Arriola v. Ramirez CA2/7
B333438
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 Arriola v. Ramirez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANDREW MARTIN ARRIOLA, B333438
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. 23STRO00568)
v.
RENE RAMIREZ,
Defendant and Appellant.
APPEALS from a judgment and orders of the Superior
Court of Los Angeles County, Dean H. Hansell, Judge. Appeals
dismissed in part and affirmed in part.
Ropers Majeski and Edward A. Hoffman for Plaintiff and
Appellant.
No appearance for Defendant and Respondent.
__________________________
Rene Ramirez appeals from a one-year civil harassment
restraining order protecting Andrew Martin Arriola and
awarding him attorney fees. Ramirez also appeals the trial
court’s denials of his motions for new trial and judgment
notwithstanding the verdict (JNOV). First, Ramirez’s appeal
from the restraining order is untimely; we dismiss the appeal
from that order because we lack jurisdiction to consider it.
Second, the denial of the new trial motion is not independently
appealable and would only be reviewable on appeal from the
restraining order if that appeal had been timely; further, because
the new trial motion was not timely filed in the trial court, its
denial did not extend the time to appeal from the restraining
order. Third, while we have jurisdiction to consider the appeal
from the denial of the JNOV motion, we affirm the trial court’s
denial of the motion as procedurally invalid and untimely.
FACTUAL AND PROCEDURAL BACKGROUND
A. Arriola’s Request for a Civil Harassment Restraining Order
In January 2023 Arriola filed a request for a civil
harassment restraining order to protect himself, his wife, and
their three children from Ramirez. His declaration described the
following facts. In October 2022 Arriola, while working as a
process server, attempted to serve legal papers at a house in
Hacienda Heights. After he knocked on the front door, the door
“violently swung open” and a “large man,” Angel De La Torre,
started yelling and cursing at him. De La Torre then sprinted
after Arriola and chased him through the streets. Arriola pepper
sprayed De La Torre, but De La Torre resumed the chase, pepper
sprayed Arriola, and punched him. Arriola punched back,
knocking De La Torre to the ground. De La Torre yelled “fuck
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you!” and ran back toward his house. Arriola ran the other way,
yelling, “Help! Please! I am being attacked. Call 911!” He also
called 911 and was told deputies were on their way.
Two men and a woman approached Arriola. One of the
men—Ramirez—yelled, “You! Show me your hands, get down on
the ground[,] or I’ll blow your fucking head off!” Once Arriola lay
face down on the cement, Ramirez continued, “Don’t fucking
move, or I’ll blow your fucking brains out!” Arriola tried to
explain there was a misunderstanding, but Ramirez cut him off
and told him to “shut the fuck up!” De La Torre then returned,
yelling, “There you are bitch!” Ramirez shouted at Arriola, “This
isn’t your first time doing this huh?” Arriola again tried to
explain, but Ramirez interrupted him again, yelling “shut the
fuck up or I’ll put a fucking hole in your head! Do you hear me?”
Deputies from the Los Angeles County Sheriff’s
Department arrived. Arriola explained what happened; no one
was arrested.
B. The Hearing and Grant of the Restraining Order
The court held a hearing on Arriola’s petition on April 25,
2023. It admitted Arriola’s declaration into evidence. Arriola
testified and called a witness—a retired police officer with whom
Arriola was on the phone when Ramirez drew his gun. Arriola
also played a recording of the call between him and the officer.
Ramirez testified on his own behalf.
The court granted a one-year restraining order protecting
Arriola only (not his family members), after finding Ramirez
made a credible threat of violence and had engaged in a course of
conduct directed at Arriola that served no legitimate purpose.
The court also awarded Arriola $1,250 in attorney fees.
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At the conclusion of the hearing, the court stated, “I’m
going to direct Mr. Ramirez, that you remain here long enough
for the deputy to serve you with the restraining order. And with
that, I’m going to go in recess. And [Arriola’s counsel], you’ll get
a copy of the restraining order as well.” The deputy then handed
Ramirez a copy of the file-stamped restraining order.
