Bartels v. Bartels CA1/3

Filed 1/10/14 Bartels v. Bartels CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

LYNNE M. BARTELS, Petitioner and Respondent, A138927 v. SCOTT A. BARTELS, (San Mateo County Respondent and Appellant. Super. Ct. No. FAM0110888)

Respondent Lynne Bartels (Wife) moves to dismiss the appeal in this marital dissolution case as untimely. She correctly asserts that appellant Scott Bartels (Husband) filed his notice of appeal after the statutory deadline had passed. We therefore lack jurisdiction over the appeal, so we must dismiss it. BACKGROUND AND DISCUSSION On January 16, 2013, following a two-day trial, Wife prepared and submitted a judgment in compliance with the trial court’s findings and order of dissolution. The clerk’s office subsequently notified her that her “judgment package” had been lost, and instructed her to resubmit it. The clerk’s office filed the resubmitted judgment on March 18, 2013 and served notice of its entry on the parties that same day. What happened next is not entirely clear, but at some point the original judgment submission resurfaced and, apparently by mistake, was filed by the clerk on April 19. Save for one minor exception, the two judgments are identical. The cover page of the

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April 19 judgment indicates both “dissolution” and “status only,” while only the “dissolution” box was checked on the judgment filed March 18; it appears that a checkmark in the “status only” box had been whited out. This discrepancy is immaterial, as the judgment indisputably resolved property and support issues as well as marital status. Notice of entry of the judgment filed April 19 was served the same day. Husband filed his notice of appeal on June 11, 2013, purportedly from the judgment filed April 19. Wife moved to dismiss on the ground that Husband’s notice of appeal was filed more than 60 days after the March 18 service of notice of entry of judgment. Husband acknowledges that he was properly served with notice of the March 18 judgment, but he asserts that he (or, rather, his attorney) believed that the second entry of judgment superseded the first, and therefore that it restarted the jurisdictional time to appeal. He urges us to give him the benefit of the 180-day outside limit on the time to appeal (Cal. Rules of Court, rule 8.104(a)(1)(C)) because his mistake was thus “brought about by clerical irregularities.” But the law is clear that we have no authority to do so. “Rule 45, subdivision (e), of the California Rules of Court [current rule 8.60(d)], provides that ‘[t]he reviewing court for good cause may relieve a party from a default occasioned by any failure to comply with these rules, except the failure to give timely notice of appeal.’ (Italics added.) The reason for this proviso was clearly stated by us in Estate of Hanley (1943) 23 Cal.2d 120 . . . , in language which has since been reiterated by us on many occasions. ‘In strictly adhering to the statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for excusable delay in complying with many provisions in the statutes and rules on appeal, such as those governing the time within which the record and briefs must be prepared and filed. These procedural time provisions, however, become effective after the appeal is taken. The first step, taking of the appeal, is not a procedural one; it vests jurisdiction in the appellate court and terminates the jurisdiction of the lower court.’ [Citation.] The consequences of this fundamental distinction were explained at an earlier point in the opinion. ‘In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve