VAN BEURDEN INSURANCE SERVICES INC v. CUSTOMIZED WORLDWIDE WEATHER INSURANCE AGENCY INC

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Court of Appeal, Fifth District, California.

VAN BEURDEN INSURANCE SERVICES, INC., Plaintiff, Cross-defendant and Appellant, v. CUSTOMIZED WORLDWIDE WEATHER INSURANCE AGENCY, INC., Defendant, Cross-complainant and Appellant.

No. F022659.

Decided: March 29, 1996

Brekhus, Williams, Wester & Hall and Matthew D. Brekhus, Greenbrae, for Plaintiff, Cross-defendant and Appellant. Robert A. Lisnow, Los Angeles, for Defendant, Cross-complainant and Appellant.

OPINION

 Here, we address whether the clerk's mailing of a file-stamped copy of the judgment was done in compliance with Code of Civil Procedure section 664.5.   We conclude the clerk was ordered by the court to provide notice of entry of judgment by mail.   As a result, the 60–day jurisdictional period for ruling on the motion for new trial began to run on the date of mailing.   Since the notice of appeal was filed more than 30 days after the motion for new trial was denied by operation of law, we conclude it is untimely.

PROCEDURAL HISTORY

On October 10, 1991, Van Beurden Insurance Services, Inc. (Van Beurden), filed a complaint against Customized Worldwide Weather Insurance Agency, Inc. (Worldwide), seeking to recover damages in the sum of $36,540 plus interest from February 19, 1991.   The three-page complaint contains two causes of action, one for money had and received and the other for breach of a “Multi Peril and Crop Hail Brokerage Agreement.”   Worldwide answered the complaint and filed a cross-complaint on December 3, 1991.   Worldwide's cross-complaint contains two causes of action, one for breach of an oral contract and the other based on a common count.   The cross-complaint requests damages in the sum of approximately $172,500.   Van Beurden answered the cross-complaint on December 23, 1991.

The five-day jury trial began on March 28, 1994, and ended on April 1, 1994.   After deliberating approximately three hours, the jurors returned with a verdict on April 1, 1994.   On Van Beurden's complaint, the jury found Worldwide was liable to Van Beurden in the amount of $52,081.69.   On Worldwide's cross-complaint, the jury found Van Beurden was liable to Worldwide in the amount of $187,654.48.

After polling the jurors the court stated:  “It appears that the verdicts have been arrived at by more than nine or frankly by ten jurors.   The court declares the verdict to be complete.   I would direct the clerk to enter the verdict in the minutes.”   The court then thanked the jurors and discharged them.

Counsel for Worldwide then requested permission to make an oral motion for reimbursement of attorney's fees and for payment of expenses.   Counsel for Van Beurden objected to the oral motion, and the court directed Worldwide to file a formal written motion.   On April 1, 1994, the special verdict was filed with the clerk and entered in the court's minutes of trial dated April 1, 1994.1  The April 1, 1994, minute order also ordered Worldwide to prepare a formal written judgment.

After entry of the verdict in the minutes but before entry of judgment, Worldwide filed its formal notice of motion for an order for attorney fees, costs, and sanctions (Worldwide's motions) and a memorandum of costs.   Van Beurden opposed Worldwide's motions and filed a notice of motion to tax costs.   Proposed judgments, objections thereto and memoranda concerning prejudgment interest were also submitted by the parties.

On May 18, 1994, the court held a hearing on the issues of (1) prejudgment interest;  (2) Van Beurden's motion to tax costs;  and (3) Worldwide's request for attorney fees, costs and sanctions.   At the conclusion of the hearing, the court stated:  “At this point I think I'll take the matter under submission and give you my decision as soon as I can.”

On July 28, 1994, the court signed an order denying Worldwide's motions and its request for prejudgment interest, and granting Van Beurden's motion to tax costs.   The order concluded with the following sentence, “The Court will enter Judgment in harmony with this Order.”   The order and then the ensuing judgment (also signed by the court on July 28, 1994) were filed on July 28, 1994.   The clerk of the Kings County Consolidated Courts, acting through a deputy clerk, mailed a file-stamped copy of the order and the judgment to counsel for each of the parties.   The order and the judgment each had a separate proof of “service” by mail attached, in which the deputy clerk declared under penalty of perjury that she had mailed a file-stamped copy of the order and the judgment to counsel for Van Beurden and Worldwide.

