BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2011-2012 Regular Session


          AB 2106 (Wagner)
          As Amended May 24, 2012
          Hearing Date: June 12, 2012
          Fiscal: No
          Urgency: No
          RD
                    

                                        SUBJECT
                                           
           Motion to Set Aside and Vacate a Judgment and Motion for a New 
                                        Trial

                                      DESCRIPTION  

          Existing law requires a party who intends to make a motion for a 
          new trial, to provide notice of that intent as specified.  This 
          bill would clarify that the earliest notice of a new trial can 
          be filed and served is after the decision is rendered and before 
          entry of judgment.

          This bill would incorporate the time frame under which a court 
          must rule on a motion for a new trial into the time frame 
          provided for motions to set aside and vacate a judgment.  The 
          bill would also make other technical, non-substantive changes.

                                      BACKGROUND  

          Generally, once a judgment has been entered, the trial court 
          loses its unrestricted power to change that judgment.  For 
          example, while the court retains power to correct clerical 
          errors in a judgment that has been entered, it may not amend 
          such a judgment to substantially modify it or materially alter 
          the rights of the parties under its authority to correct 
          clerical error.  The trial court does, however, retain 
          jurisdiction for a limited period of time to entertain and grant 
          a motion for a new trial, a motion for a judgment 
          notwithstanding the verdict, a motion to vacate a judgment and 
          enter a different judgment for an incorrect or erroneous legal 
          basis for the decision, not consistent with or supported by the 
          facts, or a judgment not consistent with or not supported by a 
                                                                (more)



          AB 2106 (Wagner)
          Page 2 of ?



          special verdict, among other things.  (40A Cal. Jur. Judgments 
          Sec. 244.)  

          The new trial procedure is statutory and because a court has no 
          inherent power to grant a new trial on its own motion, an 
          application by the "party aggrieved" is essential.   Unless the 
          specified notice is served and filed in the proper form and 
          within the statutory time, the court has no jurisdiction to act. 
           (8 Witkin Cal. Proc. Attack Sec. 46, citing Sanchez-Corea v. 
          Bank of America (1985) 38 Cal.3d 892, 899, among other cases.) 
          Code of Civil Procedure Section 659 governs the time frames for 
          a party to bring a motion for a new trial.  Similarly, Code of 
          Civil Procedure Section 663a governs the time frame for a party 
          to bring a motion to set aside and vacate a judgment.  Under 
          these sections, the general time frames for filing and serving a 
          notice of a motion for new trial or motion to set aside and 
          vacate a judgment are substantially similar.  If a motion is not 
          filed and served within this time frame, it can be either 
          premature or overdue; either way, the court would lack 
          jurisdiction to consider and grant the motion. 

          However, unlike with a motion for a new trial, existing law does 
          not provide any time limits upon which the court must act to 
          render its decision on a motion to set aside and vacate a 
          judgment.  

          This bill, sponsored by the Conference of California Bar 
          Associations, would incorporate the time limit for a court to 
          rule on a motion for a new trial to motions to set aside and 
          vacate judgments.  Accordingly, the bill would provide that 
          courts must rule on these motions within 60 days, as specified, 
          and, if a decision is not rendered with the specified periods, 
          the effect shall be a denial of the motion without further order 
          of the court.  With respect to the time frame in which a party 
          must bring a motion for a new trial, this bill would clarify 
          that the notice may be filed and served either (1) after 
          decision is rendered and before entry of a judgment, or (2) 
          after entry of the judgment, as specified under existing law.  

                                CHANGES TO EXISTING LAW
           
          1.   Existing law  requires, among other things, a party intending 
            to move for a new trial to file with the clerk and serve upon 
            each adverse party a notice of his 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 
                                                                      



          AB 2106 (Wagner)
          Page 3 of ?



            minutes of the court, or both, either: 
                 before entry of the judgment; or 
                 within 15 days of the date of mailing notice of entry of 
               judgment by the clerk of the court, as specified, or 
               service upon him by any party of written notice of entry of 
               judgment , or within 180 days after the entry of judgment, 
               whichever is earliest; provided, that upon the filing of 
               the first notice of intention to move for a new trial by a 
               party, each other party shall have 15 days after the 
               service of notice upon him to file an serve a notice of 
               intention to move for a new trial.  (Code Civ. Proc. Sec. 
               659.)  

             This bill would amend the above, in relevant part, to provide 
            that notice shall be after the decision is rendered and before 
            the entry of judgment, or within 15 days as specified. 

