Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The court recently acknowledged that this supposedly iron-clad rule is, in fact, riddled with exceptions.
Well, here is yet another 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 after the 75th day. But at that time, the disqualification motion was still pending. So even though the plaintiff filed her appeal within 30 days after the exonerated trial judge denied the new-trial motion, the defendant argued this was too late.
Held: The appeal was not untimely. The DQ motion tolled the judge’s time to act.