Opinion
D071602
04-25-2018
ERIN BLAKEMORE, Plaintiff and Appellant, v. AKIZUMI OHGI, Defendant and Respondent.
Stephen M. Hogan for Plaintiff and Appellant. Horton, Oberrecht, Kirkpatrick & Martha and Michael D. Marchesini for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00018284-CU-PA-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Appeal dismissed. Stephen M. Hogan for Plaintiff and Appellant. Horton, Oberrecht, Kirkpatrick & Martha and Michael D. Marchesini for Defendant and Respondent.
Erin Blakemore suffers from a painful nerve disorder called trigeminal neuralgia. The primary factual dispute at trial was whether this condition was caused when her car was rear-ended by a vehicle Akizumi Ohgi was driving. In large part, the trial was a battle of medical experts. The jury apparently found Ohgi's expert to be persuasive and awarded Blakemore $9,000 (she asked for approximately $2.5 million).
What should have been a straightforward case became complicated after the court entered judgment. Unbeknownst to Blakemore's lawyer and the court at the time, Ohgi died after judgment was entered, but while Blakemore's motion for new trial was pending. Moreover, eight days before the hearing on the new trial motion, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which arguably changed the law favorably for Blakemore on an evidentiary issue she raised in her motion. However, neither counsel nor the court was aware of Sanchez at that time. The court denied Blakemore's motion for new trial without considering the impact, if any, of Ohgi's death or Sanchez.
After learning that Ohgi had died, Blakemore brought a motion to vacate the order denying her motion for new trial. Her theory was that Ohgi's death deprived the court of fundamental jurisdiction and, therefore, that order was void. Although the court indicated that in light of Sanchez it was inclined to grant the new trial motion, the court denied Blakemore's motion to vacate because the statutory 60-day limit to rule on a motion for new trial had now expired.
Blakemore was aggrieved by (1) the judgment, (2) the order denying her motion for new trial, and (3) the order denying her motion to vacate the order denying her new trial motion.
However, Blakemore did not appeal from the judgment. Instead, she appealed only from the order denying her motion to vacate the order denying her new trial motion.
We are required to dismiss this appeal for lack of appellate jurisdiction. Ohgi's death did not toll or suspend the time within which to appeal from the judgment. (Williams v. Long (1900) 130 Cal. 58 (Williams).) Moreover, trial court proceedings after Ohgi's death were not void, but only voidable. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 957-960 (Sacks).)
Because Blakemore never appealed from the judgment, the nonappealable order denying her motion for new trial is not reviewable. (Litvinuk v. Litvinuk (1945) 27 Cal.2d 38, 42 (Litvinuk).) And because the order denying Blakemore's motion for new trial is not appealable, the order denying her motion to vacate that order is also not appealable. (Id. at pp. 43-44.)
FACTUAL AND PROCEDURAL BACKGROUND
A. The Automobile Accident
On December 27, 2013, at about 9:45 a.m., Blakemore was driving on the Balboa Avenue onramp to northbound Interstate 805. The traffic metering lights were off at that time.
Although the metering lights were off, the sun illuminated the red portion of the signal light. Believing the light was red, Blakemore stopped on the onramp. Ohgi, who was traveling about 35 miles per hour behind her, saw the metering light was off and assumed Blakemore would enter the freeway. When Blakemore stopped, Ohgi was going too fast to avoid hitting the back of her car.
B. Blakemore's Claimed Injuries
1. Day of accident
Blakemore declined medical attention at the scene. Later that day, however, she was examined at a hospital emergency room. The physician there noted that Blakemore reported no loss of consciousness, no vomiting, and no numbness or tingling. She had a mild headache but did not recall striking her head, except against the headrest. She was in no distress and had no signs of facial trauma. Blakemore was alert and oriented, and her higher mental functions were intact. Her Glasgow Coma Assessment score was 15, the highest score possible, indicating there were no signs of a traumatic brain injury or concussion.
Blakemore was discharged from the emergency room with a diagnosis of closed head injury, postconcussive syndrome, contusions, and muscular strain and pain. The doctor instructed her to rest quietly in a dark room.
2. Two weeks postaccident
Since 2006 Blakemore has been treating with a psychotherapist. On January 13, 2014, Blakemore told her therapist about the car accident and complained about difficulty concentrating and anxiety.
3. Three weeks postaccident
Since 2009 Blakemore has been treating with Stanley Jack, M.D., a family practice physician. On January 20, 2014, Dr. Jack examined Blakemore, who at that time reported being disoriented, very fatigued, and having some difficulty working and finding the right words to say. Dr. Jack conducted a neurological examination, which was normal. Dr. Jack found that Blakemore suffered "significant anxiety," in part related to the accident and in part preexisting.
4. Four weeks postaccident: trigeminal neuralgia
On January 28, 2014, Blakemore again saw Dr. Jack, reporting for the first time feeling debilitating facial and jaw pain. She described it as "like someone was stabbing me in my ear." A neurologist later diagnosed this condition as trigeminal neuralgia.
The trigeminal nerve originates in the back of the brainstem, exits the skull, and has branches that control sensation in the face. Trigeminal neuralgia is a problem with the trigeminal nerve near the brainstem. The causes are either idiopathic (i.e., not entirely known), or from pressure by a blood vessel (called a vascular loop) near or on the nerve at the brainstem.
Blakemore's trigeminal neuralgia was initially treated with medication and later with radiation. After the radiation proved unsuccessful in March 2015, Blakemore resumed medication. Although medication controls the pain, side effects include severe exhaustion, sensitivity to light, word-finding difficulty, dizziness, and nausea.
