Fawn v. Holiday Investment Corp.

Opinion

PUGLIA, P. J. —

This is a motion to dismiss plaintiff’s appeal from judgment for defendant entered April 20, 1977. The action was on a contract, for breach of warranty and for negligence. Plaintiff filed his first notice of appeal on June 17, 1977. It was served by mail on defendant June 13. On August 16, plaintiff’s attorney filed an abandonment of the appeal (Cal. Rules of Court, rule 19(a)) together with a notice of intent to move for new trial. On September 30, the trial court dismissed the new trial motion as untimely. Plaintiff filed a second notice of appeal from the judgment on October 14..

Under rule 4(a), plaintiff has 10 days after filing his notice of appeal to designate the record. No designation had been filed prior to February 7,

[584]

1978, and on that date plaintiff was advised by the Mono County Clerk of his default. He moved this court for relief from default, alleging excusable neglect. Defendant filed written opposition to the motion. We relieved plaintiff of the default on March 9, 1978.

On March 13, 1978, defendant moved to dismiss this appeal on the ground the notice of appeal was not timely filed. A declaration of service filed with the motion indicated service by mail on plaintiff’s attorney on March 9.

Rule 2, California Rules of Court, prescribes the time for filing a notice of appeal: “[N]otice of appeal shall be filed within 60 days after the date of mailing notice of entiy of judgment by the clerk of the court pursuant to Section 664.5 of the Code of Civil Procedure, or within 60 days after the date of service of written notice of entry of judgment by any party upon the parly filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest,.. .”

The record before this court does not conclusively demonstrate that the clerk of the superior court mailed notice of entry of judgment to the parties. Accordingly, in its motion, defendant contends that the purpose of rule 2, to assure that time within which to appeal does not start to run until the losing party has notice of an adverse judgment, has been fulfilled because plaintiff’s notice of appeal of June 17, 1977 (which was later abandoned), correctly recited the fact and date of entry of judgment together with the correct judgment book and page.