Dannelley v. Wu CA4/3

Filed 3/16/23 Dannelley v. Wu CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOHN MICHAEL DANNELLEY and MARY A. DANNELLEY, G062072 Plaintiffs and Respondents, (Super. Ct. No. 30-2020-01161801) v. OPINION HOWARD WU,

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Andrew Minegar, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Appeal dismissed. The Bensamochan Law Firm and Eric Bensamochan for Defendant and Appellant. Beinert Katzman Littrell Williams, Anthony R. Bisconti and Carlos A. Nevarez for Plaintiffs and Respondents.

After allegedly losing a significant monetary investment in hotel and resort properties, and an anticipated return on such investment, respondents John Michael Dannelley and Mary A. Dannelley sued appellant Howard Wu and others for breach of contract, fraud, and unfair business practices, among other claims. Appellant answered the complaint. Thereafter, following multiple discovery related orders, the trial court granted an unopposed motion by respondents for terminating sanctions against appellant and struck his answer. On June 28, 2022, the trial court entered a default judgment against appellant, awarding respondents approximately $3.3 million in damages. Respondents mail served a notice of entry of judgment on appellant a couple weeks later. Nearly five months later, on December 5, 2022, appellant filed a notice of appeal. Prior to the filing of the appellate record, this Court stayed the appeal on its own motion and requested informal briefing from the parties concerning the timeliness of appellant’s appeal. Having reviewed those briefs and evidence submitted in conjunction therewith, we conclude the appeal is untimely and must be dismissed.

DISCUSSION “Under California law, if an appeal is untimely, the appellate court has no jurisdiction to consider its merits and the appeal must be dismissed.” (Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 762; Cal. Rules of Court, rule 8.104(b).) When any party serves upon the party filing the notice of appeal a document entitled “‘Notice of Entry’ of judgment”, the appealing party has 60 days to file a notice of appeal. (Cal. Rules of Court, rule 8.104(b).) If no such document is served by a party, and the court clerk does not mail a document similarly titled, a party has 180 days within which to file a notice of appeal. (Ibid.) Here, respondents served appellant with a notice of entry of judgment on July 12, 2022 (the notice). The associated proof of service indicates the notice was