Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of San Diego County No. GIN042091 Thomas P. Nugent, Judge.
AARON, J.
I.
INTRODUCTION
Felipe Neri Sanchez Gomez filed a complaint against defendants William C. Comer and Comer's employer, Drake Transport, Inc. (Drake). The trial court entered a judgment in favor of the defendants on the ground that the statute of limitations barred Gomez's claim. On appeal, Gomez claims that the trial court erred in concluding that the doctrine of equitable tolling does not apply to render Gomez's complaint timely filed.
After the parties had filed their briefs in this case, this court requested that the parties submit supplemental briefs addressing whether Gomez's notice of appeal was timely filed. (E.g., Drum v. Superior Court (2006) 139 Cal.App.4th 845, 849 ["because the timeliness of an appeal poses a jurisdictional issue, we must raise the point sua sponte"].) We conclude that Gomez's notice of appeal was not timely filed, and that this court thus lacks appellate jurisdiction to consider his appeal. Accordingly, we dismiss the appeal.
II.
PROCEDURAL BACKGROUND
In January 2005, Gomez filed a complaint against the defendants stemming from a motor vehicle accident in which Gomez and Comer were involved. In March 2006, defendants moved to bifurcate and try first their statute of limitations defense to Gomez's complaint. In November 2006, the court granted the motion to bifurcate.
On December 6, the trial court issued a statement of decision in which the court concluded that the statute of limitations barred Gomez's complaint. The statement of decision provided, "JUDGMENT IS HEREBY ORDERED in favor of Defendants who shall prepare the appropriate form of Judgment in these proceedings."
On December 21, Gomez filed a motion for relief from judgment pursuant to Code of Civil Procedure, section 473. That same day, Gomez filed a document entitled in relevant part, "PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR A NEW TRIAL PURSUANT TO CODE OF CIVIL PROCEDURE SECTIONS 657 AND 662 . . . ."
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
On December 27, the court entered a judgment in favor of the defendants. On March 9, 2007, defendants served a notice of entry of judgment on Gomez. On March 14, Gomez filed a notice of intention to move for a new trial.
The file stamp date on the copy of this document is faint, but appears to state March 14. The document itself is dated March 12. The precise date on which the document was filed is not material to our disposition of the appeal.
On March 23, the trial court denied Gomez's motion for relief from judgment pursuant to section 473. That same day, the trial court denied Gomez's December 21, 2006 motion for new trial. The court reasoned:
"Plaintiff's motion for a new trial is denied. Plaintiff failed to file and serve a notice of intention for new trial as required by [section] 659. In addition, assuming that the notice of motion served December 20, 2006 can be a substitute for the notice of intention, the court's jurisdiction to order a new trial expired on February 18, 2007. No notice of entry of judgment was served after entry of the judgment. . . . [S]ection 660. Due to the failure of plaintiff to file a notice of intention to move for new trial and Plaintiff's reservation with the calendar clerk of a hearing date for a 'motion per [section] 662,' the motion for new trial did not get calendared prior to the jurisdictional cut-off date."
Section 662 specifies the authority of a trial court in ruling on a motion for new trial in a case that is tried to the court.
That same day, March 23, Gomez filed a second motion for new trial.
On May 8, the trial court denied Gomez's second motion for a new trial. In its order, the court reasoned in part:
"The court previously denied Plaintiff's motion for a new trial on March 23, 2007. In addition, the court's jurisdiction to grant a new trial expired on February 18, 2007. Pursuant to [section] 660, a motion for new trial is required to be heard within the earliest of the following dates: (1) 60 days after mailing of notice of entry of judgment by the clerk; [(2)] 60 days after service by a party of notice of entry of judgment; or (3) 60 days after the filing of the first notice of intention to move for a new trial. This time period is jurisdictional. [Citation]. [¶] The service of the notice of motion for new trial has the same effect as service of a notice of intention to move for new trial. [Citation.]"
The trial court also denied the motion for a new trial on the merits.
On May 21, 2007, Gomez filed his notice of appeal. In his notice of appeal, Gomez stated that he was appealing from the December 27, 2006 judgment and the May 8, 2007 order denying his motion for a new trial.
III.
DISCUSSION
Gomez's notice of appeal was not timely filed
Gomez's notice of appeal was not filed within 60 days of service of the notice of entry of judgment pursuant to California Rules of Court, rule 8.104(a)(2). Further, under
the circumstances of this case, the normal time to appeal provided in California Rules of Court, rule 8.104(a)(2) was not extended by operation of California Rules of Court, rule 8.108. Finally, the May 8, 2007 order denying Gomez's second motion for a new trial was not an independently appealable order. Accordingly, Gomez's notice of appeal was not timely filed, and his appeal must be dismissed.
A. California Rules of Court governing the time within which to file an appeal
California Rules of Court, rule 8.104 (Rule 8.104) provides in relevant part:
"(a) Normal time
"Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:
We are not aware of, and the parties have not cited, the existence of any such statute in this case.