C. Ramirez’s Motions for JNOV and New Trial
Almost four months later, on August 18, 2023, Ramirez
filed motions for JNOV (Civ. Proc. Code, § 6291) and for a new
trial (§ 657). Relevant here, he argued the motions were timely
under section 659, subdivision (a)(2), which he claimed requires
such motions to be filed either within 180 days after entry of
judgment or within 15 days of the clerk mailing or a party
serving written notice of entry, whichever is earliest. Ramirez
contended that neither the court nor the opposing party had
triggered the 15-day deadline by serving him. He argued that
receiving a file-stamped copy of the order from a courtroom
deputy at the April 25 hearing did not satisfy section 659’s
requirements, because “(a) the deputy is not the clerk,
(b) handing someone a document is not the same as mailing it,
and (c) the document does not say it was mailed” pursuant to a
court order or section 664.5. According to Ramirez, the 15-day
deadline began instead on August 3, when Arriola’s attorney
emailed the order to Ramirez’s new counsel. In a supporting
declaration, Ramirez stated that the only copy of the restraining
order he received was the one handed to him by a uniformed
1 Statutory references are to the Code of Civil Procedure.
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deputy in the courtroom and that neither the court clerk nor
Arriola’s counsel served any other copy.
On October 16, 2023, the trial court found the JNOV
motion was procedurally defective because such a motion is
properly brought only after a jury verdict, while here there was a
bench trial. The court also found both posttrial motions were
untimely and concluded it therefore lacked jurisdiction to
consider them. The court noted Ramirez had filed the motions
nearly four months “after personal service of the restraining
order” on the day of the April hearing. The court explained that
under section 659, such service by the court triggered a 15-day
filing deadline for the posttrial motions. It determined that,
though section 664.5 “requires ‘service of the order’ by the Court,
it does not require the clerk to mail the order in order for service
to be valid.” The court stated that in civil harassment and
domestic violence cases, bailiffs—rather than clerks—often serve
orders to avoid exposing clerks to safety risks.
On October 23, 2023, Ramirez appealed the April 25, 2023
restraining order and its award of attorney fees, as well as the
October 16, 2023 order denying his JNOV motion. He also
purported to appeal from the denial of the motion for new trial.
As discussed below, an order denying a JNOV motion is
appealable, but the denial of a motion for new trial is not.
DISCUSSION
A. Ramirez Did Not Timely Appeal from the Restraining Order
The “filing of a timely notice of appeal is a jurisdictional
prerequisite. ‘Unless the notice is actually or constructively filed
within the appropriate filing period, an appellate court is without
jurisdiction to determine the merits of the appeal and must
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dismiss the appeal.’ ” (Silverbrand v. County of Los Angeles
(2009) 46 Cal.4th 106, 113; accord, Marshall v. Webster (2020)54 Cal.App.5th 275
, 279 [“ ‘ “If a notice of appeal is filed late, the
reviewing court must dismiss the appeal.” ’ ”]; Cal. Rules of
Court, rule 8.104(b).)2
Rule 8.104 sets forth the relevant deadlines for an appeal
from a judgment or appealable order: Unless a statute or court
rule provides otherwise, a notice of appeal must be filed on or
before the earliest of 60 days after service by the superior court
clerk of a filed-endorsed3 copy of the judgment or appealable
order, 60 days after notice of entry of the judgment is served by a
party, or 180 days after entry of judgment. (Rule 8.104(a)(1)(A)-
(C), (e); see Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643,
649.)
Ramirez contends he timely appealed the restraining order
because the 180-day deadline from the entry of judgment (rule
8.104(a)(1)(C)) applies here, not the 60-day deadline (rule
8.104(a)(1)(A)) from the date he was handed the restraining
order. Ramirez states that October 23, the date he filed the
notice of appeal, was the 180th day after entry of the judgment.4
He contends the courtroom deputy’s actions of handing him a
filed-endorsed copy of the restraining order after the hearing on
2 References to rules are to the California Rules of Court.
3 “Endorsed” is a broader term than “stamped” and
encompasses electronically filed documents. (Huff v. Interior
Specialists, Inc. (2024) 107 Cal.App.5th 970, 981.)
4 October 23 was technically 181 days after the entry of the
judgment, but because the 180th day, October 22, was a Sunday,
the deadline under rule 8.104(a)(1)(C) would be extended to
October 23. (Rule 1.10(b).)
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April 25, 2023 did not trigger the 60-day deadline under rule
8.104(a)(1)(A). Ramirez is incorrect.
