Hughes v. City of Pomona

74 Cal.Rptr.2d 344 (1998) 63 Cal.App.4th 772 David E. HUGHES, Plaintiff and Appellant,

v.

CITY OF POMONA et al. Defendants and Respondents.

No. B112912. Court of Appeal, Second District, Division Four.

April 30, 1998. James Michael Dorn, Chino, and Larry J. Roberts, Orange, for Plaintiff and Appellant.

Arnold M. Alvarez-Glasman, City Attorney Pomona, and Martha E. Romero, Deputy City Attorney, for Defendants and Respondents.

[345] CHARLES S. VOGEL, Presiding Justice.

INTRODUCTION

Plaintiff and appellant David E. Hughes filed a notice of appeal from a judgment entered against him in favor of respondents the City of Pomona, the Pomona Police Department, and Richard Shaurette, the Chief of Police (referred to hereafter collectively as "the City"). This court directed the parties to file supplemental briefs to address the issue of whether the notice of appeal was untimely.

The issue presented is whether, when a clerk of the court mails a file-stamped copy of a judgment rendered after the court has taken the matter under submission, the deadline for filing a notice of appeal pursuant to California Rules of Court, rule 2(a), is affected by the provisions of rule 309, regarding notice of determination of submitted matters.[1] We hold that it is not. Therefore, the notice of appeal in this case was untimely. The appeal is dismissed due to a lack of jurisdiction to consider it.

PROCEDURAL BACKGROUND

On December 2, 1996, appellant filed a petition for writ of mandate contesting the procedures used by the City in terminating his probationary employment. Hearing on the matter was held on January 29, 1997.

By minute order dated January 31, 1997, the trial court denied appellant's petition for writ of mandate. At the court's direction, counsel for the City prepared, served, and filed a proposed statement of decision and a proposed judgment, both of which drew objections from appellant. Thereafter, the trial court signed and filed both a statement of decision and a judgment in favor of the City respondents on March 11, 1997. In its minute order dated March 11, 1997, the court indicated that "[c]opies of the Statement of Decision and Judgment, both signed and filed this date, are sent with copies of this minute order by U.S. Mail this date" to the parties. The City did not serve notice of entry of judgment as required by Code of Civil Procedure section 664.5, subdivision (a), or serve appellant with a file-stamped copy of the judgment.