Carpiaux v. Peralta Community College District

Opinion

STEIN, J. . . .* Andre Carpiaux was discharged from his job as an instructor at the East Bay Skills Center, administered by the Peralta Community College District (District). . . .* After unsuccessfully pursuing his various administrative remedies, Carpiaux filed in the superior court a complaint and a petition for writ of mandate, seeking back payment of wages and reinstatement.

Carpiaux, over the District’s objection, . . .* amended his complaint to state a cause of action for breach of the implied covenant of good faith and fair dealing. A jury returned a general verdict awarding Carpiaux damages of $500,000. The District filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which motion was denied by operation of law.

The District appeals from the judgment entered upon the jury’s verdict and from the denial of its motion for judgment notwithstanding the verdict or for a new trial.

The Timeliness of the Appeal

An initial issue is whether the District’s appeal was untimely filed and whether this court thus is deprived of jurisdiction to hear the appeal.

[1223]California Rules of Court, rule 2, provides that notice of appeal shall be filed “within 60 days after the date of mailing notice of entry of judgment by the clerk of the court ... or within 60 days after the date of service of written notice of entry of judgment by any party upon the party filing the notice of appeal, or within 180 days after the date of entry of the judgment, whichever is earliest, unless the time is extended as provided in rule 3.” (Italics added.) There is no evidence that notice of entry of judgment was mailed by the clerk or that it was served on the District by any other party. Accordingly, the District had no fewer than 180 days from the date of entry of judgment, November 6, 1986, in which to file its notice of appeal. The notice of appeal was filed on March 23, 1987, which is less than 180 days after judgment was entered.

Carpiaux points to language in California Rules of Court, rule 3 which, he claims, limited the District’s time for filing a notice of appeal to less than 180 days after date of entry of judgment. Rule 3(d) provides that where, as here, a party has moved for a new trial and for judgment notwithstanding the verdict, and the motions are not decided by the superior court within 60 days after the filing of the notice of intention to move for a new trial, “the time for filing the notice of appeal from the judgment or from the denial of the motion to enter a judgment notwithstanding the verdict is extended . . . until the earlier of 30 days after [the motion for new trial has been denied by operation of law, i.e., 60 days after the filing of the first notice of intention to move for a new trial (Code Civ. Proc., § 660)], or 180 days after entry of judgment.”