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Filed 11/22/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Z.V.,

Appellant,

v.

CHERYL W.,

Respondent.

 A166178

 (Alameda County Super. Ct. 

 No. RF08424606)

At the conclusion of a long cause hearing, the trial court issued an oral 

statement of decision granting grandparent visitation under Family Code 

section 3102 and rejecting the mother’s challenges to existing visitation 

orders. The mother filed a notice of appeal on a date that was beyond the 60-

day deadline for filing such notices. (See Cal. Rules of Court, 

rule 8.104(a)(1)(B).

1) Though the time for filing a notice of appeal may be 

extended to 90 days after the first notice of intention to move to vacate the 

order is filed (rule 8.108(c)(2)), this does not assist the mother because she 

failed to file her notice of appeal during that time frame. Accordingly, we

dismiss the appeal for lack of appellate jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

J.W. (Minor) was born to Z.V. (Mother) and Jeremy W. (Father) in 

2008. Father passed away in December 2015. Soon thereafter, the mother of 

Father, Cheryl W. (Grandmother), filed requests to be joined to the family 

1 All further rule references are to the California Rules of Court.
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law matter and sought custody of Minor. Though Grandmother helped raise 

Minor since birth and alleged she was her primary custodian, Mother had

been denying Grandmother’s contact with her since Father’s untimely death. 

The trial court awarded temporary sole legal and physical custody to Mother,

granted Grandmother’s joinder motion, and granted visitation to 

Grandmother. 

In the years that followed, Mother and Grandmother regularly engaged 

in litigation over Grandmother’s visitation. In 2018, the parties reached a 

settlement concerning visitation. Despite the settlement, conflict and 

litigation concerning Grandmother’s visits continued. In February 2021, 

Mother filed a request to vacate the court’s visitation order, indicating she 

had moved to Southern California. Grandmother filed a request for 

temporary emergency orders seeking to enforce visitation. The court set a 

long cause hearing. 

At Mother’s request, the trial court provided an oral statement of 

decision at the conclusion of the long cause hearing on April 5, 2022. Based 

on its findings, the court denied Mother’s request to vacate all visitation 

orders and modified the existing order to allow one visit every other month, 

plus two weeks of nonconsecutive summertime visits. On June 15, 2022, the 

trial court filed a document entitled Findings and Orders After the Hearing

(FOAH), which reduced its earlier oral statement of decision to writing. 

Grandmother served Mother with a notice of entry of order on June 23, 2022. 

On May 12, 2022, Mother filed a notice of motion and motion to vacate 

the order and substitute a new judgment, or for a new trial, pursuant to Code 

Civil Procedure sections 657 and 663 (hereafter motion to vacate). She filed 

amended notices of motion and motions to vacate on May 27, 2022, and June 
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27, 2022. The trial court issued a written denial that was filed on September 

9, 2022, and served on the parties on September 6, 2022. 

On September 21, 2022, Mother filed her notice of appeal, which 

indicated the appeal was taken from judgment entered on June 15, 2022 

following a court trial.

DISCUSSION

As a threshold matter, we address whether Mother timely filed a notice 

of appeal. For the reasons below, we conclude she did not. (Barry v. State 

Bar of California (2017) 2 Cal.5th 318, 326 [“ ‘[a] court has jurisdiction to 

determine its own jurisdiction’ ”].)

The record establishes that, at Mother’s request, the trial court issued 

an oral statement of decision at the end of the long cause hearing on April 5, 

2022. The trial court memorialized its statement of decision in its written 

FOAH filed on June 15, 2022, and Grandmother served Mother with a notice 

of entry of order on June 23, 2022. Mother, however, filed her notice of 

appeal on September 21, 2022, a date which was beyond the 60-day deadline 

in the California Rules of Court for filing such notices. (Rule 8.104(a)(1)(B).)

Given these circumstances, the question is whether rule 8.108 extends 

the 60-day deadline for filing the notice of appeal. Under that rule, the 

normal time for filing a notice of appeal is extended when a party “serves and 

files a valid notice of intention to move—or a valid motion—to vacate the 

judgment.” (Rule 8.108(c).) In that scenario, the time to file a notice of 

appeal is extended to the earliest of: “(1) 30 days after the superior court 

clerk, or a party serves an order denying the motion or a notice of entry of 

that order; (2) 90 days after the first notice of intention to move—or motion—

is filed; or (3) 180 days after entry of judgment.” (Rule 8.108(c)(1)–(3).)
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Here, Mother filed notices of motions to vacate orders on May 12, 2022, 

May 27, 2022, and June 27, 2022.2 Ninety days after May 12, May 27, and 

June 27, is August 10, August 25, and September 25, respectively. Critically, 

the rule extends the time to appeal to “90 days after the first notice of 

intention to move—or motion—is filed.” (Rule 8.108(c)(2), italics added.) 

