The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects.

One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in that notice.

With those two conditions satisfied, where did the appellant look for a lack of jurisdiction? At the respondent’s interim filing of her supporting memorandum and affidavits, that’s where. Unlike most motions, the initial filing in a motion for new trial is not a notice of motion and a supporting memorandum (plus affidavits, if any). Instead, all the moving party has to file is a notice of intention to move for a new trial, specifying the statutory grounds on which the motion will be made and whether the motion will be made upon affidavits, or the minutes of the court, or both. (Code Civ. Proc., § 659, subd. (a).) The supporting memorandum and affidavits are not due until later, and it was the untimeliness of that filing that the appellant attacked in Kabran.

Unfortunately, appellant Sharp came armed mostly with authorities holding that an untimely filing of the notice of intention precludes jurisdiction to grant a new trial. Sharp claimed that two of the cases supported applying the same rule to the deadline for filing the motion, memorandum, and affidavits, but the Court of Appeal rejects that characterization of the cases. It finds that the first “did not involve any issue concerning the filing of the supporting motion and affidavits.” (Emphasis added.) It concludes that the other case, Erikson v. Weiner (1996) 48 Cal.App.4th 1663, is on point but but runs counter to a long string of cases by which “[i]t has long been held that the time limits for filing affidavits and counteraffidavits for new trial motions, though ‘strict’ [citations], are not jurisdictional.” (Emphasis in original.) The court offers a more detailed criticism of Erikson, but I’ll leave that to your reading of Kabran.