MNT after SJ.

Brewer v. Remington, No. F76467 (D5 Mar. 4, 2020)

The trial court granted summary judgment for the Defendant in a medmal case based on the statute of limitations. Plaintiff moved for new trial, which the court granted, finding it had misapplied the delayed discovery rule. Defendant appealed. See Code Civ. Proc. § 904.1(a)(4) (grant of new trial is appealable order).

Generally, a new trial motion is subject to an abuse of discretion standard of review. That makes sense given that many of the grounds for new trial entail the trial court weighing evidence subject to facts and judgment calls. But whether to grant summary judgment is always a question of law. A new trial motion after a granted SJ just gives a trial court a shot to correct a legal mistake. So on appeal, that gets reviewed de novo, like any other legal question. Which isn’t inconsistent with the general standard because de novo review of legal error is baked into abuse of discretion.

Affirmed.

Whether or not to move for new trial after losing an SJ that results in a final judgment is an tricky strategic choice. On one hand, it superficially doesn’t really hurt. If you lose, the appeal is basically the same, just delayed a little. 

On the other hand, a new trial motion is time consuming. And given the right to appeal a grant, the case is likely going to the Court of Appeal anyways, subject to the same standard of review regardless. Also, sometimes the moving party’s arguments get better. Plus, most trial judges are pretty set on their decisions.

But I guess there's some marginal value, just stats-wise, in being an appellee vs. an appellant. Especially for post judgment settlement. So if you think the trial judge is persuadable, or if there’s some argument that could have been better presented, maybe it’s worth a shot.