On August 5, 1994, Van Beurden served a notice of motion for judgment notwithstanding the verdict or in the alternative for a new trial (motion for JNOV and new trial).   The notice was filed on August 8, 1994.   Worldwide filed opposition on August 26, 1994.   The matter was heard on September 12, 1994.   Following argument, the matter was taken under submission.   On October 7, 1994, the court's order denying Van Beurden's motion for JNOV and new trial was filed.

Van Beurden filed a notice of appeal on November 4, 1994.2  Worldwide filed a notice of cross-appeal on December 12, 1994.

On March 15, 1995, Worldwide filed a motion to dismiss the appeal.   The motion was made on the ground Van Beurden's notice of appeal was filed too late pursuant to California Rules of Court, rule 2(a) and rule 3(d) 3 .

The parties do not dispute the following relevant dates:

 Based on these dates, the threshold question is whether Van Beurden's notice of appeal was timely filed.   If it was not, this court is without jurisdiction to hear the appeal.  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 664, 125 Cal.Rptr. 757, 542 P.2d 1349.)

DISCUSSION

The time limits for filing a notice of appeal are set forth in rules 2 and 3.   In general, rule 2(a) provides for a minimum time limit of 60 days after the date notice of entry of judgment is given by the court clerk or a party, with a maximum time limit of 180 days after the date of entry of the judgment.  Rule 2(a) provides:

“(a) 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.   For the purposes of this subdivision, a file-stamped copy of the judgment may be used in place of the document entitled ‘notice of entry.’ ”  (Emphasis added.)

Rule 3 allows an extension of time under certain circumstances, including the filing of a motion for JNOV and new trial.  Rule 3(d) applies here and extends the time period to file a notice of appeal to the earliest of the following three dates:  (1) 30 days after the entry of the order denying the motion;  (2) 30 days after denial of the motion by operation of law;  or (3) 180 days after entry of judgment.  Rule 3(d) states:

“(d) 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.”

Here, Worldwide contends the critical date is the date the motion for new trial was denied “by operation of law.”   Van Beurden concedes that if Worldwide's interpretation is correct, then the notice of appeal is not timely.

Code of Civil Procedure section 660 4 sets forth a 60–day jurisdictional time limit for ruling on a motion for new trial, running from the earliest of the following dates:  (1) the date of mailing of the clerk's notice of entry of judgment, if required by section 664.5; 5  (2) the date of service of a party's notice of entry of judgment on the moving party;  or (3) the date of filing of the first notice of intention to move for a new trial, if notice of entry has not been given.  Section 660 provides in pertinent part:

“Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 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 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 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.”

The crucial question then becomes whether the 60–day period runs from the date of (1) the clerk's mailing of a file-stamped copy of the judgment, or (2) Van Beurden's filing of its notice of motion for JNOV and for new trial.

If the time period is measured from the date the clerk mailed the file-stamped copy of the judgment (July 28, 1994), the 60th day is September 26, 1994.   If the time period runs from the date Van Beurden's notice of motion was filed (August 8, 1994), the 60th day is October 7, 1994.   The notice of appeal was filed on November 4, 1994, less than 30 days after October 7, 1994, but more than 30 days after September 26, 1994.

In determining the issue of the timeliness of Van Beurden's appeal, “we are ․ aware of the importance for clarity in rules governing the time within which a party must file a notice of appeal and the effect on the aggrieved party when an appellate court holds the notice of appeal untimely.   An appellate court does not lightly conclude it is without jurisdiction in fully briefed cases where our primary responsibility is to correct what are alleged to be trial court errors.   Of equal importance to the justice system, however, is that we should not act where we lack the power to do so.”  (Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 84, 6 Cal.Rptr.2d 599.)