C. The Causation Issue
The defense conceded that Blakemore has trigeminal neuralgia, but disputed whether the accident caused the condition. Each side presented expert testimony on this issue. Blakemore's expert, Kevin Yoo, M.D., a neurosurgeon, testified "there is a causal relationship between the auto accident and [Blakemore's] . . . trigeminal neuralgia . . . ." When asked to describe "on what [he] base[d] that opinion," Dr. Yoo testified, "because by history, she didn't have trigeminal neuralgia before her accident. Now she suffers from it in very close proximity to the auto accident." Dr. Yoo testified that Blakemore's MRI showed she has a preexisting vascular loop that is either on or near the trigeminal nerve. He opined that the accident aggravated that preexisting condition, damaging the trigeminal nerve.
Ohgi's retained expert, Jonathan Schleimer, M.D., a neurologist, testified that Blakemore's trigeminal neuralgia was not caused by the accident. Dr. Schleimer noted that in 2010 and 2011 Blakemore reported having facial numbness. He testified this was a "prodrome" or precursor to later full-blown trigeminal neuralgia. Additionally, Blakemore's family has a history of trigeminal neuralgia. Dr. Schleimer testified that Blakemore did not suffer any facial injury or loss of consciousness in the accident, and had a normal neurological examination after the accident. Thus, in his opinion, there was no facial trauma that could have caused posttraumatic injury to the trigeminal nerve. Moreover, Dr. Schleimer testified the medical literature did not indicate that trigeminal neuralgia can result from concussion or whiplash injuries. He testified that even if Blakemore had sustained a concussion and whiplash in the accident—indeed, even if she had hit her head on the windshield—that could not have caused trigeminal neuralgia.
Dr. Schleimer testified that two of Blakemore's postaccident physical examinations also supported his opinion. The first was by Charles Rogers, M.D., on January 6, 2016, (10 days postaccident). Dr. Rogers's medical records stated that he examined Blakemore's neurological condition and found it to be normal. The other examination was on January 20 (23 days postaccident) by Dr. Jack, whose medical records showed that Blakemore reported no facial pain at that time. Dr. Schleimer concluded that the onset of Blakemore's trigeminal neuralgia—occurring for the first time about one month after the accident—was "coincidental" and not caused by the accident.
All further date references are to 2016.
Dr. Rogers did not testify. When Dr. Schleimer testified about Dr. Rogers's records, Blakemore's trial counsel objected on "lack of foundation" grounds. The court overruled the objection. In the motion for new trial, Blakemore asserted that the court prejudicially erred by allowing Dr. Schleimer to base his opinion on case-specific hearsay; i.e., Dr. Rogers's records. However, essentially the same medical information (a postaccident examination, no report of facial pain) was received into evidence from Dr. Jack's records and through Blakemore's psychotherapist, who testified that on January 13, 2014, Blakemore complained of difficulty concentrating, anxiety, and fear (but not facial pain). The record does not indicate whether the trial court had these details in mind when, in denying Blakemore's motion to vacate some six months later, it stated, "If the court had jurisdiction to take up the motion [for new trial], it would grant it in light of Sanchez."
D. Closing Arguments, Verdict, and Judgment
Blakemore's attorney asked the jury to award about $2.5 million, including $2.2 million for future pain and suffering. Ohgi's attorney said the jury should award about $7,000 for soft tissue injuries that had now resolved. The jury assessed Blakemore with 10 percent comparative fault and awarded her $9,000.
On May 23, the court entered judgment in Blakemore's favor for $8,100. The judgment states that the issue of costs would be determined by a postjudgment motion. Ohgi's attorneys served notice of entry of judgment on May 27.
E. Motion for New Trial
On June 10, Blakemore's attorney filed a notice of intention to move for new trial, with a hearing set for July 8. Blakemore's lawyer filed points and authorities asserting, among other things, that the court should grant a new trial because the court erred in allowing Dr. Schleimer to testify from Dr. Rogers's medical records and the evidence was prejudicial "given the token amount" the jury awarded.
F. Ohgi Dies
Ohgi, who was 77 years old and gravely ill, did not attend the trial. He died on June 20. On June 30, Ohgi's lawyer filed opposition to the new trial motion, without mentioning that Ohgi had died.
G. People v. Sanchez Is Decided
On June 30, the California Supreme Court decided Sanchez, supra, 63 Cal.4th 665, which held that an expert cannot relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception. (Id. at pp. 685-686.)
H. The Court Denies the Motion for New Trial
On July 8—unaware that Ohgi had died and unaware of Sanchez, supra, 63 Cal.4th 665, the court denied Blakemore's motion for new trial.
I. Postjudgment Order Awarding Costs
On August 17, Ohgi's trial counsel notified Blakemore's lawyer that Ohgi had died. Meanwhile, Blakemore had filed a memorandum seeking $14,545.96 in costs. Opposing Blakemore's cost memorandum, Ohgi's lawyer asserted that the defense was entitled to approximately $26,000 in costs because Blakemore had rejected Ohgi's $100,000 settlement offer that he had made under Code of Civil Procedure section 998.
Undesignated statutory references are to the Code of Civil Procedure.
On August 26, the court determined that Ohgi's section 998 offer was invalid and awarded Blakemore $14,545.96 in costs. The court also stated its denial of Blakemore's motion for new trial "might have been a closer call" if the parties had informed the court about Sanchez, supra, 63 Cal.4th 665. The court stated it contemplated—but rejected—reconsidering that ruling on its own motion because its jurisdiction to rule on the motion for new trial had expired.
Under section 660, the court's jurisdiction to rule on the motion for new trial expired on July 26 (60 days after service of notice of the entry of judgment). The 60-day period in section 660 is "mandatory and jurisdictional." (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517-518.)
J. Motion to Vacate the Order Denying Motion for New Trial
Apparently encouraged by the trial court's expressed regret about denying the new trial motion without considering Sanchez, Blakemore's attorney stated he intended to file a motion to vacate the order denying the new trial motion. He asked the court to appoint a personal representative for Ohgi so there would be someone upon whom to serve that motion.
