BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                       CONSENT


          Bill No:  AB 1659
          Author:   Chau (D)
          Amended:  4/1/14 in Assembly
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  6-0, 6/17/14
          AYES:  Jackson, Corbett, Lara, Leno, Monning, Vidak
          NO VOTE RECORDED:  Anderson
           
          ASSEMBLY FLOOR  :  77-0, 4/21/14 (Consent) - See last page for  
            vote


           SUBJECT  :    Civil actions:  post-verdict motions

           SOURCE  :     California Defense Council
                      Consumer Attorneys of California


           DIGEST  :    This bill increases uniformity between the timelines  
          for three different post-verdict motions:  a motion for judgment  
          notwithstanding the verdict (JNOV); a motion for a new trial;  
          and a motion to set aside and vacate a judgment.

           ANALYSIS  :    

          Existing law:
           
          1.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 intention to move for a new trial,  
            designating the grounds upon which the motion will be made and  
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            whether the same will be made upon affidavits or the minutes  
            of the court, or both, either: 

                 After the decision is rendered and 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 Civil Procedure  
               (CCP) Section 659)

          1.Provides the following: 

                 The power of a court to rule on a motion for a new trial  
               expires 60 days from the mailing of notice of entry of  
               judgment by the court clerk, 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 within 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 until an  
               order ruling on the motion is (a) entered in the permanent  
               minutes of the court or (b) 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 must show the date on  
               which the order actually is entered in the permanent  

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               minutes, but provides that failure to comply with this  
               direction shall not impair the validity or effectiveness of  
               the order.  (CCP Section 660)  

          1.Provides, within 10 days of filing a notice for a new trial,  
            the moving party shall serve upon all other parties and file  
            any affidavits intended to be used upon such motion.  Such  
            other parties shall have 10 days after such service within  
            which to serve upon the moving party and file  
            counter-affidavits.  The time herein specified may, for good  
            cause shown by affidavit or by written stipulation of the  
            parties, be extended by any judge for an additional period of  
            not exceeding 20 days.  (CCP Section 659a)

          2.Requires, in relevant part, that a motion for JNOV be made  
            within the period specified for the filing and serving of  
            notice of intention to move for a new trial.  Provides that  
            the making of a JNOV motion shall not extend the time within  
            which a party may file and serve notice of intention to move  
            for a new trial.  (CCP Section 629)

          3.Sets the timing and procedures to file a motion to set aside  
            and vacate a judgment and for a court to rule upon that  
            motion.  (CCP Section 663a)

          This bill: 

          1.Provides, within 10 days of filing the notice, the moving  
            party shall serve upon all other parties and file any brief  
            and accompanying documents, including affidavits in support of  
            the motion.  The other parties shall have 10 days after that  
            service within which to serve upon the moving party and file  
            any opposing briefs and accompanying documents, including  
            counter-affidavits.  The moving party shall have five days  
            after that service to file any reply brief and accompanying  
            documents.  These deadlines may, for good cause shown by  
            affidavit or by written stipulation of the parties, be  
            extended by any judge for an additional period not to exceed  
            10 days.

          2.Adds that the moving, opposing, and reply briefs and any  
            accompanying documents for a JNOV motion shall be filed and  
            served within the periods specified for a motion for a new  
            trial (as proposed to be amended by this bill, above) and adds  

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            that the hearing on the JNOV motion shall be set in the same  
            manner as the hearing on a motion for new trial.

          3.Adds that the moving, opposing, and reply briefs and any  
            accompanying documents for a motion to set aside and vacate a  
            judgment shall be filed and served within the periods  
            specified for a motion for a new trial (as proposed to be  
            amended by this bill), and adds that the hearing on the motion  
            for a motion to set aside and vacate a judgment shall be set  
            in the same manner as the hearing on a motion for new trial.

          4.Makes other nonsubstantive and technical changes.