Consequently, if either of the May notices is a valid “first” notice of motion, 

then Mother’s notice of appeal is untimely because the appeal was filed more 

than 90 days after such notices.

Addressing this, Mother posits that the 90-day extension under 

rule 8.108(c)(2) should be calculated from the June 27 notice of motion. 

Relying on Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 150 (Ehrler), she 

argues the May 12 notice of motion was premature and therefore void 

because it was filed before entry of judgment. Mother, however, does not 

acknowledge her May 27 notice of motion. Though Grandmother seeks 

dismissal of the appeal as untimely, her respondent’s brief inexplicably also 

argues the May 12 and May 27 notices were premature under Ehrler.

3 We 

are unpersuaded that the May 12 and 27 notices were premature and void.

Code of Civil Procedure section 659, subdivision (a)(1), provides that a 

party intending to move for a new trial must file a notice of intention to move 

for a new trial either: “(1) After the decision is rendered and before the entry 

2 All further dates in this part of the discussion without a stated year 

refer to 2022.

3 We requested supplemental briefing regarding the effect of the April 5, 

2022 statement of decision in determining whether the notice of appeal in 

this case was timely. In her supplemental brief, Grandmother no longer 

takes the position that the May 12 and May 27 notices were premature, 

suggesting instead that the notices were timely because the trial court 

provided an oral statement of decision in compliance with Code of Civil 

Procedure section 632 on April 5, 2022.
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of judgment. [¶] (2) Within 15 days of the date of mailing notice of entry of 

judgment by the clerk of the court . . . , or service upon him or her by any 

party of written notice of entry of judgment, or within 180 days after the 

entry of judgment, whichever is earliest . . . .” (Italics added.) The same time 

limits govern a motion to vacate. (Code Civ. Proc., § 663a, subd. (a).)

At the time Ehrler was decided, the first enumerated deadline for 

moving for a new trial under Code of Civil Procedure section 659 was 

“ ‘[b]efore the entry of judgment,’ ” and the deadline made no reference to the 

rendering of a decision. (Ehrler, supra, 126 Cal.App.3d at p. 152.) 

Examining this language, Ehrler indicated that while “[s]ection 659 allows a 

notice of motion to be filed prior to the entry of the judgment,” a notice filed 

before a court actually renders a decision such that a party is aggrieved is 

premature and void. (Ehrler, at p. 152.) Ehrler went on to say: “In a court 

trial, rendition of judgment occurs when the court signs and files the 

findings, conclusions and the judgment.” (Ibid.) In other words, Ehrler

indicated that a “decision” is rendered in a court trial when judgment is 

rendered. (See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack, § 55, p. 641, 

citing Ehrler.)

But Ehrler did not address a situation, such as in this case, where a 

party to a court trial requests and obtains a statement of decision. As 

relevant here, case law indicates “a decision is rendered when the court files 

its statement of decision or, if none was requested, when judgment is 

entered.” (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 133, italics added; cf.

In re Marriage of Hafferkamp (1998) 61 Cal.App.4th 789, 793 [“a ‘decision’ . . . 

means the rendition of judgment which, in a court trial where a statement of 

decision is waived, means the ‘signing and filing of judgment’ ”], italics 

added.)
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As relevant here, Code of Civil Procedure section 632 provides: “The 

statement of decision shall be in writing, unless the parties appearing at trial 

agree otherwise; however, when the trial is concluded within one calendar 

day or in less than 8 hours over more than one day, the statement of decision 

may be made orally on the record in the presence of the parties.” (Italics 

added.) Here, the record establishes that Mother asked for a statement of 

decision, and the court obliged with an oral statement of decision at the end 

of the hearing on April 5. The minute orders of the long cause hearing 

establish that less than eight hours had elapsed at the point that the court 

issued its oral decision, and Mother’s briefing in the trial court concedes the 

point. 

Notably, there was no objection to the oral statement of decision below. 

