Rolen v. Rhine

California Court of Appeal Mar 18, 1981 No. Civ. 20058Published

Before: Paras

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Holding. The court held that both the appeal and cross-appeal were jurisdictionally defective and untimely because they were filed after the expiration of the period prescribed by California Rules of Court, rules 2 and 3. The withdrawal of a motion to vacate is equivalent to a denial, triggering the 30-day extension period under rule 3(b), which expired prior to the filing of the notice of appeal.

Issues

Whether the defendants' notice of appeal was filed within the time limits prescribed by California Rules of Court, rules 2 and 3.
Whether the withdrawal of a motion to vacate a judgment constitutes a denial for the purposes of calculating the time to file an appeal under rule 3(b).
Whether the cross-appeal was timely filed under rule 3(c).

Disposition. dismissed

Quotations verified verbatim against the opinion

“Since the motion to vacate thus lost its viability, its withdrawal was the equivalent of denial; we hold that the 30-day and 180-day provisions of rule 3(b), controlled the time for filing notice of appeal”

“The appeal and cross-appeal are dismissed.”

Opinion

PARAS, Acting P. J.

Plaintiff James Rolen, respondent and cross-appellant herein, moves to dismiss the appeal of defendants, Robert Rhine and Virginia Rhine, on the ground that their notice of appeal was untimely.

The judgment was entered on June 25, 1980. On July 7, plaintiff filed a notice of intention to move to vacate the judgment under Code of Civil Procedure section 663. The notice was served upon defendants, and included a notice of entry of judgment.

Thereafter, on August 6, plaintiff filed a notice of withdrawal of the motion. Also on August 6

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the court served on all counsel its own notice of entry of judgment. Defendants’ notice of appeal was filed September 26, and on October 8, 1980, plaintiff filed notice of cross-appeal.

The normal time for filing a notice of appeal is fixed by California Rules of Court, rule 2, as “within 60 days after the date of mailing notice of entry of judgment by the clerk of the court ... or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest, unless the time is extended as provided in rale 3.”

Rule 3(b) provides that where “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 within the time in which, under rule 2, a notice of appeal may be filed .. . 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.” Rule 3(c) provides that where a timely notice of appeal is filed within the limits of the period provided in rule 2 or as extended by rule 3, “any other party may file a notice of appeal within 20 days after mailing of notification by the superior court clerk of such first appeal or within the time otherwise prescribed by the applicable subdivision, whichever period last expires.... ”

Rolen v. Rhine

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