This appears to be the case with the deadline for obtaining writ review — the only form of appellate review available — of a trial court's order under the California Public Records Act, Government Code section 6250 et seq. As a general rule, a litigant may challenge a trial court's order by extraordinary writ petition within 60 days of the date of the order. The Legislature has supplanted this common law deadline, however, with much shorter ones in selected cases. These statutory deadlines are jurisdictional, meaning that a party's failure to petition within the deadline will doom its prospects of obtaining writ relief. See Eldridge v. Superior Court, 208 Cal. App. 3d 1350 (1989) (no jurisdiction to entertain petition filed one day late).
A typical statutory writ deadline is found in Code of Civil Procedure section 437(l), which governs summary judgment and adjudication orders. It requires a would-be petitioner to file a writ petition from an order denying summary judgment or granting or denying summary adjudication "within 20 days after service upon him or her of a written notice of entry of the order." A trial court may, for good cause, extend the 20-day period by as much as ten days.
According to one Court of Appeal, the Legislature has justified this tight deadline as means of preventing motion-losing parties from frustrating the progression of a trial by "dilatory petitions to the appellate court." Sturm, Ruger & Co. v. Superior Court, 164 Cal. App. 3d 579 (1985).
Three Court of Appeal decisions have embraced this reasoning and have imposed an additional restriction on the statutory deadline by starting section 437c(l)'s 20-day period "upon [the petitioner] being made aware of the trial court's ruling." Eldridge; Sturm; accord Schmidt v. Superior Court, 207 Cal. App. 3d 56 (1989).
In each case, the Court of Appeal held that the trial court's mailing of a conformed copy of its order, rather than service of notice of entry, triggered the 20-day period.
There is some doubt about the continuing validity of this holding, however. Consider California Rule of Court 309. It states, "When the court . . . makes an order or renders a judgment in a matter it has taken under submission, the clerk shall forthwith notify the parties of the . . . order or judgment" and "[t]he notification . . . shall constitute service of notice only if the clerk is required to give notice pursuant to Code of Civil Procedure section 664.5."
Section 664.5 requires a clerk to provide notice of an order or judgment in only two circumstances: "upon entry of judgment in a contested action or special proceeding in which a prevailing party is not represented by counsel" (section 664.5(b)) and "upon order of the court" (section 664.5(d)).
Thus, under section 664.5(d)'s plain language, in the absence of a court order, the clerk's mailing of an order to counsel for a represented party does not constitute service of notice of the order's entry.
Eldridge addressed the apparent tension between the holding in Sturm and Rule 309 and held that Rule 309 applies only if the clerk mails a copy of an order that does not bear a file stamp. The court reasoned that receipt of a file-stamped copy of the order informs the party that the court has entered the order and that the order is "effective." The mailing of that order has the same effect as service of the notice of its entry.
Our Supreme Court implicitly called Eldridge's rationale into question, however, in Van Beurden Insurance Service v. Customized Worldwide Weather Insurance Agency, 15 Cal. 4th 51 (1997). Van Beurden held that under section 664.5, when the clerk mails a file-stamped copy of the judgment to the parties, the time for ruling on a motion for a new trial — 60 days after service of notice of entry of judgment (section 660) — commences to run "only when the order itself indicates that the court directed the clerk to mail ‘notice of entry’ of judgment."
Even though Van Beurden involved the period during which a trial court retains jurisdiction to rule on a motion for new trial rather than the writ petition deadline, its rationale challenges Eldridge's interpretation of Rule 309 — and thus its holding and those in Sturm and Schmidt. Van Beurden noted that "although rule 309 requires the clerk of court to notify parties forthwith of a ruling, or judgment taken under submission, [the notification] constitutes ‘service of notice’ only if the notice was required under Code of Civil Procedure section 664.5."
While Van Beurden appears to undermine the validity of Sturm, Schmidt and Eldridge, it is unlikely that a party, relying solely on Van Beurden, would wager the timeliness of its writ petition by filing it more than 20 days after the clerk mails a file-stamped copy of an order denying summary judgment or granting or denying summary adjudication. But in that circumstance, if a party did wait and the court denied the petition as untimely, he or she would still retain the opportunity to challenge the trial court's order in an appeal after judgment.
