Monday, December 10, 2018

In the December 2016 issue of Plaintiff Magazine, Valerie McGinty and Daniel Smith laid out three options with which to move forward after a motion for summary judgment or adjudication is granted. 

One option is to make a motion for a new trial.  This would allow a losing party to get a new trial, usually calendared faster than an appeal hearing, which may take two years.  This may offer a chance at turning the trial judge around and also allows for the presentation of a motion that is simple and clear.  A new trial motion may also help a party complete the record with newly discovered evidence such as an expert witness or other lay witness deposition that came up after the summary judgment hearing.

McGinty and Smith stress the necessity of timely notifying the new trial motion based on whether the summary judgment order is a grant or a judgment.  When a court order grants a summary judgment motion, there is no entry of judgment.  When a court order grants summary judgment and then dismisses all causes of action, the order becomes a judgment in California.  Notice of entry is complete at the time of deposit in the mail and receipt by the opposing party is not necessary for service to be effective. 

Since the court can't consider a new-trial motion that is untimely, it is imperative that the notice for new trial motion be filed on time.  The notice usually includes: (a) all possibly applicable grounds (Cal Code Civ. Proc., § 657) to maximize appeal possibilities; and (b) the date the court’s jurisdiction expires. (Cal Code Civ. Proc., § 660.)

Another option after a motion for summary judgment or adjudication is to file a writ.  A writ may be appropriate when a summary adjudication order eliminates the main issues in a case, but a writ is discretionary.  Writs are typically granted when there is a novel legal issue that interests a court, with less than 10% being granted.  Similar to a new trial, a writ may be a faster route to resolve a case than an appeal.  When filing a writ, be sure to verify that: (1) the writ is timely; (2) supporting record is sufficient to show that review is allowed; and (3) highlight novel issues to the court of appeal.

A third option after a summary judgment or adjudication is to file an appeal. When a summary judgment is erroneous, and a new trial motion and a writ may not be suitable, an appeal from summary judgment can give a favorable standard of review where the evidence is viewed in the plaintiff’s favor. Courts accept the facts in plaintiff’s evidence as true on appeal.

 

Read the article here.