This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

self-study / Appellate Practice

Nov. 17, 2021

Navigating civil posttrial motions and the path to appeal in state court

Paul R. Johnson

Partner, King & Spalding LLP

Phone: (213) 443-4355


Jocelyn Sperling

Attorney, Law Offices of Jocelyn Sperling



The trial does not go well, so it is time to consider posttrial motions and an appeal. Posttrial motions can be tricky, given different grounds for relief and procedural traps. There are jurisdictional deadlines. An appeal can be lost before it starts if a party mistakenly thinks the time to file has been extended by a procedurally invalid or untimely decided posttrial motion. This article just skims the surface of some issues to consider for unlimited civil cases in California state courts.


Grounds for new trials

A new trial motion may be based only on the grounds set forth in Code of Civil Procedure Section 657.

A new trial motion offers an opportunity to revisit important reasons your client did not get a fair trial. Section 657(1) (all statutory citations are to Code Civ. Proc.). You objected to inadmissible testimony but the judge let it in. You proffered perfectly good evidence but the judge kept it out. The other side violated an in limine order, inflaming the jury; you moved for a mistrial, but the judge let it go. Jurors kept texting during testimony, but no mistrial. You can resurrect these issues and show how, individually and in combination, they warrant a new trial.

If the jury's verdict was inexplicable, consider the trial judge's special authority to find the evidence insufficient to support the verdict and to give you a do-over before a new jury (Section 657(6)) -- or to increase or decrease the amount of damages (with a new trial to follow if the other side refuses the adjustment) (Sections 657(5), 662.5). The trial court sits as a "13th juror" and may reassess witness credibility, reweigh the evidence, and draw reasonable inferences different than those drawn by the jury. E.g., Johnson & Johnson Talcum Powder Cases, 37 Cal. App. 5th 292, 337 (2019). There is some tension in the case law about what that means in practice. Some cases explain that the trial court sits as an "independent trier of fact," whereas others state that the trial court must not substitute its "personal opinion" for the jury's. Compare, e.g., Lane v. Hughes Aircraft Co., 22 Cal. 4th 405, 412 (2000), with Huy Fong Foods, Inc. v. Underwood Ranches, LP, 66 Cal. App. 5th 1112, 1126 (2021); see also Section 662.5(a) (redetermining damages as trial court finds "in its independent judgment").

Grounds of "accident or surprise" and newly discovered evidence often fail because they require a showing of diligence and cannot simply be based on attorney mistake or negligence. Section 657(3), (4); In re Marriage of Liu, 197 Cal. App. 3d 143, 153-55 (1987).

Examples of "error in law" include challenges to jury instructions or evidentiary rulings, or a court's application of the wrong legal standard in a bench trial. Section 657(7); McCarty v. State of California Dept. of Transp., 164 Cal. App. 4th 955, 983-84 (2008) (jury instructions); Hernandez v. County of Los Angeles, 226 Cal. App. 4th 1599, 1616 (2014) (evidentiary ruling).

Though it sounds similar to "error in law," that the verdict or decision is "against law" applies only when no other Section 657 ground applies. Section 657(6); Collins v. Sutter Memorial Hospital, 196 Cal. App. 4th 1, 17 (2011). This ground applies to inconsistent findings in a special verdict. Shaw v. Hughes Aircraft Co., 83 Cal. App. 4th 1336, 1344 (2000).

The issue raised might fall under several grounds. Err on the side of caution and include all possible grounds.

Prejudice, forfeiture and preserving issues

Whatever the grounds for the motion, you must show prejudice. The trial court cannot grant a new trial if the error was harmless. See Cal. Const., art. VI, Section 13; Nazari v. Ayrapetyan, 171 Cal. App. 4th 690, 694 (2009). Prejudice occurs where it is "reasonably probable" the outcome would have been different but for the error -- but "probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility," of a different outcome. Cassim v. Allstate Ins. Co., 33 Cal. 4th 780, 800 (2004).

If you remain silent when a concern arises during trial, the issue will likely be forfeited if not raised until the new trial motion. See Nissan Motor Acceptance Cases, 63 Cal. App. 5th 793, 811-12 (2021).

