Mardikian v. Wawanesa General Ins. CA1/4

Filed 3/4/15 Mardikian v. Wawanesa General Ins. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

LILLIAN MARDIKIAN, Plaintiff and Appellant, A144039 v. WAWANESA GENERAL INSURANCE (San Mateo County COMPANY, Super. Ct. No. CIV526757) Defendant and Respondent.

I. INTRODUCTION In this insurance coverage dispute, the trial court entered judgment against Lillian Mardikian (plaintiff) after granting a summary judgment motion by Wawanesa General Insurance Company (defendant). Plaintiff filed a notice of appeal more than 60 days after defendant served her with notice of entry of the judgment. Accordingly, we grant defendant’s motion to dismiss this appeal. II. PROCEDURAL FACTS On September 17, 2014, the trial court granted a defense motion for summary judgment as to plaintiff’s complaint for breach of contract and breach of the implied covenant of good faith and fair dealing arising out of the denial of an automobile insurance claim. The trial court found that there was no triable issue of material fact because undisputed evidence established that plaintiff was not a named insured or

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otherwise entitled to insurance coverage under the subject policy. In reaching this conclusion, the court expressly found that plaintiff’s “self-serving” declarations attempting to create a triable issue of fact directly contradicted earlier sworn statements made by her son who was the named insured under the policy. The resulting judgment was signed by the court on October 31, 2014, and filed on November 6, 2014. Defendant served notice of entry of judgment by mailing a copy of the notice to plaintiff’s counsel on November 7, 2014. Defense counsel also emailed a courtesy copy of the notice to plaintiff’s counsel. On November 13, 2014, defendant filed a copy of the notice of entry of judgment with an attached proof of service that was completed on November 7, 2014. On January 12, 2015, plaintiff filed an in pro. per. notice of appeal which erroneously stated that the judgment in this case was entered on November 13, 2014. In her “Civil Case Information Sheet,” plaintiff correctly stated that judgment was entered on November 6, but erroneously stated that notice of entry of judgment was served on her on November 13, 2014. III. DISCUSSION Rule 8.104 of the California Rules of Court (rule 8.104) provides that, absent circumstances not present here, a notice of appeal must be filed on or before the earliest of three dates: “(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.” (Rule 8.104(a)(1).)1 “. . . If a