Opinion
C083588
06-19-2018
KIMBERLY MCCAULEY, Plaintiff and Respondent, v. TODD MATTHEW PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2016-70000487-CU-HR-GDS)
Plaintiff Kimberly McCauley obtained a civil harassment restraining order (Code Civ. Proc., § 527.6) against defendant Todd Matthew Phillips. The trial court denied Phillips's motion for a new trial.
Phillips purports to appeal from the order denying his motion for a new trial. We shall dismiss the appeal as untimely.
An order denying a new trial motion is generally not appealable, but we construe a notice of appeal from such an order as an appeal from the underlying judgment where it is reasonably clear appellant intended to appeal from the judgment and respondent would not be misled or prejudiced. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22; Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 819-820 [appeal from denial of motion for new trial after entry of domestic violence restraining order].) Phillips's arguments in his opening brief reveal he intended to appeal from the judgment, as he challenges both the procedure and the merits of granting the restraining order. McCauley addressed the merits of those arguments in her brief; therefore she will not be prejudiced by our treating this appeal as a challenge to the judgment. In addition, McCauley challenges the timeliness of the notice of appeal. Phillips does not respond to the timeliness challenge in his reply brief.
We received and considered the brief of amici curiae Electronic Frontier Foundation and Professors Aaron Caplan and Eugene Volokh in support of Phillips's position on the merits; the amici express no opinion on the procedural infirmities leading to our dismissal of the appeal. --------
Generally, the time for filing a notice of appeal is 60 days after service of the judgment. (Cal. Rules of Court, rule 8.104(a)(1)(A).) Where a motion for a new trial is denied, the time for filing a notice of appeal is extended until 30 days after service of the order. (Cal. Rules of Court, rule 8.108(b)(1)(A).)
The trial court issued the restraining order September 8, 2016, with service the same day. The order denying the motion for a new trial was issued October 7, 2016, and the clerk of the court served the order by mail the same day. Phillips filed the notice of appeal December 5, 2016.
The notice of appeal was not timely under either California Rules of Court, rule 8.104 or rule 8.108. Except in certain cases of public emergency, "no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal." (Cal. Rules of Court, rule 8.104(b).)
DISPOSITION
The appeal is dismissed.
DUARTE, J. We concur: RAYE, P. J. BUTZ, J.