BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2106
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 2106 (Wagner)
          As Amended June 18, 2012
          Majority vote
           
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          |ASSEMBLY:  |72-0 |(May 3, 2012)   |SENATE: |35-0 |(June 21,      |
          |           |     |                |        |     |2012)          |
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           Original Committee Reference:    JUD.  

           SUMMARY  :  Provides that the time for a court to rule on a motion 
          to set aside or vacate a judgment shall expire within 60 days 
          after the mailing of notice of entry of judgment.  Specifically, 
           this bill  :  

          1)Provides that the power of a court to rule on a motion to set 
            aside and vacate a judgment 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. 

          2)Provides that if the motion to set aside and vacate the 
            judgment is not within the 60-day period, as described above, 
            or within that period, as extended, the effect shall be a 
            denial of the motion without further order of the court. 

          3)Specifies that a motion to set aside and vacate a judgment is 
            not determined within the meaning of the above provisions 
            until an order ruling on the motion is either:  a) entered 
            into the permanent minutes of the court; or, b) signed by the 
            judge and filed with the clerk.  

          4)Specifies that the entry of an order to set aside and vacate a 
            judgment in the permanent minutes of the court shall 
            constitute a determination of the motion, even though that 
            minute order, as entered, expressly directs that a written 
            order by prepared, signed, and filed.  Specifies further that 
            the minute entry shall, in all cases, show the date on which 
            the order actually is entered in the permanent minutes, but 
            failure to comply with this direction shall not impair the 








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            validity or effectiveness of the order. 

          5)Clarifies that when filing a motion for a new trial before 
            entry of judgment, or when filing a motion to vacate and set 
            aside a judgment, the filing be done after the decision is 
            rendered. 

           The Senate amendments  : 

          1)Clarify that when filing a motion for a new trial before entry 
            of judgment, or when filing a motion to vacate or set aside a 
            judgment, the filing be done after the decision is rendered.

          2)Make technical changes.
           
          EXISTING LAW  :

          1)Provides that a party intending to make a motion to set aside 
            or vacate a judgment must file with the clerk and serve upon 
            the adverse party a notice of his or her intention, 
            designating the grounds on 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 judgment or decree is not consistent with the special 
            verdict.  Specifies that this notice of intent must be made 
            either:  a) before the entry of judgment; or, b) within 15 
            days of the date of the mailing of the notice of entry of 
            judgment by the clerk, or service upon him or her by any party 
            of written notice of entry of judgment, or within 180 days 
            after the entry of judgment, whichever is earliest.  

          2)Provides that a party intending to make a motion for a new 
            trial must file with the clerk and serve upon each adverse 
            party a notice of his or her 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 
            minutes of the court.  Specifies that this notice must be made 
            either:  a) before the entry of judgment; or, b) within 15 
            days of the date of mailing of the notice of entry of 
            judgment, or within 180 days after the entry of judgment, 
            whatever is earliest.  

          3)Provides that the power of the court to rule on a motion for a 
            new trial shall expire 60 days from and after the mailing of 
            notice of entry of judgment by the clerk of the court or 60 








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            days from and after service on the moving party by any party 
            of written notice of entry of judgment by the clerk of the 
            court, whichever is earlier, or if that notice has not been 
            given, then 60 days after filing the first notice of intention 
            to move for a new trial.  

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar 
          to the version approved by the Senate.

           FISCAL EFFECT  :  None

           COMMENTS  :  Under existing law, the time frames for making 
          motions to set aside and vacate a judgment are nearly identical 
          to the time frames for making motions for a new trial.  Indeed, 
          the language for Code of Civil Procedure Section 659, which 
          establishes filing and notice deadlines making a motion for a 
          new trial, is nearly identical to the language setting forth the 
          filing and notice deadlines for making a motion to set aside and 
          vacate a judgment in Section 663a.  However, while every other 
          deadline is the same, Section 660 requires a court to order a 
          new trial within 60 days after the mailing of notice of entry of 
          judgment, or 60 days after service on the moving party of notice 
          of judgment, whichever is earlier, or if that service is not 
          made then 60 days after the first notice of intention to move 
          for a new trial.  However, existing law does not have any 
          corresponding section providing a time frame for when a court 
          must rule on a motion to set aside and vacate a judgment.  The 
          Judicial Council has informed the Assembly Judiciary Committee 
          that courts have generally assumed, given the parallel structure 
          of the statutes, that courts are also expected to rule on a 
          motion to set aside and vacate a judgment within the same 60-day 
          period for ruling on a motion for a new trial.  At any rate, 
          existing law technically provides no deadline for when a court 
          must rule on the motion to set aside and vacate a judgment, in 
          theory meaning that the court could move on the motion at almost 
          any time, even years later, assuming an appeal had never been 
          filed that removed the case from the court's jurisdiction. 

          This non-controversial bill, therefore, specifies that a court 
          must rule on a motion to set aside and vacate a judgment in the 
          same time period that it must rule on a motion for a new trial:  
          within 60 days of entry of judgment by the clerk of the court, 
          or 60 days after service upon the moving party of written notice 
          of entry of judgment, whichever is earlier, or if that notice 
          has not been given, then 60 days after filing the first notice 








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          of intention to move to set aside and vacate the judgment.  The 
          bill also clarifies that when filing a motion for a new trial 
          before entry of judgment, or when filing a motion to vacate or 
          set aside a judgment, the filing must be done after the decision 
          is rendered.

          While the bill is mainly meant to clarify what is generally 
          presumed to be existing law by making the timelines for filing 
          and ruling on motions to set aside and vacate a judgment 
          consistent with motions for a new trial, the author notes that 
          "more than symmetry is involved.  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 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 663 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."


           Analysis Prepared by :    Thomas Clark / JUD. / (916) 319-2334 


                                                               FN: 0004118