BILL ANALYSIS Ó
AB 2106
Page 1
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