Slawinski v. Mocettini

California Supreme Court Jun 28, 1965 No. S. F. 21974Published

Before: Peek

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Holding. The court denied the motion to dismiss the appeal, holding that where a party relies on a formal written order and notice of entry prepared by the opposing party, the time for filing an appeal runs from the date specified in that notice rather than an earlier, conflicting minute entry.

Issues

Whether the time for filing an appeal from an order denying a new trial runs from the date of a minute entry or a subsequent formal written order.
Whether a party may rely on a notice of entry of order prepared by opposing counsel that conflicts with an earlier minute entry.

Disposition. denied

Quotations verified verbatim against the opinion

“It is a well established policy that, since the right of appeal is remedial in character, our law favors hearings on the merits when such can be accomplished without doing violence to applicable rules.”

“plaintiffs were entitled to rely upon the copy of the written order and notice served upon their attorney, and the statutory time should be deemed to run from the noticed date of entry.”

PEEK, J.

Defendants move to dismiss plaintiffs’ appeal on the ground that it was not timely filed.

A jury trial in this wrongful death action resulted in a verdict in favor of plaintiffs for $169,000. An order granting a motion for new trial was affirmed on appeal

(Slawinski

Mocettini,

217 Cal.App.2d 192 [31 Cal.Rptr. 613]), and on retrial the court granted a nonsuit. Judgment was entered on May 21, 1964, and notice of the entry of judgment was served the following day.

Plaintiffs’ motion for a new trial was heard on July 10. The clerk’s minutes for that day state that after argument by counsel the motion was ordered denied.

On July 13 a formal order was prepared by counsel for defendants and signed by the judge which order recites that it was entered on that same day. A copy of such order was served on plaintiffs’ counsel together with a notice of denial of plaintiffs’ motion. The notice also recites that the order of denial was made and entered on July 13. Plaintiffs’ notice of appeal was filed on August 12, 1964. This was 83 days after the entry of judgment, 33 days after the entry of the order in the clerk’s minutes, and 30 days after the judge signed the formal order.

Rule 2 of the California Rules of Court provides, in part: “ (a) Except as otherwise specifically provided by law, notice of appeal shall be filed within 60 days from the date of entry of the judgment, unless the time is extended as provided in rule 3. ’ ’

Rule 3 of the California Rules of Court provides, in part: “ (a) When a valid notice of intention to move for a new trial is served and filed by any party, (1) if the motion is denied 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. ...” (Italics added.)

The question thus presented is whether for purposes of appeal in the instant circumstances the order denying the motion was entered on July 10 or July 13. Aside from the obvious question as to what constitutes the “entry” for our purposes, the issue is further compounded by the conflict of

[72]

Slawinski v. Mocettini

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PEEK, J.

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