Wenzoski v. Central Banking System, Inc.

Opinion

THE COURT.

*

We granted plaintiffs’ petition for hearing November 21,

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1984. The court has been troubled by the procedural history of the case and requested additional briefing from the parties on the issue of whether plaintiffs’ notice of appeal was timely filed. The supplemental briefing convinces us that it was not. We therefore dismiss the appeal for lack of jurisdiction.

The trial court granted defendants’ motion to dismiss December 19, 1980, and a judgment of dismissal was entered January 2, 1981. On December 31, 1980, plaintiffs filed a motion for new trial, reconsideration, and for vacation of the dismissal. When plaintiffs realized that their first motion for new trial had been filed prior to the entry of the judgment of dismissal, they filed a second motion for new trial January 16. The second motion was not intended to amend the first new trial motion, nor to advance additional grounds for relief;

1

plaintiffs were simply concerned that their first motion may have been untimely because it was filed before notice of entry of judgment.

2

Plaintiffs’ December 31 motions were denied by minute order January 20, 1981. The second motion for new trial was denied February 26. On March 20, 1981, plaintiffs filed a notice of appeal from the order dismissing their action made on December 19 and entered January 2, 1981, and from the order denying their motion to reconsider entered January 20, 1981.

3

Under rule 3(a) of the California Rules of Court, plaintiffs’ notice of appeal should have been filed within 30 days of entry of the order of January 20 denying their new trial motion. Since it was not, the notice of appeal was

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