Timing is everything in court

Two Court of Appeal opinions published at the tail end of 2015 highlight an important distinction when it comes to deadlines: Some, like those for filing an appellate brief, are relatively flexible and can be extended. But others are less forgiving - they cannot be extended, even by the court. Paying close attention to upcoming deadlines, including how to calculate them and whether they can be extended, therefore is critical.

It has long been settled that the deadline for the trial court to grant a new trial motion falls into the non-extendable camp. Van Beurden Ins. Services Inc. v. Customized Worldwide Weather Ins. Agency Inc., 15 Cal. 4th 51, 64 (1997). But until recently, no published decision had addressed whether the same is true of the trial court's deadline to rule on a motion to vacate under Code of Civil Procedure Section 663a. The 4th District Court of Appeal, Division Three has now answered that question: As with the time to rule on a new trial motion, the trial court has no power to extend its time to rule on a motion to vacate.

The case newly establishing this motion to vacate rule is Garibotti v. Hinkle, 2015 DJDAR 13859 (Dec. 29, 2015). Plaintiff Nora Garibotti sued defendant Bruce Hinkle for allegedly stealing property and performing unlicensed, substandard construction work. The trial court struck Hinkle's answer as a terminating sanction and entered a default judgment for $488,448.29. Hinkle moved to vacate the default judgment. The court granted the motion and entered a revised judgment reducing Garibotti's damages to $44,608.80. Garibotti appealed, and Hinkle cross-appealed.

Extensions of the appellate briefing deadlines are common, and each side obtained several in Garibotti. But there was another deadline lurking in the case that could not be extended, and that was dispositive: the statutory deadline for ruling on a motion to vacate.

Under Code of Civil Procedure Section 663a(b), the time to rule on a motion to vacate "shall expire" 60 days after the clerk mails, or a party serves, notice of entry of judgment on the moving party or, if no notice is given, 60 days after a party files a notice of intent to move to vacate the judgment. And, under the statute, if the motion is not decided within the 60-day window, "or within that period, as extended, the effect shall be a denial of the motion without further order of the court." In Garibotti, the trial court did not rule within 60 days of either service of notice of entry or of Hinkle filing his motion to vacate. Under a plain reading of Section 663a, the motion to vacate therefore was automatically denied.

Neither of the Garibotti parties raised the timeliness issue in their briefs. The Court of Appeal, however, detected the problem and requested supplemental briefing on it. In those supplemental briefs, Hinkle offered two theories for affirming the motion to vacate ruling despite its apparent untimeliness.

First, Hinkle argued that trial courts can extend the Section 663a deadline, because the statute says the motion must be decided within 60 days "or within that period, as extended." Garibotti rejected that interpretation, holding that the only extension contemplated by the statute is when the 60th day falls on a weekend or other court holiday, in which case Code of Civil Procedure Section 12a shifts the 60-day deadline to the next court day.

Second, Hinkle advocated an equitable exception to the deadline. He argued that because the trial court continued the hearing on the motion beyond the 60-day window "based on Garibotti's request and with her consent," Garibotti should not be able to rely on the 60-day deadline.

The appellate court was unpersuaded. Emphasizing that the moving party has a duty to ensure that its motion is heard within the requisite time, it instructed that if a motion is continued beyond the deadline, "the party should move the court to advance the matter on the calendar." Hinkle's failure to diligently prosecute his motion cost him dearly: The Court of Appeal reversed the order that had reduced the judgment to $44,608 and reinstated the default judgment awarding $488,448 in damages.

Another type of 60-day jurisdictional deadline was at issue in the 6th District Court of Appeal's recent decision in M'Guinness v. Johnson, 2015 DJDAR 13927 (Dec. 30, 2015): the deadline to file a notice of appeal. Under California Rule of Court 8.104(a)(1), a notice of appeal must be filed within the earliest of (a) 60 days after the superior court clerk serves a document titled "Notice of Entry" or a file-stamped copy of the judgment showing the date it was served, (b) 60 days after a party serves a document titled "Notice of Entry" or a file-stamped copy of the judgment and proof of service, or (c) 180 days from entry of judgment.

In M'Guinness, no one served a document titled "Notice of Entry." The clerk did, however, mail copies of a file-stamped order along with a proof of service. The question was whether the clerk's service of the order triggered a 60-day deadline under Rule 8.104(a)(1), or whether the default 180-day deadline applied.

M'Guinness held that the 180-day deadline applied. Relying on Alan v. American Honda Motor Co. Inc., 40 Cal. 4th 894 (2007), the appellate court concluded that service by the court clerk triggers the 60-day deadline only if the clerk serves "a single, self-sufficient document satisfying all of the rule's conditions," i.e., a document called "Notice of Entry" or a file-stamped order that includes the service date. If the clerk instead serves a notice of entry or file-stamped copy of the judgment that does not show the date of service, as in M'Guinness, the 180-day deadline applies - even if the clerk also served a proof of service that showed the service date.

The distinction between the clerk serving a single document or two separate documents was significant in M'Guinness: The notice of appeal would have been untimely under the 60-day deadline, but was timely under the 180-day deadline - and, having found the appeal timely, the Court of Appeal went on to reverse the appealed order, which had denied appellant's motion to disqualify respondent's counsel, and remanded with instructions for the trial court to enter a new order granting the disqualification motion.

The bottom line: The deadlines for post-trial motions, rulings on those motions, and notices of appeal are complex, and missing them can be costly. Tread carefully in this area. And when in doubt, consult an appellate lawyer.