Parker v. Mad River Community Hosp.
Filed 11/12/08 Parker v. Mad River Community Hosp. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
DIANE PARKER et al., Plaintiffs and Appellants, v. MAD RIVER COMMUNITY HOSPITAL et al., Defendants and Respondents. | A120320 (Humboldt County Super. Ct. No. DR060523) |
The trial court granted summary judgment to respondents Mad River Community Hospital and Robert Lock, M.D., on the complaint for professional negligence filed by appellants Diane and David Parker. After their motion for new trial was denied, the Parkers appealed. They challenge the propriety of both the order granting summary judgment and the order denying their motion for new trial in their appeal. Neither of these orders is appealable. Even if we liberally construe the December 28, 2007[1]notice of appeal to intend an appeal from the judgments entered in favor of the hospital and Dr. Lock, the notice of appeal would be untimely. Thus, we must dismiss the purported appeal.
I. APPEALABILITY
Neither the hospital nor Dr. Lock raises the threshold issue of whether the orders from which the Parkers purport to appeal are appealable orders. As the issue goes to our appellate jurisdiction, we consider it on our own motion. (Olson v. Cory (1983) 35 Cal.3d 390, 398; see Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696; see Code Civ. Proc.,[2] 904.1.)
The Parkers December 28 notice of appeal purports to appeal from the trial courts September 18 and September 25 orders granting summary judgment to the hospital and Dr. Lock, respectively, and from the November 26 order denying their motion for new trial. Neither of these are appealable orders. An order granting summary judgment is not an appealable order. (Islander Yachts, Inc. v. One Freeport 36-Foot Vessel (1985) 173 Cal.App.3d 1081, 1086, fn. 6.) One may only appeal from a judgment entered after summary judgment is granted. (See 904.1, subd. (a)(1); see also 9 Witkin, Cal. Procedure (4th ed. 1997)Appeal, 103, pp. 166-167.) Likewise, an order denying a motion for new trial is not independently appealable, although the Parkers may challenge that denial on appeal from the underlying judgment. (See Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1187, fn. 2, disapproved on other grounds in Trope v. Katz (1995) 11 Cal.4th 274, 292; see also 904.1, subd. (a)(4) [order granting new trial is appealable].)
The Parkers notice of appeal does not purport to appeal from either the September 18 judgment for the hospital or the September 27 judgment in favor of Dr. Lock. We have no jurisdiction to consider the merits of an appeal from the nonappealable orders cited in the notice of appeal. In such circumstances, we typically dismiss the purported appeal. (See Beazell v. Schrader (1963)59 Cal.2d 577, 579-580 [nonappealable order sustaining demurrer without leave to amend].)
The California Rules of Court[3]instruct us to liberally construe a notice of appeal. (Rule 8.100(a)(2).) As we shall see, even if we liberally construe the notice of appeal and assume arguendo that it reflects an intent to appeal from the judgments entered on behalf of the hospital and Dr. Lock, that notice of appeal from both of these judgments would be untimely.
II. TIMELINESS OF APPEAL
A. Legal Standards
Normally, a notice of appeal must be filed within 60 days of mailing of the notice of entry of judgment. (Rule 8.104(a)(1).) However, when a valid notice of intention to move for a new trial is filed, then the time for filing the notice of appeal is extended until 30 days after either entry of the order denying new trial or denial of those motions by operation of law, whichever is earlier. (Rule 8.108(b)(1)(A), (B).)
To qualify for the 30-day extension of the normal period within which to file a timely notice of appeal from a judgment, the appellant must have served and filed a valid notice of intention to move for new trial. (Rules 8.104(a), 8.108(b); see In re Marriage of Patscheck (1986) 180 Cal.App.3d 800, 802.) A valid notice of intent must be filed within 15 days of mailing of the notice of entry of judgment. ( 659, subd. 2.) The record on appeal that the Parkers designated did not contain a copy of the notice of intent to file a motion for new trial, but their counsel provided one to us at our request. The notice of intent was filed in the trial court on September 28.
