Kirkpatrick v. J. R.

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KAUS, P. J. People’s motion to dismiss an appeal from an order, made March 7, 1969, adjudging J.R. a ward of the juvenile court under the provisions of section 602 of the Welfare and Institutions Code. The basis for the motion is that the notice of appeal, which was filed on May 22, 1969, was too late. The relevant chronology is as follows:

March 7, 1969: A referee of the juvenile court signed an order declaring J.R. to be a ward of the court under section 602. The hearing had been reported by an official reporter.

[599]March ?, 1969: Petition for rehearing pursuant to section 558 was filed.1 It was signed by counsel.

March 25, 1969: The clerk of juvenile court notified counsel for J.R. that the application for a rehearing had been filed, but that it was defective in that it had not been signed by the minor, his parent or legal guardian. A new application was enclosed in the clerk’s letter and counsel was advised that it would be deemed timely, if signed by the client and filed within 10 days.

April 1, 1969: New application for rehearing signed by J.R.’s mother was filed. According to the provisions of section 558 the rehearing by the judge of the juvenile court could be had on the transcript of the proceedings before the referee. The section also provides that if the application is not granted within 20 days following the date of “its” receipt, it shall be deemed denied.

April 29, 1969: The last of several applicable reporter’s transcripts was filed with the superior court.

May 5, 1969: Petition for rehearing was denied by the judge.

May 22, 1969: Notice of appeal was filed.

The right to appeal in juvenile matters is granted by section 800. The parties are in agreement that the applicable time limit for the filing of a notice of appeal is that set forth in rule 2 of the California Rules of Court, namely 60 days from the applicable commencement date. Respondent’s motion to dismiss is based on reasoning that pursuant to section 556 the March 7 order became final on March 17, more than 60 days before May 22. This reasoning is supported by an argument to the effect that the only valid petition for rehearing — that executed by the parent — which, if filed in time, would have postponed the effective date of the March 7 order, was filed too late. The implied premise of that argument is that there was no legal basis for the clerk’s extension of time. Alternatively, respondent contends that the petition for rehearing was denied by operation of jaw on April 21 — the judge’s later express denial being of no consequence — and that thereafter the applicable time limit is that provided by rule 3 (a) of the California Rules of Court for situations where a valid notice of intention to move for a new trial is filed and denied — 30 days — and that therefore the notice of appeal was one day late.