          2.    Existing law  requires a party intending to make a motion to 
            set aside and vacate a judgment, as specified, to file with 
            the clerk and serve upon the adverse party a notice of his 
            intention, designating the grounds upon 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 the judgment or decree is not 
            consistent with the special verdict, either: 
                 before the entry of judgment; or 
                 within 15 days of the date of mailing of notice of entry 
               of judgment by the clerk of the court, as specified, or 
               service upon him by any party of written notice of entry of 
               judgment, or within 180 days after the entry of judgment, 
               whichever is earliest.  (Code Civ. Proc. Sec. 663a.)  

             Existing law  , among other things, provides the following:
                 except as provided, the power of a court to rule on a 
               motion for a new trial 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;
                 if the motion is not determined with the specified 
               periods, the effect shall be a denial of the motion without 
               further order of the court;
                 a motion for a new trial is not determined within the 
               meaning of this section until an order ruling on the motion 
                                                                      



          AB 2106 (Wagner)
          Page 4 of ?



               (1) is entered in the permanent minutes of the court or (2) 
               is signed by the judge and filed with the clerk; 
                 the entry of a new trial order in the permanent minutes 
               of the court shall constitute a determination of the motion 
               even though such minute order as entered expressly directs 
               that a written order be prepared, signed and filed; and 
                 the minute entry in all cases show the date on which the 
               order actually is entered in the permanent minutes, but 
               provides that failure to comply with this direction shall 
               not impair the validity or effectiveness of the order.  
               (Code Civ. Proc. Sec. 660.)  
            
             This bill  would incorporate the above provisions into the 
            timeframe provided for a motion to set aside and vacate a 
            judgment in Code of Civil Procedure Section 663a. 

             This bill  would also make other technical and non-substantive 
            changes. 

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            Section 1 of AB 2106 (amending CCP Sec. 659) cures an 
            ambiguity that may trap a zealous party attempting to be 
            proactive and prompt, who is not aware that he or she must 
            wait until after a decision is rendered to file a motion for a 
            new trial, and whose motion is therefore premature and 
            ineffective.  The provision of Section 659 that allows a party 
            to move for a new trial before entry of judgment is "obscure, 
            misleading, and a dangerous trap for the uninformed attorney." 
             8 Witkin, Cal. Procedure (5th ed. 2008), Attack on Judgment 
            in Trial Court, Sec. 55.  A party cannot move for a new trial 
            before there is a decision.  Id.  Under Code of Civil 
            Procedure Sec. 657, the motion can be made by a "party 
            aggrieved," but until a decision is rendered, there is no 
            aggrieved party.  Auto Equity Sales, Inc. v. Superior Court 
            (1962) 57 Cal.2d 450, 459.  

            Because a new trial procedure is jurisdictional, a motion 
            filed before the court has rendered a decision has been held 
            to be premature and ineffective.  Id.  This has a harsh 
            consequence on appeal.  A new trial motion ordinarily extends 
            the time to appeal until 30 days after the denial of a motion. 
                                                                      



          AB 2106 (Wagner)
          Page 5 of ?



             (Cal. Rules of Court, Rule 8.108(b).)  But a premature motion 
            for a new trial cannot extend the appeal time.  Ehrler v. 
            Ehrler (1981) 126 Cal.App.3d 147, 151-152.  The attorney who 
            reads the current language of Sec. 659 literally and files a 
            premature new trial motionÝ,] then appeals after the motion is 
            denied, when the normal appeal time has run, will fall into 
            the trap.  . . .

            Section 2 of AB 2106 (amending CCP Sec. 663a) provides needed 
            clarity to existing law, in a manner consistent with related 
            motions.  This is more than a matter of simply symmetry; 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 a 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 663Ýa] 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. 

          2.    Timing of notice to file a motion for new trial  

          Existing law specifies that the soonest a motion for new trial 
          or motion to vacate or set aside judgment is before entry of 
          judgment.  The latest they may be brought is either: (1) 15 days 
          after the clerk mails notice of entry of the judgment; (2) 15 
          days after a party serves written notice of entry of the 
          judgment on the clerk; or (3) 180 days after entry of a 
          judgment-whichever comes first.  This bill would specify that 
          the soonest a motion for new trial may be brought is not simply 
          before entry of judgment, but after decision is rendered.  

