Sylvia v. Stallion Springs 4/15/02 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F036980

Case Date: 07/11/2002

Preview:Filed 4/15/02

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

MARK L. SYLVIA, Plaintiff and Appellant, v. STALLION SPRINGS COMMUNITY SERVICES DISTRICT, Defendant and Respondent.

F036980 (Super. Ct. No. 228664)

OPINION

THE COURT* APPEAL from a judgement of the Superior Court of Kern County. Arthur Wallace, Judge. Eric J. Parkinson, for Plaintiff and Appellant. Duncan, Ball, Evans & Ubaldi, Mathew D. Evans and Georgann Johnston, for Defendant. -ooOooAt issue is whether the notice of appeal in this case was untimely, thereby depriving our court of jurisdiction. In this regard, the time to appeal a judgment is _________________ * Before Ardaiz, P.J., Dibiaso, J. and Levy, J.

jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Upon review, we conclude the notice of appeal herein was untimely under California Rules of Court, rule 2 (a), so that we lack jurisdiction to consider the merits. PROCEDURAL HISTORY In 1999, plaintiff filed a fifth amended complaint containing two causes of action for wrongful termination. Defendant responded by demurring to the second cause of action and moving for summary adjudication as to the first. In July 1999, the superior court sustained the demurrer without leave to amend. The following month, after hearing argument on the matter, the court adopted its tentative ruling granting the motion for summary adjudication. Defendant in turn prepared an "ORDER AFTER HEARING ON DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION AND SUMMARY JUDGMENT DISMISSING COMPLAINT." The order which was executed and filed September 17, 1999, stated the court would enter summary judgment in favor of defendant, recounting the history of the fifth amended complaint. The order then provided: "Accordingly, it is hereby ordered, decreed and adjudged that summary judgment dismissing the action is entered in favor of defendant. Defendant is the prevailing party and shall be entitled to receive its costs . . . ." Plaintiff did not file his notice of appeal until November 7, 2000. Within the immediately preceding 60 days, he had prepared and the court signed and submitted for filing a pleading entitled "JUDGMENT FOR DEFENDANT." DISCUSSION We conclude the September 17, 1999, order constituted a judgment. Admittedly, there is no prescribed form for a judgment. The test of a judgment's sufficiency is its substance rather than its form. (Hentig v. Johnson (1908) 8 Cal.App. 221, 225.) The

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actual language of the order, as quoted above, constitutes a judgment in that it amounts to be a final determination of the parties' rights in the action. (Code Civ. Proc.,

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