Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.

• Decision Date: 06 March 1997
• Docket Number: No. S053493,S053493
• Citation: 61 Cal.Rptr.2d 166,15 Cal.4th 51,931 P.2d 344
• Court: California Supreme Court
• Parties: , 931 P.2d 344, 97 Cal. Daily Op. Serv. 1708, 97 Daily Journal D.A.R. 3231 VAN BEURDEN INSURANCE SERVICES, INC., Plaintiff, Cross-Defendant and Appellant, v. CUSTOMIZED WORLDWIDE WEATHER INSURANCE AGENCY, INC., Defendant, Cross-Complainant and Appellant.

Page 166

61 Cal.Rptr.2d 166

15 Cal.4th 51, 931 P.2d 344, 97 Cal. Daily Op. Serv. 1708,

97 Daily Journal D.A.R. 3231

VAN BEURDEN INSURANCE SERVICES, INC., Plaintiff, Cross-Defendant and Appellant, v. CUSTOMIZED WORLDWIDE WEATHER INSURANCE AGENCY, INC., Defendant, Cross-Complainant and Appellant.

No. S053493.

Supreme Court of California.

March 6, 1997.

Brekhus, Williams, Wester & Hall, Matthew D. Brekhus and Peter B. Brekhus Greenbrae, for Plaintiff, Cross-Defendant and Appellant.

Robert A. Lisnow, Los Angeles, for Defendant, Cross-Complainant and Appellant.

MOSK, Justice.

Plaintiff Van Beurden Insurance Services, Inc. (hereafter Van Beurden), appealed from a judgment of the superior court after denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial (hereafter sometimes JNOV/new trial motion). The Court of Appeal dismissed the appeal as untimely.

As will appear, the question whether the appeal was timely filed depends on when the time commenced for the superior court to rule on the new trial motion, which, in turn, depends on whether the clerk of the court mailed notice of entry of judgment upon order by the superior court. We conclude that, under the facts presented, the appeal was timely. Accordingly, we reverse the order of the Court of Appeal.

I.

The procedural history of this matter is undisputed. On October 10, 1991, Van Beurden sued Customized Worldwide Weather Insurance Agency, Inc. (hereafter Customized), to recover damages for breach of a written agreement and on a common count for money had and received. Customized cross-complained, for breach of an oral contract and on a common count.

On April 1, 1994, after a five-day trial, a jury found Customized liable to Van Beurden in the amount of $52,081.69; it found Van Beurden liable to Customized in the amount of $187,654.48. The superior court polled the jurors, and directed the clerk to enter the verdict in the minutes. Customized requested permission to make an oral motion for attorney fees and expenses. The superior court directed Customized to file a written motion. The verdict was filed with the clerk and entered in the minutes of trial; Customized, the prevailing party, was ordered to prepare a written judgment.

On April 11, 1994, Customized filed and served an "amended proposed judgment."

On May 18, 1994, the superior court held a hearing on posttrial motions relating to costs, at the conclusion of which it stated: "At this point I think I'll take the matter under submission and give you my decision as soon as I can."

On July 28, 1994, the superior court signed an order on the posttrial motions. On the same day, it signed the judgment. Both the order and judgment were filed on July 28, 1994, and the Clerk of the Kings County Consolidated Courts, acting through a deputy clerk, mailed a file-stamped copy of the order and the judgment to counsel for the parties, along with separate proofs of service. Customized, although the party submitting the judgment for entry, did not thereafter serve notice of entry of judgment, along with proof of service, as required by Code of Civil Procedure section 664.5, subdivision (a).

On August 5, 1994, Van Beurden served a notice of a JNOV/new trial motion. The notice was filed on August 8, 1994. Customized opposed the motion. After a hearing on September 12, 1994, the superior court took the matter under submission. On October 7, 1994, the superior court denied the motion on the merits.

On November 4, 1994, Van Beurden filed a notice of appeal; the clerk of the court mailed notification thereof to Customized on November 7, 1994. On November 22, 1994, Customized submitted a notice of cross-appeal for filing; it was filed by the superior court on December 12, 1994. ¹

On March 15, 1995, Customized filed a motion to dismiss the appeal as untimely. Van Beurden opposed on the grounds that there was no evidence that the superior court ordered the clerk to mail notice of entry of judgment pursuant to Code of Civil Procedure section 664.5, and that the file-stamped copy of the judgment did not, in any event, constitute such notice. Accordingly, the time for filing notice of appeal extended to 30 days after the date on which the superior court ruled on the new trial motion.

