O'Donnell v. Municipal Court

Opinion

PREMO, J. Petitioner Helen O’Donnell seeks a writ of mandate ordering the Superior Court of Monterey County to issue a writ of mandate to the Monterey County Municipal Court compelling it to treat O’Donnell’s notice of appeal as timely filed and to proceed with assembling the record. For efficiency, we treat the petition as one for mandate directed to the municipal court. We will issue the writ, for reasons to be stated.

The issue is whether O’Donnell’s notice of appeal from a municipal court judgment was timely filed. More specifically, the question is whether the appellant’s withdrawal of her motions for new trial and to vacate the judgment is the equivalent of the trial court’s denial of those motions, for purposes of court rules which extend the time to notice the appeal until 15 days after the trial court denies such motions.

The facts are undisputed: the notice of entry of the judgment against O’Donnell in municipal court was mailed on July 27, 1988. She filed notice of motions to vacate the judgment, and for new trial, on July 28, 1988. (These motions were brought under Code Civ. Proc., §§ 659, 661, 663.) On September 2, 1988, a hearing was held on O’Donnell’s request for a continuance of the hearing on the motions. At that hearing, according to the declaration of O’Donnell’s attorney, the following took place: “At that hearing [on the motions], I requested time to respond to Plaintiff’s opposition. . . . My request for time to respond in writing was denied. The Court [716]offered to go forward then or to continue the matter to allow me time to digest Plaintiff’s authorities. A continuance was ordered for further hearing on September 14, 1988.

“The Court stated that in its opinion, its judgment had been generous to my client and mentioned the susceptibility of my client to an order whereby she would be obligated to pay to Plaintiff $20,000.00 for fixtures removed by Petitioner, found in the original judgment to have been proper. The Court clearly warned me that if Petitioner’s motions were pursued that it would order a judgment more favorable to Plaintiff than originally ordered.

“In view of the Court’s statements, the motion was later dropped from calendar.”

Following this hearing, O’Donnell formally withdrew her motions by letter to the court filed September 13, 1988. She then attempted to file a notice of appeal from the judgment on September 23, 1988. The municipal court clerk refused to file the notice, because it was untimely. The appellate department of the superior court denied a writ of mandate, stating that the notice of appeal was not filed within 30 days of notice of entry of judgment, and California Rules of Court, rule 123(a) did not extend the time for filing. “The motion which would bring a stay of time for filing was not denied by the Court or by operation of law. Denial of such motion is a condition of the stay. The motion was withdrawn, not denied.”