In resolving the questions of timeliness raised on this appeal, we have reviewed the history of the relevant rules and code sections.   We are also sensitive to:

“[T]he work that has been done to clarify the rules prescribing when an appeal must be filed.   This ongoing effort has involved considerable time and energy by dedicated lawyers, judges, members of the Legislature and of the Judicial Council.   Individually and collectively they have examined and purportedly resolved the continuing unforeseen difficulties in what superficially appears to be the relatively simple task of defining the time within which an appeal must be filed.  (See e.g., Witkin, New California Rules on Appeal (1944) 17 So.Cal.L.Rev. 80, 85.)   The most recent attempt to achieve clarity and reduce appellate delay is reflected in the change effective January 1, 1990, adding the last sentence to rule 2(a):  ‘For the purposes of this subdivision, a file-stamped copy of the judgment or appealable order may be used in place of the document entitled “notice of entry.” ’ ”   (Delmonico v. Laidlaw Waste Systems, Inc., supra, 5 Cal.App.4th at pp. 84–85, 6 Cal.Rptr.2d 599.)

Prior to the amendment of rule 2(a) effective January 1, 1990, rule 2(a) provided in pertinent part that “[N]otice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk of the court pursuant to section 664.5.  ․” (See S. M. Trading, Inc. v. Kono (1988) 198 Cal.App.3d 749, 751, 243 Cal.Rptr. 707;  Drafter's Notes, Deering's Ann. Rules of Court, rule 2 (1995 pocket supp.) p. 24.)   In 1989, the California Judicial Council amended rule 2(a) “[t]o eliminate potential confusion about what constitutes notice of entry of judgment sufficient to trigger the 60–day limit for notices of appeal․”  (Judicial Council of Cal., Ann. Rep. (1990) p. 66.)   The 1989 amendment of rule 2(a) deleted the phrase “pursuant to section 664.5” following the clerk's notice and added the provision that a “file-stamped” copy of the judgment may be used in place of a document entitled “notice of entry.”  (See Drafter's Notes, Deering's Ann. Rules of Court, rule 2 (1995 pocket supp.) p. 24;  In re Estate of Crabtree (1992) 4 Cal.App.4th 1119, 1123–1124, 6 Cal.Rptr.2d 224.)

However, these amendments to rule 2(a) do not clarify the issue before us because the last sentence of rule 2(a), providing that a file-stamped copy of the judgment may be used in place of a document entitled “notice of entry” of judgment, begins with the qualifying phrase, “[f]or purposes of this subdivision.”   Further, section 660, which contains the 60–day jurisdictional time limit for ruling on a motion for new trial, continues to refer to the mailing of a clerk's notice “pursuant to section 664.5.”

Historically, the clerk of the court had no statutory duty to give any notices.6  In Cowee v. Marsh (1958) 50 Cal.2d 240, 324 P.2d 553, our Supreme Court was confronted with the issue of whether the parties' receipt of a notice of entry of judgment prepared and filed by the clerk started the running of the 10–day period of time for the filing and serving of notice of intention to move for a new trial under the provisions of then-existing section 659.  (Id. at p. 241, 324 P.2d 553.)   In Cowee, decided before the enactment of section 664.5, the court held any notice of entry of judgment given by the clerk was purely voluntary because “under the statutory and case law it is essential to a valid notice of entry of judgment that the notice be given by a party to the action.”  (Id. at p. 244, 324 P.2d 553.)

Cowee was discussed in Estate of Hanks (1967) 255 Cal.App.2d 674, 63 Cal.Rptr. 553, decided after the enactment of section 664.5 by the 1965 Legislature.  Section 664.5 originally provided:

“Promptly upon entry of judgment in a superior or municipal court, and whether trial was by the court or jury, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action and shall execute an affidavit of such mailing and place it in the court's file in the case.”  (Added Stats.1965, ch. 1890, § 3, p. 4360.)

As part of the same enactment, section 659 was amended to add an additional deadline which provided that a party must serve and file a notice of intention to move for a new trial “․ [w]ithin 10 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party or written notice of entry of judgment․”  (Stats.1965, ch. 1890, sec. 1.5, p. 4359, italics added.)  Section 660 was not amended as part of the same enactment, and continued to provide that “the power of the court to pass on motion for a new trial shall expire 60 days from and after service on the moving party of written notice of the entry of the judgment․”  (Estate of Hanks, supra, 255 Cal.App.2d at p. 676, 63 Cal.Rptr. 553.)

