Nguyen v. Young CA1/1

Filed 6/27/13 Nguyen v. Young CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

TRANG TU NGUYEN, Plaintiff and Respondent, A135369 v. WING YOUNG, (Marin County Super. Ct. No. CV042642) Defendant and Appellant.

Defendant Wing Young appeals from a judgment entered against him on the basis of an arbitration award. Because the notice of appeal was not filed in a timely manner, we dismiss his appeal. I. BACKGROUND On June 15, 2004, Trang Tu Nguyen filed a complaint against Capacon Corp. (Capacon), LH GAO Construction, and Young, the owner of Capacon. The complaint alleged causes of action for breach of contract and negligence arising from the construction of a single-family home in San Rafael. Capacon filed a separate action against Nguyen and his lenders for nonpayment of the construction expenses. The actions were consolidated, and the matter was sent to binding arbitration on stipulation of the parties in November 2005. On December 14, 2011, according to the court’s docket sheet, Nguyen’s counsel appeared before the court and made an “ex parte request for court to enter judgment for plaintiff to file abstract of judgment.” The docket sheet states that, at the time of the appearance, Nguyen’s counsel told the court “plaintiff will waive time for filing notice of

appeal due to the defendant being unavailable until April.” On December 19, 2011, the court executed a “Judgment of the Court Following Binding Arbitration” against Young for $156,097, and against Capacon for $215,777. The judgment contains the following handwritten paragraph, initialed by the court: “4. Plaintiffs, as a condition of Entry of Judgment until May 12, 2012 by which to file a Notice of Appeal [sic].” On December 23, 2011, Nguyen’s counsel served on Young a document entitled, “Notice of Entry of Judgment of the Court Following Binding Arbitration.” The notice does not attach a copy of the court’s judgment. Instead, it states, “You are hereby notified that Judgment has been entered as follows,” followed by a quotation of three of the four paragraphs of the judgment. It omits the handwritten paragraph apparently added by the trial court. The document is accompanied by a proof of service by mail. Young’s notice of appeal from the judgment was filed on May 2, 2012. Recognizing the potentially untimely nature of the appeal, we directed both parties to file supplemental letter briefs addressing the issue in an order of March 20, 2013. II. DISCUSSION The time to appeal a judgment of the superior court is governed by California Rules of Court, rule 8.104(a), which states: “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.” Assuming the validity of Nguyen’s notice of entry of judgment, rule 8.104(a)(1)(B) required Young to file his notice of appeal within 60 days of the service of the notice of entry, or February 21, 2012. The notice of appeal, filed May 2, 2012, was therefore untimely by more than two months. Because a timely notice of appeal is a jurisdictional prerequisite to this court’s consideration of an appeal,