LAUER v. WALCHEF (1979)

Defendant Luben S. Walchef has moved for a dismissal of this appeal on the ground the notice of appeal was not timely filed. The procedural chronology, with some annotation follows:

August 28, 1978

Judgment filed and entered. Notice of entry was mailed on August 30, 1978.

September 7, 1978

Plaintiffs filed a timely notice of motion to vacate the judgment and enter a different judgment.

October 3, 1978

Plaintiffs' motion was heard and submitted. On the same day, after counsel had left, the court denied the motion. The clerk wrote “Motion to Vacate Judgment is Denied” on the minutes of the court, placed the minutes in the file, returned the file to the clerk's office and did not notify any party of the court's action.

January 10, 1979

Not having heard of the disposition of the motion to vacate, counsel for plaintiffs wrote to the judge asking about it. It appeared from ensuing correspondence between judge, clerk and counsel that the order of denial had been entered on the minutes on October 3, 1978. Counsel for the defendant in his motion to dismiss this appeal acknowledges neither party had actual notice of the ruling until about January 18, 1979.

February 20, 1979

Notice of appeal filed by plaintiffs. This was 166 days after entry of judgment and 140 days following denial of the motion to vacate the judgment and enter a different judgment.

California Rules of Court, rule 3(b) sets the time limitations for filing a notice of appeal following a motion to vacate a judgment, providing:

“When a valid notice of intention to move to vacate a judgment or to vacate a judgment and enter another and different judgment is served and filed by any party on any ground … and the motion is denied or not decided by the superior court within 150 days after entry of the judgment, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after entry of the order denying the motion to vacate or until 180 days after entry of the judgment, whichever shall be less.”

Regarding the duty of a court clerk to give notice of a ruling, California Rules of Court, rule 204, as it read when applicable here, provided:

“When the court rules upon a demurrer or motion or makes an order in a matter which it has taken under submission, the clerk shall forthwith notify the parties of the ruling or order. Such notification shall not constitute service of notice. The failure of the clerk to give such notification shall not extend the time provided by law for performing any act.” (Italics added.)

Defendant argues that once the order denying the motion to vacate judgment was entered on the minutes on October 3, 1978, the 30-day period provided in rule 3(b) for the filing of a notice of appeal started running and the failure of the clerk to give notice did not “extend” the time because of the above emphasized portion of rule 204.

The fault with defendant's argument is the denial of a motion to vacate a judgment does not extend the time to take an appeal and neither the giving of notice nor the failure to give notice would extend the appeal time.

The time within which plaintiffs could appeal was extended when they filed a timely and valid notice of intention to move to vacate the judgment. Under rule 3(b) that extension was either to 180 days after entry of the judgment or, if the motion to vacate is denied, to 30 days following denial. The effect of the denial is not to extend the time to take an appeal, the effect is to limit the extension already in force to the shorter of two alternatives.

While the failure to give notice under rule 204 may not extend the time to do an act, neither should that failure operate to shorten a time period. It would create a trap for the unknowing and offend basic concepts of due process to hold that an uncommunicated denial of a motion to vacate a judgment starts a jurisdictional time limitation running in total darkness.

We hold that absent notification of a denial of a motion to vacate a judgment, the appealing party has until 180 days from entry of the judgment to file a notice of appeal under rule 3(b). The notice of appeal in this case is thus timely.

Motion to dismiss denied.

FOOTNOTES

FOOTNOTE.  

THE COURT.*** FN*** Before BROWN, P. J., COLOGNE and STANIFORTH, JJ.