Sharma v. Toyota Motor Sales USA CA4/2 (2022) · DecisionDepot
Sharma v. Toyota Motor Sales USA CA4/2
California Court of Appeal Sep 12, 2022 No. E074382Unpublished
Filed 9/12/22 Sharma v. Toyota Motor Sales USA CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHIVASHNI SHARMA,
Plaintiff and Appellant, E074382
v. (Super.Ct.No. RIC1807749)
TOYOTA MOTOR SALES USA, INC. et OPINION al.,
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Dismissed.
Law Offices of Jim O. Whitworth and Jim O. Whitworth for Plaintiff and
Appellant.
Shook, Hardy & Bacon, Amir Nassihi, and M. Kevin Underhill; Sutton &
Murphy, Thomas M. Murphy, and Krisann Kuroso Aquino for Defendants and
Respondents, Toyota Motor Sales USA, Inc. and LHM Corp CTO dba Larry H. Miller
Toyota Corona.
1
Plaintiff Shivashni Sharma appeals a judgment entered after the jury rendered a
defense verdict on her Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.)
claims against the manufacturer and dealer of her Toyota Sienna—defendants and
respondents Toyota Motor Sales, USA Inc. and Larry H. Miller Toyota Corona,
respectively. We conclude the appeal is untimely and therefore dismiss the appeal.
I
FACTS
After experiencing problems with her car’s battery, Sharma sued the manufacturer
and dealer under the Song-Beverly Consumer Warranty Act, asserting a breach of
express warranty claim against the manufacturer and breach of the implied warranty of
merchantability claims against the manufacturer and the dealer. At trial, defendants
presented evidence the Sienna was merchantable and conformed to express warranties
when Sharma purchased it and that the battery problems developed only after she
installed an aftermarket video surveillance system. On July 25, 2019, the jury returned
defense verdicts on all three claims.
The trial court entered judgment on August 27, 2019, and defendants served
Sharma with the notice of entry of judgment on September 5, 2019. About two weeks
later, on September 20, 2019, Sharma filed a notice of intent to move for a new trial.
On September 24, 2019, the trial judge, Riverside Superior Court Judge Ronald
Taylor, notified the parties that he’d set the hearing on Sharma’s motion for October 18,
2019. Sharma failed to appear at the October 18 hearing, and the judge issued an order
2
taking the motion off calendar due to Sharma’s failure to file any moving papers in
support of the motion. That same day, defendants served Sharma with a notice of entry of
the order denying her motion for new trial.
Sharma filed a notice of appeal from the judgment on December 19, 2019.
II
DISCUSSSION
In addition to arguing the merits of Sharma’s appeal, defendants argue the appeal
is untimely. We agree.
“The time for appealing a judgment is jurisdictional; once the deadline expires, the
appellate court has no power to entertain the appeal. [Citation.]” (Van Beurden Ins.
Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51,
56.) California Rules of Court, rule 8.104 contains the general deadlines for filing a
notice of appeal.1 It sets out the following three dates and specifies that the one occurring
“the earliest” applies: (A) 60 days after the superior court clerk serves on the party filing
the notice of appeal the notice of entry of judgment; (B) 60 days after the party filing the
notice of appeal serves or is served by a party with the notice of entry of judgment,
accompanied by proof of service; or (C) 180 days after entry of judgment. (Rule
8.104(a)(1).)
Rule 8.108 contains an extension of the general deadlines, applicable in cases
where a party “files a valid notice of intention to move for a new trial.” (Rule
1 Unlabeled rule citations refer to the California Rules of Court.
3
8.108(b)(1).) In such cases, the time to appeal from the judgment is 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; (B) 30 days after denial of the motion “by operation of law”;
or (C) 180 days after entry of judgment. (Ibid.)
Here, the December 19, 2019 notice of appeal is late under either rule. Under rule
8.104, the deadline for filing the notice of appeal was November 4, 2019, that is, 60 days
after September 5, 2019, the date defendants served Sharma with the notice of entry of
judgment.2 But it’s also at least arguable that rule 8.108 applies to extend the deadline
because Sharma filed a notice of intent to move for new trial. We say arguable because
rule 8.108(b) applies when a party files “a valid notice of intention to move for a new
trial,” and here Sharma never filed the actual motion or moving papers and didn’t appear
at the hearing. In our view, her failure to pursue the motion reasonably supports a
conclusion that her notice of intention to move for new trial was not valid.
