NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

KING, J.

I. INTRODUCTION

In 2013, defendant and respondent, City of Ontario, with the consent of defendant and respondent, City of Rancho Cucamonga, established the Greater Ontario Tourism Marketing District (the GOTMD), pursuant to the Property and Business Improvement District Law of 1994. (Sts. & Hy. Code, §§ 36600-36671.)1 The GOTMD is comprised of all lodging businesses operating in the two cities, and its mandate is to market and promote the businesses as "tourist, meeting and event destinations" with assessments imposed on the businesses based on their room rates and rental volumes. (See § 36632.)

Plaintiff and appellant, The Inland Oversight Committee (IOC), sued the cities to invalidate the assessments on the ground they were a "tax" that was not approved by a majority or supermajority of the cities' voters as article XIII C of the California Constitution required. (Cal. Const., art. XIII C, §§ 1, subd. (e)(2), 2, subds. (b) [majority voter approval required for general taxes], (d) [supermajority voter approval required for special taxes].) IOC claims the assessments are either a general tax requiring majority voter approval or a special tax requiring supermajority voter approval.

IOC alleges it is a nonprofit organization representing the cities' registered voters and city residents who either did or did not rent hotel rooms in the cities after learning the lodging businesses could pass the assessments onto their guests. IOC claims that the cities' registered voters were deprived of their right to vote on the assessments under article XIII C of the California Constitution and, "[f]undamentally, this case is about the [public's] constitutional right to vote" on new taxes. The cities demurred to IOC's complaint and writ petition on the ground that neither IOC nor any of its members had standing to challenge the validity of the assessments.

The trial court sustained the demurrers, without leave to amend, on the ground that neither IOC nor any of its members had standing to challenge the validity of the assessments. On October 3, 2013, the trial court signed and mailed an order dismissing the action. (Code Civ. Proc., § 581d.) On November 7, 2013, IOC filed a notice of appeal from the judgment. On July 14, 2014, the cities filed a motion to dismiss the appeal along with their respondent's brief. IOC responded to the motion, both in its reply brief and in a separate opposition to the motion.

The cities claim this court lacks jurisdiction to consider the merits of IOC's appeal because IOC's notice of appeal was untimely filed on November 7, 2013, more than 30 days after the judgment was entered on October 3, 2013. (§ 36633.) We deferred ruling on the motion for consideration with the appeal. For the reasons we explain, we agree that IOC's notice of appeal was untimely filed. We therefore lack jurisdiction to consider the merits of the appeal and must dismiss the appeal.

II. DISCUSSION

The timely filing of a notice of appeal "is an absolute prerequisite to the exercise of appellate jurisdiction; once the deadline expires, we have no power to entertain the appeal." (Janis v. California State Lottery Com. (1998) 68 Cal.App.4th 824, 828-829; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) "If a notice of appeal is not timely, the appellate court must dismiss the appeal. [Citations.]" (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1573.)

Section 36633 provides: "The validity of an assessment levied under this part shall not be contested in any action or proceeding unless the action or proceeding is commenced within 30 days after the resolution levying the assessment is adopted pursuant to Section 36626. Any appeal from a final judgment in an action or proceeding shall be perfected within 30 days after the entry of judgment." (Italics added.)

Rule 8.104 of the California Rules of Court prescribes 60- and 180-day time limits on the filing of a notice of appeal, but these time limits do not apply if a statute prescribes another time limit.2 Section 36633, not rule 8.104, applies to the filing of IOC's notice of appeal. Section 36633 prescribes 30-day time limits on (1) the commencement of an action or proceeding challenging the validity of a levy of an assessment pursuant to the Property and Buiness Improvement District Law of 1994; and (2) the filing or "perfection" of a notice of appeal from a judgment in such an action or proceeding.

IOC timely commenced the present action and writ proceeding challenging the validity of the City of Ontario's resolution establishing the GOTMD and approving the levy of an assessment on lodging businesses in order to fund the GOTMD, but IOC did not timely appeal the order or judgment sustaining the cities' demurrers and dismissing the action. On June 4, 2013, the City of Ontario adopted city council resolution No. 2013-041 establishing the GOTMD for a five-year term and approving the levy of an assessment on lodging businesses operating in the cities of Ontario and Rancho Cucamonga in order to fund the GOTMD.3 Less than 30 days later, on July 1, 2013, IOC filed its complaint and writ petition, seeking a judgment invalidating both the "TMD approval" and the levy of the assessments to fund the GOTMD. The complaint alleges IOC was bringing the action under section 36633 "among other laws and as appropriate."

As noted, on October 3, 2013, the trial court signed and filed the order sustaining the cities' demurrers to IOC's complaint and writ petition and dismissing the action. The order, signed by the court, constitutes a judgment. (Code Civ. Proc., § 581d.) IOC filed its notice of appeal 35 days later, on November 7, 2013. The appeal was untimely because it was not filed within 30 days after the entry of the judgment on October 3, 2013. (§ 36633; Cal. Rules of Court, rule 8.104(c) [a judgment is entered on the date it is filed].) This court thus lacks jurisdiction to consider the merits of IOC's appeal and must dismiss the appeal. (Payne v. Rader, supra, 167 Cal.App.4th at p. 1573.)4

III. DISPOSITION

The appeal by petitioner and appellant IOC is dismissed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

McKINSTER, Acting P. J. and MILLER, J., concurs.