Under these circumstances, the court in Hanks observed:

“Section 664.5 does not use the word ‘service.’   It says the clerk shall ‘mail’ the notice, and ‘execute an affidavit of such mailing.’   When a party serves a notice by mailing it, his act is referred to in the code as ‘service by mail,’ and his proof is called ‘proof of service by mail.’   [Citations.]  [¶] Section 659 speaks of ‘mailing notice of entry of judgment by the clerk’ and ‘service ․ by any party.’  Rule 2 of the California Rules of Court, which was amended in 1965 to give recognition to the clerk's notice, likewise speaks of ‘mailing ․ by the clerk’ and ‘service ․ by any party.’   All of this language suggests a distinction between ‘mailing’ and ‘service.’   The choice of language supports the view that ‘service’ still means only what it meant prior to 1965, that is, the act of a party and not the act of the clerk.”  (Estate of Hanks, supra, 255 Cal.App.2d at p. 678, 63 Cal.Rptr. 553.)

The court in Hanks went on to observe that the failure of the Legislature to amend section 660 to define the time limits specified in sections 659 and 660 to commence to run on the same day could likely be an “oversight.”   However, statutory amendment would be the proper way to restore conformity.  Section 660, as it then existed, provided that a motion for new trial was denied by operation of law within 60 days of service of notice of entry of judgment (with no specification of who could serve notice).   Therefore, the court concluded the word “service” referred to service by a party, making the clerk's mailing of notice of entry ineffective to start the running of the 60–day period.  (Estate of Hanks, supra, 255 Cal.App.2d at pp. 676–678, 63 Cal.Rptr. 553;  compare with Brennan v. Spanach (1968) 266 Cal.App.2d 350, 72 Cal.Rptr. 211 [holding under same statutes that 60–day time limit for determination of motion for new trial began to run on an earlier date when notice of entry of judgment was mailed by the clerk and not when a party served notice of intention to move for new trial].)

After Hanks, section 660 was amended by the 1969 Legislature to conform to section 659.   The amended section 660 then provided the court's power to rule on a motion for new trial would expire 60 days after mailing of the notice of entry by the clerk pursuant to section 664.5 or 60 days after service of the notice of entry by any party, whichever is earlier, or if notice of entry of judgment had not been “given,” 7 then 60 days after filing of the notice of intention to move for a new trial.  (Stats.1969, ch. 87, § 1, p. 209.)

Section 664.5 has been amended many times over the years.   The section now generally requires the party submitting a judgment for entry to serve and file notice of entry of judgment on the other parties, except in marital status proceedings, small claims actions and actions where the prevailing party is not represented by counsel.  Section 664.5 has also retained the provision requiring the clerk to mail notice of entry of judgment in any type of action if ordered by the court to do so.

In Younesi v. Lane (1991) 228 Cal.App.3d 967, 279 Cal.Rptr. 89, the court held that in order for the clerk to provide legally sufficient notice of entry of judgment pursuant to section 664.5, two requirements must be met.   First, the court must order the clerk to provide notice.   Second, the judgment must indicate its date of entry.  (Id. at pp. 973–974, 279 Cal.Rptr. 89.)

Van Beurden claims the clerk did not provide legally sufficient notice of entry of judgment pursuant to section 664.5 because:  (1) the notice mailed by the clerk was a filed-stamped copy of the judgment, not a document entitled “notice of entry of judgment;” and (2) the notice was not given upon order of the court because there is no evidence of a court order directing the clerk to mail a notice of entry of judgment to the parties.

(1) Here, the file-stamped copy of the judgment is equivalent to a “notice of entry of judgment” pursuant to section 664.5.

 With respect to Van Beurden's first contention concerning the form of the notice of entry, this court and others have agreed that sending a file-stamped copy of the judgment is sufficient notice of entry of judgment where service is by a party.  (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360, 9 Cal.Rptr.2d 925;  In re Estate of Crabtree, supra, 4 Cal.App.4th at p. 1122, 6 Cal.Rptr.2d 224.)   This court has also determined that the clerk's mailing of a file-stamped copy of an order denying a motion for summary adjudication is, in effect, “notice of entry of the order,” under section 437c, subdivision (l ).  (Eldridge v. Superior Court (1989) 208 Cal.App.3d 1350, 1354, 256 Cal.Rptr. 724.)

 We agree with the courts which have concluded, for purposes of giving the clerk's notice of entry of judgment pursuant to section 664.5, no particular form of notice is required.   Any written notice which conveys to the losing party that the judgment has been entered is sufficient.  (See Pacific City Bank v. Los Caballeros Racquet & Sports Club, Ltd. (1983) 148 Cal.App.3d 223, 226–228, 195 Cal.Rptr. 776 [decided based on provisions of § 664.5 operative from Jan. 1, 1982 to Aug. 24, 1982].)