Ohgi's trial attorney opposed that request, asserting that under Probate Code section 550, a personal representative was unnecessary because "Ohgi continues to be protected by the same insurance policy which protected him while he was alive." The court agreed and denied Blakemore's request to appoint a personal representative.
Probate Code section 550, subdivision (a) provides: "Subject to the provisions of this chapter, an action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued against the decedent's estate without the need to join as a party the decedent's personal representative or successor in interest."
The correctness of this ruling is not before us, and we express no opinion on that point. However, under Probate Code section 554, subdivision (a), to avail oneself of Probate Code section 550, the "damages sought . . . shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived." (Italics added.) Blakemore sought over $2.5 million. Ohgi had a policy limit of $100,000.
Next, Blakemore filed a motion to vacate the order denying her motion for new trial under section 473, subdivision (d), which provides the court may set aside any void order. Blakemore asserted that Ohgi's death coupled with the lack of a personal representative being substituted in his place (1) terminated the attorney-client relationship, thereby depriving Ohgi's trial attorney of authority to oppose the motion for new trial; and (2) deprived the court of fundamental jurisdiction to rule on that motion.
Section 473, subdivision (d) provides in part: The court may . . . on motion of either party after notice to the other party, set aside any void judgment or order."
On November 10, the court denied Blakemore's motion to vacate because it was effectively a second motion for new trial—and, under section 660, the court's 60-day jurisdiction to grant a motion for new trial had expired in July. The court added, "If the court had jurisdiction to take up the motion, it would grant it in light of Sanchez." On December 16, Blakemore filed a notice of appeal from the order denying her motion to vacate. She did not appeal from the judgment.
DISCUSSION
I. NO APPELLATE JURISDICTION
A. Introduction
The timely filing of a notice of appeal is a jurisdictional prerequisite for appellate review. (M'Guinness v. Johnson (2015) 243 Cal.App.4th 602, 610.) The reviewing court is "dutybound" to consider appellate jurisdiction on its own, even when the issue has not been raised by the parties. (Olson v. Cory (1983) 35 Cal.3d 390, 398 (Olson).) We first consider the impact of Blakemore's failure to appeal from the judgment.
At our request the parties filed supplemental briefs addressing the jurisdictional issues.
B. The Judgment is Valid
As a preliminary matter, Ohgi's death does not affect the judgment's validity because he died after the court entered judgment. Indeed even if Ohgi had died after the verdict but before judgment, the judgment would be valid. (§ 669; Bank One Texas v. Pollack (1994) 24 Cal.App.4th 973, 978 ["a judgment duly rendered . . . may be entered after the death of a party without first substituting into the case the administrator of the deceased party's estate"].)
Section 669 provides: "If a party dies after trial and submission of the case to a judge sitting without a jury for decision or after a verdict upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon."
C. The Time to Appeal From the Judgment Is Unaffected by Ohgi's Death
1. The judgment is final for purposes of appeal
We next consider whether the time to appeal from the judgment has lapsed. Blakemore contends she could not appeal from the judgment while her motion for new trial was pending because during that period, the judgment was not a "final" determination of the parties' rights.
Blakemore's argument fails because it is based on a misunderstanding of the concept of finality in this context. The difficulty comes from the various senses in which the word "final" is used with respect to a judgment. In one sense, all California state court judgments are final because finality is part of the definition of a judgment. (§ 577 ["A judgment is the final determination of the rights of the parties in an action or proceeding."].) But in another sense, no California judgment is ever final because a judgment can always be modified to correct clerical error or be vacated for extrinsic fraud. (See Olivera v. Grace (1942) 19 Cal.2d 570, 573-576.)
Moreover, a judgment may be final as to the trial court (once the trial court has lost jurisdiction to grant a new trial, a judgment notwithstanding the verdict, or a statutory motion to vacate), but not final as to the appellate courts. And a Court of Appeal decision may be final as to that court, but not final as to the California Supreme Court. (See Manco Contracting Co. (W.L.L.) v. Bezdikian (2008) 45 Cal.4th 192, 212 (conc. & dis. opn. of Kennard, J.).) Adding to the potential confusion, a judgment may be "sufficiently final" for giving it issue-preclusion effect, but not sufficiently final for applying claim preclusion. (See Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1564.)
Thus, in determining whether Blakemore's judgment was appealable while her motion for new trial was pending, the issue is whether the judgment was final in the sense of being then appealable. The case law is clear that the judgment was appealable, even though it was not final in the sense that if the court had granted the new trial motion, the judgment would have been vacated. This is because "the Legislature . . . has established that a motion for a new trial is collateral to the judgment and may proceed despite an appeal from the judgment." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191 (Varian); Estate of Waters (1919) 181 Cal. 584, 587 [an appeal from a judgment does not divest trial court of jurisdiction to hear a new trial motion.].) Thus, "[i]t is not inconsistent nor improper to file both a notice of appeal [from the judgment] and a motion for a new trial. The time limit prescribed by law for each of these . . . is jurisdictional." (Neff v. Ernst (1957) 48 Cal.2d 628, 634 (Neff).)
Citing Macaluso v. Superior Court (2013) 219 Cal.App.4th 1042, Blakemore contends the pendency of the new trial motion rendered the judgment nonfinal and nonappealable. However, Macaluso does not address whether a judgment is appealable pending a motion for new trial. Rather, the issue there was whether "an order that overrules a third party witness's objections to a subpoena duces tecum and compels the third party witness to produce documents at a judgment debtor examination" is an appealable postjudgment order. (Id. at p. 1047.) "'"[C]ases are not authority for propositions not considered."'" (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134 (Loeffler).)
