Filipescu v. California Housing Finance Agency

[740]

Opinion

TURNER, P. J.

Plaintiff, Doina D. Filipescu, appeals from a judgment entered after demurrers were sustained without leave to amend to her second amended complaint for wrongful termination. Defendant, California Housing Finance Agency, has moved to dismiss the appeal as untimely. The dismissal motion is granted.

The demurrers were sustained without leave to amend on June 19, 1995. On June 30,1995, the judgment was signed by the law and motion judge. On July 7, 1995, a file-stamped copy of the judgment was served on plaintiff’s counsel by mail. The judgment clearly states that it was filed on June 30, 1995. Further, next to the law and motion judge’s file-stamped signature on page 2 of the judgment, the date “Jun 30 1995” clearly appears. On July 19, 1995, defense counsel served a document entitled “Notice of Entry of Judgment.” Attached to the document served on July 19, 1995, was: a page indicating the judgment was entered on June 30, 1995; a file-stamped copy of the judgment; and the proof of service attached to the file-stamped judgment previously served by mail on July 7, 1995. The notice of appeal was not filed until September 18, 1995.

Defendant argues that the service of the file-stamped judgment on July 7, 1995, commenced the 60-day maximum allowable time period for filing the notice of appeal. Defendant reasons that the notice of appeal was untimely because it was not filed until September 18, 1995, more than 60 days after the July 7, 1995, service of the file-stamped judgment. We agree.

The present case is controlled by the following provisions of rule 2(a)(2) and (b)(3) of the California Rules of Court

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which states in pertinent part: “(a) [Normal time] Except as otherwise provided by Code of Civil Procedure section 870 or other statute or rule 3, a notice of appeal from a judgment shall be filed on or before the earliest of the following dates: ... (2) 60 days after the date of service of a document entitled ‘notice of entry’ of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal.... For the purposes of this subdivision, a file-stamped copy of the judgment may be used in place of the document entitled ‘notice of entry’, [fl (b) [What constitutes entry] For the purposes of this rule: ... (3) The date of entry of an appealable order which is not entered in the minutes shall be the date of filing of the order signed by the court.” The service of the file-stamped judgment bearing a facsimile signature of the law and motion judge started the running of the 60-day time