motion more than 60 days after Sutter contended it lost jurisdiction to do so. The appellate court rejected these argu- ments.
First, the court rejected Sutter’s claim
that its “notice of entry” concerning the summary-judgment order qualifies as a notice of entry of judgment that would trigger the 60-day period to rule on a new-trial motion. The fact that Sutter erroneously referred to the court’s order granting summary judgment as a “judg- ment” did not make it so. The entry of the order is, however, sufficient to consti- tute a “rendition of a judgment” neces- sary to prevent a new-trial motion from being fatally premature. This is because a new-trial motion cannot be made until there is an adverse decision resulting in an aggrieved party. Hence, no intent to file a new-trial motion can be made until there is a dispositive ruling in the case, and a premature notice is void. The order granting the summary
judgment was the “rendition of judg- ment” that allowed plaintiff to file a notice of intent to file a new trial motion under section 659, subd. (1) “before the entry of judgment” without the notice being premature. When notice of entry of judgment is
served after the notice of intent to move for a new trial, it is the notice of intent itself that triggers the 60-day clock; not the notice of entry of judgment. Here, plaintiff filed a timely notice of intent on September 25, 2009. The orders of November 18 and November 24 were within the 60-day period, and were timely. The court also rejected the con-
tention that the motion was granted on a ground not specified in the notice of intent. It explained that, although the ground stated in the notice was not the one plaintiff actually relied on, there was no basis for reversal because Sutter was fully aware as a result of plaintiff’s memo- randum of points and authorities that he was seeking a new trial based on “legal error” under section 659, subd. (7) and not “against law” under section 659, subd.
(6). Sutter responded fully to plaintiff’s substantive arguments, and could not show what it would have done differently if the ground stated in the notice had been cor- rect. Since Sutter’s opposition to the motion shows that it understood the argu- ment that plaintiff was making, and that it responded fully to that argument, the record shows that Sutter received due notice of the basis for the motion, and therefore no basis to reverse it on that basis.
Kimes v. Grosser
(2011) __ Cal.App.4th __ (1st Dist. Div. 1) Who needs to know about this case:
Lawyers for plaintiffs whose pets have been wrongfully injured. Why it’s important: Holds that a pet
owner can recover the cost of care attrib- utable to a wrongful injury to their pet, and punitive damages if the injury is found to be intentional. Plaintiffs need not prove that their pet had a market value.
Synopsis: Plaintiff Kimes claimed that
Charles or Joseph Grosser shot Kimes’s pet cat, Pumkin, with a pellet gun while Pumkin was perched on a fence between the Kimes and Grosser properties. The emergency surgery to save Pumkin’s life cost $6,000. Pumkin survived but was left partially paralyzed. Kimes claimed that he incurred an additional $30,000 in expens- es in caring for the cat because of the injury. He sued the Grossers to recover these sums, and for punitive damages. The trial court granted defendants’ motion in limine to preclude admission of evidence of his expenses in caring for Pumkin, a cat they described as “an adopted stray of very low economic value” on the theory that their liability was limit- ed to the amount that the shooting reduced Pumkin’s fair-market value. After the trial court granted the motion, plain- tiff refused to proceed, effectively conced- ing that Pumkin had no fair-market value. Kimes appealed from the judgment of dis- missal entered on his failure to prosecute. Reversed.
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JULY 2011 The Advocate Magazine — 87
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