Ambrose Development v. Quick Silver
Towing
Filed 3/8/13 Ambrose Development v. Quick Silver Towing
CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
AMBROSE DEVELOPMENT LIMITED,
Plaintiff and Respondent,
v.
QUICK SILVER TOWING, INC.,
Defendant and Appellant.
B245881
(Los Angeles
County
Super. Ct.
No. SC106227)
APPEAL from
a judgment of the Superior Court
of
County, H. Chester Horn, Jr., Judge. Dismissed.
Law Offices
of Clay Lorinsky, Clay Lorinsky for Defendant and Appellant.
Adelman Law Advisors and Jeffrey S. Adelman for Plaintiff
and Respondent.
Defendant, Quick Silver Towing, Inc., purports to appeal
from a judgment entered on August 14,
2012. On that date, the
trial court granted the ex parte application for entry of judgment filed by
plaintiff, Ambrose Development Limited.
The judgment states that the enforcement of the judgment was stayed
until September 4, 2012, or
further court order. On August 17, 2012, plaintiff served a
notice of ruling of the order granting the ex parte application for entry of
judgment. Attached to the notice of
ruling is a file-stamped copy of the judgment with the trial court’s signature
and handwritten stay order. The August 17, 2012 notice was served on
A series of
stipulations and orders continuing the stay of enforcement of the judgment were
later filed. On August 29, 2012, a stipulation extending the stay
until a hearing on September 14, 2012,
was filed. The “RECITALS†section of the
stipulation states, “Whereas, the Court entered a Judgment for Money
(‘Judgment’) upon Plaintiff’s ex parte application on August 14, 2012.â€
The stipulation and recitals were executed by defense counsel and
defendant’s president and chief executive officer. On October
1, 2012, a similar stipulation was filed and approved by the trial
court. On October 31, 2012, the trial court ordered that the stay
of the enforcement of judgment as previously agreed to by the parties be
vacated. On November 1, 2012 the court’s clerk served counsel with
the October 31 minutes reflecting the court’s rulings on the matters.
The notice
of appeal was filed on December 17,
2012.
The service
of the file stamped August 17, 2012
judgment on that date triggered the 60 days in which to file the notice of
appeal. (Cal. Rules of Court, rule
8.104(a)(1)(B); see Van Beurden Ins.
Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15
Cal.4th 51, 60, fn. 3; Warmington Old
Town Associates v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840,
845, 848; Guardianship of Zachary H. (1999)
73 Cal.App.4th 51, 60; Hughes v. City of
Pomona (1998) 63 Cal.App.4th 772, 776-777.)
There is no merit to defendant’s assertion that the order staying the
enforcement of judgment prevented its entry for purposes of California Rules of
Court, rule 8.104(a)(1)(B). Defendant
has admitted in writing in its August
29, 2012 stipulation and recitals that the judgment was entered on August 14, 2012. The clerk’s “file stamped†date on the
judgment is its entry date. (Code Civ.
Proc., § 668.5; Palmer v. GTE Calif.,
Inc. (2003) 30 Cal.4th 1265, 1267-1268; Filipescu
v. California Housing Finance Agency (1995) 41 Cal.App.4th 738, 741.) The operative date for filing the notice of
appeal is 60 days from when the judgment is entered not when a stay order is
vacated.
Even if the
October 31, 2012
proceedings are viewed as post trial motions, the notice of appeal deadline
would have been extended only to December 1, 30 days after the clerk gave
notice of the court’s rulings. (Cal.
Rules of Court, rule 8.108.)
The December 17, 2012 filing of the
untimely.
The appeal
is dismissed. Plaintiff, Ambrose
Development Limited, shall recover its costs on appeal from defendant, Quick
Silver Towing, Inc.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
O’NEILL,
J.
We concur:
MOSK,
Acting P. J.
KRIEGLER,
J.
Chief Justice pursuant to article VI, section 6 of the California Constitution.