 In Kings County, which does not maintain a “judgment book,” the entry of a judgment occurs upon filing of the judgment. (§ 668.5;  Filipescu v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 741, 48 Cal.Rptr.2d 736.)   Thus, in counties that do not maintain a judgment book, such as Kings County, mailing by the clerk or service by a party of a file-stamped copy of the judgment gives notice of the date of its entry.   Accordingly, we reject Van Beurden's first contention.   The clerk's mailing to both parties of a file-stamped copy of the judgment and an attached proof of mailing is sufficient in form to constitute “notice of entry of judgment” as the term is used in section 664.5.

(2) There is sufficient evidence the trial court ordered the clerk to mail notice of entry of judgment pursuant to section 664.5.

Van Beurden next contends there is no evidence the court ordered the clerk to mail notice of entry of judgment pursuant to section 664.5.   He argues rule 309 8 supports his position.

Van Beurden cites S. M. Trading, Inc. v. Kono, supra, 198 Cal.App.3d 749, 243 Cal.Rptr. 707 and In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 238 Cal.Rptr. 691, which interpret the phrase “notice of entry of judgment by the clerk of the court pursuant to section 664.5” as the phrase appeared in rule 2(a) prior to its 1990 amendment.   Van Beurden acknowledges these cases were decided with reference to the beginning of the 60–day period for filing a notice of appeal rather than the 60–day period for granting a motion for new trial.   However, it contends they are relevant because they interpret the same statutory language.   For this reason, we discuss S M Trading and Kepley in some detail.

Unlike here, where we have a judgment following a jury verdict, both of these cases involve matters taken under submission.   In S. M. Trading, Inc. v. Kono, supra, 198 Cal.App.3d 749, 243 Cal.Rptr. 707, defendants appealed from a judgment rendered following a court trial and submission of the matter.   (Id. at pp. 750–751, 243 Cal.Rptr. 707.)   In In re Marriage of Kepley, supra, 193 Cal.App.3d 946, 238 Cal.Rptr. 691, the wife appealed from a court order (denying her request for an increase in child support payments) issued after the court had taken the matter under submission.  (Id. at pp. 948–950, 238 Cal.Rptr. 691.)

In Kepley, the court remarked, “Although this court is reluctant to hold that an appealing party may ignore actual service [mailing by the clerk] of a filed copy of the order appealed from, we conclude that appellant has correctly interpreted the relevant statutes and rules of court.”  (In re Marriage of Kepley, supra, 193 Cal.App.3d at p. 949, 238 Cal.Rptr. 691.)   In addressing whether the clerk's notice was given by order of the court, the court focused on rule 309.   Rule 309 requires the court to notify the parties of its ruling, order or judgment rendered in a matter taken under submission.   It provides that such notification “shall constitute service of notice only if the clerk is required to give notice pursuant to Code of Civil Procedure section 664.5.”  Kepley interpreted rule 309 to provide that if a court takes a matter under submission, in the absence of a written order directing the clerk to provide notice, the clerk's mailing of a copy of the order is not service of notice of entry.9

In S. M. Trading, Inc. v. Kono, the court reviewed several opinions, including Pacific City Bank and In re Marriage of Kepley.   (S. M. Trading, Inc. v. Kono, supra, 198 Cal.App.3d at pp. 752–753, 243 Cal.Rptr. 707.)   After its review, the court held when a matter is submitted in a superior court, rule 309 requires the clerk to give notice of the court's ruling by mailing a copy of the judgment to the parties.   If the judge orders it, the clerk may give notice of entry of a final judgment by mailing to the parties an additional “notice of entry,” which states notice is given under section 664.5.   The clerk must then place a certificate of mailing of this notice in the file.  (Id. at p. 756, 243 Cal.Rptr. 707.)

