Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The Court of Appeal knows this—after all, that is a quote directly from a Supreme Court dissenting opinion. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner, J.].) The court recently acknowledged that this supposedly iron-clad rule is, in fact, riddled with exceptions. (Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 (see summary and commentary here).)
Here is one more exception: We already knew that, when a motion for new trial is filed, that extends the time to appeal to 30 days after the motion is denied. And we already knew that the trial court’s deadline to deny the motion is 75 days after service of the notice of entry of judgment. That’s all laid out clearly in California Rules of Court 8.108 and Code of Civil Procedure section 660, and these rules are treated as jurisdictional. But if a party files a motion to disqualify the trial judge before the judge denies the motion for new trial, that tolls the 75-day period.
That is what the Fourth District Court of Appeal held in Gearing v. Garfield Beach CVS, LLC (D4d3 Nov. 8, 2022 no. G060807) 2022 WL 16827538 (nonpub. opn.). After the trial court nonsuited the plaintiff’s case, the plaintiff moved for a new trial. But then three weeks later—before the court had had a chance to rule on the new-trial motion—the plaintiff moved to disqualify the trial judge.
Under the normal rule, the motion for new trial would have been deemed denied automatically 75 days after the June 1 notice of entry of judgment, i.e., August 16. But at that time, the disqualification motion was still pending, and was not decided for another month in mid-September. The judge denied the motion for new trial a couple weeks later—by this time, well beyond the maximum 75-day period under Code of Civil Procedure section 660.
So even though the plaintiff filed her appeal within 30 days after the denial as rule 8.108 provides, the defendant argued this was too late: The motion for new trial motion had been “deemed denied” a month-and-a-half earlier, and the 30-day period after that had already expired.
The Court of Appeal rejected the defendant’s argument that the appeal was untimely. True, the defendant’s chronology was sound, and under normal operation of rule 8.108 and section 660, the motion for new trial would have been deemed denied in mid-August, making the plaintiff’s appeal in late October, more than 30 days later, untimely.
But the disqualification motion disrupted this chronology. Once the plaintiff filed her disqualification motion, the trial court was divested of jurisdiction to rule on the new-trial motion.
There is precedent for this holding in Collins v. Nelson (1940) 41 Cal.App.2d 107. The exact same thing happened Collins: a disqualification motion was filed before the trial court could timely rule on a new-trial motion. Collins held that the trial court’s time to rule on the new-trial motion was tolled during the pendency of the motion to disqualify, because it lacked jurisdiction to rule on the new-trial motion. (Collins, supra, 41 Cal.App.2d at p. 112.)
Collins reasoned: “To hold otherwise would lead to absurdity, because a party resisting a motion for new trial could defeat it merely by resorting to the proceedings named in section 170 ... , in the determination of which motion to disqualify the trial judge more than 60 days [CCP 660 now provides for 75 days –ed.] might reasonably be expected to elapse, especially if an appeal were taken, as in the present case.” (Id. at pp. 112-113.)
The Collins court is correct that it would be perverse to allow the nonmoving party to thwart a new-trial motion by filing a motion to disqualify, thus depriving the trial court of jurisdiction to act on the motion within the time allowed by law. But that does not make it “absurd” in the sense that the Legislature could not possibly have intended it. In fact, jurisdictional rules, by their nature, need must occasionally lead to perverse, even seemingly “absurd,” outcomes—such as the trial to appeal being dismissed as untimely because a clerk miscommunicated the date of entry to counsel.
Would it not also be absurd to allow an appellant to extend the jurisdictional time to appeal by the artifice of filing a motion for new trial followed by a motion to disqualify?
At any rate, this represents yet another exception to “jurisdictional” rules that are not supposed to admit of any exceptions.
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 www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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