Volume 33: Motions After Trial thru Negotiable Instruments-Chs. 371-385

Chapter 371 MOTIONS AFTER TRIAL
GENERAL INTRODUCTION
Scope of Chapter
This chapter discusses and sets forth forms and procedures relating to three motions made in the trial court after trial has been concluded.

Part I discusses motions for judgment notwithstanding the verdict under Code Civ. Proc. 629[Deering's] .

Part II covers motions for new trial under Code Civ. Proc. 657[Deering's] , including requests for alternative relief under Code Civ. Proc. 662[Deering's] .

Part III covers motions to set aside and vacate a judgment and to enter another and different judgment under Code Civ. Proc. 663[Deering's] .
Governing Statutes
Motions for judgment notwithstanding the verdict are governed generally by Code Civ. Proc. 629[Deering's] . Code Civ. Proc. 629[Deering's] and 659[Deering's] govern the time within which the motion must be made. Code Civ. Proc. 664[Deering's] governs when judgment on the verdict must be entered.

Motions for new trial are governed by Code Civ. Proc. 655-663.2[Deering's] and 914[Deering's] . A stay of execution of the judgment pending determination of a motion for a new trial is governed by Code Civ. Proc. 918[Deering's] .

Motions to set aside and vacate a judgment and enter another and different judgment are governed by Code Civ. Proc. 663[Deering's], 663a[Deering's] .
Comparison of Motions
The motion for judgment notwithstanding the verdict allows the court to enter a judgment that is different from the verdict rendered by the jury if a motion for directed verdict for the aggrieved party should have been granted had a previous motion been made [see Code Civ. Proc. 629[Deering's] ]. The granting of this motion obviates the need for a new trial, but the court cannot weigh the evidence or judge the credibility of witnesses as it can on motion for new trial. The court may only determine whether or not there is any evidence of sufficient substantiality to support the verdict [ Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 ].

The motion for new trial allows the court to reexamine an issue of fact or law after a trial and decision by a jury, the court, or a referee. When grounds exist, the verdict or 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 [ Code Civ. Proc. 657[Deering's] ]. In nonjury trials, the court has the power to reopen the case and modify the statement of decision while denying the motion for new trial [see Code Civ. Proc. 662[Deering's] ].

The motion to set aside and vacate a judgment and enter another and different judgment allows the court to correct judicial error if its legal bases for the decision are not consistent with or supported by the facts, or if the judgment or decree is not consistent with the special verdict [see Code Civ. Proc. 663 ]. On granting the motion, the court cannot reexamine factual issues as it can on a motion for alternative relief in lieu of granting a new trial under Code Civ. Proc. 662[Deering's] [ Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 117 P.2d 689 ]. In a case where judgment is set aside, the court must amend and correct the statement of decision [see Code Civ. Proc. 663[Deering's] ].
Court Has Discretion to Determine Relief Requested
When a party brings a timely post-trial motion, the trial court has broad discretion to determine the relief being requested, regardless of formal title of the motion [ Shapiro v. Prudential Prop. and Cas. Co. (1997) 52 Cal. App. 4th 722, 727, 60 Cal. Rptr. 2d 698 ].

ILLUSTRATION: Party Requested Corrected Judgment and Received New Trial on Damages. A jury rendered a special verdict finding a homeowner's insurance carrier liable for negligent misrepresentation of the insured's gun collection and awarded the insured $180,000 in damages. The homeowner had listed $379,000 as the amount lost for his firearms inventory when his home burned in the Oakland-Berkeley fire. Following entry of judgment, the homeowner moved to set aside the judgment and enter a different judgment. The trial court granted a limited new trial on the issue of damages, and the insurance carrier appealed. Did the trial court's order stand? Yes. The court of appeal held that when a party brings a timely post-trial motion, the trial court has broad discretion to determine the relief being requested. In this case, the homeowner did not move for a new trial but did request relief consistent with new trial on damages [ Shapiro v. Prudential Prop. and Cas. Co. (1997) 52 Cal. App. 4th 722, 727, 60 Cal. Rptr. 2d 698 ].

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GENERAL RESEARCH GUIDE
State Statutes
Judgment Notwithstanding Verdict

Requirements and procedures for judgment notwithstanding verdict. Code Civ. Proc. 629[Deering's]

Time for making motion for judgment notwithstanding verdict. Code Civ. Proc. 629[Deering's], 659[Deering's] .

Time for entry of judgment on verdict. Code Civ. Proc. 664[Deering's]

Motion for New Trial

Requirements and procedures for motion for new trial. Code Civ. Proc. 655-663.2[Deering's], 914[Deering's]

Request for alternative relief to be granted in lieu of new trial. Code Civ. Proc. 662[Deering's]

Motion to Set Aside and Vacate a Judgment and Enter Another and Different Judgment

Requirements and procedures for motion to set aside, vacate, and enter new and different judgment. Code Civ. Proc. 663[Deering's], 663a[Deering's]

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Part I MOTION FOR JUDGMENT NOTWITHSTANDING VERDICT
Introduction
Scope of Part
This part discusses the motion for judgment notwithstanding the verdict. It includes a written notice of motion [Form 1], an order denying the motion [Form 2], and a combined order granting and entering judgment notwithstanding the verdict [Form 3]. For an order staying execution of judgment pending the hearing on a motion for new trial that may be adapted for use in staying execution of judgment pending determination of a motion for judgment notwithstanding the verdict, see Ch. 254, Executions and Enforcement of Judgments.
Governing Statutes
Motions for judgment notwithstanding the verdict are governed generally by Code Civ. Proc. 629[Deering's] . Code Civ. Proc. 629[Deering's] and 659[Deering's] govern the time within which such motions must be made. Code Civ. Proc. 664[Deering's] governs when judgment on the verdict must be entered.
Description
A motion for judgment notwithstanding the verdict, often referred to as a motion JNOV (i.e., a motion for judgment non obstante veredicto), is governed by Code Civ. Proc. 629[Deering's] . The statute provides that the court, on its own motion or on motion of a party against whom a verdict has been rendered, must render judgment in favor of an aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made [see Code Civ. Proc. 629[Deering's] ].
Who May Bring Motion
A judgment notwithstanding the verdict is usually sought by the defendant who thereby interposes a demurrer to the evidence. However, Code Civ. Proc. 629[Deering's] permits a motion by an unsuccessful plaintiff [ Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 734, 85 Cal. Rptr. 281 ].
Effect of Motion for Directed Verdict
There is no longer a condition that a motion for a directed verdict be made before a judge can consider a motion for judgment notwithstanding the verdict [see amendment of Code Civ. Proc. 629[Deering's] by Stats. 1963, ch. 205 ; Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 417, 172 Cal. Rptr. 49 ]. Furthermore, a prior denial of a motion for a directed verdict will not prevent a subsequent granting of a motion for judgment notwithstanding the verdict [ Teich v. General Mills, Inc. (1959) 170 Cal. App. 2d 791, 794, 339 P.2d 627 ].
No Automatic Stay of Entry of Judgment
The motion for judgment notwithstanding the verdict no longer automatically stays entry of judgment until the motion is heard and decided [see amendment of Code Civ. Proc. 664[Deering's] by Stats. 1961, ch. 604 ]. Judgment must be entered within 24 hours after the rendition of the verdict, whether or not a motion for judgment notwithstanding the verdict is pending, unless the court orders the case to be reserved for argument or further consideration, or grants a stay of proceedings [ Code Civ. Proc. 664[Deering's] ].

Subject to Code Civ. Proc. 918(b)[Deering's] , the trial court may stay the enforcement of any judgment or order whether or not an appeal will be taken from it and whether or not a notice of appeal has been filed [ Code Civ. Proc. 918(a)[Deering's],(c)[Deering's] ]. Code Civ. Proc. 918(b)[Deering's] provides that if the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court does not have power without the consent of the adverse party to stay the enforcement of the judgment or order pursuant to Code Civ. Proc. 918[Deering's] for a period which exceeds for more than 10 days beyond the last date on which a notice of appeal could be filed. For forms for use in staying the execution of judgment, see Ch. 254, Executions and Enforcement of Judgments.
Valid Jury Verdict Required
For the court to grant a motion for judgment notwithstanding the verdict, the jury must have reached a verdict that is valid. A motion for judgment notwithstanding the verdict will not be granted if the jury has rendered a verdict that is so contradictory and unintelligible that the jury's intent is not ascertainable [ Mish v. Brockus (1950) 97 Cal. App. 2d 770, 776, 218 P.2d 849 ].

The JNOV procedure, by definition, applies only to claims as to which a jury reached a verdict. It does not apply to claims decided by the court [ Herr v. Nestle U.S.A., Inc. (2003) 109 Cal. App. 4th 779, 788, 135 Cal. Rptr. 2d 477 ].
General or Special Verdicts
Code Civ. Proc. 629[Deering's] mentions only a ``verdict'' and it is not clear whether or not the motion for judgment notwithstanding the verdict is appropriate when the jury renders a special verdict and not a general verdict [see Code Civ. Proc. 629[Deering's] , first paragraph]. A special verdict is one in which the jury finds the conclusions of fact, leaving the conclusions of law to the court, which then enters judgment accordingly [see Code Civ. Proc. 624[Deering's] ]. Therefore, a special verdict may be inherently consistent with the evidence presented, thus obviating the need to correct a verdict that is erroneous as a matter of law by use of the motion for judgment notwithstanding the verdict.

However, despite this uncertainty, counsel may consider making the motion with respect to a special verdict when the grounds for a judgment notwithstanding the verdict exist, since it may be the only way to save the client the delay and expense of a new trial [see Lack of Substantial Evidence, below ].
Power of Trial Judge
The power of a trial judge to grant a motion for judgment notwithstanding the verdict is identical to his or her power to grant a directed verdict [ Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal. App. 4th 1053, 1057-1058, 103 Cal. Rptr. 2d 790 ; Alexander v. State of California (1984) 159 Cal. App. 3d 890, 896, 205 Cal. Rptr. 758 ]. In other words, the judge cannot weigh the evidence or judge the credibility of witnesses, as he or she can do on a motion for new trial, but must accept the evidence tending to support the verdict as true, unless on its face it is inherently incredible [ Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 , disapproved on other grounds in Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal. 3d 809, 822 n.5, 169 Cal. Rptr. 691, 620 P.2d 141 ; see Stevenson v. Oceanic Bank (1990) 223 Cal. App. 3d 306, 314, 272 Cal. Rptr. 757 ]. The court must disregard all conflicting evidence and indulge in every legitimate inference that may be drawn in support of the judgment, and may grant the motion only if there is no substantial evidence to support the verdict [ Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal. App. 4th 1053, 1057-1058, 103 Cal. Rptr. 2d 790 ; see discussion under Lack of Substantial Evidence, below].
Partial Judgment Notwithstanding the Verdict--In General
As with a directed verdict, a trial court may grant judgment notwithstanding the verdict as to some but not all issues [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 323, 274 Cal. Rptr. 766 ]. This procedure is derived from the requirement of Code Civ. Proc. 629[Deering's] that a court grant judgment notwithstanding the verdict when a motion for directed verdict should have been granted had one been made [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 328-329, 274 Cal. Rptr. 766 (both procedural devices are different aspects of same judicial function and, for them to mesh together appropriately, it is necessary that standards be same for each procedure)].

An order granting partial judgment notwithstanding the verdict has the effect of modifying the judgment on the verdict. If the trial court otherwise upholds the verdict, then the judgment, as modified by the partial judgment notwithstanding the verdict, is immediately appealable [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ].
Effect of Order for Partial New Trial
When the trial court grants a new trial as to issues that are not affected by the partial judgment notwithstanding the verdict, then the new trial order has the effect of vacating and holding in abeyance the entire judgment, as modified by the order granting judgment notwithstanding the verdict, until one final judgment can be entered [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ].

An exception to the rule that a partial new trial order vacates and holds in abeyance the entire judgment applies when the judgment retains sufficient vitality to support appellate review if the matter is otherwise properly brought before the appellate court [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ]. For example, if the trial court has granted defendants a partial judgment notwithstanding the verdict on a cause of action for intentional infliction of emotional distress and a new trial based on jury misconduct on the remaining cause of action of negligence, the entire judgment is subject to review, including the portion affected by the judgment notwithstanding the verdict [see Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 330, 274 Cal. Rptr. 766 ].
Lack of Substantial Evidence
The grounds for granting a motion for judgment notwithstanding the verdict are the same as for granting a motion for directed verdict or nonsuit [see Code Civ. Proc. 629[Deering's] ; Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ].

The primary requirement for judgment notwithstanding the verdict is that there be no substantial conflict in the evidence [ Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Alexander v. State of California (1984) 159 Cal. App. 3d 890, 896, 205 Cal. Rptr. 758 ; Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57 ]. Thus, the court will grant a motion for judgment notwithstanding the verdict only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion will be denied [ Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; California Shoppers, Inc. v. Royal Globe Insurance Co. (1985) 175 Cal. App. 3d 1, 30, 221 Cal. Rptr. 171 ; Sprigg v. Garcin (1980) 105 Cal. App. 3d 869, 873, 164 Cal. Rptr. 677 ].
Standard--Motion by Defendant
The court will grant the verdict when and only when, disregarding conflicting evidence on behalf of defendant and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, no evidence of sufficient substantiality supports a verdict in plaintiff's favor [ Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 51, 150 Cal. Rptr. 722 ].
Motion by Plaintiff
The court will grant judgment notwithstanding the verdict in favor of the plaintiff if the evidence, as a matter of law, dictates a determination of all the issues in the case in his or her favor [ Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925 ].
Procedure on Court's Own Motion
The court may grant judgment notwithstanding the verdict on its own motion after return of the verdict if it decides that the verdict is not supported by substantial evidence [ Code Civ. Proc. 629[Deering's] ; see also discussion under Lack of Substantial Evidence, above ]. It must act before the expiration of its power to rule on a motion for new trial and after five days notice to the parties [ Code Civ. Proc. 629[Deering's], 659[Deering's] ].

One court of appeal has held that the requirement of Code Civ. Proc. 629[Deering's] that a motion for judgment notwithstanding the verdict be made within the time limits for filing and serving notice of a motion for new trial does not apply to the court acting on its own motion [see Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 963-964, 156 Cal. Rptr. 687 ]. This time limitation would only apply to motions made by parties. Therefore, there would be no time restrictions on the court as long as it gives 5 days notice to the parties and acts on the motion after the time for serving and filing a motion for new trial has expired and before the time for ruling on a motion for new trial expires [see Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 963-964, 156 Cal. Rptr. 687 ; see also Code Civ. Proc. 629[Deering's], 659[Deering's], 664[Deering's] ].
Procedure for Motion by Party--Oral or Written Notice of Motion
Code Civ. Proc. 629[Deering's] , the statute authorizing judgments notwithstanding the verdict, does not state how the party against whom the verdict is rendered is to proceed. However, it appears that the motion may be made either orally, that is, in court immediately after the rendition of the verdict, or at a later hearing pursuant to a written notice of motion [see Abreu v. Svenhard's Swedish Bakery (1989) 208 Cal. App. 3d 1446, 1452 n.2, 257 Cal. Rptr. 26 ].
Time for Making Motion--In General
A party must make the motion within the time specified by Code Civ. Proc. 659[Deering's] for filing and serving notice of intention to move for a new trial [ Code Civ. Proc. 629[Deering's] ].

Under Code Civ. Proc. 659[Deering's] , a notice of intention to move for a new trial may be filed before the entry of judgment, but after the jury, court, or referee has rendered a decision. It may alternatively be filed after judgment is entered, within the earliest of the following times [ Code Civ. Proc. 659[Deering's] ]:

15 days after the court clerk mailed notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] .

15 days after any party served a written notice of entry of judgment on the moving party.

180 days after judgment is entered.

The statutory requirement of giving written notice of entry of judgment is satisfied by serving a copy of the file-stamped judgment in a county that no longer maintains a judgment book. To start the statutory time period for bringing a motion for judgment notwithstanding the verdict, it is not necessary to serve on the opposing party a separate document entitled notice of entry of judgment and to file in the trial court that document, as well as a copy of the judgment and proof of its service [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1267-1268, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ].

Under the express terms of Code Civ. Proc. 629[Deering's], 659[Deering's] , the time limits for bringing a motion for judgment notwithstanding the verdict start to run either on the date of the court clerk's mailing or on the date of service on the moving party of notice of entry of judgment. To be service pursuant to Code Civ. Proc. 664.5[Deering's] as required by section 659, the notice of entry of judgment mailed by the clerk must affirmatively state it is given ``upon order by the court'' or ``under section 664.5'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 64, 61 Cal. Rptr. 2d 166, 931 P.2d 344 ]. Otherwise, the time limits for motions for a new trial are triggered by service on the moving party of ``written notice'' of the ``entry of judgment'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Code Civ. Proc. 659[Deering's] ]. When the moving party is served by mail, service is complete at the time the notice of entry of judgment is deposited in the mailbox [ Code Civ. Proc. 1013(a)[Deering's] ; Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1048, 102 Cal. Rptr. 2d 673 ].

The written notice of entry of judgment served on the party who moves for judgment notwithstanding the verdict need not be a separate document entitled notice of entry of judgment. No particular form of notice is required, and in counties that do not maintain a judgment book, a file-stamped copy of the judgment suffices as ``written notice'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 57 n.2, 61 Cal. Rptr. 2d 166, 931 P.2d 344 ; McCordic v. Crawford (1943) 23 Cal.2d 1, 5, 142 P.2d 7 ].

Nothing in sections 629, 659 expressly requires the party serving written notice of entry of judgment to file any document with the trial court. If a prevailing party, consistent with section 664.5, serves written notice of the entry of judgment on the party moving for judgment notwithstanding the verdict and files the original notice of entry and a proof of service, the prevailing party necessarily will have complied with section 659 by ``serving written notice.'' The posttrial motion statutes do not, however, require filing of the original notice of entry (or of a file-stamped copy of the judgment) accompanied by proof of service in order to start the time limits for bringing the posttrial motions [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 (Van Beurden's suggestion that more is required by party to trigger time limits for new trial is dictum because it was unnecessary to its holding)].

This time limit is not lengthened by Code Civ. Proc. 1013[Deering's] , which generally extends the time for exercising a right or doing an act when service is by mail, Express Mail or other method of overnight delivery, or fax [ Code Civ. Proc. 659[Deering's], 1013[Deering's] ]. Code Civ. Proc. 1010.6[Deering's] , which extends the time for exercising a right or doing an act after electronic service, as authorized by section 1010.6, also provides that it does not operate to extend the time for filing notice of intention to move for new trial [ Code Civ. Proc. 1010.6(a)(6)[Deering's] ].

If a party fails to make a motion for judgment notwithstanding the verdict within the applicable deadline, the court lacks jurisdiction to hear the motion [ Younesi v. Lane (1991) 228 Cal. App. 3d 967, 972-973, 279 Cal. Rptr. 89 , disapproved on other grounds in Van Beurden Ins. Service, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 63, 61 Cal. Rptr. 2d 166, 931 P.2d 344 (disapproving Younesi to the extent it held that appellate courts must ``presume'' that a notice of entry of judgment mailed by clerk was ``ordered'' by the court, and thus constituted proper notice under Code Civ. Proc. 664.5[Deering's] sufficient to trigger the 15-day deadline under Code Civ. Proc. 659[Deering's] )].
Effect on Time for New Trial Motion
The making of a motion for judgment notwithstanding the verdict will not extend the time within which a party may file and serve notice of intention to move for a new trial [ Code Civ. Proc. 629[Deering's] ].
Ruling on Motion--When Court May Rule on Motion
The court will not rule on the motion for judgment notwithstanding the verdict until expiration of the time within which a notice of intention to move for a new trial must be served and filed [ Code Civ. Proc. 629[Deering's] ; for time period, see --Time for Making Motion--In General, above].

Pursuant to Code Civ. Proc. 629[Deering's], 660[Deering's] , where there is no new trial motion filed, the latest date for ruling on a motion for JNOV is either of the following, whichever is earlier [ Pratt v. Vencor (2003) 105 Cal. App. 4th 905, 907, 129 Cal. Rptr. 2d 741 ]:

Sixty days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Code Civ. Proc. 664.5[Deering's] .

Sixty days from and after service on the moving party by any party of written notice of the entry of the judgment.

The power of the court to rule on the motion for judgment notwithstanding the verdict does not extend beyond the last date on which the court can rule on a motion for new trial [ Code Civ. Proc. 629[Deering's] ; for time period, see Procedural Checklist, Paragraph I(B)(5)(a), below ]. If this time passes without a determination on the motion, the motion is, in effect, denied [ Code Civ. Proc. 629[Deering's] ].
With Motion for New Trial
If a notice of intention to move for a new trial is also filed, the court must rule on both motions at the same time [ Code Civ. Proc. 629[Deering's] ]. The statutory language is directory and not mandatory; substantial compliance is sufficient provided rulings on both motions are made within the requisite time period [ Espinoza v. Rossini (1966) 247 Cal. App. 2d 40, 46, 55 Cal. Rptr. 205 ].
Effect of Judgment N.O.V. on Issue of Damages
If the court sets aside the judgment for defendants, notwithstanding the verdict, and proceeds to assess damages, it deprives defendants of their consitutional right to jury trial on that question [ Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 787, 60 Cal. Rptr. 809 ]. However, there is a split of authority over the propriety of the court's granting of plaintiff's motion for judgment notwithstanding the verdict with a concurrent order for a new trial on the sole issue of damages.

One line of authority holds that it is error for the court to declare liability, notwithstanding the verdict, and to grant a new trial as to damages. This would violate the established rule of no multiple final judgments in a single action [see Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 734, 85 Cal. Rptr. 281 ; see Jach v. Edson (1967) 255 Cal. App. 2d 96, 101, 62 Cal. Rptr. 925 ].

Another line of cases holds that the grant of a new trial on all issues would involve a costly repetition of testimony, and therefore, the granting of the motion for judgment notwithstanding the verdict and for a new trial on the issue of damages is within the discretion of the trial court [see Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 517-518, 78 Cal. Rptr. 417 ; see Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 121, 120 Cal. Rptr. 681, 534 P.2d 377 (judgment notwithstanding verdict affirmed and case remanded to trial court to ascertain damages; although not entirely clear from the opinion, the effect of the decision appears to be an affirmance of the holding in Gordon, which would result in a disapproval by implication of contrary holdings in Moore and Jach )].
Notice of Court's Order
When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order must be given by the prevailing party to all other parties or their attorneys, in the manner provided in Code Civ. Proc. 1010-1020[Deering's] [see Ch. 518, Service of Summons and Papers], unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. 1019.5(a)[Deering's] ]. In the case of a signed appealable order entered in a contested action or proceeding, other than a proceeding for voidable marriage or for dissolution of marriage, legal separation, and summary dissolution, or small claims action, notice of entry of the order must be given in accordance with Code Civ. Proc. 664.5[Deering's] [see Ch. 372, Motions and Orders].
Review--Reconsideration and Appeal
Generally, an order granting a judgment notwithstanding the verdict is neither a final judgment nor an appealable order [ Jordan v. Talbot (1961) 55 Cal. 2d 597, 602, 12 Cal. Rptr. 488, 361 P.2d 20 ; Herman v. Shandor (1970) 8 Cal. App. 3d 476, 479, 87 Cal. Rptr. 443 ]. However, the court may reconsider an order granting a motion for judgment notwithstanding the verdict at any time before judgment is entered on the order [ Jach v. Edson (1968) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925 ].

