Ten Eyck v. Industrial Forklifts Co.

• Decision Date: 12 December 1989
• Docket Number: No. B039523,B039523
• Citation: 216 Cal.App.3d 540,265 Cal.Rptr. 29
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth TEN EYCK, Plaintiff and Appellant, v. INDUSTRIAL FORKLIFTS, Defendant and Respondent. Fremont Compensation Insurance Company, Intervenor and Second Appellant. Civ.

Page 29

265 Cal.Rptr. 29

216 Cal.App.3d 540

Kenneth TEN EYCK, Plaintiff and Appellant, v. INDUSTRIAL FORKLIFTS, Defendant and Respondent Fremont Compensation Insurance Company, Intervenor and Second Appellant.

Civ. No. B039523.

Court of Appeal, Second District, Division 3, California.

Dec. 12, 1989.

Review Denied Mar. 1, 1990.

[216 Cal.App.3d 541] Michael J. Piuze, Los Angeles, for plaintiff and appellant.

Sobelsohn, Bradford & Haddad, Bruce B. Neft, Glendale, for Fremont Compensation Ins. Co., intervenor and second appellant.

McHale and Connor, Bruce Janger, Los Angeles, for defendant and respondent.

CROSKEY, Associate Justice.

Kenneth Ten Eyck ("plaintiff") appeals from an order of the Los Angeles Superior Court which granted a motion for summary judgment in favor of defendant Industrial Forklifts Co. ("Industrial"). ¹ For the reasons discussed below, his appeal is untimely and must be dismissed.

PROCEDURAL BACKGROUND

On October 3, 1985 plaintiff filed a complaint for personal injuries against Industrial and two other defendants, Clark-Lift of Los Angeles, Inc. and Clark Equipment & Industrial Truck Division (hereinafter sometimes referred to collectively as "the defendants"). In the complaint, plaintiff alleged causes of action for negligence, strict products liability and breach of warranty. According to the complaint, plaintiff was using a forklift tractor, a Clark Forklift, which had been designed, manufactured and maintained by defendants. Plaintiff alleged that the defendants' design Industrial filed an answer generally denying the charging allegations and alleging that plaintiff's own negligence caused his injuries. On September 19, 1988, Industrial filed a motion for summary judgment which plaintiff opposed. The trial court granted the motion on October 28, 1988, and the judgment was signed by the court and file stamped on November 2, 1988. Industrial served plaintiff with a notice of entry of judgment on November 8, 1988.

manufacture and maintenance was so negligent that it caused the forks of the forklift to drop without warning, thereby causing serious and permanent injury to plaintiff.

On November 7, 1988, plaintiff filed a motion for reconsideration of the order granting summary judgment. Industrial filed opposition to plaintiff's motion. The record does not reflect whether the trial court denied the motion for reconsideration or granted it but affirmed the order as to which plaintiff sought reconsideration. In any event, it appears the motion was not heard and ruled upon until January 6, 1989.

On January 10, 1989, plaintiff filed his notice of appeal from the "judgment rendered by the court in this matter on October 28, 1988", that is, from the minute order granting the motion for summary judgment.

When the record on appeal was received by this court it did not contain a copy of the summary judgment. Believing that no judgment had yet been entered and that plaintiff's notice of appeal was therefore premature, we directed Industrial to obtain a signed summary judgment so that this appeal could be considered. (Wolfrich Corp. v. United Services Automobile Assn. (1983) 149 Cal.App.3d 1206, 1208, fn. 2, 197 Cal.Rptr. 446 disapproved on another point in Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 260 Cal.Rptr. 183, 775 P.2d 508.) Upon Industrial's request for such a judgment, the trial court sent a letter to counsel for Industrial stating that a judgment had indeed been signed by the judge and file stamped by the clerk on November 2, 1988. The letter states, however, that the judgment had not been entered in the register of actions. Therefore, the trial court entered it in the register of actions on September 8, 1989.