This court considered the meaning of rule 309 in Eldridge v. Superior Court, supra, 208 Cal.App.3d 1350, 256 Cal.Rptr. 724, where a motion for summary adjudication was heard and taken under submission.   We interpreted rule 309 as follows:

“Reconciling rule 309 is possible under the same analysis.   If the clerk serves[10] an unfiled copy of an order (or any order which does not indicate that it has been entered) on a party, rule 309 would apply, and such order would not constitute ‘notice of entry of the order’ under section 437c, subdivision (l ).   However, rule 309 would not apply if the clerk mails a copy of an order which indicates that it has been entered.   When the clerk serves such a copy, it has the same practical effect as a notice of entry of judgment in that it informs the party of the order and the fact that it has been entered and is effective.  (Cf. Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604, 88 Cal.Rptr. 357.)”  (Eldridge v. Superior Court, supra, 208 Cal.App.3d at p. 1355, 256 Cal.Rptr. 724, emphasis added.)

In Younesi v. Lane, supra, 228 Cal.App.3d 967, 279 Cal.Rptr. 89, the court addressed whether the clerk's notice of entry of judgment was mailed “pursuant to section 664.5” for purposes of triggering the 15–day period for filing a motion for JNOV under sections 629 and 659.   In Younesi, the jury reached a verdict on November 14.   Although the court stated it would reserve entering judgment on the special verdict, judgment on the verdict was prepared, filed and entered the same day.   The November 14 minute order stated in part, “ ‘Judgment on Verdict in Open Court (Long Form) is prepared and filed this date.  [¶] A copy of this minute order and above Judgment are sent by U.S. Mail on 11–15–88 [to all counsel].’ ”  (Id. at p. 971, 279 Cal.Rptr. 89.)   The clerk mailed copies of the judgment and minute order to appellant on November 15, 1988.  (Id. at p. 972, 279 Cal.Rptr. 89.)

Younesi did not consider rule 309 in its analysis.   Instead, it focused on the effect of the presumption of Evidence Code section 664, which provides, in pertinent part:  “It is presumed that official duty has been regularly performed.”   The court found the trial court had ordered the clerk to provide notice based on the facts of the case, relying on the following reasoning:

“In any event, we presume, as we must, that the court knew it had to order the clerk to provide notice, and that the clerk would not have done so gratuitously.  ‘It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties.  [Citations.]’  (People v. Mack (1986) 178 Cal.App.3d 1026, 1032, 224 Cal.Rptr. 208.)  ‘It is presumed that official duty has been regularly performed․’  (Evid.Code, § 664.)   Absent contrary evidence, this presumption applies to actions by court clerks ․ and trial judges.  [Citations.]   On these facts, the trial court ordered the clerk to provide notice.”  (Younesi v. Lane, supra, 228 Cal.App.3d at p. 974, 279 Cal.Rptr. 89.)

The court distinguished and criticized the cases cited by Van Beurden, stating:

“The only cases which held the clerk's mailing of a conformed copy of a judgment showing its entry date was insufficient to provide notice did so because the evidence that the court ordered the clerk to provide notice was insufficient.  (S. M. Trading, Inc. v. Kono (1988) 198 Cal.App.3d 749, 751–756, 243 Cal.Rptr. 707;  In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 949–951, 238 Cal.Rptr. 691 (cf. conc. opn. at pp. 954–955, 238 Cal.Rptr. 691 and dis. opn. at pp. 955–956, 238 Cal.Rptr. 691).)   As such, those cases are distinguishable.   Moreover, we think both cases incorrectly ignored the presumption, discussed above, that official duty is properly performed, especially in light of the specific evidence in both cases that the trial judges ordered their clerks to provide notice.”  (Younesi v. Lane, supra, 228 Cal.App.3d at p. 974, 279 Cal.Rptr. 89.)

Absent contrary evidence, we presume here the court knew that unless it ordered the clerk to provide notice of entry of judgment, any notice given by the clerk would not “start the clock running” for purposes of limiting the time to move for JNOV and/or new trial.11  When the court took the post-verdict matters under submission, it stated, “ ... I'll ... give you my decision as soon as I can.”   A filed-stamped copy of the order, stating, “The Court will enter Judgment in harmony with this Order,” was mailed to counsel for the parties by the clerk on July 28, 1994.   On the same day, the clerk mailed a file-stamped copy of the judgment and a proof of mailing to counsel for both parties.

