Triumph Precision Products, Inc. v. Insurance Co. of North America

Opinion

KLEIN, P. J.

Plaintiff Triumph Precision Products, Inc. (hereinafter Triumph) brought an action in the municipal court for a money judgment against defendant Lifesaver Products, Inc. (Lifesaver), which action was subsequently settled. However, when Lifesaver failed to pay Triumph

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according to the terms of the settlement, Triumph obtained a judgment on a surety bond against Insurance Company of North America (INA), surety for Lifesaver. INA then filed a motion for a new trial, which was granted by the municipal court in a minute order dated September 23, 1977.

Counsel for Triumph did not learn of the entry of the new trial order until October 28, 1977, when he saw it referred to in a letter from opposing counsel. Later that same day, in a telephone conversation with a clerk of the municipal court, Triumph’s attorney was told that notice of entry of the new trial order had been mailed to all parties on or about September 23, 1977, but that the notice mailed to him pursuant to Code of Civil Procedure section 664.5

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had been subsequently returned to the court by the Postal Service as undeliverable at the address stated thereon. The envelope containing the notice had been addressed to Triumph’s attorney at the correct street address, but had omitted the name of his law firm.

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The clerk immediately mailed a second notice to Triumph’s attorney, which was received by him the following day, October 29, 1977.

On November 2, 1977, Triumph filed a notice of appeal in the appellate department of the superior court from the minute order granting a new trial; INA filed a protective cross-appeal on November 9, 1977. The appellate department dismissed Triumph’s appeal as untimely since California Rules of Court, rule 122(a), requiring, in general, that notices of appeal be filed within 30 days after the date of the mailing of notice of entry of judgment by the clerk of the court pursuant to section 664.5, had not been complied with. INA’s cross-appeal was consequently also dismissed as untimely. (See Cal. Rules of Court, rule 123(c).) Triumph then petitioned the appellate department for a rehearing, arguing that the parties should not be deprived of their appellate rights because of a mailing error. The appellate department granted the rehearing, but ultimately upheld its earlier dismissals and certified the case for transfer to this court pursuant to California Rules of Court, rules 62 and 63.