Order Denying New Trial Motion Not Appealable, Unless It Only Partially Denies It

Timothy Kowal, Esq.
April 21, 2021

Here is an easy way to get tripped up. A new trial motion is a common postjudgment motion that must be raised to preserve certain issues for appeal (most commonly excessive damages). If the court denies your new trial motion, the denial is not an appealable order. But if the court only partially denies the new trial motion – and partially grants it – that order is appealable.

Put otherwise, an order granting a motion for new trial is appealable. If you are unhappy that the court only partially granted your motion, you must appeal that partial grant.

In the breach of contract claim and cross-claims at issue in Instant Infosystems, Inc. v. Open Text, Inc. (D2d5 Apr. 20, 2021) no. B297123 (not published), the jury returned a mixed verdict. The trial court partially granted defendant's new trial motion on one issue (relating to damages), but denied the rest of the motion.

Defendant appealed the trial court's mixed ruling on its new trial motion.

Hoping to seize a technical advantage, plaintiff urged that an order denying a motion for new trial is not appealable. (Code Civ. Proc., § 904.1(a)(4).)

The court rejected plaintiff's argument. “[I]t is well established that a party seeking a new trial on all issues is an ‘aggrieved party’ when only a partial new trial is granted, and may appeal therefrom.” (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.) It does not matter that OpenText did not move for a new trial on all issues. The principle permitting appeal of a partial denial of a motion for a new trial (see generally Spencer v. Nelson (1947) 30 Cal.2d 162, 164) applies with equal force regardless of whether the appellant moved for a new trial on all or only some issues.

Posttrial motions are critically important in an appeal and an excellent time to consult appellate counsel.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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