BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2106| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2106 Author: Wagner (R) Amended: 6/18/12 in Senate Vote: 21 SENATE JUDICIARY COMMITTEE : 4-0, 6/12/12 AYES: Evans, Harman, Corbett, Leno NO VOTE RECORDED: Blakeslee ASSEMBLY FLOOR : 72-0, 5/3/12 (Consent) - See last page for vote SUBJECT : Motion to set aside and vacate a judgment and motion for a new trial SOURCE : Conference of California Bar Associations DIGEST : This bill clarifies 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 incorporates the timeframe under which a court must rule on a motion for a new trial into the timeframe provided for motions to set aside and vacate a judgment. This bill also makes other technical, nonsubstantive changes. ANALYSIS : 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 CONTINUED AB 2106 Page 2 upon which the motion will be made and whether the same will be made upon affidavits or the 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 of Civil Procedure (CCP) Section 659) This bill amends 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. 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. (CCP Section 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 CONTINUED AB 2106 Page 3 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 (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. (CCP Section 660) This bill incorporates the above provisions into the timeframe provided for a motion to set aside and vacate a judgment in CCP Section 663a. This bill also makes other technical and nonsubstantive changes. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/18/12) Conference of California Bar Associations (source) ARGUMENTS IN SUPPORT : According to the author: CONTINUED AB 2106 Page 4 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. (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, CONTINUED AB 2106 Page 5 especially if no appeal is ever filed divesting the trial court of jurisdiction. ASSEMBLY FLOOR : 72-0, 5/3/12 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fong, Fuentes, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, Hagman, Halderman, Harkey, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Yamada, John A. Pérez NO VOTE RECORDED: Bonilla, Fletcher, Furutani, Hall, Roger Hernández, Jones, Smyth, Williams RJG:m 6/18/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED