Metropolitan News-Enterprise


Monday, August 15, 2016


Page 1


Court Says Judge’s Vacation No Excuse for Not Hearing New Trial Motion by Deadline


By a MetNews Staff Writer


A trial judge’s vacation is not a valid reason for not hearing a new trial motion by the statutory deadline, this district’s Court of Appeal ruled Friday.

Div. Eight issued a writ of mandate requiring that motions by Bally Total Fitness, Inc., which lost a jury verdict in a lawsuit against PCAM, LLC, be heard by today’s deadline. Justice Laurence Rubin wrote the court’s unpublished opinion.

Rubin explained that judgment was entered on May 31 and PCAM served a conformed copy on Bally on June 15. Bally then served a timely notice of intention to move for a new trial and a notice of motion for JNOV, noting in its papers that the jurisdictional deadline for ruling on the motions was Aug. 15.

From Aug. 3 through Aug. 8, plaintiff’s counsel called the courtroom clerk several times in order to inquire about the hearing date. On the afternoon of Aug. 8, he was informed for the first time that the trial judge, Gregory W. Alarcon, was going on vacation the next day, and that the motions could not be heard until he returned Aug. 29.

Counsel applied ex parte last Wednesday for the setting of a hearing on or before Aug. 15, and attorneys for both parties appeared in Alarcon’s courtroom. But Judge Maureen Duffy-Lewis, who sits in the adjoining courtroom, decided the matter by setting the hearing for Sept. 7.

Bally filed its writ of mandate petition in the Court of Appeal the next day, and the court granted it the day after that.

Rubin cited Code of Civil Procedure §661, which, among other things, mandates that, with respect to a motion for new trial, “in case of the inability of [the trial] judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court.”

The justice rejected the argument that Bally cannot obtain relief because §661 says that if a jurist other than the trial judge hears a motion for new trial, the motion “shall be argued orally or shall be submitted without oral argument, as the judge may direct, not later than ten (10) days before the expiration of the time within which the court has power to pass on the same.”

The 10-day rule is not jurisdictional, Rubin explained, citing a 1930 state Supreme Court decision.

“Furthermore, we reject PCAM’s argument that it is now too late to obtain relief because Bally waited too long to contact the clerk regarding its motions,” the justice wrote. “We do not believe the fault of the scheduling problem lies with Bally.”

The court directed that a judge decide the motions today “whether it is Judge Alarcon, if he becomes available, or a different judge.”

Bally was represented in the Court of Appeal by Anthony J. Ellrod and Steven J. Renick of Manning & Kass, Ellrod, Ramirez, Trester. Raul L. Martinez and Alex D. Guerrero of Lewis Brisbois Bisgaard & Smith represented PCAM.

The case is Bally Total Fitness of California, Inc. v. Superior Court (PCAM, LLC), B276736.


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