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Dismissed Appeal

Do Not Confuse a "Notice of Ruling" with a "Notice of Entry"

Tim Kowal     June 21, 2021

If the trial court ruled in your favor, do not make the mistake of assuming that by serving a "Notice of Ruling" you have invoked the 60-day deadline for your opponent to file a notice of appeal. A notice of ruling is a pointless document from the standpoint of appellate procedure.

In Harter v. Rancho Rios Homowners Assn. (D4d1 Jun. 17, 2021) no. D077119 (unpub.), the trial court sustained the defendant HOA's demurrer to the homeowner's petition for writ of mandate. (Unlike an order sustaining a demurrer to an ordinary complaint, an order sustaining a demurrer to a petition to a writ of mandate and denying the petition is a final order and immediately appealable. (See Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582–583.)

The HOA served a "notice of ruling" of the final order, attaching a copy of the tentative ruling that had become the final order. The HOA argued its notice of ruing triggered the 60-day deadline under California Rules of Court rule 8.104 to take an appeal. The plaintiff did not file his notice of appeal until four months later.

The Fourth District Court of Appeal his the appeal was timely because a "notice of ruling" is not a "notice of entry." "[S]erving a notice of ruling is not the same as serving ... a notice of entry of the order, as contemplated by the rules governing the timeliness of appeals.” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399.) “It might seem that the difference between a ‘notice of ruling’ and a ‘notice of entry’ is hypertechnical. In another context it might be." (20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 672.)

Thus, the 180-day deadline applied. The appeal was timely.

The HOA also might have triggered the 60-day deadline by serving a "file-endorsed copy" of the order. (Rules of Court, rule 8.104, subd. (a)(1)(B).) The HOA did serve a copy of the tentative ruling that became the final order. But that is not the same thing as a "file-endorsed copy."

Also of interest: The HOA failed to comply with the requirement to meet and confer before filing its demurrer under Code of Civil Procedure section 430.41. The plaintiff homeowner challenged the order sustaining the demurrer as error because of this failure to meet and confer. But the courts have already held there are no real teeth to the meet-and-confer requirement.

In Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515 (Olson), the Court of Appeal discussed section 430.41, subdivision (a)(4) in concluding that a party's alleged failure to meet and confer prior to the filing of its demurrer did not cause the trial court to lose jurisdiction of the pleadings. The Olson court reasoned: “[S]ection 430.41 does not contain any penalties for the failure to follow the meet-and-confer process set forth in subdivision (a)(1).... Thus, even if the District did not comply with the meet-and-confer requirements, we do not agree with plaintiffs that the consequence of that failure is for the court to lose jurisdiction over the pleadings.” (Olson, supra, at p. 515.)

Unfortunately for the plaintiff, the Court of Appeal still affirmed the order on the merits.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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