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Request for a new trial in California

by Stan Burman

A request for a new trial in California is the topic of this blog post.

A request for a new trial is governed by the statutes governing new trials in California which are found in Code of Civil Procedure sections 656 through 663.2.

Code of Civil Procedure section 656 states that “A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”

The advantage of a motion for new trial as compared to a motion for judgment notwithstanding the verdict is that it permits the court to reexamine an issue of fact or law. The trial court has very 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 section 657 lists seven (7) separate causes for requesting a new trial including irregularity in the proceedings, accident or surprise and newly discovered evidence that is material and which could not with reasonable diligence have been discovered and produced at the trial.  Note that all of the causes must have materially affected the substantial rights of the party moving for a new trial. 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. See Code of Civil Procedure § 658.

However, there are strict deadlines that must be met or the motion will be denied.  If you want to request a new trial you must file and serve a notice of intention to move for a new trial before the statutory deadline or your motion will be denied. You should always list all of the seven grounds listed in section 657 in the notice of intention to move for new trial.

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.”

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. See Code of Civil Procedure § 659a.        

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

Note 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 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 the motion for new trial 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.

Attorneys or parties in California who would like to view a portion of a sample California motion for new trial that includes a notice of intention to move for new trial, memorandum of points and authorities and a supporting declaration can use the link shown below.

Sample California Motion for New Trial by Stan Burman on Scribd

 

 
Attorneys or parties in California who would like more information on a law and motion document collection containing over 70 sample documents for California litigation including a sample motion for new trial sold by the author can use the link shown below.

https://legaldocspro.myshopify.com/products/california-law-and-motion-document-collection

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.

*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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