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)
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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
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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
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(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.
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(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
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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
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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)"
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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)
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