Breja v. Breja

Aug 20, 2026
A173268

MEMORANDUM OPINION1

Siddharth Breja seeks to appeal from the trial court‘s postjudgment order modifying his child support obligation. (See Code Civ. Proc. § 904.1, subd. (a)(2)2.) We dismiss his appeal as untimely.

Under California Rules of Court, rule 8.104(a)(1), unless an extension was applicable, Breja had 60 days from the date he was served with a copy of the order in which to file his notice of appeal. After the trial court issued its January 28, 2025 modification order, the San Francisco Department of Child Support Services served Breja by placing a copy of the order in the mail on February 3, 2025. As a result, the 60-day periodexpired on April 4, 2025. (See InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134-1135 [explaining that the 60-day period in which to file an appeal “begins on the date of mailing and does not depend upon the party‘s actual receipt” of the triggering document]. However, Breja did not file his notice of appeal until April 15, 2025.

We next consider whether Breja‘s time to appeal was subject to an applicable extension. California Rules of Court, rule 8.108(e), extends the time to appeal “[i]f any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a).” (See Cal. Rules of Court, rule 8.108(e)(1) [extending the time to appeal to 30 days from the date of service of the denial of the motion to reconsider].) Breja did file a motion to reconsider, which the trial court denied on April 7, 2025, so the question is whether it was a “valid” one and therefore served to extend his time to appeal.

To be “valid” for purposes of California Rules of Court, rule 8.108(e), a motion to reconsider must comply with all procedural requirements for such motions. (See Branner v. Regents of Univ. of California (2009) 175 Cal.App.4th 1043, 1047-1048 (Branner).)

Section 1008, subdivision (a), provides that a party affected by a court‘s decision on an application for an order “may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application . . . to reconsider the matter and modify, amend, or revoke the prior order.” In addition to pointing to new or different facts, circumstances, or law, the movant must also demonstrate diligence by providing an explanation for failing to rely on the new or different facts, circumstances, or law in the original application. (See Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1197-1200 (Baldwin); California Corr. Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 48.) Also, the movant for reconsideration “shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (§ 1008, subd. (a).) These requirements are jurisdictional. (See Baldwin, at p. 1200.)

Here, Breja‘s reconsideration motion was invalid because our record reflects that it did not include the required affidavit. (See Rowan v. Kirkpatrick (2020) 54 Cal.App.5th 289, 296-297 [concluding that appellant‘s motion for reconsideration was not “valid” under Cal. Rules of Court, rule 8.108(e) “because it was not supported by an affidavit setting forth new or different facts, circumstances, or law“]; Branner, supra, 175 Cal.App.4th at pp. 1048, 1049 [holding that Cal. Rules of Court, rule 8.108(e) did not extend the time to appeal where the appellant‘s “motion [to reconsider] was invalid when filed because it failed to comply with the statutory procedural requirement that the motion contain [an] affidavit“].)3 His reconsideration motion also omitted any explanation for why he could not have cited his new or different facts, circumstances, or law in his original application. (See Baldwin, supra, 59 Cal.App.4th at p. 1200.)

Because Breja‘s motion to reconsider was not valid, it did not extend the time for filing his appeal. As his notice of appeal was filed after the April 4, 2025 deadline, his appeal is untimely. We therefore lack jurisdiction over his appeal. (See Cal. Rules of Court, rule 8.104(b); Silverbrand v. Cnty. of Los Angeles (2009) 46 Cal.4th 106, 113.)

DISPOSITION

The appeal is dismissed.

BURNS, J.

WE CONCUR:

SIMONS, ACTING P. J.

CHOU, J.

Breja v. Breja (A173268)

Notes

1
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1.
2
Undesignated statutory references are to the Code of Civil Procedure.
3
Subsequently, Breja filed a declaration in support of his reply on his motion for reconsideration, but under California Rules of Court, rule 8.108(e), the motion must be valid at the time it is served and filed, so the subsequent filing of an affidavit does not cure the defect. (See Branner, supra, 175 Cal.App.4th at pp. 1048-1049.) In any event, the contents of the subsequent declaration did not satisfy the requirements for the affidavit enumerated in Code of Civil Procedure section 1008, subdivision (a).