BILL ANALYSIS Ó AB 2106 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2106 (Wagner) As Amended June 18, 2012 Majority vote ----------------------------------------------------------------- |ASSEMBLY: |72-0 |(May 3, 2012) |SENATE: |35-0 |(June 21, | | | | | | |2012) | ----------------------------------------------------------------- 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 AB 2106 Page 2 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 AB 2106 Page 3 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 AB 2106 Page 4 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