Legal Question in Civil Litigation in California
Need help regarding California CCP �116.750; Case No. 10S01445 (Los Angeles Superior Court).
Court ordered judgment for Plaintiff on 12/13/2010 and mailed notice of entry of judgment on 12/15/2010.
Defendant filed notice of appeal on 01/18/2011, 34 days after the mailed notice of entry of judgment.
Clerk of Court accepted appeal and filed an Appeal Trial de Novo on 03/07/2011.
California CCP �116.750(b) states that "A notice of appeal shall be filed not later than 30 days after the clerk has delivered or mailed notice of entry of the judgment to the parties. A notice of appeal filed after the 30-day period is ineffective for any purpose."
Plaintiff brought to the attention of the court via telephone that the appeal was untimely. The clerk serving for the Honorable Judge Leslie Brown informed me via telephone that the judge deemed the 30th day to be 01/15/2011 and since that day fell on the weekend, the Defendant is allowed the following court day to file the appeal. As such, the notice of appeal on 01/18/2011 is deemed timely.
Consulting a calendar, I calculate the 30th day as 01/14/2011. The Defendant agrees with my calculation that the 30th day is 01/14/2011 and that the Defendant filed an appeal after the 30th day deadline. Please see attached: http://www.scribd.com/doc/47345725/ANSWER-Smith-v-FFS.
Since Defendant filed notice of appeal after the 30 day deadline, is it true that the Los Angeles Superior Court lacks jurisdiction to even hear the case? According to the website from Fresno Superior Court, "time limits are "jurisdictional," meaning that the court has no power to allow additional time for filing the notice of appeal." Please see attached: http://www.fresnosuperiorcourt.org/general_info/appeals.php. Moreover, how do I compel the judge to consult California CCP �116.750 and dismiss the case?
I have already filed two SC-105, Request for Order for the judge to consider and I am awaiting to receive the response. However, I feel strongly that it is a clear violation of State law to even allow the Appeal Trial de Novo to proceed.
Lastly, based on State law, if the notice of entry of judgment was mailed on 12/15/2010, then when does the 30 day deadline expire? Is it 01/14/2011 or 01/15/2011?
Please help!
4 Answers from Attorneys
Stop calling the court. Go to the hearing and if the ruling goes against you, file a writ of mandate if it's worth it.
Good research. You should look up the law regarding mailing. CCP 1013 likely applies, in which case the deadline for the appeal would actually be 1/20/11.
I agree with Mr. Reed to the extent that the issue is whether Code of Civil Procedure section 1013 extends the time to appeal by five (5) days when the notice of entry of judgment was served by mail. Normally on appeals, such as appeals from limited civil actions to the Appellate Division of the Superior Court, or appeals from unlimited civil actions to the Court of Appeal, the five day extension does not apply. I'm not sure whether this same rule applies to appeals in small claims.
It is clear that the statute does say that the 30 days runs from the Notice of Appeal. (Code of Civ. Proc., sect. 116.750 subd. (b).) The thirty days expired by my calculation on Friday, January 14, 2011.
Mr. Stone is correct in that you should not be calling the court on an ex parte basis. Judge's and their staff are generally prohibited ethically from speaking to the parties on an ex parte basis about the subject of the litigation that is pending in their courtroom.
CCP �1013 does not extend the due date for notices of appeal. It extends the due date for many other documents when that date is triggered by mailing of another document, but there are exceptions. Notices of Appeal are among the exceptions.
If the clerk mailed the notice of entry properly and if it was mailed on December 13 as you say, then I agree with you that the appeal is untimely and that the court lacks jurisdiction to hear it per CCP �116.750(b). The defendant's explanation for missing the deadline does not change the fact that the papers were untimely.
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