Meskell v. Culver City Unified School District
| Decision Date | 16 October 1970 |
| Citation | 90 Cal.Rptr. 381 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John E. MESKELL, Plaintiff and Respondent, v. CULVER CITY UNIFIED SCHOOL DISTRICT and Flewelling and Moody, a corporation, Defendants and Appellants. Civ. 35392. |
John D. Maharg, County Counsel and Allan B. McKittrick, Deputy County Counsel, Booth, Mitchel, Strange & Willian, and Owen W. Strange, Los Angeles, for defendants and appellants.
Shapiro & Maguire, Beverly Hills, and Grant & Popovich, and Irvin Grant, Los Angeles, for plaintiff and respondent.
Plaintiff, as prime contractor on the project, brought an action to recover damages against defendant Culver City Unified School District (hereinafter District) and defendant Flewelling & Moody (hereinafter Flewelling), the architect retained by the District, caused principally by an alleged misrepresentation in the plans and specifications as to the weight of certain concrete roof segments which failed during the course of construction of a school auditorium for the District, and an alleged change in the specifications requiring a more expensive method of repairing voids in the concrete roof segments.
The cause was tried before a jury which returned a verdict in favor of plaintiff and against both defendants in the sum of $47,545.75 and against defendant District in the further sum of $3,718. A motion for a new trial was made on behalf of, and was granted as to each defendant. Thereafter plaintiff moved to strike the order granting the new trials, and this motion was granted upon the ground that the court had lost jurisdiction to grant the new trials. The appeals are from the order granting the motion to strike the order granting the new trials.
Judgment on the verdict was entered on February 6, 1969. On February 7, 1969, plaintiff filed and served, by mail, notice of entry of judgment. On February 10, 1969, the clerk filed and served notice of entry of judgment. In the declaration of Owen W. Strange, one of counsel for defendant Flewelling, filed in opposition to plaintiff's motion to strike, it is asserted that while he received the clerk's notice of entry of judgment on February 11, 1969, neither he nor his office received any other such notice.
Defendant Flewelling filed a motion for a new trial on February 14, 1969. Defendant District filed its motion for a new trial on February 20, 1969. Such motions were set for hearing, and were heard on March 21, 1969. On April 9, 1969, 61 days after plaintiff served, by mail, notice of entry of judgment, the court made an order granting the motion for a new trial. Such order, however, was not signed by the judge and filed with the clerk, but was stamped 'Entered April 11, 1969,' indicating the date of its entry in the permanent minutes of the court 63 days after service, by mail, of notice of entry of judgment. 1 On May 12, 1969, plaintiff filed a motion to strike the order granting the new trials and for issuance of a writ of execution on the ground that the motions for a new trial had been denied by operation of law on April 8, 1969. Plaintiff's motion was heard on May 23, 1969, and was granted on June 2, 1969.
The hearing on the motions for a new trial was not reported. The hearing upon plaintiff's motion to strike the new trial order was reported and the transcript of such proceeding is before us as part of the record on the appeals. The version of both defendants as to what happened at the hearing on the motions for a new trial held on March 21, 1969, as reflected in the reporter's transcript of the proceedings bearing on plaintiff's motion to strike, heard on May 23, 1969, is substantially the same. It is as follows: The court inquired of counsel and the clerk as to the last day upon which it could rule upon the motions and was informed that April 9, 1969, was the last day; apparently at the time of the hearing, plaintiff's notice of entry of judgment, although filed, had not yet been entered in the registry of actions; thus, when the court sought information from counsel and the clerk as to the day it should set for its ruling, the court was informed that April 9, 1969, was the proper date; this date was selected by the clerk and appellant's (Flewelling's) counsel upon the basis of the information in the file which did not reflect the notice of entry of judgment having been filed by plaintiff; counsel for plaintiff was present when the court asked for the date upon which it should rule, but remained silent.
