AN APPEAL TO REASON

Figuring out when to file your notice of appeal can be a tricky matter. Serving a notice of entry of judgment or a conformed filed-stamped copy of the executed judgment can cut down the time from 180 to 60 days. But what if you never received the judgment or notice of entry of judgment?

In Avenue v. Franco (May 13, 2008, G039767) ___ Cal.App.4th ___ [2008 WL 2026309], the court dismissed an appeal for lack of jurisdiction, holding that "a trial court cannot restart the clock for filing a notice of appeal by vacating and 're-entering' a judgment on the ground the appellant never received notice of entry of judgment." This is not the first time a trial court has tried to save an appeal lost due to the failure to file a timely notice of appeal. Filing a notice of appeal is jurisdictional and the exceptions to the time deadline are so rare that they aren't even worth discussing.

In Avenue, the trial court granted defendant's motion to enforce a settlement agreement but took under submission the issue of attorney's fees. Two weeks later the court issued a minute order granting defendant's motion for attorney's fees of $12,375. Over four months later the defendant served a notice of ruling indicating plaintiff was ordered to pay the judgment immediately to defendant. Plaintiff objected, arguing the court could only enter judgment - which had not yet been entered - and then it could be enforced. But the trial court did enter judgment, just 20 days after the notice of ruling. Neither a revised notice of ruling (bearing interlineations), the judgment, nor the notice of entry of judgment had been served on the plaintiff.

The plaintiff's attorney did nothing until over five months later when he discovered from the superior court web site that judgment had been entered. The plaintiff filed a motion to vacate the judgment as void because he did not receive the notice of entry of judgment as required by Code of Civil Procedure section 664.5, subdivisions (a) and (b). The trial court granted the motion, noting that defendant failed to serve the proposed judgment pursuant to California Rules of Court, rule 8.25. It canceled the judgment and deemed it filed on the date of the hearing on the motion. Plaintiff filed a notice of appeal 22 days later.

The appellate court observed the trial court's "unusual action" "was obviously well intentioned," and that plaintiff did not receive the statutory notices. It held, however, the trial court lacked the jurisdiction to vacate the judgment because the earlier judgment was not void. The failure to properly serve the notice of entry of judgment gave the appealing party a longer time to file the notice of appeal, i.e., 180 days rather than the 60-day period. (Cal. Rules of Court, rule 8.104(a)(1) & (2).) Even the trial court did not find the judgment to be void.

The appellate court also rejected an argument that the judgment was void based on the ground of extrinsic fraud. The plaintiff failed to raise the issue and satisfy the requirements for specific pleading of fraud. Nor did the trial court make any factual finding of extrinsic fraud and its minute order did not support an implied finding of fraud. As a result, the judgment in excess of $189,671 could not be challenged on appeal.