If you’ve ever sought the advice of an appellate attorney, or have any experience with appellate law, you probably already know that timely filing of the notice of appeal is critical. In a civil appeal, allowances for a tardy notice are limited to public emergencies, such as earthquake, fire, or the destruction of the courthouse. (Cal. Rules of Court (“CRC”) 8.66.) Otherwise, the appellate court must dismiss a late filed appeal. (CRC 8.104; see also CRC 8.60 [appellate court may not relieve a party from failure to file a timely notice of appeal].)

The deadline to file a notice of appeal is ordinarily governed by CRC 8.104 (re “normal deadline”). However, there are scenarios under which an extended deadline applies under CRC 8.108 (“extended deadline”). In particular, the denial of certain valid post-trial motions—motion for new trial, motion to vacate judgment, motion for judgment notwithstanding the verdict—will allow all parties extended time to file a notice of appeal of the underlying judgment.

These extensions allow parties to pursue a post-trial motion without worrying about losing the chance to appeal. Their options can be pursued linearly—first a post-trial motion and then an appeal if necessary—which also helps to avoid the sticky issue of jurisdiction, that occurs if parties file both a post-trial motion and a notice of appeal. In a prior blog article, we wrote on how it is not always clear whether a trial court retains jurisdiction to rule on a motion for judgment notwithstanding the verdict or motion to vacate judgment, when a notice of appeal has been filed.

The following extended deadlines apply under CRC 8.108 for the post-trial motions.

Motion for new trial. If a valid notice of intention to move for new trial is served and filed, then the time to appeal is extended to the earlier of: (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order, (2) 30 days after the motion is denied by operation of law, or (3) 180 days after entry of judgment.

If the court grants the motion for new trial, with the condition that the motion is denied if a party consents to an increase or reduction of damages, then the time to appeal is extended until 30 days after the party serves an acceptance or rejection, or until 30 days after the expiration of the time to accept or reject.

Motion to vacate judgment. If within the time prescribed by CRC 8.104, a valid notice of intention to move to vacate, or a valid motion to vacate, is served or filed, then the time to appeal is extended to the earlier of: (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order, (2) 90 days after the first notice of intention to move, or motion, is filed, or (3) 180 days after entry of judgment.

Motion for JNOV. If a valid motion for judgment notwithstanding the verdict is filed and served, then the time to appeal is extended to the earlier of: (1) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order, (2) 30 days after the denial of the motion by operation of law, or (3) 180 days after entry of judgment.

There are certain considerations worth examining regarding an extended deadline to appeal, and the order on the post-trial motion.

First, for the extended deadline to apply, there must be the service and filing of a “valid” notice or motion. The word “valid” means that all procedural requirements that apply to the notice or motion – such as timeliness, necessary components, or acceptable grounds for the motion – must be met. Given the heavy repercussions for a tardy notice of appeal, if there is any doubt as to the validity of the notice or motion, the safer approach is to file the notice of appeal under the normal deadline governed by CRC 8.104.

Second, the extended deadlines apply to an appeal of the judgment, not to the order denying the post-trial motion which, if appealable, will have its own normal deadlines to appeal. But is the order denying the post-trial motion an appealable order? The answer depends on the type of post-trial motion.

• For a motion for new trial, an order denying is not a directly or immediately appealable order. Rather, the order may be reviewed on an appeal of the underlying judgment. (Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 26 Cal.Rptr. 3d 735, 741 [“[A]n order denying a new trial motion is not directly appealable… [the] remedy is an appeal from the judgment in which appeal the rule denying a new trial may be reviewed.”].)
• For a motion to vacate, an order denying is generally not an appealable order. (See 9 Witkin, Cal. Proc. 6th Appeal § 214 (2023) [“If the prior judgment or order was appealable, and the grounds on which vacation is sought existed before entry of judgment, the correctness of the judgment should be reviewed on an appeal from the judgment itself. To permit an appeal from the order refusing to vacate would give the aggrieved party two appeals from the same decision or, if the party failed to take a timely appeal from the judgment, an unwarranted extension of time starting from the subsequent order.”].)