"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed;
"(2) 60 days after the party filing the notice of appeal serves or 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; or
"(3) 180 days after entry of judgment.
"(b) No extension of time; late notice of appeal
"Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal."
California Rules of Court, rule 8.66 authorizes the issuance of an order extending certain time periods during times of public emergencies. It has no application in this case.
California Rules of Court, rule 8.108 (Rule 8.108) provides in relevant part:
"(a) Extension of time
"This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.
"(b) Motion for new trial
"If any party serves and files a valid notice of intention to move for a new trial, the time to appeal from the judgment is extended for all parties as follows:
"(1) If the motion is denied, until the earliest of:
"(A) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
"(B) 30 days after denial of the motion by operation of law; or
"(C) 180 days after entry of judgment.
"(2) If any party serves an acceptance of a conditionally ordered additur or remittitur of damages pursuant to a trial court finding of excessive or inadequate damages, until 30 days after the date the party serves the acceptance.
"(c) Motion to vacate judgment
"If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move--or a valid motion--to vacate the judgment, the time to appeal from the judgment is extended for all parties until the earliest of:
"(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;
"(2) 90 days after the first notice of intention to move--or motion--is filed; or
"(3) 180 days after entry of judgment."
B. Application
1. Gomez's notice of appeal was not filed within 60 days of service of
notice of entry of judgment
In his supplemental letter brief, Gomez claims that the appeal is timely for two reasons. First, Gomez claims that he had 180 days from the December 27, 2006 judgment to file his notice of appeal, pursuant to Rule 8.104 (a)(3). Gomez acknowledges that respondents served a notice of entry of judgment on March 9, 2007, but claims that "the notice of [e]ntry of [j]udgment served by respondents is not part of the record. . . ." However, the March 9, 2007 notice of entry of judgment is in the record. Gomez attached the notice of entry of judgment to his notice of appeal, and the document is also included in the appellant's appendix and as an attachment to Gomez's March 14, 2007 notice of intention to move for new trial. Thus, unless extended by Rule 8.108, Gomez had 60 days from March 9, i.e., until May 9, 2007, to file his notice of appeal. (Rule 8.104(a)(2).) Gomez did not file his appeal until May 21, 2007. Thus, unless the time to file the notice of appeal was extended by Rule 8.108, Gomez's appeal is untimely.
In his supplemental brief, Gomez states that the court dismissed the case on December 23. We assumed Gomez is intending to refer to the December 27 judgment.
2. The time for Gomez to file his appeal was not extended by Rule 8.108
Gomez also claims that his appeal is timely pursuant to Rule 8.108. Neither of Gomez's two motions for a new trial, nor his motion to vacate judgment, operated to extend the time period in which to file his appeal.
a. Gomez's motions for new trial
(1) Gomez's first motion for a new trial
Section 659 governs the time period in which a party may file a notice of intention to file to move for a new trial. That section provides in relevant part:
"The party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court or both, either
"1. Before the entry of judgment; or
"2. Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of such notice upon him to file and serve a notice of intention to move for a new trial."
Section 660 governs, among other matters, the time period in which a trial court must rule on a party's motion for new trial:
"Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court."
Section 12a, subdivision (a) provides in relevant part: "If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday."
Gomez filed a notice of motion and motion for a new trial on December 21, 2006 "[b]efore the entry of judgment" (§ 659), but after the trial court's issuance of a final written and signed statement of decision. Thus, the motion was timely filed and was not premature. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 459 (Auto Equity Sales, Inc.) [motion for new trial may be filed only after "decision" in case, and, in a court trial, "the decision is rendered only when the court signs and files its findings of fact and conclusions of law," pursuant to section 632].) Further, although Gomez entitled his notice of his intention to move for a new trial, "Notice of Motion and Motion for New Trial," rather than a notice of intention to move for a new trial, this minor defect did not render the motion void. (See Fischer v. First International Bank (2003) 109 Cal.App.4th 1433, 1451 [party served a "notice of motion and motion for new trial," and thereby triggered the 60-day jurisdictional period for ruling on motion]; 8 Witkin, Cal. Proc. (4th Ed. 1997) Attack on Judgment in Trial Court, § 51 ["because no special form is required, the cases take a liberal view and disregard minor defects that do not mislead"].)
In the trial court, Gomez cited The Yamato v. Bank of Southern Cal. (1915) 170 Cal. 351, 356 (Yamato), for the proposition that a notice of intention to move for a new trial filed before entry of judgment is premature and a nullity. In 1923, section 659 was amended to authorize a filing "before the entry of judgment." (Stats. 1923, ch. 367, p. 751.) Thus, Yamato has been superseded by the 1923 amendment to section 659. (See Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 462, ["Yamato's concern with the date judgment is entered, the 1923 amendment to 659 [citation] makes that date now inapplicable in determining prematurity"].)
