Bliler v. City of San Diego

[532]

Opinion

ȦULT, J.

Plaintiff Wesley Bliler and others filed a complaint in the Superior Court of San Diego County challenging the validity of an assessment ordered by the San Diego City Council in its Resolution No. 211118 of July 18, 1974. Their complaint requested the cancellation of the assessment and the assessment district formed for San Diego Park District No. 12F-Tecolote Canyon.

The assessment and the district attacked were the result of a series of resolutions adopted by the San Diego City Council declaring the intention of the city to form the district and levy the assessment and describing the mode and manner in which it would be accomplished. These resolutions stated the proceedings relating to the formation of the district and the levying of the assessment would be pursuant to Division 8 of the San Diego Park District Procedural Ordinance of 1969, which incorporated by reference the provisions of the Municipal Improvement Act of 1913 (Sts. & Hy. Code, § 10000 et seq.).

Judgment was entered in favor of the city on July 15, 1975, and notice of entry of judgment was mailed by the clerk two days later. Plaintiffs filed their notice of appeal on August 22, 1975, 37 days after the judgment was entered. Before the record was filed, the city moved to dismiss the appeal, contending it was not filed within the time prescribed by law and that the court was without jurisdiction to hear and determine the appeal. We initially ordered the motion to dismiss consolidated with the appeal on the merits. After the record was filed, we vacated that order and calendared the motion to dismiss for oral argument. The matter has been briefed, argued orally and is ready for determination. The sole issue presented is whether the appeal was timely filed.

Rule 2(a) of the California Rules of Court provides:

“Except as otherwise specifically provided by law,

notice of appeal shall be filed within 60 days after the date of mailing notice of entry 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 party filing the notice of appeal, or within 180 days after the date of entiy of the judgment, whichever is earliest, unless the time is extended as provided in rule 3.” (Italics added.)