As the timeliness of the notice of appeal turns on different judgments entered on different dates, we consider the timeliness of the December 28 notice of appeal separately as it pertains to the judgments entered in favor of the hospital and Dr. Lock.[4]
B. Appeal of Hospital Judgment
The notice of entry of the September 18 judgment in favor of the hospital was mailed to the Parkers on September 21. On September 28within the 15-day time periodthe Parkers filed a valid notice of intent to move for a new trial. (See 659, subd. 2.) The time for ruling on the Parkers motion for new trial expired 60 days after the September 21 mailing of notice of entry of judgment in favor of the hospitalon November 20. ( 12, 660.) Although the trial courts ruling denying the motion for new trial was not filed until November 26, the motion was denied by operation of law on November 20 when the 60-day period expired.[5] (See 660.)
Thus, the 30-day extension period of the normal time for filing a timely notice of appeal began to run on November 20, expiring on December 20. (See rules 8.104(a)(1), 8.108(b)(1)(B).) Even if we liberally construed the December 28 notice of appeal as an attempt to state an appeal from the judgment in favor of the hospital, that notice of appeal would have been untimely filed. (See rules 8.100(a)(1), 8.108(b)(1)(B).) Under these circumstances, we have no jurisdiction to consider the merits of the purported appeal from the judgment in favor of the hospital, but must dismiss it. (See Ramirez v. Moran (1988) 201 Cal.App.3d 431, 437-438.)
C. Appeal of Doctor Judgment
A somewhat different analysis is required to determine the timeliness of the notice of appeal as it pertains to the judgment for Dr. Lock, but the result is the same. The notice of entry of judgment in favor of Dr. Lock was mailed to the Parkers on October 5. On September 28before the Lock judgment was formally enteredthe Parkers filed a valid notice of intent to move for a new trial.[6] (See 659, subd. 2.) The time for ruling on the Parkers motion for new trial expired 60 days after the October 5 mailing of notice of entry of judgment in favor of Dr. Locksometime in early December. ( 12, 660.) The trial court actually filed its ruling denying the motion for new trial on November 26. The clerk mailed a notice of denial of their new trial motion to the Parkers on that same date.
The 30-day extension of the normal time for filing a timely notice of appeal from the Lock judgment began to run on the date of mailingNovember 26and expired on December 26. (See rule 8.108(b)(1)(A).) Thus, even if we construed the December 28 notice of appeal as an appeal from the Lock judgment, it would have been untimely filed. (See rules 8.100(a)(1), 8.104(b)(1)(A).) We have no jurisdiction to take any act other than to dismiss the purported appeal from the judgment in favor of Dr. Lock. (See Ramirez v. Moran, supra, 201 Cal.App.3d at pp. 437-438.)
The purported appeal is dismissed.
_________________________
Reardon, Acting P.J.
We concur:
_________________________
Sepulveda, J.
_________________________
Rivera, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com
[1]All dates refer to the 2007 calendar year unless otherwise indicated.
[2]All statutory references are to the Code of Civil Procedure.
[3]All rule references are to the California Rules of Court.
[4]One issue that the Parkers raised in their appeal is whether the entries of judgments were procedurally proper. We do not determine this issue, but note that even if a judgment is void on its face, a notice of appeal from that judgment must nevertheless be filed in a timely manner. (See Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 701; Merced Bank v. Rosenthal (1893) 99 Cal. 39, 43; Conservatorship of Romo (1987)190 Cal.App.3d 279, 283; see also 9 Witkin, Cal. Procedure, supra, Appeal, 19, pp. 79-81.)
[5]The trial court signed the ruling on November 15within the 60-day periodbut it was not filed or served by mail on the Parkers until November 26.
[6]We assume arguendo that the premature notice of intent to file a motion for new trial from the Lock judgment was valid.