Blakemore also contends California Rules of Court, rule 8.108(b) "implicitly recognizes that a valid notice of intention to move for new trial renders an otherwise final judgment interlocutory during the pending of that motion by extending the time to appeal where the motion is ultimately denied." Actually, the opposite is true. That rule provides that an order denying a motion for new trial triggers a 30-day extension to appeal from the judgment. The Advisory Committee's comments state this provision "is intended to eliminate a trap for litigants . . . ." (Advisory Com. com., 23 pt. 3 West's Ann. Codes, Rules (2017 ed.) foll. rule 8.108, p. 325.) The trap is that the time to appeal from the judgment is ticking despite the filing of the motion for new trial. Rule 8.108(b) eliminates that trap by extending the time to file a notice of appeal from the judgment by an additional 30 days after certain posttrial motions are denied. Thus, if a litigant falls into the trap (by erroneously believing that the time to appeal from the judgment is suspended while the motion for new trial is pending), there will still be 30 days to appeal from the judgment after the new trial motion is denied.
Undesignated references to rules are to the California Rules of Court.
For example, rule 8.108(b)(1)(A) provides: "If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply: [¶] (1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: [¶] (A) 30 days after the superior court clerk, or a party serves an order denying the motion or a notice of entry of that order." (Italics added.)
Blakemore further contends that sections 659, 659a, and 660 "likewise recognize this premise [that a judgment is not appealable pending a motion for new trial] because those statutes empower the [t]rial [c]ourt to order a new trial, thereby vacating the judgment." This argument is incorrect. If the court grants a motion for new trial while an appeal from the judgment is pending, the appeal from the judgment is simply "ineffective," and an appeal may be taken from the order granting the new trial. (Neff, supra, 48 Cal.2d at p. 634.)
Sections 659, 659a, and 660 provide rules governing a motion for new trial and the court's jurisdiction to rule on the new trial motion.
2. Blakemore's notice of appeal cannot be saved by a liberal construction
Sometimes, appeals can be saved by liberally construing an appeal from a nonappealable order to include an appeal from a final judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22 (Walker).) Blakemore's December notice of appeal explicitly states it is from the postjudgment order of November 10. However, even if Blakemore's notice of appeal were to be liberally construed to be from the judgment, it would still be untimely. In a civil case, the outside time limit for filing a notice of appeal is 180 days after entry of judgment. (Rules 8.104(a)(1)(C), 8.108(b)(1)(C).) Assuming without deciding that the 180-day rule applied here, the last day to file a notice of appeal from the judgment would have been in November. Blakemore's notice of appeal was not filed until December, and therefore is untimely as to the judgment. (See City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 820 [attempted appeal from the judgment cannot be saved under Walker when underlying judgment is no longer appealable], disapproved on other grounds in Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135, fn. 3 (Ryan).)
3. The trial court did not lose fundamental jurisdiction when Ohgi died
Blakemore also asserts the time to appeal from the judgment never even started because "the [t]rial [c]ourt lost fundamental jurisdiction on June 20 when [] Ohgi died, and no personal representative has yet been substituted as a defendant." She asserts "[t]he same logic dictates that [] Blakemore's time to file an appeal from the judgment is likewise suspended."
"A lack of fundamental jurisdiction is '"'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.'"'" (Kabran v. Sharp Memorial Hosptial (2017) 2 Cal.5th 330, 339 (Kabran).) An action beyond a court's fundamental jurisdiction is null and void. (Ibid.)
An act in excess of jurisdiction is to be distinguished from an act done without fundamental jurisdiction. "[C]ourts that violate procedural requirements, order relief that is unauthorized by statute or common law, or otherwise '"fail[] to conduct [themselves] in the manner prescribed"' by law . . . act[] '"in excess of jurisdiction."' [Citation.] Because a court that acts in excess of jurisdiction still has 'jurisdiction over the subject matter and the parties in the fundamental sense' [citation], any such act is 'valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time.'" (Kabran, supra, 2 Cal.5th at pp. 339-340.)
The trial court did not lose fundamental jurisdiction when Ohgi died. California courts have long recognized that if a party dies after a court has jurisdiction over the party, entry of a judgment or an order in the name of the deceased party (instead of the proper successor or representative) is a technical lapse that does not affect the court's fundamental jurisdiction. (See Martin v. Wagner (1899) 124 Cal. 204, 205 ["In this state . . . it has been decided that when, in his lifetime, jurisdiction of the party and of the subject matter has been acquired, the rendition of a judgment after his death, without substitution of parties, is not void, but at the most erroneous."]; Collision v. Thomas (1961) 55 Cal.2d 490, 496 ["'[T]he death of a party pending suit does not oust the jurisdiction of the court, and hence . . . the judgment is voidable only, not void. This does not mean that a judgment can be really rendered for or against a dead man, but that it can be rendered nominally for or against him, as representing his heirs, or other successors, who are the real parties intended.'"].) A judgment or order entered in violation of the rule requiring substitution of a personal representative is not void, but merely voidable upon a showing of prejudice because of lack of notice, lack of proper presentation, or some other disadvantage. (Sacks, supra, 7 Cal.App.4th at p. 957; Grappo v. McMills (2017) 11 Cal.App.5th 996, 1009 (Grappo) [applying Sacks]; 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 317, p. 929 ["This technical lapse, however, does not render the judgment void and subject to collateral attack. The courts frequently describe it as a 'mere irregularity,' which renders the judgment 'voidable only.'"].)
Thus, the court was not deprived of fundamental jurisdiction to rule on the motion for new trial by Ohgi's death. Indeed, Blakemore filed her notice of intention to move for new trial—which is itself the motion for new trial— on June 10 while Ohgi was alive. (See In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 13, fn. 6.) The purpose of a notice of intention to move for new trial is to give the adverse party a reasonable opportunity to oppose the motion on its merits. (Nichols v. Hast (1965) 62 Cal.2d 598, 600.) Blakemore suffered no prejudice from the way the court heard and decided the motion for new trial on July 8 because the matter was fully briefed and the court and counsel were proceeding on the assumption that Ohgi was alive.
