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 | |
------------------------------------------------------------
CONSENT
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
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:
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,
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 6/19/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****