KRESSLER v. TROUP

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Court of Appeal, First District, Division 5, California.

Amelia KRESSLER et al., Plaintiffs and Appellants, v. John A. TROUP, Defendant and Respondent.

No. A082078.

Decided: September 14, 1998

Law Offices of Norman M. Owen, Norman M. Owen, Law Offices of Robert Y. Bell, Robert Y. Bell, Law Offices of Glenn E. Gutsche, Glenn E. Gutsche, Santa Rosa, for contestants and appellants. Burroughs & Froneberger, Henry D. Froneberger, John D. Burroughs, Point Reyes, for claimant and respondent.

Appellants Amelia Kressler and Rolf Bertram, as guardians ad litem of the estate of Joseph Lorenz, brought suit against John A. Troup.   After a trial on the merits and the return of a special verdict by the jury, the trial court entered judgment in favor of Troup.

Appellants filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, notice of their intention to move for a new trial.   By operation of law, the “notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice.”  (Code Civ. Proc., § 659.)   Accordingly, for purposes of this appeal, we will treat appellants' motion as seeking JNOV and a new trial.

The trial court never ruled on the motion for JNOV or the motion for a new trial.   A motion for JNOV is denied by operation of law when the trial court does not rule on that motion before its time to rule on a motion for a new trial expires.  (See Code Civ. Proc., §§ 629, 660.)

Appellants filed a notice of appeal, indicating that they were appealing the judgment and the denial by operation of law of their motion for JNOV. Troup has moved to dismiss the appeal on the ground that appellants' notice of appeal was untimely.   We agree and dismiss this appeal.

I. PROCEDURAL BACKGROUND

A trial was held on appellants' claims and on October 8, 1997, a jury returned a special verdict in favor of Troup.1  On October 24, 1997, the trial court entered a judgment on the special verdict.   On November 14, 1997, a document entitled “Notice of Entry of Judgment” was served by the courtroom clerk on Norman M. Owen, an attorney representing appellants, and Henry D. Froneberger, an attorney representing Troup.   Glenn E. Gutsche was also counsel of record for appellants, but he was not served with the notice of entry of judgment.2

On December 1, 1997, appellants filed a motion for JNOV or, in the alternative, motion for a new trial.   All parties represent that the trial court at no time ruled on appellants' motions.

On March 13, 1998, appellants filed a notice of appeal, which identified the orders being appealed as the judgment and the denial by operation of law of their motion for JNOV.

II. DISCUSSION

Troup contends that appellants did not timely appeal the judgment or the denial of appellants' motion for JNOV. “The time for appealing a judgment is 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, 61 Cal.Rptr.2d 166, 931 P.2d 344 (Van Beurden ).)

Rules 2 and 3 of the California Rules of Court 3 set forth time limits for the filing of a notice of appeal.  Rule 2(a), prescribes the general time limits for filing a notice of appeal:  “Except as otherwise provided by Code of Civil Procedure section 870 or other statute or rule 3, a notice of appeal from a judgment shall be filed on or before the earliest of the following dates:  (1) 60 days after the date of mailing by the clerk of the court of a document entitled ‘notice of entry’ of judgment;  (2) 60 days after the date of service of a document entitled ‘notice of entry’ of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal;  or (3) 180 days after the date of entry of the judgment.”   Despite the language of rule 2(a), these time limits apply to all appealable orders, not just judgments.  (See rule 2(d).)

Rule 3 sets forth time limits that apply when a party files certain posttrial motions.   With respect to the issues presented by this appeal, rule 3 provides in pertinent part as follows:  “When the same party has served and filed valid notices of intention to move for a new trial and to move for entry of a judgment notwithstanding the verdict, and both motions are denied or not decided by the superior court within 60 days after the filing of the notice of intention to move for a new trial, the time for filing the notice of appeal from the judgment or from the denial of the motion to enter a judgment notwithstanding the verdict is extended for all parties until the earlier of 30 days after entry of the order denying the motion for a new trial or its denial by operation of law, or 180 days after entry of the judgment.”   (Rule 3(d).)

Troup argues that when the conditions of rule 3(d) exist, that is, when a party has filed the indicated posttrial motions, the time limits of rule 3 replace and exclude the time limits established by rule 2. In contrast, appellants argue that rule 3 may only extend the time limits for appeal established in rule 2. According to appellants, when application of rule 3 would shorten the time for appeal, the limits of rule 2 will continue to control.

