Opinion
A130877
10-12-2011
CAICOS INVESTMENTS, INC., Plaintiff and Appellant, v. ALCO IRON & METAL CO., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Mendocino County Super. Ct. No. SCWL-CVG-09-53821)
Caicos Investments, Inc. appeals from a judgment entered after a jury trial and an order denying its motion for a new trial. It contends that a prior order sustaining respondent's demurrer to causes of action for negligence per se and negligence was erroneous. It further contends that the court erred in denying its new trial motion on the ground the jury returned inconsistent verdicts on causes of action for trespass and conversion. We will dismiss the appeal as untimely.
I. FACTS AND PROCEDURAL HISTORY
Appellant Caicos Investments, Inc. (Caicos) owns real property in Willits and certain attached fixtures and property, including rail spurs extending from an adjacent railyard. The rail spurs can be used for the delivery of rail cargo to Caicos' property. Respondent Alco Iron & Metal Company (Alco) is a dealer in scrap iron.
A. Caicos' Complaint
Caicos filed a complaint against Alco in May 2009, asserting causes of action for conversion and trespass. According to the complaint, while Alco was on Caicos' property for the purpose of dismantling railcars Alco had purchased, Alco also disassembled, removed, and sold (a portion of) Caicos' rail spurs without Caicos' permission. Caicos sought compensatory and punitive damages.
B. Caicos' First Amended Complaint and Alco's Demurrer
With leave of court, Caicos filed a first amended complaint on June 24, 2010. The first amended complaint added two causes of action, one for negligence per se under Penal Code section 496a and the other for negligence.
According to the cause of action for negligence per se, Alco was a dealer in scrap metal, received approximately 620 linear feet of hardened railroad siding at its yard, knew or should have known that the railing was of the type ordinarily used by or belonging to a railroad or other transportation company, and yet failed to exercise the due diligence of a reasonable scrap metal dealer in determining that the persons delivering the hardened railroad railing to Alco had a legal right to do so. On this basis, Caicos contended that Alco violated Penal Code section 496a and Caicos was damaged as a proximate result.
According to the cause of action for negligence, Alco assumed duties to Caicos, by entering onto Caicos' property for the purpose of transporting rail cars across that property, to (1) restore possession of the property in the condition it was found and (2) exercise due diligence in verifying that it had Caicos' permission to remove rail siding before doing so. Alco allegedly breached those duties by removing the rail siding without making sufficient inquiry. As a result, Caicos suffered damage.
Alco filed a general demurrer and a motion to strike the two new causes of action.
On August 9, 2009, the trial court sustained the demurrer. The court ruled: "1. Alco's Demurrer to the negligence causes of action is granted. The tort committed by Alco, if any, is conversion. [¶] 2. In all other respects the demurrer and motion to strike are overruled."
The matter proceeded to trial by jury on the causes of action for conversion and trespass.
C. Trial Evidence
Alco entered into a contract with the North Coast Railroad Authority (NCRA) to purchase and dismantle five railroad cars. Because Alco could not dismantle the railcars on NCRA's track, Alco was directed to obtain permission from Caicos to dismantle the railcars on a rail spur owned by Caicos.
Alco's superintendent, Joe Denbeste, sought and obtained permission to use Caicos' railroad spur to transport the railcars from the adjacent railroad yard onto Caicos' property. Caicos' permission for Alco to do so was recorded in writing by its tenant, Sparetime Supply (Sparetime), which was authorized by Caicos to negotiate the terms of Alco's use of the property for this purpose. Denbeste coordinated Alco's use of the property with Sparetime's maintenance and construction supervisor, Bob Bragdon.
While Alco was on Caicos' property, Alco's Denbeste and Caicos' president (Peter Koch) agreed that Alco would dismantle and remove an abandoned overhead dust collection system and remove certain other scrap metal from Caicos' property. Alco dismantled and scrapped the overhead duct system.
According to Denbeste, Sparetime's Bragdon later asked him to remove portions of a rail spur from Caicos' property, so it would be easier for Sparetime to move its forklifts around the property. Denbeste testified that he believed Bragdon had Caicos' permission to give such direction, and that Bragdon provided this authorization in the presence of another Sparetime employee, Rick Maddox. Alco removed the rail spur and later sent payment to Caicos for the scrap metal, sawdust collection system, and the rail.
After Alco left the property, Caicos discovered that approximately 650 linear feet of its railroad spur system had been removed. The removal of the rail rendered Caicos' rail siding system "completely useless and totally ruined."
Caicos' Koch called Alco's Denbeste and asked where the rail siding was. Denbeste replied that Alco had removed the rail spur at the direction of Sparetime's Bragdon. Koch confronted Bragdon, who asserted that, when Denbeste asked about removing the rail, he told Denbeste it would be alright if it were okay "with the owner."
The following Monday, a meeting was held among Koch, Denbeste, Bragdon, and Maddox. According to Denbeste's testimony at trial, Denbeste reiterated that Bragdon had given him authority to remove the rail and Bragdon admitted so at the meeting. According to Koch's and Bragdon's testimony, Bragdon stated that he had told Denbeste he could remove the rail if he obtained Caicos' permission, and Denbeste said nothing in response.
