New Trial Motion Not Heard Within Statutory Period Deemed Denied

Timothy Kowal, Esq.
February 3, 2021

Beware when filing new trial motions: if you are relying on it to extend your time to appeal, be mindful that it is heard within the statutory 75-day period.

In Choochagi v. Barracuda Networks, Inc. (D6 Dec. 30, 2020) No. H045194, a jury returned a defense verdict for employer on employee's disability discrimination and wrongful termination claims. Employee then filed a timely notice of intent to move for new trial. But the trial court did not hear the motion until more than 60 days after the notice of entry of judgment. (The 60-day deadline under Code Civ. Proc., § 660 was extended to 75 days effective January 1, 2019.) Thus, the trial court deemed it denied by operation of law.

Held: The trial court was correct. New trial motions not heard or decided at the expiration of the statutory period are deemed denied by operation of law.

The deadline to decide new trial motions is jurisdictional and is not excused by inadvertence either by the moving party or the court. " 'It is the duty of the party to be present and see that his motion for new trial is set for hearing within the statutory time. If it has been inadvertently continued by the court to a date too late under the statute the party should move the court to advance the matter on the calendar. When he is guilty of lack of diligence in the prosecution and presentation of his motion, he cannot complain of the court's inadvertence.' " (In re Shepard's Estate (1963) 221 Cal.App.2d 70, 74.)

Besides, plaintiff here was aware of the hearing date, having given notice of it two days after filing his motion. While Code of Civil Procedure section 661 requires that the clerk "shall call the motion to the attention of the judge," and that the motion "shall be argued ... not later than ten (10) days before the expiration of" the statutory period, the buck stops with the appellant. Appellant ought to have alerted the court to the problem.

Somewhat incongruous with its holding to this strict rule, the Sixth District went on to reach the merits anyway, noting plaintiff had "timely appealed from the order granting summary adjudication and the order denying his motion for new trial." But orders granting summary adjudication are not appealable. Nor are orders denying motions for new trial.

Parties exploring appeals also ask this question a lot: The trial judge was biased against me. Can we overturn the judgment because of it? Answer: Almost always no. Here is how the Sixth District addressed it.

Appellant argued that the trial judge's comments made in sustaining objections at trial betrayed a "lack of belief" in his attempt to prove employer "failed to follow its own written policy of progressive discipline." Appellant argued these comments amounted to judicial bias. The court rejected this, noting: "It is 'extraordinary' for an appellate court to find judicial bias amounting to a due process violation," that judicial bias will be found only where "the judge's behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial," and that "Mere expressions of opinion, based on observation of the witnesses and evidence, do not demonstrate judicial bias," quoting Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 589.

Tim Kowal 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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