Filed 8/27/20 Bellospirito v. Pre-Paid Legal Services, Inc. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

 FRANK BELLOSPIRITO,

      Plaintiff and Appellant,                                      G059135

           v.                                                       (Super. Ct. No. 30-2018-01036145)

 PRE-PAID LEGAL SERVICES, INC.,                                     OPINION

      Defendant and Respondent.


                   Appeal from a judgment of the Superior Court of Orange County, Deborah
C. Servino, Judge. Appeal dismissed.
                   Frank Bellospirito, in pro. per., for Plaintiff and Appellant.
                   Crowe and Dunleavy, Mary P. Snyder, and Jennifer N. Lamirand, for
Defendant and Respondent.


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THE COURT:

              Respondent Pre-Paid Legal Services, Inc., moved to dismiss this appeal as
untimely and frivolous. We grant respondent’s motion and dismiss the appeal as
untimely for the reasons set forth below.


                        FACTS AND PROCEDURAL HISTORY


              In 2018, appellant Frank Bellospirito sued respondent, alleging torts based
on respondent’s compliance with Internal Revenue Service levies on funds respondent
owed to appellant.
              On November 15, 2019, the trial court sustained respondent’s demurrer to
the first amended complaint without leave to amend.
              On November 19, 2019, the court entered a judgment of dismissal.
Pursuant to a clerk’s certificate of mailing, a copy of the filed judgment was mailed to
appellant on November 20, 2019. The certificate, signed by a deputy clerk and appended
to the copy of the filed judgment, attested: “I certify that I am not a party to this cause. I
certify that a true copy of the above Judgment dated 11/19/19 has been placed for
collection and mailing so as to cause it to be mailed in a sealed envelope with postage
fully prepaid pursuant to standard court practice and addressed as indicated below. This
certification occurred at Santa Ana, California on 11/19/19. Following standard court
practice the mailing will occur at Sacramento, California on 11/20/19.”
              On December 17, 2019 and January 2, 2020, appellant filed documents
disagreeing with the court’s demurrer ruling (entitled by appellant as “Misapplication of
Authority and Law; Plaintiff demanding to be heard” and “Objection filed 12/2/19


*             Before Moore, Acting P.J., Aronson, J., and Fybel, J.



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Misapplication of Authority and Law”). The first document reargued appellant’s legal
position. The second document briefly reiterated claims of legal error by the court and
complained about the court’s lack of response to the first document. No court order was
ever entered in response to these filings.
              On March 18, 2020, appellant served a document on respondent, in which
appellant purported to appeal from the judgment. It does not appear that this document
was actually filed. If a notice of appeal had been filed by appellant on March 18, it
would have been 119 days after the filed copy had been served on appellant on
November 20, 2019.
              On June 3, 2020, appellant filed a notice of appeal. This notice of appeal
was filed 197 days after entry of judgment, and 198 days after appellant was served with
a copy of the judgment by the clerk of court.


                                        ANALYSIS


              A civil litigant must file a timely notice of appeal to initiate an appeal.
(Cal. Rules of Court, rule 8.100(a).) “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.)
              California Rules of Court, rule 8.104(a)(1), establishes that, in ordinary
circumstances, a party must file its notice of appeal within the earliest of three possible
deadlines: “(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 filed-endorsed 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 filed-endorsed copy of the judgment, accompanied by proof of
service; or [¶] (C) 180 days after entry of judgment.”

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              Here, the superior court clerk served a copy of the judgment (which was
stamped with the Nov. 19, 2019 filing date) on November 20, 2019, with the mailing date
made clear by an accompanying certificate of mailing. (See Alan v. American Honda
Motor Co., Inc. (2007) 40 Cal.4th 894, 905 [rule 8.104(a)(1)(A) requires a single
document establishing date of entry of judgment and date of mailing, but “we see no
reason why the clerk could not satisfy the single-document requirement by attaching a
certificate of mailing to the file-stamped judgment”].) Applying rule 8.104(a)(1)(A), the
notice of appeal was due January 21, 2020 (the first court day after the 60-day deadline of
Jan. 19, 2020). If the rule 8.104(a)(1)(A) deadline applies, appellant’s notice of appeal
was filed far too late, on June 3, 2020. Indeed, this appeal would have been too late even
if the notice of appeal had been filed on March 18, 2020, as appellant may have intended.
              California Rules of Court, rule 8.108 potentially extends the time to file a
notice of appeal when a “valid” motion for new trial, motion to vacate the judgment,
motion for judgment notwithstanding the verdict, or motion for reconsideration is filed.
No argument is made in his opposition that any of the post-judgment documents filed by
appellant were “valid” motions. (See Branner v. Regents of University of California
(2009) 175 Cal.App.4th 1043, 1047-1048 [to be valid, such motions must rely on
legitimate basis for potential relief and comply with procedural requirements].)
              Neither of the post-judgment documents cited in appellant’s opposition to
the motion to dismiss was designated by appellant as a particular type of motion pursuant
to specific legal authority. The closest fit appears to be a motion to vacate the judgment
based on an error of law. (See, e.g., Code Civ. Proc., § 663, subd. (1) [motion to vacate
judgment may be based on “[i]ncorrect or erroneous legal basis for the decision”].) In
opposing the motion to dismiss at this court, appellant claims he was waiting for the court
to rule on his “objections” filed below before filing a notice of appeal (which he
maintains he did on March 18, 2020).



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              If the December 17, 2019 “objection” is deemed to be a “valid” motion to
vacate the judgment, California Rules of Court, rule 8.108(c) applies. The time to appeal
would then be extended to “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
entry of judgment.” (Cal. Rules of Court, rule 8.108(c).)
              No ruling was provided on the December 17, 2019 “objection.” Thus, the
earliest of the three rule 8.108(c) deadlines would be 90 days after the motion was filed,
i.e., March 16, 2020. Appellant’s notice of appeal was filed on June 3, 2020 (although he
maintains he filed it on March 18). Either way, the notice of appeal was too late (even
assuming a valid motion to vacate the judgment was filed on Dec. 17, 2019).
              Appellant asks this court to forgive his late notice of appeal. “Except as
provided in rule 8.66, no 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 Court,
rule 8.104(b).) California Rules of Court, rule 8.66 provides for emergency extensions of
time based on public emergencies. As a result of the COVID-19 crisis and by the
authority of orders entered pursuant to rule 8.66(a), two separate orders were entered by
the Administrative Presiding Justice of the Fourth District Court of Appeal
(Implementation Order for Emergency Order on Mar. 20, and Misc. Order No. 041620 on
Apr. 15, 2020) extending the time for actions required under the Rules of Court by 30
days each, for any deadlines that fell within the time periods March 19, 2020 to April 18,
2020, and April 19, 2020 to May 18, 2020 respectively. Similarly, under section 68115,
of the Government Code, the Orange County Superior Court issued emergency orders
deeming holidays all days between March 17 and May 22, 2020.
              The latest possible deadline for the filing of appellant’s notice of appeal
was March 16, 2020, prior to the effective date of the COVID-19 emergency orders (and



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prior to the March 18 date appellant insists is the actual date he filed a notice of appeal).
The appeal is not timely and we lack jurisdiction to consider it.


                                       DISPOSITION


              The appeal is dismissed. Respondent shall recover costs incurred on
appeal.




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