For the Practitioner: JNOVs - Lost in Transition

The transition phase between judgment and appeal can be tricky. A long contentious jury trial is exhausting and a trial lawyer’s momentary euphoria after a successful verdict is often lost in the crush of post-judgment motions filed by the losing side. Occasionally a notice of appeal is filed before the trial court rules on post-judgment motions.

Both sides should be aware that although the trial court can consider and rule on a new trial motion even after the notice of appeal has been filed, there is a split of authority on whether that same exception applies to JNOV motions.

The Fourth Appellate District in Weisenburg v. Molina (1976) 58 Cal.App.3d 478 held that a notice of appeal divested the trial court of jurisdiction to hear the JNOVs because they "directly concerned 'matters embraced' in or 'affected' by the judgment appealed from, within the meaning of section 916." The First Appellate District in Foggy v. Clark & Assoc. (1987) 192 Cal.App.3d 1204, reached the opposite result – finding that JNOVs are collateral to the judgment and can be considered by the trial court after the notice of appeal is filed.

Perhaps the significant difference is that in Foggy, is that the plaintiffs filed a notice of appeal after the defendants filed their post-judgment motions, including JNOVs. A strategic move by the plaintiffs to divest the trial court of jurisdiction to hear the defendants' JNOVs? In contrast, inWeisenburg, the defendants filed their post-trial motions and then the defendants filed their notice of appeal prior to the decision on the post-trial motions.