In the October 7 order, the trial court found:  “Judgment was filed with the court and mailed to [Van Beurden] on July 28, 1994;  [Van Beurden's] Notice of Motion for New Trial was filed with the court on August 8, 1994, and served on opposing counsel on August 5, 1994, in accordance with California Code of Civil Procedure Section 659.”  (Emphasis added.)  Section 659 sets the time limit for filing a notice of intention to move for a new trial in the trial court.   A timely notice of intention to move for new trial under section 659 must be filed and served by a date which is either:  (1) before the date of entry of judgment (inapplicable in this case;  notice filed after entry of judgment);  or (2) is the earliest of the following three dates:  (a) within a short time period of 15 days of the date of mailing notice of entry of judgment by the clerk pursuant to section 664.5 (applicable), or (b) within a short time period of 15 days of the date of service of notice of entry by a party (inapplicable;  no party served notice of entry), or (c) within a long time period of 180 days after the date of entry of judgment (potentially applicable if clerk's mailing notice of entry not given “pursuant to section 664.5”).

The dates recited by the court in the October 7 order are (1) the date the clerk mailed a file-stamped copy of the judgment (July 28, 1994) and (2) the dates Van Beurden filed and served the notice of intention to move for new trial (Aug. 8 and 9, 1994).   These dates are relevant to only one of the time limits set forth in section 659;  that is, the time limit which provides the notice of intention to move for new trial is timely if it is filed and served “[w]ithin 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5.”  (Emphasis added.)

 In this case, the date of entry of judgment and the date the clerk mailed notice of entry of judgment are the same (July 28, 1994).   If the time to file a timely notice of intention to move for new trial ran from the date of entry of judgment, Van Beurden would have had 180 days to move for a new trial under section 659.   Since the trial court chose to describe July 28, 1994, as the date of the clerk's mailing instead of the date of entry of the judgment, we conclude by inference that it found the applicable time within which to file a timely notice of intention to move for new trial was from the date of mailing of the clerk's notice.   In order to reach this conclusion, the trial court necessarily found the clerk's notice was given pursuant to section 664.5, because otherwise, it would not start the time running under section 659.   If the court had wanted the relevant time period to be 180 days, it would have described July 28, 1994, as the “date of entry of judgment,” instead of the date a file-stamped copy of the judgment was mailed to the parties.

In sum, we infer from the October 7 order that the court intended the earliest applicable time limit under section 659 to apply.   We reach this conclusion since the court relied on the date of the clerk's mailing, rather than the date of entry of judgment.   This is consistent with the court making specific reference to section 659, which requires mailing of notice by the clerk pursuant to section 664.5.

Further, we see no reason to deviate from Younesi v. Lane, supra, 228 Cal.App.3d at page 974, 279 Cal.Rptr. 89.   There, as here, the court inferred the trial court ordered the clerk to provide notice.   Since the court ordered the clerk to provide notice, this date starts the time limit to file notice of intention to move for JNOV under sections 629 and 659.

In light of the fact the court ordered the clerk to mail a file-stamped copy of the judgment to the parties, such notice was legally sufficient pursuant to section 664.5.12  As a result, it triggered the 60–day jurisdictional period to run during which the court had to rule on the motion for new trial under section 660.   The power of the trial court to rule on the motion for new trial expired by operation of law on September 26, 1994, 60 days after the date of mailing by the clerk on July 28, 1994.13  The notice of appeal, filed on November 4, 1994, was not filed within 30 days of September 26, 1994.   Therefore, it is untimely.   Accordingly, we are without jurisdiction to consider this appeal on the merits.14

DISPOSITION

The appeal and cross-appeal are ordered dismissed.   Each side shall bear its own costs on appeal.

FOOTNOTES

1.   Several documents in the superior court file, including all of the court's minute orders, were not designated by the parties as part of the contents of the clerk's transcript.   At Worldwide's request, we have taken judicial notice of the superior court file.  (Evid.Code, § 452, subd. (d);  rule 12(a).)

2.   Van Beurden failed to file a notice to prepare a reporter's transcript and a notice designating the contents of the clerk's transcript within 10 days after filing the notice of appeal.   This court granted Van Beurden's motion for relief from default on December 9, 1994.

3.   All references to rules hereafter are to the California Rules of Court unless otherwise indicated.

4.   All statutory references hereafter are to the Code of Civil Procedure unless otherwise indicated.

5.   Section 664.5 provides:“(a) In any contested action or special proceeding other than a proceeding for voidable marriage pursuant to the Family Law Act (Title 2 (commencing with Section 4400) or dissolution of marriage, legal separation and summary dissolution pursuant to Title 3 (commencing with Section 4500) of the Civil Code), 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.“(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.“(c) For purposes of this section, ‘judgment’ includes any judgment, decree, or signed order from which an appeal lies.“Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable.”