          As commented upon by the author (see Comment 1), it has been 
          asserted that "Ýt]he phrase 'before entry of judgment' is 
          obscure, misleading, and a dangerous trap for the uniformed 
          attorney.  It would seem to permit the motion at any time before 
          entry, e.g., whenever the aggrieved party becomes aware of his 
          or her loss of the action.  But the cases have pointed out that 
          a new trial is a reexamination of an issue 'after a trial and 
          decision' . . .  and there must be a decision before the notice 
          of motion to attack it may be given by a 'party aggrieved . . . 
          .  The 'decision' has been defined as the 'rendition of 
          judgment.'"  (8 Witkin Cal. Proc. Attack Sec. 55, citations 
                                                                      



          AB 2106 (Wagner)
          Page 6 of ?



          omitted.)  
          The proponents of this bill add that this lack of clarity can 
          have implications for appeals, as well, given that a premature 
          motion for a new trial cannot extend the appeal time in contrast 
          to an effectual motion, which ordinarily extends the time to 
          appeal until 30 days after the denial of a motion. (Ehrler v. 
          Ehrler (1981) 126 Cal.App.3d 147, 151-152; see also Cal. Rules 
          of Court, rule 8.108(b).)  In effect, an attorney may not be 
          aware that their motion was premature and ineffectual and 
          inadvertently run out of time to appeal the decision as a 
          result.

          To address concerns about the current lack of clarity, this bill 
          would specify that the earliest a party may bring a motion for a 
          new trial is after decision is rendered and before entry of 
          judgment. 

          3.    Need for continuity and certainty in statutory time frames 
          for these motions  

          This bill largely incorporates the provisions of Section 660, 
          governing the time limits under which courts must rule on a 
          motion for a new trial, into the existing Section 663a, which 
          otherwise governs the time in which an aggrieved party must file 
          and notice their intent to move to set aside and vacate a 
          judgment.  Those provisions, in relevant part, provide that a 
          court has 60 days, as specified, to determine a motion for a new 
          trial.  Those provisions also provide that once the 60-day limit 
          has passed without a determination having been made by the 
          court, the effect is a denial of the motion without further 
          order of the court. 

          As noted in the Background, once a judgment has been entered, 
          the trial court generally loses its unrestricted power to change 
          that judgment.  The trial court does, however, retain 
          jurisdiction for a limited period of time to entertain and grant 
          specified motions. The statutory time frames provided for 
          bringing and ruling on these motions each play a role in forming 
          jurisdiction of a court.  However, while existing law 
          establishes both the time in which a party may file and notice a 
          motion for a new trial and that in which a court may rule on the 
          motion, the statutory time frames relating to motions to set 
          aside and vacate a judgment, as noted by the author of this 
          bill, do not provide any outer limit upon the power of the court 
          to rule on whether or not to grant the motion.  The discrepancy 
          here is even more pronounced given the similar time frames 
                                                                      



          AB 2106 (Wagner)
          Page 7 of ?



          otherwise used for motions for a new trial and motions to set 
          aside and vacate a judgment.  This bill would provide that time 
          limit (60 days) in which the court would have to decide a motion 
          to set aside and vacate a judgment, and if the court does not do 
          so in that specified time frame, the default order would be a 
          denial of the motion. 

          Proponents of the bill also note that, "neither rule 8.108(c) 
          Ýwhich, similar to rule 8.108(b) on motions for new trial, 
          extends the time for appeal upon the service and filing of a 
          motion to vacate and set aside a judgment], nor Section 663a 
          Ýwhich provides the time frame for bringing motions to set aside 
          and vacate a judgment], nor any published decision provides that 
          the court's time to rule on a motion to vacate the judgment 
          expires at any of these times, or any other time."  The effect 
          and seeming purpose of these time limits being jurisdictional, 
          the lack of a time limit for a court to rule on a motion to set 
          aside and vacate a judgment seemingly translates into 
          technically open-ended jurisdiction by the court, so long as an 
          aggrieved party has timely filed and served his or her intent to 
          move to set aside and vacate the judgment.  

          This bill would provide additional certainty with respect to 
          motions to set aside and vacate a judgment as to when a court 
          must rule on a motion to set aside and vacate a judgment and in 
          doing so would be consistent with the time frames provided for 
          motions for new trials.

          4.    Amendments to add further continuity and clarity  

          While this bill seeks to bring symmetry between the time frames 
          for motions for a new trial and motions to set aside and vacate 
          a judgment, as well as to bring overall certainty by adding a 
          statutory deadline by which a motion to set aside and vacate a 
          judgment may be determined, there remain some differences 
          between the statutory time frames governing these motions.   
          This can be resolved by the following amendments:
             
            Suggested amendment  : 

            On page 3, line 22, after "(1)" strike "Before" and insert 
            "After the decision is rendered and before "

            On page 4, line 10, strike "specified above" and insert 
            "specified in paragraphs (1) and (2) of subdivision (a)" 

                                                                      



          AB 2106 (Wagner)
          Page 8 of ?




           Support  :  None Known

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Conference of California Bar Associations

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Floor (Ayes 72, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0) 

                                   **************