An appeal will lie from an order denying a motion for judgment notwithstanding the verdict [ Code Civ. Proc. 904.1(a)(4)[Deering's] ; Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Elisalda v. Welch's Sand & Gravel Co. (1968) 260 Cal. App. 2d 46, 50, 67 Cal. Rptr. 57 ]. Also, if judgment is entered pursuant to the court's granting of the motion, that judgment is appealable [ Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 159, 41 Cal. Rptr. 577, 397 P.2d 161 ]. For discussion of appeals of postjudgment orders, including judgments notwithstanding the verdict, and protective or precautionary cross appeals of the original judgment in the event the postjudgment order is reversed on appeal, see Ch. 42, Appeal: Notice of Appeal, 42.12[4A].
Standard on Review
The reviewing court follows the trial court's method of consideration of the evidence. When reviewing the validity of a judgment notwithstanding the verdict, the appellate court must resolve any conflict in the evidence and draw all reasonable inferences from the evidence in favor of the jury's verdict [ Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal. 3d 512, 515, 143 Cal. Rptr. 247, 573 P.2d 465 ]. The appellate court will affirm a judgment entered on an order granting judgment notwithstanding the verdict only if, reviewing all the evidence in the light most favorable to the party in whose favor the jury rendered the verdict, resolving all conflicts, and drawing all inferences in favor of that party, and deferring to the implicit credibility determinations of the trier of fact, there is no substantial evidence to support the jury's verdict [ Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ]. The scope of appellate review of a trial court's denial of a motion for judgment notwithstanding the verdict is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's conclusion, and when so found to uphold the trial court's denial of the motion [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1138, 122 Cal. Rptr. 2d 139 ; Wright v. Beverly Fabrics, Inc. (2002) 95 Cal. App. 4th 346, 351, 115 Cal. Rptr. 2d 503 ; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72-73, 92 Cal. Rptr. 2d 611 ; Pusateri v. E.F. Hutton & Co. (1986) 180 Cal. App. 3d 247, 250, 225 Cal. Rptr. 526 ]. However, if the issues deal solely with statutory interpretation and application of a statute to undisputed facts, review takes place de novo [ Wright v. Beverly Fabrics, Inc. (2002) 95 Cal. App. 4th 346, 352, 115 Cal. Rptr. 2d 503 ].

However, where the issues deal solely with the application of a statute to the facts supporting the verdict, which is a question of law, the appellate court will review the issues de novo [ Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal. App. 4th 710, 718-719, 112 Cal. Rptr. 2d 195 ].

The appellate court's function is to review the discretion exercised by the trial court in light of the evidence but not to replace that discretion unless it was arbitrarily exercised [ Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 511, 78 Cal. Rptr. 417 ].
Effect of Reversal
Although a reversal usually remands a case for a new trial, the effect of a reversal on a judgment notwithstanding the verdict is to restore the proceeding to the state of the record before the erroneous judgment was entered. In other words, appellant will have a recorded verdict in his or her favor, but will have no judgment entered. Appellant is then entitled under Code Civ. Proc. 664[Deering's] to have judgment entered in his or her favor in conformity with the verdict [ Ferran v. Mulcrevy (1935) 9 Cal. App. 2d 129, 131, 48 P.2d 984 ; for discussion of procedure for entry of judgments under Code Civ. Proc. 664[Deering's] , see Ch. 318, Judgments].

When a judgment notwithstanding the verdict is reversed on appeal, the reinstated judgment on the verdict is a new judgment for purposes of appeal, and the time for filing a notice of appeal from the reinstated judgment commences to run on the issuance of remittitur from the appellate court [ Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, 779, 131 Cal. Rptr. 730 ]. For further discussion of Lippert, see Ch. 42, Appeal: Notice of Appeal, 42.12[4A].
Alternative Motions--Motion for Judgment Notwithstanding Verdict Denied, Motion for New Trial Denied
The trial judge may decide, for example, that the evidence substantially supports the verdict, and, on examining the weight of the evidence, that the judgment rendered should stand. If the motions for judgment notwithstanding the verdict and for new trial are both denied and it appears on appeal that the motion for judgment notwithstanding the verdict should have been granted, the appellate court may order judgment to be so entered [ Code Civ. Proc. 629[Deering's] ].
Judgment Notwithstanding Verdict Denied, New Trial Granted
If a new trial is granted, but a motion for judgment notwithstanding the verdict is denied, the order denying the motion for judgment notwithstanding the verdict is reviewable on appeal by the aggrieved party [ Code Civ. Proc. 629[Deering's] ].
Both Motions Granted
If the court grants both motions, the order granting a new trial becomes effective only if the judgment notwithstanding the verdict is reversed on appeal and the order granting a new trial is either not appealed or is confirmed on appeal [ Code Civ. Proc. 629[Deering's] ]. Thus, the motion for judgment notwithstanding the verdict will determine the outcome of the case in favor of the movant and a new trial will not proceed. However, if the opposing party appeals and the judgment notwithstanding the verdict is reversed, the motion for new trial becomes effective [see Dietrich v. Litton Industries, Inc. (1970) 12 Cal. App. 3d 704, 719, 90 Cal. Rptr. 856 (order granting new trial confirmed on appeal); but see Jach v. Edson (1967) 255 Cal. App. 2d 96, 100, 62 Cal. Rptr. 925 (order granting new trial remanded for reconsideration)].

If the court grants a partial judgment notwithstanding the verdict, the new trial order is contingent on reversal of the judgment notwithstanding the verdict to the extent the orders overlap, and is otherwise effective [ Beavers v. Allstate Ins. Co. (1990) 225 Cal. App. 3d 310, 332 n.7, 274 Cal. Rptr. 766 ].

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Research Guide
Cross References
For examples of noticed motions generally, see Ch. 372, Motions and Orders

For discussion of procedure and forms regarding service of papers, see Ch. 518, Service of Summons and Papers

For an application and order shortening time, see Ch. 524, Shortening and Extension of Time
California Points and Authorities
For memoranda of points and authorities relating to judgments notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 155, Motions After Trial, pt. I (Matthew Bender)
State Statutes
Requirements and procedures for judgment notwithstanding verdict. Code Civ. Proc. 629[Deering's]

Time for making motion for judgment notwithstanding verdict. Code Civ. Proc. 629[Deering's], 659[Deering's]

Time for entry of judgment on verdict. Code Civ. Proc. 664[Deering's]

Appeal from order denying motion for judgment notwithstanding verdict. Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's]

Consent of parties for judge to hear motion anywhere in state. Gov. Code 69741.1[Deering's]
California Rules of Court
Filing of appeal from judgment or order denying judgment notwithstanding verdict. Cal. Rules of Ct., Rules 3(c)[Deering's], 123(c)[Deering's]
Decisions
Appeal--Effect on Trial Court's Power to Grant Motion

Motion for judgment notwithstanding verdict, like motion for new trial, is collateral matter and does not divest trial court of jurisdiction to grant judgment notwithstanding verdict after notice of appeal has been filed. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1210-1213, 238 Cal. Rptr. 130 (declining to follow contrary holding in Weisenburg v. Molina (1976) 58 Cal. App. 3d 478, 486, 129 Cal. Rptr. 813 )

--Standard of Review

On appeal from judgment for defendant notwithstanding verdict, appellate court will ordinarily use same standard trial court uses to rule on motion, i.e., will determine whether record, viewed most favorably to party securing verdict contains substantial evidence supporting verdict. However, where issues deal solely with application of statute to facts supporting verdict, which is question of law, appellate court will review de novo. Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal. App. 4th 710, 718-719, 112 Cal. Rptr. 2d 195

Bifurcated Trials

In bifurcated trial pursuant to Code Civ. Proc. 598[Deering's] , if verdict in liability phase is for defendant, plaintiff then properly moves for judgment notwithstanding the verdict; if liability verdict for plaintiff, defendant required to wait until conclusion of damages phase of trial to make motion. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 936-937, 149 Cal. Rptr. 808

Court's Own Motion

Trial judge on own motion may grant judgment notwithstanding verdict if verdict, as to liability, is not supported by substantial evidence, but may not grant judgment on own motion on ground that damages were excessive or inadequate. Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 919, 114 Cal. Rptr. 622, 523 P.2d 662

Court may grant judgment notwithstanding verdict on own motion if it gives 5 days notice to parties, and acts on motion after time for serving and filing a motion for new trial has expired and before time for ruling on motion for new trial expires. Sturgeon v. Leavitt (1979) 94 Cal. App. 3d 957, 963-964, 156 Cal. Rptr. 687

Damages

Court errs when it declares liability notwithstanding verdict and grants new trial as to damages. Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 734, 85 Cal. Rptr. 281 ; Jach v. Edson (1967) 255 Cal. App. 2d 96, 101, 62 Cal. Rptr. 925 ; but see Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 517-518, 78 Cal. Rptr. 417 , contra

When court sets aside judgment for defendants notwithstanding verdict and proceeds to assess damages, court deprives defendants of constitutional right to jury trial on that question. Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 787, 60 Cal. Rptr. 809

In action for personal injuries sustained by plaintiff in rear end automobile collision, when considerable conflict regarding amount of damages sustained by plaintiff since her credibility was impeached, trial court abused its discretion in granting judgment notwithstanding verdict for plaintiff and fixing amount of damages at $10,000. Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 786-787, 60 Cal. Rptr. 809

Denial of Motion

Court properly denies motion for judgment notwithstanding the verdict when several reasonable inferences supporting verdict are deducible from the evidence. Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 877-878, 151 Cal. Rptr. 285, 587 P.2d 1098

Judgment notwithstanding verdict properly denied when evidence is conflicting or several reasonable inferences supporting verdict may be drawn. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

In products liability action, trial court properly denied defendant's motion for JNOV regarding compensatory and punitive damages, where evidence was sufficient to prove defendant acted with malice in designing and manufacturing 1978 Bronco that rolled over and killed plaintiffs' decedents and injured plaintiffs or in failing to warn consumers about absence of rollover protection. Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1137-1147, 122 Cal. Rptr. 2d 139

Party is entitled to judgment notwithstanding verdict only if there is no substantial evidence to support verdict and evidence compels judgment for moving party as matter of law; trial court must view evidence in light most favorable to verdict, disregard conflicting evidence, and indulge in every legitimate inference to support verdict; appellate court will determine de novo whether there is substantial evidence to support verdict and whether moving party is entitled to judgment in its favor as matter of law. Paykar v. Construction, Inc. v. Spilat Construction Corp. (2001) 92 Cal. App. 4th 488, 493-494, 111 Cal. Rptr. 2d 863

Defendant's motion for judgment notwithstanding verdict properly denied when even though most of evidence was circumstantial, substantial evidence existed from which jury could reasonably find corporate malice when defendant's management allegedly proceeded to manufacture automobile with knowledge of test results revealing design defects in Ford Pinto. Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 812-813, 174 Cal. Rptr. 348

In action by decedent's widow to determine if decedent had coverage under group life insurance policy at time of death, plaintiff's motion for judgment notwithstanding verdict properly denied when substantial conflict in evidence existed regarding whether decedent had returned to work after effective date of policy. Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57

Effect of Motion for Directed Verdict

Judge may consider motion for judgment notwithstanding verdict even though motion for directed verdict not previously made. Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 417, 172 Cal. Rptr. 49 , disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 738, 257 Cal. Rptr. 708, 711 P.2d 406

Prior denial of motion for directed verdict does not prevent subsequent granting of motion for judgment notwithstanding verdict. Teich v. General Mills, Inc. (1959) 170 Cal. App. 2d 791, 794, 339 P.2d 627

Extent of Trial Court's Discretion

When post-trial motions attacking judgment have been made, trial court is not limited to order granting or denying relief requested in moving party's papers. Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rptr. 480 (dictum; court amended judgment to delete finding on motion for new trial and judgment notwithstanding verdict), disapproved on other grounds in Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454

Court not required to disregard internally inconsistent testimony of witness or to make finding that testimony insufficient to support verdict, but must consider inconsistencies, resolve them if possible, and determine what weight to give testimony. Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 878, 151 Cal. Rptr. 285, 587 P.2d 1098

Trial judge does not weigh evidence or judge credibility of witnesses. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

Trial judge's power to grant judgment notwithstanding verdict is identical to power to grant directed verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

Trial court may grant judgment notwithstanding verdict only if verdict is not supported by substantial evidence; trial court may not weigh evidence, draw inferences contrary to verdict, or assess credibility of witnesses. Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611

Trial judge does not weigh evidence or judge credibility of witnesses, but must accept evidence tending to support verdict as true, unless on its face it is inherently incredible. Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 , disapproved on other grounds in Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal. 3d 809, 822 n.5, 169 Cal. Rptr. 691, 620 P.2d 141

If trial court admitted improper evidence at trial, court may not ignore that evidence and grant motion for judgment notwithstanding verdict on ground that party offering evidence did not prove his or her case by legally competent evidence. Donahue v. Ziv Television Programs, Inc. (1966) 245 Cal. App. 2d 593, 609-610, 54 Cal. Rptr. 130

In relation to motion for judgment notwithstanding verdict, court considers incompetent evidence, if relevant and not objected to, as it would consider any other relevant testimony. Estate of Lekos (1952) 109 Cal. App. 2d 42, 53 240 P.2d 387

Grant of Motion

Motion for judgment notwithstanding verdict may be granted only if it appears from evidence, viewed in light most favorable to party securing verdict, that there is no substantial evidence in support. Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29

Judgment notwithstanding verdict properly granted only if it appears from evidence, viewed in light of party securing verdict, that there is no substantial evidence to support verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Castro v. State of California (1981) 114 Cal. App. 3d 503, 512, 170 Cal. Rptr. 734

Defendant's motion for judgment notwithstanding verdict granted only when, disregarding conflicting evidence on behalf of defendants and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, no evidence of sufficient substantiality supports verdict in plaintiff's favor. Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 51, 150 Cal. Rptr. 722

Motion for judgment notwithstanding verdict properly granted only if it appears from evidence, viewed in light most favorable to party securing verdict, that there is no substantial evidence to support verdict; if there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of verdict, motion is to be denied. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1213, 238 Cal. Rptr. 130

To be substantial, evidence must be of ponderable legal significance; term ``substantial evidence'' is not synonymous with ``any evidence''; to be substantial, evidence must be reasonable in nature, credible, and of solid value; hence, trial court, in ruling on motion for judgment notwithstanding verdict, may disregard evidence in support of verdict that is inherently incredible. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1214-1215, 238 Cal. Rptr. 130

In action in which auto mechanic brought defamation action against broadcasting company and former customer who gave television interview, court affirmed judgment for defendants notwithstanding verdict, stating that absent evidence of malice, the privilege of fair comment governed and defendants were entitled to judgment as matter of law. Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 428-429, 172 Cal. Rptr. 49 , disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711, 738, 257 Cal. Rptr. 708, 711 P.2d 406

In legal malpractice action, where evidence existed from which defendant's negligence in representing plaintiffs could be inferred but record devoid of evidence that showed defendant's negligence proximately caused injury to plaintiffs, judgment notwithstanding the verdict for plaintiffs proper and trial court's denial of motion reversed. Sprigg v. Garcin (1980) 105 Cal. App. 3d 869, 873, 164 Cal. Rptr. 677

Motion for judgment notwithstanding verdict properly granted despite prior denial or motion for nonsuit. Walters v. Marler (1978) 83 Cal. App. 3d 1, 34, 147 Cal. Rptr. 655

Because seller of land indicated to purchaser that Bureau of Reclamation approval for purchase price would be easily obtained, court affirmed judgment for defendant notwithstanding verdict since defendant, as matter of law, made no misrepresentation of fact, only a nonactionable expression of opinion. Borba v. Thomas (1977) 70 Cal. App. 3d 144, 155, 138 Cal. Rptr. 565

In action in which addressee of telegram sued telegraph company for negligent nondelivery of telegram, defendant's motion for judgment notwithstanding the verdict properly granted on issue of punitive damages where record failed to show substantial evidence that company employee acted with malice or oppression in not providing information to correct or show mistake at earlier date. Trammell v. Western Union Tel. Co. (1976) 57 Cal. App. 3d 538, 556-558, 129 Cal. Rptr. 361

Court grants plaintiff's motion for judgment notwithstanding verdict if evidence, as matter of law, dictates a determination of all issues of case in his or her favor. Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925

Primary requirement for judgment notwithstanding verdict is lack of substantial conflict in evidence. Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57

In action in which former bank employee sued bank for libel and slander, judgment for defendant bank notwithstanding verdict proper because reasonable minds could draw but one inference and that inference pointed to the truth of the statements made by bank. Washer v. Bank of America (1948) 87 Cal. App. 2d 501, 507, 197 P.2d 202

In action in which plaintiff sought to recover damages from apartment building manager for injuries suffered when she slipped on lobby floor, judgment for defendants notwithstanding verdict proper because plaintiff failed to prove causal connection between alleged negligence and resulting injury. McKellar v. Pendergast (1945) 68 Cal. App. 2d 485, 156 P.2d 950

Improper Grant of Motion

In action for personal injuries, when substantial evidence justified imposition of liability of defendants, court of appeal properly reversed lower court's granting of defendants' motion for judgment notwithstanding verdict. Hergenrether v. East (1964) 61 Cal. 2d 440, 445, 39 Cal. Rptr. 4, 393 P.2d 164

In action for medical malpractice, granting of defendants' motion for judgment notwithstanding verdict improper because trial court not permitted to weigh evidence and evidence was sufficient to go to jury on issue of negligence. Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 159-163, 41 Cal. Rptr. 577, 397 P.2d 161

Granting of defendant's motion for judgment notwithstanding verdict improper where inference drawn by jury that defendant was negligent was supported by evidence. Gray v. Southern Pacific Co. (1944) 23 Cal. 2d 632, 646, 145 P.2d 561

In age discrimination action under Fair Employment and Housing Act [ Gov. Code 12900[Deering's] et seq. ], trial court erred in granting judgment notwithstanding verdict, where evidence that former employee was replaced by older person within protected class did not preclude any inference that employee was terminated based on age and that evidence, while it weighed against inference that employee was terminated based on age, did not conclusively establish absence of age discrimination or preclude jury from drawing other inferences; and where employee presented evidence that charges on which termination was alleged based were false and resolution of conflict depended entirely on whether jury chose to credit former employee or current employee, and former employee offered circumstantial evidence that decision was based on age that constituted substantial evidence. Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 73-78, 92 Cal. Rptr. 2d 611

Motion for judgment notwithstanding verdict was improperly granted in legal malpractice action when evidence of malpractice was insufficient as matter of law. Sukoff v. Lemkin (1988) 202 Cal. App. 3d 740, 743, 249 Cal. Rptr. 42

Motion for judgment notwithstanding verdict was improperly granted when court's stated reasons for granting motion were legally insufficient; court's motion as requiring reversal when it did not apply test of Gov. Code 830.2[Deering's] in reaching its conclusion in action under Tort Claims Act alleging dangerous condition of public property. Alexander v. State of California (1984) 159 Cal. App. 3d 890, 898-902, 205 Cal. Rptr. 758

Grant of motion for judgment notwithstanding verdict was erroneous when, viewing evidence most favorable to verdict, it could not be reasonably concluded as matter of law that there was no substantial evidence to support verdict. Arthur v. Avon Inflatables Ltd. (1984) 156 Cal. App. 3d 401, 405-408, 203 Cal. Rptr. 1

If different conclusions can be rationally drawn from evidence presented, then case presents question for jury and judgment notwithstanding verdict is improperly granted. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 940, 149 Cal. Rptr. 808

Motion for judgment notwithstanding verdict improperly granted where plaintiff's expert witness, a fire chief, testified on cause of fire, and although testimony was internally inconsistent and inherently weak, credibility of witness presented question for jury to resolve. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 938-941, 149 Cal. Rptr. 808

In action by plaintiff for damages for breach of escrow agreement, court's granting of defendant's motion for judgment notwithstanding verdict improper since evidence in conflict on points foundational to court's ruling. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 226, 87 Cal. Rptr. 213

In action to recover value of merchandise allegedly sold by plaintiffs to defendants on open book account, lower court's granting of plaintiff's motion for judgment notwithstanding verdict improper where it was apparent from evidence that jury could have returned various verdicts, all supported by substantial evidence. Hozz v. Felder (1959) 167 Cal. App. 2d 197, 200, 334 P.2d 159

Improper Denial of Motion

Where owner of automobile polishing company sued insurer on claims connected with theft of two automobiles, denial of insurer's motion for judgment notwithstanding verdict improper where no substantial evidence that failure to reimburse plaintiff was breach of contract. Clark v. Bellefonte Ins. Co. (1980) 113 Cal. App. 3d 326, 335, 169 Cal. Rptr. 832

Jury Verdict

Defendant's contention it was entitled to JNOV on unfair competition claim was groundless, where court, not jury, decided unfair competition claim. Herr v. Nestle U.S.A., Inc. (2003) 109 Cal. App. 4th 779, 788, 135 Cal. Rptr. 2d 477

Motion for judgment notwithstanding verdict denied where jury has rendered verdict that is so contradictory and unintelligible that intent is not ascertainable. Mish v. Brockus (1950) 97 Cal. App. 2d 770, 776, 218 P.2d 849

Review--Appealable Judgments

Moving party may appeal from judgment or from order denying motion for judgment notwithstanding verdict, or both. Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29

Judgment entered pursuant to court's granting of motion appealable judgment. Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 159, 41 Cal. Rptr. 577, 397 P.2d 161

Order granting judgment notwithstanding verdict not final judgment, therefore not appealable order. Jordan v. Talbot (1961) 55 Cal. 2d 597, 602, 12 Cal. Rptr. 488, 361 P.2d 20 .

Judgment notwithstanding verdict sustained when, as matter of law, no other reasonable conclusion is legally deducible from the evidence and any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it. Enis v. Specialty Auto Sales (1978) 83 Cal. App. 3d 928, 941, 148 Cal. Rptr. 255

Because defendants were granted judgment notwithstanding verdict, defendants not allowed to take precautionary direct appeal since judgment notwithstanding verdict vacated earlier judgment on verdict for plaintiffs and no appeal lies from vacated judgment. Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, 777-778, 131 Cal. Rptr. 730

If a judgment notwithstanding the verdict is reversed on appeal, reinstated judgment on verdict is new judgment for purposes of appeal and time for filing notice of appeal commences to run on issuance of remittitur from appellate court. Lippert v. AVCO Community Developers, Inc. (1976) 60 Cal. App. 3d 775, 779, 131 Cal. Rptr. 730

Appeal lies from order denying motion for judgment notwithstanding verdict. Elisalda v. Welch's Sand and Gravel Co. (1968) 260 Cal. App. 2d 46, 50, 67 Cal. Rptr. 57

Reversal on judgment notwithstanding verdict restores proceeding to state of record before erroneous judgment entered with appellant having recorded verdict in his or her favor, but with no judgment entered. Ferran v. Mulcrevy (1935) 9 Cal. App. 2d 129, 131, 48 P.2d 984

--Standard on Review

Standard of review of order denying motion for JNOV or judgment is whether any substantial evidence, contradicted or uncontradicted, supports jury's conclusion. Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29

When reviewing validity of judgment notwithstanding verdict, appellate court resolves any conflict in evidence and draws all reasonable inferences from it in favor of jury's verdict. Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal. 3d 512, 515, 143 Cal. Rptr. 247, 573 P.2d 465

Appellate court may uphold order granting judgment notwithstanding verdict and affirm judgment based on it, only if, reviewing all evidence in light most favorable to party for whom verdict was rendered, resolving all conflicts, and drawing all inferences in that party's favor, and deferring to implicit credibility determinations of trier of fact, there is no substantial evidence to support verdict in that party's favor. Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611

Scope of appellate review of motion for judgment notwithstanding verdict requires determination of whether any substantial evidence, contradicted or uncontradicted, supports jury's conclusions. Sukoff v. Lemkin (1988) 202 Cal. App. 3d 740, 743, 249 Cal. Rptr. 42

Judgment notwithstanding the verdict sustained only when it can be said as a matter of law that no other reasonable conclusion is deducible from evidence. Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 962, 111 Cal. Rptr. 210

Appellate court reviews discretion exercised by trial court in light of evidence but not replacing it unless arbitrarily exercised. Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 511, 78 Cal. Rptr. 417

Time for Ruling on Motion

In employment action resulting in verdict for plaintiff, in which defendants filed no notice of intention to move for new trial, but only filed motion for JNOV, trial court properly court issued its decision on JNOV motion within 60 days from service of notice of entry of judgment and properly denied plaintiff's motion to strike court's order granting partial JNOV as untimely, where filing of JNOV motion is not statutory event under Code Civ. Proc. 660[Deering's] triggering time for court's ruling. Pratt v. Vencor (2003) 105 Cal. App. 4th 905, 907-911, 129 Cal. Rptr. 2d 741

Defendant's motion for judgment notwithstanding verdict was timely granted where court's signed memorandum of opinion and minute order granting motion were filed with clerk 17 days after notice of entry of judgment was mailed, even though formal judgment not signed and filed until after expiration of 60-day period for court to rule on motion [ Code Civ. Proc. 629[Deering's], 660[Deering's] ]. Catania v. Halcyon Steamship Co. (1975) 44 Cal. App. 3d 348, 350, 118 Cal. Rptr. 513

Requirement of Code Civ. Proc. 629[Deering's] that court rule both on motion for judgment notwithstanding verdict and on motion for new trial at same time when both motions are made, as directory and not mandatory and substantial compliance was sufficient, provided both motions made within requisite time period. Espinoza v. Rossini (1966) 247 Cal. App. 2d 40, 45-46, 55 Cal. Rptr. 205

Time for Serving Motion

Prevailing party's attorney's mailing to opposing counsel of photocopy of file-stamped and dated judgment started time limit for serving motion for judgment notwithstanding the verdict under Code Civ. Proc. 629[Deering's], 659[Deering's] , so that service of motion 26 days later was untimely, where service of written notice of entry of judgment and filing of original notice of entry and proof of service complied with section 659, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067
Law Reviews
Christie, Lawful Departures From Legal Rules: ``Jury Nullification'' and Legitimated Disobedience, 62 Cal. L. Rev. 1289 (1974)

Richardson, Civil Procedure: California Code of Civil Procedure Section 629[Deering's]: Motion for Nonsuit Should Be Sufficient Foundation for Judgment Notwithstanding the Verdict, 48 Cal. L. Rev. 816 (1960)
Text References
California Trial Practice: Civil Procedure During Trial, ch. 25, Motions After Trial (Cal. C.E.B. 3d ed. 1995)

Witkin, California Procedure, vol. 7, Trial, 446 et seq., vol. 8, Attack on Judgment in Trial Court, 54 et seq. (4th ed. 1997)

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Procedural Checklist
I Moving Party
A Preliminary Determinations
1. Ascertain whether or not grounds for a motion for judgment notwithstanding the verdict exist. The grounds are as follows:

a. No substantial evidence to support verdict; and

b. A motion for directed verdict should have been granted had a previous motion been made [ Code Civ. Proc. 629[Deering's] ; see discussion in the Introduction under Lack of Substantial Evidence, above].

