ROLLER v. STAUFFER

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

Gary J. ROLLER, Plaintiff and Appellant, v. Sandy STAUFFER et al., Defendants and Respondents.

No. A038422.

Decided: November 29, 1988

John Nash, San Francisco, for plaintiff and appellant. Mark G. Bonino, Todd A. Roberts, Ropers, Majeski, Kohn, Bentley Wagner & Kane, Redwood City, for defendants and respondents.

Gary J. Roller purports to appeal from an order of dismissal.   We dismiss the appeal.

In an order filed on October 24, 1986, the San Francisco Superior Court dismissed Roller's lawsuit for personal injuries.   On October 30, 1986, respondents mailed a copy of the dismissal order to Roller's counsel.   Roller filed a notice of appeal on April 22, 1987.

We dismissed the appeal upon motion by respondents, and Roller successfully petitioned the Supreme Court for review.   The order granting review stated, “Inasmuch as the exhibits in support of the motion to dismiss the appeal do not establish that Notice of Entry of Judgment was served by respondent or that the clerk of the superior court mailed such notice pursuant to respondent's request, the notice of appeal appears to have been timely filed․”  The court transferred the cause to us “with directions to vacate [the] order of dismissal and consider the appeal on its merits unless respondent demonstrates that notice was given in conformity with Code of Civil Procedure section 664.5.”  (Emphasis added.)

 Respondents have filed another dismissal motion, which the Supreme Court's order permits.   They contend their mailing of a copy of the dismissal order on October 30, 1986, constituted notice of entry under Code of Civil Procedure section 664.5, so that the filing of the notice of appeal nearly six months later was untimely under the 60–day appeal period prescribed by California Rules of Court, rule 2(a).

 This contention is correct.   No particular form of notice of entry of a judgment or appealable order is required to commence the 60–day appeal period;  any notice in writing which will convey to a losing party that the judgment or order has been entered is sufficient.  (Ramirez v. Moran (1988) 201 Cal.App.3d 431, 436–437, 247 Cal.Rptr. 117;  National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 618, 206 Cal.Rptr. 696;  Tri–County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 276, 185 Cal.Rptr. 208;  Bank of America v. Superior Court (1931) 115 Cal.App. 454, 457, 1 P.2d 1081.)   Thus the service of an endorsed copy of a judgment or appealable order showing the operative date of entry constitutes sufficient notice under Code of Civil Procedure section 664.5 and California Rules of Court, rule 2(a).  (Ramirez v. Moran, supra, 201 Cal.App.3d at pp. 436–437, 247 Cal.Rptr. 117;  National Advertising Co. v. City of Rohnert Park, supra, 160 Cal.App.3d at p. 618, 206 Cal.Rptr. 696;  Tri–County Elevator Co. v. Superior Court, supra, 135 Cal.App.3d at p. 276, 185 Cal.Rptr. 208.)

A contrary rule would permit an appellant to ignore actual notice of entry and delay the appellate process for as much as four months by waiting 180 days to file the notice of appeal (see Cal.Rules of Court, rule 2(a)), and would thus violate the public policy in favor of expeditious and timely resolution of civil actions.   Because we believe the timely processing and resolution of appeals benefit all participants in the appellate process, we decline to deviate from the settled rule.

Our dissenting colleague construes the Supreme Court's transfer order as barring dismissal of the appeal because of the absence of a formal notice of entry of the appealed order.   We believe, however, that the Supreme Court cannot have intended to use an unpublished transfer order as a vehicle for sub silentio disapproval of Ramirez, National Advertising Co., and Tri–County Elevator Co.   The only sensible interpretation of the transfer order is that the court's reference to Code of Civil Procedure section 664.5 embraces the holding in those cases that service of an endorsed copy constitutes sufficient notice under the statute.

The dissent also notes that the appealed order directed the superior court clerk to enter a judgment of dismissal, which the clerk never did.   But the order did not merely include this direction to the clerk, it expressly dismissed the action.   Because of the express dismissal, neither the direction to the clerk nor the lack of a formal judgment of dismissal precluded appealability.   Under Code of Civil Procedure section 581d, the dismissal order itself constituted a judgment of dismissal.  (Chauncey v. Niems (1986) 182 Cal.App.3d 967, 971, 227 Cal.Rptr. 718.)   The statute did not require the clerk to enter an additional formal judgment as a prelude to appealability.   (See White v. Ostly (1959) 173 Cal.App.2d 636, 639, 343 P.2d 937.)   And because the dismissal order was itself an appealable judgment under section 581d, the court's direction to the clerk to enter a subsequent judgment of dismissal was “of no significance.”  (Graski v. Clothier (1969) 273 Cal.App.2d 605, 607, 78 Cal.Rptr. 447;  see White v. Ostly, supra.)