None of the cases Blakemore cites compel a contrary conclusion. Judson v. Love (1868) 35 Cal. 463, upon which Blakemore primarily relies, does describe proceedings conducted after a defendant died as "irregular and void." (Id. at p. 467.) However, in Judson the defendant died after a verdict in his favor but before the plaintiff brought his unsuccessful motion for new trial. Plaintiff appealed from the judgment, which included an appeal from the order denying the motion for new trial. (Id. at pp. 464-465.) The personal representative had not been made a party either as to the motion for new trial or as to the appeal. Thus, the interests of the estate of the decedent were not represented in any of those proceedings. For that reason, the Supreme Court let the judgment in favor of the decedent stand and dismissed the appeal. (Id. at pp. 467, 469.) Subsequent cases have construed Judson as articulating a prejudice standard:
As a general proposition, it is true . . . that . . . judgment cannot be rendered for or against a decedent, nor can it be rendered for or against a personal representative of a decedent's estate, until the representative has been made a party by substitution. [Citations.] . . . In California, the rule can be traced back to the early Supreme Court decision in Judson v. Love[, supra,] 35 Cal. 463, which observed that the proceedings after the death of the defendant were "irregular and void as to him and his successors in interest. . . ." (Id. at p. 467.) However, this general proposition has not been applied blindly, but rather has acted to prevent prejudice to the parties because of lack of notice, lack of proper representation, or some other disadvantage." (Sacks, supra, 7 Cal.App.4th at p. 957, italics added.)
Blakemore also cites Sanchez v. Roach (1855) 5 Cal. 248 (Roach), Herring v. Peterson (1981) 116 Cal.App.3d 608 (Herring), Collins v. Nelson (1940) 41 Cal.App.2d 107 (Collins), and Grappo, supra, 11 Cal.App.5th 996 for the same proposition—that a trial court loses fundamental jurisdiction upon the death of a party until the deceased's personal representative is substituted in the case.
However, Roach, supra, 5 Cal. 248 is distinguishable because there it was the appellant who died the same day judgment was entered. The court dismissed the appeal, holding there was no authority to prosecute the appeal in the name of the deceased until his executor or administrator was made a party. Thus, Roach does not involve a claim that a judgment is void. Moreover, its holding has been superseded by section 903, which provides: "In the event of the death of any person who would, if still alive, have a right of appeal, either the attorney of record representing the decedent in the court in which the judgment was rendered, or the executor or administrator of the estate of the decedent, may file a notice of appeal therefrom within the time within which the decedent could have filed such a notice if he had survived."
Herring, supra, 116 Cal.App.3d 608 is perhaps Blakemore's best case because it broadly states, "There being no defendant in the case [because the defendant died and no personal representative had been appointed], the trial court's order . . . was in excess of its jurisdiction and void." (Id. at p. 612.) However, that statement is internally inconsistent because acts that are in "excess" of jurisdiction are voidable and not void. (Kabran, supra, 2 Cal.5th at pp. 339-340.) That aside, the factual setting and legal issue in Herring are significantly different from Blakemore's case. In Herring, the trial court dismissed the case for failure to bring it to trial within five years. (Herring, at p. 610.) The case was filed in 1974, the defendant died in 1977 (no personal representative was substituted), and the court dismissed the action in 1979. (Id. at p. 611.) According to the Herring court, the relevant statute (former § 583, subd. (f)) "recognize[ed] that upon the defendant's death the court is deprived of jurisdiction to try the case in its status quo. That statute exempt[ed] from the five-year limit . . . the period of time when the defendant is not amenable to service of process and the jurisdiction of the court to try the action is suspended." (Herring, at p. 612, italics added.)
Unlike Herring, supra, 116 Cal.App.3d 608, here Blakemore cites no statute providing that a court loses jurisdiction where a party dies during the pendency of a new trial motion. Moreover, Ohgi not only died after the court entered judgment, but also after Blakemore filed her motion for new trial. Ohgi's interests were fully represented at all times. Finally, although the Herring court described the voidable judgment entered in that case as void, the distinction was immaterial to the statutory issue presented, and so that language was dictum. (Grappo, supra, 11 Cal.App.5th at p. 1028 (dis. opn. of Stewart, J.) [distinguishing Herring].)
Collins, supra, 41 Cal.App.2d 107, which Blakemore also cites, is factually off point because the case does not involve a party's death. There, the plaintiff filed a motion to disqualify the trial judge under former section 170 on January 13, 1937, which was the last day set for hearing on the defendant's motion for new trial. The motion was pending from that day until it was disposed of on September 2, 1938. The appellate court held that the trial court's jurisdiction was suspended during that time and had to be excluded when counting the 60-day period for ruling on the new trial motion. (Id. at p. 112.) The court explained that "[t]o hold otherwise would lead to absurdity because a party resisting a motion for new trial could defeat it merely by [seeking] to disqualify the trial judge." (Id. at pp. 112-113.) Collins holds the time spent deciding whether the judge should be disqualified had to be excluded from the time to decide a new trial motion to prevent abuse. (See Davcon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1360.)
Blakemore asserts the "same logic" of Collins, supra, 41 Cal.App.2d 107 dictates that the time to rule on her motion for new trial is indefinitely suspended until a personal representative is substituted in Ohgi's place. However, the logic of Collins is that the court's jurisdiction had to be tolled to prevent abusive judicial disqualification motions. Ohgi's lawyer did not file a judicial disqualification motion and the record fails to establish that counsel did anything else to improperly disrupt or delay the determination of Blakemore's motion for new trial.
Disagreeing with this conclusion, Blakemore contends that defense counsel "hid" Ohgi's death to prevent her from informing the trial court that it had lost "fundamental jurisdiction" to rule on her motion for new trial. The record shows Ohgi died on June 20 and his lawyer did not inform Blakemore's attorney of that fact until August 17. While we do not condone hiding the fact a party died, the record does not indicate when Ohgi's lawyer (retained by his insurer) learned Ohgi had died. In any event, Ohgi's death did not deprive the trial court of fundamental jurisdiction, nor did it prevent Blakemore from filing a timely notice of appeal from the judgment. Impacts from abusive litigation conduct, which drove the result in Collins, supra, 41 Cal.App.2d 107 are absent in this case.