2. Decide whether you will make oral or written motion.

An oral motion for judgment notwithstanding the verdict is available in addition to the written motion and may be made in court immediately after rendition of the verdict. For a discussion of procedures for a written motion, see Paragraph B, below.

3. Determine whether or not stay in execution of judgment under Code Civ. Proc. 918[Deering's] is desired. For forms for use in staying execution, see Ch. 254, Executions and Enforcement of Judgments.

4. Assess availability of alternative procedures by which the aggrieved party may obtain a judgment in his or her favor. Alternative procedures are as follows:

a. Motion for new trial [ Code Civ. Proc. 657[Deering's] ; see Part II, below].

b. Motion for judgment on special finding [ Code Civ. Proc. 625[Deering's] ; Ch. 326A, Jury Verdicts].

c. Motion to vacate [ Code Civ. Proc. 663[Deering's] ; see Part III, below].

d. Motion to correct clerical error or set aside void judgment [ Code Civ. Proc. 473(d)[Deering's] ; see Ch. 489, Relief From Judgments and Orders].
B Preparation of Papers
1. Prepare the notice of motion for judgment notwithstanding the verdict [Form 1] in the following number of copies:

a. Original for filing.

b. One copy for the opposing party's attorney of record, or if none, for the opposing party.

c. One copy for client, if desired.

d. One office copy.

e. Additional copies as desired.

2. Date and sign the notice of motion.

3. Prepare the accompanying memorandum of points and authorities in the same number of copies as the notice of motion and attach a copy to each copy of the notice.

For a memorandum of points and authorities in support of a motion for judgment notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 155, Motions After Trial (Matthew Bender).

4. Prepare the proof of service in same number of copies as the notice of motion and attach the original to the original notice of motion and a copy to each copy of the notice.

a. If notice is to be mailed by counsel, prepare certificate of service [ Code Civ. Proc. 1013a(2)[Deering's] ].

b. If notice is to be mailed by someone other than counsel, prepare affidavit of service [ Code Civ. Proc. 1013a(1)[Deering's] ] or declaration under penalty of perjury [ Code Civ. Proc. 2015.5[Deering's] ].

For forms of proof of service, see Ch. 518, Service of Summons and Papers.

5. Contact court clerk to determine local practice regarding setting of time for hearing.

a. In some jurisdictions, counsel sets own time for hearing, taking care to give opposing parties adequate notice of hearing under Code Civ. Proc. 1005(b)[Deering's] . If counsel is to set time, determine time period during which motion can be heard.

NOTE

NOTE: Compute time by excluding first day and including last, unless the last day is a holiday, then it is also excluded [ Code Civ. Proc. 12[Deering's], 12a[Deering's] ; see Gov. Code 6700[Deering's], 6701[Deering's] (list of holidays)].

(1) Calculate last day court can rule on motion.

The last day the court can rule on a motion for judgment notwithstanding the verdict is the same as the last day it can rule on a motion for new trial, or, whichever of the following is earliest:

(a) If notice of entry of judgment given,

(i) 60 days after clerk or prevailing party mails notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] , or

(ii) 60 days after any party serves written notice of entry of judgment of the moving party [ Code Civ. Proc. 660[Deering's] ; see also Code Civ. Proc. 629[Deering's] ].

(b) If notice of entry of judgment not given,

60 days after intention to move for judgment notwithstanding the verdict was filed [ Code Civ. Proc. 660[Deering's] ; see also Code Civ. Proc. 629[Deering's] ].

(2) Calculate first day court can rule on motion.

The court cannot rule on the motion until the expiration of the time in which motion for new trial must be served and filed [see Paragraphs I(C)(1)(a),(b), below].

(3) Determine length of notice of hearing to be given to opposing parties.

21 calendar days plus additional time for service by mail, overnight delivery, or fax [ Code Civ. Proc. 1005(b)[Deering's] ]. An extension may apply in case of electronic service made pursuant to a local rule adopted under Code Civ. Proc. 1010.6[Deering's] [see Code Civ. Proc. 1010.6(a)(6)[Deering's] ; see also Ch. 518, Service of Summons and Papers, 518.41[8]].

(4) With these relevant dates in mind, counsel is advised to contact the judge who presided at trial and who will now hear the motion to arrange a convenient time between the times set out in Paragraphs (1) and (2), above. Counsel should then fill in the time and place of hearing in the notice of motion.

b. In other jurisdictions, the court will appoint a time for the hearing and the clerk will notify the parties of the appointed time. In this case, counsel should not fill in the time and place of hearing on the notice of motion.

6. Determine local court practice regarding preparation of judgments notwithstanding the verdict and orders denying the motion [see Comments to Form 2, below].
C Service and Filing
1. Determine time limits within which motion for judgment notwithstanding verdict must be made.

The motion must be served and filed within the period prescribed for serving and filing notice of intention to move for a new trial [ Code Civ. Proc. 629[Deering's], 659[Deering's] ]. That period is as follows [ Code Civ. Proc. 659[Deering's] ]:

a. Before entry of judgment, but after jury has rendered a decision [ Code Civ. Proc. 659[Deering's], 664[Deering's] ],

b. Or the earliest of the following:

(1) 15 days after the court clerk or moving party mails notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] ,

(2) 15 days after any party serves written notice of entry of judgment on the moving party, or

(3) 180 days after judgment is entered.

2. Serve notice of motion and accompanying papers on each opposing party's attorney, or if none, on each opposing party [ Code Civ. Proc. 1011[Deering's], 1012[Deering's], 1015[Deering's] ; see also Ch. 518, Service of Summons and Papers].

3. Deliver original notice of motion and attached originals of accompanying papers to court clerk for filing.
II Opposing Party
A Preliminary Determinations
1. Examine notice of motion to determine if it is timely given.

2. Examine supporting memorandum of points and authorities.


B Preparation of Papers
1. Prepare opposing memorandum of points and authorities and make copies [same number as for notice of motion, see Paragraphs I(B)(1)(a)-(e), above].

For a memorandum of points and authorites in opposition to a motion for judgment notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial (Matthew Bender).

2. Determine local practice regarding preparation of orders denying motions for judgment notwithstanding the verdict [see Comments to Form 2, below].
C Service and Filing
Serve and file memorandum of points and authorities at least ten calendar days before the hearing [see Code Civ. Proc. 1005(b)[Deering's] ].

______________


Forms
Form 1 Notice of Motion for Judgment Notwithstanding the Verdict [Code Civ. Proc. 629]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ], )
Plaintiff,)NO. __________
vs. )NOTICE OF MOTION AND
)MOTION FOR JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
_________________________ [name ], )
Defendant.)
)

To _________________ [specify party, e.g., plaintiff] _________________ [name ] and to _________________ [name ], his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of] this court, located at _________________ [address ], _________________ [city ], _________________ [specify party, e.g., defendant] _________________ [name ] will, and hereby does, move for an order for judgment in his/her favor, notwithstanding the verdict. The motion will be made on the following grounds:

1. After viewing the evidence in the light most favorable to _________________ [specify party securing verdict, e.g., plaintiff ], there is no substantial evidence to support the jury's verdict in that party's favor and a directed verdict for _________________ [specify moving party, e.g., defendant] should have been granted had a previous motion been made.

[2. On each and all of the grounds on which the motion for a directed verdict was made.]

The motion will be based on this notice of motion and the memorandum of points and authorities served and filed herewith, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of the motion.

Dated: _________________.

_________________ [ firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________ [party's status ]

COMMENTS

CAUTION: Although under Cal. Rules of Ct., Rules 301[Deering's], 303(a)[Deering's] , a memorandum of points and authorities is not specifically required to be submitted in support of the motion, it is better practice to submit a memorandum as is generally required in law and motion proceedings [see Code Civ. Proc. 1005(b)[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rule 313(a)[Deering's] ]. For discussion and forms, see Ch. 417, Points and Authorities.

Use of Form

This notice of motion is for use by a plaintiff or defendant to secure an order for judgment notwithstanding the verdict pursuant to Code Civ. Proc. 629[Deering's] .

Time and Place of Hearing

The notice must state the date, hour, address, and department or room number where the motion will be heard. To determine the date and time to be inserted, counsel must know the minimum notice period allowable. Generally, the minimum notice period is 21 calendar days plus additional time for service by mail, overnight delivery, or fax [ Code Civ. Proc. 1005(b)[Deering's] ], unless time is shortened by order of the court [see Code Civ. Proc. 1005(b)[Deering's] ; Cal. Rules of Ct., Rule 317(b)[Deering's] ; Ch. 524, Shortening and Extension of Time]. An extension may also apply in case of electronic service made pursuant to a local rule adopted under Code Civ. Proc. 1010.6[Deering's] [see Code Civ. Proc. 1010.6(a)(6)[Deering's] ; for discussion, see Ch. 518, Service of Summons and Papers, 518.41[8]]. The period is calculated by excluding the first day and including the last, unless the last day is a holiday [ Code Civ. Proc. 12[Deering's] ].

In some jurisdictions, counsel chooses the date for hearing of the motion for judgment N.O.V. taking into account the minimum required notice period. Since the motion will be heard and determined by the judge who presided at trial, counsel is advised to first contact the court to arrange a convenient time for the trial judge.

In other jurisdictions, the court appoints a time for the hearing of the motion and the clerk notifies the parties of the appointed time. In this case, the notice of motion does not set forth the time.

Since local practice varies on the determination of date and time of hearing, counsel should first check with the court clerk to determine local rules.

Papers on Which Motion is Based

The notice must state the papers on which the motion is based [ Code Civ. Proc. 1010[Deering's] ]. It may not be necessary to file an affidavit or declaration since the court must rely on the record of the case to make a judgment. However, a declaration or affidavit may be necessary in an alternative motion for judgment notwithstanding the verdict and new trial [see Code Civ. Proc. 658[Deering's] ].

Combined Motion for Judgment Notwithstanding the Verdict With Notice of Intention to Move for New Trial

The motion for judgment notwithstanding the verdict is frequently combined with a notice of intention to move for a new trial. For a form of notice of intention to move for new trial, see Form 10 in Part II of this chapter. Since the court must rule on both motions at the same time [ Code Civ. Proc. 629[Deering's] ], it will appoint the time for hearing and the clerk will notify the parties of the designated time [ Code Civ. Proc. 661[Deering's] ]. For this reason, the combined notice of motion should not set forth the time for hearing [see Code Civ. Proc. 661[Deering's] ; see also Introduction to Part II under --Time for Hearing, below].

Trial Court May Grant Relief Not Requested

When posttrial motions attacking the judgment have been made, the trial court is not limited to an order granting or denying the relief requested in the moving party's papers [see Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 609-612, 248 P.2d 910 (court may grant new trial on all issues when motion was limited to fewer issues); Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rtpr. 480 (dicta; court amended judgment on combined motion for new trial and judgment notwithstanding the verdict), disapproved on other grounds in Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 ]. For further discussion, see Form 10, Comments.

REFERENCES

Cross References

For alternative forms of captions, see Ch. 108, Captions and Introductions

For examples of noticed motions generally, see Ch. 372, Motions and Orders

For an application for shortening time, see Ch. 524, Shortening and Extension of Time

California Points and Authorities

For memoranda of points and authorities in support of and in opposition to a motion for judgment notwithstanding the verdict, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial (Matthew Bender)

State Statutes

Motions for judgment notwithstanding the verdict. Code Civ. Proc. 629[Deering's]

Time within which motion must be made. Code Civ. Proc. 629[Deering's], 659[Deering's]

When judgment on verdict must be entered. Code Civ. Proc. 664[Deering's]

Decisions

Mailing to opposing counsel of photocopy of file-stamped and dated judgment starts 15-day time limit for serving motion for judgment notwithstanding verdict under Code Civ. Proc. 629[Deering's], 659[Deering's] . Service of written notice of entry of judgment and filing of original notice of entry and proof of service complies with section 659, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067

Cardinal requirement for judgment notwithstanding the verdict is lack of substantial conflict in evidence; trial court is not to weigh evidence or judge credibility of witnesses in ruling on motion. Alexander v. State of California (1984) 159 Cal. App. 3d 890, 896, 205 Cal. Rptr. 758

Primary requirement for judgment notwithstanding verdict as lack of substantial conflict in evidence. Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57

Judgment notwithstanding verdict is properly granted only if it appears from evidence, viewed in light of party securing verdict, that there is no substantial evidence to support verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ; Castro v. State of California (1981) 114 Cal. App. 3d 503, 512, 170 Cal. Rptr. 734

Defendant's motion for judgment notwithstanding verdict was granted only when, disregarding conflicting evidence on behalf of defendants and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitmate inference which may drawn from that evidence, no evidence of sufficient substantiality supports verdict in plaintiff's favor. Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 51, 150 Cal. Rptr. 722
Form 2 Order Denying Motion for Judgment Notwithstanding the Verdict [Code Civ. Proc. 629]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )
Plaintiff,)
)NO. __________
vs. )ORDER DENYING JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
)[Code Civ. Proc. 629[Deering's]]
_________________________ [name ], )
Defendant.)
)

The motion of _________________ [specify moving party, e.g., defendant] _________________ [name ] for an order for judgment notwithstanding the verdict came on regularly for hearing by the court this date. Plaintiff appeared by counsel _________________ [name ]; defendant appeared by counsel _________________ [name ].

On proof made to the satisfaction of the court that the motion ought to be denied,

IT IS ORDERED that the motion, be and it hereby is, denied on the following grounds:

[specify grounds such as the following ]

1. The evidence is conflicting.

2. Several reasonable inferences are deducible from the evidence.

3. The verdict is sustained by sufficient or substantial evidence.

4. The evidence presents a question for the jury's determination.

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

The foregoing order is for use when the court denies a motion for judgment notwithstanding the verdict.

Orders and judgments are not ordinarily prepared until after the court has ruled on the motion. The court frequently takes the motion under submission after the hearing and notifies the parties at that time or at a later time as to the preparation of the judgments and orders. Counsel should check with the court clerk to determine local practice.

Appealability of Order Denying Motion

An order denying a motion for judgment notwithstanding the verdict is appealable [ Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's] ; see also discussion in Introduction under Review Introduction under Review Introduction under Review, above].

REFERENCES

Decisions

Judgment notwithstanding verdict as improper where several reasonable inferences are deducible from evidence. Clemmer v. Hartford (1978) 22 Cal. 3d 865, 877-878, 151 Cal. Rptr. 285, 587 P.2d 1098

Judgment notwithstanding verdict as denied where evidence is conflicting or several reasonable inferences may be drawn. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377

Where different conclusions can be rationally drawn from evidence presented, then case presents question for jury and judgment notwithstanding verdict as improper. Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 940, 149 Cal. Rptr. 808

Where substantial evidence supports jury's finding, judgment notwithstanding verdict as improper. Estate of Franco (1975) 50 Cal. App. 3d 374, 381, 123 Cal. Rptr. 458

Where evidence in conflict on points foundational to trial court ruling, judgment ordered for defendant notwithstanding verdict for plaintiff, as improper. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 226, 87 Cal. Rptr. 213

Appeal as lying from order denying motion for judgment notwithstanding the verdict. Elisalda v. Welch's Sand and Gravel Co. (1968) 260 Cal. App. 2d 46, 50, 67 Cal. Rptr. 57

See also Comments and References to Form 1.
Form 3 Order for and Judgment Notwithstanding the Verdict [Code Civ. Proc. 629]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ], )
Plaintiff,)NO. __________
vs. )ORDER FOR AND JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
_________________________ [name ], )[Code Civ. Proc. 629[Deering's]]
Defendant.)
)

This cause came on regularly for trial on _________________ [date ], in [_________________ (Department or Division) _________________ of] the above-entitled court, the Honorable _________________ [name ], Judge, presiding. Plaintiff appeared by his/her attorney _________________ [name ] and defendant appeared by his/her attorney _________________ [name ].

A jury of _________________ [number ] persons was regularly impaneled and sworn to try the action. Witnesses on the part of both plaintiff and defendant were sworn and examined. After hearing the evidence, the arguments of counsel, and instructions of the court, the jury retired to consider their verdict, subsequently returned to court, and being called, answered to their names and duly rendered their verdict in words and figures as follows: _________________ [set forth verdict and date judgment was entered ].

Thereafter, _________________ [specify moving party, e.g., defendant] _________________ [name ] moved the court for judgment in his/her favor, notwithstanding the verdict, and this motion came on regularly to be heard before this court on _________________ [date ], _________________ [name ] appearing as counsel for plaintiff _________________ [name ] and _________________ [name ] as counsel for defendant _________________ [name ].

The motion was argued and submitted for decision, and the court being fully advised in the matter, and good cause appearing therefor:

IT IS HEREBY ORDERED AND ADJUDGED:

1. That the motion of _________________ [specify moving party, e.g., defendant] _________________ [name ] for judgment in his/her favor, notwithstanding the verdict of the jury, is hereby granted.

2. That the judgment entered on _________________ [date ], on the verdict is vacated and set aside.

3. That _________________ [specify moving party, e.g., defendant] _________________ [name ] have judgment _________________ [set forth terms of judgment in favor of moving party ].

4. That _________________ [specify moving party, e.g., defendant] _________________ [name ] have and recover from _________________ [specify opposing party, e.g., plaintiff] _________________ [name ] costs and disbursements in the sum of $_________________.

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

The foregoing form is an order granting a motion for judgment notwithstanding the verdict.

REFERENCES

Decisions

Where evidence leads to conclusion that plaintiff should recover as matter of law under each cause of action, trial court as properly granting plaintiff's motion for judgment notwithstanding verdict. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 111, 120 Cal. Rptr. 681, 534 P.2d 377 ; Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925

Defendant's motion for judgment notwithstanding the verdict as properly granted where there is no substantial evidence tending to prove any fact necessary to support plaintiff's verdict. Hamakawa v. Crescent Wharf, etc., Co. (1935) 4 Cal. 2d 499, 501, 50 P.2d 803

See also Comments and References to Forms 1 and 2.
Forms 4-9 [Reserved]

______________


Part II Motion for New Trial
Introduction
Scope of Part
This part discusses the motion for new trial. It includes a notice of intention to move for new trial [Form 10], an allegation for alternative relief [Form 11], a declaration in support of the motion [Form 12], a stipulation and order extending time to file affidavits or declarations [Form 13], an order denying a new trial [Form 14], and an order granting a new trial [Form 15].
Governing Statutes
The motion for new trial is governed by Code Civ. Proc. 655-663.2[Deering's], and 914[Deering's] . Stay of execution of judgment pending determination of a motion for new trial is governed by Code Civ. Proc. 918[Deering's] [see Ch. 43, Appeal: Stay of Proceedings, 43.19].
Purpose of Motion
A new trial is a reexamination of an issue of fact in the same court after a trial and decision by a jury, court, or referee [ Code Civ. Proc. 656[Deering's] ]. If the required grounds exist, the verdict 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 application of the party aggrieved [ Code Civ. Proc. 657[Deering's] ].
Motion for New Trial When There Has Been No Trial on Merits
A trial court may reexamine issues of law when there has been no trial on the merits [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 90, 315 P.2d 305 ], and a new trial may be appropriate after any of the following:

A judgment of dismissal after a demurrer is sustained [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

A judgment of dismissal generally [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

A judgment on the pleadings [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

A judgment on an agreed statement of ultimate facts [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 88, 315 P.2d 305 ].

A judgment of nonsuit either on plaintiff's opening statement or after his or her evidence is presented [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 89, 315 P.2d 305 ].

A judgment on a directed verdict [ Carney v. Simmonds (1957) 49 Cal. 2d 84, 89, 315 P.2d 305 ].

A summary judgment [ Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 858, 107 Cal. Rptr. 2d 841, 24 P.3d 493 ; Green v. Del-Camp Investments (1961) 193 Cal. App. 2d 479, 481, 14 Cal. Rptr. 420 ].

A default judgment granted as a sanction for defendants' failure to comply with discovery orders [ Jacuzzi v. Jacuzzi Bros. (1966) 243 Cal. App. 2d 1, 24, 52 Cal. Rptr. 147 ].

An order granting a motion to quash a writ of execution [ In re Marriage of Beilock (1978) 81 Cal. App. 3d 713, 719, 146 Cal. Rptr. 675 ].

A judgment entered when an appellate court vacated a previous judgment with instructions for entry of a new judgment for a greater amount of damages [ Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal. 2d 452, 459-460, 72 Cal. Rptr. 217, 445 P.2d 881 ].
Grounds for Granting New Trial--Summary of Grounds
The following causes, when they materially affect the substantial rights of the moving party, are grounds for an order vacating a verdict, or vacating or modifying any other decision, and granting a new or further trial on some or all of the issues [ Code Civ. Proc. 657[Deering's] ]:

An irregularity in the proceedings of the court, the jury, or the adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ; see --Irregularity in Proceedings, below].

Jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ; see --Jury Misconduct, below].

Accident or surprise, which ordinary prudence could not have guarded against [ Code Civ. Proc. 657(3)[Deering's] ; see --Accident or Surprise, below].

Newly discovered evidence that is material for the party making the application and that the party, with reasonable diligence, could not have discovered and produced at trial [ Code Civ. Proc. 657(4)[Deering's] ; see --Newly Discovered Evidence, below].

Excessive or inadequate damages [ Code Civ. Proc. 657(5)[Deering's] ; see --Excessive or Inadequate Damages Awared, below].

Insufficiency of the evidence to justify the verdict, or the verdict or other decision is against the law [ Code Civ. Proc. 657(6)[Deering's] ; see --Insufficient Evidence to Justify Verdict or Other Decision and --Verdict or Decision Against Law and --Insufficient Evidence to Justify Verdict or Other Decision and --Verdict or Decision Against Law, below].

An error in law occurring at the trial and excepted to by the party moving for new trial [ Code Civ. Proc. 657(7)[Deering's] ; see --Error in Law Occurring at Trial, below].

Whenever an application to vacate a verdict and for a new trial is made on any of the first four grounds under Code Civ. Proc. 657[Deering's] , set out above, the application must be made with affidavits, whereas an application based on any of the other grounds stated in that section are to be made on the minutes of the court [ Code Civ. Proc. 658[Deering's] ; see further discussion in --Affidavits and Counteraffidavits and --Use of Reporter's Notes, Pleadings, and Files, below].

A new trial may also be granted on these additional grounds:

Lack of phonographic report of trial due to death or disability of the reporter or due to loss or destruction of reporter's notes in whole or in substantial part [ Code Civ. Proc. 657.1[Deering's], 914[Deering's] ; see --Lack of Phonographic Report of Trial, below].