After this meeting, Denbeste and Bragdon went to lunch. At trial, Denbeste testified that Bragdon agreed to "fess up" that he had authorized Denbeste to remove the rail spur. Bragdon, however, testified that they did not discuss any business matters at their lunch.
At trial, Bragdon confirmed that he told Denbeste to obtain permission from Caicos when Denbeste asked about removing the railroad siding. Maddox denied being present at any discussion in which Bragdon gave Denbeste permission to remove the rail spur.
D. Jury's Verdict and Judgment
After its deliberations, the jury completed a special verdict form for the trespass cause of action. The jury found: Caicos was the owner of the property, Alco intentionally entered the property, Alco's conduct on the property exceeded the scope of Caicos' permission, and "Alco's conduct [was] a substantial factor in causing actual harm to CAICOS." The jury determined that Caicos suffered economic damages of $14,000.
The jury also completed a special verdict form for the conversion cause of action. The jury found: Caicos owned the railroad spur, Alco intentionally took possession of a portion of the railroad spur without Caicos' consent, and Caicos was harmed. The jury found, however, that Alco's conduct was not a substantial factor in causing Caicos' harm. In addition, the jury decided that Alco did not engage in conduct with malice, oppression, or fraud.
The trial court reduced the damages award to zero, due to a good faith settlement offer by Sparetime in the amount of $50,000, and issued a "Judgment on Verdict in Open Court" on August 27, 2010. The court clerk mailed a notice of entry of judgment on August 30, 2010.
Alco had filed a cross-complaint against Sparetime; Sparetime offered to settle the cross-complaint with Alco for $50,000; Alco declined; Sparetime then offered the money to Caicos, and Caicos accepted. The court later found the settlement to be in good faith.
E. Caicos' New Trial Motion
Caicos filed motions for a new trial and judgment notwithstanding the verdict on September 13, 2010. (Code Civ. Proc., §§ 657, 629.) Only the motion for a new trial is at issue in this appeal.
In its new trial motion, Caicos contended inter alia that the jury's verdict was inconsistent, because the jury found that Alco was a substantial factor in causing Caicos' harm in its verdict as to trespass, but that Alco was not a substantial factor in causing Caicos' harm in its verdict as to conversion.
A hearing on the motion was held on October 22, 2010, and December 9, 2010. The court denied the motion by written order issued on December 29, 2010. Noting that it was "hard to reconcile the jury's finding," the court concluded that "[t]o say that it is beyond possibility of reconciliation, however, goes too far." (Italics in original.)
Caicos filed its notice of appeal on January 10, 2011.
II. DISCUSSION
Caicos contends the court erred in sustaining the demurrer to its causes of action for negligence per se and negligence and further erred in denying its motion for a new trial on the ground that the jury's verdict was internally inconsistent. Alco contends the appeal must be dismissed as untimely. We address the latter issue of timeliness, which resolves the appeal.
A. Background
As mentioned, the court clerk filed and served the judgment on August 27, 2010, and mailed a notice of entry of judgment on August 30, 2010. Before expiration of the time to appeal, Caicos timely filed its motion for a new trial on September 13, 2010. The court had 60 days to decide the new trial motion, or it would lose jurisdiction and the motion would be denied by operation of law. (Code Civ. Proc., § 660.)
Caicos' new trial motion was initially heard on October 22, 2010. Alco's attorney appeared at the hearing by telephone. During the hearing, the telephonic connection was interrupted by a power failure. By cell phone, Alco's counsel suggested moving the hearing to November 12, 2010, when he could appear in person. After the court alluded to the statutory time limit for deciding a new trial motion, the attorneys for both parties represented that they would waive the time limit.
The hearing on Caicos' motion reconvened on December 9, 2010. The written order denying the motion was issued on December 29, 2010. Although the order denied the motion on its merits, it also noted as follows: "Finally, through no fault of any party, the eventual hearing took place more than 60 days after the Notice of Motion for New Trial was filed. The passage of the 60 days likely resulted in a denial of the motion by operation of law and deprived the court of jurisdiction to grant a new trial. See Code of Civil Procedure Section 660 and Fischer v. First Internat. Bank (2003) 109 Cal App 4th 1433, 1450-1451."
B. Analysis
Where the court clerk has served notice of entry of judgment, a notice of appeal from the judgment must ordinarily be filed within 60 days thereafter. (Cal. Rules of Court, rule 8.104(a).) Where, however, the appellant has timely filed a valid motion for a new trial, the deadline for filing the notice of appeal may be extended under rule 8.108.
Unless otherwise noted, all statutory references hereafter are to the Code of Civil Procedure and all rule references are to the California Rules of Court.
Rule 8.108(b)(1) provides as follows: "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." (Italics added.)
Section 660 governs the denial of a new trial motion by operation of law. It provides in pertinent part: "Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire [1] 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or [2] 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then [3] 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court." (§ 660 ¶ 3, italics added.)
