Appellate Insights

Very few deadlines in civil practice are “jurisdictional,” i.e. if you miss it, the right is irretrievably lost. Many California lawyers know that the deadline to notice an appeal is one of them.  It comes 60 days after service of a notice of entry of judgment, if no timely post-trial motions have been filed.

But anyone trying a case in California must also plan for another, sometimes-overlooked jurisdictional deadline. The trial court’s power to grant a Motion for New Trial expires 60 days after the clerk mails, or a party serves, notice of entry of judgment.  If the court does not rule within that 60-day period, the Motion for New Trial is deemed denied by statute — foreclosing relief.  Compounding the challenge, the statutory duty (and really, the power) to set a hearing date within the jurisdictional time rests with the already-overburdened clerk and judge.

Diligent counsel for the moving party can take these steps to ensure timely consideration:

• Immediately upon learning of a notice of entry of judgment, calculate the deadline for the court to rule.  And if there is any doubt whether that notice was proper, plan as if it was.
• State the deadline in bold capitals on the caption page of your Notice of Motion for New Trial, and on all associated pleadings (“POWER TO RULE EXPIRES ______”), and suggest possible hearing dates in the Notice.  If you can, 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” (CCP §661), to ensure that he or she timely calendars and notices a hearing date.

►  The practical message:  During the fraught period after entry of a judgment, two do-or-die deadlines require intense vigilance and preparation.  Either counsel for the losing party or associated appellate counsel must focus on preserving the losing party’s rights.