Sharp v. Union Pacific Railroad

Opinion

BEST, P. J.

Plaintiff has appealed from the summary judgment entered in favor of defendant ordering that plaintiff take nothing by his first amended complaint. This complaint sought damages for personal injuries sustained in a diving accident. Plaintiff alleged defendant engaged in willful misconduct by failing to guard or warn against a dangerous condition presented by a railroad trestle which spanned an irrigation canal and was therefore liable for plaintiff’s injuries.

We do not reach the merits of the case but dismiss the appeal because plaintiff’s notice of appeal was not timely filed.

Procedural Background

By minute order dated September 11, 1990, the trial court granted defendant’s motion for summary judgment. A formal “Order for Entry of Summary Judgment” was signed by the Honorable Hugh Rose III on October 4, 1990, and filed on October 5, 1990. “Judgment By Court Order Under CCP § 437c” was signed by Judge Rose on October 4, 1990, and filed on October 5, 1990. On October 15, 1990, file-stamped copies of the filed order and judgment were served by mail on plaintiff’s counsel and counsel for codefendant Turlock Irrigation District. Plaintiff’s notice of appeal was filed on January 31, 1991.

Discussion

California Rules of Court, rule 2 (a), provides, in part:

“[A] notice of appeal shall be filed on or before the earliest of the following dates: (1) 60 days after the date of mailing by the clerk of the court of a document entitled ‘notice of entry’ of judgment or appealable order; (2) 60 days after the date of service of a document entitled ‘notice of entry’ of judgment or appealable order by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days

[360]

after the date of entry of the judgment. For the purposes of this subdivision, a file-stamped copy of the judgment or appealable order may be used in place of the document entitled ‘notice of entry.’ ”

Here, defendant served plaintiff by mail. “Where notice is by a party, sending an endorsed copy of the judgment showing its date of entry constitutes sufficient notice and failure to file notice of appeal within 60 days results in dismissal of the appeal.”