Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-06-450670
Kline, P.J.
Defendant and respondent Peter Weber, M.D., moves unopposed to dismiss plaintiff’s appeal as untimely filed. He supports his motion with a request for judicial notice of the record below. The request for judicial notice is granted. (Evid. Code, §§ 452, subd. (d), 453, 459.) The record supports his motion. Consequently, we are without jurisdiction to entertain the appeal. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:4, p. 3-1.)
BACKGROUND
Appellant Quon sued respondent for medical malpractice on March 27, 2006. The trial court granted respondent summary judgment by order filed on June 29, 2007. Judgment was entered thereupon on July 12, 2007. Respondent served notice of entry of judgment on plaintiff’s attorney on August 3, 2007.
Appellant subsequently moved for a new trial, and the court denied the motion on October 1, 2007, in an order filed October 2, 2007. Notice of entry of the order denying the new trial motion was served on appellant on October 2, 2007.
On November 27, 2007, appellant filed a notice of appeal from the order granting summary judgment, the judgment, and the order denying the new trial motion.
An order denying a new trial is not directly appealable, however, it is reviewable on appeal from the underlying judgment. (Eisenberg et al., Civil Appeals & Writs, supra, ¶ 2:143, p. 2-72.5.)
DISCUSSION
Service of the notice of entry of judgment upon appellant on August 3, 2007 triggered the 60-day deadline for filing an appeal. (Cal. Rules of Court, rule 8.104; Eisenberg et al., Civil Appeals & Writs, supra, ¶ 3:11, p. 3-8.) Pursuant to rule 8.108, the deadline in this case was extended by appellant’s filing of a motion for new trial to 30 days after respondent served the notice of the order denying the motion. Consequently, appellant had until November 3, 2007 to file a timely appeal. Her appeal, filed on November 27, 2007, was too late.
California Rules of Court, rule 8.108(a) provides in relevant part: “If any party serves and files a valid notice of intention to move for a new trial and the motion is denied, the time to appeal from the judgment is extended for all parties 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 . . . .”
DISPOSITION
We hereby dismiss this appeal as untimely. Respondent shall recover his costs in connection with the motion to dismiss.
We concur: Lambden, J. Richman, J.