Lipsky Enterprise, Inc. v. Hussain

Full title: LIPSKY ENTERPRISE, INC., et al., Cross-Complainants and Appellants, v…

Court: Court of Appeal of California

Date published: Apr 27, 2007

No. H030515 (Cal. Ct. App. Apr. 27, 2007)

Opinion

H030515

4-27-2007

LIPSKY ENTERPRISE, INC., et al., Cross-Complainants and Appellants, v. ZAHID HUSSAIN, Cross-Defendant and Appellant.

NOT TO BE PUBLISHED

Rushing

Appellant Lipsky Enterprises Inc. (Lipsky) filed a notice of appeal from a judgment entered in favor of responedent Zahid Hussain (Hussain) on Lipskys cross-complaint.¹ Thereafter Hussain filed a cross-appeal from a judgment entered in favor of Lipsky on Hussains complaint. While the appeal and cross-appeal were pending, Lipsky filed a motion to dismiss the cross-appeal as untimely. Finding the cross-appeal timely under California Rules of Court, rule 8.104,² we will deny the motion to dismiss.

1 Below, Hussain was the plaintiff/cross-defendant and Lipsky was the defendant/cross-complainant.

2 All further rule references shall be to the California Rules of Court.

FACTUAL AND PROCEDURAL BACKGROUND

On July 6, 2006, the trial court entered and the clerk mailed a final judgment which awarded Hussain nothing on his complaint, Lipsky $86,891 in attorney fees, Lipsky nothing on their cross-complaint, and Hussain $110,793.26 in attorney fees. Both parties are appealing this judgment. The relevant sequence of events is as follows:

July 6, 2006 — The final judgment is filed and served by the clerk of the trial court.

August 4, 2006 — Lipsky files a notice of appeal.

August 7, 2006 — The clerk of the trial court serves the parties with notice of the notice of appeal.

August 31, 2006 — Hussain files the cross-appeal.

While the appeal was pending, but before the record was filed, Lipsky filed a motion to dismiss Hussains cross-appeal pursuant to rule 8.104(b), contending that the cross-appeal was not timely filed under the rule 8.108(e)(1). We now consider that motion.

DISCUSSION

Pursuant to rule 8.104, an appellant has 60 days from the date the notice of entry of judgment is served in which to file a notice of appeal. Here the notice of entry of judgment was served by the clerk on July 6, 2006. The last day for either party to file a notice of appeal from the judgment was September 5, 2006. Lipsky filed its notice of appeal on August 4, 2006. Hussain filed his notice of cross-appeal on August 31, 2006. Both were filed within the 60 days provided by rule 8.104.

Despite the fact that Hussains notice of cross-appeal is timely under rule 8.104, Lipsky contends that the cross-appeal is untimely pursuant to rule 8.108(e)(1).³ This rule provides for a 20 day extension after the filing of the original appeal from a judgment to file a cross-appeal. Lipsky contends that because the clerk mailed notice of their appeal, which was first, on August 7, 2006, Hussains cross-appeal was due no later than 20 days after that date, or August 28, 2006. Lipsky misapplies rule 8.108(e)(1).

3 Rule 8.108(e)(1) states, "If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal."

Rule 8.108 sets out the only exceptions to the time limitations for filing a notice of appeal set forth in rule 8.104. Rule 8.108 "provides various circumstances in which the time to appeal is `extended. " (Advisory Comm. Com. to rule 8.108.) The Advisory comment for this rule further states, "The use of the word `extended limits the scope of the rule: i.e., the rule operates only to increase any time to appeal otherwise prescribed; it cannot shorten the time. Thus if the time provided by rule 8.108 would be less than the normal time to appeal stated in rule 8.104(a) . . . the rule 8.104(a) time governs." (Ibid.)

Applying the 20 day time constraints of rule 8.108 here would shorten the normal 60 day period of time for appeal provided for under rule 8.104. While the rule 8.108 time expired on August 28, 2006, the rule 8.104 time did not run until September 5, 2006. The notice of cross-appeal, timely filed per rule 8.104 on August 31, would be untimely under rule 8.108. Such a result is inconsistent with the stated intent of rule 8.108 to extend the time to file a notice of appeal. Therefore rule 8.104 governs and the motion to dismiss the cross-appeal as untimely must be denied.

DISPOSITION

The motion to dismiss the cross-appeal is denied.

We Concur:

PREMO, J.

ELIA, J.