  However, there are a number established exceptions. For example, the denial of a statutory motion to vacate is accepted as immediately appealable. (See e.g. Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 171 [“While a denial of a motion to set aside a previous judgment is generally not an appealable order, in cases where the law makes express provision for a motion to vacate such as under Code of Civil Procedure section 473, an order denying such a motion is regarded as a special order made after final judgment and is appealable under [the predecessor to section 904.1(a)(2)].”]; Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135 [confirming that an order denying motion to vacate under Code of Civil Procedure section 663 is appealable].)

• For a motion for JNOV, an order denying is generally an immediately appealable order. (Code. Civ. Proc., § 904.1(a)(4).)

Third, the extended deadlines only apply when there is a denial of the post-trial motion. The withdrawal of the post-trial motion is also treated as a denial for rule 8.108 calculation purposes. (Rolen v. Rhine (1981) 117 Cal.App.3d 23, 26.) What happens when there is a grant of the post-trial motion – can that order be immediately appealed?

• For a motion for new trial, an order granting is appealable. (Code. Civ. Proc., § 904.1(a)(4).)
• For a motion to vacate, an order granting is generally an immediately appealable order. (See 9 Witkin, Cal. Procedure 6th Appeal § 211 (2023) [“If the court grants a motion to vacate under either CCP 473…or CCP 663, the prior judgment is nullified, and the only way to review the vacating order is by a direct appeal from it. Hence, it is treated as an order after final judgment, and is appealable.”].)
• For a motion for JNOV, an order granting is not an immediately appealable order, but the order may be reviewed on an appeal from the new, final judgment. (Mason v. Mercury Casualty Co. (1976) 64 Cal.App.3d 471, 473 at fn. 2); see also Cobb v. University of So. California (1995) 32 Cal.App.4th 798, 804 [dismissing appeal of order granting partial judgment notwithstanding the verdict].)

On a final point, if there is a grant of a post-trial motion, a protective cross-appeal may be necessary. A protective cross-appeal is necessary when: a) you are the losing party at trial; b) you are able to successfully obtain the grant of a post-trial motion; and c) the opposing party appeals the order granting the post-trial motion. There are two possible conclusions to the appeal. Either you win the appeal, and all is well (the post-trial motion grant remains intact). Or, you lose the appeal and the original judgment adverse to you is reinstated.

On the chance that you might lose on the appeal, you will need to bring a protective cross-appeal on the original judgment. Waiting until after the conclusion of the post-trial motion appeal will be too late, as the deadline to appeal the original judgment will have expired. The time to bring the protective cross-appeal is also subject to an extended deadline under CRC 8.108(g)(2) providing: “If an appellant timely appeals from an order granting a motion for new trial, an order granting-within 150 days after entry of judgment-a motion to vacate the judgment, or a judgment notwithstanding the verdict, the time for any other party to appeal from the original judgment … is extended until 20 days after the clerk serves notification of the first appeal.”

A protective cross-appeal is also necessary in the scenario where you have filed both a motion for JNOV and a motion for new trial or motion to vacate, the court denies the motion for JNOV but grants the motion for new trial or motion to vacate, and the opposing party appeals the grant. Then, it is necessary for you to file a cross-appeal on the denial of the motion for JNOV, to obtain review of that denial order. The extended deadline to bring that protective cross-appeal is under CRC 8.108(g)(2) providing: “If an appellant timely appeals from an order granting a motion for new trial, an order granting-within 150 days after entry of judgment-a motion to vacate the judgment, or a judgment notwithstanding the verdict, the time for any other party to appeal from … an order denying a motion for judgment notwithstanding the verdict is extended until 20 days after the clerk serves notification of the first appeal.”

In sum, there are multiple considerations for the timing of an appeal following a post-trial motion. The points raised and discussed above are just some, and not all, of the considerations. Given the stakes—the potential loss of an appeal due to a late notice of appeal—why not consult with appellate counsel? And why not do so well before the deadline?