Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. LP010109, Michael R. Hoff, Judge.
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, Marc L. Sallus and Justin B. Gold for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
DOI TODD, JUDGE.
This appeal raises the narrow issue of whether the probate department of the superior court retained collateral jurisdiction to rule on appellant’s motion for prejudgment interest and costs after respondent filed an appeal of the judgment. We hold that it did and reverse the court’s order taking the motion off-calendar pending the outcome of the appeal of the judgment. We remand for the trial court to resolve the motion for prejudgment interest within 30 days of the issuance of remittitur in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent, Robert Smith, special trustee of the William M. Ipson Trust (William Trust) sued appellant, Kurt Koesters, successor trustee of the Sophia Ann Ipson Trust (Sophia Trust) claiming a community property interest in the proceeds from the sale of the home shared by William and Sophia Ipson during their 33-year marriage. After a bench trial, the court granted a motion for judgment in favor of the Sophia Trust under Code of Civil Procedure section 631.8. Judgment was entered a month later on April 24, 2006 and notice of entry of judgment was served on April 27, 2006.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On May 2, 2006, the Sophia Trust filed a motion for prejudgment interest and a memorandum of costs. On May 5, the William Trust filed a notice of appeal of the judgment. On July 28, 2006, the trial court found that the William Trust’s pending appeal deprived it of jurisdiction to rule on the motion for prejudgment interest and entered its order placing the motion “off-calendar pending outcome of the appeal.” The Sophia Trust appeals that order.
Respondent having failed to file a brief, we decide this appeal on the record and appellant’s opening brief. (Cal. Rules of Court, rule 8.220 (a)(2).)
We considered and denied a motion filed by the William Trust to dismiss the appeal on the grounds that the July 28 order was not final and appealable. We also considered and denied a motion for leave to file a respondent’s brief, filed by the William Trust a week before oral argument.
DISCUSSION
I. Appealability
We do not have jurisdiction over appeals taken from nonappealable orders. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Generally orders that are not included in a judgment are not appealable unless they are expressly made so by statute. (Caruso v. Snap–Tite, Inc. (1969) 275 Cal.App.2d 211, 213; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 2:5, p. 2–2 (rev. # 1, 2006), ¶ 2:125, p. 2–69 (rev. # 1, 2005).) The Sophia Trust claims that we have jurisdiction to review the July 28 order because the trial court’s refusal to rule on the motion constituted a denial by operation of the law and the denial of an award of costs is a separately appealable order. (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579.) The Sophia Trust also argues that because its motion for prejudgment interest, although not styled as such, should be considered a motion for new trial on the grounds of inadequate damages, it will lose its right to appeal if forced to wait until the resolution of the pending appeal from the judgment given the statutory time constraints imposed on motions for new trial. We find that the order is appealable.
A. Motion for New Trial
Although there is no procedure or time limit set by statute or rule of court for requests for prejudgment interest, the court in North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830–831 (North Oakland) held that a request for prejudgment interest under Civil Code section 3287 must be made before entry of judgment or, at the latest, as part of a motion for new trial on the grounds of “excessive or inadequate damages” within the timeframe proscribed for such motions. (§§ 657, subd. (5), 659.)
Here, the Sophia Trust contends that its “motion for award of prejudgment interest” was a de facto motion for new trial based on inadequate damages. We agree. “‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.’” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) In Malo v. Willis (1981) 126 Cal.App.3d 543, 546, fn. 2 (Malo), the court considered the appealability of an order granting reconsideration and vacating a judgment entered on an earlier order granting summary judgment. Because the effect of the appealed order was to reinstate the action, it was not obviously appealable. Nevertheless, the court construed the motion as a new trial motion, the granting of which was appealable under section 904.1, subdivision (d), now subdivision (a)(4).
In this case, because the request for prejudgment interest was filed on May 2, 2006 after judgment was entered on April 24, 2006, pursuant to North Oakland, supra, 65 Cal.App.4th at pages 830–831 it necessarily could only be brought as a new trial motion. As such, the motion was timely filed within the 15-day timeframe proscribed for motions for new trial. (§ 659; Cal. Rules of Court, rule 3.1700(a).) Under the circumstances, we construe the motion as a new trial motion. (Malo, supra, 126 Cal.App.3d at p. 546, fn. 2.)
B. Denial of the Order by Operation of the Law Was Effectively Appealed
Section 660 provides that a motion for new trial that is not heard within 60 days of the earliest of the clerk’s or party’s notice of entry of judgment is deemed denied by operation of the law. (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517–518; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2006) ¶ 18:355, p. 18–72 (rev. # 1, 2003).) Given that notice of entry of judgment in this case was filed and served on April 27, 2006, the 60 days for ruling on the new trial motion has long since passed and the motion is deemed denied by operation of the law.
The denial of a new trial motion is not separately appealable but is reviewable on appeal from the judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18–19 (Walker).) A notice of appeal from the denial of a new trial motion is liberally construed as an appeal from the underlying judgment where there is no prejudice to the opposing party. (Walker, supra, at pp. 20–22; Cal. Rules of Court, rule 8.100(a)(2).) We find no such prejudice to the respondent in this case and construe the Sophia Trust’s notice of appeal from the trial court’s July 28 order as an appeal from the final judgment.
We therefore find that we have jurisdiction to consider the July 28 order.
II. The Trial Court Retained Collateral Jurisdiction
The issue of the trial court’s collateral jurisdiction to review the motion for prejudgment interest pending the appeal of the underlying judgment is a matter of law that we review de novo. (Segura v. McBride (1992) 5 Cal.App.4th 1028.)
While a notice of appeal generally stays the trial court’s jurisdiction in the matter appealed, the court retains jurisdiction to rule on a new trial motion despite a pending appeal from the judgment. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.) As such, the trial court erred in ordering the matter off calendar based on a lack of jurisdiction.
A party’s right to prejudgment interest under section 3288 is discretionary with the finder of fact as is the amount of any such award. (Civ. Code, § 3288; Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 814.) Because the trial court made no ruling on the substance of the request by the Sophia Trust for prejudgment interest in this case, we remand the matter for that purpose.
The July 28 order does not reference the Sophia Trust’s memorandum of costs and the status of that request is not clear to us. We nevertheless note that the trial court retains collateral jurisdiction for the purpose of resolving costs and that the policy against multiple appeals would be served by concluding that matter as well upon issuance of the remittitur. (See Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369; Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 443.)
In the meantime, we note that the William Trust’s appeal from the final judgment (case No. B191102) is proceeding. Consequently, we order that the matter on remand be resolved within 30 days of the issuance of the remittitur.
DISPOSITION
The order of July 28, 2006 is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion. These further proceedings are to be concluded within 30 days of the issuance of the remittitur. The parties are to bear their own costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.