From Casetext: Smarter Legal Research

Powell v. Merck & Co., Inc.

California Court of Appeals, Fifth District
Jul 23, 2008
No. F051492 (Cal. Ct. App. Jul. 23, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Merced County No. 145024, Ronald W. Hansen, Judge.

Law Office of David L. Axelrod and David L. Axelrod for Plaintiffs and Appellants.

Gallawa Brown Kroesch, Douglas A. Kroesch and Walter E. Gallawa for Defendants and Respondents.


OPINION

HILL, J.

Plaintiffs appeal from the judgment against them entered after jury trial and from the order denying their motion for new trial. Defendants moved to dismiss the appeal as untimely filed. We grant the motion and dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In this action, plaintiffs allege that David Powell was injured by exposure to toxic chemicals at a worksite owned and operated by defendants. The action was tried by a jury. On May 5, 2006, the jury returned a special verdict in which it found defendants were not negligent. On May 15, 2006, the court entered judgment on the special verdict. On May 24, 2006, other defendants, no longer parties to this appeal, served a notice of entry of judgment on plaintiffs. On June 7, 2006, plaintiffs filed a notice of intention to move for new trial. The motion for new trial was heard and denied on August 31, 2006. Plaintiffs filed their notice of appeal on October 18, 2006.

Plaintiffs contend the trial court erred in granting defendants’ untimely motion in limine and in limiting the testimony of their non-retained expert witness. They also challenge the trial court’s failure to give their requested jury instruction on strict liability for ultra-hazardous activities. After the record was filed, defendants filed a motion to dismiss the appeal on the ground the notice of appeal was not timely filed. Ruling on the motion was deferred. Defendants filed their brief, presenting opposition on the merits and again arguing that the appeal was untimely and must be dismissed by this court.

DISCUSSION

I. Timeliness of notice of appeal

“Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

“(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed;

“(2) 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; or

“(3) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.104(a).)

On May 24, 2006, plaintiffs were served by another party with a notice of entry of judgment, which had a copy of the file-stamped judgment attached and was accompanied by a proof of service. Under California Rules of Court, rule 8.104, unless some exception applied, service of that notice of entry of judgment commenced the 60-day period for filing a notice of appeal of the judgment. Rule 8.108 provides an exception:

“If any party serves and files a valid notice of intention to move for a new trial, the time to appeal from the judgment is extended for all parties as follows:

“(1) If the motion is denied, until the earliest of:

“(A) 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;

“(B) 30 days after denial of the motion by operation of law; or

“(C) 180 days after entry of judgment.” (Cal. Rules of Court, rule 8.108(b).)

Plaintiffs filed their notice of intention to move for a new trial on June 7, 2006. The court had 60 days, running from service of notice of entry of judgment, within which to rule on the motion. (Code Civ. Proc., § 660.) A motion not determined within the 60-day period is effectively denied “without further order of the court.” (Ibid.) Consequently, the trial court had until July 24, 2006, to grant or deny plaintiffs’ motion for a new trial; if it failed to rule on the motion by that date, the motion was deemed denied on July 24, 2006. The trial court did not hear and rule on the motion until August 31, 2006. In denying the motion, the trial court noted that it had lost jurisdiction to grant the motion. Because the trial court did not act within the 60-day period, plaintiffs’ motion for new trial was deemed denied by operation of law on July 24, 2006.

Under California Rules of Court, rule 8.108(b), because plaintiffs filed a motion for new trial, their time for filing a notice of appeal from the judgment was extended until “30 days after denial of the motion by operation of law,” that is, until 30 days after July 24, 2006. Plaintiffs’ last day to file a timely notice of appeal was August 23, 2006. Plaintiffs’ notice of appeal was not filed until October 18, 2006, almost two months too late.

“Except as provided in rule 8.66 [dealing with public emergencies], 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).) “The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal. [Citation.]” (Van Beurden Ins. Services., Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) “In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations].… If it appears that the appeal was not taken within the 60-day period, the court has no discretion but must dismiss the appeal of its own motion even if no objection is made. [Citations.]” (Estate of Hanley (1943) 23 Cal.2d 120, 123.)

Plaintiffs’ argument that defendants have waived dismissal by delaying their motion to dismiss until the record was filed is without merit. Because plaintiffs’ notice of appeal was not timely filed, this court has jurisdiction only to dismiss the appeal, regardless whether defendants immediately objected or delayed until the record was filed.

II. Alleged Ineffectiveness of Notice of Entry of Judgment

Plaintiffs contend the May 24, 2006, notice of entry of judgment was ineffective to commence the running of the time to appeal, because there were errors in the judgment of which it gave notice. They contend that an effective notice of entry of judgment was never given, so the time for filing a notice of appeal was the 180-day period running from entry of the judgment. (Cal. Rules of Court, rule 8.104(a)(3).)

On May 5, 2006, the jury returned a special verdict in which it answered “no” to Question No. 1: “Was Merck & Co., Inc. or BAC Pritchard, Inc. or Amstead Industries Incorporated or Ted Metzger negligent?” It answered none of the other questions on the special verdict form.

On May 15, 2006, the court entered judgment on the special verdict. The judgment quoted the negligence question above and its answer, then stated:

“The jury was thereafter polled at the request of Plaintiffs’ counsel. In that regard, with respect to Question No. 1, twelve jurors answered that ‘Yes’ was their answer to Question No. 1.… [¶] In accordance with the above Special Verdict, the Court hereby enters Judgment against Plaintiffs DAVID POWELL and SHIRLEY POWELL and in favor of defendants….”