A. The Appeal From the Judgment Is Untimely

With respect to appellants' appeal from the judgment, we need not resolve the parties' debate regarding the interplay of rule 2 and rule 3 because appellants' notice of appeal is untimely under the time limits set by each of those rules.

1. The Appeal From the Judgment Is Untimely Under rule 2(a)(1).

The courtroom clerk served a document entitled “Notice of Entry of Judgment” on November 14, 1997.  Rule 2(a)(1), limits the time for filing a notice of appeal to “60 days after the date of mailing by the clerk of the court of a document entitled ‘notice of entry’ of judgment.”   If the clerk's conduct in mailing notice of entry of judgment on November 14, 1997, was sufficient to begin the 60-day time limit of rule 2(a)(1), appellants' notice of appeal, to be timely, must have been filed on or before January 13, 1998.   Appellants did not meet this deadline, instead filing their notice of appeal on March 13, 1998.

Appellants recognize that if rule 2(a)(1) is the operative provision of rule 2, their appeal is indeed untimely.   Appellants contend, however, that the applicable portion of rule 2 is rule 2(a)(3), not 2(a)(1).   Appellants contend that the clerk's conduct in mailing the notice of entry of judgment did not satisfy the requirements of rule 2(a)(1) and therefore their appeal is timely because they filed it within the rule 2(a)(3) deadline, that is, within 180 days after the date of entry of judgment.  (See rule 2(a)(3).)

 Appellants argue that the clerk's mailing of the notice of entry of judgment did not trigger the rule 2(a)(1) time limit because the clerk mailed the document to only one of the two attorneys identified as appellants' counsel of record, namely, Norman M. Owen. According to appellants, Norman M. Owen was initially their sole counsel of record.   However, on February 23, 1995, appellants notified the trial court that they “hereby associate[ ] Glenn E. Gutsche, ․, as their counsel of record, together with Norman M. Owen.” Both counsel, although maintaining separate law offices, shared the same address.   Appellants complain that the court clerk should have mailed the notice of entry of judgment to Gutsche as well as Owen.

We do not agree with appellants' contention that the clerk's failure to mail Gutsche a copy of the notice of entry of judgment renders the clerk's conduct ineffective for purposes of rule 2(a)(1).  Code of Civil Procedure section 664.5, while not containing a provision specifically applicable here, nevertheless evidences a general intent that “all parties” receive a copy of the notice of entry of judgment.  (See Code Civ. Proc., § 664.5, subds. (a), (b).) 4  In this case, the clerk mailed a copy of the notice of entry of judgment to at least one attorney representing appellants and to one attorney representing Troup.   Thus, each party received notice of the entry of judgment.  (See rule 40(e) [“The term[ ] ‘party,’ ․ include[s] such party's attorney of record.   Whenever under these rules a notice is required to be given to or served on a party such notice or service shall be made on his attorney of record, if he has one.”] )   Appellants do not cite any authority for the proposition that rule 2(a)(1), requires that the notice of entry of judgment be mailed to all attorneys of record for each party.

 Appellants contend that on earlier occasions, the parties and the trial court served pleadings and other court documents on both Owen and Gutsche.   Appellants seem to suggest that past conduct can create an obligation to mail notice of entry of judgment to more than one attorney per party.   However, appellants provide no support for such a suggestion and we are not aware of any authority supporting this position either.5

Appellants also cite Valley Vista, supra,. 255 Cal.App.2d 172, 63 Cal.Rptr. 78 (Vista ), but that case is not dispositive.   In Vista, the notice of entry of judgment was mailed to counsel at an incorrect address.  (Id. at p. 173, 63 Cal.Rptr. 78.)   As a consequence, counsel did not receive the mailed notice of entry of judgment.  (Ibid.) Here, in contrast, appellants do not contend that the clerk mailed the notice of entry of judgment to an incorrect address and do not dispute that Owen received the notice of entry of judgment.   Rather, in stark contrast to Vista, not only did an attorney representing appellants-Owen-receive a copy of the notice of entry of judgment, but it was that very attorney who filed and signed the notice of appeal.   The concerns presented by the facts of Vista are simply not present in this case.6  Appellants' reliance on Triumph, supra, 91 Cal.App.3d 362, 154 Cal.Rptr. 120 (Triumph ) and Lee, supra, 28 Cal.App.4th 503, 33 Cal.Rptr.2d 572 (Lee ) is equally unavailing.   Neither case concerns the issues presented here.  (See Triumph, supra, 91 Cal.App.3d 362, 154 Cal.Rptr. 120 [failure to include name of law firm in the address];  Lee, supra, 28 Cal.App.4th 503, 33 Cal.Rptr.2d 572 [mailed to wrong address].)

