Friday, February 13, 2015

Und Hier Kommt der Twist!

Maroney v. Iacobsohn, No. B249890 (D2d3, opinion after rehearing Jun. 4, 2015)

An auto accident plaintiff won a jury verdict but received far less in damages than she thought she deserved. So she moved for a new trial on damages. In ruling on the motion, the trial court said it would have granted the motion, but for the fact that the hearing occurred too late and thus that it lacked jurisdiction. So it “conditionally granted” the motion, subject to plaintiff’s appeal on the jurisdiction issue. The court of appeal rules that the trial court was wrong on the jurisdictional issue. But that doesn’t mean plaintiff gets her new trial.

It’s not clear how the parties learned that the court had entered judgment. Neither party served the other with a notice of entry of the judgment, and the court serve a notice of entry on the parties. Plaintiff did, however, have actual notice that judgment was entered, because she attached a copy of it to a filing in connection with a costs dispute.

Twenty-two days after the costs filing, plaintiff filed a notice of her intent to move for new trial. Sixty days after that, the court held a hearing on the motion. But that presents an issue: Under Code of Civil Procedure § 660, the court’s authority to decide a new trial motion extends to sixty days after the earliest of three events: (a) service of notice of entry of the judgment by the clerk; (b) another party’s service a notice of entry of judgment on the moving party of; or (c) the first-filed notice of intention to move for new trial. If the motion is not decided by then, it is denied on the merits by operation of law.

The trial court thought that the costs filing—which established that plaintiff knew judgment had been entered—could serve as a stand in for service of a notice of entry. Based on that, by the time of the hearing—eighty-two days later—the court had lost jurisdiction to decide. That said, the court agreed with plaintiff on the merits. So it "conditionally granted" her motion, subject to her prevailing on appeal on the jurisdiction issue. But the court made clear that, until then, there would be no new trial.

Section 660, however, does not turn on actual notice. It turns on service of a notice of entry on the moving party. California courts are very literal in their interpretation of the new trial statutes. The court of appeal here is no different. If the moving party wasn’t served and the court didn’t serve, § 660
’s sixty-day window turns on the filing of the first notice of intent to move for new trial. Because plaintiff served that notice—the first—sixty days before the hearing, the court had jurisdiction to decide her new trial motion.

But that doesn’t end the case with a reversal and remand. Although the trial court had jurisdiction, the court of appeal holds that it was not permitted by statute to “conditionally grant” a new trial. That, according to the court of appeal, rendered the order null and void. Which led to the motion being denied on the merits by operation of law under § 660 when the sixty days elapsed the following day.  And, because plaintiff
’s appellate brief and record didn’t attack the merits of the trial court’s denial on the merits—after all, she thought she had won on the merits—any appeal on the merits was deemed waived, so the denial had to be affirmed. No new trial for plaintiff.


I’m planning to write about this case in more detail in a different publication. But what I will say for now is that it is yet another example of the new trial statute unfairly punishing a litigant for a trial court’s foot-fault in deciding a new trial motion. As I have noted before, this is a long-recognized problem in California procedure.

I’m not sure the result here is even compelled by the statutory scheme. The case law generally looks to substance over form in determining whether a new trial motion is granted or denied. See Concerned Citizens Coal. of Stockton v. City of Stockton, 128 Cal. App. 4th 70, 78 (2005). So it’s not too hard to conceive that the trial court here did not actually “grant” anything, certainly not anything in the sense of an actual new trial as defined under § 656. If the ruling is treated as a denial, all of the tricky rules that § 657 applies to the form of orders granting new trials and appeals over them don’t apply. So essentially, you have a procedural mistake by a trial court, which—given the court’s comments in denying the motion—was almost certainly prejudicial. And even if the plaintiff messed up by appealing the “grant” instead of the judgment into which the denial was subsumed, the Supreme Court has specifically decided that that is a forgivable mistake. See Walker v. L.A. Cnty. Metro. Transp. Auth., 35 Cal. 4th 15, 21 (2005). So it seems like the court here could have found a way to vacate the denial and remand for reconsideration consistent with the applicable rules.

**Note: The court of appeal granted rehearing in this case. But the new opinion is more or less the same and reaches the same result, with a few extra footnotes.

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