Clerk's Notice Did Not Trigger Shorter Deadline to File Posttrial Motion, Second District Holds

Timothy Kowal, Esq.
  •  
December 8, 2020

Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the clerk's notice of entry.

The case is Simgel Co. v. Jaguar Land Rover N. Am. (D2d8 Oct. 1, 2020) No. B292458 (opens in new tab). It is a lemon law case where the jury completed an ill-prepared verdict form to award plaintiff $26k in rescission damages. Judgment was entered. Entry of judgment sets up a 180-day deadline to file a notice of intent to move for new trial, to set aside and vacate under CCP 663, or for JNOV.

But the clerk served a notice of entry of judgment. A notice of entry sets up a tight 15-day deadline to file the notice of intent.

Here, the defendant filed its notice of intent 20 days later. Too late. The defendant missed the deadline, and the deadline is jurisdictional.

But wait, says the Second District. We have to take a closer look at the clerk's notice of entry. That is because the clerk cannot alter the jurisdictional deadline just on the clerk's own. Instead, the clerk's notice is only effective if that notice was provided “upon order of the court” or “under § 664.5.” The Supreme Court so held in Van Beurden Ins. Services, Inc. v Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51.

Held: The clerk's notice of entry was not effective to trigger the 15-day deadline, thus the 180-day deadline applied and the defendant's posttrial motions were timely. And the defendant's arguments were well-taken, thus the judgment was reversed.

Had the plaintiff filed its own notice of entry instead of relying on the clerk's, the outcome may have been different.

(Note this advice, about the plaintiff serving a notice of entry instead, does not apply in family law cases involving dissolution, nullity, legal separation, child custody/support, or parental relationship cases. In such cases, the clerk is required to serve the Notice of Entry on form FL-190. CRC 5.413, CCP 664.5(a). A party Notice of Entry is inapplicable. Also, in pro per cases, the clerk is required to serve the Notice of Entry. CCP 664.5(b).)

A further note: The deadline for the court to rule on a new trial motion (75 days under new CCP 660) does not start unless the notice of entry or clerk's mailing affirmatively states notice was given "upon order by the court" or "under CCP 664.5". CCP 660.

A still further note: Other than for posttrial motions and other special cases, the general rule is that the service of a clerk's notice of mailing of the file-stamped order triggers the 60-day deadline to appeal under 8.104, even if not ordered by court per CCP 664.5.

Posttrial motions are a good time to consult appellate counsel!