We therefore conclude that the mailing of the notice of entry of judgment to Owen by the court clerk was satisfactory to begin running the 60-day time limit of rule 2(a)(1).7  As a consequence, appellants' notice of appeal filed more than 60 days after the court clerk mailed notice of entry of judgment is untimely under rule 2.

2. The Appeal From the Judgment Is Untimely Under rule 3(d).

Appellants' notice of appeal is also untimely under rule 3. Appellants filed a motion for JNOV, or in the alternative, motion for a new trial.   Pursuant to rule 3, the time for filing the notice of appeal ended on “the earlier of [ (1) ] 30 days after entry of the order denying the motion for a new trial or [ (2) 30 days after] its denial by operation of law, or [ (3) ]180 days after entry of the judgment.”  (Rule 3(d).)

The parties agree that the trial court did not rule on appellants' motion for a new trial.   Thus, the first time period discussed in rule 3(d)-“30 days after entry of the order denying the motion for a new trial”-is not relevant here.   The third time period-“180 days after entry of the judgment”-ends on April 22, 1998 (180 days after the October 24, 1997 entry of judgment).   However, as we explain below, the second time limit discussed in rule 3(d)-30 days after denial of the motion for new trial by operation of law-results in an “earlier” date and hence identifies the final day for filing a notice of appeal, if rule 3(d) governs.

a. The motion for new trial was denied by operation of law on January 30, 1998

Pursuant to Code of Civil Procedure section 660, “[t]he power of the court to rule on a motion for a new trial shall expire [ (1) ] 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or [ (2) ] 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then [ (3) ] 60 days after filing of the first notice of intention to move for a new trial.   If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court.”

i.  The mailing of notice of entry of judgment by the clerk was not pursuant to Code of Civil Procedure section 664.5.

 The first time limit discussed in Code of Civil Procedure section 660-“60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5”-does not apply in this case.   The California Supreme Court interpreted the phrase “pursuant to Section 664.5” in Van Beurden, supra, 15 Cal.4th 51, 61 Cal.Rptr.2d 166, 931 P.2d 344.   The California Supreme Court held that “to qualify as a notice of entry of judgment under Code of Civil Procedure section 664.5, the clerk's mailed notice must affirmatively state that it was given ‘upon order by the court’ or ‘under section 664.5,’ and a certificate of mailing the notice must be executed and placed in the file.” 8  (Van Beurden, supra, 15 Cal.4th at p. 64, 61 Cal.Rptr.2d 166, 931 P.2d 344.)   No such language appears on the notice of entry of judgment sent in this case.

ii. Neither party served written notice of the entry of judgment.

The second time limit discussed in Code of Civil Procedure section 660-“60 days from and after service on the moving party by any party of written notice of the entry of the judgment”-also does not apply.   It is undisputed that neither party served written notice of the entry of judgment.   Written notice of the entry of judgment was only provided by the mailing of such notice by the clerk of the court.

iii. The motion for new trial was denied by operation of law “60 days after filing of the first notice of intention to move for a new trial.”

 Because neither of the first two time limits discussed in Code of Civil Procedure section 660 applied in this instance, the third time limit set forth in that statute identifies when appellants' motion for a new trial was denied.   Pursuant to that time limit, a motion for a new trial is denied by operation of law if it is not ruled on within “60 days after filing of the first notice of intention to move for a new trial.”  (See Code of Civ. Proc., § 660.)   Appellants' December 1, 1997 motion for new trial was therefore denied by operation of law on January 30, 1998.

b. Appellants filed their notice of appeal more than 30 days after the time limit established by rule 3(d)

 Thus, in this instance, the earliest deadline identified in rule 3 for filing a notice of appeal is 30 days after the denial by operation of law of appellants' motion for JNOV. (See rule 3(d).)   That denial occurred on January 30, 1998.  (See section II.A.2.a., ante.)   Accordingly, appellants' notice of appeal filed on March 13, 1998, 42 days after January 30, 1998, was untimely under the limits set by rule 3.

