IN RE: the MARRIAGE OF Edwina and Charles SMITH;

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

IN RE: the MARRIAGE OF Edwina and Charles SMITH; Edwina SMITH, Plaintiff and Respondent, v. Charles SMITH, Defendant and Appellant.

No. A039217.

Decided: May 03, 1988

Gordon W. Hackett, Ross, Hackett, Dowling, Valencia & Walti, San Bruno, for defendant and appellant. Lana Norris, Hanson and Norris, San Mateo, Richard Sherman, DeGoff and Sherman, Berkeley, for plaintiff and respondent.

Charles Smith purports to appeal from an order modifying support.   We dismiss the appeal, upon motion by respondent Edwina Smith, on the ground the notice of appeal was not timely filed.

Edwina, who was divorced from Charles in 1982, filed a motion to modify child and spousal support in 1986.   The court granted the motion and directed that a written order be prepared, signed and filed.   The written order was filed on February 5, 1987, and was entered in the court's judgment book the next day.   Edwina's counsel mailed a copy of the order to Charles on February 17.   The mailed copy indicated the date of filing but did not indicate the date of entry in the judgment book.   On April 7, Charles filed a new trial motion, citing insufficiency of the evidence as specified in Code of Civil Procedure section 657, subdivision (6).   The court denied this motion on June 5.   On July 3, Charles filed a notice of appeal from the February 5 order.

 The appealed ruling was an order modifying support after rendition of an appealable judgment, and thus was an appealable order under Code of Civil Procedure section 904.1, subdivision (b).   It was not, as Charles contends, a judgment in an action for declaratory relief under Code of Civil Procedure section 1060.   The motion to modify support did seek a declaration that prior support agreements were void, but this request was merely collateral to the motion and was not an original declaratory relief action under section 1060.

 Consequently, the date of the order's entry was that specified for appealable orders in California Rules of Court, rule 2(b)(2), where a minute order requires a subsequent written order:  the date of entry was the date the signed order was filed, February 5.   The rule invoked by Charles—specifying the date of entry of judgments as the date of entry in the judgment book (Cal.Rules of Court, rule 2(b)(1))—does not apply to appealable orders and is not applicable here.   Thus it is inconsequential that the copy of the order mailed to Charles did not indicate the February 6 entry in the judgment book.   The operative date of entry was the filing date, which was indicated.

 The mailing of the file-stamped copy was sufficient to commence the 60–day period for appeal specified in California Rules of Court, rule 2(a).   It is well settled that 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.  (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 etc. Assn. v. Superior Ct. (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.  (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.)

Any rule contrary to National Advertising and Tri–County Elevator 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 those two cases.

 Edwina has supplied a written declaration and a copy of a transmittal letter demonstrating that her counsel's secretary mailed a file-stamped copy of the appealed order to Charles on February 17.   Charles does not dispute the mailed service.   This service was sufficient to apprise Charles of the entry date and thus commenced the 60–day appeal period.   It is inconsequential that Edwina has supplied no proof of service filed with the trial court, since an affidavit or declaration may be used to prove service.   (National Advertising Co. v. City of Rohnert Park, supra, 160 Cal.App.3d at pp. 618–619, 206 Cal.Rptr. 696.)

The notice of appeal was filed on July 3, more than 60 days after the date Edwina served Charles with the endorsed copy of the appealed order.   Charles's new trial motion was untimely because it was not filed within 15 days of the date Edwina served Charles with the copy of the order (Code Civ.Proc., § 659, subd. (2)), and thus did not extend the time for appeal under California Rules of Court, rule 3(a).  (In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802, 225 Cal.Rptr. 787.)   Consequently, the appeal was untimely and we lack jurisdiction to decide it on the merits.1

The appeal is dismissed.

I respectfully dissent from the order dismissing the appeal.

In another case pending before this Court (Roller v. Stauffer, et al., A038422) involving precisely the same circumstances, we dismissed the appeal for precisely the same reason.   The Supreme Court granted the appellant's petition for review and transferred the case back with instructions to reinstate the appeal.   In its transfer order the Supreme Court specifically cited non-compliance with Code of Civil Procedure section 664.5.

We should presume that the Supreme Court is as fully aware of the existing authorities as this Court, and if it concluded that these circumstances demonstrate lack of compliance with Code of Civil Procedure section 664.5, the appeal is timely.   Since the Supreme Court is a policy making court rather than one which reviews for error, we should also presume that it was not merely correcting error in a specific case in its transfer order in A038422, but was advising us that appeals filed under these circumstances are timely.

We have an obligation to maintain consistency on these matters, especially on issues affecting our jurisdiction.   Since we cannot dismiss Number A038422 because of the Supreme Court's order, we ought not dismiss the instant case, which ordinarily would be heard on the same calendar.   Further, even if we ultimately hold that such appeals are untimely, in light of the Supreme Court's indication we should do so by written opinion only after the parties have had full opportunity to brief the issue.   In fact, the instant case is much stronger in favor of appellant because the record does not contain a Notice of Entry of Judgment by either the clerk or a party, nor does it contain any document which can reasonably be construed as a compliance with Code of Civil Procedure section 664.5, which requires the original notice to be filed with the trial court with a proof of service on the other parties.   The majority does not explain nor discuss the lack of any semblance of notice in the record below, and in light of the mandate of Code of Civil Procedure section 664.5, I fail to see our authority for the dismissal.

I would accept the appeal and file a written opinion only after full briefing and argument.   Since this issue is regularly reoccurring with some frequency, this Court should apply one rule consistently across the board to all such cases.   I encourage appellant to petition the Supreme Court for review so that consistency can be obtained.

FOOTNOTES

1.   We acknowledge the inconsistent Supreme Court order discussed in our colleague's dissent, but nevertheless dismiss the appeal in the belief that the Supreme Court could not possibly have intended to overrule National Advertising and Tri–County Elevator in an unpublished order directing us to hear the appeal in the Roller v. Stauffer case on the merits.   Such an order cannot overrule precedent.   Also, contrary to the assumption of the dissent, it does not mean the Supreme Court has decided any issue in the retransferred case on the merits.We also point out that we have afforded Charles a full opportunity to brief the jurisdictional issues.   In the extended course of deciding the dismissal motion, we permitted him to file four consecutive documents opposing dismissal.   Charles did not request oral argument.

LOW, Presiding Justice.

KING, J., concurs.