2011 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 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 effective January 1, 2011; adopted as subd (a); previously amended and relettered effective January 1, 2008.)

(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 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) amended effective January 1, 2011; adopted as subd (b); previously amended effective January 1, 2007; previously relettered effective January 1, 2008.)

(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 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) amended effective January 1, 2011; adopted as subd (c); previously amended effective January 1, 2007; previously relettered effective January 1, 2008.)

(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 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) amended effective January 1, 2011; adopted as subd (d); previously relettered effective January 1, 2008.)

(f) Public entity actions under Government Code section 962, 984, or 985

If a public entity defendant serves and files a valid request for a mandatory settlement conference on methods of satisfying a judgment under Government Code section 962, an election to pay a judgment in periodic payments under Government Code section 984 and rule 3.1804, or a motion for a posttrial hearing on reducing a judgment under Government Code section 985, the time to appeal from the judgment is extended for all parties until the earliest of:

(1)90 days after the superior court clerk serves the party filing the notice of appeal with a document entitled "Notice of Entry" of judgment, or a file-stamped copy of the judgment, showing the date either was served;

(2)90 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.

(Subd (f) adopted effective January 1, 2011.)

(g) 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 serves 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 serves notification of the first appeal.

(Subd (g) amended and relettered effective January 1, 2011; adopted as subd (e); previously relettered as subd (f) effective January 1, 2008.)

(h) Service; proof of service

Service under this rule may be by any method permitted by the Code of Civil Procedure, including electronic service when permitted under Code of Civil Procedure section 1010.6 and rules 2.250-2.261. An order or notice that is served must be accompanied by proof of service.

(Subd (h) amended and relettered effective January 1, 2011; adopted as subd (f); previously relettered as subd (g) effective January 1, 2008.)

Rule 8.108 amended effective January 1, 2011; repealed and adopted as rule 3 effective January 1, 2002; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2008.

Advisory Committee Comment

Subdivisions (b)-(f) operate only when a party serves and files a "valid" motion, election, request, or notice of intent to move for the relief in question. As used in these provisions, the word "valid" means only that the motion, election, request, or notice complies with all procedural requirements; it does not mean that the motion, election, request, 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 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 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 (g)(2).

Under subdivision (d)(1)(A), the 30-day extension of the time to appeal from the judgment begins when the superior court clerk 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 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 (g). Consistent with case law, subdivision (g)(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 (h). Under subdivision (h), an order or notice that is served under this rule must be accompanied by proof of service. The date of the proof of service establishes the date when an extension of the time to appeal begins to run after service of such an order or notice.