If raising juror misconduct posttrial, declarations are required to show both client and counsel were unaware of the misconduct until after the verdict. Weathers v. Kaiser Foundation Hospitals, 5 Cal. 3d 98, 103 (1971).

Consider whether a posttrial motion is required before an issue can be raised on appeal. For example, a motion for new trial on excessive or inadequate damages is required before a party may challenge the amount of damages on appeal, but it is not required before raising legal errors like an improper measure of damages. Glendale Federal Savings & Loan Assn. v. Marina View Heights Development Co., 66 Cal. App. 3d 101, 122 (1977). Also, a new trial motion may be required to introduce evidence into the record and raise an issue before an appeal (e.g., declarations showing jury misconduct in deliberations, or newly discovered evidence).

Procedural steps

The procedural requirements for new trial motions and the trial court's decision are fairly technical and warrant careful attention. Sections 657-662.5. The "notice of intention" (not a notice of motion) must list all grounds asserted. Section 659(a). Any ground not listed may be deemed forfeited (Wagner v. Singleton, 133 Cal. App. 3d 69, 72 (1982)); be overinclusive and consider listing them all. Also, the notice must state whether the motion will be based on affidavits, the minutes of the court, or both; the answer depends on which grounds the motion relies on. Section 658.

The deadline to file the notice of intention is jurisdictional. Kabran v. Sharp Memorial Hospital, 2 Cal. 5th 330, 342 (2017). It must be filed after the decision is rendered and before entry of judgment, or within 15 days after the clerk or any party serves notice of entry or a file-stamped copy of the judgment. Section 659(a). In the rare case when no notice is served, the deadline is 180 days after entry of judgment. Ibid. This deadline cannot be extended by order, stipulation or the method of service. Sections 659(b), 1010.6(a)(4)(B)(i), 1013(a), (c). Deadlines for supporting papers and opposing papers are set forth at Section 659a. After service of the first notice of intention, any other party has 15 days to file and serve another notice of intention. Section 659(a)(2). Civil law and motion rules do not apply posttrial. Cal. Rules of Court, rules 3.1100, 3.1103.

The trial court loses jurisdiction to rule on the motion 75 days after service of notice of entry or a file-stamped copy of the judgment; or, if no notice is served, 75 days after the first notice of intention is filed. Section 660(c). Tell the trial court at the outset when it will lose jurisdiction, and propose a briefing and hearing schedule that gives the court sufficient time to prepare an order.

A court's order granting a new trial motion must state the grounds and include a statement of reasons, or the statement of reasons may be filed within 10 days (also a jurisdictional deadline). Section 657. A statement of reasons is essential if the motion is granted on the ground of excessive/inadequate damages or insufficiency of the evidence. Oakland Raiders v. National Football League, 41 Cal. 4th 624, 634 (2007).

Motions for Judgment Notwithstanding the Verdict (JNOV)

Did the jury find for the plaintiff even though there was insufficient evidence to prove the claim, or for the defendant on an affirmative defense even though there was insufficient evidence to prove it? If so, consider a JNOV motion, which challenges the verdict as a matter of law. Section 629(a). This is not a vehicle to challenge the evidence; a JNOV motion can be granted only if the verdict is not supported by substantial evidence. Begnal v. Canfield & Associates, Inc., 78 Cal. App. 4th 66, 72 (2000). The evidence and inferences are viewed in favor of the prevailing party; the trial court cannot reweigh evidence or assess credibility. Ibid.

JNOV motions are often filed with new trial motions. If both motions are granted, the new trial order is a backup to the JNOV. The new trial order becomes effective if the JNOV is reversed on appeal and the new trial order is not appealed or is affirmed on appeal. Section 629(d).

A motion for nonsuit or directed verdict is not a prerequisite to a JNOV motion. Section 629(a). Also, a trial judge might grant JNOV even after denying nonsuit or a directed verdict; that way, if JNOV is reversed on appeal, there will be a jury verdict that the appellate court can reinstate.