Grappo, supra, 11 Cal.App.5th 996, also cited by Blakemore, actually undercuts her argument. There, the trial court entered a default judgment after the defendant had died (and no personal representative had been appointed). (Id. at p. 999.) On appeal, the Grappo court stated the default judgment was void—but the court was careful to explain the judgment was void not because the defendant had died—but rather because the allegations in the complaint did not support a default judgment. (Id. at p. 1009, fn. 4.) Contrary to Blakemore's contention, the Grappo court followed Sacks, supra, 7 Cal.App.4th 950—i.e., a trial court proceeding against a dead person before a personal representative is appointed is an irregularity that renders the judgment or order voidable only, based on a showing of prejudice. (Grappo, supra, 11 Cal.App.5th at p. 1008; see also Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal.2d 590, 602 (Smith).)
In Smith, the trial court entered an order dismissing the plaintiff's case. On appeal, the plaintiff argued the court lacked jurisdiction to render judgment because a defendant had died and no personal representative had substituted in the case. Rejecting that argument, the California Supreme Court observed, "it is apparent that no prejudice has resulted to plaintiffs from the failure to order the substitution." (Id. at p. 602.)
In addition to Sacks, supra, 7 Cal.App.4th 950 and Grappo, supra, 11 Cal.App.5th 996, Woolley v. Seijo (1964) 224 Cal.App.2d 615 also indicates that the order denying Blakemore's motion for new trial was voidable only and not void:
"It is settled that a judgment for or against a dead person is void only if the plaintiff or defendant was dead before the action was begun. [Citation.] It is equally well settled that where a party dies
subsequent to the commencement of the action and after the court has acquired personal jurisdiction over him, the entry of judgment against him is a 'mere irregularity' which renders the judgment voidable only . . . ." (Woolley, supra, 224 Cal.App.2d at pp. 620-621.)
Citing In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, Blakemore contends the time to appeal the judgment is tolled because the court's order denying her motion for new trial is void. The case is distinguishable because it involves an attempted appeal from a void judgment while the time to appeal the valid judgment had expired. (Id. at p. 670.) In sharp contrast here, Blakemore was not misled into appealing from a void judgment; rather, she has not appealed from any judgment. Moreover, the order denying the motion for new trial is not void.
We also reject Blakemore's argument because the time to appeal from a judgment is not tolled or suspended by the respondent's death or the absence of a personal representative upon whom to serve a notice of appeal. For example, in Williams, supra, 130 Cal. 58, some 18 days before the time to file a notice of appeal expired, the plaintiff who prevailed at trial died, and the court appointed an administrator of his estate only after the time to appeal expired. (Id. at p. 59.) The appellant, who filed a notice of appeal after the deadline expired, argued that the time to appeal was suspended from the date plaintiff died to the date a personal representative was appointed. (Ibid.) The California Supreme Court rejected that argument, holding the time to appeal was not tolled or suspended because of the respondent's death or the absence of a personal representative upon whom to serve a notice of appeal. (Id. at pp. 59-60.) The California Supreme Court reached the same result in Bell v. San Francisco Sav. Union (1908) 153 Cal. 64 (Bell), stating:
"The necessity of serving a notice of appeal upon a respondent who is an adverse party is not obviated by the death of such party.
[Citations.] The appellant must, within the time allowed for taking an appeal, serve his notice of appeal upon all adverse parties. If any of said parties have died, service must be made upon the personal representatives of the decedent, and if the appellant is unable to procure the appointment of a personal representative, and to serve such representative within the required time, his appeal is lost." (Bell, supra, 153 Cal. at p. 70; Estate of Turner (1903) 139 Cal. 85 [absence of personal representative for service of notice of appeal does not toll or suspend time to appeal].)
Blakemore contends Williams, supra, 130 Cal. 58 and Estate of Turner, supra, 139 Cal. 85 are distinguishable because they do not also involve a pending new trial motion. However, as discussed in the text, Ohgi's death did not deprive the trial court of fundamental jurisdiction and, therefore, whether a new trial motion was filed in these cases is not a relevant distinction.
It is true that without a personal representative being substituted in Ohgi's place, Blakemore arguably had no one upon whom to serve a notice of appeal from the judgment. But that does not affect the running of the time to appeal from the judgment. (Bell, supra, 153 Cal. at p. 70.) Nor would the absence of a personal representative affect Blakemore's ability to file a notice of appeal from the judgment. Rule 8.100(a)(3) provides, "Failure to serve the notice of appeal neither prevents its filing nor affects its validity . . . ." Rule 8.100(a)(3) thus eliminates the potentially harsh result under Bell, supra, 153 Cal. 64 in which the right to appeal from a judgment could be lost through delay in appointing a personal representative upon whom to serve the notice of appeal.
Blakemore also asserts "the continued validity of Williams, [supra, 130 Cal. 58], [Estate of] Turner, [supra, 139 Cal. 85] and Bell [, supra, 153 Cal. 64] is questionable, at best" because rule 8.100(a)(3) no longer requires service as well as filing a notice of appeal. Blakemore's argument is incorrect. Rule 8.100(a)(3) is necessary only because of the continued validity of these cases. There would be no need to have a rule providing that a notice of appeal is effective even if not served if the time to appeal was suspended until a personal representative was appointed upon whom service could be made.
4. No new or amended judgment to restart time to file a notice of appeal
Blakemore further contends the time to appeal from the judgment restarted on August 26 when the trial court entered an order awarding costs. She characterizes that order as "a new final judgment." However, a postjudgment order awarding costs is not a substantial amendment to the judgment and, therefore, does not extend the time to appeal from the judgment. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 ["It is well settled . . . that '[w]here the judgment is modified merely to add costs . . . the original judgment is not substantially changed and the time to appeal it is therefore not affected.'"], criticized on other grounds in Sanchez v. Strickland (2011) 200 Cal.App.4th 758, 766.)
