Opinion
B158930.
7-30-2003
BLANCHE PEPITO, Plaintiff and Appellant, v. CITY OF WEST COVINA, Defendant and Respondent.
Michael J. Hemming for Plaintiff and Appellant. Alvarez-Glasman & Colvin, Roger A. Colvin and Robert P. Sievers for Defendant and Respondent.
Plaintiff Blanche Pepito (Pepito) sued defendant City of West Covina (the City), claiming that an uneven sidewalk was a dangerous condition that caused her to be injured in a fall. The trial court granted summary judgment on the ground that the sidewalk defect was trivial as a matter of law. Pepito appeals the judgment.
California Rules of Court, rule 2(a)(2) provides that a notice of appeal must be filed on or before the earliest of several dates, one of which is "60 days after the party filing the notice of appeal . . . is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service." We dismiss the appeal on the jurisdictional ground that the notice of appeal, filed on May 17, 2002, was not filed in a timely manner.
During litigation in the trial court, both parties occasionally placed an incorrect case number-KC034187-rather than the correct KC034167-on their documents. Among the documents bearing the incorrect case number are Pepitos responses to the Citys special interrogatories, the Citys motion for summary judgment (corrected by interlineation on the courts copy), and the Citys separate statement of undisputed facts.
The Citys proposed judgment bore the incorrect number of KC034187. The trial court signed the Citys proposed judgment on November 21, 2001, and it was filed that day. At an unknown time, the error in the case number was corrected in the courts file, for the copy of the order of judgment contained in the clerks transcript on appeal bears a handwritten "67" above the final two digits of the case number. The record is silent as to who made this change to the courts copy and when the change was made. No change was made on a conformed copy of the judgment that was signed and file-stamped on the same day the judgment was filed and entered.
Pepito received a copy of the file-stamped and conformed copy of the order of judgment with the incorrect case number. Pepito concedes that the City served notice of the entry of the judgment on November 26, 2001, also in a document bearing the incorrect "87" case number. She contends that the service of the notice of entry of judgment did not commence the 60-day appeal period of California Rules of Court, rule 2(a)(2) because the document bore the "87" case number.
Pepito offers no authority for her contention that a notice of entry of judgment does not give notice of the judgment if the case number is incorrect. She cites Valley Vista Land Co. v. Nipomo Water & Sewer Co. (1967) 255 Cal. App. 2d 172, 63 Cal. Rptr. 78, in which this court held that when a notice of entry of judgment was misaddressed and never received by the appellant, the notice of entry of judgment did not cause the 60-day time period for appeal to commence. The facts here are nothing like those in Valley Vista, for here it is undisputed that Pepito received both a file-stamped copy of the judgment and notice of entry of judgment The only deficiency in the notice of entry of judgment was the incorrect case number.
"It is established law that a technical defect in the notice of entry of judgment cannot be invoked to avoid the rule 2(a) 60-day period for filing a notice of appeal, unless the defect was arguably so egregious as effectively to preclude any actual notice of entry of judgment." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 114.) Notably, Pepito does not argue that she lacked actual notice of the judgment-she merely contends that the error in case number rendered the notice insufficient. In light of the facts that Pepito herself previously had used the incorrect "87" case number to refer to this action, and that the notice of entry of judgment was properly captioned "Blanche Pepito v. City of West Covina," the defect of using the "87" number rather than the "67" number on the notice of entry of judgment is not arguably so egregious as effectively to preclude any actual notice of entry of judgment. (See In re Marriage of Eben-King, at pp. 114-115 [notice of judgment with clerical error listing date of entry of judgment incorrectly is nonetheless sufficient notice for the purposes of Cal. Rules of Court, rule 2]; Delmonico v. Laidlaw Waste Systems, Inc. (1992) 5 Cal.App.4th 81, 85-86 [same].)
Even assuming, arguendo, that Pepito is correct in her assertion that the notice of entry of judgment was insufficient to give notice of the judgment, the appeal is nonetheless untimely. Apparently discovering the typographical error in the case number, the City later submitted an "Amended Order of Judgment" to the trial court bearing the correct "67" case number. The Amended Order of Judgment ("Amended Order") is identical to the original order of judgment in all respects other than the case number. The trial court signed the Amended Order, and it was filed on February 1, 2002. The City served notice of the entry of the Amended Order on February 6, 2002. This notice fully complies with the requirements of California Rules of Court, rule 2(a)(2).
Pepito contends, without citation to authority, that the trial court lacked jurisdiction to enter the Amended Order because more than 60 days had elapsed since it signed the original order of judgment. A trial court always has jurisdiction to correct clerical errors in its judgments. (Code Civ. Proc., § 473, subd. (d) ["The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered . . . ."]; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 69, p. 597 ["A court of general jurisdiction has the power, after final judgment, and regardless of lapse of time, to correct clerical errors or misprisions in its records, whether made by the clerk, counsel or the court itself, so that the records will conform to and speak the truth"]; Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal. App. 3d 1199, 1204-1205, 286 Cal. Rptr. 921 [same]; Russ v. Smith (1968) 264 Cal. App. 2d 385, 390, 70 Cal. Rptr. 813 [trial court may correct clerical errors in judgment even after appeal has been taken].)
Under either analysis, Pepitos appeal was untimely. Pepito was twice advised pursuant to California Rules of Court, rule 2 that judgment had been entered against her. The notice of entry of the original judgment was served on November 26, 2001. The notice of entry of the Amended Judgment was served on February 6, 2002. Pepitos notice of appeal was not filed until May 17, 2002, more than 60 days after service of either document. Accordingly, her notice of appeal was untimely and this court is without jurisdiction to consider her appeal on the merits. (Cal. Rules of Court, rule 2(e); Stuart Whitman, Inc. v. Cataldo (1986) 180 Cal. App. 3d 1109, 1113, 226 Cal. Rptr. 42 ["The requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period"].)
DISPOSITION
The appeal is dismissed. Respondent shall recover its costs, if any, on appeal.
We concur: TURNER, P.J., GRIGNON, J. --------------- Notes: We grant appellants motion to augment the record to include documents pertaining to the timeliness of the appeal.