At the time Gomez filed his motion, notice of entry of judgment had neither been mailed by the clerk, nor served by a party, under section 660. Therefore, the trial court had 60 days plus one additional holiday day, or until February 20, to rule on Gomez's December 21, 2006 motion. (See In re Marriage of Liu (1987) 197 Cal.App.3d 143, 150 [trial court had 60 days from party's filing of notice of intention to move for new trial where "no notice of entry of judgment was given by the clerk or the parties prior to the time appellant filed her notice of intention to move for new trial"].) When, on February 20, the trial court had not ruled on Gomez's motion within the 60 day period, the motion was denied as matter of law. (§ 660.)
The 60th day was February 19, 2007, which was a holiday. Thus, pursuant to section 12a, subdivision (a), the trial court had one additional day to rule on Gomez's motion for a new trial.
Rule 8.108(b) provides that where the trial court denies a party's motion for new trial, the time to appeal from the judgment may be extended past the ordinary time to appeal under Rule 8.104 until the earliest of three possible dates. In this case, the earliest date was "30 days after denial of the motion by operation of law." (Rule 8.108(b)(1)(B).)
30 days after February 20, 2007 was March 22, 2007. Because March 22 is before May 9, the latest date on which Gomez could file his appeal under Rule 8.104, Gomez's filing of his December 21, 2006 motion for new trial did not operate to extend the time for filing his appeal.
(2) Gomez's second motion for a new trial
In Wenzoski v. Central Banking System, Inc. (1987) 43 Cal.3d 539, 541 (Wenzoski), the Supreme court considered whether a party's notice of appeal was timely filed where the party filed the notice of appeal within 30 days of the trial court's denial of the party's second motion for new trial. The Wenzoski court began its analysis by noting, "It has long been the rule that '[a] final order granting or denying [a motion for new trial], regularly made, exhausts the court's jurisdiction, and cannot be set aside or modified by the trial court except to correct clerical error or to give relief from inadvertence under C.C.P. 473.' [Citation.]" (Id. at p. 542.) Applying this law, the Wenzoski court concluded that the party's time to appeal ran from the trial court's denial of the party's first motion for new trial:
"Once the minute order of January 20 issued [denying the first motion for new trial], the trial court lost jurisdiction to rule on plaintiffs' second motion for new trial. Instead, '[plaintiffs'] remedy is an appeal from the judgment.' [Citation.] Since the trial court lost jurisdiction over the case following the denial of the first new trial motion on January 20, plaintiffs' second new trial motion was not cognizable by that court.
"If entry of the first denial was a clerical error, as plaintiffs maintain in their supplemental brief, plaintiffs should have brought it to the attention of the court. Even if the parties and the court were under a misapprehension (as they apparently were) that the court could properly consider a second motion for new trial, that subjective belief still does not cure the fundamental defect in the practice they followed. Plaintiffs were required to file their notice of appeal within 30 days of the denial of the first and only cognizable motion for new trial. Since they did not do so, their notice of appeal was untimely." (Ibid.)
The Wenzoski court dismissed the appeal for lack of jurisdiction. (Id. at p. 542.)
In this case, as noted above, by operation of law, Gomez's motion for new trial was denied on February 20, 2007. The February 20 denial was proper and effective. Thus, pursuant to Wenzoski and section 660, the trial court lost jurisdiction to grant a motion for new trial after this date. (Wenzoski, supra, 43 Cal.3d at p. 542.) Accordingly, Gomez's March 14 notice of intention to move for a new trial was not "a valid notice of intention to move for a new trial," that could serve to extend the time to appeal pursuant to Rule 8.108(b).
Accordingly, we conclude that Gomez's second motion for a new trial did not operate to extend the time for filing his appeal.
b. Gomez's motion for relief from judgment
Gomez also filed a motion for relief from judgment, pursuant to section 473, on December 21, 2006. Such a motion constitutes a motion to vacate the judgment for purposes of Rule 8.108(c). (See Matera v. McLeod (2006) 145 Cal.App.4th 44, 56.) Rule 8.108(c) provides that where a party files a valid motion to vacate the judgment, the time to appeal from the judgment may be extended past the ordinary time to appeal under Rule 8.104 until the earliest of three possible dates. In this case, the earliest date was "90 days after the first notice . . . motion . . . is filed." Ninety days after December 21, 2006 was March 21, 2007. Because March 21 is before May 9, the latest date on which Gomez could file his appeal under Rule 8.104, Gomez's filing of his December 21, 2006 motion for relief from judgment did not operate to extend the time for filing his appeal.
3. The May 8, 2007 order is not independently appealable
It is well established that "an order denying a new trial motion is not separately appealable." (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819-820.) Accordingly, Gomez's purported appeal from the trial court's May 8, 2007 order denying his second motion for a new trial does not provide this court with appellate jurisdiction.
4. Gomez's appeal must be dismissed
"Compliance with the time for filing a notice of appeal is mandatory and jurisdictional. [Citation.] If a notice of appeal is not timely, the appellate court must dismiss the appeal." (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 582.)
Gomez's May 21, 2007 notice of appeal was not timely filed. Accordingly, this court lacks appellate jurisdiction and must dismiss his appeal.
IV.
DISPOSITION
The appeal is dismissed.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.