Metropolitan News-Enterprise


Thursday, May 21, 2015


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Time Limit for Filing Motion and Affidavits in Support Of New Trial Not Jurisdictional, C.A. Rules


By a MetNews Staff Writer


The deadline for the filing of a motion for new trial with supporting affidavits is not jurisdictional, nor does the court lose jurisdiction over the motion if the filing fee is paid late, the Fourth District Court of Appeal ruled yesterday.

Div. One affirmed an order granting a new trial to the successor in interest of Dr. Eke Wokocha, a clinical psychologist who died shortly after a jury rejected his suit against Sharp Memorial Hospital. The panel held that San Diego Superior Court Judge John S. Meyer had jurisdiction to hear the motion, and did not abuse his discretion in granting it on the basis of newly discovered evidence in the form of an autopsy report.

Jurors agreed that the hospital had been negligent in its care of Wokocha, who suffered from a spinal condition, but found that the facility’s negligence was not a substantial factor in causing his deterioration into quadriplegia.

Wokocha, who was rendered a quadriplegic within 10 days of being transferred to Sharp following spinal decompression surgery in 2009, sued on the theory that he had been mishandled by an occupational therapist during an attempted transfer to a shower commode chair.

The substituted plaintiff, Berthe Kabran, filed notice of intent to move for new trial on March 1, 2013, within the 15-day period following notice of judgment, as required by Code of Civil Procedure §659. The court subsequently granted a stipulated extension of time to April 1 to serve the motion and affidavits.

April 1 was a court holiday. The motion and affidavits were served April 2, but the motion was not accepted for filing because it was not accompanied by a filing fee. The motion was filed and the fee paid on April 5.

The motion asserted that the autopsy performed on Wokocha established that the damage to his spine was not caused by a tumor, as the defense had argued, and that the defense experts who so testified were wrong. The defense did not argue timeliness before Meyer, but did so on appeal.

Justice Terry O’Rourke, writing for the Court of Appeal, agreed with other courts that have considered the issue that while the time limit for filing a notice of intent to move for a new trial is jurisdictional, the deadline for filing the motion itself, with supporting affidavits, is not, and that the trial judge has discretion to consider a late-filed motion or a late-filed affidavit.

The jurist acknowledged one case holding to the contrary, Erikson v. Weiner (1996) 48 Cal.App.4th 1663, but found it unpersuasive.

“Section 659a contains no clear legislative intent that its requirements are jurisdictional,” O’Rourke wrote. “The fact the deadlines are expressed in mandatory terms (i.e., ‘Within 10 days of filing the notice, the moving party shall serve . . .’, italics added) is not determinative. “

The case is Kabran v. Sharp Memorial Hospital, 15 S.O.S. 2490.


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