Wilhite v. Drake CA5

Filed 3/25/14 Wilhite v. Drake CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

JACLYN CORNELIA WILHITE, F066567 Plaintiff and Appellant, (Super. Ct. No. CV-270988) v.

JIMMY F. DRAKE, OPINION Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Jaclyn Cornelia Wilhite, in pro. per., for Plaintiff and Appellant. Kaufman Borgeest and Ryan, Jeffrey S. Whittington and Vanessa K. Manolatou for Defendant and Respondent. -ooOoo-

Plaintiff appeals from the judgment entered after defendant’s motion for summary judgment was granted. We conclude plaintiff’s appeal was untimely and she failed to identify any reversible error. Consequently, we dismiss plaintiff’s appeal.1 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, acting in propria persona, sued defendant for alleged dental malpractice. Defendant moved for summary judgment, supported by the declaration of defendant containing his expert opinion that his treatment of plaintiff met the applicable standard of care. Plaintiff failed to file opposition or appear at the hearing of the motion. The trial court granted the motion and entered judgment in favor of defendant. On October 3, 2012, defendant served notice of entry of judgment on plaintiff. On November 6, 2012, plaintiff filed a motion to vacate the judgment, which the trial court denied on December 10, 2012. On January 7, 2013, plaintiff filed her notice of appeal from the judgment. DISCUSSION I. Timeliness of Appeal Defendant contends plaintiff’s appeal must be dismissed because the notice of appeal was not timely filed. “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.) Ordinarily, when one of the parties serves a notice of entry of judgment on the other party, a notice of appeal must be filed within 60 days after the date