The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely have the right to move for new trial. No question. But Nickelson says you don't have a right to a ruling on the motion.
Nickelson is a domestic violence case among adult siblings and their elderly father living together. Their dispute is a bit drawn out and a touch ridiculous, involving one sweeping trash into the other's room and the other hitting back with a stick of butter, and other injuries that appear only slightly more serious than that. After the appellant-brother's claim was dismissed after trial, he moved for new trial arguing his evidence should have been let in, including video and photographic evidence and medical reports.
Here is what the trial court did about the appellant's new trial motion: the judge told the appellant to just file an appeal instead. And then the judge took the new trial motion off calendar.
Now, as a rule, I do not take domestic violence cases – the cases say they are subject to the deferential abuse of discretion standard, but that is understatement because in fact they are reversed only for the abuse of a very, very, very broad discretion. But this is a different issue. Were the court to deny the motion for new trial, that would be subject to abuse of discretion. But refusing to decide the motion is an irregularity in the proceedings. A judge may not simply take a cause off calendar once it has been submitted. Recall that Government Code section 68210 requires that judges may not continue receiving a salary unless the judge swears, under oath, that "no cause before him remains pending and undetermined for 90 days after it has been submitted for decision."
The Nickelson court acknowledged that taking a matter off calendar is not the same thing as deciding the matter. “ ‘ “Off [c]alendar” is not synonymous with “dismissal.” “Off” merely means a postponement whereas a “dismissal” in judicial procedure has reference to a cessation of consideration’ ” (R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193–1194).
But the court went on to note that, under Code of Civil Procedure section 660(c), where, as here, no order on a motion for new trial is entered within 75 days after the moving party's notice of intention, the motion is ultimately deemed denied by operation of law. That denial by operation of law is reviewable on appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) So whether the trial judge ruled on the motion, or could not calendar it within the 75-days – or just pocket vetoed it as happened here – the effect is the same: the motion was denied.
And all denials of motions for new trial are reviewed the same way: abuse of discretion. Did the trial court abuse its discretion by not considering any of the appellant's arguments? No, the Nickelson court held: "Here, all of the grounds raised in Maurice's motion for new trial were incorporated in his contentions on appeal, and we have given full consideration to them in our discussion of the issues raised by this appeal. We therefore conclude that no prejudice resulted to Maurice from the trial court's decision to take the motion for new trial off calendar."
Comment: I do not agree with the court's approach here. While it is true that a motion for new trial is denied by operation of law if not ruled on within 75 days after the notice of intent, I think the trial court's action here does not quite fit within the intention of this rule. The 75-day rule surely is not designed to allow trial judges to cavalierly disregard its duty to rule on new trial motions, as the trial court did here. Yes, the appellant had a statutory right to have the appellate court review the decision. But the appellant also had a statutory right to have the trial judge review the decision in the new trial motion. That right was disregarded, and not in a way that comported with ordinary discretion. This was an irregularity and an abuse of discretion.
Tim Kowal 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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.
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