Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC09179, James P. Gray, Judge.
David Fink, in pro. per., for Plaintiff and Appellant.
Prenovost, Normandin, Bergh & Dawe, Michael G. Dawe and Lauren M. Harrelson for Defendants and Appellants.
OPINION
IKOLA, J.
Plaintiff David Fink appeals from a judgment entered in favor of defendants Warren and Kimberly Kirwin. We dismiss the appeal as untimely.
FACTS
In August 2005, plaintiff filed a complaint against defendants for theft, breach of contract, and fraud. Although the complaint is not part of the record, the parties agree it alleged defendants made false representations on a credit application to enable them to purchase merchandise from plaintiff’s assignor. On January 9, 2007, following a bench trial, the court entered judgment for defendants.
On January 18, 2007, defendants filed and served written notice of entry of judgment. On February 1, 2007, plaintiff filed a motion for new trial. At a hearing on April 5, 2007, the court denied the motion. On May 1, 2007, the court issued a written order denying the motion.
Plaintiff filed a notice of appeal on May 22, 2007. We invited the parties to file letter briefs on the timeliness of the appeal, but they declined to do so.
Plaintiff’s operative notice of appeal states he is appealing “the superior court’s judgment after trial in this case” and various pretrial orders. In his opening brief, however, plaintiff contends the court’s denial of his new trial motion is a “final appealable order.” Plaintiff is mistaken. An order denying a motion for new trial is not an appealable order. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18-19.) To the extent plaintiff appeals from the denial of his new trial motion, we have no jurisdiction to consider that appeal. (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819 [attempted appeal from order denying new trial cannot be “saved” when underlying judgment is no longer appealable].)
DISCUSSION
The most common deadline for filing a notice of appeal is “60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service.” (Cal. Rules of Court, rule 8.104(a)(2); see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 3:11 to 3:12, p. 3-8.) This 60-day deadline has an exception. Pursuant to California Rules of Court, rule 8.108(a)(1) the trial court’s denial of a timely served and filed motion for new trial extends the time to appeal “until the earliest of: [¶] (1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (2) 30 days after denial of the motion by operation of law; or [¶] (3) 180 days after entry of judgment.”
“Denial of a new trial motion by operation of law occurs in one of two ways: (1) By expiration of 60 days from the date of the notice of entry of judgment (a jurisdictional limitation); or (2) by the entry of the new trial order in the permanent minutes of the court.” (Miller v. United Services Automobile Assn. (1989) 213 Cal.App.3d 222, 226; see also Code Civ. Proc. § 660 [“the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk . . . or 60 days from and after service on the moving party by any party of written notice of the entry of judgment”].) Therefore, “[i]f the trial court fails to rule on [a new trial] motion within the applicable 60-day period, the motion is denied by operation of law [citation] and the 30-day appeal extension runs from the date of that ‘deemed’ denial.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 3:67, pp. 3-28, 3-29.)
As discussed above, defendants served written notice of entry of judgment on January 18, 2007. Accordingly, the court had until March 19, 2007 — 60 days from the service of written notice of entry of judgment — to rule on plaintiff’s new trial motion. (Code Civ. Proc. § 660.) For unexplained reasons, the court did not rule on the motion until April 5, 2007. Under Code of Civil Procedure section 660, the ruling was untimely and the motion for new trial was denied by operation of law on March 19, 2007. (ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 118 Cal.App.4th 1031, 1036; Siegal v. Superior Court (1968) 68 Cal.2d 97, 101; Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1486.)
Pursuant to California Rules of Court, rule 8.108(a)(2) plaintiff had until April 18, 2007 — “30 days after denial of the motion by operation of law” — to file a notice of appeal. He did not file a notice of appeal until May 22, 2007. As a result, the appeal is untimely and we have no choice but to dismiss it. (Cal. Rules of Court, rule 8.104(b) [“If a notice of appeal is filed late, the reviewing court must dismiss the appeal”]; City of Los Angeles v. Glair, supra, 153 Cal.App.4th at pp. 818-819 [court of appeal had no jurisdiction to consider late-filed appeal; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 “mere self-representation is not a ground for exceptionally lenient treatment. Except whena particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation”]; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056 [propia persona status does not exempt litigant from rules of procedure].)
DISPOSITION
The appeal from the judgment is dismissed as untimely. In the interests of justice, each party is to bear its own costs.
WE CONCUR: O’LEARY, J., ACTING P. J., MOORE