So long as the notice of intention to move for a new trial is timely filed, the trial court may, in its discretion, consider late-filed affidavits supporting the motion. While the timely filing of a notice of intention to move for a new trial is jurisdictional—the trial court lacks jurisdiction to grant a new trial if the notice is untimely—the timely filing of supporting affidavits, while mandatory, is not jurisdictional. So the trial court may consider the untimely affidavits and grant a new trial so long as the notice itself was timely. Here, the defendant did not object to the untimeliness of the affidavits in the trial court and so waived that issue for purposes of its appeal from the new trial order. The decision disapproves Erikson v. Weiner (1996) 48 Cal.App.4th 1663 which held to the contrary.
California Supreme Court (Liu, J.); January 19, 2017; 2017 WL 218033