Eulenberg v. Rodriguez

Filed 7/30/07 Eulenberg v. Rodriguez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This is a collection action in which judgment in the amount of $482,669.68 was entered against defendants Augustine Rodriguez and Petra Rodriguez after a brief court trial. The judgment was entered on March 2, 2006. Plaintiffs counsel served written notice of entry of judgment on March 8, 2006.

Defendants timely filed their notice of intention to move for new trial under Code of Civil Procedure section 659[1] on March 17, 2006. The hearing on the motion was held on May 8, 2006the last day that the trial court retained jurisdiction to rule on the motion under section 660.[2] It appears that the trial court did not determine the motion on that day, resulting in its denial by operation of law under this section.

In accordance with rule 8.104 of the California Rules of Court (formerly rule 2) and section 12a, since notice of entry of judgment was served on March 8, 2006, defendants notice of appeal ordinarily had to have been filed no later than May 8, 2006, May 7, 2006, (the 60th day) being a Sunday. But since defendants filed a valid notice of intention to move for new trial, and that motion was denied by operation of law on May 8, 2006, rule 8.108(a)(2) (formerly rule 3(a)(2)) provided an extension of time within which to file the notice of appeal until 30 days after that denialby June 7, 2006. But defendants notice of appeal was not filed until July 24, 2006, rendering it untimely. Under rule 8.104(b), we may not extend the time for filing the notice of appeal and we are without power to do anything but dismiss the late appeal.[3]

The trial court in this case did sign a written order denying the motion for new trial on July 7, 2006, and that order was filed on July 11, 2006. Defendants contend that their notice of appeal filed on July 24, 2006, was therefore timely under rule 8.108(a)(1), which provides for a 30-day extension for the filing of the notice of appeal from the date that the order denying a motion for new trial is served. But that the court signed such an order on July 7th does not change our analysis because the court was without power to rule on the motion after May 8, 2006, when it was denied by operation of law under section 660. Accordingly, rule 8.108(a)(1) does not apply here. Moreover, under rule 8.108(a), the time for filing the notice of appeal is extended until the earliest of three alternate events. In this case, the earliest of those events was 30 days from the denial of the new trial motion by operation of law on May 8, 2006, which was June 7, 2006. (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 118 Cal.App.4th 1031, 1036 [if trial court fails to rule within 60-day period, new trial motion is deemed denied by operation of law and 30-day appeal extension operates from that deemed denial].)

Defendants further contend that under section 660, a new trial motion is not denied by operation of law [60 days from service of notice of entry of judgment] if the order ruling on the motion had not yet been signed by the judge and filed with the clerk. Their misreading of the statute ignores its plain language, which clearly provides that a new trial motion is deemed denied by operation of law in the absence of its timely determination within the meaning of this section. According to the clear language of the statute, if the court has not affirmatively determined the motionby the entry of a ruling in the permanent minutes or the filing of a written orderwithin 60 days from service of notice of entry of judgment, or that period as extended by section 12a, the motion is then automatically denied by operation of law and the court is thereafter without power to rule on it. There is no extension of the jurisdictional period for the court to sign, or for the clerk to file, a formal order. In other words, the effect of a denial by operation of law on the 60th day cannot be avoided by the court later signing, or the clerk filing, a written order ruling on the motion. The time limits of section 660 are mandatory and jurisdictional, and an order made after the 60-day period purporting to rule on a motion for new trial is in excess of the courts jurisdiction and void. [Citations.] (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101; see also Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 64.) Accordingly, the court in this case was without power to sign an order denying defendants motion for new trial on July 7, 2006, because it lost jurisdiction to do so after May 8, 2006, when the motion was denied by operation of law.[4]

DISPOSITION

The notice of appeal was accordingly untimely and the appeal is hereby dismissed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J.

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[1] Further unspecified statutory references are to the Code of Civil Procedure.

[2] Section 660, paragraph 3 provides in pertinent part: Except as otherwise provided in Section 12a of this code [concerning extension of time until next business day when the last day to perform an act falls on a weekend or holiday], the power of the court to rule on a motion for new trial shall expire . . . 60 days from and after service on the moving party by any party of written notice of the entry of judgment, . . . 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. A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk. The entry of a new trial order in the permanent minutes of the court shall constitute a determination of the motion even though such minute order as entered expressly directs that a written order be prepared, signed and filed.

[3] We asked defendants/appellants to show cause by supplemental letter brief why the appeal should not be dismissed for its untimeliness and gave respondents the opportunity to file a supplemental letter brief on the same issue. Both sides filed briefs in response.

[4] It is possible that the court actually determined the motion within the meaning of section 660 on May 8, 2006, by entry of its denial in the permanent minutes but we are not in a position to tell because the record does not include the minutes. In any event, whether the motion was actually determined by entry of an order in the minutes on May 8, 2006, or denied by operation of law on the same date, the notice of appeal would still have to have been filed by the same dateJune 7, 2006.