CITY AND COUNTY OF SAN FRANCISCO v. SHERS (1992)

Respondents City and County of San Francisco and receiver Richard L. Riley (hereafter collectively referred to as “City”) move to dismiss this appeal by appellants Rose and Perry Shers on the grounds that appellants' notice of appeal from the order denying appellants' new trial motion was untimely filed under California Rules of Court, Rules 2(b) and 3(a).   Those rules provide as follows:

“When a valid notice of intention to move for a new trial is served and filed by any party, and the motion is denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after either entry of the order denying the motion or denial thereof by operation of law,․”  (Rule 3(a).)

“For the purposes of this rule:  ․ (2) The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.  (3) The date of entry of an appealable order which is not entered in the minutes shall be the date of filing of the order signed by the court․”  (Rule 2(b), emphasis added.)

Facts re:  Filing of Notice of Appeal

On January 10, 1992, Superior Court Judge Stuart Pollak granted City's motion to appoint a receiver for property owned by appellants.   This order was timely filed and served on February 11, 1992.   Appellants filed a timely motion for new trial on February 26, 1992.   This motion was heard and denied on April 9, 1992.   The minutes for that day do not expressly direct preparation of a written order.  (The minutes of the court from that day are reflected in Exhibit C to the motion to dismiss.)   A written order denying the motion for new trial was filed and served on appellants on April 21, 1992.  (Exhibit D.)  Appellants filed their notice of appeal on May 20, 1992, more than 30 days after the date of the denial of the motion, but only 29 days after the filing of the order.

Contentions

City contends that dismissal is required as it clearly appears the notice was filed more than 30 days following the entry of the order in the minutes, which minutes did not expressly reflect that a written order was to be prepared.

Appellants counter that the 30–day period begins to run on the date the written order denying the new trial motion was filed.   They advance three arguments:  (1) City has made no showing its Exhibit C is the permanent minutes or as to the date the order was in fact entered.  (2) San Francisco Superior Court Local Law and Motion rule number 17 requires that at the conclusion of a hearing on a motion, a written order shall be prepared and presented to the judge for signature and filing, whether or not specifically requested by the court.   In light of this local requirement of a filed written order, filing is the relevant appeal trigger.  (3) The minute order was superseded by the written and filed order as the latter differed from the former in several respects.

We believe appellants' first two contentions have merit and that the third, therefore, need not be addressed.

Discussion

I.

 Appellants correctly point out that, although the clerk has certified the minutes in question as a correct copy of the original on file with the clerk, City has made no dispositive showing that the minutes are the permanent or so-called “smooth minutes.”   Moreover, it is not clear what date the court's orders were actually entered in the permanent minutes.   Although the minutes reflect the actions taken by the court on April 9, 1992, there is no indication as to what date the entry was made.   As Witkin points out, the courtroom clerk's “rough minutes” of what was ordered are later transferred to the permanent record.  “A time differential between the two entries is inevitable, and the lag may be as great as several days.”  (See Beresford v. Pacific Gas & Elec. Co. (1952) 113 Cal.App.2d 622, 624, 248 P.2d 773, [county clerk's affidavit describing practice]․”  (9 Witkin, Cal.Procedure (3d ed. 1985) § 402, p. 398.)   City has included no declaration or affidavit documenting the normal practice of the clerk in this regard or indicating what day these entries may have been made.

II.

 Further, local rule 17, which mandates preparation, signing and filing of a written order, would seem to satisfy the intent of Rule 2(b)(2), although not strictly within its literal language.   Local rule 17 provides in relevant part:

“(a) Preparation of Order.   Whenever a Judge rules upon a motion, order to show cause or similar matter, at the conclusion of the hearing on a matter a written order shall be prepared and presented to the Judge within ten days for signature and for filing.   Unless otherwise ordered by the Court, such written order shall be prepared by the prevailing party.   The order shall be prepared whether or not specifically requested by the Court.   Failure to comply with the provisions of this rule shall be sufficient justification for nullifying any order.”  (San Francisco Superior Court Law and Motion and Writs and Receivers Manual (July 25, 1991), rule 17(a).)

Where the trial judge, under Rule 2(b)(2), expressly directs that a formal written order be prepared, the judge's “intention not to render judgment except by this means is clearly manifested, and the situation is the same as if a statute called for written findings or a formal order —there is no appealable order until it is signed and filed.”  (9 Witkin, supra, § 407, p. 402, emphasis added.)

It seems reasonable to read Rule 2(b)(2) in harmony with the local rule.   Because of the local rule, all participants in this proceeding (the parties, the judge, and the clerk) understood that a written order would be prepared and presented to the court for signature and filing within 10 days.   Under these circumstances, the local rule is the functional equivalent of an express judicial direction that a written order be prepared, signed and filed.

Our determination reflects the strong policy favoring “hearings on the merits when such can be accomplished without doing violence to applicable rules.   Accordingly in doubtful cases the right of appeal should be granted.”  (Slawinski v. Mocettini (1965) 63 Cal.2d 70, 72, 45 Cal.Rptr. 15, 403 P.2d 143, disapproved on another point in Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349.)   Moreover, our harmonizing of Rule 2(b)(2) and the local rule 17 is consistent with the observation that Rule 2(b)(2) “was designed to remove the traps for the unwary that existed under prior law,” and was not adopted “to create new traps.”  (Brice v. Dept. of Alcoholic Bev. Control (1957) 153 Cal.App.2d 315, 318–319, 314 P.2d 807.)

The date of “entry” therefore was the date the signed order was filed;  in this case April 21, 1992.   The appeal was therefore timely filed.¹

The motion to dismiss the appeal is denied.

ORDER VACATING OPINION AND ORDER

The order and accompanying opinion of September 4, 1992, denying the motion of respondent City and County of San Francisco to dismiss the appeal is hereby vacated.

The motion of City and County of San Francisco to dismiss the appeal as untimely filed is hereby denied.

FOOTNOTES

1.   City of Long Beach v. Crocker National Bank (1986) 179 Cal.App.3d 1114, 225 Cal.Rptr. 227, relied upon by City, is not to the contrary.   That case holds that Code of Civil Procedure section 664.5 (requiring the party submitting an order or judgment for entry to prepare and mail a copy of the notice of entry of judgment to all parties) does not affect the starting date of the 30–day extension of the appeal period under rule 3, which runs from the date of entry of the order denying a motion for new trial or to vacate a judgment.  (Id., at p. 1117, 225 Cal.Rptr. 227.)We note the distinction between requiring service of a notice of entry of judgment on parties and requiring preparation and presentation to the judge of a written order for signing and filing.   Here, we conclude the intent and practical effect of local rule 17 is to obviate the need for the trial judge to expressly direct that such written order be prepared, signed and filed.

KLINE, Presiding Justice.

SMITH and PETERSON, JJ., concur.