Hollister Convalescent Hosp., Inc. v. Rico, S.F. 23312

CourtUnited States State Supreme Court (California)
Writing for the CourtSULLIVAN; WRIGHT; TOBRINER; MOSK
Citation542 P.2d 1349,125 Cal.Rptr. 757,15 Cal.3d 660
Parties, 542 P.2d 1349 HOLLISTER CONVALESCENT HOSPITAL, INC., Plaintiff and Respondent, v. Louis RICO et al., Defendants and Appellants.
Decision Date10 December 1975
Docket NumberS.F. 23312

Page 757

125 Cal.Rptr. 757
15 Cal.3d 660, 542 P.2d 1349
HOLLISTER CONVALESCENT HOSPITAL, INC., Plaintiff and Respondent,
v.
Louis RICO et al., Defendants and Appellants.
S.F. 23312.
Supreme Court of California,
In Bank.
Dec. 10, 1975.

[15 Cal.3d 662]

Page 759

[542 P.2d 1351] Claude L. Lowen, David J. McKeown and Loube & Lewis, Oakland, for defendants and appellants.

Coughlin, Wyckoff, Parker & Paxton and James M. Paxton, Hollister, for plaintiff and respondent.

SULLIVAN, Justice.

This is an attempted appeal from a judgment in favor of plaintiff Hollister Convalescent Hospital, Inc. and against defendants Louis Rico et al., in an action for damages for breach of covenants and agreements in a lease. Plaintiff has moved that the appeal be dismissed because it was not timely filed. We grant the motion and dismiss the appeal.

The judgment in question was entered on December 19, 1974, and on the same day written notice of entry of judgment was filed by the clerk and served upon the defendants. On January 2, 1975, defendants filed timely notice of intention to move for a new trial or alternative relief under Code of Civil Procedure section 662 and intention to move for an order setting aside and vacating the judgment and entering a new judgment under Code of Civil Procedure section 663. These motions were denied on February 4, 1975; the order denying all of said motions [15 Cal.3d 663] was entered on the permanent minutes of the court on the same date. A formal written order was prepared by plaintiff's counsel and signed by the court on February 6, 1975, and on the same day a copy of this order, along with a notice of entry accurately setting forth the date of denial of the motions and the location of the minute entry in the records of the court, was served by mail on defendants' counsel. Defendants' notice of appeal was not filed until March 7, 1975, which was the 31st day following entry of the order denying their motions under Code of Civil Procedure sections 662 and 663, and plaintiff has promptly moved to dismiss the appeal as not timely filed.

As here relevant, rule 2 of the California Rules of Court provides that, unless otherwise provided by law, 'notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment by the clerk . . . unless the time is extended as provided in rule 3.' 1 The latter rule provides in pertinent part that when a motion for new trial is validly made and denied, 'the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after . . . entry of the order denying the motion' (Cal. Rules of Court, rule 3, subd. (a)), and that when a motion to vacate a judgment or to vacate a judgment and enter another and different judgment is validly made and denied, the time is likewise extended 'until 30 days after entry of the order denying the motion to vacate' (Cal. Rules of Court, rule 3, subd. (b)). Finally, subdivision (b) of rule 2 provides in pertinent part that 'For the purposes of this rule: . . . The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order.' The rules make no specific provision defining the effective date of entry of a nonappealable order for purposes of appeal from an underlying judgment.

Although an order denying a motion for a new trial is of course nonappealable

Page 760

[542 P.2d 1352] (see 6 Witkin, Cal.Procedure (2d ed. 1971) § 71, pp. 4084--4085, and cases there cited), an order denying a motion to vacate made pursuant to Code of Civil Procedure section 663 has been held to be appealable (see 6 Witkin, Cal.Procedure, Supra, § 94, pp. 4100--4102, [15 Cal.3d 664] and cases there cited). However, the order denying the latter motion 2 in this case did not direct the preparation of a written order. Therefore, according to the aforementioned provisions of rule 2, subdivision (b), subsection (2), of the California Rules of Court the date of entry of that order for purposes of the 30-day extension provided for in rule 3 was 'the date of its entry in the permanent minutes'--or February 4, 1975. 3 As we now proceed to explain, the date of 'entry of the order denying the motion (for new trial)' was also the date of the entry of that order in the permanent minutes of the court--February 4, 1975.

