When Timing is Everything

Willie Nelson’s saying that “the early bird gets the worm, but the second mouse gets the cheese” describes the world within which attorneys must navigate, where timing can make all the difference. That is particularly true within the context of post trial proceedings.

A layperson can be forgiven for believing that post trial proceedings primarily involve housekeeping or clean-up activities. But post trial proceedings can have a significant impact on the ultimate outcome of a case. The party that lost the verdict may still have an opportunity to snatch victory from the jaws of defeat as well as lose a virtuous appeal before it even gets off the ground.

It is impossible to identify, much less cover, all the traps and contingencies that lie in wait in the post trial world, but the following list identifies some of the common pleadings and issues one ought to be aware of before deciding when and where to step.

Memorandum of Costs

The prevailing party has 15 days from notice of entry of judgment to serve and file a verified memorandum of costs. (CRC rule 3.1700(a).) An opposing party’s notice of motion to strike or tax costs must be served and filed 15 days later. (CRC rule 3.1700(b)(1).) Unlike many of the other post trial deadlines discussed below, these deadlines are not jurisdictional and may be extended by agreement or court order. Notably, for a clerk’s notice of entry of judgment to trigger the 15-day deadline it must comply with CCP § 664.5. Many times, however, a clerk will mail a file-stamped copy of the judgment with something akin to a “Certificate of Mailing” which does not satisfy the “service pursuant to court order” requirement of CCP § 664.5(d) and therefore actually fails to start the 15-day clock. (See, Van Beurden Ins. Svcs. v. Customized Worldwide Weather (1997) 15 Cal.4th 51, 64.) The potential impact of the section 664.5 requirement weaves it way in and out of the issues discussed below.

Motion for Attorney Fees

The prevailing party contractually or statutorily entitled to attorney fees must serve and file a motion for attorney fees within the time for filing a notice of appeal under CRC rules 8.104 and 8.108. (CRC rule 3.1702(b) (1).) Generally, that means 60 days from notice of entry of judgment, with an additional 30 days if certain valid post-judgment motions are filed (e.g., Motion for New Trial, JNOV). The deadline for filing this motion may also be extended by stipulation or court order. In contrast to the requirement that a clerk’s notice of entry of judgment comply with CCP § 664.5 to trigger the 15-day deadline to file a Memorandum of Costs, compliance with section 664.5 is NOT required to trigger the 60-day deadlines to appeal or file a motion for attorney fees. As a result, while they may all refer to “notice of entry of judgment”, different pleading deadlines may be running on different clocks depending on who served notice and when. (For further discussion see Eisenberg, Horvitz & Wiener, CAL. PRAC. GUIDE: CIVIL APPEALS & WRITS (The Rutter Group 2011), p. 3-18, § 3:38.1)

Good Faith Settlement Offsets

Under CCP § 1032, the prevailing party is entitled to costs as a matter of right. But before the trial court determines who the “prevailing party” is, it must take into account good faith settlement offsets. (See, Goodman v. Lozano (2010) 47 Cal.4th 1327.) That means that, even if the jury awarded the plaintiff a monetary recovery, the court must first deduct any good faith settlements before determining which party is entitled to costs, and possibly attorney fees. If those pretrial settlement offsets reduce the plaintiff’s award to zero, the defendants may be the prevailing party under section 1032 and entitled to their costs and attorney fees.

CCP § 998 Adjustments

Irrespective of who the prevailing party is, for purposes of section 1032, a pretrial CCP section 998 offer could have a significant impact on the ultimate outcome of the case, especially if expert costs and/or attorney fees are at stake. An attorney has to consider several moving parts in the analysis, but the impact of a well-conceived pretrial offer to compromise may undercut or overshadow a jury’s verdict. Importantly, defendants get the benefit of any good faith settlements entered as of the time that the section 998 offer was outstanding. (See, Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1438.) For more on section 998 offers, see Nick Casper’s article.

