16
trial under rule 8.108 is defined in part by the jurisdictional requirements for timely filing
of the notice of intent under section 659.
Second, the statutory deadline begins to run when the party seeking to move for a
new trial is served with a written notice of entry of judgment. (Palmer v. GTE
California, Inc. (2003) 30 Cal.4th 1265, 1267 (Palmer).) In deciding what form a notice
of entry of judgment must take to trigger the 15-day time limit for bringing a new trial
motion, the Palmer court held that a “particular form of notice” is not required for service
of notice by a party on the party who moves for a new trial. (Id. at p. 1277.) The time
limit is triggered simply “by service on the moving party of ‘written notice’ of the ‘entry
of judgment’ ” (ibid., citing § 659), and the written notice need not be entitled “ ‘notice of
entry of judgment’ ” or filed separately with the court. (Palmer, supra, at p. 1277.)
Third, while Palmer declined to read into the statute any particular form of written
notice of entry of judgment for purposes of triggering the statutory time limits under
section 659, the entry of judgment itself is, of course, an indispensable predicate to filing
a motion for new trial. A motion for new trial seeks “re-examination of an issue of fact
in the same court after a trial and decision by a jury, court or referee.” (§ 656.) It “ ‘is “a
new statutory proceeding, collateral to the original proceeding” and constitutes a new
action brought to set aside the judgment.’ ” (Kabran, supra, 2 Cal.5th at p. 336.)
Our understanding of a valid motion for new trial to trigger the extension of
time to appeal under rule 8.108 therefore hinges on the timely filing of a notice of
intention under section 659 upon service of notice of entry of judgment. The question
that arises in this case is whether notice of the entry of an order granting a special motion
to strike under section 425.16 satisfied the “entry of judgment” element of section 659 to
trigger the statutory time limits for filing a motion for new trial? If the trial court’s
November 22 order on the anti-SLAPP motions—which resulted in service of a “notice
of entry of judgment or order” by Kruger on November 29, 2016—triggered the statutory
and jurisdictional deadline for filing the motion for new trial (§ 659; Palmer, supra, 30
17
Cal.4th at p. 1277), then appellants’ filing of notice of intent to move for new trial on
February 2, 2017, after the January 27 judgment, was not timely under section 659 or
“valid” under rule 8.108(b)(1)(A).
We find that under the circumstances presented, appellants cannot rely on the
application of rule 8.108(b)(1)(A) as having extended the time to appeal. As mentioned
above, a motion for new trial seeks “re-examination of an issue of fact in the same court
after a trial and decision by a jury, court or referee.” (§ 656.) Here, the notice of
intention to move for new trial stated that Reyes intended to move to set aside “the
judgment entered on January 23, 2017 in this action, and to grant a new trial, based on a
challenge to the order granting summary judgment [sic] entered November 22, 2016.”
Although the notice of intention to move for new trial erroneously stated that it
was seeking a new trial of the “order granting summary judgment,” the notice correctly
identified November 22 as the date of the order being challenged. Significantly, the
November 22 order granting the special motions to strike was itself an appealable order
under section 904.1 (§ 425.16, subd. (i)) and constituted final adjudication of the special
motions to strike. (See Melbostad, supra, 165 Cal.App.4th at pp. 996-997; Russell,
supra, 160 Cal.App.4th at p. 660; Maughan, supra, 143 Cal.App.4th at p. 1247.) Since
the malicious prosecution cause of action comprised the entire action, the November 22
order effectively disposed of the complaint and operated as the final determination of the
rights of the parties. (See Melbostad, supra, at pp. 996-997; § 577; see also Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193 [explaining that the
“granting [of] a motion to strike under section 425.16 results in the dismissal of a cause
of action on the merits” and furthermore is “irreconcilable with a judgment in favor of the
plaintiff”].)
We noted ante in considering timeliness of the appeal from the order granting the
anti-SLAPP motions that the January 23 “judgment” merely recapitulated and appeared
to formalize the November 22 order. As with the taking of the appeal from the order on
18
the anti-SLAPP motions, there was no need for entry of a further order or formal
judgment to proceed with the motion for new trial. The language of section 659 appears
confirmatory of this point: the 15-day mandatory time limit for filing a notice of motion
for new trial is triggered either by service on the moving party of written notice of entry
of judgment, or by service by the clerk of the court of notice of entry of judgment
“pursuant to Section 664.5.” (§ 659, subd. (a)(2).) Section 664.5 expressly defines
“ ‘judgment’ ” as including “any judgment, decree, or signed order from which an appeal
lies.” (§ 664.5, subd. (c).) It would be incongruous for a “signed order from which an
appeal lies” (ibid.)—in this instance, the anti-SLAPP order—to trigger the mandatory
time limit under section 659 when notice of entry of judgment or order is mailed by the
court clerk consistent with section 664.5, but not when served by a party.
These factors compel us to conclude that the “notice of entry of judgment or
order” served on Reyes on November 29, 2016, not the redundant judgment of dismissal,
triggered the 15-day time limit to file notice of the intent to move for a new trial as
prescribed by section 659. Reyes’s filing and service of a notice of intention to move for
new trial on February 2, 2017, was not timely as from the November 29, 2016 service of
notice of entry of judgment or order for the November 22 anti-SLAPP order and did not
extend time under rule 8.108 for the filing of the notice of appeal.
Appellants’ arguments based loosely on equity are unavailing for the same reasons
discussed ante. The failure to challenge the validity of the motion for new trial in the
trial court does not forfeit Kruger’s jurisdictional challenge on appeal. The Supreme
Courts exposition on jurisdiction in Kabran leaves no room for doubt on this point:
“Noncompliance with a jurisdictional rule cannot be excused or forfeited; a party may
assert such noncompliance for the first time on appeal or in a collateral attack as a ground
for invalidating the action. In addition, a court may decide on its own motion that it lacks
authority over the action because of noncompliance with a jurisdictional rule.” (Kabran,
supra, 2 Cal.5th at p. 342; see also Garibotti, supra, 243 Cal.App.4th at pp. 481-482.)
19
Here, as just explained, Reyes did not meet the jurisdictional deadline for moving
for a new trial. “Sections 657, 659, and 660, which govern on what ground and in what
time period a litigant may seek a new trial, fall into the jurisdictional category. Not only
is a party’s attempt to file a notice of intent after the relevant deadline invalid, but the
court has no power to issue a ruling on the basis of an untimely filed notice or on a
ground not set forth in the statute.” (Kabran, supra, 2 Cal.5th at p. 342, italics added.)
Accordingly, “a party’s failure to comply with any of these sections ‘ “may be raised for
the first time on appeal.” ’ ” (Ibid.)
In sum, the appeal from the January 23 judgment was timely filed only with the
benefit of rule 8.108, the application of which was contingent on service and filing of a
valid notice of intention to move for new trial. (Rule 8.108(b).) We find that the notice
of intention to move for new trial was not timely, since the November 22 anti-SLAPP
order granting the motions to strike was a “signed order from which an appeal lies”
(§ 664.5, subd. (c); see § 425.16, subd. (i)) and constituted entry of judgment triggering
the 15-day jurisdictional time limit under section 659. Rule 8.108 therefore did not
operate to extend the time to appeal from the January 23 judgment. Alleged
noncompliance with the jurisdictional time limits could be raised for the first time on
appeal. (Kabran, supra, 2 Cal.5th at p. 342.)
III. DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.