Hughey v. City of Hayward

California Court of Appeal Apr 18, 1994 No. A064439Published

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Holding. The court held that a minute order constitutes the date of entry for appeal purposes unless it expressly directs the preparation of a written order, and that a notice of appeal specifying a nonappealable order may be construed as an appeal from an appealable order to favor disposition on the merits.

Issues

Does appeal lie from a minute order or a subsequent written order when the minute order does not expressly direct the preparation of a written order?
Did the clerk's mailing of a non-file-stamped minute order commence the 60-day appeal period under rule 2(a)?
May an appellate court construe a notice of appeal from a nonappealable order as an appeal from an appealable order?

Disposition. motion to dismiss denied

Quotations verified verbatim against the opinion

“the date of entry remains the date the order is entered in the permanent minutes unless the minute order expressly directs the preparation of a written order.”

“because of our preference for appellate disposition on the merits rather than hypertechnicality, we shall deem the appeal as having been taken from the order denying the motion to vacate.”

[208]

Opinion

THE COURT.

On a motion to dismiss this appeal, we point out an inconsistency between rule 2(b) and rule 391 of the California Rules of Court which creates uncertainty as to the date of entry of an appealable order, and we urge the Judicial Council to address the problem.

This wrongful death action was submitted to judicial arbitration, which resulted in denial of plaintiff’s claim. Plaintiff did not request a trial de novo, and judgment was entered on the arbitrator’s ruling. The judgment is nonappealable. (Code Civ. Proc., § 1141.23.)

Plaintiff moved unsuccessfully to vacate the judgment. A minute order dated October 27, 1993, stated that the motion was denied and the parties “are so notified by a copy of this minute order via U.S. Mail.” The minute order was not file-stamped.

The order denying the motion to vacate is appealable.

(Cabrera

Plager

(1987) 195 Cal.App.3d 606, 609-610 [241 Cal.Rptr. 731].) Plaintiff filed a notice of appeal on January 3, 1994. The notice did not, however, specify the order denying the motion to vacate, but instead specified a subsequent order denying a motion for reconsideration. There is a split of authority as to whether an order denying reconsideration is appeal-able. (See, e.g.,

Rojes

Riverside General Hospital

(1988) 203 Cal.App.3d 1151, 1160-1161 [250 Cal.Rptr. 435] [nonappealable];

Rabbitt

Vincente

(1987) 195 Cal.App.3d 170, 174 [240 Cal.Rptr. 524] [appealable];

Blue Mountain Development Co.

Hughey v. City of Hayward

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THE COURT.

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