appeal is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.
- relied: In re Chavez (2003) 30 Cal.4th 643 — The purpose of the appeal deadline requirement is to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all.
- relied: Goodson v. The Bogerts, Inc. (1967) 252 Cal.App.2d 32 — An affidavit of service is sufficient to satisfy the court that all acts necessary to effect service were performed in a timely fashion and that actual delivery would occur in the ordinary course of mail.
- relied: Otsuka v. Balangue (1949) 92 Cal.App.2d 788 — An affidavit of service is sufficient to satisfy the court that all acts necessary to effect service were performed in a timely fashion and that actual delivery would occur in the ordinary course of mail.
The appellate opinion: sound — The opinion is sound because it correctly identifies the jurisdictional nature of the appeal deadline and properly applies the presumption of service. The court adequately addresses the appellant's attempt to rebut the presumption by analyzing the specific evidence provided and finding it insufficient to prove non-receipt of the notice.
How this analysis was made · dispute it
unusual dispositionThe trial court sustained Metropolitan Transit System's demurrer to Springfield's premises liability and tort complaint without leave to amend and entered judgment for MTS on September 27, 2011. The Court of Appeal dismissed Springfield's appeal as untimely, holding that MTS's mailed notice of entry of judgment with proof of service dated October 12, 2011 triggered the 60-day period under rule 8.104(a)(1)(B), so the February 17, 2012 notice of appeal was late and the court lacked jurisdiction to reach the merits.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order sustaining MTS's demurrer without leave to amend and resulting judgment for MTS“The trial court sustained MTS's demurrer to Springfield's complaint without leave to amend and subsequently entered judgment in favor of MTS.” | unclear | not reached | unsure The appellate court never reviewed the demurrer ruling because it concluded the notice of appeal was untimely and the time to appeal is jurisdictional (rule 8.104(b); Van Beurden; In re Jordan). Nothing in the opinion permits evaluation of the demurrer's merits. |
Appellate court's own determination (not a trial-court ruling) that the appeal was untimely under rule 8.104(a)(1)(B) because MTS's proof of service of the Notice of Entry of Judgment created a presumption of service that Springfield's prison mail log and memorandum of costs did not rebut“The documents that Springfield presents thus cannot overcome the presumption of effectuated service created by MTS's presentation of proof of service of its "Notice of Entry of Judgment."” | unclear | correct | agree with court The court acted as the fact-finder on timeliness, admitting Springfield's evidence under rule 8.252(c) and weighing it. Its conclusion is defensible: the mail log actually corroborates receipt of a package from MTS's counsel on October 17, five days after the October 12 proof of service, and Springfield offered nothing showing the package lacked the notice. Even if the court loosely described the Evidence Code section 641 presumption as something to be 'rebutted' rather than treating it as a burden-of-producing-evidence presumption that drops out once contrary evidence is offered, the court effectively weighed the evidence and the 128-day filing is untimely under the 60-day trigger. The result also follows because rule 8.104(a)(1)(B) is triggered by service, which by mail is complete on deposit, a point the court did not make. |
Authorities
- relied: Van Beurden Ins. Servs. v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51 — The time for appealing a judgment is jurisdictional; once the deadline expires the appellate court has no power to entertain the appeal.
- relied: In re Jordan (1992) 4 Cal.4th 116 — Unless a notice of appeal is actually or constructively filed within the filing period, the appellate court lacks jurisdiction and must dismiss.
- relied: In re Chavez (2003) 30 Cal.4th 643 — The jurisdictional appeal deadline promotes finality of judgments by forcing the losing party to appeal expeditiously or not at all.
- relied: Goodson v. The Bogerts, Inc. (1967) 252 Cal.App.2d 32 — A sworn affidavit of mailing reciting the addressee, address, time and place of deposit with postage suffices to show service and that delivery would occur in the ordinary course of mail.
- relied: Otsuka v. Balangue (1949) 92 Cal.App.2d 788 — An affidavit of service by mail is sufficient proof that the acts necessary to effect service were performed.
- missed: Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 — The Evidence Code section 641 presumption of receipt of a properly mailed letter is a presumption affecting the burden of producing evidence; a denial of receipt creates a conflict for the trier of fact rather than leaving the presumption in force to be 'overcome.'
The appellate opinion: sound with gaps — The court correctly applied the jurisdictional rule 8.104 deadline and the Supreme Court authority on untimely appeals, and it fairly weighed Springfield's own evidence, which tended to confirm rather than negate service. It skipped the correct framework for the section 641 presumption once a denial of receipt is offered, and did not note that the rule 8.104(a)(1)(B) trigger is service rather than receipt, though neither gap changes the outcome.
Opinion
Filed 12/18/13 Springfield v. Metropolitan Trans. System CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SHELBY R. SPRINGFIELD, D061559 Plaintiff and Appellant, v. (Super. Ct. No. 37-2010-00092437-CU-PO-CTL) METROPOLITAN TRANSIT SYSTEM et al., Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Luis R.
Vargas, Judge. Dismissed.
Shelby R. Springfield, in pro. per., for Plaintiff and Appellant.
Liebman, Quigley & Sheppard and John G. Madsen for Defendants and Respondents.
Appellant Shelby R. Springfield appeals from a judgment entered in favor of respondent Metropolitan Transit System (MTS) in an action Springfield filed against MTS for "premises liability: general negligence, assault and battery, willful misconduct, intentional and negligent infliction of emotional distress." The trial court sustained MTS's demurrer to Springfield's complaint without leave to amend and subsequently entered judgment in favor of MTS. MTS contends that Springfield's appeal is untimely and must be dismissed.