Because the judgment was signed and file stamped on November 2, 1988 and Industrial's notice of entry was served November 8, 1988, it appeared to this court that plaintiff's notice of appeal, which was filed January 10, 1989, was untimely by one day. We therefore requested letter briefs from the parties on the issue of the timeliness of the appeal, including a discussion of what effect, if any, plaintiff's motion for reconsideration had on the matter.

DISCUSSION

Under California Rules of Court, rule 2 ², plaintiff's appeal had to be filed within 60 days after Industrial served him with written notice of entry of judgment. Such notice was served on November 8, 1988. The last day to file plaintiff's notice of appeal was therefore January 9, 1989. ³ Plaintiff's appeal was not filed until January 10, 1989. However, plaintiff argues that because the judgment was not entered in the register of actions until September 1989, Industry's November 8, 1988 notice of entry of judgment was ineffectual for purposes of rule 2.

Entry of a judgment in the register of actions is not specifically mentioned in rule 2. Rule 2(b) states that the date of entry of a judgment is either (1) the date of its entry in the judgment book or (2) (in those counties which follow one of the three procedures set out in section 668.5, ⁴ as does the County of Los Angeles) the date of filing the judgment with the clerk. By its language alone, the first of these two alternatives in rule 2(b) does not contemplate that entry of the judgment in the register of actions is necessary in order for a judgment to be considered "entered." Plaintiff cites no cases which hold that entry in the register of actions as well as in the judgment book is necessary, and we know of none. Indeed, as of January 1, 1982, a superior court's use of the register of actions becomes optional. (Govt.Code, § 69845.)

Nor is the result any different under rule 2(b)'s second alternative for accomplishing entry of a judgment. We hold that the word "filing," as used in rule 2(b)'s directive "The date of entry of a judgment shall be ... the date of filing the judgment with the clerk pursuant to [section 668.5]," requires only that the judgment be signed by the judge and file stamped by the clerk; it does not require that the judgment be entered in the register of actions.

Another court has, in effect, held that section 668.5's and rule 2(b)'s use of the word "filing" does not include the clerk's act of microfilming the judgment in those counties which microfilm judgments in lieu of entering them in a judgment book. (Hott v. Southern Pac. Pipe Lines, Inc. (1977) 75 Cal.App.3d 826, 142 Cal.Rptr. 507.) Logically then, "filing" also does not include the other two procedures which section 668.5 allows as substitutes for use of a judgment book, that is, (1) entry of the judgment in a register of actions or (2) entry of the judgment into the court's electronic data-processing system.

Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 276, 185 Cal.Rptr. 208 also provides some guidance. There the court stated that "Ordinarily, entry of a judgment consists of copying it at large in the judgment book which the clerk keeps among the records of the court. [Citations.]" The court noted that the superior court in that case (Santa Barbara County) followed section 668.5's alternative procedure and microfilmed its judgments. In determining whether the appellant had received a proper notice of entry of judgment, the court stated: "Real parties served on petitioner a conformed copy of the judgment which bore a stamp showing that the judgment had been filed with the clerk on March 19, 1982. Thus, petitioner was given written notice, in substance and effect, of the entry of the judgment." (Ibid.) The court did not add that microfilming the judgment (the functional equivalent, under section 668.5, of the Los Angeles court's practice of entering the judgment in the register of actions) was required before the judgment could be considered to be entered.

We hold that section 668.5's and rule 2(b)'s use of the word "filing" does not include or require entry of the judgment in the register of actions or entry of the judgment in the court's electronic data-processing system or microfilming the judgment. Thus, the fact that in the instant case the judgment was not entered in the register of actions until September 1989 is of no consequence to the issue of the timeliness of this appeal. Also of no consequence is the fact that plaintiff filed a motion for reconsideration.

Under rule 3, a valid motion for reconsideration, like a valid motion for new trial or a valid motion to vacate a judgment, will extend the time for filing a notice of appeal. (Rojes v. Riverside General...