           


          Background
           
          As a matter of law, the time for making a motion depends on the  
          nature of the motion and the relief sought.  Certain motions,  
          such as motions for change of venue, should be made at the  
          earliest opportunity.  (44 Cal. Jur. Motion Procedure Sec. 8.)   
          Other motions, such as motions for a new trial, are necessarily  
          made after judgment has been rendered.  Generally, once a  
          judgment has been entered, the trial court loses its  
          unrestricted power to change that judgment.  For example, while  
          the court retains power to correct clerical errors in a judgment  
          that has been entered, it may not amend such a judgment to  
          substantially modify it or materially alter the rights of the  
          parties under its authority to correct clerical error.  The  
          trial court does, however, retain jurisdiction for a limited  
          period of time to entertain and grant a motion for a new trial,  
          a motion for a JNOV, or a motion to set aside and vacate a  
          judgment and enter a different judgment where there was an  
          incorrect or erroneous legal basis for the decision, not  
          consistent with or supported by the facts, or a judgment not  
          consistent with or not supported by a special verdict, among  
          other things.  (40A Cal. Jur. Judgments Sec. 244)  

          CCP generally sets timelines and procedures for the making and  
          consideration of each of the above motions.  If a motion is not  
          filed and served within those timeframes, it can be either  
          premature or overdue; either way, the court would lack  
          jurisdiction to consider and grant the motion.  Sponsored by  

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          both the California Defense Council and the Consumer Attorneys  
          of California, this bill seeks to bring uniformity to the  
          timeliness and procedures for filings and service of documents  
          relating to these post-verdict motions so as to reduce confusion  
          for the parties and promote the efficient use of court  
          resources.   

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   Local:  
           No

           SUPPORT  :   (Verified  6/19/14)

          California Defense Council (co-source)
          Consumer Attorneys of California (co-source)
          Judicial Council

           ARGUMENTS IN SUPPORT  :    According to the author: 

            AB 1659 will set a uniform briefing schedule for post-trial  
            motions.  Currently, the deadlines for filing post-trial  
            motions are inconsistent and cause confusion to practitioners.  
             Post-trial motions refer to motions for a new trial, judgment  
            notwithstanding the verdict (JNOV), and motions to vacate the  
            judgment. 

            [ . . . ]

            These motions are vital to civil litigation practice and the  
            inconsistency in deadlines result in procedural difficulties  
            by requiring practitioners to make numerous ex parte trips to  
            the courthouse to work out scheduling. 

            Given the importance of these motions and the budgetary  
            constraints our courts face, conforming these deadlines will  
            benefit the practice of law for all parties and will help save  
            court resources by minimizing the need for ex parte trips. 

            AB 1659 will make scheduling more efficient for attorneys and  
            the courts by simplifying and streamlining the deadlines for  
            filing a motion for a new trial, a motion for judgment  
            notwithstanding the verdict and a motion to vacate the  
            judgment.

          Consumer Attorneys of California, a co-sponsor of this bill,  

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          writes that "AB 1659 is a non-controversial, procedural measure  
          that will set a uniform briefing schedule for certain post trial  
          motions," noting that, currently, "post trial motions are  
          complex and intricate and laden with jurisdictional pitfalls."   
          The California Defense Council, also a co-sponsor of this bill,  
          adds that aligning the deadlines for these three post-trial  
          motions "will simplify practice to the benefit of lawyers,  
          litigants, and the courts."


           ASSEMBLY FLOOR  :  77-0, 4/21/14
          AYES:  Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,  
            Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian  
            Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,  
            Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,  
            Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,  
            Gorell, Gray, Grove, Hagman, Hall, Roger Hernández, Holden,  
            Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,  
            Maienschein, Mansoor, Medina, Mullin, Muratsuchi, Nazarian,  
            Nestande, Olsen, Pan, Patterson, Perea, V. Manuel Pérez,  
            Quirk, Quirk-Silva, Rendon, Ridley-Thomas, Rodriguez, Salas,  
            Skinner, Stone, Ting, Wagner, Waldron, Weber, Wieckowski,  
            Wilk, Williams, Yamada, John A. Pérez
          NO VOTE RECORDED:  Harkey, Melendez, Vacancy

          JA:k  6/19/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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