The Court of Appeal dismissed the appeal as untimely, and, on that basis, also dismissed the cross-appeal. It observed that under the California Rules of Court, when a party has served and filed valid notice of intention to move for a new trial and to move for entry of a judgment notwithstanding the verdict, notice of appeal must be filed on the earliest of three possible dates: (1) 30 days after entry of the order denying the motion for a new trial; (2) 30 days after denial of the motion by operation of law; or (3) 180 days after entry of judgment. (Cal. Rules of Court, rule 3(d).) It concluded that the crucial question was whether the 60-day jurisdictional time period for ruling on a new trial motion, pursuant to Code of Civil Procedure section 660, ran from July 28, 1994--the date the clerk mailed the file-stamped copy of the judgment--or from August 8, 1994--the date Van Beurden first filed notice of intention to move for a new trial. If the former, the 60th day for ruling on the new trial motion was September 26, 1994, and the appeal, filed more than 30 days thereafter, was untimely. If the latter, the 60th day for ruling on the new trial motion was October 7, 1994, and the appeal, filed less than 30 days thereafter, was timely.

The Court of Appeal, drawing inferences from the record, concluded that there was sufficient indication that the superior court ordered the clerk of the court to mail notice of the entry of the judgment pursuant to Code of Civil Procedure section 664.5, and intended the earliest applicable time limit to apply to any new trial motion. It also ruled that the file-stamped copy of the judgment was equivalent to a "notice of entry" of judgment.

Van Beurden filed a petition for review, presenting the following issue: "What is required for a clerk's mailing of a file stamped copy of the judgment to be considered a notice of entry of judgment pursuant to Code of Civil Procedure [section] 664.5 such that it triggers the 60 day jurisdictional period for ruling on a motion for a new trial." We granted review.

II.

The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349.)

Ordinarily, an appeal must be filed on or before the earliest of the following dates: "(1) 60 days after the date of mailing by the clerk of the court of a document entitled 'notice of entry' of judgment; (2) 60 days after the date of service of a document entitled 'notice of entry' of judgment by any party upon the party filing the notice of appeal, or by the party filing the notice of appeal; or (3) 180 days after the date of entry of the judgment." (Cal. Rules of Court, rule 2(a).)

The time for appeal is extended if a party files a timely notice of intention to move for a new trial and for entry of a judgment notwithstanding the verdict. (See Code Civ. Proc., §§ 629, 659.) In such case, "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 for all parties until the earlier of 30 days after entry of the order denying the motion for a new trial or its denial by operation of law, or 180 days after the entry of the judgment." (Cal. Rules of Court, rule 3(d).) A trial court retains jurisdiction to rule on a valid new trial motion for "60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to [Code of Civil Procedure s]ection 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after the filing of the first notice of intention to move for a new trial." (Code Civ. Proc., § 660, 3d par., italics added.)

Code of Civil Procedure section 664.5, in relevant part, provides: "(a) In any contested action or special proceeding ..., the party submitting an order or judgment for entry shall prepare and mail a copy of the notice of entry of judgment to all parties who have appeared in the action or proceeding and shall file with the court the original notice of entry of judgment together with the proof of service by mail .... [p] (b) Promptly upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel, the clerk of the court shall mail notice of entry of judgment to all parties who have appeared in the action or special proceeding and shall execute a certificate of such mailing and place it in the court's file in the cause. [p] (c) For purposes of this section 'judgment' includes any judgment, decree, or signed order from which an appeal lies. [p] (d) Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable." ²

In this case, the clerk of the court mailed a file-stamped copy of the judgment. Customized did not thereafter serve notice of entry of judgment. Van Beurden filed a timely JNOV/new trial motion. The timeliness of its appeal thus depends on whether the clerk's mailing of the copy of the judgment commenced the time for the superior court to rule on Van Beurden's new trial motion, i.e., whether it was mailed "pursuant to section 664.5." (Code Civ. Proc., §§ 629, 660.) If so, the motion was denied by operation of law on September 26, 1994--60 days after the notice was mailed by the clerk--and the appeal, filed more than 30 days thereafter, was untimely. (Id., § 660; ...