Regardless of whether rule 2 or rule 3 governed the time for filing a notice of appeal from the judgment in this case, appellants' notice of appeal is untimely.   We therefore dismiss appellants' appeal from the judgment.

B. The Appeal From the Denial by Operation of Law of Appellants' Motion for JNOV Is Also Untimely

 The timeliness of the notice of appeal from the denial of the motion for JNOV squarely presents the issue of the interplay between rules 2 and 3. On their face, rules 2 and 3 always establish conflicting time limits for the appeal of a denial of a motion for JNOV whenever the party filing that motion also filed notice of intention to move for a new trial and the motion for a new trial was denied.

 The denial of a motion for JNOV is an appealable order.  (Crotty v. Trader (1996) 50 Cal.App.4th 765, 771, 57 Cal.Rptr.2d 818 (Crotty ).)   Pursuant to rule 2, a party has at least 60 days to appeal from an appealable order.  (Rule 2(a), (d).)   However, rule 3 provides that in an instance such as this “the time for filing the notice of appeal from the judgment or from the denial of the motion to enter a judgment notwithstanding the verdict is extended for all parties until the earlier of 30 days after entry of the order denying the motion for a new trial or its denial by operation of law, or 180 days after entry of the judgment.”  (Rule 3(d), italics added.)

Under Code of Civil Procedure section 629, “[i]f a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions[, the motion for new trial and the motion for judgment notwithstanding the verdict,] at the same time.”   If the trial court does not expressly rule on the motion for a new trial, the motion for JNOV shall be deemed denied after “the last date upon which [the trial court] has the power to rule on a motion for a new trial.”  (Code Civ. Proc., § 629.)   Thus, the denial of a motion for JNOV will always occur on the same date as the denial of a motion for a new trial.  (See Code Civ. Proc., § 660.)   Under rule 2, an appeal from the denial of a motion for JNOV could be filed within the next 60 days.   However, under rule 3(d), that same appeal must be filed within the next 30 days.   Consequently, if rule 3 applies, it will always shorten from 60 to 30 days the time for appeal from a denial of a motion for JNOV when a motion for new trial was also filed and denied.

 Appellants' proffered interpretation of rules 2 and 3 would have us read out of rule 3(d), the phrase “or from the denial of the motion to enter a judgment notwithstanding the verdict,” because appellants' interpretation of the rules renders that phrase a complete nullity.   Precisely because appellants' contention completely eliminates this component of rule 3(d), we conclude that we cannot rely on the well-established policy of according the right to appeal “in doubtful cases.”  (Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349.)   As well-established as that policy is, it is equally well-established that the liberal construction counseled by that policy is appropriate only “ ‘when such can be accomplished without doing violence to applicable rules.’ ”  (Ibid., citation omitted.)

Moreover, the conflict between rules in this case exists on the face of those rules.   We can only assume that the Judicial Council was aware of such a facial conflict.   Given that assumption, the Judicial Council's decision to make rule 2 applicable “[e]xcept as otherwise provided by ․ Rule 3” must be viewed as its resolution of that conflict.  (Rule 2(a).)   When rule 3 applies in an instance such as this one, it replaces rule 2. In contrast, if the Judicial Council had wished not to shorten the time for appealing a denial of a motion for JNOV in circumstances such as these, rule 3(d) could address the time for appeal from the judgment only, rather than the time for appealing the judgment and the denial of the motion for JNOV, as it currently does.

We note that while the interpretation of rule 3(d) advocated by appellants would nullify the phrase “or from the denial of the motion to enter a judgment notwithstanding the verdict,” our interpretation does not nullify any aspect of rule 3(d).   As a consequence of our interpretation of rule 3(d), the verb “extend[ ]” will not accurately describe the effect of rule 3(d) in all instances;  instead of extending the time for appeal, rule 3(d) will shorten the time for appealing the denial of a motion for judgment notwithstanding the verdict.   However, rule 3(d) addresses not only the time for appeal from the denial of a motion for JNOV, but also addresses the time for appeal from the judgment “[w]hen the same party has served and filed valid notices of intention to move for a new trial and to move for entry of a judgment notwithstanding the verdict, and both motions are denied or not decided by the superior court within 60 days after the filing of the notice of intention to move for a new trial.”  (Rule 3(d).)   Our interpretation does not prevent the provisions of rule 3(d) from extending the time for appeal from a judgment.

