BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2106
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          Date of Hearing:   April 24, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                 AB 2106 (Wagner) - As Introduced:  February 23, 2012

                    PROPOSED CONSENT (As Proposed to be Amended)
           
          SUBJECT  :  Civil Procedure: Motion to Set Aside and Vacate 
          Judgment 

           KEY ISSUE  :  Should a court be required to rule on a motion to 
          set aside and vacate a judgment within a 60-day period, the same 
          period in which it is required to rule on a motion for a new 
          trial?

           FISCAL EFFECT  :  As currently in print this bill is keyed 
          non-fiscal.

                                      SYNOPSIS

          Under existing law, the time frames pertaining to making motions 
          to set aside and vacate a judgment are nearly identical to the 
          time frames for making motions for a new trial.  However, while 
          every other deadline is the same, existing law requires a court 
          to order a new trial within 60 days after the mailing of notice 
          of entry of judgment, or 60 days after service on the moving 
          party of notice of entry of judgment, whichever is earlier, or 
          if no service is made then 60 days after the first notice of 
          intention to move for a new trial.  Existing law, however, has 
          no parallel 60-day period for ruling on motions to set aside or 
          vacate a judgment, despite the fact that the provisions are 
          identical in every other way and apparently it has been assumed 
          that the 60-day period for ruling on a motion for a new trial 
          also applies to ruling on a motion to set aside and vacate a 
          judgment.  This non-controversial bill seeks to correct this 
          anomaly by specifying that a court must rule on a motion to set 
          aside and vacate a judgment in the same time period that it must 
          rule on a motion for a new trial: that is, within 60 days of 
          entry of judgment by the clerk of the court, or 60 days after 
          service upon the moving party of written notice of entry of 
          judgment, whichever is earlier, or if notice has not been given, 
          then 60 days after filing the first notice of intention to move 
          to set aside and vacate the judgment.  The author will take one 
          technical amendment, as noted below.








                                                                  AB 2106
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           SUMMARY  :  Provides that the time for a court to rule on a motion 
          to set aside or vacate a judgment shall expire within 60 days 
          after the mailing of notice of entry of judgment.  Specifically, 
           this bill  :  

          1)Provides that the power of a court to rule on a motion to set 
            aside and vacate a judgment shall expire 60 days from the 
            mailing of notice of entry of judgment by the clerk of the 
            court, or 60 days after service on the moving party by any 
            party of written notice of entry of the judgment, whichever is 
            earlier, or if that notice has not been given, then 60 days 
            after filing the first notice of intention to move to set 
            aside and vacate the judgment. 

          2)Provides that if the motion to set aside and vacate the 
            judgment is not within the 60-day period, as described above, 
            or within that period, as extended, the effect shall be a 
            denial of the motion without further order of the court. 

          3)Specifies that a motion to set aside and vacate a judgment is 
            not determined within the meaning of the above provisions 
            until an order ruling on the motion is either (a) entered into 
            the permanent minutes of the court, or (b) signed by the judge 
            and filed with the clerk.  

          4)Specifies that the entry of an order to set aside and vacate a 
            judgment in the permanent minutes of the court shall 
            constitute a determination of the motion, even though that 
            minute order, as entered, expressly directs that a written 
            order by prepared, signed, and filed.  Specifies further that 
            the minute entry shall, in all cases, show the date on which 
            the order actually is entered in the permanent minutes, but 
            failure to comply with this direction shall not impair the 
            validity or effectiveness of the order. 

           EXISTING LAW  :

          1)Provides that a party intending to make a motion to set aside 
            or vacate a judgment must file with the clerk and serve upon 
            the adverse party a notice of his or her intention, 
            designating the grounds on which the motion will be made, and 
            specifying the particulars in which the legal basis for the 
            decision is not consistent with or supported by the facts, or 
            in which judgment or decree is not consistent with the special 








                                                                  AB 2106
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            verdict.  Specifies that this notice of intent must be made 
            either (a) before the entry of judgment or (b) within 15 days 
            of the date of the mailing of the notice of entry of judgment 
            by the clerk, or service upon him or her by any party of 
            written notice of entry of judgment, or within 180 days after 
            the entry of judgment, whichever is earliest.  (Code of Civil 
            Procedure Section 663a.)