In awarding costs even though Ohgi had died, the court stated it was "simply rendering a final judgment with the cost amount resolved" as provided in section 669. Focusing on the phrase "rendering a final judgment," Blakemore contends this shows the court entered a "new final judgment," restarting the time to appeal. We disagree; Blakemore takes this sentence out of context. In the immediately preceding paragraph, the court ordered the clerk to "interlineate a cost award of $14,545.96 in plaintiff's favor on the Judgment filed May 23, 2016." Thus the court did not enter a new or an amended judgment. Rather, it made a postjudgment order awarding costs.
5. An appeal from the judgment would not have deprived this court of a complete record
In denying Blakemore's motion to vacate, the trial court stated it would have granted the motion for new trial if it had been aware of Sanchez, supra, 63 Cal.4th 665 at that time. Blakemore contends none of this would have happened if she had merely appealed from the judgment. Thus, she contends, an appeal from the judgment would have led to an incomplete appellate record that would not include the trial judge's insights about Sanchez.
This argument is untenable. If Blakemore had appealed from the judgment, this court could have reviewed the claimed Sanchez error from the judgment. We also could have reviewed the same issue in considering whether the trial court abused its discretion in denying the motion for new trial. (Litvinuk, supra, 27 Cal.2d at p. 42 [an order denying a motion for new trial may be reviewed upon an appeal from the judgment].) Ultimately this court would have looked to the evidence at trial and other portions of the trial record in assessing the prejudicial effect of any error.
Changes in case law are customarily retroactive. (See City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1301 [general rule is that judicial decisions are given retroactive effect].)
In a related argument, Blakemore also contends the time to appeal from the judgment has not lapsed because she could not have made a "fully informed decision whether to appeal from the judgment" until informed Ohgi died, and by then the time to appeal had already arguably expired. However, whether a party can make a "fully informed" decision to appeal is irrelevant with respect to the jurisdictional time limits for filing a notice of appeal. The time limit for filing a notice of appeal is based on objective litigation facts, such as the date judgment is entered, notice of entry is given, or the date certain posttrial motions are denied or notice is given. (Rules 8.104, 8.108.) These rules are designed to provide certainty and to be free from ambiguity. A party's subjective beliefs and tactical qualms about whether to appeal are irrelevant in determining the jurisdictional deadline to file a notice of appeal.
D. The Order Denying the Motion to Vacate Is Not an Appealable Order
Blakemore filed a motion to vacate the order denying her new trial motion under section 473, subdivision (d) on the grounds that order was void. She timely filed a notice of appeal from the order denying her motion to vacate. As explained next, that purported appeal must be dismissed because the order denying her motion to vacate is not an appealable order.
Step 1 of the analysis is that the order denying Blakemore's motion for new trial is a nonappealable order. An order denying a motion for new trial may only be reviewed on an appeal from the judgment. (Walker, supra, 35 Cal.4th at p. 19 ["[A]n order denying a motion for new trial is not independently appealable and may be reviewed only on appeal from the underlying judgment." (Italics omitted.)].) However, in this case, the time to appeal from the judgment has expired. Therefore, the order denying Blakemore's motion for new trial is not reviewable on appeal. (Litvinuk, supra, 27 Cal.2d at p. 42 [expiration of time to appeal from the judgment terminates jurisdiction to review an order denying a motion for new trial].)
Because Blakemore cannot appeal from the order denying her motion for new trial, the issue becomes whether she can accomplish the same result by moving to vacate that order under section 473, subdivision (d), and then appealing from the denial of the motion to vacate. Litvinuk, supra, 27 Cal.2d 38 resolves this issue. There, the court entered a judgment of dissolution of marriage. The wife filed a motion for new trial, which the court denied. Later, the wife filed a motion to set aside the judgment under section 473, which the court denied. (Litvinuk, supra, 27 Cal.2d at pp. 40-41.) Subsequently, the wife filed an untimely notice of appeal from the judgment, and a timely appeal from the order denying her motion to vacate. (Id. at pp. 42-43.) Because the wife's appeal from the judgment was untimely, the reviewing court had no jurisdiction to consider the order denying the motion for new trial. (Ibid.)
Because the wife in Litvinuk could not appeal from either the judgment (because that appeal was untimely) or the order denying her motion for new trial (because it was a nonappealable order), the Supreme Court next considered whether it had jurisdiction over the wife's timely appeal from the order denying her motion to vacate the judgment under section 473. Noting that a party should not be allowed to accomplish indirectly what cannot be accomplished directly, the court stated, "[I]t is the general rule that an appeal may not be taken from a nonappealable order by the device of moving to vacate the order and appealing from a ruling denying the motion." (Litvinuk, supra, 27 Cal.2d at pp. 43- 44.) Accordingly, the court determined that the purported appeal from the order denying the section 473 motion must be dismissed. (Litivnuk, at p. 45.)
The court also determined the purported appeal should be dismissed because the motion to vacate the judgment was based on the same facts and issues as would have been raised in an appeal from the judgment. (Litvinuk, supra, 27 Cal.2d at pp. 44-45.)
Similarly here, Blakemore's purported appeal from the order denying her motion to vacate must be dismissed because (1) the order denying her motion for new trial is not an appealable order, (2) the time within which to appeal from the judgment has expired, and (3) an appeal may not be taken from a nonappealable order by the device of moving to vacate that order and appealing from a ruling denying that motion. (See also People v. Cotton Belt Ins. Co. (1983) 143 Cal.App.3d 805, 808 ["[W]here a judgment or order is not appealable, so also an order refusing to set it aside is not appealable." (Italics omitted.)]; Hennigan v. Boren (1966) 243 Cal.App.2d 810, 815 ["When a judgment or order is not appealable, it cannot be made reviewable by the simple device of moving to set it aside and appealing from an order denying the motion inasmuch as a party is prohibited from doing indirectly what he may not do directly."].)