Motions for New Trial and/ or JNOV

Most attorneys are familiar with these motions but they are worth mentioning because the ultimate outcome of a case, or whether a party is the appellant or respondent on appeal, may turn on a motion for new trial or JNOV. A motion for new trial asks the court to reconsider the evidence and is required in order to preserve certain issues for appeal (e.g., excessive or inadequate damages). It is also the only way to make a record of incidents or developments that took place off the record, such as jury misconduct or newly discovered evidence. A motion for JNOV asks the court to set aside the verdict where the losing party should have had a nonsuit or directed verdict. The court may not weigh the evidence or judge the credibility of witnesses and all reasonable inferences are construed in the winning party’s favor.

Generally, the notice of intent to move for new trial and the motion for JNOV must be filed and served within 15 days of mailing notice of entry of judgment. (CCP §§ 659, 629.) Just as with the Memorandum of Costs, for a clerk’s notice to trigger this 15-day deadline, it must comply with section 664.5’s “service pursuant to court order” requirement. (See, Van Beurden, 15 Cal.4th at 64.) The 15-day deadline is jurisdictional and there is no section 1013 extension if the notice is served by mail.

However, the new trial motion’s points and authorities, affidavits and other supporting documents may be filed 10 days later, and that deadline may be extended by the court for good cause for up to 20 days. (CRC rule 3.1600; CCP § 659a.)

Finally, it is important to note that the court’s power to rule on a motion for new trial or JNOV generally expires 60 days after mailing notice of entry of judgment. (CCP § 629, 660.) If the court fails to issue a ruling within that time period, the motion is denied by operation of law.

Notice of Appeal

The most important post trial deadline is the 60-day deadline for filing a notice of appeal. (CRC rule 8.104.) That deadline is triggered by a clerk or party’s service of a notice of entry of judgment, although simply serving a file-stamped copy of the judgment is sufficient. This deadline is jurisdictional and it cannot be extended by stipulation, court order or section 1013. As discussed above, a clerk’s mailing of a file-stamped copy of the judgment does NOT need to comply with CCP § 664.5 to trigger the 60-day appeal deadline. (See, Eisenberg, Horvitz & Wiener, CAL. PRAC. GUIDE: CIVIL APPEALS & WRITS (The Rutter Group 2011), 3-18, § 3:38.1.)

Rule 8.108 sets forth the very limited circumstances in which the 60-day deadline can be extended. Generally, the filing of certain valid post-trial motions (e.g., timely filed motion for new trial, motion to vacate the judgment, motion for JNOV) extends the period to challenge the judgment by another 30 days (from notice of entry of the order or denial of the motion by operation of law). Filing an invalid (e.g., late) post trial motion does NOT extend the 60-day deadline. Importantly, if a party wants to challenge a trial court’s order on a post judgment motion, it must generally file a separate notice of appeal from that order; simply appealing from the judgment will not preserve challenges to separately appealable post judgment orders.

Finally, in certain circumstances, a protective crossappeal may be advisable. For instance, if a party appeals from an order granting a new trial, the party who moved for new trial should cross-appeal from the judgment so that in the event that the order granting a new trial is reversed, there is still a challenge to the judgment. (See, Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 910.) Otherwise, if the Court of Appeal reverses the new trial order, the judgment stands.

Many of the rules discussed above have additional exceptions and nuances that must be closely examined. The differences between section 664.5 and rule 8.104 can create some confusion as to deadlines, particularly where there is interplay between the pleadings governed by the different rules. The safest strategy is to calendar all post judgment deadlines with reference to the date that judgment was actually entered. So, make a checklist and consult an appellate practitioner before judgment is entered, or at least consult the practice guides. Moreover, it is not enough to rely on the overburdened trial courts to set hearings and issue rulings on time. Since timing can make all the difference, attorneys must be extra vigilant to not only ensure that they meet their deadlines, but that the courts meet theirs.

Christopher Lustig divides his time between appellate and general civil litigation matters at the Walnut Creek firm of McNamara, Ney, Beatty, Slattery, Borges & Ambacher in Walnut Creek. He can be contacted at christopher.lustig@mcnamaralaw.com.

Other articles you may be interested in:

CCP Section 998 – The Nuts and Bolts of the Powerful Settlement Device – by Nick Casper
What to Do if Your Civil Litigation Client Files Bankruptcy – David Schuricht
How To: Writs of Attachment in Financial Elder Abuse Litigation – Andrew Verriere
Ethics Corner: Alternative Litigation Funders – Carol M. Langford


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