2010 California Rules of Court — Rule 8.108. Extending the time to appeal

2010 California Rules of Court

Rule 8.108. Extending the time to appeal

(a) Extension of time

This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal. If the normal time to appeal stated in rule 8.104(a) is longer than the time provided in this rule, the time to appeal stated in rule 8.104(a) governs.

(Subd (a) adopted effective January 1, 2008.)

(b) Motion for new trial

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.

(2) If any party serves an acceptance of a conditionally ordered additur or remittitur of damages pursuant to a trial court finding of excessive or inadequate damages, until 30 days after the date the party serves the acceptance.

(Subd (b) amended and relettered effective January 1, 2008; adopted as subd (a).)

(c) Motion to vacate judgment

If, within the time prescribed by rule 8.104 to appeal from the judgment, any party serves and files a valid notice of intention to move-or a valid motion-to vacate the judgment, 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;

(2) 90 days after the first notice of intention to move-or motion-is filed; or

(3) 180 days after entry of judgment.

(Subd (c) relettered effective January 1, 2008; adopted as subd (b); previously amended effective January 1, 2007.)

(d) Motion for judgment notwithstanding the verdict

(1) If any party serves and files a valid motion for judgment notwithstanding the verdict and the motion is denied, the time to appeal from the judgment is extended for all parties 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.

(2) Unless extended by (e)(2), the time to appeal from an order denying a motion for judgment notwithstanding the verdict is governed by rule 8.104.

(Subd (d) relettered effective January 1, 2008; adopted as subd (c); previously amended effective January 1, 2007.)

(e) Motion to reconsider appealable order

If any party serves and files a valid motion to reconsider an appealable order under Code of Civil Procedure section 1008, subdivision (a), the time to appeal from that order 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;

(2) 90 days after the first motion to reconsider is filed; or

(3) 180 days after entry of the appealable order.

(Subd (e) relettered effective January 1, 2008; adopted as subd (d).)

(f) Cross-appeal

(1) If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal.

(2) If an appellant timely appeals from an order granting a motion for new trial, an order granting-within 150 days after entry of judgment-a motion to vacate the judgment, or a judgment notwithstanding the verdict, the time for any other party to appeal from the original judgment or from an order denying a motion for judgment notwithstanding the verdict is extended until 20 days after the clerk mails notification of the first appeal.

(Subd (f) relettered effective January 1, 2008; adopted as subd (e).)

(g) Showing date of order or notice; proof of service

An order or notice mailed by the clerk under this rule must show the date it was mailed. An order or notice served by a party must be accompanied by proof of service.

(Subd (g) relettered effective January 1, 2008; adopted as subd (f).)

Rule 8.108 amended effective January 1, 2008; repealed and adopted as rule 3 effective January 1, 2002; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivisions (b)-(e) operate only when a party serves and files a “valid” motion or notice of intent to move for the relief in question. As used in these provisions, the word “valid” means only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious. For example, under the rule a timely new trial motion on the ground of excessive damages (Code Civ. Proc., § 657) extends the time to appeal from the judgment even if the trial court ultimately determines the damages were not excessive. Similarly, a timely motion to reconsider (id., § 1008) extends the time to appeal from an appealable order for which reconsideration was sought even if the trial court ultimately determines the motion was not “based upon new or different facts, circumstances, or law,” as subdivision (a) of section 1008 requires.

Subdivision (b). Subdivision (b)(1) provides that the denial of a motion for new trial triggers a 30-day extension of the time to appeal from the judgment beginning on the date that the superior court clerk mails, or a party serves, either the order of denial or a notice of entry of that order. This provision is intended to eliminate a trap for litigants and to make the rule consistent with the primary rule on the time to appeal from the judgment (rule 8.104(a)).

Subdivision (c). The Code of Civil Procedure provides two distinct statutory motions to vacate a judgment: (1) a motion to vacate a judgment and enter “another and different judgment” because of judicial error (id., § 663), which requires a notice of intention to move to vacate (id., § 663a); and (2) a motion to vacate a judgment because of mistake, inadvertence, surprise, or neglect, which requires a motion to vacate but not a notice of intention to so move (id., § 473, subd. (b)). The courts also recognize certain nonstatutory motions to vacate a judgment, e.g., when the judgment is void on the face of the record or was obtained by extrinsic fraud. (See 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 222-236, pp. 726-750.) Subdivision (c) is intended to apply to all such motions.

