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New trial motion in a California eviction case

by Stan Burman

A new trial motion in a California eviction case is the topic of this blog post. 

Code of Civil Procedure sections 656 through 663.2 are the California statutes that govern new trials.  A new trial motion in a California eviction case may be made on the same grounds as for any other civil case pursuant to Code of Civil Procedure § 1178.

A new trial motion in a California eviction case has an important advantage compared to a motion for judgment notwithstanding the verdict in that it permits the court to reexamine an issue of fact or law. The trial court has broad discretion to reweigh the evidence, reassess credibility, disbelieve witnesses, and act as a thirteenth juror as stated by several decisions of the California Courts of Appeal.

Code of Civil Procedure § 657 states in pertinent part that a party may move for a new trial on all of the issues on the application of an aggrieved party for any of the following causes, materially affecting the substantial rights of such party.

1.         Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2.         Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3.         Accident or surprise, which ordinary prudence could not have guarded against.

4.         Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5.         Excessive or inadequate damages.

6.         Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7.         Error in law, occurring at the trial and excepted to by the party making the application.

Code of Civil Procedure § 658 states that when the application for a new trial is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.

However, there are strict deadlines that must be met in order to timely file a motion for new trial.   The first thing any party who wants to request a new trial should do is file a notice of their intention to move for a new trial and specify all of the seven grounds listed in section 657 that may even remotely apply to their case. If this is not done in a timely manner the motion for new trial will be denied.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall 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, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, 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; 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 that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”

Code of Civil Procedure § 659a states that within 10 calendar days after filing the notice of intention to move for new trial the party must file and serve any supporting affidavits unless a stipulation or court order has been obtained extending the time period.

While it may not be technically required by any California statute a memorandum of points and authorities with citations to case law and statutory authority is strongly recommended and should be filed and served at the same time as the supporting affidavits. 

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 pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

Sample new trial motion in a California eviction case for sale.

Attorneys or parties in California who would like to view a portion of a 15 page sample motion for new trial in a California eviction case that includes brief instructions, a notice of intention to move for new trial, memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.

Sample Motion for New Trial for California Eviction by Stan Burman on Scribd

 

 

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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