Loss or destruction of bill of exceptions or statement of case due to public calamity [ Code Civ. Proc. 663.1[Deering's] ; see --Loss or Destruction of Bill of Exceptions or Statement of Case, below].
Irregularity in Proceedings--General Rule
A motion for new trial may be granted if there is an irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which a party was prevented from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. An irregularity is any overt act of the trial court, jury, or adverse party that violates the right to a fair and impartial trial and amounts to misconduct [ Gray v. Robinson (1939) Cal. App. 2d 177, 182, 91 P.2d 194 ]. The irregularity must materially affect the substantial rights of a party [ Code Civ. Proc. 657(1)[Deering's] ; Gay v. Torrance (1904) 145 Cal. 144, 148, 78 P. 540 ].

Irregularity in the proceedings must be shown by affidavit or declaration [see Code Civ. Proc. 658[Deering's] ]. For further discussion of this requirement, see --Affidavits and Counteraffidavits, below.
Attorney Misconduct
When misconduct by the attorney for an adverse party is alleged as grounds for new trial, prejudicial error is committed only when the attorney's conduct consists of a willful or persistent effort to place before a jury clearly incompetent evidence, or the statements or remarks of counsel are of such a character as to manifest a design on his or her part to arouse the jury's resentment, prejudices, or passions against the moving party, or to enlist the jury's sympathy in favor of his or her client and against the moving party, and any jury instructions to disregard such offered evidence or objectionable remarks cannot be deemed to have cured the evil or ill effect [ Tingley v. Times Mirror (1907) 151 Cal. 1, 23, 89 P. 1097 ; Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 210-211, 260 Cal. Rptr. 431 ]. In assessing that prejudice, each case ultimately must rest on the court's view of the overall record, taking into account such factors, among others, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances [ Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 211, 260 Cal. Rptr. 431 ].
Jury Misconduct--General Rule
A motion for a new trial may be brought on the ground of jury misconduct [see Code Civ. Proc. 657(1)[Deering's], (2)[Deering's] ]. The right to an unbiased and unprejudiced jury is an inseparable and inalienable part of the right to trial by jury guaranteed in the federal constitution [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132 ]. Thus, this ground is functionally equilavent to the ground of irregularity in the jury proceedings preventing a fair trial [see Code Civ. Proc. 657(1)[Deering's] and discussion in -- --Irregularity in Proceedings, above]. For discussion of the principle types of jury misconduct, see -- --Types of Jury Misconduct, below.

Jury misconduct must be shown by affidavit or declaration [see Code Civ. Proc. 658[Deering's] and Forms 12.1, 12.2; for further discussion of this requirement, see --Affidavits and Counteraffidavits, below]. Once established, jury misconduct gives rise to a rebuttable presumption of prejudice [see discussion in -- --Presumption of Prejudice, below].

If a party or that party's counsel becomes aware of facts constituting jury misconduct at any time during trial, the party must promptly bring the matter to the court's attention; failure to do so in a timely manner results in the point being deemed waived as a basis for a motion for a new trial [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ; see also People v. Adame (1973) 36 Cal. App. 3d 402, 409-410, 111 Cal. Rptr. 462 ]. Thus, a party seeking a new trial on the grounds of jury impropriety must usually present, in addition to other affidavits showing jury misconduct, a ``no knowledge'' affidavit showing that neither the moving party nor that party's counsel knew of that misconduct before the verdict was returned [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ; see Form 12.3 and further discussion of this requirement under -- --``No Knowledge'' Declaration, below].

Note that a single act may show not only jury misconduct, or bias, but may also help show another ground for vacating the jury's verdict and granting a new trial. For example, jury misconduct may be included as a reason for the conclusion that the excessive damages were awarded [ Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 166, 171, 209 Cal. Rptr. 427 (jury in wrongful death action improperly considered income taxes on verdict and attorney's fees and discussed public benefit from taxes levied on verdict)].
Types of Jury Misconduct--Concealment of Bias on Voir Dire
It is jury misconduct for which a new trial may be granted, if a juror has concealed during voir dire examination a state of mind that prevents his or her acting impartially. The concealment need not be intentional [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 431, 82 Cal. Rptr. 1 ]. Thus, a juror's statement during recess that the jury could bring in a verdict at that time rather than waiting until conclusion of the trial showed misconduct on voir dire since that juror had stated on voir dire examination that he could keep an open mind until all the evidence and applicable law were presented [ Deward v. Clough (1966) 245 Cal. App. 2d 439, 443-445, 54 Cal. Rptr. 68 ].

Juror affidavits may be use to show occurrences during the trial and deliberations that tend to prove the existence of prejudice in the mind of a juror that would prevent that juror from acting impartially and to show that bias or disqualification was concealed by false answers on voir dire. For example, affidavits were accepted to impeach a verdict when a juror had knowledge as to the qualifications of an expert appraisal witness as a result of a real estate course he was taking at the time of trial and failed to state that special knowledge on voir dire [ People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 389, 63 Cal. Rptr. 138 ].
Prejudicial Communication by or to Juror
It is misconduct for a juror during trial to discuss the matter under investigation outside the court or receive any information on the subject of the litigation except in open court and in the manner provided by law [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 431, 82 Cal. Rptr. 1 ; People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 390, 63 Cal. Rptr. 138 ].

The following are examples of juror communications held to constitute misconduct under this rule:

A juror reads newspaper accounts of the case and the subject matter of the accounts are likely to influence the juror [ Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1679, 25 Cal. Rptr. 2d 667 ].

A juror communicates to the rest of jury information outside the evidence that is relevant to important issues in the case [ People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 598, 128 Cal. Rptr. 697 (juror questioned non-juror acquaintance who was employed by a party to the case, concerning the likelihood of alleged injuries, and communicated the employee's answers during deliberations); People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 390, 63 Cal. Rptr. 138 (juror conveyed during deliberation information the juror had previously learned in a class concerning methods of appraisal and the appraiser qualifications, which bore directly on controlling issues in the case)].

A juror communicates to the rest of jury a statement of law not contained in the court's instructions [ Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1349-1350, 232 Cal. Rptr. 588 ].

A juror refers to a dictionary for the definition of the term ``preponderance,'' and discussing the definition during deliberations in relation to a jury instruction concerning ``preponderance of the evidence'' [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 323, 276 Cal. Rptr. 430 (variance between legal meaning and dictionary meaning created clear and substantial risk that jury might misapply burden of proof)].

A juror communicates to other jurors an opinion on the merits of the case before it has been submitted for consideration [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 434, 82 Cal. Rptr. 1 ; see also -- --Concealment on Voir Dire, above].

A juror solicits a personal physician's opinion concerning an issue in a malpractice case and communicates the response to other jurors [ Weathers v. Kaiser Foundation Hosps. (1971) 5 Cal. 3d 98, 106-107, 95 Cal. Rptr. 516, 485 P.2d 1132 ].

Instances in which a juror communication has been held not to justify a new trial include the following:

A mere communication between a witness and a juror on matters unrelated to the case, without any showing that the juror was influenced by the communication to the prejudice of the moving party [ City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 427-428, 82 Cal. Rptr. 1 (social greeting between juror and appraisal witness on courthouse steps recollecting a previous business transaction but not involving discussion of the case)].

A juror communicates with a witness, seeking information concerning the case, but the witness specifically refuses to answer the questions or converse with the juror [ City of Los Angeles v. Lowensohn (1976) 54 Cal. App. 3d 625, 636-638, 127 Cal. Rptr. 417 ].
Experimentation Producing New Evidence
It is misconduct for a juror to engage in an experiment that produces new evidence [ Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 1746, 286 Cal. Rptr. 435 ]. For example, it is improper for a juror to compare turnstiles in markets and communicate the results of this investigation to other jurors in a case involving an injury allegely the result of a market turnstile [ Lankster v. Alpha Beta Co. (1993) 15 Cal. App. 4th 678, 682, 18 Cal. Rptr. 2d 923 (juror's comparing turnstiles in other markets to one that injured plaintiff and communicating investigation to other jurors)].

The entire jury, however, may carry out experiments that are within the lines of offered evidence [ Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313 ]. Nothing requires that the jury's deliberations be entirely verbal. A court would expect a conscientious jury to examine the testimony of the witnesses closely, no less so when that testimony takes the form of a physical act [ People v. Cooper (1979) 95 Cal. App. 3d 844, 853-854, 157 Cal. Rptr. 348 ]. There is no misconduct if the jurors merely duplicate a demonstration presented at trial [see Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 1746-1747, 286 Cal. Rptr. 435 (citing Cooper, above )].
Chance Verdict
Jury misconduct expressly includes the jury's arriving at a verdict or finding ``by a resort to a determination by chance'' [see Code Civ. Proc. 657(2)[Deering's] ]. Thus, verdicts reached by tossing a coin, casting a die, drawing lots or other forms of gambling are improper chance verdicts [ Dixon v. Pluns (1893) 98 Cal. 384, 387, 33 P. 268 ; Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1064, 18 Cal. Rptr. 2d 106 ].

A ``quotient verdict'' may also constitute an improper ``chance'' verdict. An improper quotient verdict is one the jury has reached by simply adding the damages favored by each juror and dividing by the number of jurors, after previously agreeing to be bound by such a verdict without further deliberation [ Dixon v. Pluns (1893) 98 Cal. 384, 387, 33 P. 268 ; Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1064, 18 Cal. Rptr. 2d 106 ]. A quotient verdict is not an improper chance verdict, however, when it does not result from a prior agreement to be bound without further consideration. If the jurors discuss and ballot on the adoption or rejection of a average sum, it is conclusive evidence they were not bound by a previous agreement to accept it without further consideration [ Bardessono v. Michels (1970) 3 Cal. 3d 780, 794-795, 91 Cal. Rptr. 760, 478 P.2d 480 ; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200 ]. Evidence that jurors rounded off an average sum before reaching a final verdict is also proof that they had no agreement to adopt the average [ Will v. Southern Pacific Co. (1941) 18 Cal. 2d 468, 477-478, 116 P.2d 44 ; Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 436, 89 Cal. Rptr. 514 ].

Jury misconduct consisting of a chance verdict may be proved the affidavit of any one of the jurors [ Code Civ. Proc. 657(2)[Deering's] ; see also Affidavits and Counteraffidavits, below]. The only evidence sufficient to rebut juror affidavits showing that jurors reached a chance verdict is credible counteraffidavits showing that the verdict was proper, affirmative statements or evidence of subsequent deliberation by the jury, or evidence of rounding off the average figure that is apparent on the face of the affidavits [see e.g. Bardessono v. Michels (1970) 3 Cal. 3d 780, 794, 91 Cal. Rptr. 760, 478 P.2d 480 (counteraffidavits show average figure served as basis for further deliberation); Will v. Southern Pacific Co. (1941) 18 Cal. 2d 468, 477, 116 P.2d 44 (no counteraffidavits rebut evidence of improper verdict); Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 435, 89 Cal. Rptr. 514 (evidence of rounding off app eared on face of affidavits)]. When there are conflicting jurors' affidavits on the issue of a chance verdict, the trial court may make its determination on the issue, and that decision will not be disturbed on appeal [ Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200 ; see also Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1067, 18 Cal. Rptr. 2d 106 (appellate court will not draw inferences from jury affidavits to rebut prima facie evidence of quotient verdict)].
Presumption of Prejudice
Jurors ordinarily are presumed to have followed the court's instructions [ People v. Sanchez (2001) 26 Cal. 4th 834, 852, 29 P.3d 209, 111 Cal. Rptr. 2d 129 ; Craddock v. Kmart Corp. (2001) 89 Cal. App. 4th 1300, 1308, 107 Cal. Rptr. 2d 881 ; see also People v. Chavez (1958) 50 Cal. 2d 778, 790, 329 P.2d 907 (on appeal, reviewing court must presume jury followed trial court's instructions)]. In the absence of evidence to the contrary, the presumption that the jury adhered to the limiting instructions will control [ People v. Beach (1983) 147 Cal. App. 3d 612, 625, 195 Cal. Rptr. 381 ; People v. Zack (1986) 184 Cal. App. 3d 409, 416, 229 Cal. Rptr. 317 ]. However, juror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that a party was prejudiced and may establish juror bias [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1131, 122 Cal. Rptr. 2d 139 ]. This presumption may be rebutted only by an affirmative evidentiary showing that prejudice does not exist [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321, 276 Cal. Rptr. 430 ; Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1348, 232 Cal. Rptr. 588 ; see Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 417, 185 Cal. Rptr. 654, 650 P.2d 1171 (although presumption applied in criminal cases, no principled distinction may be drawn between civil and criminal cases for purposes of presumption of prejudice arising from juror misconduct)]. The presumption of prejudice in a civil case is rebutted if the reviewing court reaches one of the following three conclusions [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1131-1132, 122 Cal. Rptr. 2d 139 ]:

The record establishes the absence of prejudice.

A review of the entire record shows there is no reasonable probability of actual harm to the complaining party under the constitutional standard of People v. Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d 243 [see Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 416-417, 185 Cal. Rptr. 654, 650 P.2d 1171 ; McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal. App. 4th 256, 265, 83 Cal. Rptr. 2d 734 ].

In the case of possible ``actual bias'' of a juror whose vote may have been determinative of the verdict, there is no substantial likelihood that at least one juror was impermissibly influenced [see Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1679-1680, 25 Cal. Rptr. 2d 667 , disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal. 4th 30, 41, 876 P.2d 999, 32 Cal. Rptr. 2d 200 ; see also Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132 ].



Prejudice exists when there is a substantial likelihood that enough jurors were impermissibly influenced by the misconduct such that it affected the verdict to the detriment of the moving party. Because only three fourths of a civil jury may render a verdict, the number of tainted jurors necessary to permit a finding of substantial likelihood of impermissible influence will vary depending on the circumstances of the case. For example, conclusive evidence of only one tainted juror would be sufficient to preclude rebuttal of the presumption of prejudice when the jury's verdict is nine to three and the tainted juror voted with the majority. By contrast, the record itself rebuts the presumption when the evidence indicates that only juror is tainted and the jury's verdict was unanimous; the remaining untainted jurors are sufficiently numerous to render a proper and fair verdict [see Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321-323 n.5, 276 Cal. Rptr. 430 ].
``No Knowledge'' Declaration
A party who is requesting the court to grant a new trial on the ground of jury misconduct must usually file a ``no-knowledge'' declaration, stating that neither the attorney nor the client was aware of the alleged misconduct of the juror prior to the verdict [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ; see also Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal. App. 3d 177, 188, 269 Cal. Rptr. 240 ; for discussion of procedure for filing and service of affidavits for use on a motion for new trial based on misconduct of the jury, see --Affidavits and Counteraffidavits, below].

The policy behind this requirement is to prevent a party from remaining silent after becoming aware of misconduct, in the hope of a successful verdict, while secretly preserving the error in the event of an unfavorable one [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ].

The ``no knowledge'' affidavit may be submitted by one person, but it must affirmatively establish that neither the attorney nor the client had knowledge before the verdict of jury misconduct [ People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 599, 128 Cal. Rptr. 697 (attorney's declaration established lack of knowledge only as to attorney and did not establish client's lack of knowledge)]. The ``no knowledge'' declaration is not required when the alleged jury misconduct is of such a nature that it could not have been known to a party until after a verdict was rendered [ Krouse v. Graham (1977) 19 Cal. 3d 59, 82, 137 Cal. Rptr. 863, 562 P.2d 1022 (comments made by several jurors during deliberations)]. Failure to file a ``no-knowledge'' declaration is a curable procedural defect; a party who does not object in the trial court to the absence of this declaration waives his or her right to raise the issue for the first time on appeal [ Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal. App. 3d 177, 186-188, 269 Cal. Rptr. 240 ].

For a form of ``no knowledge'' affidavit, see Form 12.3.
Accident or Surprise
The motion for new trial may be granted on the ground of accident or surprise, which ordinary prudence could not have guarded against [ Code Civ. Proc. 657(3)[Deering's] ]. The terms ``accident'' and ``surprise,'' although not strictly synonymous, have substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed to that party's injury and without any negligence of his or her own [ Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432, 189 P.2d 271 ; see In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 154-155, 242 Cal. Rptr. 649 (negligence of party's counsel is not a grou nd on which a new trial may be granted under Code Civ. Proc. 657(3)[Deering's] )].

Accident or surprise must be shown by affidavit or declaration [see Code Civ. Proc. 658[Deering's] ; for further discussion of this requirement, see --Affidavits and Counteraffidavits, below].
Newly Discovered Evidence
Under Code Civ. Proc. 657(4)[Deering's] , a motion for new trial may be granted on the grounds of newly discovered evidence, material for the party making the application, that he or she could not with reasonable diligence have discovered and produced at trial [ Code Civ. Proc. 657(4)[Deering's] ]. All of the followings element must be established [ Elysium Institute, Inc. v. County of Los Angeles (1991) 232 Cal. App. 3d 408, 438, 283 Cal. Rptr. 688 ; National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal. App. 3d 131, 137, 186 Cal. Rptr. 165 ; Horowitz v. Noble (1978) 79 Cal. App. 3d 120, 137, 144 Cal. Rptr. 710 ]:

The evidence is newly discovered.

There was reasonable diligence in discovering and producing the evidence.

The evidence is material to the moving party's case.

Since a litigant should exhaust every reasonable effort to produce all existing evidence at trial, the claim of newly discovered evidence as a basis for a new trial is looked on with suspicion and disfavor by the courts [ Hicks v. Ocean Shore Railroad, Inc. (1941) 18 Cal. 2d 773, 789, 117 P.2d 850 ].

Newly discovered evidence must be established by affidavit or declaration [see Code Civ. Proc. 658[Deering's] ; for further discussion of this requirement, see --Affidavits and Counteraffidavits, below].
Excessive or Inadequate Damages Awarded
A motion for new trial is not granted on the ground of excessive or inadequate damages unless, after weighing the evidence, the court is convinced from the entire record, including reasonable inferences drawn from it, that the court or jury clearly should have reached a different verdict or decision [ Code Civ. Proc. 657[Deering's] ]. The judge is not permitted to substitute his or her judgment for that of the jury on the question of damages unless it appears from the record that the jury verdict was improper. For example, a trial judge's personal opinion based on the ranges of awards in other cases is not a lawful basis for granting a new trial for excessive damages [ Bigboy v. County of San Diego (1984) 154 Cal. App. 3d 397, 406-407, 201 Cal. Rptr. 226 ].

The court may grant a new trial subject to the condition that the motion is denied if the court obtains consent from the appropriate party for the addition or reduction of damages [ Code Civ. Proc. 662.5[Deering's] ; see also Conditional Granting or Denial of Motion, below].

Excessive or inadequate damages must be established by the minutes of the court [see Code Civ. Proc. 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].

For further discussion, see Ch. 177, Damages, General Introduction.
Insufficient Evidence to Justify Verdict or Other Decision
Under Code Civ. Proc. 657(6)[Deering's] , a motion for new trial may be granted on the ground of insufficiency of the evidence to justify the verdict or other decision. A new trial may not be granted on this ground unless the court is convinced from the entire record, including inferences from it, that the court or jury should have reached a different verdict or decision [ Code Civ. Proc. 657(6)[Deering's] ].

If a trial court rules on a motion for a new trial made on the ground of insufficiency of the evidence, the trial judge is required to weigh the evidence and judge the credibility of witnesses. Whereas it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and, in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. Insufficiency of the evidence in this context means an absence of evidence or that the evidence received, in the individual judgment of the trial judge, is lacking in probative force to establish the proposition of fact to which it is addressed [ Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 215, 260 Cal. Rptr. 431 ].

The ground that the evidence was insufficient to justify the verdict must be established by the minutes of the court [see Code Civ. Proc. 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].
Verdict or Decision Against Law
Another ground for granting a motion for new trial is that the verdict or decision is against law [ Code Civ. Proc. 657(6)[Deering's] ]. This ground is limited to situations that are not covered by the other subdivisions of Code Civ. Proc. 657[Deering's] , such as error in law occurring at trial [see McCown v. Spencer (1970) 8 Cal. App. 3d 216, 229 n.3, 87 Cal. Rptr. 213 ] or insufficiency of evidence [see Brooks v. Harootunian (1968) 261 Cal. App. 2d 680, 686, 68 Cal. Rptr. 374 ].

A verdict is against law when it is contrary to correct jury instructions [ Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 958, 111 Cal. Rptr. 210 ]. A decision or verdict is also against law (1) when there is a failure to find on a material issue; (2) when the findings are irreconcilable; and (3) when the evidence is insufficient in law and without conflict on any material point. If a general verdict is returned, it is against law only when it is unsupported by any substantial evidence. The court cannot merely weigh conflicting evidence and find a balance against the judgment [ Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 789, 342 P.2d 903 ].

1981 legislation amended Code Civ. Proc. 632[Deering's] , eliminating findings of fact and conclusions of law. Nevertheless, it appears that a decision may be against law when the court has failed to resolve a specified controverted issue in its statement of decision or if the statement of decision is inconsistent, ambiguous, or uncertain [see Code Civ. Proc. 632[Deering's], 634[Deering's] ; Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 383, 215 P.2d 487 ]. But these errors must materially affect the substantial rights of the aggrieved party in order for a new trial to be granted [see Code Civ. Proc. 657[Deering's] ].

The ground that the verdict or decision is against the law must be established by the minutes of the court [see Code Civ. Proc. 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].
Error in Law Occurring at Trial
A motion for a new trial may be granted for an error in law occurring at trial and excepted to by the party making the application [ Code Civ. Proc. 657(7)[Deering's] ]. Errors of law occurring at trial may include erroneous rulings on evidence [ Richard v. Scott (1978) 79 Cal. App. 3d 57, 63, 144 Cal. Rptr. 672 ]; erroneous or misleading jury instructions [ Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587, 66 Cal. Rptr. 395 ]; erroneous denial of a jury trial [ Johnson v. Superior Court (1932) 121 Cal. App. 288, 292, 8 P.2d 1047 ]; erroneous grant of nonsuit [ Castillo v. Warren (1941) 44 Cal. App. 2d 903, 907, 113 P.2d 232 ]; or the erroneous denial of a motion for directed verdict [ Steele v. Werner (1938) 28 Cal. App. 2d 554, 556, 83 P.2d 56 ].

This ground differs from Code Civ. Proc. 657(1)[Deering's] , irregularity in proceedings of court, jury, or adverse party, in that this motion must be made on the minutes of the court, as opposed to the affidavits or declarations of Code Civ. Proc. 657(1)[Deering's] , and the moving party must have ex cepted to the error of law occurring at trial [see Code Civ. Proc. 657(7)[Deering's], 658[Deering's] ]. Many orders and rulings, however, are deemed excepted to without formal objection at trial [see Code Civ. Proc. 647[Deering's] ].

The ground that there was an error in law must be established by the minutes of the court [see Code Civ. Proc. 658[Deering's] ; for further discussion of this requirement, see --Use of Reporter's Notes, Pleadings, and Files, below].
Lack of Phonographic Report of Trial
A motion for new trial may be granted if the right to a phonographic report has not been waived and when it is impossible to have a phonographic report of trial due to death or disability of the reporter or loss or destruction of the reporter's notes in substantial part [ Code Civ. Proc. 657.1[Deering's], 914[Deering's] ]. The moving party must show that the transcript is necessary to present substantial issues, that it cannot be procured for one of the reasons in the statute, and that proper diligence has been exercised [ Rambo v. Rambo (1948) 84 Cal. App. 2d 632, 634, 191 P.2d 480 ; see In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 151-152, 242 Cal. Rptr. 649 ].

When determining whether the reporter's transcript is necessary to present substantial issues, a reasonable test of substantiality is whether questions the moving party desires to raise on appeal could be properly considered without the lost portion of the transcript. If they could, then the loss would not be considered substantial [ Santa Cruz County Redevelopment Agency v. Izant (1995) 37 Cal. App. 4th 141, 147, 43 Cal. Rptr. 2d 366 ].

