Judge: Mark H. Epstein, Case: 23SMCV03328, Date: 2023-09-26 Tentative Ruling

Case Number: 23SMCV03328    Hearing Date: November 16, 2023    Dept: I

The court has before it an ex parte application to further extend the stay of the writ of possession.  The court has sympathy for defendant’s request, but (reluctantly) must DENY the application.   

At the last hearing, the court stayed the writ to allow defendant to file a post judgment motion if she chose to do so.  The court warned defendant that there were strict and mandatory time limits to such a motion.  If a motion was filed, the stay would automatically extend until the motion was heard.  If not, then the stay would expire by its terms but was by no means intended to limit defendant’s right to seek a stay from the Court of Appeal.  The court is informed that defendant sought help from the clerk’s office regarding a post judgment motion and may have been given the wrong advice.  She tried using the court reservation system to reserve a hearing date for a motion for a new trial, but was unable to reserve a date.  That is by design in the sense that the reservation system is not used for new trial motions.  She reserved a date for a different motion, likely to try and get something reserved.  She seems to have called back but was not given timely advice on what she needed to do.  Eventually, on November 13, 2023, she filed what the court could construe as a notice of intent to file a motion for a new trial, which is the document that is jurisdictionally required.

However, the notice of intent must be filed within 15 days of the notice of entry of judgment.  Here, the notice of entry was sent to the parties by the court on October 20, 2023.  Fifteen days after that would be November 4, 2023.  Because November 4 was a Saturday, the deadline would be extended to Monday, November 6, 2023.  Under the Code, the time to file the notice of intent is not extended due to service by mail.  It is a hard deadline and it is jurisdictional.  Making a reservation for a hearing is not the same as filing a notice of intent.  The notice of intent must be some kind of document that states an intent to file the motion.  The court has some latitude in overlooking technical defects in the notice—for example if it fails to include some of the information required by statute—but the court cannot overlook the deadline entirely.  Once the notice of intent is filed, the supporting papers must be filed within 10 days, but the court can extend that time for good cause.  That extension power, however, is limited to the supporting papers; not the notice itself.  The court has no discretion to extend the 15 day period.

Because the 15 day period is jurisdictional, a motion filed beyond the 15 day limit cannot be heard.  The court simply lacks the power to hear it.  There are not many things like that.  In almost every case the court has the power to look behind the date and forgive a late filing.  But where a filing is jurisdictional, that power does not exist.

The notice of intent was not timely filed.  The court cannot extend the deadline and, because motions for new trial are creatures exclusively of statute, the court has no power to alter the dates the Legislature set, even if cause is shown.  Therefore, there will be no hearing on the motion, and the ex parte application must be DENIED.

Defendant may, of course, apply to the Court of Appeal for relief, and she may certainly tell the appellate court of this situation and that she sought a further stay from the trial court but was denied.  Nothing in this order is intended to limit that ability in any way.