The language of our opinion in Slawinski v. Mocettini (1965) 63 Cal.2d 70, 45 Cal.Rptr. 15, 403 P.2d 143, has been cited by the parties hereto and indeed by the Courts of Appeal for a variety of propositions, some of which we will consider at a later point in this opinion. The actual holding of that case, however, is quite narrow. There the plaintiff's motion for a new trial was heard and denied on July 10, the clerk making an appropriate minute entry on the same day. On July 13 a formal order was prepared by counsel and signed by the judge, 'which order recit(ed) that it was entered on that same day' (63 Cal.2d at p. 71, 45 Cal.Rptr. at p. 15, 403 P.2d at p. 143), and a copy of that order, along with a notice of denial of the motion, was served on plaintiff's counsel. The notice, like the order, recited that the order of denial was made and entered on July 13. Plaintiff's notice of appeal was filed on August 12--which was 30 days after the signing of the formal order but 33 days after the actual entry of the order in the minutes of the court. 'The question thus presented,' we stated, 'is whether for purposes of appeal in the instant circumstances the order denying the motion was Entered on July 10 or July 13.' (63 Cal.2d at p. 71, 45 Cal.Rptr. at p. 16, 403 P.2d at p. 144; italics added.)

Indicating our awareness of the rule that the 'effective date' of an order denying a motion for a new trial is the date of the minute entry (Pacific Home v. County of Los Angeles (1953) 41 Cal.2d 855, 857, 264 P.2d 544), as well of the provision of Code of Civil Procedure section 660 that the 'entry of a new trial order in the permanent minutes of the court shall constitute a determination of the motion,' we nevertheless held that these considerations offered 'no assistance in fixing the date of [15 Cal.3d 665] entry of the order for purposes of appeal therefrom.' (63 Cal.2d at p. 74, 45 Cal.Rptr. at p. 17, 403 P.2d at p. 145.) Adverting to the policy favoring the granting of the right of appeal in doubtful cases, and noting that there was a clear conflict between the clerk's entry on the one hand, and the formal order and notice on the other, with respect to the date of actual entry, we concluded that since there were 'no statutory provisions or rules which would prevent resolving the conflict in accordance with the policy above stated, while a contrary result might well provide a trap for the unwary' (63 Cal.2d at p. 72, 45 Cal.Rptr. at p. 16, 403 P.2d at p. 144), it should accordingly be resolved in favor of the right of appeal and the order deemed to have been entered on the later date.

Page 761

[542 P.2d 1353] It is clear from the foregoing that the actual holding of Slawinski, as distinguished from its language (which we will consider below) is simply this: When there exists a clear conflict between the permanent minutes of the court and a formal order issued by it relative to the date of entry of an order denying a motion for new trial, that conflict is to be resolved in favor of granting the right of appeal.

Applying this rule to the instant case, we find no such conflict. The permanent minutes of the court clearly indicate that the motion in question was denied, and the order of denial entered, on February 4, 1975. The formal order of the court, although dated February 6, contained absolutely no indication of the date on which the minute order of denial was entered. Moreover, the notice of entry of the order of denial, which was served on defendants along with the formal order, clearly indicated that the order was entered on February 4. 4 Thus, the principle of Slawinski is not applicable. For purposes of appeal, as well as for all other purposes, the order denying the motion for new trial was entered on February 4, 1975. Accordingly, the notice of appeal filed on March 7, 1975, being filed after the 30th day following entry of the order, was not timely.

