New Trials in California

Part 2, Title 8, Chapter 7, Article 2 deals with new trial in civil actions. Section 656 provides 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.

Section 657 allows the verdict to be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the seven specified causes, materially affecting the substantial rights of the party.

When a new trial is granted, on all or part of the issues, the court is required to specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated. A new trial cannot be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.

Section 657.1 allows a new trial to be granted as specified in this law.

Section 658 states that, when the application is made for a cause mentioned in existing law, it must be made upon affidavits; otherwise it must be made on the minutes of the court.

Section 659 requires the party intending to move for a new trial to file with the clerk and serve upon each adverse party a notice of their 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, based upon two specified timelines.

Section 659a provides that, within 10 days of filing the notice, the moving party is required to serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties 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 has five days after that service to file any reply brief and accompanying documents.

Section 660 states that, on the hearing of the motion, reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of the report or if there be no such report or certified transcript, to proceedings occurring at the trial that are within the recollection of the judge.

Section 661 requires the motion for a new trial to be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of the judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court.

Section 662 states that, in ruling on a motion, in a cause tried without a jury, the court may, on terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues.

Section 662.5 provides that, in any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion take one of two specified actions.

Section 663 states that a judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the specified causes, materially affecting the substantial rights of the party and entitling the party to a different judgment.

Section 663a states that a party intending to make a motion to set aside and vacate a judgment is required to file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon 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.

Section 663.1 states that the court may grant a new trial of any action or proceeding when all of the five specified conditions exist.

Section 663.2 specifies that the time within which a bill of exceptions may be prepared, served, or presented for settlement is extended and not commenced to run until the decision upon the motion. The motion must be made within 30 days after the loss or destruction of the records.