An Untimely Motion to Vacate Is Still “Valid” to Extend the Deadline to Appeal

Timothy Kowal, Esq.
September 21, 2022

You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) -- Cal.Rptr.3d --- (2022 WL 4232631) after the filed a motion to vacate under Code of Civil Procedure section 473(b) on grounds of inadvertence, surprise, mistake, or excusable neglect.

Fortunately for the appellants, the Court of Appeal held that a section 473 motion to vacate is still “valid” to extend the time to appeal, so long as it is filed within section 473’s outer six-month deadline. And that is the case even if the trial court denies the section 473 motion for not being filed sooner.

The plaintiffs in Arega lost their workplace discrimination case on summary judgment. A little over 60 days later, the plaintiffs brought a motion to vacate. The motion was brought under Code of Civil Procedure section 473(b) based on plaintiffs’ counsel inadvertence in failing to contest the tentative ruling and request oral argument. Counsel declared he had been suffering “flu-like” symptoms that day. The trial court ruled this was too little, too late, and denied the motion as untimely.

Only a “valid” posttrial motion extends the deadline to appeal.

The district moved to dismiss the appeal. By the time the appeal was filed, it was more than 60 days after the notice of entry of judgment had been served. The plaintiffs argued their time to appeal was extended because of their motion to vacate. But the district argued that the extension of time, under California Rules of Court, rule 8.108, only applies where a “valid” motion is filed. Here, the trial court ruled the motion to vacate was untimely. Thus, the district argued, it was invalid, and could not extend the deadline to appeal.

The district had authority to support its position. Rule 8.108 provides that the time to appeal may be extended when a party files a “valid” motion to vacate. And a “valid” motion means two things: (1) it must be based on a recognized ground; and (2) it must be timely.

A “valid” motion to vacate, for purposes of extending the time for filing a notice of appeal, means “a motion based on some recognized grounds for vacation; it cannot be stretched to include any motion, regardless of the basis for it.” (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010.)

Here, the motion to vacate was “valid” because it was based on a recognized ground and filed within the statute’s outer deadline.

Here, the First District Court of Appeal concluded that the plaintiffs’ motion to set aside the judgment, although unsuccessful, was a “valid” motion to vacate judgment under rule 8.108(c). “There is no dispute that Plaintiffs’ motion was based on a recognized ground for vacation as it was based on “[i]nadvertence, surprise, mistake, or excusable neglect” pursuant to section 473(b).”

The closer call was whether the motion was timely. The difficulty here was that the statute has two clauses governing the time of filing. Section 473(b) states that a motion to vacate a judgment or an order “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

Here, the plaintiffs filed the motion to vacate a little more than two months after the summary judgment. This was within the six-month outer limit. But, according to the trial court, it was not a “reasonable time,” so the motion was untimely.

So does this mean the motion was “invalid” under California Rules of Court, rule 8.108?

No, the motion was still valid to extend the time to appeal, the Court of Appeal held. The problem here is that the motion deadline here is discretionary, and yet this discretionary deadline to file the motion affects the jurisdictional deadline to file the appeal. So the court held that the shorter, discretionary deadline does not impact that jurisdictional analysis. “Given that what constitutes a reasonable time requires a case-by-case determination and depends on the discretion of the trial court, we do not accept that this requirement is a prerequisite to a motion under section 473(b) being ‘valid’ for purposes of Rule 8.108(c).”

(The court went on to note that, here, there was no evidence the delay in filing the motion to vacate as the result of bad faith or gamesmanship. So look for that possible distinction in future cases.)


Posttrial procedure gets confusing, and dangerous. If this were a motion for new trial, my advice would be: file the appeal now. That is because you get the best of both worlds: you have safely preserved your right to appeal, and because the motion for new trial is a collateral proceeding, the trial court may hear and decide it despite the pending appeal. (Neff v. Ernst (1957) 48 Cal.2d 628, 634.) Win-win.

But the same is not necessarily true with all posttrial motions.

There is a split of authority whether a JNOV motion is treated the same way as a new trial motion. (compare Foggy v. Ralph F. Clark & Assocs., Inc. (1st Dist. Div. 2 1987) 192 Cal.App.3d 1204, 1212-1213 [trial court retains jurisdiction], with Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486 [4th Dist. Div. Two, holding that trial court is divested of jurisdiction].)

And when it comes to a motion to vacate, taking an appeal divests the trial court’s authority to rule. (Takahashi v. Fish & Game Commission (1947) 30 Cal.2d 719, 725 [motion to vacate under CCP 663], rev’d on other grounds, (1948) 334 U.S. 410; Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1634; Weisenburg, supra, 58 Cal.App.3d at p. 486.]

So it is very important to carefully and timely prepare and file posttrial motions if you are relying on them to extend the time to appeal. This is an important time to consider consulting an appellate specialist.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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