Defendants contend, however, that they are entitled to be relieved from their default in filing a timely notice of appeal under theories of 'substantial compliance,' 'justifiable reliance,' and 'quasi-estoppel.' These theories, they assert, find ample support not only in cases of this court but in cases of the Courts of Appeal decided on the basis of our [15 Cal.3d 666] own pronouncements. As a factual basis for their arguments they allege not only the fundamental facts stated above but also the following considerations: that the associate entrusted with determining the last day on which a timely notice of appeal could be filed instructed an experienced legal secretary to telephone 5 the clerk of the trial court 'to ascertain not only the date of entry (of the order denying new trial), but the book and page number as well'; that upon so doing 'not one but two secretaries were advised that the date of entry was February 6, rather than the actual date, February 4'; that the efforts of the secretaries were explicitly directed to learning the date of Entry, rather than the date of filing; and that the caution thus exhibited by defendants' attorneys, 'which led them to obtain what they were advised was the correct date of entry from the Clerk of the Court, rather than rely exclusively upon ambiguous documents served upon them by opposing counsel, resulted in the filing of the notice on the thirty-first day after actual entry of the prior order.'

Rule 45, subdivision (e), of the California Rules...

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  • Ventura Coastal, LLC v. Occupational Safety & Health Appeals Bd., F077267
    • United States
    • California Court of Appeals
    • December 1, 2020
    ...of an appeal." ( Estate of Hanley, supra , 23 Cal.2d at pp. 123–124 [142 P.2d 423].)In Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 125 Cal.Rptr. 757, 542 P.2d 1349, the defendants' notice of appeal of the judgment in a civil action was filed one day late. The court cite......
  • Vivid Video, Inc. v. Playboy Entertainment Group, No. B192186.
    • United States
    • California Court of Appeals
    • February 1, 2007
    ...The parties cannot create appellate jurisdiction by consent, waiver, or estoppel. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666, 125 Cal.Rptr. 757, 542 P.2d 1349; Estate of Hanley (1943) 23 Cal.2d 120, 123, 142 P.2d 423.) Pursuant to statute, the right to appeal is g......
  • M'Guinness v. Johnson, No. H040614
    • United States
    • California Court of Appeals
    • December 30, 2015
    ...must dismiss an untimely appeal either upon motion of a party or upon our own motion ( Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 667[125 Cal.Rptr. 757, 542 P.2d 1349] ), we will address Johnson's contention.The order denying Appellants' motion to disqualify was dated ......
  • Blake C., In re
    • United States
    • California Court of Appeals
    • January 31, 1986
    ...re Morrow (1970) 9 Cal.App.3d 39, 47, 88 Cal.Rptr. 142, disapproved on other grounds in Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349; In re Gano (1958) 160 Cal.App.2d 700, 705-706, 325 P.2d 485.) When the evidence permits the conclus......
  • Request a trial to view additional results
330 cases
  • Ventura Coastal, LLC v. Occupational Safety & Health Appeals Bd., F077267
    • United States
    • California Court of Appeals
    • December 1, 2020
    ...of an appeal." ( Estate of Hanley, supra , 23 Cal.2d at pp. 123–124 [142 P.2d 423].)In Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 125 Cal.Rptr. 757, 542 P.2d 1349, the defendants' notice of appeal of the judgment in a civil action was filed one day late. The court cite......
  • Vivid Video, Inc. v. Playboy Entertainment Group, No. B192186.
    • United States
    • California Court of Appeals
    • February 1, 2007
    ...The parties cannot create appellate jurisdiction by consent, waiver, or estoppel. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666, 125 Cal.Rptr. 757, 542 P.2d 1349; Estate of Hanley (1943) 23 Cal.2d 120, 123, 142 P.2d 423.) Pursuant to statute, the right to appeal is g......
  • M'Guinness v. Johnson, No. H040614
    • United States
    • California Court of Appeals
    • December 30, 2015
    ...must dismiss an untimely appeal either upon motion of a party or upon our own motion ( Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 667[125 Cal.Rptr. 757, 542 P.2d 1349] ), we will address Johnson's contention.The order denying Appellants' motion to disqualify was dated ......
  • Blake C., In re
    • United States
    • California Court of Appeals
    • January 31, 1986
    ...re Morrow (1970) 9 Cal.App.3d 39, 47, 88 Cal.Rptr. 142, disapproved on other grounds in Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349; In re Gano (1958) 160 Cal.App.2d 700, 705-706, 325 P.2d 485.) When the evidence permits the conclus......
  • Request a trial to view additional results

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