Pop quiz: How much time do you get to file a motion for attorneys' fees (or a notice of appeal) after an order denying a new trial motion?
a. 30 days
b. 60 days after notice of entry of judgment
c. 180 days after entry of judgment
d. It depends on how order denying the new trial motion was served.
If you answered "it depends" then you are correct, as helpfully explained in Gallop v. Duval (D2d2 Sep. 2, 2021) 2021 WL 4077847 no. B308531 (nonpub. opn.).
There, the plaintiff appellant obtained a judgment for elder abuse (the defendants had tried to collect some quarter-of-a-million dollars against the appellant for having sold 100 pairs of "luxury eyeglasses"). Judgment was entered, with a notice of entry served by the clerk a few days later on November 18, 2019. Both sides filed motions for new trial, which were denied on December 9, 2019.
Importantly, no one served a copy of the order denying the motions for new trial. No one served a notice of entry either. The only thing served was a "notice of ruling." As Rules of Court rule 8.104 makes clear, a "notice of ruling" has no effect on the timing of a notice of appeal. And thus no effect on the timing of a notice of appeal, either.
And the time to file a motion for attorney fees likewise is to be filed and served “within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case[.]” (Rule 3.1702(b)(1).)
So the trial court erred when it denied the appellant's attorney fees motion, filed February 5, 2020 as untimely. True, that motion was more than 60 days after the notice of entry of judgment. Also true, that motion was more than 30 days after the notice of "ruling" of denial of the new trial motion. But the Second District Court of Appeal urged litigants and trial courts to pay close attention to rule 8.108: the time to appeal is extended after the denial of a new trial motion to the earliest of
The new trial denial order was not served. A notice of entry was not served. The denial was not by operation of law. By process of elimination, the time to appeal was extended to 180 days after entry of the November judgment. The February motion was timely.
You might be asking: Why is there a difference between a "notice of entry" and a "notice of ruling"? Good question. The answer is: Because the courts say so. Case law establishes that “serving a notice of ruling is not the same as serving a copy of [an] order or a notice of entry of [that] order, as contemplated by the rules governing the timeliness of appeals. [Citation.]” (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 399 [concluding that a notice of ruling of a denial of a motion to vacate the judgment did not trigger the 30-day time period under rule 8.108(c)]; Gassner v. Stasa (2018) 30 Cal.App.5th 346, 356 [because a notice of ruling “was not entitled ‘Notice of Entry' and did not attach a file-stamped copy of the trial court's minute order, it did not trigger the 60-day deadline to appeal under rule 8.104(a)(1)(B)”]; Anderson v. Chikovani (2010) 181 Cal.App.4th 1397, 1398-1399 [“[W]here a party files a valid motion for new trial, and the trial court issues a timely order denying that motion, but no one serves the order or notice of entry of that order, then the applicable deadline for filing the notice of appeal from the judgment is 180 days”].)
Also refer to the important Supreme Court opinion on this in Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, which cites with approval an earlier case stating, "It might seem that the difference between a ‘notice of ruling’ and a ‘notice of entry’ is hypertechnical. In another context it might be.”
Denial of attorney fee motion reversed.
(Hat tip to the California Attorneys Fees blog for noting this case.)
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.