The post-judgment 'golden hour'

By Paul D. Fogel and David J. de Jesus

In emergency medicine, the "golden hour" refers to the period immediately following traumatic injury during which prompt medical treatment may dramatically improve the patient's chances for survival. While some would debate whether the period is really just an hour or whether the entire concept is a medical "urban legend," physicians likely do not quarrel with its underlying message: What one does right after an adverse event may well determine the outcome.

"Emergency law" is not all that different, and litigants would do well to heed a similar message: The immediate aftermath of an adverse judgment can be chaotic and it is easy to lose sight of the procedural requirements for filing post-trial motions and their effect on any appeal. The failure to comply with these requirements may relieve a judge from the obligation to rule on any such motion and may mean an appeal is DOA. Thus, taking the right steps during the "golden hour" after an adverse judgment is essential.

Generally, a would-be appellant must file a notice of appeal by the earlier of 60 days after a party or a clerk serves notice of entry of judgment or 180 days after the judgment's entry. Cal. R. Ct. 8.104(a). The deadline is jurisdictional and a court of appeal must dismiss an untimely appeal. Hollister v. Convalescent Hosp. Inc. v. Rico, 15 Cal. 3d 660, 674 (1975).

Certain post-trial motions extend the notice-of-appeal deadline. Cal. R. Ct. 8.108(b)-(d). These include motions for new trial, for judgment notwithstanding the verdict (JNOV), to vacate the judgment, or to reconsider an appealable order. But those motions extend the deadline only if they are filed timely and in the proper form. If a party moves for a new trial but does not file a timely notice of intent to move for a new trial that specifies the grounds, an appeal may be limited or barred altogether. Similarly, a party intending to move to vacate a judgment must file the motion within the earlier of 15 days of when the clerk or party has mailed notice of the judgment's entry or within 180 days of its entry. See Cal. Civ. Proc. Code Sections 659, 659(a), 663a; Branner v. Regents of the Univ. of Calif., 175 Cal. App. 4th 1043, 1047 (2009); Payne v. Rader, 167 Cal. App. 4th 1569, 1573-74 (2008).

Recently, Division 3 of the 2nd District Court of Appeal brought home the devastating consequences that the failure to comply with post-trial motion requirements can have on the right to appeal. In Conservatorship of Townsend, 2014 DJDAR 15387 (Nov. 17, 2014), a conservator and a lender who disputed title to real property stipulated to a temporary judge to conduct a bench trial. The judge was a panelist at a private arbitration and mediation service. Although the parties were required to continue to file all original documents with the superior court clerk (see Cal.R.Ct. 2.400(b)), they apparently submitted those documents only to the arbitration and mediation service.

The temporary judge issued statements of decision in the conservator's favor and awarded her damages and fees. The statements of decision were reduced to a judgment filed in the superior court. The lender then timely moved to set aside and vacate the judgment under CCP Sections 662 and 663, but in keeping with the parties' practice, it submitted the motion to the arbitration and mediation service and did not file it in the superior court. The conservator also submitted her opposition in the same manner and did not object to the lender's failure to file it in the superior court. Nor did the temporary judge reject the motion on this basis.

While the motion was pending, but after the 60-day deadline to appeal from the judgment had expired, the conservator advised the temporary judge that the lender's motion was improper because the lender never filed it with the superior court clerk. The next day, the lender filed a notice of appeal from the judgment. The temporary judge never ruled on the motion to vacate.

The conservator moved to dismiss the appeal as untimely, arguing that because the lender had never filed the motion to vacate in the superior court within 15 days after notice of entry of judgment was served, the motion did not extend the deadline to file the notice of appeal.

The Court of Appeal agreed and dismissed the appeal. It first emphasized that because "[c]ompliance with the time for filing a notice of appeal is mandatory and jurisdictional," "[o]nly a timely filed notice of appeal can invoke the jurisdiction of [the] court." Unfortunately, the lender filed its notice of appeal 78 days after service of notice of entry of judgment, so the Court of Appeal had jurisdiction only if the motion to vacate operated to extend the notice-of-appeal deadline.

It did not have jurisdiction, however, because the motion was "procedurally infirm" - the lender did not file it with the superior court within 15 days after service of notice of entry of judgment. That the parties had stipulated to a temporary judge was irrelevant, the Court of Appeal explained, given that "[a]ll statutes, Rules of Court, judicial ethics, and case law remain applicable to the proceedings before a temporary judge."

The lender argued that estoppel and justifiable reliance excused its failure to file the motion to vacate with the superior court clerk, pointing out that the parties submitted all trial documents directly to the temporary judge via the arbitration and mediation service, the temporary judge accepted them, and the conservator never objected to the procedural defect with the motion to vacate until it was too late for the lender to do anything about it.

Although the Court of Appeal recognized that equities might favor the lender in this regard, those equities were irrelevant because "equitable relief from default in failing to file a timely appeal is not available." The court reiterated the familiar principle that "[a]ppellate jurisdiction is not a matter of appellate court discretion."

Finally, the Court of Appeal continued, there were "substantive differences between submitting to a temporary judge a trial brief or a motion to vacate." The latter "focuses the parties on the appellate process and challenges to the appealable judgment" - and if "the judgment is challenged on appeal, there is a jurisdictional time limit within which to do so." Because a "motion to vacate is part of the calculation to determine the jurisdictional time limits to file an appeal," a party must satisfy the procedural requirements for motions to vacate to obtain an extension of the notice of appeal deadline.

In short, the Court of Appeal declined "to rewrite the statute [governing motions to vacate] to create exceptions in proceedings before a temporary judge where the parties submit the motion to vacate to the temporary judge but do not file it with the clerk."

Townsend is a potent reminder that litigants should familiarize themselves with the deadlines and procedures governing post-trial motions during the "golden hour" following entry of an adverse judgment. They would be well-served to map out those deadlines and requirements well before the drafting process begins. Otherwise, any ensuing appeal may be for naught.

David J. DeJesus and Paul D. Fogel are attorneys in the San Francisco Office of Reed Smith LLP. They specialize in handling post-trial motions and appeals.

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