JNOV motions are generally governed by the same procedural rules as new trial motions, with the same jurisdictional deadlines. Sections 629, 659, 659a, 660.


A motion to vacate the judgment and enter a different judgment may be brought under Section 663 if there is an erroneous application of the law to the undisputed facts or to the facts found by the trier of fact. Like a JNOV motion, a Section 663 motion cannot be used to challenge factual findings; the different judgment must be "compelled by the facts found." Garibotti v. Hinkle, 243 Cal. App. 4th 470, 477 (2015). Section 663 motions are generally governed by the same procedural rules as new trial motions. Sections 663a, 659a, 660.

Other posttrial motions can challenge clerical errors and void judgments. See Section 473. Where a jury fails to reach a verdict, a motion for judgement based on insufficiency of the evidence must be filed within 10 days after the jury is discharged. Section 630(f).


Can you appeal?

Section 904.1 -- the primary statute governing appeals in unlimited civil cases -- indicates that some posttrial orders are appealable, and others are not. For example, orders granting new trial motions and denying JNOV motions are appealable. Sections 629(d), 904.1(a)(4). Orders denying new trial motions and granting JNOV motions generally are not, but they are still reviewable on appeal from the judgment. Walker v. Los Angeles County Metropolitan Transportation Authority, 35 Cal. 4th 15, 18 (2005) (order denying new trial motion reviewable on appeal from judgment); Trujillo v. North County Transit District, 63 Cal. App. 4th 280, 285, n.2 (1998) (if JNOV motion is granted, appeal is from subsequent judgment). Orders granting or denying statutory motions to vacate the judgment are appealable. Section 904.1(a)(2); Ryan v. Rosenfeld, 3 Cal. 5th 124, 127, 134-35 (2017).

If your issues can be raised in an appeal from the judgment, be careful to file a timely appeal from the judgment. See Section 906.

When must you appeal?

The "normal time" to file a notice of appeal is 60 days after the clerk or any party serves notice of entry or a filed-stamped copy of the judgment (or appealable order). Cal. Rules of Court, rule 8.104(a)(1). Time is not extended by the method of service. In the rare case when no notice is served, it is 180 days after entry. Ibid.

The deadline to appeal is extended by the denial of a "valid" motion for new trial, to vacate the judgment, or for JNOV. The extended deadlines are set forth in the California Rules of Court, rule 8.108. Beware that expiration of the trial court's time to rule on a posttrial motion operates as a denial of the motion.

The deadlines are jurisdictional and cannot be extended. Cal. Rules of Court, rule 8.104(b); Sections 1010.6(a)(4)(B)(iii), 1013(a), (c); In re Marriage of Mosley, 190 Cal. App. 4th 1096, 1101 (2010).

A posttrial motion must be "valid" to the extend the deadline, meaning that it must "compl[y] with all procedural requirements." Cal. Rules of Court, rule 8.108 & Advisory Com. com.; Reyes v. Kruger, 55 Cal. App. 5th 58, 72-74 (2020).


If trial does not go well, you still have posttrial motions and an appeal. Knowing that the deadlines are jurisdictional and come quickly, you can consider those options diligently without missing opportunities for review. 


Submit your own column for publication to Diana Bosetti

Related Tests for Appellate practice

self-study/Appellate Practice

2022’s top federal appellate practice cases

By Benjamin G. Shatz, Benjamin E. Strauss

self-study/Appellate Practice

Multiverse Cosplay

By Benjamin G. Shatz

self-study/Appellate Practice

Newly Discovered Evidence on Appeal: The Writ of Error Coram Vobis

By David M. Axelrad

self-study/Appellate Practice

Assessing your chances on appeal: Burdens, inferences and presumptions

By Noreen M. Evans

self-study/Appellate Practice

The Collateral Order Doctrine

By Rosanna W. Gan, Gary A. Watt

self-study/Appellate Practice

Understanding the difference between family law and civil appeals

By Victoria E. Fuller

self-study/Appellate Practice

Appellate Horrorscope

By Benjamin G. Shatz