Plaintiff's version of what occurred at the March 21 hearing on the motions for a new trial is that the record of the proceedings of May 23, does not identify the person or persons who informed the court that April 9, 1969, was the proper date upon which the court should rule upon the motions; that plaintiff's counsel denied that the court had made inquiry of him as to the last day upon which the court could rule on the motions, and that he did not recall that the date of April 9 was mentioned as being the last day upon which the court could rule on the motions. Plaintiff also urges that there is nothing in the record to show that plaintiff's notice of entry of judgment was not in the file at the time of the hearing on the motions for a new trial.
The clerk's transcript shows that plaintiff's notice of entry of judgment was filed and served on February 7, 1969.
Flewelling urges that (1) plaintiff did not rebut the presumption that the court ruled within the 60-day period which arises from the date on the minute entry; (2) section 1013 of the Code of Civil Procedure is effective to extend the time in which the court can rule on a motion for new trial by two days and (3) the court should hold, to negate the inequitable situation of this case, that the 60-day period provided by section 660 of the Code of Civil Procedure began running from the date notice of entry of judgment was given by the clerk.
The District urges that (1) where service by mail of the notice of entry of judgment is had, the time within which the trial judge may rule upon a motion for a new trial is extended two days under the provisions of section 1013 of the Code of Civil Procedure, and (2) plaintiff waived his right to rely on the notice of entry of judgment mailed on February 7, 1969, to commence the period for ruling on the motion for a new trial.
Flewelling's contention that it is presumed that the trial court determined the motion for a new trial within the 60-day period provided by section 660 of the Code of Civil Procedure is predicated upon the claim that the rough minutes of the clerk of the judge who heard the motions, kept by the clerk in the courtroom for his convenience, disclose that the court ruled on the motions on April 8, 1969. This document is not before us. The only evidence of its existence is contained in the declaration of Owen W. Strange, one of counsel for Flewelling, in opposition to plaintiff's motion to strike the order granting the new trial. It is stated in the declaration that such minute order bears a stamped date in the lower right hand corner thereof of April 8, 1969. Defendant Flewelling argues from this circumstance that it must be presumed that the clerk properly performed his official duty in preparing his rough minutes (Evid.Code, § 664), and that the date of April 8, 1969, must be accepted as the date upon which the court determined the motion, in the absence of evidence sufficient to rebut such presumption.
The rough minutes kept by the clerk of the court are not an official record, but are a mere memorandum kept by him for his own convenience, and the permanent minutes constitute the only official record of the actions of the court. Such permanent minutes import absolute verity unless and until amended. Since the rough minutes are not an official record there is no presumption of correctness in their favor and without other supporting evidence they cannot be used to impeach the correctness of the official record of the court. (Wyman v. Municipal Court, 102 Cal.App.2d 738, 740, 228 P.2d 89, 229 P.2d 491.) If it is claimed here that the permanent minutes of the trial court do not speak the truth as to the date upon which the trial court ruled on the motions for a new trial, then it was the duty of defendant Flewelling to remedy this by a motion in that court. (Shellhaas v. Petrolane, Ltd., 98 Cal.App.2d 171, 174, 219 P.2d 797.) Furthermore, the motion for a new trial must be determined within 60 days after service of notice of entry of the judgment. Such motion is not determined until the order ruling on the motion is entered on the permanent minutes of the court or is signed by the judge and filed with the clerk. It is not claimed, nor is it shown that the rough minutes of the clerk, referred to in defendant Flewelling's brief, bearing date of April 8, 1969, were signed by the trial judge and filed with the clerk or were entered in the permanent minutes of the court as is required by the provisions of section 660, Code of Civil Procedure. In these circumstances, the rough minutes of the clerk, claimed by Flewelling to contain the order of the court made on April 8, 1969, ruling on the motions for a new trial were ineffective as a determination of the motions. (Code Civ.Proc. § 660; Siegal v. Superior Court, 68 Cal.2d 97, 100-101, 65 Cal.Rptr. 311, 436 P.2d 311.) Here, the permanent minutes of the court disclose that the order granting the motions for a new trial was made on April 9, 1969, and proper procedures had been commenced by the clerk to enter the order on the permanent minutes. The date upon which the order was entered upon the permanent minutes fixed the time that the motions were determined. That date is 61 days after service of...
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