1)Defendant Hossein Karamooz’s Motion for Judgment Notwithstanding the Verdict
2)Defendant Hossein Karamooz’s Motion for a New Trial
Before the Court is Defendant?s motion for judgment notwithstanding the verdict and alternative motion for new trial. Plaintiff?contends, inter alia, that the Court lacks jurisdiction to decide the motions because Defendant filed and served his notice of intent to move for new trial and motion for JNOV approximately 1.5 hours past the deadline.
?The time to file a JNOV or new trial motion is jurisdictional. (Citation.) If such a motion is untimely, the court has no jurisdiction to rule on it and the order granting the motion is void.? (Simplon Ballpark, LLC v. Scull?(2015) 235 Cal.App.4th 660, 663; Cox v. Certified Grocers of Cal., Limited (1964) 224 Cal.App.2d 26, 32 [failure to serve is jurisdictional].)
Judgment in this action was entered on 01/06/17. Although a copy has not been filed with the Court, the parties appear to agree?and the Court assumes for purposes of this analysis?that Plaintiff electronically served Defendant with a Notice of Entry of Judgment prior to 5:00 p.m. that same day. As a result, Defendant was required to file and serve any Notice of Intent to move for new trial within 15 days of 01/06/17. (CCP ? 659(a)(2).) Because the 15th day fell on Saturday, January 21, Defendant had until 01/23/17 to file and serve his Notice of Intent.
Defendant does not dispute that his?Notice of Intent and motion for JNOV were electronically filed with the Court and served on Plaintiff after 5 p.m. on January 23.?(See ROA 477, Exh. A; ROA 491, Exh. A.) The parties dispute whether these documents had to be filed and served before 5 p.m., or whether they could be filed and served up to 11:59 p.m., to be considered filed on January 23.
Although there may be some debate with respect to the e-filing deadline under CCP ? 1010.6, it is clear that the Notice of Intent was required to be served by 5 p.m. on January 23 to be considered filed and served on that day.??[E]lectronic service of a document is complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.? (CRC 2.251(h)(1).) But ?[s]ervice that occurs after the close of business is deemed to have occurred on the next court day.? (CRC 2.251(h)(4).) ??Close of business? is 5 p.m. or any other time on a court day at which the court stops accepting documents for filing at its filing counter, whichever is earlier.? (CRC 2.250(b)(10).) Here, because Defendant served Plaintiff after 5 p.m. on January 23 (ROA 477, Exh. A), that service is deemed to have occurred on January 24?one day too late.
Defendant also argues that Plaintiff?s?Notice of Entry of Judgment?was ineffective because Plaintiff was required but failed to file a copy with the Court with a proof of service. (CCP ? 664.5(a).) Notwithstanding the requirements of CCP ? 664.5,?Sections 659 and 660 ?simply do not require that a party giving notice of entry file either a proof of service or a copy of the served document, and we may not insert additional unwritten requirements into those sections, no matter how beneficial we might think them to be.? (Palmer v. GTE California, Inc.?(2003) 30 Cal.4th 1265, 1279.)
Finally, Defendant argues that?Plaintiff?s?Notice of Entry of Judgment was ineffective because it was electronically served, and CCP ? 664.5(a) calls for personal delivery or mail service. To the contrary, electronic service of?Plaintiff?s?Notice appears effective to trigger the 15-day deadline to file a notice of intent.?If?a?notice may be served by mail, it may be served electronically. (CCP ? 1010.6(a)(6);?Insyst, Ltd. v. Applied Materials, Inc.?(2009) 170 Cal.App.4th 1129, 1137-1139.)
In summary, assuming that Plaintiff electronically served Defendant with Notice of Entry of Judgment by 5 p.m. on 01/06/17, the Court must agree with Plaintiff and DECLINE to rule on the motions for want of jurisdiction. Accordingly, on or before the hearing, Plaintiff is to file a copy of the Notice of Entry of Judgment with both a proof of service and proof of the timing of the electronic service. If Plaintiff fails to submit a proof of service, or if the evidence reveals that service on Defendant was effected after 5 p.m. on January 6, then the motions will be deemed timely and the Court will GRANT the motion for new trial.