If a court orders a new trial, it must order a complete, and not a partial, new trial. For example, if reporter's notes for the first day of a three-day trial are lost, a court may not order that a witness who previously testified on that first day testify again, and that a transcript of the new testimony be added to the transcript of the second and third days of trial to ``complete'' a record for appeal. Other than a complete new trial, the permissible solutions to the problem of the missing reporter's notes are limited to stipulations, agreed statement, or settled statement [ Weinstein v. E.F. Hutton & Co. (1990) 220 Cal. App. 3d 364, 369, 269 Cal. Rptr. 443 ]. For further discussion of these procedures, see Ch. 44, Appeal: Preparing and Filing the Record, and Ch. 533, Stipulations.
Loss or Destruction of Bill of Exceptions or Statement of Case
The court may grant a new trial of any action or proceeding when all of the following conditions exist [ Code Civ. Proc. 663.1[Deering's] ]:

(a) Any proposed bill of exceptions or statement of the case on motion for new trial is lost or destroyed by reason of conflagration or other public calamity;

(b) No other record of the proceedings of the trial can be obtained;

(c) The action or proceeding is subject to review by motion for new trial pending at the time of the destruction;

(d) The court in which the action or proceeding is pending deems it impossible or impracticable to restore those proceedings and to settle a bill of exceptions or statement of the case containing those proceedings, so as to enable the court to review the judgment or order by motion for new trial; and

(e) At the time of the loss or destruction, a motion for new trial was pending.

In order to grant a new trial on these grounds, it is unnecessary to have any bill of exceptions or statement of the case settled, but on the facts required by Code Civ. Proc. 663.1[Deering's] being shown to the satisfaction of the court by affidavit (or declaration under penalty of perjury [ Code Civ. Proc. 2015.5[Deering's] ]), or otherwise, the court may grant a new trial [ Code Civ. Proc. 663.1[Deering's] ].

Pending the hearing on a motion pursuant to Code Civ. Proc. 663.1[Deering's] to grant a new trial, the time within which a bill of exceptions may be prepared, served, or presented for settlement is extended and does not commence to run until the decision on the motion. The motion must be made within 30 days after the loss or destruction of the records [ Code Civ. Proc. 663.2[Deering's] ].
Procedure--Motion Must Be Made by Party
The aggrieved party must apply for a new trial since the court has no inherent power to grant a new trial on its own motion [see Code Civ. Proc. 657[Deering's] ; Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 919, 114 Cal. Rptr. 622 ].
Notice of Intention
The party must file with the court clerk and serve on each adverse party a notice of intention to move for a new trial [ Code Civ. Proc. 659[Deering's] ]. The notice must be accompanied by a filing fee in an amount prescribed by Gov. Code 26830[Deering's] . The notice must designate the ground or grounds on which the motion will be made and should designate whether the motion will be made on affidavits (or declarations [ Code Civ. Proc. 2015.5[Deering's] ]) or the court minutes or both [see Code Civ. Proc. 659[Deering's] ; see also discussions under Affidavits and Counteraffidavits and --Use of Reporter's Notes, Pleadings, and Files, below ]. However, since it is implicit in the statement of grounds whether the motion will be made on affidavits or the minutes of the court, it is not necessary, though it is advisable, to specify [ Nichols v. Hast (1965) 62 Cal. 2d 598, 601, 43 Cal. Rptr. 641, 400 P.2d 753 ].
Time for Filing
A notice of intention to move for a new trial may be filed before the entry of judgment, but after the jury, court, or referee has rendered a decision [ Code Civ. Proc. 656[Deering's], 659[Deering's] ]. It may also be filed after judgment is entered and within the earliest of the following times [ Code Civ. Proc. 659[Deering's] ]:

(1) 15 days after the court clerk mailed notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] ;

(2) 15 days after any party served a written notice of entry of judgment on the moving party; or

(3) 180 days after judgment is entered.

The statutory requirement of giving written notice of entry of judgment is satisfied by serving a copy of the file-stamped judgment in a county that no longer maintains a judgment book. To start the statutory time period for bringing and ruling on a motion for a new trial, it is not necessary to serve on the opposing party a separate document entitled notice of entry of judgment and to file in the trial court that document, as well as a copy of the judgment and proof of its service [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1267-1268, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ].

Under the express terms of Code Civ. Proc. 659[Deering's] , the time limits for filing a motion of intention to move for a new trial start to run either on the date of the court clerk's mailing or on the date of service on the moving party of notice of entry of judgment. To be service pursuant to Code Civ. Proc. 664.5[Deering's] as required by section 659, the notice of entry of judgment mailed by the clerk must affirmatively state it is given ``upon order by the court'' or ``under section 664.5'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 64, 61 Cal. Rptr. 2d 166, 931 P.2d 344 ]. Otherwise, the time limits for the notice of intention to move for a new trial are triggered by service on the moving party of ``written notice'' of the ``entry of judgment'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Code Civ. Proc. 659[Deering's] ]. When the moving party is served by mail, service is complete at the time the notice of entry of judgment is deposited in the mailbox [ Code Civ. Proc. 1013(a)[Deering's] ; Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1048, 102 Cal. Rptr. 2d 673 ].

The written notice of entry of judgment served on the party who serves notice of intention to move for a new trial need not be a separate document entitled notice of entry of judgment. No particular form of notice is required, and in counties that do not maintain a judgment book a file-stamped copy of the judgment suffices as ``written notice'' [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal. 4th 51, 57 n.2, 61 Cal. Rptr. 2d 166, 931 P.2d 344 ; McCordic v. Crawford (1943) 23 Cal.2d 1, 5, 142 P.2d 7 ].

Nothing in section 659 expressly requires the party serving written notice of entry of judgment to file any document with the trial court. If a prevailing party, consistent with section 664.5, serves written notice of the entry of judgment on the party intending to move for new trial and files the original notice of entry and a proof of service, the prevailing party necessarily will have complied with section 659 by ``serving written notice'' on a party that intends to move for a new trial. The posttrial motion statutes do not, however, require filing of the original notice of entry (or of a file-stamped copy of the judgment) accompanied by proof of service in order to start the time limits for bringing posttrial motions [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 (Van Beurden's suggestion that more is required by party to trigger time limits for new trial is dictum because it was unnecessary to its holding)].

In computing time, the first day is excluded and the last day is included unless it is a holiday [ Code Civ. Proc. 12[Deering's], 12a[Deering's] ]. A notice of intention to move cannot be filed until all issues in the case are decided, and if filed prematurely, the notice is void [ City of Santa Barbara v. Superior Court (1966) 240 Cal. App. 2d 612, 614, 49 Cal. Rptr. 798 ]. Once a party files a notice of motion for a new trial, each other party has 15 days after service to file a notice of motion for new trial. The time limit for filing and serving the notice cannot be extended by the court or by stipulation of the parties. This time limit is also not lengthened by Code Civ. Proc. 1013[Deering's] , which extends the time for exercising a right or doing an act when service is by mail [ Code Civ. Proc. 659[Deering's] ].
Affidavits and Counteraffidavits--When Required
A motion made on the grounds set out in Code Civ. Proc. 657(1)-(4)[Deering's] , that is, irregularity of the proceedings, misconduct of the jury, accident or surprise, or newly discovered evidence must be made on affidavits (or declarations [ Code Civ. Proc. 2015.5[Deering's] ]) [ Code Civ. Proc. 658[Deering's] ]. A motion made on any other ground must be made on the court minutes [ Code Civ. Proc. 658[Deering's] ; see discussion under --Use of Reporter's Notes, Pleadings, and Files, below].

The requirement that affidavits or declarations be used is mandatory. Thus, for example, it is proper for the trial court to refuse to allow oral testimony from subpoenaed jurors. Allowing subpoenaed testimony as distinguished from a voluntary affidavit or declaration would stifle independent thought in the jury room and undermine the integrity of the jury process [ Linhart v. Nelson (1976) 18 Cal. 3d 641, 644-645, 134 Cal. Rptr. 813, 557 P.2d 104 ].
Service and Filing
Within 10 days of filing the notice of intention to move for a new trial, the moving party is required to serve on all other parties and file any affidavits intended to be used on the motion. The other parties have 10 days after the service within which to serve on the moving party and file counteraffidavits. These times 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 20 days [ Code Civ. Proc. 659a[Deering's] ]

The provision under Code Civ. Proc. 659a[Deering's] permitting the trial court to extend the period within which to file an affidavit supporting a new trial is mandatory. Therefore, a court may not consider a party's affidavit's filed after the expiration of that period [ Erikson v. Weiner (1996) 48 Cal. App. 4th 1663, 1666, 1672, 56 Cal. Rptr. 2d 362 ].
Juror Affidavits
The affidavit of any juror may be used to show jury misconduct by reason of a chance verdict [see Code Civ. Proc. 657(2)[Deering's] and discussion in---Chance Verdict, above]. Jurors' affidavits may also be used to show jury misconduct generally [see City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 428, 82 Cal. Rptr. 1 (juror affidavit to show preducial communication by or to juror); Campbell v. Zokelt (1969) 272 Cal. App. 2d 315, 319, 77 Cal. Rptr. 561 (juror affidavit to show juror had concealed bias during voir dire)]. For further discussion, see-Jury Misconduct, above].

Juror affidavits used to impeach a verdict may show statements made, or conduct, conditions, or events, when these are of a character that is likely to have influenced the verdict improperly. They may not be used to show that a juror was actually influenced or to show mental processes of jurors in reaching the verdict [ Evid. Code 1150(a)[Deering's] ]. In other words, a juror affidavit must provide overt facts that can be objectively corroborated, rather than subjective thoughts that cannot [ Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1678, 25 Cal. Rptr. 2d 667 ; Chronakis v. Windsor (1993) 14 Cal. App. 4th 1058, 1068-1069, 18 Cal. Rptr. 2d 106 ; Cove, Inc. v. Mora (1985) 172 Cal. App. 3d 97, 100, 218 Cal. Rptr. 7 ; see also Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 1745, 286 Cal. Rptr. 435 (trial judge may not review replay of particular language used by various jurors during deliberations and make subjective determination as to its propriety; this would intrude on traditional inviolate nature of jury proceedings)].

A juror's affidavit may not be used for the purpose of construing or interpreting the verdict [ Telles v. Title Ins. & Trust Co. (1969) 3 Cal. App. 3d 179, 187, 83 Cal. Rptr. 444 ].
Use of Reporter's Notes, Pleadings, and Files
At the hearing on the motion, counsel may refer in all cases to pleadings and court orders on file. When the motion is made on the court minutes, counsel may refer to depositions, documentary evidence offered at trial, and to the reporter's report of the trial proceedings or a certified transcript of this report. If there is no report or certified transcript, counsel may refer to proceedings occurring at trial that are within the recollection of the judge. If the proceedings have been phonographically reported, but the reporter's notes have not been transcribed, the court or either party may request that the reporter attend the hearing and read the notes or any portion of the notes that the court or either party require [ Code Civ. Proc. 660[Deering's] ].
Points and Authorities
The moving party must serve and file a memorandum of points and authorities within 10 days after the notice of motion is filed. If the moving party fails to do so, the court may deny the motion without a hearing on the merits [ Cal. Rules of Ct., Rule 203[Deering's] ].

The adverse party may serve an opposing memorandum within 10 days after the moving party's memorandum is filed [ Cal. Rules of Ct., Rule 203[Deering's] ].

For general discussion and forms, see Ch. 417, Points and Authorities.
With Motion for Judgment Notwithstanding Verdict
A motion for new trial is frequently made with a motion for judgment notwithstanding the verdict [see Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 919, 114 Cal. Rptr. 622 ]. The making of a motion for judgment notwithstanding the verdict will not extend the time within which a party may file and serve notice of intention to move for a new trial [ Code Civ. Proc. 629[Deering's] ]. If both motions are filed, the court must rule on them at the same time [ Code Civ. Proc. 629[Deering's] ]. The court, however, cannot grant the motion for judgment notwithstanding the verdict with a conditional order granting the motion for new trial if for any reason the judgment notwithstanding the verdict is reversed on appeal [ Widener v. Pacific Gas & Electric Co. (1977) 75 Cal. App. 3d 415, 436, 142 Cal. Rptr. 304 ]. For a discussion of the granting and denial of alternative motions, see Part I, Introduction, under Review, Introduction, under Review Introduction, under Review, above.
Stay of Execution of Judgment Pending Determination of Motion
Subject to Code Civ. Proc. 918(b)[Deering's] , the trial court may stay the enforcement of any judgment or order, whether or not an appeal will be taken from it and whether or not a notice of appeal has been filed [ Code Civ. Proc. 918(a)[Deering's],(c)[Deering's] ]. If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court does not have power, without the consent of the adverse party, to stay the enforcement pursuant to Code Civ. Proc. 918[Deering's] for a period that extends for more than 10 days beyond the last date on which a notice of appeal could be filed [ Code Civ. Proc. 918(b)[Deering's] ]. For forms for use in staying the execution of a judgment pending determination of a motion for new trial, see Ch. 254, Executions and Enforcement of Judgments.
Hearing and Determination of Motion--Proper Judge
The judge who presided at trial will hear the motion unless that judge is unable to do so or is absent from the county at the time [ Code Civ. Proc. 661[Deering's] ]. If that is the case, any other judge of the same court may hear the motion [ Code Civ. Proc. 661[Deering's] ]. If a judge other than the trial judge hears the motion, it must be argued or submitted without oral argument 10 days before expiration of the court's power to act on the motion [ Code Civ. Proc. 661[Deering's] ]. In a bifurcated trial in superior court, in which different judges heard the issues, each judge must hear and determine the motion with respect to the issues that he or she tried [ Cal. Rules of Ct., Rule 232.5[Deering's] ].

If the parties consent, the motion may be heard by the judge who tried the case at any location in the state [ Gov. Code 69741.1[Deering's] ].
Time For Hearing
When the time for filing counteraffidavits expires, the clerk must immediately call the motion to the attention of the judge who then designates the time for oral argument [ Code Civ. Proc. 661[Deering's] ]. The hearing and disposition of the motion takes precedence over all other matters except criminal cases, probate matters, and cases actually on trial [ Code Civ. Proc. 660[Deering's] ]. The clerk then gives the parties five days notice by mail [ Code Civ. Proc. 661[Deering's] ]. The notice of hearing and the hearing are mandatory unless waived by the parties [ Avery v. Associated Seed Growers, Inc. (1963) 211 Cal. App. 2d 613, 627, 27 Cal. Rptr. 625 ]. Although the court cannot dispense with the hearing, it is not required to hear oral argument [ Code Civ. Proc. 661[Deering's] ]. The motion may be heard and determined in the judge's chambers [ Code Civ. Proc. 166(a)(2)[Deering's] ].
Ruling on Motion--Time Limitation
Except as otherwise provided in Code Civ. Proc. 12a[Deering's] (extension for holiday), the power of the court to rule on the motion expires 60 days after the court clerk mails notice of the entry of judgment under Code Civ. Proc. 664.5[Deering's] or 60 days after any party serves a written notice of entry of judgment on the moving party, whichever is earlier [ Code Civ. Proc. 660[Deering's] ]. The statutory requirement of giving written notice of entry of judgment is satisfied by serving a copy of the file-stamped judgment in a county that no longer maintains a judgment book. To start the statutory time period for ruling on a motion for a new trial, it is not necessary to serve on the opposing party a separate document entitled notice of entry of judgment and to file in the trial court that document, as well as a copy of the judgment and proof of its service [ Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067 ]. Code Civ. Proc. 1013(a)[Deering's] , which extends certain deadlines when service is made by mail, does not extend the deadline for the court to act under Code Civ. Proc. 660[Deering's] [ Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1047-1049, 102 Cal. Rptr. 2d 673 ]. If notice of entry of judgment has not been given, then the court's power to rule expires 60 days after the first notice of intention to move for a new trial was filed [ Code Civ. Proc. 660[Deering's] ; see Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1048, 102 Cal. Rptr. 2d 673 (once 60 days ran after plaintiffs served notice of entry of judgment on defendants by mail, motion was denied by operation of law and court lacked jurisdiction to act on it)]. If the motion is not determined within these time limits, the effect is a denial of the motion without further court order [ Code Civ. Proc. 660[Deering's] ].

The 60-day time limit of Code Civ. Proc. 660[Deering's] is jurisdictional. It cannot be evaded by stipulation or nunc pro tunc order [see Fischer v. First Int'l. Bank (2003) 109 Cal. App. 4th 1433, 1450-1451, 1 Cal. Rptr. 3d 162 (where there was no notice of entry of judgment, order granting motion for new trial more than 60 days after filing of notice of intention to move for new trial was void for lack of jurisdiction)].

If there has been no entry of judgment, the trial court is not bound by the 60-day time limitation. For example, when only a ``Ruling After Court Trial'' has been entered, the court may treat the motion for new trial as a motion to reconsider, reopen, or reargue and enter a judgment different from that first announced, even though the time to rule on new trial motion has expired [ In re Marriage of Micalizio (1988) 199 Cal. App. 3d 662, 672, 245 Cal. Rptr. 673 ].
When Motion Determined
A motion for new trial is not determined by the court within the meaning of Code Civ. Proc. 660[Deering's] until an order ruling on the motion is (1) entered in the permanent minutes of the court, or (2) signed by the judge and filed with the clerk. The entry of the new trial order in the permanent minutes of the court constitutes a determination of the motion even though the minute order expressly directs that a written order is to be prepared, signed, and filed [ Code Civ. Proc. 660[Deering's] ]. The minute entry must show the date that it was actually entered in the permanent minutes, but failure to do so will not impair the order's validity or effectiveness [ Code Civ. Proc. 660[Deering's] ].
Discretion of Court
The court has wide discretion in ruling on a motion for new trial [ City of Los Angeles v. Decker (1977) 18 Cal. 3d 860, 871-872, 135 Cal. Rptr. 647, 558 P.2d 545 ]. However, the court must exercise discriminating judgment within the bounds of reason [ Johns v. City of Los Angeles (1978) 78 Cal. App. 3d 983, 987, 144 Cal. Rptr. 629 ].

In considering the motion, the court is entitled to reweigh evidence, consider the credibility of witnesses, and draw reasonable inferences contrary to those accepted by the jury [ Mercer v. Perez (1968) 68 Cal. 2d 104, 112, 65 Cal. Rptr. 315, 436 P.2d 315 ]. If the judge is unsatisfied with the verdict or decision and the statutory grounds for granting a new trial exist, he or she has a duty to grant the motion [ Pollitz v. Wickersham (1907) 150 Cal. 238, 244, 88 P. 911 ].

On the other hand, the trial court may not misuse a motion for new trial, in which the trial court is allowed to draw inferences contrary to the verdict, as a de facto motion for judgment notwithstanding the verdict by granting a new trial under circumstances in which the trial court has determined it will never allow the verdict to stand despite evidence supporting the verdict [ Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal. App. 4th 743, 752-753, 79 Cal. Rptr. 2d 248 ]. If the record reveals that an order granting a new trial was a de facto judgment notwithstanding the verdict, the appellate court will apply the independent review standard associated with judgment notwithstanding the verdict rather than the abuse of discretion standard associated with an order granting a new trial [ Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal. App. 4th 743, 753, 79 Cal. Rptr. 2d 248 ].
Alternative Relief in Lieu of Granting New Trial--In Nonjury Case
In a nonjury case, the court may, on such terms as may be just, change or add to the statement of decision, modify the judgment in whole or in part, or grant a new trial on all or part of the issues. In lieu of granting a new trial, the court may vacate and set aside the statement of decision and judgment and reopen the case for further proceedings and introduction of additional evidence [ Code Civ. Proc. 662[Deering's] ]. Code Civ. Proc. 662[Deering's] does not provide authority to reopen to allow presentation of additional evidence if the motion to reopen is made before judgment. If made before judgment, such a motion invokes the court's fundamental authority under Code Civ. Proc. 128(a)(3)[Deering's] and Evid. Code 320[Deering's] to control the order of proof and the conduct of proceedings before it [ Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal. App. 3d 1035, 1052 n.7, 237 Cal. Rptr. 14 ].

The purpose of allowing the trial court to change or amend its statement of decision is to give the court, on denying the motion for new trial, broad power to change its statement of decision and to modify the judgment, thereby avoiding the necessity of a new trial [see Spir v. Lang (1935) 4 Cal. 2d 711, 714, 53 P.2d 138 (decided when findings existed under Code Civ. Proc. 632[Deering's] )]. For a form concerning alternative relief to be used in a notice of intention to move for new trial, see Form 11.
Jurisdictional Requirements Under Code Civ. Proc. 662
If the trial court does not have jurisdiction to grant a new trial, it has no jurisdiction to act under Code Civ. Proc. 662[Deering's] . For example, a notice of intention to move for a new trial that is prematurely filed confers no jurisdiction to the court to grant a new trial under Code Civ. Proc. 657[Deering's] , and it necessarily follows that the trial court has no power to vacate a judgment and to enter a new and different judgment under Code Civ. Proc. 662[Deering's] [see Fong Chuck v. Chin Po Foon (1947) 29 Cal. 2d 552, 553-554, 176 P.2d 705 ]. The exercise by the court of powers vested in it by Code Civ. Proc. 662[Deering's] is an integral part of the proceedings for a new trial; such powers are to be exercised only in conjunction with a ruling on a motion for new trial [ Avery v. Associated Seed Growers, Inc. (1963) 211 Cal. App. 2d 613, 622-623, 27 Cal. Rptr. 625 ].
Modified Judgment Supersedes Prior Judgment
The proper procedure in granting relief under Code Civ. Proc. 662[Deering's] is for the trial court to deny the motion for new trial and grant the alternative relief. However, even if the court's order does not expressly dispose of the new trial motion, when the court vacates the prior judgment and enters a new judgment within the 60-day period prescribed in Code Civ. Proc. 660[Deering's] , the new judgment supersedes the prior judgment [ Medak v. Cox (1970) 12 Cal. App. 3d 70, 74, 90 Cal. Rptr. 452 ]. Once the court enters a modified judgment, the superseded judgment can no longer be appealed [ Neff v. Ernst (1957) 48 Cal. 2d 628, 634, 311 P.2d 849 ].

However, if the modified judgment is subsequently vacated for lack of jurisdiction, the earlier judgment is reinstated [see In re Marriage of Micalizio (1988) 199 Cal. App. 3d 662, 670, 245 Cal. Rptr. 673 (trial court vacated its modified judgment, which was not entered within required 60 days, but failed to specify time for reentry of prior judgment)]. The reinstated judgment is a new judgment for purposes of appeal and the time for filing a notice of appeal from that judgment begins to run from the date that the second judgment is declared void by the trial court [ In re Marriage of Micalizio (1988) 199 Cal. App. 3d 662, 671-672, 245 Cal. Rptr. 673 .]
New Trial on Particular Issues
The court may grant a new trial only on certain issues raised in the case if these issues are distinct and separable [see Code Civ. Proc. 657[Deering's] ; Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, 165, 99 Cal. Rptr. 2d 435 ; Karallis v. Shenas (1950) 97 Cal. App. 2d 280, 283, 217 P.2d 436 ]. However, when a limited new trial might be prejudicial to either party, the court must grant a complete new trial [ Liodas v. Sahadi (1977) 19 Cal. 3d 278, 286, 137 Cal. Rptr. 635, 562 P.2d 316 ; see also Pelletier v. Eisenberg (1986) 177 Cal. App. 3d 558, 565-566, 223 Cal. Rptr. 84 (grant of retrial limited to particular issue as error if it would prejudice party to exclude another related issue for which retrial was not requested)].
Conditional Granting or Denial of Motion
The court's decision may be conditioned on the performance of certain actions by the parties. If the parties perform the condition within the alloted time, the motion for new trial will be either granted or denied [see Engle v. Farrell (1946) 75 Cal. App. 2d 612, 620, 171 P.2d 588 ]. For instance, the court might grant the motion for new trial if the parties do not agree to a greater or lesser amount of damages [ Code Civ. Proc. 662.5[Deering's] ; Jehl v. Southern Pac. Co. (1967) 66 Cal. 2d 821, 832, 59 Cal. Rptr. 276, 427 P.2d 988 (additur); Hughes v. Hearst Publications, Inc. (1947) 79 Cal. App. 2d 703, 704, 180 P.2d 419 (remittitur)]. The court might also grant a new trial if the moving party agrees to pay the other party's costs [ Chodos v. Superior Court (1964) 226 Cal. App. 2d 703, 707, 38 Cal. Rptr. 301 ].

As long as the trial court issues its order on the new trial motion within the 60-day period prescribed by Code Civ. Proc. 660[Deering's] , it may exercise discretion in setting reasonable time limits extending beyond the 60-day period for plaintiffs to perform conditions set by the order [see Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal. 3d 442, 454 n.6, 198 Cal. Rptr. 155, 673 P.2d 743 ].