Alco contends the motion was denied by operation of law because it was not decided within 60 days after the court clerk served notice of entry of judgment pursuant to section 664.5. Section 664.5 reads: "Upon order of the court in any action or special proceeding, the clerk shall mail notice of entry of any judgment or ruling, whether or not appealable." (§ 664.5, subd. (d), italics added.) Therefore, to qualify as service of notice of entry of judgment under section 664.5, subdivision (d), the clerk's notice "must 'affirmatively state' it is given ' "upon order of the court" ' or ' "under section 664.5." ' " (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1277; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 64-65.) Here, the clerk's notice of entry of judgment does not include either statement, it does not comport with section 664.5, and it therefore did not commence the period for deciding the new trial motion.
Because the court's notice of entry of judgment did not comply with section 664.5, and Alco did not serve its own written notice of entry of the judgment, the deadline for deciding Caicos' motion for a new trial was "60 days after filing of the first notice of intention to move for a new trial." (§ 660 ¶ 3.) According to the record on appeal, the filing of the first notice of intention to move for a new trial was September 13, 2010. Sixty days from that date was November 12, 2010. The last day for the court to decide Caicos new trial motion, therefore, was November 12, 2010. The section 660 deadline is mandatory and jurisdictional and cannot be extended by stipulation, waiver, or estoppel. (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 825 (Meskell).)
Because the court did not decide Caicos' motion for a new trial by November 12, 2010, the motion was denied by operation of law as of that date. Under rule 8.108, the deadline for Caicos to file its appeal was 30 days thereafter: that is, December 12, 2010. Caicos did not file its notice of appeal until January 10, 2011. The appeal is untimely.
Caicos' arguments to the contrary are unavailing. It points to the fact that Alco's attorney purported to waive the section 660 time requirement for deciding the new trial motion. As mentioned, however, the deadlines provided by section 660 are jurisdictional and cannot be waived or extended. (Meskell, supra, 12 Cal.App.3d at p. 825; see also Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 524 [denying equitable relief from deadline].) In addition, we note that Alco's attorney proposed to have the hearing on November 12, 2010, which - perhaps coincidentally - was the last date for deciding the matter within the statutory time period. When the court thereafter continued the hearing to December 9, 2010, Caicos did not bring the timeliness issue to the court's attention.
Caicos also urges that it relied upon the "waiver" of the deadline by Alco's attorney, and that the filing of a late notice of appeal may be relieved on the ground of justifiable reliance, citing Slawinski v. Mocettini (1965) 63 Cal.2d 70 (Slawinski). Caicos is incorrect. In the first place, we are not persuaded that Caicos' reliance on any purported waiver by Alco was justified, given the clear law that the deadline cannot be waived. In any event, justifiable reliance cannot be invoked to extend the time for bringing an appeal. Like the section 660 deadline, the time for appealing a judgment is jurisdictional and cannot be extended by agreement, estoppel, waiver or the like. Indeed, our Supreme Court has expressly rejected any statement to the contrary in Slawinski: "Relying on [Slawinski], . . . [appellant] asserts that the courts have recognized that the late filing of a notice of appeal may be excused 'in certain circumstances.' This contention is without substance. [¶] In [Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660], this court examined and expressly disapproved certain dicta in Slawinski which suggested that compelling excuse or estoppel would operate to forgive untimeliness. (Hollister, supra, 15 Cal.3d at pp. 668, 674.)" (Pressler v. Donald L. Bren Co. (1982) 32 Cal.3d 831, 835, fn. 6.)
Lastly, Caicos argues that rule 8.108(b) is inapplicable, because it can only extend, not shorten, the time for filing a notice of appeal under rule 8.104(a). (Rule 8.108(a).) Caicos urges that the time for filing a notice of appeal under rule 8.104 was in late April 2011, contending that: the court clerk's notice of entry of judgment did not trigger the 60-day appeal period under rule 8.104(a)(1) because it did not comply with section 664.5; Alco did not serve a notice of entry of judgment that would have activated a 60-day period for filing an appeal under rule 8.104(a)(2); and therefore the time for filing an appeal under rule 8.104 was 180 days after entry of the judgment on August 27, 2010 (rule 8.104(a)(3)).
Caicos is incorrect. Unlike section 660, rule 8.104 does not require the clerk's notice of entry of judgment to comply with section 664.5. Therefore, the clerk's notice on August 30, 2010, was sufficient to require Caicos to file its notice of appeal within 60 days thereafter. (Rule 8.104(a)(1).) Rule 8.108 extended that deadline to December 9, 2010, but the notice of appeal was not filed by that date.
For these reasons, Caicos' appeal from the judgment was untimely. Although Caicos' notice of appeal indicated that Caicos was also appealing from the order denying its new trial motion, an order denying a motion for a new trial is not independently appealable and may be reviewed only on timely appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19; City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819-820.)
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Rule 8.104 (b) provides: "If a notice of appeal is filed late, the reviewing court must dismiss the appeal." We will, therefore, dismiss the appeal.
III. DISPOSITION
The appeal is dismissed.
NEEDHAM, J. We concur. JONES, P. J. SIMONS, J.