Our interpretation also finds limited support in the history of rule 3(d).   The Judicial Council indicated that rule 3(d) was intended “to make the time within which to file a notice of appeal more certain.”   (Judicial Council of Cal., (Oct. 13, 1982) Memo. to Members of the Appellate Court Committee (hereafter Memo).)   Our interpretation is true to that goal because the time for appealing the denial of JNOV and the adverse judgment are one and the same.   In contrast, we do not view appellants' interpretation of rule 3 as adding any certainty.

Second, the initial proposed version of rule 3(d) did not address the time to appeal after denial of a motion for JNOV when a motion for new trial was not filed.  (See Memo, p. 2.) The Judicial Council explained that “[t]he denial of this motion is an appealable order pursuant to Code of Civil Procedure section 904.1(d).   It would appear adequate to refer to the normal appeal time, when the motion for judgment notwithstanding [the verdict] is unaccompanied by another motion.”  (See Memo, p. 2.) As a consequence, rule 3, as enacted, expressly makes the time limits of rule 2 applicable in certain circumstances:  “When a party has served and filed a notice of intention to move for judgment notwithstanding the verdict, but either does not move for a new trial or is granted a new trial, the time for filing a notice of appeal from the order denying a judgment notwithstanding the verdict, if appealable, is governed by rule 2 unless extended pursuant to subdivision (c) of this rule.”  (Rule 3(d).)   If the time limits of rule 2 were always applicable, unless extended by rule 3, as appellants contend, the addition of this provision would not have been necessary.

Appellants cite treatises that conclude that rule 3 cannot shorten the time for appeal established by rule 2. Those treatises cite cases interpreting rules 2 and 3 at a time when rule 2 expressly limited the relevance of rule 3 to those instances when rule 3 extended the time for appeal.   (See Carpiaux v. Peralta Community College Dist. (1989) 215 Cal.App.3d 1220, 1223, 264 Cal.Rptr. 208 [“unless the time is extended as provided in Rule 3.”];  Brice v. Dept. of Alcoholic Bev. Control (1957) 153 Cal.App.2d 315, 320, 314 P.2d 807 [same].)  Rule 2 no longer limits the applicability of rule 3 in such a fashion.  (See rule 2(a) [“Except as otherwise provided by ․ rule 3,”].)

Appellants also rely upon Crotty v. Trader, supra, 50 Cal.App.4th 765, 57 Cal.Rptr.2d 818.   In Crotty, as in this case, the appellant filed a motion for new trial and a motion for JNOV. The Crotty decision concluded that the notice of appeal was timely as to the denial of the motion for JNOV because it was filed within 60 days after the date of the order denying the motion.  (Crotty, supra, 50 Cal.App.4th at p. 771, 57 Cal.Rptr.2d 818.)   In reaching this conclusion, however, the Crotty decision does not cite, much less analyze, the significance of rule 3(d).  (See 50 Cal.App.4th at p. 771, 57 Cal.Rptr.2d 818.)   We therefore do not find instructive the conclusion reached in Crotty.

Moreover, at least with respect to the denial of a motion for JNOV, we do not find it unreasonable that the judicial council wished to shorten the time for appealing such a denial so that it coincided with the time for appealing the judgment.

In concluding, we note that this decision reflects our reluctance to conclude that the Judicial Council added a phrase to rule 3(d) that is completely superfluous and erroneous.   Such a conclusion should come from the Judicial Council, not this court.   We encourage the Judicial Council to revisit these two rules and, in particular, the relationship between these two rules, in order to provide clarity and avoid further potential confusion.

III. DISPOSITION

We dismiss this appeal.   Troup's request for costs on appeal is denied.

FOOTNOTES

1.   Pursuant to Evidence Code section 452, subdivision (d), we take judicial notice of the pleadings and orders that the parties have submitted and which they declare, under the penalty of perjury, to be documents maintained in the record of the trial court in this proceeding.