A void condition has no effect on an otherwise valid order. In such a case, the condition is disregarded but the order stands [see Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal. 3d 442, 455, 198 Cal. Rptr. 155, 673 P.2d 743 ].
Order Denying Motion
The court can deny the motion for new trial by entering a minute order to that effect [ Code Civ. Proc. 660[Deering's] ]. A statement of reasons for the denial is not required [see Code Civ. Proc. 657[Deering's] ]. No appeal will lie from the trial court's denial of the motion; the ruling may be reviewed only through an appeal of the judgment [ Rodriguez v. Barnett (1959) 52 Cal. 2d 154, 156, 338 P.2d 907 ; Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 608, 248 P.2d 910 ].
Order Granting Motion
An order granting a motion for new trial vacates the verdict or decision and returns the case to its exact state before trial [ Bloomquist v. Haley (1928) 204 Cal. 258, 261, 268 P. 364 ]. A general order granting the motion will open the case to all parties, even though some of the parties may not have joined on the motion [ Bishop v. Superior Court (1922) 59 Cal. App. 46, 48, 209 P. 1012 ]. If, however, there are several parties and the rights and interests of these parties are distinct, the resulting order may not affect the judgment as to some of the parties [ Fearon v. Fodera (1915) 169 Cal. 370, 376, 148 P. 200 ].
Statement of Grounds
If the motion is granted, the order must state the ground or grounds on which the court relied [ Code Civ. Proc. 657[Deering's] ]. The statutory language of Code Civ. Proc. 657[Deering's] or a reasonable approximation should be used [ Mercer v. Perez (1968) 68 Cal. 2d 104, 111, 65 Cal. Rptr. 315, 436 P.2d 315 ]. A court's statement that there has been a miscarriage of justice is insufficient grounds for the order [ Mercer v. Perez (1968) 68 Cal. 2d 104, 110, 65 Cal. Rptr. 315, 436 P.2d 315 ].

The statement of the ground or grounds on which the court relies must be made before the expiration of the 60-day period permitted by Code Civ. Proc. 660[Deering's] [ Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 903-905, 215 Cal. Rptr. 679, 701 P.2d 826 ; Steinhart v. South Coast Area Transit (1986) 183 Cal. App. 3d 770, 772-773, 228 Cal. Rptr. 283 ]. The additional 10-day period permitted by Code Civ. Proc. 657[Deering's] for the filing of a statement specifying the reasons for granting the motion does not apply to the statement of the grounds for granting the motion [ Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 905, 215 Cal. Rptr. 679, 701 P.2d 826 ; Steinhart v. South Coast Area Transit (1986) 183 Cal. App. 3d 770, 773, 228 Cal. Rptr. 283 ]. See the discussion of the separate requirement for a specification of the reasons for granting the motion under --Specification of Reasons, below.
Specification of Reasons
The court must specify the reasons for granting the new trial for each of the grounds stated in the order [ Code Civ. Proc. 657[Deering's] ; see Twedt v. Franklin (2003) 109 Cal. App. 4th 413, 418-420, 134 Cal. Rptr. 2d 740 (requirement of written statement of reasons for granting new trial satisfied by written order attaching and incorporating hearing transcript in which trial judge stated evidence did not support jury's finding of no negligence because testimony of defendant driver showed her negligence at least partially caused collision with plaintiff's vehicle)]. If the order fails to state the court's reasons for granting a new trial on a particular ground, the order is defective and must be reversed [ Stewart v. Truck Ins. Exchange (1993) 17 Cal. App. 4th 468, 484-485, 21 Cal. Rptr. 2d 338 (order for new trial on punitive damages reversed because judge failed to state reasons; irrelevant that judge also gave reasons for ordering new trial on portion of compensatory damages); Wright v. City of Los Angeles (1990) 219 Cal. App. 3d 318, 354, 268 Cal. Rptr. 309 ]. The court may state the reasons in the order or may prepare a separate document filed 10 days after the filing of the order [ Code Civ. Proc. 657[Deering's] ]. The 10-day period runs from the determination of the motion rather than from the filing of the order [ Swanson v. Western Greyhound Lines, Inc. (1969) 268 Cal. App. 2d 758, 759-760, 74 Cal. Rptr. 383 ]. The 10-day period within the court must specify its reasons for granting a new trial under Code Civ. Proc. 657[Deering's] is not included in the 60-day period of Code Civ. Proc. 660[Deering's] , discussed under Ruling on Motion--Time Limitation, above [ Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal. App. 4th 1679, 1692, 42 Cal. Rptr. 136 ].

The purpose of the specification of reasons is to promote careful deliberation by the trial court and afford the parties the right of meaningful appellate review [ Mercer v. Perez (1968) 68 Cal. 2d 104, 113, 115, 436 P.2d 315 ; Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal. App. 4th 1679, 1695, 42 Cal. Rptr. 136 ]. The reasons must be in writing. An oral recital by the court during the hearing is insufficient [ La Manna v. Stewart (1975) 13 Cal. 3d 413, 423, 118 Cal. Rptr. 761, 530 P.2d 1073 ]. A reference in a written order to a transcription of an oral statement of reasons made at a prior hearing is also insufficient [ Steinhart v. South Coast Area Transit (1986) 183 Cal. App. 3d 770, 773-774, 228 Cal. Rptr. 283 ]. The specifications will be sufficient if the judge who grants a new trial furnishes a concise but clear statement of the reasons why he or she finds one or more of the grounds of the motion to be applicable to the case before him or her. No hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case [ Mercer v. Perez (1968) 68 Cal. 2d 104, 113, 115, 436 P.2d 315 ; Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal. App. 4th 1679, 1695, 42 Cal. Rptr. 136 ]. While the judge need not cite page and line, nor discuss testimony of particular witnesses, nor the weight to be given each item of testimony, he or she must do more than state the reasons in terms of conclusions, issues, or ultimate facts [ Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal. 3d 359, 370, 90 Cal. Rptr. 592, 475 P.2d 864 ].

When the order is granted on the ground of excessive damages, the judge must specify some aspect of the record which would have misled or prejudiced the jury and which convinces the judge that the jury clearly should have reached a different decision [ Bigboy v. County of San Diego (1984) 154 Cal. App. 3d 397, 406, 201 Cal. Rptr. 226 ]. On the other hand, Code Civ. Proc. 657[Deering's] does not require that the court state the reasons why it considers any portion of the jury's award to be supported by the evidence [ Martinides v. Mayer (1989) 208 Cal. App. 3d 1185, 1197, 256 Cal. Rptr. 679 ].

A trial court's specification of reasons may cross refer to findings located in a different part of the order. The trial court need not unnecessarily burden a new trial order by reiterating what it has already said at length with respect to another issue before it, so long as it makes clear to a reviewing court the basis for its decision [ Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 413, 93 Cal. Rptr. 2d 60, 993 P.2d 388 ].

Similarly, while Code Civ. Proc. 657[Deering's] provides that a trial court may not direct counsel to prepare a new trial order or specification of reasons, this does not also bar a trial court from adopting material in a party's trial brief or memorandum. If a trial court could not rely on reasons advanced in such briefs, their utility would be undermined and they would serve little purpose. The critical factor is the reasoning process, not whose language is being employed [ Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 415, 93 Cal. Rptr. 2d 60, 993 P.2d 388 ].
Counsel Prohibited From Preparation of Grounds and Reasons
The court cannot direct the attorney for a party to prepare an order granting new trial or the specification of reasons [ Code Civ. Proc. 657[Deering's] ]. The trial court is also precluded from adopting a specification of reasons voluntarily drafted by counsel for the moving party [ Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 168-170, 209 Cal. Rptr. 427 ; Oberstein v. Bisset (1976) 55 Cal. App. 3d 184, 189, 127 Cal. Rptr. 413 ]. Counsel may, however, assist the court by calling any deficiency to its attention within the 10-day period for filing the specification of reasons so that the court may correct the order [ Mercer v. Perez (1968) 68 Cal. 2d 104, 123 n.8, 65 Cal. Rptr. 315, 436 P.2d 315 ]. The Mercer and Oberstein cases do not, however, require the court to eliminate from its order all language that appeared in a brief by counsel; all that is required is that the mental processes employed in the specification of reasons be those of the court rather than those of counsel [ Eltolad Music, Inc. v. April Music, Inc. (1983) 139 Cal. App. 3d 697, 706-708, 188 Cal. Rptr. 858 ].
Nunc Pro Tunc Correction of Order
If the court did not state the ground or grounds for granting the motion in the order, as required by Code Civ. Proc. 657[Deering's] , the court cannot correct its order by filing a statement of the ground or grounds after the expiration of the 60-day period provided by Code Civ. Proc. 660[Deering's] [ Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 903-904, 215 Cal. Rptr. 679, 701 P.2d 826 ].

The court cannot correct its order or specification of reasons nunc pro tunc after the expiration of the 10-day period for filing a separate specification of reasons. If the court does so, it is acting in excess of its jurisdiction [ Mercer v. Perez (1968) 68 Cal. 2d 104, 121, 65 Cal. Rptr. 315, 436 P.2d 315 ].
Notice of Court's Order
When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order must be given by the prevailing party to all other parties or their attorneys, in the manner provided in Code Civ. Proc. 1010-1020[Deering's] (see Ch. 518, Service of Summons and Papers), unless notice is waived by all parties in open court and is entered in the minutes [ Code Civ. Proc. 1019.5(a)[Deering's] ].
Review--In General
An appeal will lie from an order granting a new trial; an order denying a new trial is reviewable on appeal from the judgment [Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's]; see also Order Denying Motion, above]. If a party moves for a new trial on all issues and is granted one only on certain issues, that party has a right of appeal from the order [ Cobb v. University of So. California (1995) 32 Cal. App. 4th 798, 802, 38 Cal. Rptr. 2d 543 ; Ferraro v. Pacific Fin. Corp. (1970) 8 Cal. App. 3d 339, 355, 87 Cal. Rptr. 226 ].

When a motion is denied by operation of law, it may be reviewed on appeal as if it were expressly denied by the court [ In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 152-153, 242 Cal. Rptr. 649 (reviewing court may consider merits of motion even when appellant was at fault for failing to ensure that court heard motion within statutory time period or when motion is based on affidavits that trial court did not pass on)].

Cal. Const., art. VI, 13[Deering's] , requires that before granting a new trial on grounds of misdirection of the jury, improper admission or rejection of evidence, errors as to any matter of pleading, or any error as to procedure, the court must examine the entire cause, including the evidence. On appeal from an order granting a new trial, the reviewing court will presume that the trial court considered the whole record [ Maher v. Saad (2000) 82 Cal. App. 4th 1317, 1324, 99 Cal. Rptr. 2d 213 ].
Scope of Review
The order granting a new trial will be affirmed if it should have been granted on any ground stated in the motion, even if that ground was not specified in the order or specification of reasons, except that (a) the order will not be affirmed on the ground of insufficiency of the evidence to justify the verdict or other decision, or the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion; and (b) on appeal from an order granting a new trial on the ground of insufficiency of the evidence or excessive or inadequate damages, it is conclusively presumed that the order was made only for the reasons specified in it or in the specification of reasons, and the order will be reversed if there is no substantial basis in the record for any of these reasons [ Code Civ. Proc. 657[Deering's] ; Jordy v. County of Humboldt (1992) 11 Cal. App. 4th 735, 741, 14 Cal. Rptr. 2d 553 ].
Standard of Review
As a general matter, orders granting a new trial are reviewed for abuse of discretion; however, any determination underlying any order is scrutinized under the test appropriate to such determination [ Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 859, 107 Cal. Rptr. 2d 841, 24 P.3d 493 (order granting summary judgment on pure question of law, leading to order granting new trial, is entitled to independent review)].

The determination of a motion for a new trial rests so completely witin the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter [ Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal. 3d 379, 387, 93 Cal. Rptr. 769, 482 P.2d 681 ]. This ``highly deferential'' standard applies because the trial court, in ruling on a motion for new trial, sits as an independent trier of fact, and its factual determinations, as reflected in its order granting a new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury's factual determinations. Because the trial court is in the best position to assess the reliability of a jury's verdict, the Legislature has granted them broad discretion to order new trials, the only relevant limitations on which are the requirement that trial courts state their reasons for granting a new trial, and the requirement that there must be some evidence in the record to support those reasons [ Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 412, 93 Cal. Rptr. 2d 60, 993 P.2d 388 ].

Thus, an order granting a new trial under Code Civ. Proc. 657[Deering's] on the ground of insufficient evidence or excessive damages must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on the trial court's theory, and an abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached. In other words, when reviewing such an order granting a new trial, the presumption of correctness normally accorded on appeal to the jury's verdict is replaced by a presumption in favor of the new trial order [ Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 412, 93 Cal. Rptr. 2d 60, 993 P.2d 388 (citing Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 932, 148 Cal. Rptr. 389, 582 P.2d 980 and Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal. 3d 706, 710, 711, 106 Cal. Rptr. 28, 505 P.2d 220 ); Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1125, 122 Cal. Rptr. 2d 139 ; see also Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal. 3d 379, 387, 93 Cal. Rptr. 769, 482 P.2d 681 (as long as a reasonable or even fairly debatable justification under the law is shown for order granting new trial, it may not be set aside); Martin v. U-Haul Co. of Fresno (1988) 204 Cal. App. 3d 396, 406, 251 Cal. Rptr. 17 (with respect to order granting new trial on ground of excessive damages, whether or not conditioned on a reduction, the presumption of correctness normally accorded to jury verdict is replaced by presumption in favor of order granting new trial)]. However, when the trial court grants a new trial based on a finding of juror misconduct, the reviewing court's deference to the trial court's order is more limited. The reviewing court accepts the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence, but whether prejudice arose from the juror misconduct is a mixed question of law and fact subject to the reviewing court's independent determination [ Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1125, 122 Cal. Rptr. 2d 139 ; see also In re Hamilton (1999) 20 Cal. 4th 273, 296, 975 P.2d 600, 84 Cal. Rptr. 2d 403 (in case of juror misconduct occurring outside presence of trial court, reviewing court must independently apply objective standard to determine whether misconduct was prejudicial)].

When the court is reviewing whether or not the granting of a new trial was supported by the ground that the verdict was ``against the law,'' however, the appellate court's task is not to defer to the trial court's balancing of the relative weight of the evidence but to affirm the order only if the verdict was unsupported by any substantial evidence and was such as would justify a directed verdict against the party in whose favor the verdict is returned [ Berge v. Int'l. Harvester Co. (1983) 142 Cal. App. 3d 152, 160, 10 Cal. Rptr. 815 ].

For detailed discussion of appellate standards of review generally, see Ch. 41, Appeal: Review Standards and Appellate Rules of Law.
Effect of Reversal
The original judgment will be reinstated when the order granting a new trial is reversed on appeal [ La Manna v. Stewart (1975) 13 Cal. 3d 413, 425, 118 Cal. Rptr. 761, 530 P.2d 1073 ]. If the party who moved for new trial failed to make a protective cross appeal from the judgment, the judgment automatically becomes final on reinstatement [ Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal. 3d 689, 699, 106 Cal. Rptr. 1, 505 P.2d 193 ].

______________


Research Guide
Cross References
For a form of notice of intention to move for new trial based on the ground of excessive or inadequate damages, see Ch. 177, Damages

For a form of notice of motion and judgment dismissing an action under Code Civ. Proc. 583.320[Deering's], 583.360[Deering's] for a failure to bring it to trial within three years after a new trial was granted, see Ch. 212, Dismissal

For a form of notice of intention to move for new trial following rendition of report of referee made pursuant to general reference [ Code Civ. Proc. 638[Deering's] ], see Ch. 38, Reference.

For discussion of procedures and grounds for seeking mistrial generally, including grounds of juror misconduct, see Ch. 551, Trial, 551.150 et seq.
State Constitution
Miscarriage of justice as basis for granting of new trial. Cal. Const., art. VI, 13[Deering's]
State Statutes
New trial defined. Code Civ. Proc. 656[Deering's]

Grounds for new trial. Code Civ. Proc. 657[Deering's], 914[Deering's]

New trial when phonographic report of trial cannot be transcribed. Code Civ. Proc. 657.1[Deering's], 914[Deering's]

Necessity of filing affidavits to support application for new trial. Code Civ. Proc. 658[Deering's]

Time for filing notice of intention to move for new trial. Code Civ. Proc. 659[Deering's]

Time for filing affidavits and counteraffidavits. Code Civ. Proc. 659a[Deering's]

Hearing and disposition of motion for new trial. Code Civ. Proc. 660-662[Deering's]

Conditional denial of new trial where consent to addition or reduction of damages. Code Civ. Proc. 662.5[Deering's]

New trial after loss or destruction of bill of exceptions or statement of case. Code Civ. Proc. 663.1[Deering's], 663.2[Deering's]

Stay of execution of judgment pending determination of motion for new trial. Code Civ. Proc. 918[Deering's]

Appeal from order granting new trial. Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's]

New trial where court reporter dies or becomes disabled before report of trial transcribed and report not waived. Code Civ. Proc. 914[Deering's]

Prevailing party as required to give notice of court's decision or order granting or denying motion unless waived. Code Civ. Proc. 1019.5(a)[Deering's]

Declarations under penalty of perjury in lieu of affidavits. Code Civ. Proc. 2015.5[Deering's]

Evidence allowed to impeach verdict. Evid. Code 1150[Deering's]

Filing fee to be collected by court clerk on filing notice of intention to move for new trial. Gov. Code 26830[Deering's]

Consent to hearing motion anywhere in state. Gov. Code 69741.1[Deering's]

Grounds for new trial in criminal proceedings. Penal Code 1181[Deering's]
California Rules of Court
Extension of time to appeal when notice of intention to move for new trial is filed. Cal. Rules of Ct., Rules 3(a)[Deering's], 123(a)[Deering's]

Memorandum of points and authorities in support of motion for new trial. Cal. Rules of Ct., Rule 203[Deering's]

Statement of decision, judgment, and motion for new trial following bifurcated trial. Cal Rules of Ct., Rule 232.5[Deering's]
Decisions
Affidavits or Declarations

Questioning of jurors by judge in connection with motion for new trial on grounds of juror misconduct was error because Code Civ. Proc. 658[Deering's] specifically provides that application for new trial must be based on affidavits; trial court erred in considering untimely filed affidavits in support of motion. Maple v. Cincinnati, Inc. (1985) 163 Cal. App. 3d 387, 391-392, 209 Cal. Rptr. 451

Evid. Code 1150[Deering's] permits juror misconduct to be established by juror affidavit if declaration consists of proof of overt acts, objectively ascertainable. Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 171-172, 209 Cal. Rptr. 427

Motion for new trial on grounds enumerated in first four subdivisions of Code Civ. Proc. 657[Deering's] as required to be presented solely by affidavit. Linhart v. Nelson (1976) 18 Cal. 3d 641, 645, 134 Cal. Rptr. 813, 557 P.2d 104

Evidence presented by affidavit in connection with motion for new trial as required to be given from personal knowledge and cannot contain hearsay. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132

Since it is implicit in statement of grounds whether motion for new trial will be made on affidavits or minutes of court, denial of motion on ground that it did not state if it would be made on affidavits or minutes as abuse of discretion. Nichols v. Hast (1965) 62 Cal. 2d 598, 601, 43 Cal. Rptr. 641, 400 P.2d 753

Although motion for new trial required to be supported by affidavit if motion made on certain grounds, if moving party relies wholly on facts appearing on face of record, lack of affidavit as not fatal to motion. Webber v. Webber (1948) 33 Cal. 2d 153, 164, 199 P.2d 934

Extension of time for filing affidavits. Terry v. Lesem (1928) 89 Cal. App. 682, 685-686, 265 P. 523

Alternative Relief Under Code Civ. Proc. 662[Deering's]

Order that proceedings be reopened as constituting a ruling on motion for new trial within meaning of Code Civ. Proc. 660[Deering's] and 662[Deering's] , and order made pursuant to Code Civ. Proc. 662[Deering's] , directing that case be reopened, as having effect of vacating findings and judgment. Taormino v. Denny (1970) 1 Cal. 3d 679, 683-684, 83 Cal. Rptr. 359, 463 P.2d 711

Rule that failure of court to act within 60-day limitation deprives it of jurisdiction to take any further action and that any purported action thereafter taken by trial court is void as applicable to court action under Code Civ. Proc. 662 . Tuck v. Tuck (1966) 245 Cal. App. 2d 260, 263, 53 Cal. Rptr. 872

Conditional Granting or Denial of Motion

Conditional new trial order under Code Civ. Proc. 662.5[Deering's] , granting or denying new trial subject to plaintiff's acceptance of remittitur, as subject to specification requirement of Code Civ. Proc. 657[Deering's] , requiring court to specify reasons for granting of new trial. Hasson v. Ford Motor Co (1982) 32 Cal. 3d 388, 420, 185 Cal. Rptr. 654, 650 P.2d 1171 ; Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 931, 148 Cal. Rptr. 389, 582 P.2d 980

Where error of excluding relevant evidence at trial goes only to measure of damages and appropriate amount can be ascertained from evidence, remittitur as proper remedy to cure defect and avoid necessity of new trial. Sabella v. Southern Pac. Co. (1969) 70 Cal. 2d 311, 316, 74 Cal. Rptr. 534, 449 P.2d 750

When trial court grants defendant's motion for new trial unless plaintiff consents to remittitur, plantiff's consent as not precluding him or her from raising issue of court's erroneous failure to instruct jury on exemplary damages on later appeal from judgment. Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal. 2d 461, 468-469, 72 Cal. Rptr. 344, 446 P.2d 152

Denial of motion for new trial, conditional on consent to reduction of punitive damages award, as proper when trial court independently reviewed evidence and based its action on complete specification of reasons, which was based on recognized factors for determining proper amount of punitive damages. Sprague v. Equifax (1985) 166 Cal. App. 3d 1012, 1052-1055, 213 Cal. Rptr. 69

Court as granting motion for new trial where parties do not agree on greater or lesser amount of damages. Jehl v. Southern Pac. Co. (1967) 66 Cal. 2d 821, 832, 59 Cal. Rptr. 276, 427 P.2d 988 (additur); Hughes v. Hearst Publications, Inc. (1947) 79 Cal. App. 2d 703, 705, 180 P.2d 419 (remittitur)

On conditional granting or denial of motion, time for performing condition as extending past 60-day period that court has to determine the motion. Albertson v. Superior Court (1968) 265 Cal. App. 2d 812, 825, 71 Cal. Rptr. 553 ; but see dictum in Jehl v. Southern Pac. Co. (1967) 66 Cal. 2d 821, 832, 59 Cal. Rptr. 276 , contra

Court as granting motion for new trial where moving party agrees to pay other party's costs. Chodos v. Superior Court (1964) 226 Cal. App. 2d 703, 707, 38 Cal. Rptr. 301

Default Judgments

Motion for new trial as proper in case of default judgment to secure reexamination of questions of law or fact or both. Jacuzzi v. Jacuzzi Bros., Inc. (1966) 243 Cal. App. 2d 1, 22, 52 Cal. Rptr. 147

Discretion of Trial Court

Trial court as not permitted to grant new trial on its own motion. Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 919, 114 Cal. Rptr. 622, 523 P.2d 662

In considering motion, court as entitled to reweigh evidence, consider credibility of witnesses, and draw reasonable inferences contrary to those accepted by jury. Mercer v. Perez (1968) 68 Cal. 2d 104, 112, 65 Cal. Rptr. 315, 436 P.2d 315

Trial court, like appellate court, as enjoined by Cal. Const., Art VI, 13[Deering's] from granting a motion for new trial for errors unless errors are prejudicial. Adkins v. Lear, Inc. (1967) 67 Cal. 2d 882, 920-921, 64 Cal. Rptr. 545, 435 P.2d 321 ; Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 858, 236 Cal. Rptr. 778

When posttrial motions attacking judgment have been made trial court is not limited to order granting or denying relief requested in moving party's papers. Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rptr. 480 (dicta; court amended judgment to delete finding on motion for new trial and judgment notwithstanding the verdict) (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 )

Granting of motion for new trial rests so completely within discretion of trial judge that appellate court will not interfere with judge's action unless manifest and unmistakable abuse of discretion clearly appears. Jutzi v. County of Los Angeles (1987) 196 Cal. App. 3d 637, 656, 242 Cal. Rptr. 74

Trial court as not having power to grant new trial unless, after weighing evidence, court is convinced from entire record, including reasonable inferences therefrom, that court or jury clearly should have reached different verdict or decision. Locksley v. Ungureanu (1986) 178 Cal. App. 3d 457, 463, 223 Cal. Rptr. 737