To be distinguished are cases such as Ryan, supra, 3 Cal.5th 124 (motion to vacate a judgment under section 663), and Jade K. v. Viguri (1989) 210 Cal.App.3d 1459 (motion to vacate a default judgment under section 473), cases Blakemore cites where a party brings a statutory motion to vacate an appealable judgment. In those circumstances, the denial of a statutory motion to vacate is considered a special order after final judgment and is appealable. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 200, pp. 275-277.)
Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, cited by Blakemore, does not hold or suggest to the contrary. Lakin states general rules about what makes a postjudgment order appealable. For example, a postjudgment order must raise issues different from those arising from an appeal from the judgment, and must affect the judgment or relate to it by enforcing or staying its execution. (Id. at p. 651.) The Lakin court did not discuss or consider the significantly different issue here—whether a nonappealable order may be made reviewable by moving to set it aside and then appealing from the order denying that motion. (Loeffler, supra, 58 Cal.4th at p. 1134.)
There is an exception to the rule that an order denying a motion to vacate a nonappealable order is itself nonappealable. An order denying a motion to vacate a void judgment is appealable because otherwise the law would be giving effect to a void judgment; i.e., a void final determination of the parties' rights. (See 311 South Spring Street Co. v. Department of General Services (2009) 178 Cal.App.4th 1009, 1014 (311 South Spring).) Citing 311 South Spring, Blakemore contends this exception applies "because if the order denying [] Blakemore's motion to vacate the void July 8 order [denying her motion for new trial] were not appealable, then the law would be giving effect to the void July 8 order."
Blakemore also cites Carr v. Kamins (2007) 151 Cal.App.4th 929 for the proposition that "[i]f an order is void, an order giving effect to the void order is appealable, even if the underlying judgment was also appealable." However, Carr involved an appeal from an order denying a motion to vacate a void judgment. It did not consider the appealability of an order denying a motion to vacate an order claimed to be void. (Id. at p. 931.)
This argument fails. The May 23 judgment is not void. Moreover, even assuming that 311 South Spring, supra, 178 Cal.App.4th 1009 applies not only to void judgments but also void orders—as already explained, the order denying Blakemore's motion for new trial is not void.
E. Not Appropriate to Treat the Purported Appeal as a Writ Petition
Blakemore contends that if we conclude the order denying her motion to vacate is not appealable, we should treat the appeal as a petition for a writ of mandate. In Olson, supra, 35 Cal.3d 390, the California Supreme Court held it was appropriate to treat an attempted appeal from a nonappealable order as a petition for an extraordinary writ when (1) requiring the parties to wait for a final judgment might lead to unnecessary trial proceedings; (2) the briefs and record included, in substance, the necessary elements for a proceeding for a writ of mandate; (3) there was no indication the trial court would appear as a party in a writ proceeding; (4) the appealability of the order was not clear; and (5) the parties urged the court to decide the issues rather than dismiss the appeal. (Id. at pp. 400-401.) The Supreme Court cautioned, however, that the power to treat an appeal from a nonappealable order as a petition for a writ of mandate should not be exercised except under unusual circumstances. (Id. at p. 401.) In Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 770, footnote 16, this court stated that an attempted appeal from a nonappealable order should be treated as a writ petition only in "'"extraordinary circumstances."'"
In Olson, "that the issue of appealability was far from clear in advance" was an unusual circumstance justifying the Supreme Court's decision to treat the purported appeal as a petition for a writ of mandate. (Olson, supra, 35 Cal.3d at p. 401.) The circumstances here are materially different. A final judgment was entered while Ohgi was alive. Even assuming for the sake of argument that it was unclear whether service of a notice of appeal could be effectuated absent the appointment of a personal representative, a notice of appeal could have been filed even without service. (Rule 8.100(a)(3).) If a notice of appeal from the judgment had been filed, the trial court would have retained jurisdiction to rule on the motion for new trial. (Varian, supra, 35 Cal.4th at p. 191.)
Blakemore asserts extraordinary circumstances exist because the issues raised are of "first impression, which [have] been thoroughly briefed." However, the primary issue in Blakemore's opening brief is whether the order denying her motion for new trial is void and that issue is not a matter of first impression.
Blakemore also contends writ review is appropriate because Ohgi's death and his lawyer's failure to promptly disclose it deprived her of a fair opportunity for appellate review. However, Ohgi's death did not preclude appealing from the judgment. Indeed, the trial court, keenly aware of the procedural history of this case, noted, "[P]laintiff had ample opportunity to file a notice of appeal" from the judgment. Accordingly, we decline to exercise our discretion to treat Blakemore's appeal as a writ proceeding.
Because the order denying Blakemore's motion to vacate is not appealable, we lack jurisdiction to consider Blakemore's appeal and must dismiss it on this basis. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [reviewing court must raise jurisdictional issue on its own]; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [dismissal for lack of jurisdiction on court's own motion].)
"In strictly adhering to the statutory time for filing a notice of appeal, the courts are not arbitrarily penalizing procedural missteps. Relief may be given for excusable delay in complying with many provisions in the statutes and rules on appeal, such as those governing the time within which the record and briefs must be prepared and filed. These procedural time provisions, however, become effective after the appeal is taken. The first step, taking of the appeal, is not merely a procedural one; it vests jurisdiction in the appellate court . . . . And of particular importance is the fact that the security of rights of contract, titles to property, and the status of persons rest upon certainty in the finality of judgments occasioned by the lapse of the statutory time for the taking of an appeal." (Estate of Hanley (1943) 23 Cal.2d 120, 123-124, italics omitted.)
DISPOSITION
The appeal is dismissed.
NARES, J. WE CONCUR: BENKE, Acting P. J. AARON, J.