Anderson v. Chikovani

Opinion

THE COURT.

*

—Respondent’s motion to dismiss the appeal raises the novel issue of how the

nonservice

of a timely order denying a motion for new trial affects the extensions of time to appeal allowed by California Rules of Court, rule 8.108(b).

1

As explained below, we hold that where a party files a valid motion for new trial, and the trial court issues a timely order denying that motion, but no one

serves

the order or notice of entry of that order, then the

[1399]

applicable deadline for filing the notice of appeal from the judgment is 180 days after entry of judgment.

* * *

The court entered judgment for respondent (the defendant in a medical malpractice case) on March 20, 2009. Respondent served notice of entry of judgment on April 6. On April 20, appellants timely served their notice of intention to move for new trial pursuant to section 659.

The trial court’s power to act on the new trial motion is circumscribed by section 660. That code section provides that “the power of the court to rule on a motion for a new trial shall expire 60 days . . . after service on the moving party ... of written notice of the entry of the judgment. . . .” (§ 660.) Thus, the court had until June 5 to rule on the new trial motion. The trial court timely entered a minute order denying the motion for new trial on May 28. However, the clerk did not mail the order and no party served notice of entry of the order.

Appellants filed their notice of appeal on July 28. Respondent moved to dismiss the appeal for lack of jurisdiction, arguing the notice of appeal was untimely under rule 8.108(b), which sets forth the extended filing deadlines triggered by a new trial motion. Because of the nonservice of the order denying the new trial motion, there is some uncertainty as to which among the several extended filing deadlines applies here.