In subdivision (c) the phrase “within the time prescribed by rule 8.104 to appeal from the judgment” is intended to incorporate in full the provisions of rule 8.104(a).

Under subdivision (c)(1), the 30-day extension of the time to appeal from the judgment begins when the superior court clerk mails, or a party serves, the order denying the motion or notice of entry of that order. This provision is discussed further under subdivision (b) of this comment.

Subdivision (d). Subdivision (d)(1) provides an extension of time after an order denying a motion for judgment notwithstanding the verdict regardless of whether the moving party also moved unsuccessfully for a new trial.

Subdivision (d) further specifies the times to appeal when, as often occurs, a motion for judgment notwithstanding the verdict is joined with a motion for new trial and both motions are denied. Under subdivision (b), the appellant has 30 days after notice of the denial of the new trial motion to appeal from the judgment. Subdivision (d) allows the appellant the longer time provided by rule 8.104 to appeal from the order denying the motion for judgment notwithstanding the verdict, subject to that time being further extended in the circumstances covered by subdivision (f)(2).

Under subdivision (d)(1)(A), the 30-day extension of the time to appeal from the judgment begins when the superior court clerk mails, or a party serves, the order denying the motion or notice of entry of that order. This provision is discussed further under subdivision (b) of this comment.

Subdivision (e). The scope of subdivision (e) is specific. It applies to any “appealable order,” whether made before or after judgment (see Code Civ. Proc., § 904.1, subd. (a)(2)-(12)), but it extends only the time to appeal “from that order.” The subdivision thus takes no position on whether a judgment is subject to a motion to reconsider (see, e.g., Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236-1238 [postjudgment motion to reconsider order granting summary judgment did not extend time to appeal from judgment because trial court had no power to rule on such motion after entry of judgment]), or whether an order denying a motion to reconsider is itself appealable (compare Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710-711 [order appealable if motion based on new facts] with Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160-1161 [order not appealable under any circumstances]). Both these issues are legislative matters.

Subdivision (e) applies only when a “party” makes a valid motion to “reconsider” an appealable order under subdivision (a) of Code of Civil Procedure section 1008; it therefore does not apply when a court reconsiders an order on its own motion (id., subd. (d)) or when a party makes “a subsequent application for the same order” (id., subd. (c)). The statute provides no time limits within which either of the latter events must occur.

Under subdivision (e)(1), the 30-day extension of the time to appeal from the order begins when the superior court clerk mails, or a party serves, the order denying the motion or notice of entry of that order. The purpose of this provision is discussed further under subdivision (b) of this comment.

Among its alternative periods of extension of the time to appeal, subdivision (e) provides in paragraph (2) for a 90-day period beginning on the filing of the motion to reconsider or, if there is more than one such motion, the filing of the first such motion. The provision is consistent with subdivision (c)(2), governing motions to vacate judgment; as in the case of those motions, there is no time limit for a ruling on a motion to reconsider.

Subdivision (f). Consistent with case law, subdivision (f)(1) extends the time to appeal after another party appeals only if the later appeal is taken “from the same order or judgment as the first appeal.” (Commercial & Farmers Nat. Bank v. Edwards (1979) 91 Cal.App.3d 699, 704.)

The former rule (former rule 3(c), second sentence) provided an extension of time for filing a protective cross-appeal from the judgment when the trial court granted a motion for new trial or a motion to vacate the judgment, but did not provide the same extension when the trial court granted a motion for judgment notwithstanding the verdict. One case declined to infer that the omission was unintentional, but suggested that the Judicial Council might consider amending the rule to fill the gap. (Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal.App.3d 775, 778 & fn. 3.) Rule 8.108(e)(2) fills the gap thus identified.

Subdivision (g). Under subdivision (g), an order or notice mailed by the clerk under this rule must show the date on which the clerk mailed the document, analogously to the clerk’s “certificate of mailing” currently in use in many superior courts. This provision is intended to establish the date when an extension of the time to appeal begins to run after the clerk mails such an order or notice.

Subdivision (g) also requires that an order or notice served by a party under this rule be accompanied by proof of service. The proof of service establishes the date when an extension of the time to appeal begins to run after the party serves such an order or notice.


Source: Judicial Counsel of California official government webite. This page was last updated 08/01/2010.