Cal. Const., art. VI, 13[Deering's] , as requiring prejudicial error as basis for new trial; granting of new trial for harmless error as abuse of discretion. Garcia v. County of Los Angeles (1986) 177 Cal. App. 3d 633, 641, 223 Cal. Rptr. 100

Although court accorded wide discretion in ruling on motion, court as required to exercise discriminating judgment within the bounds of reason. Johns v. City of Los Angeles (1978) 78 Cal. App. 3d 983, 987, 144 Cal. Rptr. 629

Error of court in granting oral motion for new trial in violation of Code Civ. Proc. 659[Deering's] , requiring written motion, as corrected by subsequent compliance with the statute. Herman v. Shandor (1970) 8 Cal. App. 3d 476, 480-481, 87 Cal. Rptr. 443

Trial judge as having power to grant new trial even though evidence might justify verdict and as having duty to set aside jury's verdict whenever his conscience is impressed with injustice thereof. Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 738, 85 Cal. Rptr. 281

1965 and 1967 amendments to Code Civ. Proc. 657[Deering's] as not curbing discretion vested in trial judge to grant new trial. Thompson v. John Strona & Sons (1970) 5 Cal. App. 3d 705, 709, 85 Cal. Rptr. 350

Trial court as not only authorized but also as under duty to grant new trial whenever in its opinion evidence on which former decision rests is insufficient to justify decision, and its action in granting new trial on this ground as discretionary to extent that if any appreciable conflict exists in evidence, court's action may not be disturbed on appeal. Roseboro v. Rawlings Mfg. Co. (1969) 275 Cal. App. 2d 43, 47, 79 Cal. Rptr. 567

Effect Of Order Granting Motion

An otherwise proper order entered in the permanent minutes of the court granting new trial as not required to bear signature of judge. Kolar v. County of Los Angeles (1976) 54 Cal. App. 3d 873, 877, 127 Cal. Rptr. 15

Order granting motion as vacating verdict or decision and returning case to exact state before trial. Bloomquist v. Haley (1928) 204 Cal. 258, 261, 268 P. 364

New trial order as affording parties right to introduce any additional or new evidence, thus entitling them to designate new expert witnesses. Guzman v. Superior Court (1993) 19 Cal. App. 4th 705, 707-708, 23 Cal. Rptr. 2d 585

General order granting motion for new trial as opening case to all parties, even though some of parties may not have joined on motion. Bishop v. Superior Court (1922) 59 Cal. App. 46, 48, 209 P. 1012

Where there are several parties and the rights and interests of parties are distinct, the resulting order as not affecting judgment as to some of the parties. Fearon v. Fodera (1915) 169 Cal. 370, 376, 148 P. 200

Grounds--Accident or Surprise

The terms ``accident'' and ``surprise,'' although not strictly synonymous, as having substantially the same meaning; each as used to denote some condition or situation in which a party to a cause is unexpectedly placed to that party's injury without any negligence of his or her own. Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432, 189 P.2d 271

Right to new trial on ground of surprise is waived if, when surprise discovered, it is not made known to court and no motion is made for mistrial or continuance. Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432, 189 P.2d 271 ; Garcia v. County of Los Angeles (1986) 177 Cal. App. 3d 633, 638-639, 223 Cal. Rptr. 100

Motion for new trial is properly denied when based on claim that negligence of moving party's own attorney created accident or surprise that she could not have guarded against; trial counsel's negligence as not ground on which new trial may be granted. In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 154-155, 242 Cal. Rptr. 649

Failure to disclose testimony is required by former Code Civ. Proc. 2037.3 and 2037.5 (now see Code Civ. Proc. 2034[Deering's] ) as not sufficient to grant motion for new trial on ground of surprise when counsel refuses to accept offer to recess trial in order for counsel to depose witness and possibly obtain rebuttal evidence. Whitehall v. United States Lines, Inc. (1986) 177 Cal. App. 3d 1201, 1210, 223 Cal. Rptr. 452

Granting of motion for new trial pursuant to Code Civ. Proc. 657(3)[Deering's] , relating to accident or surprise, as not supported where based on court's conclusion that it instructed jury on issue not raised by pleadings and therefore committed error of law. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 228, 87 Cal. Rptr. 213

--Accident or Surprise

Party as required to show that he or she was diligent in seeking to protect against the event that constituted accident or surprise and if ordinary prudence would have avoided surprise, motion for new trial as denied. Wade v. De Bernardi (1970) 4 Cal. App. 3d 967, 971, 84 Cal. Rptr. 817

Order granting plaintiff's motion for new trial on ground of accident or surprise which ordinary prudence could not have guarded against as not in excess of jurisdiction where, although court did not specify reasons for ruling, order was timely made, on proper ground, on motion served on adverse parties, and was timely decided. Grant v. Hall (1969) 274 Cal. App. 2d 624, 628, 79 Cal. Rptr. 219

Party moving for new trial on ground of accident or surprise as required to show that surprise had material effect on case so that different result might be reached on retrial. Whitfield v. Brincat (1937) 18 Cal. App. 2d 730, 738, 64 P.2d 960

--Error in Law

An extraneous instruction that never came into play in the deliberative process is not a basis for which a new trial may be granted. Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 206, 48 Cal. Rptr. 2d 448

Erroneous evidentiary rulings can be error in law for which new trial may be granted under Code Civ. Proc. 657(7)[Deering's] . Richard v. Scott (1978) 79 Cal. App. 3d 57, 63, 144 Cal. Rptr. 672

Erroneous or misleading jury instruction is error in law for which new trial may be granted under Code Civ. Proc. 657(7)[Deering's] . Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587, 66 Cal. Rptr. 395

Erroneous grant of nonsuit is error in law for which new trial may be granted under Code Civ. Proc. 657(7)[Deering's] . Castillo v. Warren (1941) 44 Cal. App. 2d 903, 907, 113 P.2d 232

Erroneous denial of directed verdict is error in law for which new trial may be granted under Code Civ. Proc. 657(7)[Deering's] . Steele v. Werner (1938) 28 Cal. App. 2d 554, 556, 83 P.2d 56

Erroneous denial of jury trial is error in law for which new trial may be granted under Code Civ. Proc. 657(7)[Deering's] . Johnson v. Superior Court (1932) 121 Cal. App. 288, 292, 8 P.2d 1047

--Excessive or Inadequate Damages

Use of remittitur under Code Civ. Proc. 662.5[Deering's] is strictly limited to those cases where jury error is confined to the issue of damages. Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal. 3d 442, 453, 198 Cal. Rptr. 155, 673 P.2d 743

U.S. Const., amend. VIII , protection against imposition of excessive fines, is applicable only to criminal actions, not to purely civil penalties, and therefore is not proper ground to assert excessiveness of civil damages award. Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal. App. 3d 1072, 1100-1101, 234 Cal. Rptr. 835

Order conditionally granting motion for new trial on ground that damages awarded were excessive is presumed correct and will not be disturbed when material conflict of evidence as to extent of damages exists. Wayte v. Rollins Int'l., Inc. (1985) 169 Cal. App. 3d 1, 22, 215 Cal. Rptr. 59

Allegation that the inadequate damage award resulted from defendant's and juror's misconduct is required to be raised by motion for new trial if facts were known to plaintiff before judgment became final and within time to move for new trial. Trudell v. Heilman (1984) 158 Cal. App. 3d 251, 254, 204 Cal. Rptr. 551

Granting of motion for new trial is improper when based on judge's opinion that damages were excessive, based on ranges of awards judge has seen in other cases, or based on fact that paraplegic plaintiff was very likeable or attractive. Bigboy v. County of San Diego (1984) 154 Cal. App. 3d 397, 406-407, 201 Cal. Rptr. 226

Trial court properly granted motion for new trial on issue of damages when jury improperly apportioned nondivisible damages between codefendants. Marshall v. Brown (1983) 141 Cal. App. 3d 408, 415, 190 Cal. Rptr. 392

Pursuant to Code Civ. Proc. 662.5[Deering's] , on motion for new trial for excessive damages, trial court uses its independent judgment to determine revised award of damages, and such award is undisturbed on appeal, absent showing of manifest abuse of discretion such as lack of substantial basis for award. Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 823, 174 Cal. Rptr. 348

Trial court's judgment against defaulting defendant which is less than jury verdict against nondefaulting defendant does not require granting of new trial on grounds of excessive damages. Charles D. Warner & Sons, Inc. v. Seilon, Inc. (1974) 37 Cal. App. 3d 612, 616, 112 Cal. Rptr. 425

Defendant is entitled to move for new trial after entry of new judgment where appellate court vacates first judgment for plaintiff with directions to enter a new judgment in a greater or lesser amount for plaintiff. Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal. 2d 452, 459-460, 72 Cal. Rptr. 217, 445 P.2d 881

Prob. Code 573[Deering's] (repealed and replaced by Code Civ. Proc. 377.34[Deering's] ), limiting damages recoverable in actions that survive injured party's death where party dies before judgment, is applicable where order made granting new trial on issue of damages alone and plaintiff dies after order made. Love v. Wolf (1967) 249 Cal. App. 2d 822, 839-842, 58 Cal. Rptr. 42

--Insufficiency of Evidence

Power of court to grant new trial on ground of insufficiency of evidence pursuant to Code Civ. Proc. 657(6)[Deering's] is not violation of right to jury trial. Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 889, 151 Cal. Rptr. 285, 587 P.2d 1098

Trial court did not abuse its discretion in granting plaintiffs' motion for new trial on ground of insufficiency of evidence where record supported trial court's conclusion that jury should have returned verdict for plaintiffs on theory that automobile collision was caused by defendant's negligent failure to replace locking cotter key when reassembling steering apparatus. Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal. 3d 706, 708-711, 106 Cal. Rptr. 28, 505 P.2d 220

Juror declarations did not conclusively disprove compromise verdict so as to require reversal of trial court's grant of new trial under Code Civ. Proc. 657(6)[Deering's] based on insufficiency of evidence to support jury's verdict, where rule according primacy to unopposed affidavits is confined to new trial motions based on irregularity in proceedings, jury misconduct, accident or surprise, and newly discovered evidence, because governing statute, Code Civ. Proc. 658[Deering's] , directs that motions on these grounds must be made on affidavits, and motion on ground of insufficient evidence must be made on ``minutes of the court,'' so that ``minutes of the court'' will support new trial order based on 657(6). Trial court's decision that new trial should not be restricted to damages and should encompass liability was supported by substantial evidence, where record contained abundant evidence of compromise verdict, and where given conflicting evidence of liability, jury's mishandling of damages and presence of signs of placatory verdict, decision to order complete new trial was not manifest abuse of discretion. Lauren H. v. Kannappan (2002) 96 Cal. App. 4th 834, 838-839, 117 Cal. Rptr. 2d 484

Court's determination that weight of evidence is against verdict enables it to order new trial even if there is sufficient evidence to sustain verdict on appeal. Candido v. Huitt (1984) 151 Cal. App. 3d 918, 923, 199 Cal. Rptr. 41

No impropriety in trial court's denial of motion for new trial when trial court found that some evidence lacked credibility but decided that jury's verdict should nevertheless not be reversed. Kolling v. Dow Jones & Co. (1982) 137 Cal. App. 3d 709, 725, 187 Cal. Rptr. 797

Propriety of order granting new trial entered in current volume of minutes within 60-day period provided by Code Civ. Proc. 660[Deering's] , though specification of reasons required by Code Civ. Proc. 657[Deering's] filed within 10 days thereafter; substantial basis in record to support order where trial court, in stating belief that jury clearly should have reached different verdict, implicitly stated belief that there was insufficient evidence to support verdict where court specified evidence it thought was lacking. Fortenberry v. Weber (1971) 18 Cal. App. 3d 213, 219-224, 95 Cal. Rptr. 834

Court's reasons for granting motion for new trial under Code Civ. Proc. 657(6)[Deering's] on grounds of insufficiency of evidence were insufficiently supported where reasons given were erroneous legal conclusions and it was apparent trial court granted motion on this ground because it believed there was a total lack of any material evidence to support verdict rather than because, after weighing evidence, the court believed that it failed to preponderate and jury should have reached a different verdict. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 226-228, 87 Cal. Rptr. 213

Order granting new trial on specified grounds of insufficiency of evidence and judgment as against law in mandate proceeding to compel State Board of Pharmacy to vacate decision suspending permit and licenses is not binding on judge who presides over new trial and does not preclude subsequent retrial and reexamination of all issues of fact, even though no additional evidence is offered, where motion was granted for sole purpose of according appellants a new trial which consists of reexamination of all issues of fact in same court, and reexamination of all issues contemplated independent determination of cause. Arenstein v. California State Bd. of Pharmacy (1968) 265 Cal. App. 2d 179, 187-188, 71 Cal. Rptr. 357

Order granting motion for new trial on ground of insufficiency of evidence is not an abuse of discretion where evidence would support judgment in favor of moving party. McFarland v. Booker (1967) 250 Cal. App. 2d 402, 414, 58 Cal. Rptr. 417 ; Martin v. Culver Enterprises, Inc. (1966) 239 Cal. App. 2d 925, 930, 49 Cal. Rptr. 149

--Irregularity in Proceedings in Court, Jury, or Adverse Party

Motion for new trial on grounds of irregularity in conduct of adverse party was improperly denied where counsel improperly argued to jury by urging facts not justified by record or suggesting jury resort to speculation. City of Los Angeles v. Decker (1977) 18 Cal. 3d 860, 870-871, 135 Cal. Rptr. 647, 558 P.2d 545

Declaration on grounds of jury irregularity must show lack of knowledge of jury misconduct by moving party or counsel prior to rendition of verdict and separate declarations are desirable, although failure to do so is not fatal to motion for new trial. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103-104, 95 Cal. Rptr. 516, 485 P.2d 1132

Motion for new trial based on irregularity in proceedings of court was improperly denied where judge made prejudicial comments during conduct of trial. Delzell v. Day (1950) 36 Cal. 2d 349, 351-352, 226 P.2d 625

Where court expresses prejudice against use of particular witness, notwithstanding competency of testimony and prejudice is reflected in actions of court against the aggrieved party, new trial is granted on ground of irregular ity in the proceedings of the court. Pratt v. Pratt (1903) 141 Cal. 247, 251-252, 74 P. 742

Existence of compromise verdict becomes procedural question relevant to proper scope of new trial order, rather than furnishing substantive basis for new trial motion under Code Civ. Proc. 657(1)[Deering's] for procedural irregularity or Code Civ. Proc. 657(2)[Deering's] for jury misconduct, when new trial is granted under Code Civ. Proc. 657(6)[Deering's] for insufficiency of evidence; question is whether new trial may be limited to issue as to which evidentiary problem was found or must encompass all litigated issues. Many factors beyond adequacy of damage award are relevant to decision about whether verdict is product of compromise, and would be immaterial if deficiency furnishing basis for new trial order was alone enough to mandate comprehensive new trial. Lauren H. v. Kannappan (2002) 96 Cal. App. 4th 834, 839-840, 117 Cal. Rptr. 2d 484

Motion by plaintiff for new trial on grounds of irregularity was improperly denied when defense counsel interjected issue of his own client's perjury and collusion, resulting in verdict for defendant. Price v. Giles (1987) 196 Cal. App. 3d 1469, 1474, 242 Cal. Rptr. 559

Motion for new trial on ground of misconduct of counsel for adverse party was properly denied when alleged instances of misconduct were cured by admonition, were waived by failure to object, were invited by conduct of complaining party, or had no prejudicial effect in view of evidence supporting verdict. Curcio v. Svanvik (1984) 155 Cal. App. 3d 955, 961-966, 202 Cal. Rptr. 499

Defendant in civil action for punitive damages is not entitled to new trial on basis that trial counsel was incompetent, ignorant of law and procedure, and lacking in knowledge of facts. Chevalier v. Dubin (1980) 104 Cal. App. 3d 975, 979, 164 Cal. Rptr. 118

Ineligibility to practice of other party's counsel is not ground for new trial sought by unsuccessful litigant. Gomes v. Roney (1979) 88 Cal. App. 3d 274, 275, 151 Cal. Rptr. 756

Bias or prejudice of trial judge is not irregularity of court, but evidence of judge's conduct may be shown as irregularity of court preventing fair trial. Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12 Cal. App. 3d 143, 150-151, 91 Cal. Rptr. 193

Motion for new trial on ground of irregularity of proceedings, based on alleged misconduct of attorney for adverse party was improperly granted where alleged misconduct consisted of counsel's commenting on and reading jury instructions not decided on by court, court thus correctly admonished jury, and no motion for mistrial was made. Gotcher v. Metcalf (1970) 6 Cal. App. 3d 96, 100-101, 85 Cal. Rptr. 566

Motion for new trial based on ground of irregularity in proceedings of court is properly granted where judge fails to make finding on material allegation. Halperin v. Guzzardi (1949) 95 Cal. App. 2d 31, 35, 212 P.2d 9

An irregularity is any overt act of the trial court, jury, or adverse party that violates the right to a fair and impartial trial and amounts to misconduct. Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182, 91 P.2d 194

Where juror falsely denied having personal knowledge of accident in question on voir dire and during jury deliberations stated that she had personal knowledge of material facts in case and had formed and expressed an opinion in case, new trial was granted on ground of irregularity in proceedings of jury. Williams v. Bridges (1934) 140 Cal. App. 537, 540, 35 P.2d 407

--Lack of Phonographic Report of Trial

When transcript notes are no longer in existence, attempt to reconstruct trial testimony in settled statement is proper procedure; notes taken during trial by attorneys and trial judge and memories of attorneys, witnesses, and jurors as additional sources for satisfactory record; when transcript notes are unavailable, criminal defendant as required to show it is impossible to secure adequate substitute, before new trial will be ordered. People v. Everett (1990) 224 Cal. App. 3d 932, 937, 274 Cal. Rptr. 429

--Misconduct of Jury--Generally

Right to unbiased and unprejudiced jury is constitutionally guaranteed. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132

History of rule that juries may not impeach their verdicts and exceptions to rule; jurors are competent witnesses to prove objective facts to impeach verdict under Evid. Code 1150[Deering's] on motion for new trial. People v. Hutchinson (1969) 71 Cal. 2d 342, 346-351, 78 Cal. Rptr. 196, 455 P.2d 132

Existence of compromise verdict becomes procedural question relevant to proper scope of new trial order, rather than furnishing substantive basis for new trial motion under Code Civ. Proc. 657(1)[Deering's] for procedural irregularity or Code Civ. Proc. 657(2)[Deering's] for jury misconduct, when new trial is granted under Code Civ. Proc. 657(6)[Deering's] for insufficiency of evidence; question is whether new trial may be limited to issue as to which evidentiary problem was found or must encompass all litigated issues. Many factors beyond adequacy of damage award are relevant to decision about whether verdict is product of compromise, and would be immaterial if deficiency furnishing basis for new trial order was alone enough to mandate comprehensive new trial. Lauren H. v. Kannappan (2002) 96 Cal. App. 4th 834, 839-840, 117 Cal. Rptr. 2d 484

There was no juror misconduct in jury turning on radio scanner during deliberations to check condition of battery, where by turning on scanner and observing its operation, jury merely used it according to its nature to aid them in weighing evidence and reaching conclusion on controverted matter. People v. Baldine (2001) 94 Cal. App. 4th 773, 778, 114 Cal. Rptr. 2d 570

Party's constitutional right to have his or her case decided by jury does not include right to compel jurors to discuss issues which they have chosen to decide without discussion. Vomaska v. City of San Diego (1997) 55 Cal. App. 4th 905, 911, 69 Cal. Rptr. 2d. 492

While verdict should be result of sound judgment, dispassionate consideration, and conscientious reflection, and jury should, if necessary, deliberate patiently and long on issues which have been submitted to them, yet, when law does not positively prescribe length of time jury shall consider their verdict, they may render valid verdict without retiring, or on very brief deliberation after retiring, although trial court may, in its discretion, cause jury to reconsider case if their decision is so hasty as to indicate flippant disregard of their duties. Vomaska v. City of San Diego (1997) 55 Cal. App. 4th 905, 913, 69 Cal. Rptr. 2d. 492

-- --Juror Affidavits

Although jurors may testify to overt acts to impeach jury verdict (that is, statements, conduct, conditions, or events open to sight, hearing, and other senses and thus subject to corroboration), jurors are not permitted to testify to subjective reasoning processes of individual jurors; deliberative error in jury's collective mental process consist of confusion, misunderstanding, and misinterpretation of the law. Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 1683, 12 Cal. Rptr. 2d 279

New trial as properly denied if attempted impeachment of verdict rests solely on attack on jury's subjective mental processes in reaching verdict. Ford v. Bennacka (1990) 226 Cal. App. 3d 330, 336, 276 Cal. Rptr. 513

Affidavits showing that jurors may have relied on BAJI instruction that judge admonished jurors not to apply to particular defendant does not create grounds for new trial because affidavits delved into subjective concerns of jurors during their deliberations and, furthermore, affidavits did not support contention that jury collectively and intentionally disregarded instructions as given. DiRosario v. Havens (1987) 196 Cal. App. 3d 1224, 1233-1235, 242 Cal. Rptr. 423

Juror's affidavits as required to state overt facts that can be objectively proved and not subjective mental processes that cannot be corroborated. De Vera v. Long Beach Pub. Transportation Co. (1986) 180 Cal. App. 3d 782, 792-795, 225 Cal. Rptr. 789 ; People v. Turner (1971) 22 Cal. App. 3d 174, 183-184, 99 Cal. Rptr. 186 ; Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal. App. 3d 378, 383, 94 Cal. Rptr. 887 ; see also Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal. App. 4th 318, 325-326, 29 Cal. Rptr. 2d 330 , citing Ford v. Bennacka (1990) 226 Cal. App. 3d 330, 336, 276 Cal. Rptr. 513 ; Maxwell v. Powers (1994) 22 Cal. App. 4th 1596, 1605, 28 Cal. Rptr. 2d 62 , citing Ford v. Bennacka (1990) 226 Cal. App. 3d 330, 336; 276 Cal. Rptr. 513

Questioning of jurors by judge in connection with motion for new trial on grounds of juror misconduct is error because application for new trial must be on basis of affidavits; Evid. Code 1150[Deering's] , dealing with inquiry into validity of verdict, does not alter traditional rule against juror impeachment of verdict; trial judge's inquiry into jurors' thought process in connection with motion for new trial on grounds of juror misconduct is reversible error. Maple v. Cincinnati, Inc. (1985) 163 Cal. App. 3d 387, 392, 396, 209 Cal. Rptr. 451

Affidavit of involved juror denying prejudice is sufficient to support negative finding as to jury misconduct. Tillery v. Richland (1984) 158 Cal. App. 3d 957, 205 Cal. Rptr. 191

Transient comments made in heat of discussion during deliberations without evidence of context in which comments were made is not proper subject of attack on verdict; affidavits relating to lack of analysis of evidence by jury, individual jurors' true intent as to what verdict should be, and foreperson's restriction of discussion during deliberation as involving jury's mental processes and therefore prohibited under Evid. Code 1150[Deering's] . Tillery v. Richland (1984) 158 Cal. App. 3d 957, 205 Cal. Rptr. 191

Conclusionary declaration of one juror, not offered by plaintiff to demonstrate improper influence on verdict under Evid. Code 1150(a)[Deering's] , but to attack validity of jury poll and to show mental processes of jurors, is not sufficient to impeach verdict. Bossi v. State of California (1981) 119 Cal. App. 3d 313, 318, 174 Cal. Rptr. 93

Use of jurors' declarations to impeach verdict is improper unless used to disclose objectively ascertainable overt acts by jury. Drust v. Drust (1980) 113 Cal. App. 3d 1, 9, 169 Cal. Rptr. 750

Affidavits mandatory and testimony of subpoenaed jurors insufficient. Linhart v. Nelson (1976) 18 Cal. 3d 641, 644-645, 134 Cal. Rptr. 813, 557 P.2d 104

Trial court's determination based on conflicting affidavits as not disturbed on appeal. Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200

Jurors' affidavits as admissible to show whether or not jurors agreed to be bound by chance or quotient verdict. Bardessono v. Michaels (1970) 3 Cal. 3d 780, 794, 91 Cal. Rptr. 760, 478 P.2d 480 ; Will v. Southern Pac. Co. (1941) 18 Cal. 2d 468, 477, 116 P.2d 44

