Foster v. Western Law Connection
Filed 4/19/06 Foster v. Western Law Connection CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| DEBORAH E. FOSTER, Plaintiff and Appellant, v. WESTERN LAW CONNECTION, INC., et al., Defendants and Respondents. | H028444 (Monterey County Super. Ct. No. M70870) |
Plaintiff, Deborah Foster, appeals from an order granting a motion for change of venue and setting aside default. While the appeal was pending, the defendants, Western Law Connection, Inc. and Chirstopher G. Weston, Esq., filed a motion to dismiss the appeal as taken from a nonappealable order. The appeal is timely but it is taken from a nonappealable order. We will dismiss.
Factual and Procedural Background
Plaintiff filed this action against defendants in Monterey County. Thereafter the parties stipulated to transfer the action to Los Angeles and on October 4, 2004, defendants filed a motion to change venue based on the stipulation. The same day, plaintiff sought and obtained an entry of default. Subsequently, the trial court set aside the default, granted the change of venue motion and denied the plaintiff's motion to reconsider both orders. The relevant sequence of events is as follows:
October 4, 2004, plaintiff obtains entry of default against defendants. The same day, defendants file a motion to change venue to Los Angeles County based on a September 1, 2004 stipulation between the parties to do so.
October 15, 2004, the trial court files an order setting aside default based on a timely motion to change venue.
October 19, 2004, plaintiff files a motion to reconsider the October 15 order.
November 5, 2004, the motion to change venue is granted.
November 8, 2004, the change of venue order is stayed pending the plaintiff's motion to reconsider.
November 19, 2004, the motion to reconsider is heard and denied. Stay on venue order is lifted.
December 28, 2004, the order denying motion to reconsider is filed.
January 26, 2005, the notice of appeal is filed.
Discussion
The notice of appeal, filed January 26, 2005, states that the appeal is from an order granting a motion to set aside entry of default entered October 15, 2004, and from an order changing venue entered November 5, 2004. The defendants move to dismiss the appeal as taken from a nonappealable order. Additionally, on our own motion, we consider whether the appeal is timely. After reviewing the record on appeal, we conclude that while the appeal is timely, the appeal is taken from a nonappealable order and must be dismissed.
The Appeal is Timely
On the face of the appeal, it appears that the notice of appeal was filed more than 100 days from the order setting aside default and more than 80 days after the order changing venue. California Rules of Court, rule 2(a)(1) and (2)[1] provides 60 days from the date the notice of entry of judgment or appealable order is served in which to file a notice of appeal. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1480.) However, where there is no notice of entry of judgment served, the plaintiff has 180 days from date of entry of judgment in which to file a notice of appeal. (Rule 2(a)(3).) Here the record is devoid of any notice of entry of order of the October 15, 2004 order granting the motion to set aside default. While the order prepared by the court lists the addresses of the parties at the bottom, there is no proof of service or declaration attesting to the date the order was mailed from either the court clerk or the defendants. Therefore, plaintiff had until April 2005 in which to file her notice of appeal. (Rule 2(a)(3).) Since the notice was filed in January, it was timely as to the order granting the motion to set aside default.
Similarly, the appeal was timely from the order changing venue. This order was signed and filed on November 5, 2004. Once again, there is nothing in the record showing that this order was served by either the clerk of the court or the defendants. While the minute order from that date states that the order was signed and filed in court and that plaintiff was present in court, in order for the 60 days to begin running, rule 2 requires that either the court clerk or a party serve a notice of entry of judgment or a file stamped copy of the relevant order. (Rule 2(a)(1) & (2).) Since there is no record of this being done here,[2] plaintiff had 180 days from November 5, 2004, in which to file her notice of appeal. Therefore, her notice filed on January 26, 2005, was timely.
Since the appeal from the judgment was timely under rule 2, we need not consider the impact of the rule 3(d) to this case even though the plaintiff did file a motion for reconsideration.[3] Applying rule 3 to this case would actually shorten the time for appeal,[4] but since she does not need the rule 3 extension for her appeal to be considered timely and because the intent behind this rule is not to shorten time to appeal, but to extend it, rule 3 is inapplicable. (See Safeco Ins. Co. v. Architectural Facades Unlimited, Inc., supra, 134 Cal.App.4th 1477.)
The Appeal is Taken from an Nonappealable Order
The defendants contend that the appeal must be dismissed because the appeal is taken from a nonappealable order. The right to appeal is statutory. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34-35 [â€
