Filed 4/29/15 Chong v. Navarro CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



HECTOR CHONG,                                                       D065732

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. ECU07292)

SAMUEL NAVARRO et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Imperial County,

Jeffrey B. Jones, Judge. Appeal dismissed.

         Law Offices of Francisco Javier Aldana and Francisco J. Aldana for Plaintiff and

Appellant.

         Wilson Elser Moskowitz Eldelman & Dicker, Peter M. Hughes and Patrick W.

Berry for Defendants and Respondents.



         Hector Chong appeals from an order dismissing his case after the trial court

granted Samuel Navarro's and Mainas Farms, Inc.'s (together, Respondents) motion for
terminating sanctions against Chong for discovery abuses. We dismiss the appeal as

untimely.

                                     BACKGROUND

       Chong filed a complaint against Respondents for personal injuries sustained after a

motor vehicle accident. During the course of discovery, Chong failed to respond to

Respondents' discovery requests. The trial court ordered Chong to provide full and

complete responses without objections. Chong failed to comply with the court's order in

that he provided late responses, refused to answer numerous interrogatories, and included

objections. When Chong failed to timely cure the deficiencies, Respondents moved for

terminating sanctions, which were granted.

       On August 16, 2013, Chong moved to reconsider and set aside the court's order

granting terminating sanctions. Chong's motion included a request for relief under Code

of Civil Procedure section 473 based on his attorney's mistake, inadvertence, surprise or

neglect. The trial court ruled it could not proceed on the reconsideration motion because

at that point, there was no written terminating sanctions order.

       On October 3, 2013, the trial court served its order granting motion for terminating

sanctions on the parties. On October 9, 2013, Respondents served a notice of ruling on

their motion for terminating sanctions.

       On October 21, 2013, Chong filed a second application for reconsideration and to

set aside the order granting Respondent's motion for terminating sanctions. In February

2014, after multiple continuances, the trial court declined to hear Chong's application for

reconsideration based on a determination that it was untimely. The trial court also denied

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Chong's request to set aside the order dismissing his complaint under Code of Civil

Procedure section 473.

       On April 1, 2014, Chong filed his notice of appeal. The notice of appeal indicates

Chong is appealing from a judgment after an order granting a summary judgment motion

and from an "Order Denying Motion for Reconsideration on Motion for Terminating

Sanctions." Respondents moved to dismiss Chong's appeal on various grounds, including

that it was untimely. We issued an order stating we would consider Respondent's motion

to dismiss and Chong's opposition thereto with the appeal.

                                       DISCUSSION

       Preliminarily, we note that although Chong's notice of appeal indicates he is

appealing from a judgment after an order granting a motion for summary judgment, no

summary judgment was filed in this case. Accordingly, we disregard that portion of

Chong's notice of appeal.

       On the remaining portion of the notice of appeal, Chong indicates he is appealing

from an "Order Denying Motion for Reconsideration on Motion for Terminating

Sanctions." "An order denying a motion for reconsideration . . . is not separately

appealable. However, if the order that was the subject of a motion for reconsideration is

appealable, the denial of the motion for reconsideration is reviewable as part of an appeal

from that order." (Code Civ. Proc., § 1008, subd. (g).) Accordingly, we construe

Chong's notice of appeal as being from the trial court's order dismissing his complaint.

       California Rules of Court, rule 8.104(a)(1) provides that an appeal must be filed

before the earliest of "(A) 60 days after the superior court clerk serves on the party filing

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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." (All rule references are to the

California Rules of Court.)

       Here, the trial court served its order granting motion for terminating sanctions on

the parties on October 3, 2013. On October 9, 2013, Respondents served a notice of

ruling on their motion for terminating sanctions. The trial court's order stated Chong's

complaint was stricken. Thus, the order constituted a judgment of dismissal under Code

of Civil Procedure section 581d, which provides that "[a]ll dismissals ordered by the

court shall be in the form of a written order signed by the court and filed in the action and

those orders when so filed shall constitute judgments and be effective for all purposes."

       The trial court's service of its order on October 3, 2013, triggered Chong's sixty-

day deadline to file his notice of appeal under California Rules of Court, rule 8.104(a).

Thus, Chong's notice of appeal in this case was due in December 2013. He did not file a

notice of appeal until April 1, 2014. Accordingly, the appeal was untimely.

       Even if we give Chong the benefit of the extension of time allowed by rule

8.108(c) based on his request for relief under Code of Civil Procedure section 473,

subdivision (b), his appeal is still untimely. Rule 8.108(c) provides the following: "If

within the time prescribed by rule 8.104 to appeal from the judgment, any party serves

and files a valid notice of intention to move—or a valid motion—to vacate the judgment,

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the time to appeal from the judgment is extended for all parties until the earliest of: [¶]

(1) 30 days after the superior court clerk, or a party serves an order denying the motion or

a notice of entry of that order; [¶] (2) 90 days after the first notice of intention to move—

or motion—is filed; or [¶] (3) 180 days after the entry of judgment." (Rule 8.108(c),

italics added.)

       Chong filed his second application to set aside the order granting Respondents'

motion for terminating sanctions on October 21, 2013. The record is not clear as to when

the clerk of the superior court or Respondents served Chong with the order denying that

motion or notice of entry of the order. This date, however, is immaterial to our

discussion because pursuant to rule 8.108(c), we look to the earliest of the three

alternative deadlines. Thus, if Chong's appeal was untimely under any of the alternatives,

we must dismiss the appeal.

       In this case, even if we ignore Chong's first application to set aside the order

granting terminating sanctions, he had 90 days after he filed his second motion to set

aside to initiate his appeal. Given that Chong filed his second motion on October 21,

2013, he was required to file his notice of appeal within 90 days of that date, which was

January 19, 2014. Chong did not file his notice of appeal until April 1, 2014. Thus, it is

untimely under rule 8.108(c). "[N]o court may extend the time to file a notice of appeal.

If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Cal.

Rules of Ct., rule 8.104(b).) Accordingly, the appeal is untimely under any circumstance

and must be dismissed.



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                                    DISPOSITION

      Respondents' motion to dismiss the appeal is granted. The appeal is hereby

dismissed as untimely. Respondents are entitled to costs on appeal.



                                                                      MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

AARON, J.




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