A superior court clerk’s service of a filed-endorsed copy of
the judgment or appealable order triggers a 60-day deadline to
file a notice of appeal. (Rule 8.104(a)(1)(A), (e).) “Any act
required or permitted to be performed by the clerk of a court may
be performed by a judge thereof.” (§ 167.) Here, the judge
directed the courtroom deputy to serve the restraining order on
Ramirez at the conclusion of the April 23, 2023 hearing. In doing
so, the judge, in lieu of the clerk, effectuated personal service on
Ramirez. (See rule 8.104(a)(2) [service by court “may be by any
method permitted by the Code of Civil Procedure,” which includes
personal service under § 1011].) It is inconsequential that the
courtroom deputy was the individual who physically handed the
order to Ramirez. Personal service requires “delivery to the party
or attorney on whom the service is required to be made”; it does
not mean the delivery must be done physically by the party
seeking to accomplish personal service. (See § 1011 [describing
personal service on the party or attorney who is being served, but
not specifying who must serve the document]; Heinlen v. Heilbron
(1892) 94 Cal. 636, 640(1892) [personal service “need not be made by the individual who is attempting to make the service, but can be effected through a clerk or messenger, or through any agency by which a ‘delivery’ can be made; and when the notice is so delivered the service becomes a personal service”]; accord, Wright v. Mutz (1943)61 Cal.App.2d 292, 296
.)
Thus, the judge’s direction to the courtroom deputy to hand
Ramirez a copy of the filed-endorsed restraining order satisfied
rule 8.104(a)(1)(A), and the 60-day period to appeal the
restraining order began to run at that point. The deadline to
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appeal was June 24, 2023. Because Ramirez did not appeal from
the restraining order until October 23, 2023, the appeal is
untimely, and we lack jurisdiction to consider it.
B. The Denial of Ramirez’s Untimely Motion for New Trial Is
Not Appealable and Did Not Extend the Time To Appeal
from the Restraining Order
“An order denying a motion for a new trial is not directly
appealable, but is reviewable on appeal from the underlying
judgment.” (Brown v. American Bicycle Group, LLC (2014)
224 Cal.App.4th 665, 669, fn. 3; accord, Walker v. Los Angeles County Metropolitan Transportation Authority (2005)35 Cal.4th 15, 19
[“it has long been settled that an order denying a motion
for new trial is not independently appealable and may be
reviewed only on appeal from the underlying judgment”].) Thus,
the denial of Ramirez’s new trial motion is not separately
appealable, and because the restraining order was not timely
appealed, nor may we consider whether Ramirez’s new trial
motion was properly denied as part of the appeal from the
restraining order.
Had Ramirez’s motion for a new trial been “valid,” its
denial could have extended his deadline to appeal from the
underlying restraining order until, as relevant here, 30 days after
the court served the order denying the new trial motion. (See
rule 8.108(b) [providing for extension of time to appeal from the
judgment “if any party serves and files a valid notice of intention
to move for a new trial” and the motion is denied], italics added.)
However, Ramirez’s motion for a new trial was not a “valid”
motion—it was untimely—and thus it did not extend Ramirez’s
time to appeal the restraining order. (See Reyes v. Kruger (2020)
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55 Cal.App.5th 58, 66 [“a ‘valid’ motion for new trial under rule
8.108 is defined in part by the jurisdictional requirements for
timely filing of the notice of intent under section 659”]; id. at
p. 75 [“filing and service of a notice of intention to move for new
trial . . . was not timely . . . and did not extend time under rule
8.108 for the filing of the notice of appeal”]; Advisory Committee
com. following rule 8.108 [“As used in these provisions, the word
‘valid’ means only that the motion, election, request, or notice
complies with all procedural requirements”], italics added.)
Ramirez’s new trial motion was not timely because it was
due within 15 days of April 25, 2023, the date the courtroom
deputy personally served him with the restraining order, yet
Ramirez waited to file it until August 18, 2023—nearly four
months later. (§ 659, subdivision (a)(2).) Under section 659,
subdivision (a)(2), parties intending to move for a new trial must
do so “[w]ithin 15 days of the date of serving notice of entry of
judgment by the clerk of the court pursuant to Section 664.5, or
service upon them by any party of written notice of entry of
judgment, or within 180 days after the entry of judgment,
whichever is earliest.” These time limits are jurisdictional.
(Simgel Co., Inc. v. Jaguar Land Rover North America, LLC
(2020) 55 Cal.App.5th 305, 314.) “ ‘The issue as to what triggers the commencement of time within which to rule on a motion for new trial involves a pure question of statutory interpretation, which we review de novo.’ ” (Maroney v. Iacobsohn (2015)237 Cal.App.4th 473, 480
; see Doe v. County of Orange (2025)113 Cal.App.5th 1276
, 1276.)
