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Branner v. Regents of the University of California

July 14, 2009

GEORGE R. BRANNER, PLAINTIFF AND APPELLANT,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Yolo County, Doris L. Shockley, Judge. Dismissed. (Super. Ct. No. CVCV082007).

The opinion of the court was delivered by: Sims, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION ON SPECIAL MOTION TO STRIKE AND MOTION TO RECONSIDER

BY THE COURT

Defendants The Regents of the University of California (The Regents) and Barbara Horwitz have moved to dismiss the appeal of Plaintiff George R. Branner on the ground that Branner‟s notice of appeal was not timely filed. Branner opposes the motion on the ground that his unsuccessful motion for reconsideration, filed in the trial court, extended his time to appeal. For reasons that follow, we shall dismiss the appeal.

PROCEDURAL BACKGROUND

Branner filed a complaint against the Regents and Horwitz, alleging various causes of action premised on allegations of race and age discrimination. On December 17, 2008, the superior court filed an order granting in part and denying in part defendants‟ special motion to strike the complaint, pursuant to Code of Civil Procedure section 425.16.*fn1 That order was immediately appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) On December 22, 2008, defendants served Branner by mail with notice of entry of the December 17, 2008, order.

On January 6, 2009, Branner filed a motion to reconsider the December 17, 2008, order. The Regents opposed the motion on several grounds, including that the motion was not supported by an affidavit or declaration of counsel. In reply, as relevant, Branner submitted his attorney‟s declaration, stating only that Branner believed the Regents would not be prejudiced by the late filing of the declaration.

The superior court filed an order on March 19, 2009, denying Branner‟s motion to reconsider. As relevant, the superior court concluded the motion to reconsider was timely filed, and accepted the declaration of Branner‟s attorney which was submitted with the reply. However, the court concluded the motion to reconsider lacked substantive merit.

On March 27, 2009, Branner filed a notice of appeal from the December 17, 2008, order granting in part and denying in part the Regents‟ special motion to strike. (See § 425.16, subd. (i).)

On April 15, 2009, the Regents filed a cross-appeal from the December 17, 2008, order granting in part and denying in part the Regents‟ special motion to strike.

Finally, on May 1, 2009, Branner filed a notice of appeal from the March 19, 2009, order denying Branner‟s motion to reconsider.

DISCUSSION

I. Branner's Appeal from the Order on the Special ...


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