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) **************