2.   Neither party contends that Troup served notice of entry of judgment.

3.   Unless otherwise indicated, all further citations to any rule are to the California Rules of Court.

4.   Code of Civil Procedure section 664.5, subdivisions (a) and (b) state:  “(a) In any contested action or special proceeding other than a small claims action or an action or proceeding in which a prevailing party is not represented by counsel, the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail.   This subdivision does not apply in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation. [¶] (b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court's file in the cause.”  (Code Civ. Proc., § 664.5, subds. (a), (b), italics added.)

5.   This conclusion should not be construed as an interpretation of the service requirements of the Code of Civil Procedure.  (See Code Civ.Proc., §§ 1010-1020.)   Even though service may be accomplished by mail, it does not necessarily follow that the terms “mail” or “mailing” are synonymous with the terms “serve” or “service.”   Some decisions have construed the service requirements of Code of Civil Procedure section 1013 as applying to the “mailing” provision of rule 2, subdivision (a)(1).  (See Valley Vista Land Co. v. Nipomo (1967) 255 Cal.App.2d 172, 174, 63 Cal.Rptr. 78 (Valley Vista);  Triumph Precision Products, Inc. v. Insurance Co. of North America (1979) 91 Cal.App.3d 362, 365, 154 Cal.Rptr. 120 (Triumph); Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 508, 33 Cal.Rptr.2d 572 (Lee).)   However, these decisions reach their conclusion without any analysis.   The Lee decision cites Triumph and the Triumph decision cites Valley Vista.  (Triumph, supra, 91 Cal.App.3d at p. 365, 154 Cal.Rptr.2d 120;  Lee, supra, 28 Cal.App.4th at p. 508, 33 Cal.Rptr.2d 572.)   The Valley Vista decision explains that it has “assumed that the clerk's mailing of the notice of entry of judgment must, in all respects, comply with the provisions of the Code of Civil Procedure relating to service by mail.”  (Valley Vista, supra, 255 Cal.App.2d at p. 174, 63 Cal.Rptr. 78, italics added.)   If we apply basic rules of statutory construction, however, it is apparent these decisions are incorrectly decided.  Rule 2 refers to the date of “mailing” by the court clerk.  (Rule 2, subd. (a)(1).)   Elsewhere in that same subdivision, however, the rule specifically uses the word “service.”  (See rule 2, subd. (a)(2) [“service ․ by any party ․”].)  “It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.”  (Grubb & Ellis Co. v. Bello (1993) 19 Cal.App.4th 231, 240, 23 Cal.Rptr.2d 281.)   The Judicial Council selected the word “service” for subdivision (a)(2) of rule 2, but instead selected the word “mailing,” not “service,” for subdivision (a)(1) of that same rule.   We therefore conclude that the sufficiency of a court clerk's mailing of notice of entry of judgment is not measured by the service requirements of the Code of Civil Procedure.

6.   We need not decide whether receipt of the notice of entry of judgment is a prerequisite to commencement of the 60-day time limit.   Instead, we merely explain that such concerns are not present here.   We note that in Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 75 Cal.Rptr.2d 621, Division Five of the Second Appellate District did not toll the 60-day period simply because the attorney claimed not to have received the notice of entry of judgment.

7.   Appellants rely upon Van Beurden, supra, 15 Cal.4th 51, 61 Cal.Rptr.2d 166, 931 P.2d 344, an appeal from a judgment only (id. at p. 53, 61 Cal.Rptr.2d 166, 931 P.2d 344), to argue that the notice of entry which the court clerk mailed was not pursuant to Code of Civil Procedure section 664.5.   While appellants are correct, that conclusion has no bearing on the requirements of rule 2(a)(1).   Unlike the statute at issue in Van Beurden, rule 2(a)(1) does not require that the court clerk mail the notice pursuant to Code of Civil Procedure section 664.5.   In fact, as the Van Beurden decision explains, such a requirement was removed from rule 2(a)(1) when the Judicial Council amended that rule in 1990.  (Van Beurden, supra, 15 Cal.4th at p. 60, 61 Cal.Rptr.2d 166, 931 P.2d 344.)

8.   The Van Beurden decision suggests that such language may not be necessary when Code of Civil Procedure section 664.5 makes notice by the clerk mandatory.  (Van Beurden, supra, 15 Cal.4th at p. 64, 61 Cal.Rptr.2d 166, 931 P.2d 344.)  Code of Civil Procedure section 664.5 did not mandate notice by the clerk in this case.

JONES, Presiding Justice.

HANING and Champlin*, JJ., concur.

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