6.   See Harris v. Minnesota Investment Co. (1928) 89 Cal.App. 396, 401, 265 P. 306 (“Where an attorney is retained in an action to represent a party litigant, all statutory notices and legal proceedings therein must be signed or inaugurated by the attorney of record alone [citation]”).

7.   “Given” was substituted for “served.”

8.   Rule 309 provides in pertinent part:“When the court rules on a demurrer or motion or makes an order or renders a judgment in a matter it has taken under submission, the clerk shall forthwith notify the parties of the ruling, order or judgment.   The notification, which shall specifically identify the matter ruled upon, may be given by mailing the parties a copy of the ruling, order or judgment, and it shall constitute service of notice only if the clerk is required to give notice pursuant to Code of Civil Procedure section 664.5.   The failure of the clerk to give notification shall not extend the time provided by law for performing any act except as provided in rule 2(a) or rule 122(a).”

9.   This construction was based in part on Pacific City Bank v. Los Caballeros Racquet & Sports Club, Ltd., supra, 148 Cal.App.3d at page 227, footnote 8, 195 Cal.Rptr. 776, where the court stated:  “Had the court merely taken the matter under submission, and absent the court's intent to provide notice, performance of the clerk's statutory duty under rule 204 [the predecessor of rule 309] would not ‘constitute service of notice.’ ”   (See In re Marriage of Kepley, supra, 193 Cal.App.3d at p. 950, 238 Cal.Rptr. 691.)   However, the court in Pacific City Bank reached an opposite conclusion with respect to the requirement of a written order.   The court concluded the transcript of the relevant hearing “indicates the court intended to provide notice to the parties:  ‘The matter's submitted.   I'll notify the parties within ten days.’   We find this sufficient to constitute ‘order of the court’ under section 664.5.   Although there is no formal order to that effect, the only logical construction to be given to the judge's comment is he intended to provide notice and his clerk would perform that act.”  (Pacific City Bank v. Los Caballeros Racquet & Sports Club, Ltd., supra, 148 Cal.App.3d at p. 227, 195 Cal.Rptr. 776, fn. omitted.)

10.   Although rule 2(a) and section 660 maintain the distinction between mailing by the clerk and service by a party, rule 309 states that when a clerk performs the statutory duty to notify the parties of the determination on a submitted matter, the clerk's mailing “shall constitute service of notice only if․”  (Emphasis added.)

11.   Notice of entry of judgment on jury verdict is usually mailed by the clerk.  (Wegner, Fairbank, Epstein & Chernow, Cal. Practice Guide:  Civil Trials & Evidence (Rutter 1995) § 17:73, p. 17–14, rev. # 1, 1995.)

12.   Under the facts of this case, rule 309 does not require a contrary result.

13.   The fact the court's order denying the motion for JNOV and new trial was filed on October 7, 1994, 60 days after the date Van Beurden filed its notice of motion, might appear to support an inference the trial court considered the jurisdictional time period to run from the date of the notice of motion, rather than the date of the clerk's mailing.   However, our examination of the superior court file reveals a letter from Van Beurden's counsel to the court dated October 7, 1994, and apparently transmitted to the court via facsimile on that same date.   The letter states in part:  “I understand that you are in the midst of a jury trial, but I need to bring this matter of some urgency to your attention.  [¶] Although it is subject to some interpretation, I believe the jurisdiction for ruling on the motion for new trial and judgment notwithstanding the verdict may expire today, October 7, 1994.   As I would hope that the matter would be decided on its merits rather than on a technical problem, I request that you enter an order today, if possible.”We note the October 7 order did not make a finding with respect to whether the 60–day jurisdictional time period to rule on the motion for new trial had expired.   In any case, this time period is irrelevant because the court did not grant the motion.

14.   Rule 3(c) allows a party to cross-appeal from a “timely notice of appeal”.   Since we have determined Van Beurden's appeal was not timely, Worldwide's cross-appeal is also not timely.

WISEMAN, Associate Justice.

STONE (WM.A.), Acting P.J., and VARTABEDIAN, J., concur.