California Court of Appeals, Second District, Third Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. EC052886 William D. Stewart, Judge.
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Fonda & Fraser, Daniel K. Dik and Hollis O. Dyer for Plaintiff and Appellant.
Shaver, Korff & Castronovo, Tod M. Castronovo and Edie L. Brookes for Defendants and Respondents.
KITCHING, Acting P. J.
This appeal principally concerns the jurisdictional deadlines for noticing and ruling on a motion for new trial under Code of Civil Procedure sections 659 and 660. Specifically, we must decide whether service of notice of entry of judgment by the party moving for new trial triggers the statutes’ jurisdictional deadlines. We hold that it does not.
The appeal arises from a rear end automobile accident; however, the issues presented are entirely procedural. The case was tried to a jury, which returned a verdict in favor of plaintiff Keely Maroney (Plaintiff), apportioning 40 percent of the fault to Plaintiff and 60 percent to defendant Asaf Iacobsohn
(Defendant). Following entry of judgment, Defendant moved to recover costs based on Plaintiff’s rejection of an offer to compromise pursuant to section 998. Plaintiff responded with a motion to tax costs, which included a file-stamped copy of the judgment as an exhibit. Twenty-two days later, Plaintiff filed a notice of intention to move for new trial. The notice specified inadequate damages, insufficiency of the evidence, and error in law as grounds for relief.
Defendant opposed the motion on the merits, but also argued Plaintiff’s notice of intention had been filed too late and the trial court’s jurisdiction to rule on the new trial motion had lapsed. In that regard, Defendant maintained the jurisdictional time period began to run when Plaintiff served Defendant with the file-stamped copy of the judgment as an exhibit to her motion to tax costs.
Eighty-two days after Plaintiff served her motion to tax costs, but only 60 days after Plaintiff filed her notice of intention to move for new trial, the trial court held a hearing on the new trial motion. The court expressed its agreement with Defendant that its jurisdiction to rule on the motion had expired. Nevertheless, the court stated it would make “a conditional order granting [the] motion for new trial, ” conditioned on an appellate court ruling its jurisdiction had not lapsed. The court filed a minute order the same day “conditionally grant[ing]” Plaintiff’s new trial motion.
Plaintiff purports to appeal from the order conditionally granting her new trial motion. Defendant also appeals from the order and has filed a motion to dismiss Plaintiff’s appeal on the ground she lacks standing to challenge an order granting her motion. Plaintiff contends she has appellate standing because the conditional grant “effectively denied the motion for new trial” inasmuch as the trial court, “finding that it had lost jurisdiction, ” determined it could not order a new trial without appellate authorization. (Underscore and italics omitted.) We must therefore decide whether the trial court had jurisdiction to rule on the motion and, if so, what the legal effect of the conditional order is.
We conclude the trial court had jurisdiction to rule, but its order conditionally granting a new trial was a nullity with no legal effect. It is settled that the right to a new trial is purely statutory and the power of the trial court to grant a new trial may be exercised only by following the statutory procedure. As we shall explain, the trial court had jurisdiction to rule on the new trial motion, because notice of entry of judgment was never served “on the
moving party” as required by section 660. However, the court was not authorized to enter an order conditioning the grant of a new trial on Plaintiff securing a favorable appellate determination of the jurisdictional issue. Because the order purported to require the parties to seek appellate review in the absence of a final judgment or an enforceable new trial order, we conclude the order was a nullity. Further, because the court did not file a valid order ruling on the new trial motion before its jurisdiction expired, the motion was denied by operation of law. Though we may review a denial by operation of law on an appeal from the judgment, Plaintiff has not supplied an adequate record to establish grounds for reversal. Accordingly, the judgment is affirmed and Defendant’s appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
The underlying automobile accident occurred after Plaintiff made a right turn on a red light and “double parked” in a traffic lane where she waited for her passenger to use an automated teller machine. Defendant testified that he did not see Plaintiff turn into his lane, nor did he see her vehicle’s warning lights until it was too late to avoid a collision. Defendant admitted to some fault for the ...