Notice of entry of this judgment was served on plaintiffs by mailing to them a copy of the file-stamped judgment, together with a document entitled “Notice of Entry.” Plaintiffs do not assert that the notice of entry of judgment itself was inadequate to give them notice of entry of the judgment; they do not contend the notice of entry was improperly served or was procedurally deficient in some other respect. Rather, their challenge focuses on errors in the judgment.

Plaintiffs contend the judgment is “defective” because it contains inconsistent statements concerning the jury’s verdict, i.e., first stating the jury answered “no” to question No. 1, then stating that, when polled, the jurors indicated “yes” was their answer to question 1. Plaintiffs assert that, “[s]ince the form of judgment was not valid, neither can the ‘Notice of Entry’ be deemed valid.” From this they conclude no valid notice of entry of judgment was served, so the applicable time period for filing a notice of appeal is the 180-day period running from entry of judgment. Plaintiffs cite no authority for their position that notice of entry of a defective judgment is ineffective to commence the running of the time to appeal.

A judgment containing clerical errors may be corrected. “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed.” (Code Civ. Proc., § 473, subd. (d).) “A clerical error in a judgment is an inadvertent one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion. [Citation.] ‘The test is simply whether the challenged judgment was made or entered inadvertently (clerical error) or advertently (judicial error).’ [Citation.]” (Bowden v. Green (1982) 128 Cal.App.3d 65, 71.)

The judgment erroneously states that, when the jury was polled, “twelve jurors answered that ‘Yes’ was their answer to Question No. 1.” When it polled the jury, the trial court actually asked the jurors “if, in fact, this is your verdict and if it is, in fact, your true verdict.” To this the jurors all answered “yes.” Thus, when they were polled, the jurors were not asked for their answer to question 1; they were asked whether the verdict answering “no” to that question was their “true verdict.”

“[C]lerical errors in a judgment, where they are shown by the record, may be corrected at any time. [Citation.] A court of general jurisdiction has power after judgment, pending an appeal and even after affirmance of the judgment on appeal, and regardless of lapse of time, to correct clerical errors whether made by the court, clerk or counsel so that its records will conform to and speak the truth. [Citation.]” (Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 506.) Consequently, a judgment containing a clerical error is not void, but is subject to correction. A notice of entry of such a judgment is not ineffective simply because the judgment itself contains errors.

Further, even if a judgment is void, an appeal of that judgment must be timely filed. “‘If a judgment or order meets the statutory test of appealability, i.e., final judgment, or order expressly made appealable, an appeal lies even though it is void. Obviously the plaintiff is as much aggrieved by a wholly void judgment or order as he is by one which is merely erroneous; and he should have the right to use, and should be encouraged to use, the normal method of review by appeal, instead of certiorari, motion or action for equitable relief, or collateral attack. This general principle of appealability of a void judgment is well established.’ [Citation.] Such an appealable void judgment (as assumed) is manifestly subject to the timeliness requirement of notices of appeal.” (Conservatorship of Romo (1987) 190 Cal.App.3d 279, 283.) Under California Rules of Court, rule 8.104, service of notice of entry of a judgment, even a void judgment, commences the time for filing a notice of appeal. Thus, plaintiffs’ contention that an error in the judgment somehow invalidated the notice of entry of judgment is without merit. The notice of entry of judgment served on plaintiff on May 24, 2006, was effective to commence the period for filing a notice of appeal.

III. August 31, 2006, Minute Order as Notice of Entry of Judgment

Plaintiffs assert that the first “cogent and intelligible written notice” plaintiffs received that they had “lost the case” was the trial court’s August 31, 2006, minute order denying the motion for new trial. They argue that, because this was the first “valid and effective written notice of the adverse judgment” against them, they had 60 days from August 31, 2006, within which to file their notice of appeal from the judgment, and their notice of appeal filed on October 18, 2006, was therefore timely.

The 60-day period for filing a notice of appeal runs from mailing by the court clerk or service by a party of “a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment.” (Cal. Rules of Court, rule 8.104(a)(1), (2).) The August 31, 2006, minute order was not entitled “‘Notice of Entry’ of judgment,” nor was it a file-stamped copy of the judgment. (Ibid.) It does not indicate that a judgment was entered, much less what the judgment was, in whose favor or against whom it was entered, or when it was entered. It was wholly ineffective as a notice of entry of judgment. In any event, notice of entry of judgment had already been served on May 24, 2006. Service of a second notice of entry could not begin a new 60-day appeal period.

IV. Appeal of Denial of Motion for New Trial

Plaintiffs contend their motion for new trial was denied on August 31, 2006, and the notice of appeal was filed within 60 days thereafter. They argue that the notice of appeal was timely as an appeal of the denial of their motion for new trial. First, plaintiffs’ motion for new trial was denied by operation of law on July 24, 2006, more than 60 days before their notice of appeal was filed. Second, “an order denying a motion for new trial is not independently appealable and may be reviewed only on appeal from the underlying judgment.” (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) Plaintiffs’ appeal of the judgment was not timely filed, and the denial of their motion for new trial is not separately appealable. We have no jurisdiction to consider plaintiffs’ untimely appeal.

DISPOSITION

Defendants’ motion to dismiss the appeal is granted and the appeal is dismissed. Defendants are awarded their costs on appeal.

WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.


Summaries of

Powell v. Merck & Co., Inc.

California Court of Appeals, Fifth District
Jul 23, 2008
No. F051492 (Cal. Ct. App. Jul. 23, 2008)
Case details for

Powell v. Merck & Co., Inc.

Case Details

Full title:DAVID POWELL et al., Plaintiffs and Appellants, v. MERCK & COMPANY, INC…

Court:California Court of Appeals, Fifth District

Date published: Jul 23, 2008

Citations

No. F051492 (Cal. Ct. App. Jul. 23, 2008)