Sometimes, due to inadvertence, eagerness to move the case along, or strategic considerations, litigants will jump the gun and file a notice of appeal while post-trial motions are pending. What are the consequences of this strategy in California?
It depends. For certain post-trial motions, a superior court retains jurisdiction to rule on them even though a notice of appeal is filed—but that is not true for all such motions. And in some cases, the law is not yet settled.
As always, careful research, attention to detail, and calendaring are required when it comes to preserving issues and rights for appeal.
When a Notice of Appeal Is Filed, Can the Superior Court Still Rule?
1. Motion for New Trial (Civ. Proc. Code, § 657-660)
As a refresher, a motion for a new trial is generally designed to correct something that went wrong at trial and the litigant would like a “do-over.” In addition, a motion for new trial must be brought to preserve for appeal a claim that damages were excessive or inadequate, including a punitive damage award. A new trial motion is often combined with a request for conditional additur or remittitur.
A notice of appeal filed while a new trial motion is pending does not deprive the trial court of jurisdiction to rule on the motion. (E.g., Neff v. Ernst (1957) 48 Cal.2d 628, 634; Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 485-486; Jon B. Eisenberg, California Practice Guide: Civil Appeals and Writs ¶¶ 375-376 (The Rutter Group 2021) (“Rutter”).) The theory is that a new trial motion is collateral to the judgment and is therefore not affected by a notice of appeal of the judgment. (Weisenburg, supra, 58 Cal.App.3d at p. 485; see Code Civ. Proc., § 916, subd. (b).)
2. Motion for Judgment Notwithstanding the Verdict (“JNOV”) (Civ. Proc. Code, § 629)
A JNOV motion is generally brought if, at trial, it becomes apparent that the case never should have been brought to trial, often due to some legal issue. A motion for partial JNOV may also be appropriate.
Litigants should also consider bringing a strategic JNOV if (1) they intend to appeal, and (2) they would like the Court of Appeal to declare that litigant the prevailing party as a matter of law, and not to allow a retrial after the case is remanded to the Superior Court.
There is a split of authority whether a notice of appeal deprives the trial court of jurisdiction to rule on a pending JNOV motion. (Rutter, supra, ¶ 3:90; compare Foggy v. Ralph F. Clark & Assocs., Inc. (1st Dist. Div. 2 1987) 192 Cal.App.3d 1204, 1212-1213 [trial court retains jurisdiction], with Weisenburg, supra, 58 Cal.App.3d at p. 486 [4th Dist. Div. Two, holding that trial court is divested of jurisdiction].)
Until the split of authority is resolved, superior courts may choose to follow either line of precedent, though as a practical matter they will usually follow the decision from the appellate district in which they sit. (See Auto Equity Sales, Inc. v. Superior Court (Hesenflow) (1962) 57 Cal.2d 450, 456; Rutter, supra, ¶ 14:195.)
3. Motion to Set Aside or Vacate the Judgment (“663 Motion”) (Civ. Proc. Code, § 663–663a)
Finally, a 663 motion may be brought if the moving party believes that there is a discrepancy between the special verdict and the judgment. (Sometimes a 663 motion is combined with a motion under Civ. Proc. Code, § 473, subd. (b), seeking to relieve a party or their legal representative from an order or judgment due to the party or counsel’s mistake, inadvertence, surprise, or excusable neglect.)
A 663 motion may also be brought following a bench trial if the moving party believes that there is an incorrect legal basis for the decision, or that the decision is not supported by the facts. However, following bench trials, a 663 motion cannot be used as a substitute for following proper procedures to request and object to a proposed statement of decision.
A notice of appeal filed while a 663 motion is pending deprives the trial court of jurisdiction to rule on the motion. (Takahashi v. Fish & Game Commission (1947) 30 Cal.2d 719, 725, rev’d on other grounds, (1948) 334 U.S. 410; Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1634; Weisenburg, supra, 58 Cal.App.3d at p. 486; Rutter, supra, ¶ 3:84.)
However, courts mayrecognize an exception for a 663 motion directed at a judgment that is truly “void.” (Rutter, supra, ¶¶ 3:84, 7:42.) For example, an order may be void in the rare case when the trial court lacked jurisdiction or the judge lacked judicial authority. (See Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 524; Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 852.) In cases involving a truly void judgment, the trial court may still have jurisdiction to rule on a 663 motion despite the litigant’s noticing an appeal from that judgment.
Could the Trial Court Lose Jurisdiction to Rule on Post-Trial Motions for Reasons Other Than a Notice of Appeal?
Be aware, there is a reason why a Superior Court may lose jurisdiction to rule on pending post-trial motions other than a notice of appeal—the passage of time. If that occurs, the motions are deemed denied.
For all three post-trial motions, the trial court loses jurisdiction to rule 75 days after (1) the clerk mails notice of entry of judgment, (2) any party serves notice of entry of judgment (whichever comes earliest), or (3) after filing of the notice of intention to file the post-trial motion (if applicable) if no notice of entry of judgment is served. (Civ. Proc. Code, § 660, subd. (c) [new trial motions]; id. § 659, subd. (b) [JNOV motions]; id. § 663a, subd. (b) [663 motions].)
Assuming the motions were valid (see CRC 8.108), the applicable appeal deadlines will then be calculated from the date on which the orders were deemed denied.
Must Litigants Choose Between Waiting for a Ruling on Post-Trial Motions and Pursuing an Appeal of the Judgment?
Fortunately, in most situations a litigant does not need to choose between filing a timely notice of appeal of a judgment and waiting for the Superior Court to rule on a pending post-trial motion, because post-trial motions extend the time to file a notice of appeal of the judgment. (CRC 8.108(b) [new trial motions], 8.108(d) [JNOV motions], CRC 8.108(c) [663 motions].)
However, it is important to note that the post-trial motion must be timely and procedurally proper for this to be true. (CRC 8.108.)
Finally, recall that a separate notice of appeal may be required to appeal any orders ruling on the litigant’s post-trial motions. Timely, procedurally valid post-trial motions extend the time to file a notice of appeal of the original judgment. The orders on post-trial motions may be separately appealable, and a separate notice of appeal may have to be filed. (Civ. Proc. Code, §§ 904.1, subd. (a)(4) [orders granting new trial and orders denying JNOV], 663a, subd. (e) [order granting 663 motion to set aside/vacate the judgment reviewed on appeal in the same manner as a special order made after final judgment]; CRC 8.108(d)(2) [order denying JNOV].)
In post-trial motion practice, be extra vigilant about accurate calendaring—for all post-trial motion filing deadlines, the superior court’s deadline to rule on any post-trial motions that are filed, and the applicable notices of appeal.
In general, litigants need not file a notice of appeal of a judgment while a timely, procedurally proper post-trial motion is still pending. But if they do appeal while such a motion remains pending (and the trial court’s time has not run out to rule on the motion), there still may be an opportunity for the trial court to rule on the post-trial motion. As discussed, the Superior Court will still have jurisdiction to rule on a pending new trial motion, may still have jurisdiction to rule on a pending JNOV motion (there is a split of authority on that issue), and will not have jurisdiction to rule on a pending 663 motion.
Finally, if it comes to counsel’s attention that a post-trial motion was untimely or procedurally improper, prudence may dictate filing a notice of appeal of the judgment right away—because, again, only timely and procedurally proper post-trial motions extend the time to file a notice of appeal of the judgment. (CRC 8.108.)