Fourth District, Division Three Determines Notice of Reconsideration Ruling Does Not Need Any “Magic” Language to Trigger Running of Appeal Period.
The next case is an interesting reminder to hit the books when determining what triggers the running of the appeal period in the context of reconsideration rulings.
In Walshe v. Gelfand, Case No. G041115 (4th Dist., Div. 3 Jan. 12, 2009) (unpublished), the court entered a judgment against appellant for attorney’s fees in the amount of $70,408.75 after dismissal of appellant’s complaint against defendants. Defendants served a notice of entry of judgment, and appellant timely moved for reconsideration of the fee award, which was denied in a minute order. Defendants served appellant with a document entitled “notice of ruling” on the reconsideration motion. However, appellant filed his notice of appeal 50 days after service of the reconsideration ruling notice. Motions were then filed by appellant and respondents in the appellate court as to the timeliness of appellant’s appeal. Appellant lost, and the appeal was dismissed in a by-the-court opinion.
California Rules of Court, rule 8.108(e) requires that an appellant appeal a reconsideration motion order by the earliest of (1) 30 days after the superior court or a party serves an order denying the motion or a notice of entry of that order, (2) 90 days after the first motion to reconsider was filed, or (3) 180 days after entry of the appealable order.
In the case before it, the 4/3 appellate panel determined that trigger (e)(1) was fatal. Although appellant argued that the “notice of ruling” was inadequate given that “notice of entry of order” language was required, the Court of Appeal rejected this contention. Rather, rule 8.108(e)(1) “does not require any particular title for a document to trigger the 30-day deadline” (Slip Opn., at p. 3), contrasting it with rule 8.104(a)’s explicit requirement of service of a “document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment” to start the 60-day clock for the “normal time” to appeal. Because the appeal was 20 days past the 30-day appeal deadline, appellant’s appeal was dismissed.
The panel of justices on Walshe—Presiding Justice Sills; Justice Moore; and Justice Fybel.
Hourglass: (c) S. Sepp, 2007, Wikipedia Commons.