Kabran v. Sharp Memorial Hospital, 1/19/17, CA Supreme Court
Plaintiff sued hospital for medical malpractice and lost. He died almost immediately after the jury verdict. His widow filed a timely notice of intent to move for new trial, she met one of the statutory grounds authorizing a new trial (here, new evidence uncovered through an autopsy), and her motion was heard and granted within the statutorily prescribed period (not later than 60 days after the mailing of the notice of entry of judgment). One major problem: The affidavits in support of her new trial motion were filed late, something the hospital raised for the first time on appeal. The trial court granted a new trial; on appeal the DCA affirmed. The Supreme Court granted review. Held: Affirmed.
When seeking a new trial on a ground like newly discovered evidence , Code of Civil Procedure section 657 requires the moving party to timely file supporting affidavits. California DCAs were split on whether the late filing of affidavits deprived trial courts of jurisdiction to grant a new trial motion. Some courts focused on the mandatory nature of the statutory language concerning when affidavits must be filed. But “mandatory” and “jurisdictional” are not the same thing — A court can lack fundamental jurisdiction, where it doesn’t have the power to act; or, a court can act in excess of jurisdiction, where its act can be valid unless challenged.
As the court explained, it is presumed that courts have jurisdiction unless specifically curtailed by the Legislature. The court also noted contrasting language in other sections of the new trial statutory scheme, which are in fact jurisdictional. Section 659 expressly says that the time period to file notice of intent to move for new trial cannot be extended. Section 660 says that the power of the trial court to rule on the motion expires 60 days after the mailing of the notice of entry of judgment. The section setting forth the filing deadline of supporting affidavits does not have such language.
So, the matter heads back to the trial court for a new trial.