A 180-Day Deadline for an Appeal Applies Where a Motion is Denied but No Notice Was Served

Plaintiffs sued defendant for medical malpractice in the Orange County Superior Court. The court entered judgment for defendant on March 20th and denied plaintiffs’ motion for a new trial. Defendant then served notice of entry of that judgment on April 6th. On April 20th plaintiffs timely served their notice of intent to file a motion for a new trial. However the clerk of court failed to mail the order entered, and no party served notice of the entry either. Plaintiffs filed their appeal notice on July 28th. Defendant moved to dismiss the appeal for lack of jurisdiction.

How does nonservice of an order denying a motion for a new trial affect time extensions allowed by California Rules of Court? The Code of Civil Procedure section 660 describes the court’s power to act  on a motion for new trial. Section 660 states that the power to rule on a new trial motion expires 60 days after service on the moving party. Rule 8.108(b) of the California Rules of Court provides the extended filing deadlines that a new trial motion triggers in subsections (b)(1)(A)-(C).

The filing extension in subsection (b)(1)(A) applies 30 days after service of the order denying the motion. No order was served so that subsection did not apply. Next, subsection (b)(1)(B) applies “30 days after denial of the motion by operation of law.” The defendant’s new trial motion was not denied by operation of law, so subsection (b)(1)(B) also did not apply. Finally, subsection (b)(1)(C) is available by default and applies after “180 days after entry of judgment.” Per section 660 the entry of a new trial order in the court’s permanent minutes is a determination of the motion.  Thus, when the court applied subsection (b)(1)(C), the notice of appeal that plaintiffs filed 113 days after entry of judgment was timely.  The deadline for filing an appeal is 180 days when the trial court issues a timely order denying the motion for new trial, but nobody serves the order, or notice of entry of said order. Therefore plaintiffs met the 180-day deadline.

Anderson v. Chikovani (2010) 181 Cal.App.4th 1397