California Rules of Court, rule 8.1041 provides for the time to appeal from a judgment or appealable order. The rule provides, in relevant part:
"(a) Normal time "Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
"(1)
"(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 file-stamped 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 file-stamped copy of the judgment, accompanied by proof of service; or "(C) 180 days after entry of judgment.
"[¶] . . . [¶]
"(b) No extension of time; late notice of appeal "Except as provided in 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." (Rule 8.104.)
1 All subsequent rule references are to the California Rules of Court. 2 "The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal." (Van Beurden Ins. Servs. v. Customized Worldwide Weather Ins. Agency (1997) 15 Cal.4th 51, 56; see also In re Jordan (1992) 4 Cal.4th 116, 121 ["Unless the notice [of appeal] is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal"].) The purpose of this requirement is to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all. (In re Chavez (2003) 30 Cal.4th 643, 650.)
The trial court entered judgment in favor of MTS on September 27, 2011.
Springfield filed a notice of appeal on February 17, 2012, which was 128 days after entry of judgment.
In support of its argument that Springfield's appeal was untimely filed, MTS cites to a copy of a document entitled "Notice of Entry of Judgment." The "Notice of Entry of Judgment" is accompanied by a proof of service dated October 12, 2011, signed by "E.
Gonzales," that indicates that the document was served by mail on Springfield at the address of the institution where he is incarcerated, on that date.2 Attached to the "Notice of Entry of Judgment" is a file-stamped copy of the judgment entered in favor of MTS.
A sworn affidavit of service recites the name of the person and the address to which the envelope containing the "Notice of Entry of Judgment" was directed, as well as 2 MTS's request to augment the record with these documents was granted on May 28, 2013. 3 the time and place at which it was deposited in the mail with the necessary postage. It is clear that an affidavit may be used to prove service. (Code Civ. Proc., § 2009.) In light of the presumption of Evidence Code section 641, this affidavit is sufficient to satisfy the court that all acts necessary to effect service were performed in a timely fashion and that actual delivery would occur "in the ordinary course of mail." (See Goodson v. The Bogerts, Inc. (1967) 252 Cal.App.2d 32, 39; Otsuka v. Balangue (1949) 92 Cal.App.2d 788, 791.)
In response to MTS's argument regarding the tardiness of this appeal, Springfield filed a motion to augment the record (or, in the alternative, requesting that this court take evidence and/or judicial notice) on September 24, 2013. Springfield's motion includes two attached documents: (1) an entry log that he identifies as "[t]he CDCR Form 119 Legal Mail Log from Correctional Training Facility for Appellant"; and (2) a copy of the "Memorandum of Costs w/proof of service received from Respondents' Counsel October 17, 2011."3 Based on Springfield's motion, we gather that Springfield is attempting to demonstrate, based on these documents, that he never received a copy of MTS's "Notice of Entry of Judgment," but, instead, received only a copy of the "Memorandum of Costs."
As an initial matter, we consider whether to grant Springfield's unopposed request to augment the record with these materials, and/or to take judicial notice or accept additional evidence. We grant the request to augment the record with respect to the 3 On October 24, 2013, this court determined that Springfield's motion would be considered with his appeal.
4 document that Springfield identifies as a "Memorandum of Costs." With respect to the document Springfield identifies as a "Legal Mail Log" from the correctional facility where he is housed, we exercise our discretion pursuant to rule 8.252, subdivision (c), to admit Springfield's proffered documentary evidence.4 We next consider whether these documents alter our conclusion regarding the timeliness of Springfield's appeal. They do not. Even assuming that the "Legal Mail Log" could be authenticated and that it is what it purports to be (i.e., a copy of the "mail log" evidencing the mail that Springfield received while incarcerated between June 13, 2011 and August 5, 2013), neither this document nor the copy of the "Memorandum of Costs" that Springfield has submitted sufficiently rebuts the presumption of effectuated service that the proof of service attached to the "Notice of Entry of Judgment" submitted by MTS creates. The mail log demonstrates that Springfield received a package from the law firm representing MTS on October 17, 2011, five days after the October 12, 2011 date that is reflected on the "Notice of Entry of Judgment" proof of service document.
Although Springfield claims in briefing that the only document that he received on October 17, 2011 is the "Memorandum of Costs," the evidence he has presented does not 4 Rule 8.252, subdivision (c) provides in relevant part:
" (1) A party may move that the reviewing court take evidence.
"[¶] . . . [¶]
"(3) For documentary evidence, a party may offer the original, a certified copy, or a photocopy. The court may admit the document in evidence without a hearing." 5 establish that the single package Springfield received on that date did not include multiple documents. The documents that Springfield presents thus cannot overcome the presumption of effectuated service created by MTS's presentation of proof of service of its "Notice of Entry of Judgment."
In sum, the document entitled "Notice of Entry of Judgment" accompanied by a proof of service dated October 12, 2011, signed by "E. Gonzales," constitutes written notice of entry of judgment sufficient to trigger the 60-day period of rule 8.104, subdivision (a)(1)(B). The notice of appeal, filed in February 2012, was therefore untimely.
The appeal from the judgment entered in favor of MTS is dismissed.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- In Re Chavez S099172 · 2003-05-15
- Van Beurden Insurance Services v. Customized Worldwide Weather Insurance Agency S053493 · 1997-03-06
- In Re Jordan S025000 · 1992-12-07
- Goodson v. the Bogerts, Inc. Civ. 31217 · 1967-06-26
- Otsuka v. Balangue Civ. 17016; Civ. 17017; Civ. 17018; Civ. 17019; Civ. 17020 · 1949-07-11