BILL ANALYSIS Ó
AB 2106
Page 1
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
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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
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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