Davcon, Inc. v. Roberts & Morgan

*1357 Opinion

This legal malpractice action was tried to a jury in 1998. The jury found that defendants were negligent and that the negligence caused damages to Davcon in the sum of $246,704.51. The trial court, Judge Trask, granted an oral motion for judgment notwithstanding the verdict and Davcon appealed.

In Davcon v. Roberts & Morgan (E023781; nonpub. opn. filed November 17, 2000) we found the trial court’s grant of the oral motion for judgment notwithstanding the verdict was a nullity. 1 We therefore reversed the judgment notwithstanding the verdict and remanded with directions to enter a new judgment based on the jury’s verdict. In a footnote we said: “We merely order the trial court to enter judgment based on the jury’s verdict. We express no opinion on the question of whether there are any procedural avenues available to attack such a judgment in the trial court.”

The remittitur issued on January 19, 2001. On January 24, 2001, defendants filed a new motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Hearing on the motions was set for February 27, 2001.

The day before the hearing, plaintiffs filed an affidavit to disqualify the…

Under the present facts, the 60-day period for ruling on a motion for new trial (Code Civ. Proc., § 660) 1 should be suspended or tolled, and plaintiff Davcon, Inc. should be estopped from asserting that Judge Trask’s March 29, 2001, order granting defendant Roberts & Morgan’s motion for new trial was untimely.

Defendant contends the 60-day period was suspended or tolled after plaintiff filed its peremptory challenge to Judge Trask. (§ 170.6.) Plaintiff contends the peremptory challenge was effective immediately, and was not pending between the date of Judge Trask’s order accepting the peremptory challenge (February 26) and the date Judge Trask rescinded her acceptance of the peremptory challenge (March 7). Therefore, plaintiff argues, its peremptory challenge did not suspend or toll the running of the 60-day period.

*1369 First, plaintiff’s peremptory challenge was untimely. A peremptory challenge is immediately effective only if it is in proper form and timely filed. (See, e.g., Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59 [ 116 Cal.Rptr.2d 616 ]; Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212, 1219 [ 210 Cal.Rptr. 368 ].)

Section 170.6,…

HOLLENHORST J.

This legal malpractice action was tried to a jury in 1998. The jury found that defendants were negligent and that the negligence caused damages to Davcon in the sum of $246,704.51. The trial court, Judge Trask, granted an oral motion for judgment notwithstanding the verdict and Davcon appealed.

In Davcon v. Roberts & Morgan (E023781; nonpub. opn. filed November 17, 2000) we found the trial court's grant of the oral motion for judgment notwithstanding the verdict was a nullity. [1] We therefore reversed the judgment notwithstanding the verdict and remanded with directions to enter a new judgment based on the jury's verdict. In a footnote we said: "We merely order the trial court to enter judgment based on the jury's verdict. We express no opinion on the question of whether there are any procedural avenues available to attack such a judgment in the trial court."

The remittitur issued on January 19, 2001. On January 24, 2001, defendants filed a new motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Hearing on the motions was set for February 27, 2001.

The day before the hearing, plaintiffs filed an affidavit to disqualify the…