Instead, in a brief filed by Mother below, she indicated the trial court 

“announced it would issue an oral [statement of decision], and [Mother]

agreed, waiving a written [statement of decision].” (Code Civ. Proc., § 632 

[“The statement of decision shall be in writing, unless the parties appearing 

at trial agree otherwise”]; Whittington v. McKinney (1991) 234 Cal.App.3d 

123, 129–130 [right to a written statement waived].) Additionally, Mother’s 

May 12 notice of motion to vacate included a memorandum of points and 

authorities detailing many of the findings in the court’s oral statement of 

decision: “The findings, as stated in the [Statement of Decision], include: 

[¶] 1. [Mother] is a fit parent, as no one has argued otherwise and no evidence 

was submitted to the contrary. [¶] 2. [Mother] has interfered with visits, 

particularly the summertime visits. . . . [¶] 3. The reasons for interfering 

with visits were: [¶] a. [Minor] getting a phone at the grandmother’s 

house, . . . [¶] b. and the grandmother was giving the child too many gifts or 

expensive gives [sic] . . . . [¶] 4. Those reasons do not justify the ‘prevention’
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of summer visits, which was not reasonable and is not in the best interest of 

the child. [¶] 5. [Minor] has an important relationship with her grandmother.

[¶] 6. [Mother] believes it is an important relationship[.] [¶] 7. The Court is 

not convinced that the relationship would not be put in jeopardy, given the

conduct of [Mother] in the past, if there were no orders put in place for 

visitation with[] the grandmother.” Mother went on to argue that these 

findings were unsupported by the evidence and that the court’s decision was 

inconsistent with the law. 

Thereafter, on June 15, the court filed the FOAH which reduced its oral 

statement of decision to writing. The FOAH was signed by counsel for 

Mother and Grandmother on a line that said “Approved as conforming to 

court order.” Because neither of Mother’s May 2022 notices of motion was

premature or otherwise invalid, and because Mother filed her notice of appeal 

more than 90 days after filing these notices of motion, her appeal remains

untimely. (Rule 8.108(c)(1)–(3).)

Additionally, we observe that a notice of intention to vacate must be 

filed and served in order for the extensions in rule 8.108(b) and (c) to apply. 

(Rule 8.108(b), (c); see rule 8.108(h) [“[a]n order or notice that is served must 

be accompanied by proof of service”]; Advisory Com. com., foll. rule 8.108 

[“The date of the proof of service establishes the date when an extension of 

the time to appeal begins to run after service of such an order or notice.”]; 

Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1279, fn. 6.) Here, the 

register of actions in the record indicates that a proof of service for the first 

amended notice filed on May 27 was filed on May 31. Even if we adjust the 

extended notice of appeal period based on the date of this proof of service,

Mother’s notice of appeal was filed more than 90 days after May 31.
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Finally, Mother’s supplemental brief contends that the trial court’s

September 9 written decision denying her motion to vacate “superseded the 

oral Statement of Decision provided in April” and that therefore she filed a 

timely appeal of that final Statement of Decision on September 21. (Boldface

and italics omitted.) Because Mother provides no reasoned argument or legal

authority to support her view that the decision denying her motion to vacate 

superseded the oral Statement of Decision, we deem this contention waived. 

(See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.) 

In any case, Mother’s claim that she appealed from the court’s 

September 9 decision denying her motion to vacate is belied by her notice of 

appeal, which specifically indicates this appeal is taken from the June 15, 

2022 judgment after court trial. Nowhere does the notice of appeal indicate 

this appeal concerns the denial of her motion to vacate. (Sole Energy Co. v. 

Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) 

In sum, Mother’s notice of appeal, filed on September 21, 2022, is 

untimely because it was filed more than 60 days after Grandmother served 

Mother with a notice of entry of order on June 23, 2022. 

(Rule 8.104(a)(1)(B).) Though rule 8.108(c)(2) applies to extend the time to 

appeal to “90 days after the first notice of intention to move” to vacate the 

order is filed, the rule does not assist Mother because she first filed such a 

notice in May 2022, but filed her notice of appeal more than 90 days 

thereafter. Having reached this conclusion, we need not and do not address 

Grandmother’s argument that Mother’s third notice of motion to vacate the 

order, filed on June 27, 2022, was invalid. 

Although Mother has requested oral argument, we have no jurisdiction 

and must dismiss this appeal due to the untimely filing of the notice of 
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appeal. The effect of this dismissal is to leave the challenged order in place. 

(Code Civ. Proc., § 913; Estate of Sapp (2019) 36 Cal.App.5th 86, 100.)

DISPOSITION

The appeal is dismissed. Grandmother is entitled to costs on appeal. 

(Rule 8.278.)

_________________________

Fujisaki, Acting P.J.

WE CONCUR:

_________________________

Rodríguez, J.

_________________________

Streeter, J.
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Trial Court: Alameda County Superior Court

Trial Judge: Hon. Elena Condes

Counsel: Law Office of Michael J. Bailey, Michael J. Bailey for 

Appellant

Law Office of Bradley D. Bayan, Bradley D. Bayan for 

Respondent

Z.V. v. Cheryl W. (A166178)