Unreported / Non-Citable
Background
Joshua Linstrom and Alexzandria Letourneau share two children and have been involved in child custody proceedings since at least 2021. On February 21, 2025, the trial court issued an order prohibiting Linstrom from contacting or visiting the children "until further order of the Court." Linstrom then filed an ex parte application, which the trial court denied on February 25, 2025, because he failed to show immediate harm or an emergency; an order to show cause was set for April 21, 2025.
In the interim, Linstrom filed a document titled "Objection of Statement of Decision and Motion for New Trial." After a hearing, the trial court denied that motion on April 28, 2025, and copies of the order were sent to the parties the same day through U.S. and electronic mail. On June 26, 2025, Linstrom filed a notice of appeal challenging both the judgment and the trial court's denial of his motion for a new trial.
The Third Appellate District, sitting in Sacramento, reviewed whether the notice of appeal was timely. The opinion, filed November 6, 2026, is marked not to be published and states that it has not been certified for publication under California Rules of Court, rule 8.1115.
The Court’s Holding
The court explained that a timely notice of appeal vests jurisdiction in the Court of Appeal, and that the time for appealing is jurisdictional: once the deadline expires, the appellate court has no power to entertain the appeal. In the absence of statutory authorization, neither trial nor appellate courts may extend or shorten the time for appeal, even to relieve a party against mistake, inadvertence, accident, or misfortune. If an appeal was not taken within the jurisdictional period, the court has no discretion but must dismiss the appeal on its own motion even if no objection is made, and California Rules of Court, rule 8.104(b) requires dismissal of a late-filed notice of appeal.
Ordinarily, rule 8.104(a)(1)(A) requires a notice of appeal within 60 days after the trial court clerk serves notice of entry of judgment. The time to appeal is extended when a party files a motion for a new trial: under rule 8.108(b)(1)(A), the party must appeal within 30 days from the date the trial court clerk serves the order denying the motion. Here, the trial court denied Linstrom's motion on April 28, 2025, and sent copies to him by U.S. and electronic mail that same day, so his notice of appeal was due 30 days later, on May 28, 2025.
Linstrom filed his notice of appeal on June 26, 2025, nearly a month after the deadline. The court therefore dismissed the appeal as untimely under rule 8.104(b). The disposition also awarded Letourneau her costs incurred on appeal under rule 8.278(a)(2).
Key Takeaways
- A timely notice of appeal is necessary to vest jurisdiction in the California Court of Appeal; an expired deadline leaves the court with no power to hear the appeal.
- The appellate court cannot excuse an expired appeal deadline merely because of mistake, inadvertence, accident, or misfortune, and must dismiss a late appeal on its own motion.
- When a motion for a new trial is denied, the notice of appeal is due within 30 days after service of the order denying that motion under rule 8.108(b)(1)(A).
- Service of the April 28, 2025 denial order started the 30-day clock, making Linstrom's deadline May 28, 2025; his June 26, 2025 notice was untimely.
- The appeal was dismissed under rule 8.104(b), and Letourneau was awarded her costs incurred on appeal under rule 8.278(a)(2).
Why It Matters
The decision applies the jurisdictional appeal deadlines in a family-law dispute without reaching the underlying custody issues or the merits of the new-trial motion. It illustrates how service of an order denying a new-trial motion triggers the shorter 30-day appeal period under rule 8.108(b)(1)(A), and it confirms that the deadline is strictly enforced even where the appellant acted without an objection from the respondent.
The opinion is marked not to be published and states that it has not been certified for publication or ordered published under California Rules of Court, rule 8.1115, so it may not be cited or relied on except as permitted by rule 8.1115(b). Its result is limited to dismissal of this appeal and an award of appellate costs; it does not alter the trial court's custody orders.