In short, the dismissal order of October 24, 1986, was effective as a judgment upon filing.  (Code Civ.Proc., § 581d.)   Respondents have supplied a copy of a proof of service demonstrating that an endorsed copy of the dismissal order showing the date of filing was mailed to Roller's counsel on October 30, 1986.   This constituted sufficient notice of entry of judgment and commenced the 60–day appeal period.   Roller moved for a new trial and to set aside the dismissal on March 13, 1987, but the motion was untimely and did not extend the time for appeal.  (Cal.Rules of Court, rule 3(a) & (b);  Ramirez v. Moran, supra, 201 Cal.App.3d at pp. 435–437, 247 Cal.Rptr. 117.)   Consequently, the appeal was untimely and we lack jurisdiction to decide it on the merits.

The appeal is dismissed.

I respectfully dissent.   The Supreme Court has reviewed the record in this case and ordered us to hear the appeal on its merits unless respondents demonstrate that notice was given in conformity with Code of Civil Procedure section 664.5.1  Respondents have simply renewed their motion to dismiss on the same record the Supreme Court has ruled insufficient to support respondents' position.   Consequently, I submit we are bound by the Supreme Court's order to address the merits of the appeal.   I also think the record should be described in greater detail, and therefore set forth the procedural history below.   I do so not in support of any legal position, but merely to fully advise the bar of the procedural facts, upon which my colleagues in the majority and our Supreme Court arrive at seemingly opposite legal conclusions.

Appellant's action was dismissed by the superior court on the court's own motion following a hearing on appellant's motion to advance the case for trial.   Following the hearing the court signed an order, drafted by respondents, denying appellant's motion to advance, and directing:  “That the Clerk of this Court enter a Judgment of Dismissal in favor of all Defendants against Plaintiff.”   This order was “Approved As To Form” by all defendants/respondents, but not by plaintiff/appellant.   It was filed on October 24, 1986.   On October 31, 1986, respondents filed a proof of service by mail, declaring that on October 30, they mailed a copy of the court's order of October 24 to appellant's counsel.

On October 31, 1986, respondents also filed a “Request for Entry of Judgment of Dismissal” with the superior court, requesting that a judgment of dismissal be entered pursuant to the court's order of October 24.   Respondents' request states:  “[Respondents] further request that the Clerk advise all parties of the entry of judgment, once it has occurred.”   The record reflects that a copy of this request was served by mail on appellant's attorney.   No further action was taken by the superior court clerk, and no further notice was given either by the clerk or respondents.

Rule 2(a) of the California Rules of Court 2 provides, inter alia, that a notice of appeal must 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 of the Code of Civil Procedure, or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment whichever is earliest․”

Section 664.5, subdivision (a) provides, in relevant part, that “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.”

Appellant filed a notice of appeal on April 22, 1987, which is within 180 days of the October 24, 1986 order.   It is respondents' contention that their service of a copy of the October 24, 1986 order on appellant is sufficient compliance with section 664.5 or rule 2(a) to trigger the 60–day limit for appellant to file his notice of appeal.

The only additional document filed by respondents since the Supreme Court's remand is a copy of the trial court's minute order, which is not new since it merely confirms what was already contained in the written order in the record.   Any contention that this minute entry constitutes an appealable order is erroneous.  Section 581d requires a written order signed by the court.  (See 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 75.)   The majority impliedly recognizes this also, since they do not bother to discuss it, but base their decision on other factors.

On the basis of this record the Supreme Court ruled that notice was not given in conformity with section 664.5, and ordered this Court to hear the appeal on its merits.   Contrary to the majority's conclusion, I do not construe the Supreme Court's transfer order as anything other than a directive to do what it orders us to do.   I do assume, however, that the Supreme Court is fully capable of reviewing a relatively short record on a simple motion to dismiss, and determining whether the record supports the motion.   I do not construe this Court's authority as enabling us to overrule the Supreme Court's determination in that regard.   The majority has not explained why it does not comply with the Supreme Court's directive.   I believe that under these circumstances Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 requires that we deny the motion to dismiss and hear the appeal on its merits as ordered by the Supreme Court.

FOOTNOTES

1.   Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

2.   All further references to rules are to the California Rules of Court.

LOW, Presiding Justice.

KING, J., concurs.

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