Contrary to Ramirez’s assertions, personal service on
Ramirez, effectuated by the courtroom deputy at the court’s
direction, qualified as service of “notice of entry of judgment by
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the clerk of the court pursuant to Section 664.5” and triggered
section 659’s 15-day deadline. (§ 659, subd. (a)(2).)5 As
discussed, a judge may perform “[a]ny act required or permitted
to be performed by the clerk of a court” (§ 167), including serving
notice of entry of judgment. Personal service of the restraining
order on Ramirez triggered the 15-day deadline to file a new trial
motion.
Ramirez relies on Van Beurden Ins. Services, Inc. v.
Customized Worldwide Weather Ins. Agency, Inc. (1997)
15 Cal.4th 51, 52, which held that notice of entry mailed by the clerk must affirmatively state that it was given under court order or under section 664.5, and be accompanied by a certificate of mailing. But Van Beurden involved mailed notice. As the trial court correctly noted: “[Ramirez] may have been correct until 2017. In 2017 the California Legislature enacted Assembly Bill 976[,] . . . which removed the requirement [in section 664.5, subdivision (d)] that ‘the clerk shall mail notice’ and replaced it with the requirement that ‘the court shall serve notice.’ ” Under the amended statute, personal service by the court is sufficient. Because Van Beurden only addressed when notice is mailed, its requirements are inapplicable in these circumstances. (See Van Beurden, at p. 52.) Here, the record reflects that personal service was effectuated at the end of the proceeding. Thus, there was no need for a certificate of mailing. 5 Ramirez concedes that for purposes of section 659, “serving a conformed copy of a judgment is equivalent to serving a notice of entry.” (See Palmer v. GTE California, Inc. (2003)30 Cal.4th 1265, 1267
[holding the statutory requirement of giving written
notice of entry of judgment is satisfied by serving a copy of the
file-stamped judgment].)
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The trial court did not err in concluding the personal
service of Ramirez on April 25, 2023 started the 15-day
jurisdictional time limit under section 659. Because Ramirez did
not move for a new trial until August 18, 2023, the court correctly
determined his motion was untimely. And because the motion
was therefore not “valid,” its denial did not extend the time to
appeal the restraining order.
C. The Motion for Judgment Notwithstanding the Verdict Was
Not Valid and Was Properly Denied
An order denying a JNOV motion is separately appealable.
(See § 904.1, subd. (a)(4).) Ramirez timely appealed from the
court’s order denying his JNOV motion. However, we affirm the
trial court’s rulings that the motion was procedurally invalid.
First, the trial court correctly determined the JNOV motion
was not a procedurally valid motion because the request for a
restraining order was tried to a court, not a jury. (See City of Los
Angeles v. Glair (2007) 153 Cal.App.4th 813, 819[JNOV motion was not valid procedural mechanism because the underlying request for workplace violence protective order was tried to the court], disapproved of on another ground by Ryan v. Rosenfeld (2017)3 Cal.5th 124
; Herr v. Nestle U.S.A., Inc. (2003)109 Cal.App.4th 779, 788
[JNOV motion was “procedurally
flaw[ed]” where there had been a bench trial, because the “JNOV
procedure, by definition, applies to jury trials”]; § 629.)
Second, the trial court was correct that the JNOV motion
was untimely. The same deadlines set forth in section 659 for
moving for a new trial apply to a JNOV motion. (§ 629,
subd. (b).) The same 15-day deadline was triggered when the
court had Ramirez personally served in court on April 25, 2023.
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Thus, Ramirez’s JNOV motion, filed on August 18, 2023, was
late.
As with a new trial motion, the time limits for filing a
JNOV motion are jurisdictional. (See Palmer v. GTE California,
Inc. (2003) 30 Cal.4th 1265, 1270.) The trial court correctly
determined it lacked jurisdiction to consider the merits of the
untimely JNOV motion.6
DISPOSITION
The appeal from the restraining order and the order
denying the motion for new trial is dismissed. The order denying
the motion for judgment notwithstanding the verdict is affirmed.
Arriola shall recover any costs on appeal.
STONE, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
6 Because the JNOV motion, like the new trial motion, was
not “valid,” the denial of the JNOV motion did not extend the
time to appeal from the judgment. (See rule 8.108(d)(1) [only
denial of “valid” JNOV motion extends time to appeal from
judgment].)
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