Indeed, in Sturm, Schmidt and Eldridge, the courts emphasized that the party's right to appeal the order after final judgment mitigated the apparent harshness of the result in those cases.
But there is no such "mitigation" when the Legislature has made writ review the exclusive method of seeking appellate review of a trial court order. The Legislature has done so with respect to orders under the Public Records Act and trial court orders reviewing decisions by the California Medical Board to revoke, suspend or restrict a medical license. See Gov't Code § 6259(c); Bus. & Prof. Code § 2337.
The Supreme Court has upheld those limitations on the right to appeal, reasoning that there is no constitutional right to appeal in such cases. See Leone v. Medical Bd. of Cal., 22 Cal. 4th 660 (2000); Powers v. City of Richmond, 10 Cal. 4th 85 (1995).
Modeling the writ deadline on the summary judgment/adjudication statute, the Legislature set that deadline in Public Records Act cases at 20 days after service of written notice of entry of the order, plus a discretionary 20-day extension. Gov't Code § 6259(c).
The question thus arises whether the clerk's mailing of a copy of a file-stamped order in such cases constitutes "written notice of entry." No reported cases address this question.
While the Sturm line of cases suggest that the clerk's mailing does constitute notice, there are at least three reasons why that line of cases should not apply in the Public Records Act context.
First, as noted, those cases justified a narrow interpretation of the summary judgment/adjudication writ deadline because of the availability of an appeal after judgment. In the Public Records Act context, there is no appeal.
Second, the cloud that Van Beurden cast over Eldridge's rationale counsels against applying the Sturm rule outside the summary judgment/adjudication arena.
Third, public policy would be poorly served by applying the Sturm rule in Public Record Act cases. As the plurality in Powers noted, by replacing review by appeal with writ review, the Legislature did not intend to disadvantage litigants seeking review of Public Records Act decisions or to constrict reviewing courts' power to correct erroneous decisions under the act. "Rather, the legislative objective was to expedite the process and thereby to make the appellate remedy more effective."
However, an appellate remedy becomes less effective if an appellate court denies a Public Records Act writ petition as untimely based on a questionable reading of the Sturm line of cases.
Indeed, to ensure effective appellate review in Public Records Act cases, the courts should bend over backward to ensure that litigants have their day in court. This approach finds support in Leone, which noted that where writ review is the exclusive means of appellate review, the reviewing court cannot summarily deny a petition without reviewing the merits.
That policy also finds support in the settled rule that where there is uncertainty regarding the availability of review, "it is appropriate to resolve the conflict in favor of the petitioner." Seibert Sec. Serv. Inc. v. Superior Court, 18 Cal. App. 4th 394 (1993); see also Hollister Convalescent Hosp. Inc. v. Rico, 15 Cal. 3d 660 (1975) (noting "well-established policy, based upon the remedial character of the right to appeal, of according that in doubtful cases ‘when such can be accomplished without doing violence to the applicable rules.’"); Davis v. Thayer, 113 Cal. App. 3d 892 (1980) ("Where a statute establishing a time limitation is susceptible of several possible interpretations a liberal rule of construction is applied and the ‘computation of time should be so made as to protect a right and prevent a forfeiture if this can be done without violating a clear intention or positive statutory provision.’").
It would, of course, be preferable for the Supreme Court to speak definitively on whether the Sturm rule has survived Van Beurden and, if so, whether that rule should govern the writ deadline in the Public Records Act. But the Supreme Court cannot decide such a case until it is presented to it. Until that happens, there are good reasons why the courts of appeal should decline to follow Sturm in Public Records Act cases and should instead apply the writ deadline in that statute literally, deeming timely a writ petition filed "within 20 days after service upon [the petitioner] of a written notice of entry of the order" even if the petitioner was "made aware" of the order before notice of entry was served.