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I need to file appeal in California. There is a notice of ruling but not a notice of judgemnet. There was order signed by judge

Laguna Niguel, CA |

I need to file an appeal, there was a notice of ruling filed on december 3rd 2012 which was just a copy of the tenative ruling which my attorney said became final after the hearing which was on Nov 30 2012. He does not do appeals and is not very helpful. I filed a motion to reconsider, the other side says its late because the decision was entered on the 3rd even though they said they served us they did not. The judge has not decided or thrown out the motion to reconsider YET. To file the motion to reconsider there needs to be an entry of the order. An order was signed by the judge on Jan 18th but I spoke to the clerk and she said they don't send out a copy of the order. There still has not been a document called " entry of the order" filed so based on that my motion should be timley

Attorney Answers 6

Posted

In order to appeal, there needs to be a final judgment or final order.

You don't indicate the nature of the action. In unlimited civil cases (such as civil cases involving an amount over $25,000 or family law cases), you must file your notice of appeal by the EARLIEST of the following times:

-- 60 days after the trial court clerk serves you with notice that the judgment has been entered in your case or with a copy of the judgment stamped "Filed," or
-- 60 days after the other side serves you with notice that the judgment has been entered or with a copy of the judgment stamped "Filed," or
-- 180 days after the entry of the judgment.

In a limited civil case (civil cases involving an amount that is $25,000 or less), you must file your notice of appeal by the earliest of the following times:

-- 30 days after the trial court clerk serves you notice that the judgment has been entered in your case or a copy of the judgment stamped "filed," or
-- 30 days after the other side serves you with notice that the judgment has been entered or with a copy of the judgment stamped "Filed," or
-- 90 days after the entry of the judgment.

In California, if you filed a motion for reconsideration pursuant to Code of Civil Procedure section 1008, you should be especially cognizant of the time period in which to file an appeal.

California Rules of Court, Rule 8.108 (e) provides:

"If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order is extended for all parties until the earliest of:

(1) 30 days after the superior court clerk 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 is filed; or

(3) 180 days after entry of the appealable order."

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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Asker

Posted

Hi Mr. Chen, Yes, it is civil unlimited, There was an order filed on the 18th of january but it does not say final order or final judgement it just says order. So I believe the clock starts from that date. Do you know if in the minutes there is usually a judgement signed by the judge? The opposition filed a motion to dismiss my motion to reconsider saying it was untimely since I filed the motion 27 days after a notice of ruling. I filed saying that they never filed an order and the clock for a motion to reconsider does not start till there is an order filed, notice of ruling is not an order. They argue that a notice of ruling is sufficient based on advanced building maintenance v. state comp ins. fund (1996) 49 Cal. App.4th 1388 Also can you have an appeal running concurrent to a motion to reconsider or does that kick out the appeal. The dates are as follows. Hearing nov 30th 2012, minutes filed nov 30th. Notice of ruling filed dec 3 2012 by opposition. Motion to reconsider filed january 7th. Proposed order filed jan 8th order filed jan 18th. To follow administrative rules I refiled Motion to reconsider on Jan 28th then they filed a motion to dismiss order on the 31st. Any help would be very appreciated.

Posted

Attorney Chen has provided you with the correct rules for filing an appeal.

But I'm not quite sure what you are asking. You start your question off asking about appeal, but then you start talking about motion for reconsideration.

Are you asking if your motion for reconsideration was timely? If so, the answer is, we do not have enough information to know the answer to that question. Your lawyer has the information and should know if the motion was filed timely.

You say there was a notice of ruling "filed" on 12/3. If a notice of ruling was mailed on that day--even if you did not receive it--your motion is not timely. Except, if the ruling "noticed" on 12/3 required that one of the parties prepare a formal order, then the time for motion for reconsideration does not begin to run until the notice of entry of the formal order has been mailed. Keep in mind that it is not what is "filed" that matters for calculating time in this situation, it is when the notice is MAILED.

I am licensed only in California and this response is provided as general information only. It is not intended to be legal advice. Legal advice must be based on the exact facts of the particular situation, and by necessity this forum is not appropriate for discussion of specific, exact facts. Contact a lawyer for more specific advice. My answer to your question on AVVO does not create an attorney-client relationship.

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Catherine Elizabeth Bennett

Catherine Elizabeth Bennett

Posted

I should add that the other piece of information we don't have, but your attorney has, is the date you filed your motion for reconsideration. My answer above presumes you filed the motion more than 15 days after 12/3--which I presume because the opposing attorney has told you it was late.

Asker

Posted

I am sorry about all the confusion.Yes I filed the motion to reconsider on Jan 7th 2013. My lawyer says it was timely but their response and the law they quoted says otherwise. So at this point I need to file an appeal, tomorrow would be 60 days + 5 days for service from the notice of ruling being entered. However I have read that a notice of ruling cannot be appealed. Only a judgement or an order. An order was filed Jan 18th so I guess what I need to know is if the notice of ruling is considered a judgement or order? Since it is not signed by the judge I assume that it is neither. I am trying to find out when the clock starts for the appeal. Is it from the day of the order signed? BTW there is nothing saying a formal order must be produced in the notice of ruling. So I guess another question is what is the judgement? Is it what the judge ruled on NOV 30th? I have tried to obtain the minutes filed on the nov 30th but after I paid for the 2 PAGE document there was an error in retrieving it. I am wondering if there is a judgemt in the minutes and if so I assume that would start the clock. So for an appeal I think I have 60 days from JAN 18th when the order was signed or 180 days from the judgement on nov 30th since no papers were served by the clerk. And the only reason I say judgement from the nov 30th is because that is the day the tenative becomes final from what the attorney said. My Writ of Mandamus which all this stems from was partially granted and part was to be kicked back to the housing authority to decide if there was enough evidence to terminate. The judge posted a tenative ruling that the other side accepted and we argued that it was not right. Thanks for your help and concern

Posted

You should immediately consult with an appellate law atty, since your atty doesnt seem to know. You might try Herb Fox in LA and you can find him on Avvo.

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Asker

Posted

Thanks I will call him tomorrow

Posted

Determining the deadline for filing a notice of appeal under these circumstances can be tricky, and the consequences of being wrong, disastrous. Please see my website at www.OrangeCountyAppeals.com..

Nothing contained in this communication is intended to be, or shall be deemed as, legal advice, counsel, or services to on or behalf of any person or any entity. Usage of the Avvo website is not intended to and shall not create any obligation or relationship between the user and the Law Office of Herb Fox, including but not limited to, an attorney-client relationship. Further, the communications on this website between you and the Law Office of Herb Fox may not be privileged or confidential. Finally, your situation may be governed by deadlines that may or may not have already lapsed, and you may lose your rights if you do or did not act within those deadlines.

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Posted

Motions for reconsideration are tricky. If yours does not meet the procedural requirements, it does not extend the time for an appeal from the judgment.

In any event, you need a document stating that it is a judgment before the time in which to appeal begins to run.

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Posted

Generally speaking, an appeal is taken from a final judgment. It is unclear what kind of order was made by the judge. Many orders are "interlocutory", meaning that they do not result in a final judgment. For example, an order denying a plaintiff a motion for summary judgment does not result in a judgment for either party and is therefore not an appealable order.
Please provide more specific informaion about the order that was made to better assist in responding to your appeals question.

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