How does the extension of time to appeal under rule 8.108 work?

Timothy Kowal, Esq.
September 22, 2022

So you are going to take an appeal, but you are going to take a run at a motion for new trial first? Here is another case that demonstrates how many things can go wrong when relying on posttrial motions to extend the time to appeal.

Sharma lost her auto-defect case after a jury trial. Instead of immediately appealing, Sharma timely file a notice of intent to move for new trial.

For some reason, Sharma did not file the memorandum and supporting papers. And Sharma did not show up at the hearing. But instead of denying the motion, the trial court took the motion off calendar, and the defendant served notice that the motion was off calendar.

Shama filed her notice of appeal. She filed it more than 60 days after the notice of entry of the judgment. But she filed it within 30 days after the motion for new trial would have been deemed denied, i.e., 75 days after the notice of entry. (Code Civ. Proc., § 663a(b).)

So whether her appeal was timely depended on whether her motion for new trial was valid, and when it was denied.

Only a “valid” new trial motion extends the time to appeal, so is a new trial motion without a memorandum “valid”?

When the appellant files a “valid” motion for new trial, rule 8.108(b) provides for an extension of the time to appeal. Rule 8.108(b) states:

“If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply: ”(1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: ”(A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; ”(B) 30 days after denial of the motion by operation of law; or ”(C) 180 days after entry of judgment.”

Here, Sharma never filed the actual motion and did not appear at the hearing. The Court of Appeal opined that “In our view, her failure to pursue the motion reasonably supports a conclusion that her notice of intention to move for new trial was not valid.”

But the court stopped short of holding as much. Instead, the court went on to conclude that, even if the new trial motion was valid, the appeal was still untimely.

Comment: The motion seems valid to me, despite the missing supporting papers and the nonappearance at oral argument. Rule 8.108 is triggered when a party “serves and files a valid notice of intention to move for a new trial….” A memorandum or appearance at the hearing are not mentioned in the rule. Under Code of Civil Procedure section 659, a memorandum and supporting papers do not have to be filed until 10 days after the notice of intent. Thus, in this commentator’s view, when Shama filed and served the notice of intent, it was valid. That cannot be undone by anything Shama later did, or failed to do.

An extension under rule 8.108 may be forfeited if not timely briefed (but this seems a dubious holding).

Unfortunately for Shama, she did not argue in her brief that rule 8.108 applied to extend her time to appeal. Instead, she waited until oral argument. There, she argued that the trial court’s order taking the motion for new trial off calendar was not a denial of the motion. Thus, the 180-day provision applied under rule 8.108(b)(1)(C).

This seemed a decent argument. But the court held that “Sharma forfeited this argument by failing to raise it in her briefs.”

[Comment: This is not right. The deadline to appeal is jurisdiction, and jurisdiction arguments are never waived and may be raised at any time. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721; Keiffer v. Bechtel Corp. (1998) 65 Cal.App.4th 893, 896 ["adequacy of the court's subject matter jurisdiction must be addressed whenever that issue comes to the court's attention"].)]

The court went on to state that Sharma’s argument failed on its merits, because the trial court’s order taking the motion for new trial off calendar was, in effect, an order denying the motion:

“The “formal disposition” of the order is irrelevant, and Sharma's focus on the absence of the word “denied” in the judge's order is misplaced. (Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1024, fn. 4.) Where, as here, the “legal effect” of an order taking a motion off calendar is to deny the motion—as opposed to postpone its resolution for a later hearing—we treat it as just that, a denial. (Ibid.) Given Sharma's failure to pursue the new trial motion, the judge's decision to take it off calendar “in legal effect ... constituted a denial of the motion.” (Ibid.; accord, American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 877, fn. 1.)”

Thus, the 30-day period under rule 8.108(b)(1)(A) began running as soon as the defendant served that order on the same day, and the appeal filed more than 30 days later was untimely.

Comment: I don’t think this is sound reasoning. An order taking a motion off calendar may eventually prove to be, “in effect,” a denial, as happened here. But not necessarily. It is just as likely, for instance, that Sharma might have appeared ex parte to explain why she failed to appear, and to reset the hearing on the motion. And the trial court certainly was empowered to grant that request. (Had the trial court actually denied the motion for new trial, the trial court’s power over that collateral proceeding would have been at an end. People v. Wisely (1990) 224 Cal.App.3d 939, 948 ("'[O]nce a trial court has decided a new trial motion, it may not reconsider its ruling or entertain subsequent requests for new trial,' … 'otherwise, proceedings on new trial motions might `become interminable.'"].)

At any rate, courts and litigants are not meant to speculate about such possibilities. That is why the Legislature provided at section 663a that “the power of the court to rule on a motion for a new trial shall expire 75 days after” the notice of entry or the filing of the notice of intent. Until that statutory period actually expires, or the trial court actually denies the motion, the motion is not actually denied.

In this commentator’s view, the appeal was timely. Still, it is hard to feel sympathy for this appellant, who failed to file papers supporting the new trial motion, failed to appear at the hearing, and apparently took no action to explain or remedy these omissions.

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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