(Santa Clara County Super. Ct. No. CV-024251). Trial Judge: The Honorable Jack Komar.
The opinion of the court was delivered by: Rushing, P.J.
CERTIFIED FOR PUBLICATION
In this day and age and location, what is popularly called Silicon Valley, electronic mail (e-mail) has virtually supplanted regular mail (sometimes pejoratively dubbed "snail" mail) for many types of communication. The issue presented by the motion under our review is whether an e-mailed notice of the entry of the judgment in this complex litigation was sufficient to start the time running to file a notice of appeal.
Defendants Applied Materials, Inc. and Applied Materials (Israel) Ltd. have filed a motion to dismiss this appeal by plaintiff InSyst, Ltd. as untimely filed. We are asked to determine whether the notice of appeal filed on Tuesday, June, 11, 2008, was timely filed within 60 days after the clerk's mailing of a notice of entry of the judgment on Tuesday, April 15, 2008, or untimely filed on the 61st day after an e-mail service of the judgment on Friday, April 11, 2008. For the reasons stated below, we will deny the motion to dismiss, concluding that the electronic notice in this case did not amount to service of either a notice of entry of judgment or a file-stamped copy of the judgment.
On October 4, 2004, the Santa Clara County Superior Court deemed this action to be complex litigation. On August 28, 2006, that court adopted a standing order authorizing electronic filing and service of documents in complex litigation via an electronic service provider. The standing order provides in part: "All parties shall make service upon other parties through the Court's electronic filing system. Parties, or their designated counsel, shall receive all documents electronically filed and served upon them via access to the Court's electronic filing system." "The electronic service of a pleading or other document shall be considered as valid and effective service on all participants and shall have the same legal effect as an original paper document." "The Court may issue, file, and serve notices, orders, and other documents electronically, subject to the provisions of this Standing Order. No paper service will be made by the Court." The standing order does not provide for the time to respond to electronic service.
On April 11, 2008, after a jury trial, the trial judge signed a written judgment in defendants' favor. The judgment was file-stamped as electronically filed at 1:38 p.m. on the court's Web site, http://www/scefiling.org, by www.scefiling.org. At 1:43 p.m., an e-mail notice was transmitted simultaneously to the attorneys of the parties in the case, including six attorneys representing plaintiff. According to the proof of electronic service, the final judgment was "submitted via the [World Wide Web] . . . and served by electronic mail notification." The proof of service explained further that the parties were sent "an electronic mail message" that "identified the document and provided instructions for accessing the document on the [World Wide Web]."
A copy of the electronic service notice (document #11665) shows that the attorneys were notified that there was a "Final Judgment, signed by Judge Jack Komar (Click here to view document information)." We take judicial notice (Evid. Code, §§ 452, subds. (d), (h), 459) that the underlined passage is a hyperlink that, when clicked, leads to a description of the document. ( (as of Jan. 22, 2009.) That document itself contains a hyperlink that, when clicked, leads to a file-stamped copy of the judgment.
On April 15, 2008, the Clerk of the Santa Clara County Superior Court mailed a document entitled "Notice of Entry of Judgment and Certificate of Mailing" to the attorneys, stating that the judgment was entered on April 11, 2008. On June 11, 2008, 61 days after the e-mail notice, plaintiff filed a notice of appeal from the April 11, 2008 judgment.
THE TIME FOR FILING A NOTICE OF APPEAL
According to Rule 8.104,*fn1 a party has 180 days after a judgment is entered to file a notice of appeal (id. at (a)(3)), unless the time is shortened to 60 days in one of six ways. The time may be shortened if "the party . . . serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment" (id. at (a)(2)) or if "the superior court clerk mails the party filing the notice of appeal" either of these two documents (id. at (a)(1)).*fn2 Under this rule, there are only two kinds of documents that can trigger the time to file a notice of appeal (sometimes hereafter "triggering documents"). (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 905 (Alan).)
Service by mail of a triggering document does not extend the time to file a notice of appeal.*fn3 The 60 days begins on the date of mailing and does not depend upon the party's actual receipt of the document. (Sharp v. Union Pacific R. R. Co. (1992) 8 Cal.App.4th 357, 360 [mail service by party].) It is the initial mailing or service of a triggering document that commences the running of the time to appeal. The time to file a notice of appeal is not reset or extended by a second or subsequent notice of entry of the same judgment. (Filipescu v. California Housing Finance Agency (1995) 41 ...