We need not decide whether rule 8.108 applies in this case, however, because even
if it did, the notice of appeal is still untimely. Defendants served Sharma with notice of
entry of the denial of the motion for new trial on October 18, 2019, thereby triggering the
30-day deadline in rule 8.108(b)(1)(B). Under that deadline, the last day to file the notice
of appeal was November 18, 2019 (30 days from service of the notice plus 1 day because
November 17 was a Sunday).
2 Code of Civil Procedure section 1013, subdivision (a) provides that when service is effected by mail, “[s]ervice is complete at the time of the deposit,” and here, defendants served Sharma with the document by first-class mail on September 5, 2019.
4
Without supporting argument or legal authority, Sharma argued in her appellate
briefing that the deadline in rule 8.104(a)(1)(C)—180 days after the August 27 entry of
judgment—applies. She argued rule 8.108 doesn’t apply because the judge never actually
denied her motion for new trial, he simply took it off calendar. But as we’ve explained,
rule 8.104 provides that the earliest applicable date serves as the deadline, and here, 60
days after service of the notice of entry of judgment occurred well before 180 days after
entry of judgment.
At oral argument, Sharma changed course and claimed rule 8.108 does govern.
Citing Anderson v. Chikovani (2010) 181 Cal.App.4th 1397 for the first time, she argued
we should apply the 180-day deadline in rule 8.108(b)(1)(C) (as opposed to the 30-day
deadline in rule 8.108(b)(1)(B)) because the judge never actually denied the motion, he
simply took it off calendar. To begin with, Sharma forfeited this argument by failing to
raise it in her briefs. (California Building Industry Assn. v. State Water Resources
Control Bd. (2018) 4 Cal.5th 1032, 1050 [where appellant fails to raise an argument
“until its appellate reply brief,” it “has forfeited the argument”]; Varjabedian v. City of
Madera (1977) 20 Cal.3d 285, 295, fn. 11 [“[o]bvious reasons of fairness militate against
consideration of an issue raised initially in the reply brief” or later].)
In addition, the argument fails on its merits. Were rule 8.108 to apply (an issue we
need not decide), the judge’s order taking Sharma’s motion off calendar would constitute
a denial, and the 30-day deadline would begin to run when defendants served Sharma
with notice of that denial on October 18, 2019. The “formal disposition” of the order is
5
irrelevant, and Sharma’s focus on the absence of the word “denied” in the judge’s order is
misplaced. (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019,
1024, fn. 4.) Where, as here, the “legal effect” of an order taking a motion off calendar is
to deny the motion—as opposed to postpone its resolution for a later hearing—we treat it
as just that, a denial. (Ibid.) Given Sharma’s failure to pursue the new trial motion, the
judge’s decision to take it off calendar “in legal effect . . . constituted a denial of the
motion.” (Ibid.; accord, American Advertising & Sales Co. v. Mid-Western Transport
(1984) 152 Cal.App.3d 875, 877, fn. 1.) Regardless of which rule applies, Sharma’s
appeal is untimely.
III
DISPOSITION
We dismiss the appeal for lack of jurisdiction. Sharma shall bear costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
RAMIREZ P. J.
FIELDS J.
6
AI Brief
AI-generated · verify before citing
Holding. The court dismissed the appeal for lack of jurisdiction because the appellant failed to file a timely notice of appeal under the California Rules of Court.
Issues
Whether the appellant's notice of appeal was filed within the jurisdictional time limits prescribed by the California Rules of Court.
Whether an order taking a motion for a new trial off calendar constitutes a denial for the purpose of triggering the deadline to file a notice of appeal.
Disposition. dismissed
Quotations verified verbatim against the opinion
“We conclude the appeal is untimely and therefore dismiss the appeal.”
“The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal.”