          2)Provides that a party intending to make a motion for a new 
            trial must file with the clerk and serve upon each adverse 
            party a notice of his or her intention to move for a new 
            trial, designating the grounds upon which the motion will be 
            made and whether the same will be made upon affidavits or the 
            minutes of the court.  Specifies that this notice must be made 
            either (a) before the entry of judgment or (b) within 15 days 
            of the date of mailing of the notice of entry of judgment, or 
            within 180 days after the entry of judgment, whatever is 
            earliest.  (Code of Civil Procedure Section 659.) 

          1)Provides that the power of the court to rule on a motion for a 
            new trial shall expire 60 days from and after the mailing of 
            notice of entry of judgment by the clerk of the court or 60 
            days from and after service on the moving party by any party 
            of written notice of entry of judgment by the clerk of the 
            court, whichever is earlier, or if that notice has not been 
            given, then 60 days after filing the first notice of intention 
            to move for a new trial.  (Code of Civil Procedure Section 
            660.) 

           COMMENTS :  Under existing law, the time frames for making 
          motions to set aside and vacate a judgment are nearly identical 
          to the time frames for making motions for a new trial.  Indeed, 
          the language for Code of Civil Procedure Section 659, which 
          establishes filing and notice deadlines making a motion for a 
          new trial, is nearly identical to the language setting forth the 
          filing and notice deadlines for making a motion to set aside and 
          vacate a judgment in Section 663a.  However, while every other 
          deadline is the same, Section 660 requires a court to order a 
          new trail within 60 days after the mailing of notice of entry of 
          judgment, or 60 days after service on the moving party of notice 
          of judgment, whichever is earlier, or if that service is not 
          made then 60 days after the first notice of intention to move 
          for a new trial.  However, existing law does not have any 
          corresponding section providing a time frame for when a court 
          must rule on a motion to set aside and vacate a judgment.  The 








                                                                  AB 2106
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          Judicial Council has informed the Committee that courts have 
          generally assumed, given the parallel structure of the statutes, 
          that courts are also expected to rule on a motion to set aside 
          and vacate a judgment within the same 60-day period for ruling 
          on a motion for a new trial.  At any rate, existing law 
          technically provides no deadline for when a court must rule on 
          the motion to set aside and vacate a judgment, in theory meaning 
          that the court could move on the motion at almost any time, even 
          years later, assuming an appeal had never been filed that 
          removed the case from the court's jurisdiction. 

          This non-controversial bill, therefore, specifies that a court 
          must rule on a motion to set aside and vacate a judgment in the 
          same time period that it must rule on a motion for a new trial: 
          within 60 days of entry of judgment by the clerk of the court, 
          or 60 days after service upon the moving party of written notice 
          of entry of judgment, whichever is earlier, or if that notice 
          has not been given, then 60 days after filing the first notice 
          of intention to move to set aside and vacate the judgment. 

           ARGUMENTS IN SUPPORT  :  According to the author, AB 2106 will 
          clarify existing law by specifying the time in which a court 
          must rule on a motion to set aside and vacate a judgment.  While 
          the bill is mainly meant to clarify what is generally presumed 
          to be existing law, the author notes that "more than symmetry is 
          involved.  The lack of direction and limitation invites 
          different hearing times; the prospect of effectively rearguing 
          in this motion the very issues already decided at a prior 
          hearing on the motion(s) for new trial and JNOV (conceivably 
          with a different result); and further extending, if not creating 
          confusion concerning, the time to appeal.  Moreover, the absence 
          of a specified ruling deadline on a timely noticed section 663 
          motion could even arguably allow the judge to vacate judgment 
          and enter a new one at any time, especially if no appeal is ever 
          filed divesting the trial court of jurisdiction."

           Technical Amendment  :  On page 2 line 5 delete "or" and insert 
          "and"  (The bill uses the term "set aside  or  vacate" on this 
          line while "set aside  and  vacate" is apparently standard usage 
          and used throughout the rest of the statute.)

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           








                                                                  AB 2106
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          Conference of California Bar Associations (sponsor)

           Opposition 
           
          None on file 
           

          Analysis Prepared by  :   Thomas Clark / JUD. / (916) 319-2334