Tips: critical new trial motion deadlines

Very few deadlines in civil practice are "jurisdictional" - meaning, if you miss them, the right is irretrievably lost. Most California lawyers know that the deadline to file a notice of appeal is one of them. That deadline arrives 60 days after service of notice of entry of judgment or, if there is no notice of entry, 180 days after entry of judgment, with some additional nuances if timely post-trial motions are filed.

But anyone trying a case in California must also know the many deadlines related to new trial motions, including which of them are jurisdictional. A recent California Supreme Court decision, Kabran v. Sharp Memorial Hospital, 2 Cal. 5th 330 (2017), clarified which new-trial deadlines are do-or-die and which are not.

Critical Deadlines

1. Moving party's notice of intent.

A party can file and serve a notice of intent to move for a new trial between the trial verdict and entry of judgment. Otherwise, the deadline for filing a notice of intent is the earliest of these dates: 15 days after the clerk mails, or a party serves, notice of entry of judgment; or 180 days after the entry of judgment. Cal. Code Civ. Proc. Section 659. If a notice of intent to move for a new trial is late, the court has no jurisdiction to hear the motion.

2. Trial court's order granting a new trial.

If a party files a timely notice of intent, the trial court's power to grant a new trial expires 60 days after the earliest of these dates: the clerk mailing notice of entry of judgment; any party's service on the moving party of written notice of the entry of judgment; or the filing of the first notice of intent to move for a new trial. Cal. Code Civ. Proc. Section 660. If the trial court does not rule by that 60-day deadline, the motion is deemed denied, and any later attempt by the trial court to grant a new trial is ineffective.

Compounding the challenge of getting a ruling within 60 days, the statutory duty to set a hearing date rests with the already overburdened clerk and judge. Diligent counsel for the moving party can take several steps to increase the likelihood that the court will timely consider a new trial motion:

* Immediately upon learning of a notice of entry of judgment, calculate the deadline for the court to rule - being sure to take into account whether any other party has moved for new trial. If there is any doubt whether another party's notice of intent to move for a new trial was valid (i.e., started the 60-day clock running), assume it was valid unless and until you can definitively conclude that it was not.

* State the deadline for the court to rule in bold capitals on the caption page of your notice of motion and on all associated pleadings ("POWER TO RULE EXPIRES ______"), and suggest possible hearing dates in the notice. Try to find out any dates the trial judge expects to be unavailable.

* Follow up with the clerk soon after "the expiration of the time to file counter affidavits" (Cal. Code Civ. Proc. Section 661), to ensure that he or she timely calendars and notices a hearing date.

3. Trial court's explanation of reasons.

A trial court that grants a new trial must specify the statutory ground(s) and reasons for its ruling. The trial court must either include this specification in its order granting a new trial, or file a separate written specification within 10 days of the new trial order. Cal. Code Civ. Proc. Section 657. If the trial court does not comply with this deadline, its grant of a new trial will be reversed. Kabran.

Deadlines that Can Be Waived

The new rule of law announced in Kabran concerns the affidavits supporting or opposing a new trial. Under Code of Civil Procedure Section 659a, the moving party has 10 days after filing its notice of intent to serve and file any affidavits supporting its motion, and other parties then have 10 days to serve and file counter-affidavits.

But these deadlines are softer than those discussed above. First, the statute allows the trial court to extend these deadlines by up to 10 days. Cal. Code Civ. Proc. Section 659a. But beyond that, Kabran holds that the affidavit deadlines are not jurisdictional. The trial court can rely on late-filed affidavits to grant a new trial, and if the non-moving party does not object in the trial court, it may not do so on appeal.

Takeaways

In light of the foregoing rules, a party planning to move for a new trial should be sure to file a timely notice of intent, and to remind the trial court of the deadlines for granting the motion and for specifying its reasons.

If the court grants a new trial, the non-moving party should check whether those deadlines were met - and if not, should consider seeking reversal on that basis.

Finally, if your opponent files affidavits late: object in the trial court, or forever hold your peace.