Metropolitan News-Enterprise


Monday, February 2, 2009


Page 1


E-Mail Notice Did Not Trigger Time to Appeal, C.A. Rules




A 60-day period in which to appeal was not triggered by an e-mail notice that informed counsel for the losing party that judgment had been entered, but that required counsel to access two hyperlinks in order to view the judgment itself, the Sixth District Court of Appeal ruled Friday.

The justices denied a motion by Applied Materials, Inc. and Applied Materials (Israel) Ltd. to dismiss an appeal by Insyst, Ltd. Judgment was entered for the defendants last April 11 following a jury verdict in their favor in Santa Clara Superior Court.

Presiding Justice Conrad Rushing, writing for the court, said the e-mail notice “did not amount to service of either a notice of entry of judgment or a file-stamped copy of the judgment.” The effect of that conclusion was that the 60-day period did not begin to run until April 15, when the clerk sent notice of entry of judgment by regular mail, so the appeal filed June 11 was timely, whereas it would have been one day late had the time commenced April 11.

Technology Dispute

Insyst filed suit more than four years ago, charging the defendants with breach of contract, fraud, trade secret misappropriation, unfair competition, breach of implied covenant of good faith and fair dealing, conspiracy and unjust enrichment. The dispute stemmed from the use of technology for semiconductor fabrication equipment.

The trial judge, Jack Komar, signed a written judgment on the afternoon of April 11, which was file-stamped as electronically filed on the court’s website, Within minutes, an e-mail notice was sent to all attorneys of record. That notice informed the parties that a final judgment had been signed and contained a hyperlink to a description of the judgment, which in turned contained a hyperlink to a file-stamped copy of the judgment.

The e-mail notice, Rushing noted, was not “mailed by the court clerk” and was thus not, according to the clear language of Rule 8.104 of the California Rules of Court, a “Notice of Entry” that would have triggered the time in which to appeal.

“We agree with plaintiff that ‘mails’ in rule 8.104(a)(1) continues to refer to employing the United States Postal Service, and that ‘mails’ does not mean ‘e-mails,’” the presiding justice wrote.

Rushing rejected the argument that because the case was governed by a court order permitting electronic service of documents, as permitted by Code of Civil Procedure Sec. 1010.6, notice of entry was “served” on April 11 within the meaning of Rule 8.104.

The presiding justice emphasized that Rule 8.104(a)(1) provides that a clerk “mails” notice of entry, while Rule  8.104(a)(2) says that a party “serves” notice by mail.

No Electronic Service

Rushing agreed that under the statute and rule, “the superior court clerk may electronically serve a triggering document in a case in which electronic service has already been authorized.” But in this case, the presiding justice explained, there was no electronic service of the notice of entry.

The attorneys, Rushing elaborated, “were notified by an electronic service provider that the judgment had been electronically filed” and given instructions for accessing the document online.

“We see no provision in the new statute, section 1010.6 or its implementing rules that authorizes serving a document by giving a party notice of where he or she may find it,” the jurist declared. “...We do not regard an e-mail explanation of where to electronically locate a judgment as to the equivalent of the electronic transmission.”

The case is Insyst, Ltd. v. Applied Materials, Inc., H033058.


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