Affidavits of jurors are permitted in only two situations to impeach verdicts: (1) where jury has resorted to chance [ Code Civ. Proc. 657(2)[Deering's] ]; and (2) bias or disqualification of juror that has been concealed by false answers on voir dire; affidavits are not permitted to explain or interpret verdicts. Campbell v. Zokelt (1969) 272 Cal. App. 2d 315, 319, 77 Cal. Rptr. 561

Affidavits accepted as to occurrences during trial and deliberations showing prejudice in mind of juror which prevent that juror from acting impartially where bias was concealed on voir dire. People ex rel. Dept. of Pub. Wks v. Curtis (1967) 255 Cal. App. 2d 378, 389, 63 Cal. Rptr. 138

-- --Concealment of Bias

Failure of jurors to affirmatively respond to generalized voir dire questions asked of assembled group of potential jurors does not amount to concealment of bias when jurors' silence was only evidence of actual bias presented. Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 408, 185 Cal. Rptr. 654, 650 P.2d 1171

Juror's intentionally lying about bias on voir dire constitutes misconduct, but to find misconduct when concealment of bias is unintentional and result of misunderstanding or forgetfulness is clearly excessive. Jutzi v. County of Los Angeles (1987) 196 Cal. App. 3d 637, 655, 242 Cal. Rptr. 74 (declining to follow rule promulgated in People v. Diaz (1984) 152 Cal. App. 3d 926, 932, 200 Cal. Rptr. 77 , that even inadvertent failure to reveal strong potential of juror bias constitutes misconduct)

Misconduct for juror to state, in presence of other jurors during field trip, that whole thing was farce, and to discuss matters not in evidence during deliberation, and to refuse to deliberate in same room as other jurors because of altercation with forewoman. Andrews v. County of Orange (1982) 130 Cal. App. 3d 944, 955-960, 182 Cal. Rptr. 176 (disapproved on other grounds in People v. Nesler 16 Cal. 4th 561, 582 n.5, 66 Cal. Rptr. 2d 454, 941 P.2d 87 )

Bias existing at time of voir dire is inferable from utterances in jury room; negative answer is capable of being indicated by silence, thus concealing bias. Smith v. Covell (1980) 100 Cal. App. 3d 947, 955, 161 Cal. Rptr. 377 (concealed intent to disregard instructions regarding husband's cause of action for loss of consortium as misconduct warranting reversal of verdict and new trial)

Misconduct of jury as including improper remarks or suggestions of jurors in expressing opinion on issue of case before it was submitted to them. City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 434, 82 Cal. Rptr. 1

Juror's statement at recess showing lack of impartiality is misconduct when juror stated ability to keep open mind during voir dire. Deward v. Clough (1966) 245 Cal. App. 2d 439, 443-445, 54 Cal. Rptr. 68

-- --Prejudicial Communication

Misconduct of jury includes improper communication with parties. Wright v. Eastlick (1899) 125 Cal. 517, 520, 58 P. 87

Not improper for juror to think about case outside presence of other jurors or to write down those thoughts and read them to other jurors when they resume deliberations. Bormann v. Chevron USA, Inc. (1997) 56 Cal. App. 4th 260, 262-263, 65 Cal. Rptr. 2d 321

Misconduct is nonprejudicial where witness improperly questioned by juror refuses to answer or converse. City of Los Angeles v. Lowensohn (1976) 54 Cal. App. 3d 625, 636-638, 127 Cal. Rptr. 417

Communication between witness and juror is not grounds for grant of new trial in absence of showing that juror was influenced by the communication to the prejudice of the moving party. City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 427-428, 82 Cal. Rptr. 1

Mere communciation, such as social greeting, between witness and juror is not a ground for setting aside verdict in absence of showing that juror influenced by communication. City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 427-428, 82 Cal. Rptr. 1

Prejudging case by juror constitutes misconduct warranting new trial. Deward v. Clough (1966) 245 Cal. App. 2d 439, 444, 54 Cal. Rptr. 68

-- --New Evidence

Expression by juror of opinion on technical subject, in form of juror's own claim to expertise or specialized knowledge of matter at issue, is misconduct when explicitly based on specialized information obtained from outside sources, although not when opinion is based on evidence received at trial. In re Malone (1996) 12 Cal. 4th 935, 963, 50 Cal. Rptr. 2d 281, 911 P.2d 468 (opinion about polygraph evidence based on juror's own study of subject)

Pursuit of nighttime paralegal studies by juror does not constituting misconduct, even though juror inadvertently attended one class in which subject of arguably related piece of litigation was mentioned. Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 409, 185 Cal. Rptr. 654, 650 P.2d 1171

Misconduct of jury in wrongful death action is evidenced by its consideration of improper matters, such as income taxes on verdict, attorney's fees to be taken out of verdict, and the general benefit to government and public, the jurors included, through taxes levied on verdict; such may support motion for new trial not only based on jury misconduct but also on excessive damages. Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 166, 171, 209 Cal. Rptr. 427

It is not jury misconduct when one juror prepares diagram in jury room based solely on evidence received in court. Wagner v. Doulton (1980) 112 Cal. App. 3d 945, 950, 169 Cal. Rptr. 550

Juror misconduct invalidates verdict when medical testimony was in conflict and juror interjected evidence based on his own experience concerning medical aspects of case. Smith v. Covell (1980) 100 Cal. App. 3d 947, 954, 161 Cal. Rptr. 377

Misconduct of jury includes consideration of matters not in evidence and discussion outside court of matters under investigation. Kritzer v. Citron (1950) 101 Cal. App. 2d 33, 36, 224 P.2d 808

-- --Chance Verdict

Chance verdict described. Bardessono v. Michels (1970) 3 Cal. 3d 780, 794, 91 Cal. Rptr. 760, 478 P.2d 480

Quotient verdict is chance verdict if jurors agree that the damages will be determined by taking average of each juror's estimate, provided that jurors present quotient as their verdict without further discussion. Fredrics v. Paige (1994) 29 Cal. App. 4th 1642, 1646, 35 Cal. Rptr. 2d 246

Verdict is not chance verdict if jurors averaged their preliminary damages figures and then either discussed quotient or took a vote on whether it should be their verdict. Fredrics v. Paige (1994) 29 Cal. App. 4th 1642, 1646-1647, 35 Cal. Rptr. 2d 246 ; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200

Quotient verdict distinguished from chance verdict. Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200

No inference of agreement regarding chance verdict where sum agreed upon is not the average of damages favored by each juror. Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 436, 89 Cal. Rptr. 514

-- --Presumption of Prejudice

Even if jurors committed misconduct by watching television show relating to aircraft safety during recess from deliberations in wrongful death case against aircraft manufacturer, and even if presumption of prejudice thereby arose, presumption is rebutted when evidence of misconduct was not convincing, nature of misconduct was not serious because it did not reveal deliberate act by jurors violating court's instructions to confine consideration of case to evidence heard in court, and probability of actual prejudice to moving party was highly unlikely. Elsworth v. Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 557-558, 208 Cal. Rptr. 874, 691 P.2d 630

Presumption of prejudice arising from juror misconduct is rebutted by affirmative evidentiary showing that prejudice does not exist or by examination of entire record to determine whether there is reasonable probability of actual harm to complaining party resulting from misconduct. Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 416-417, 185 Cal. Rptr. 654, 650 P.2d 1171

In products liability action based on rollover of Ford Bronco, trial court erred in granting new trial on issue of punitive damages, in which one juror commented to others about segment of television news magazine show concerning defendant's conduct with regard to other types of Fords and another juror commented on a dream she had in which Ford Bronco killed her children and children of other jurors, where trial court applied only presumption that jury misconduct is prejudicial and, without any evidentiary basis for doing so, failed to consider and apply presumption jurors have followed instructions they were given, and where in reviewing court's independent review of issues of prejudice and rebuttal of presumption of prejudice, reviewing court concluded record provided no basis to reject normal presumption jury followed instructions. Romo v. Ford Motor Co. (2002) 99 Cal. App. 4th 1115, 1127-1137, 122 Cal. Rptr. 2d 139

Presumption of prejudice from juror reading newspaper article about case and discussing it with other jurors as not rebutted because final tally of vote was nine to three and, further, previous trial had resulted in hung jury. Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1680, 25 Cal. Rptr. 2d 667

Presumption of prejudice arising from juror's communication of information from sources outside the evidence is not rebutted when uncontroverted in close case. Lankster v. Alpha Beta Co. (1993) 15 Cal. App. 4th 678, 683, 18 Cal. Rptr. 2d 923

Not every minor infraction of rules by juror mandates new trial; if conduct is of such nonprobative nature that it could not in nature of things have prevented party from having fair trial, verdict should not be set aside. Locksley v. Ungureanu (1986) 178 Cal. App. 3d 457, 461, 223 Cal. Rptr. 737

Occurrence of jury misconduct raises rebuttable presumption of prejudice. Tapia v. Barker (1984) 160 Cal. App. 3d 761, 765-767, 206 Cal. Rptr. 803

-- --``No Knowledge'' Affidavits

``No knowledge'' affidavits showing neither moving party nor counsel aware of jury misbehavior until after verdict returned establishes nonreliance on errors known prior to jury's verdict. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132

``No knowledge'' affidavits is not required when alleged jury misconduct of such a nature that it could not have been known to party until after verdict rendered. Krouse v. Graham (1977) 19 Cal. 3d 59, 82, 137 Cal. Rptr. 863, 562 P.2d 1022

Although submitted by one person, ``no knowledge'' affidavits must establish nonreliance on known errors by both moving party and attorney. People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 599, 128 Cal. Rptr. 697

--Newly Discovered Evidence

On motion for new trial on ground of newly discovered evidence, moving party is required to show that he or she exercised reasonable diligence to discover and produce evidence at trial; motion as properly denied on moving party's failure to show that purported ``newly discovered'' evidence could not have been produced at trial with reasonable diligence. In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 153-154, 242 Cal. Rptr. 649

Where party knows of an important witness and materiality of his testimony, but is unable to produce him at time of trial, due dili-gence as normally requiring party to move for continuance and failure to do so as justifying denial of subsequent new trial based on discovery of new evidence; but where continuance would not have been granted because of party's inability to show nature or materiality of absent witness's possible testimony, failure to ask for continuance as not constituting lack of due diligence. Anderson v. Howland (1970) 3 Cal. App. 3d 380, 383, 83 Cal. Rptr. 308

Essential elements for grant of new trial on ground of newly discovered evidence as (1) evidence newly discovered, (2) reasonable diligence exercised in discovery and production, and (3) evidence material to movant's case. National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal. App. 3d 131, 137, 186 Cal. Rptr. 165 ; Horowitz v. Noble (1978) 79 Cal. App. 3d 120, 137, 144 Cal. Rptr. 710

In medical malpractice wrongful death action, discovery of autopsy addendum which significantly contradicts defense experts, after denial of motion for new trial following defense verdict, as ground for writ of error coram nobis remanding case to trial court to reconsider motion for new trial in light of newly discovered evidence. Rollins v. City & County of San Francisco (1947) 37 Cal. App. 3d 145, 149, 112 Cal. Rptr. 168

Party moving for new trial on ground of newly discovered evidence as required to show by affidavit that he or she did not know of evidence and could not by diligence have obtained it. Bennett v. Pacific Greyhound Lines (1956) 147 Cal. App. 2d 74, 75, 304 P.2d 721

--Verdict Against Law

Trial court is empowered under Code Civ. Proc. 657(6)[Deering's] to consider new legal challenges not previously raised before verdict or judgment when court is ruling on motion for new trial. Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App. 4th 10, 15-16, 1 Cal. Rptr. 2d 805

In case of inconsistent verdicts, court of appeal is required to set aside both verdicts on reviewing order granting limited new trial. Manor Investment Co. v. F. W. Woolworth Co. (1984) 159 Cal. App. 3d 586, 597, 206 Cal. Rptr. 37 (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 )

Granting new trial on ground that verdict against law as authorized only where there is no substantial evidence to sustain the verdict. Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 906-907, 215 Cal. Rptr. 679, 701 P.2d 826 ; Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 56, 150 Cal. Rptr. 722

Verdict as against law when it is contrary to correct jury instructions. Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 958, 11 Cal. Rptr. 210

When new trial is granted because of instruction which really was correct, there is no legal ground on which new trial could have been ordered. Fakhoury v. Magner (1972) 25 Cal. App. 3d 58, 64, 101 Cal. Rptr. 473

Granting of motion for new trial pursuant to Code Civ. Proc. 657(6)[Deering's] , relating to verdict against law, as not supported by court's erroneous conclusion that special verdict was in conflict with general verdict. McCown v. Spencer (1970) 8 Cal. App. 3d 216, 228-230, 87 Cal. Rptr. 213

Verdict or decisions as against law when there is a failure to find on a material issue, where the findings are irreconcilable, and where the evidence is insufficient in law and without conflict on any material point. Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 789, 342 P.2d 903 (decided when findings existed under Code Civ. Proc. 632[Deering's] )

Hearing of Motion

Referee is appropriate decisionmaker to determine motion for new trial under Code Civ. Proc. 656[Deering's], 661[Deering's] (determination of motion by judge who presided at trial, if available) when trial was heard by referee pursuant to stipulation for general reference. Clark v. Rancho Santa Fe Assn. (1989) 216 Cal. App. 3d. 606, 625, 265 Cal. Rptr. 41

Although entitled to a hearing, one does not have right to orally argue motion for new trial. Kimmel v. Keefe (1970) 9 Cal. App. 3d 402, 408, 88 Cal. Rptr. 47

Notice of hearing and hearing is mandatory unless waived by parties. Avery v. Associated Seed Growers, Inc. (1963) 211 Cal. App. 2d 613, 627, 27 Cal. Rptr. 625

Jurisdiction

Court is without jurisdiction to hear second motion for new trial after issuing minute order denying original motion for new trial. Wenzoski v. Central Banking System, Inc. (1987) 43 Cal. 3d 539, 542, 237 Cal. Rptr. 167, 136 P.2d 753

Mistrial and New Trial Distinguished

Distinction between mistrial and new trial. Estate of Bartholomae (1968) 261 Cal. App. 2d 839, 842, 68 Cal. Rptr. 332

New Trial on Particular Issues

When trial court has reviewed jury's special verdicts and properly concluded that damage award is incorrect only as it reflects improper apportionment of liability, order is improper if it grants new trial on all issues; order must limit new trial to issue of apportionment of liability. Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal. 3d 442, 457, 198 Cal. Rptr. 155, 673 P.2d 743

If limited new trial might be prejudicial to either party, court must grant complete new trial. Liodas v. Sahadi (1977) 19 Cal. 3d 278, 286, 136 Cal. Rptr. 635, 562 P.2d 316

In action by store patron for battery, false imprisonment and malicious prosecution, trial court properly granted retrial on false imprisonment and malicious prosecution claims, where first jury found for patron on battery claim but was unable to agree on verdict on false imprisonment and malicious prosecution claims, and where false imprisonment and malicious prosecution claims raised issues separate and distinct from battery claim. Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, 165-166, 99 Cal. Rptr. 2d 435

Although retrial may be limited to issue of damages when evidence of liability is overwhelming, new trial on all issues is required when evidence on liability is in sharp conflict, and award is manifestly so inadequate as to suggest compromise verdict. Wilson v. R.D. Werner Co. (1980) 108 Cal. App. 3d 878, 883, 166 Cal. Rptr. 797

Rules governing new trials on limited issues. Baxter v. Phillips (1970) 4 Cal. App. 3d 610, 616-617, 84 Cal. Rptr. 609

Court properly grants new trial on certain issues raised in case where issues are distinct and separable. Karallis v. Shenas (1950) 97 Cal. App. 2d 280, 283, 217 P.2d 436

Notice of Intention to Move

Prevailing party's attorney's mailing to opposing counsel of photocopy of file-stamped and dated judgment started time limit for serving notice of intention to move for new trial under Code Civ. Proc. 659[Deering's] , so that service of notice of intention to move for a new trial 26 days later was untimely, where service of written notice of entry of judgment and filing of original notice of entry and proof of service complied with section 659, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067

Purpose of notice of intention to move for new trial is to give adverse party reasonable opportunity to oppose motion on its merits. Nichols v. Hast (1965) 62 Cal. 2d 598, 600, 43 Cal. Rptr. 641, 400 P.2d 753

Mailing of entered judgment to adverse party, with accompanying dated cover letter stating that conformed copy of judgment was enclosed, is sufficient to trigger 15-day time limit of Code Civ. Proc. 659[Deering's] , even though proof of service of copy of judgment was never mailed or filed. Ramirez v. Moran (1988) 201 Cal. App. 3d 431, 436-437, 247 Cal. Rptr. 117

Notice of intention filed after 15-day period provided by Code Civ. Proc. 659[Deering's] is invalid and does not extending time for filing notice of appeal from judgment beyond normal 60 days. In re Marriage of Patscheck (1986) 180 Cal. App. 3d 800, 802, 225 Cal. Rptr. 787

Mailing conformed copy of judgment showing date it was filed with clerk (or in counties using judgment book rather than file of actions and microfilm copy, date it was entered) starts 15-day period for giving notice of intention to move for new trial; Code Civ. Proc. 664.5[Deering's] procedures for prevailing party to give notice of entry of judgment do not govern sufficiency of notice for purposes of Code Civ. Proc. 659[Deering's] . Tri-County Elevator Co. v. Superior Court (1982) 135 Cal. App. 3d 271, 276-277, 185 Cal. Rptr. 208

Trial court has no power to grant motion for new trial on ground not specified in notice of intention to move, and movant's subsequently filed memorandum of points and authorities in support of motion are ineffective to raise additional ground, because memorandum was not filed within statutory time limit for filing notice, and amendments to defective notice must be filed within statutory period. Wagner v. Singleton (1982) 133 Cal. App. 3d 69, 72-74, 183 Cal. Rptr. 631

Requirements of motion for new trial. Gaskill v. Pacific Hosp. of Long Beach (1969) 272 Cal. App. 2d 128, 130, 77 Cal. Rptr. 373

Form of motion for new trial as having some relevance in construction of order made in response to it. Butler v. Schefers (1966) 245 Cal. App. 2d 330, 331, 53 Cal. Rptr. 869

The court, in ruling on motion for new trial, as confined to grounds specified in the notice. Van Ostrum v. State of California (1957) 148 Cal. App. 2d 1, 4, 306 P.2d 44

Premature Motion

Litigants as without power to vest court with jurisdiction to hear and determine premature motion for new trial. City of Santa Barbara v. Superior Court (1966) 240 Cal. App. 2d 612, 614, 49 Cal. Rptr. 798

Review--Appealable Orders

No appeal from trial court's denial of motion for new trial; ruling as reviewable only through appeal of judgment. Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 608, 248 P.2d 910



An order for a new trial is not proper until the action has been prosecuted to a point where all the issues have been determined. Cobb v. University of So. California (1996) 45 Cal. App. 4th 1140, 1144, 53 Cal. Rptr. 2d 71

Denial of motion for new trial is nonappealable order. Jutzi v. County of Los Angeles (1987) 196 Cal. App. 3d 637, 643 n.2, 242 Cal. Rptr. 74

Order granting new trial as appealable pursuant to Code Civ. Proc. 657[Deering's], 904.1[Deering's] . Herman v. Shandor (1970) 8 Cal. App. 3d 476, 480, 87 Cal. Rptr. 443

--Discretion of Reviewing Court

Reviewing court as not authorized to modify order granting new trial on all issues to one granting limited new trial unless such order should have been made as matter of law. Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal. 3d 442, 455, 198 Cal. Rptr. 155, 673 P.2d 743

Determination of motion for new trial as resting so completely within court's determination that action will not be disturbed unless manifest and unmistakable abuse of discretion clearly appears. Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal. 3d 379, 387, 93 Cal. Rptr. 769, 482 P.2d 681 ; Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 858, 236 Cal. Rptr. 778 ; Candido v. Huitt (1984) 151 Cal. App. 3d 918, 923-924, 199 Cal. Rptr. 41

In reviewing denial of motion for new trial based on jury misconduct, appellate court is constitutionally obligated to review entire record, including evidence, and to determine independently whether act of misconduct, if it occurred, prevented complaining party from having fair trial. Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 1745, 286 Cal. Rptr. 435

Conditional order under Code Civ. Proc. 662.5[Deering's] for new trial on ground of excessive damages is reversible only if there is no substantial basis in record for any of reasons stated by trial court. Gerard v. Ross (1988) 204 Cal. App. 3d 968, 979, 251 Cal. Rptr. 605

Reviewing court is able to consider merits of motion for new trial that was denied by operation of law in same manner as motion expressly denied by trial court, even if appellant caused failure to have motion heard within statutory time period or motion is based on affidavits that trial court did not pass on. In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 152-153, 242 Cal. Rptr. 649

In reviewing ruling on motion for new trial on ground of insufficiency of evidence, appellate court does not reweigh evidence, but confines its review to determination of whether or not there is substantial evidence, contradicted or uncontradicted, that supports jury's conclusion. Kolling v. Dow Jones & Co. (1982) 137 Cal. App. 3d 709, 725-726, 187 Cal. Rptr. 797

On reviewing trial court's denial of motion for new trial, appellate court's scope of inquiry as limited to whether or not clear abuse of trial court's discretion occurred. Byrne v. City & County of San Francisco (1980) 113 Cal. App. 3d 731, 739, 170 Cal. Rptr. 302

In reviewing trial court's order granting motion for new trial based on failure to give jury instruction, question as being not whether failure to give instruction was prejudicial error but whether it was sufficiently misleading so that trial court, having seen and heard witnesses, could find that instructions were improper. Kimball v. Whetzel (1970) 10 Cal. App. 3d 836, 842, 89 Cal. Rptr. 373

Appellate court as not blindly affirming judgment of trial court because there is some evidence to support it where comments of trial judge indicate that he misconceived his duty at hearing on motion for new trial. Lippold v. Hart (1969) 274 Cal. App. 2d 24, 26, 78 Cal. Rptr. 833

Appellate court as without power to revive trial court's jurisdiction to rule on motion for new trial that has lapsed on expiration of statutory period and when denial of motion for new trial was erroneous reversal of judgment as required. Lippold v. Hart (1969) 274 Cal. App. 2d 24, 26-27, 78 Cal. Rptr. 833

Trial court's order denying motion for new trial on ground of insufficiency of evidence as not subject to being disturbed on appeal in absence of abuse of discretion. Sherwood v. Rossini (1968) 264 Cal. App. 2d 926, 932, 71 Cal. Rptr. 1

Appellate court as powerless to order new trial on ground of insufficiency of evidence because written order granting new trial does not specify that ground although record discloses that trial judge would have granted motion on that ground. Espinoza v. Rossini (1966) 247 Cal. App. 2d 40, 51, 55 Cal. Rptr. 205

--Motion Granted on Erroneous Ground

Fact that trial court granted motion for new trial on erroneous ground does not preclude appellate court from affirming order if order can be sustained on other grounds set forth in motion. Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1217-1218, 238 Cal. Rptr. 130

--Partial New Trial

When parties appeal from partial grant of new trial, but judgment resulting from denial of new trial on remaining cause of action has become final, appellate court as permitted to order new trial as to all causes of action when verdicts are illegal and trial court could have granted new trial as to all causes. Manor Investment Co. v. F. W. Woolworth Co. (1984) 159 Cal. App. 3d 586, 597, 206 Cal. Rptr. 37 (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 )

If party moves for new trial on all issues and is granted new trial only on certain issues, that party as having a right of appeal from the order. Ferraro v. Pacific Fin. Corp. (1970) 8 Cal. App. 3d 339, 355, 87 Cal. Rptr. 226

--Rehearing of Motion

Remand to trial court for rehearing of motion for new trial as required where pending appeal, former case law, which might have led to different result, is reversed. Clemens v. Regents of the University of California (1970) 8 Cal. App. 3d 1, 18-19, 87 Cal. Rptr. 108

--Reversal on Appeal

If order granting new trial reversed on appeal, original judgment is reinstated. Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 910, 215 Cal. Rptr. 679, 701 P.2d 826 ; La Manna v. Stewart (1975) 13 Cal. 3d 413, 425, 118 Cal. Rptr. 761, 530 P.2d 1073

When order granting new trial reversed on appeal, if moving party did not make a protective cross appeal from judgment, judgment becomes final on reinstatement. Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 910, 215 Cal. Rptr. 679, 701 P.2d 826 ; Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal. 3d 689, 699, 106 Cal. Rptr. 1, 505 P.2d 193

If question presented in motion for new trial is purely one of law and there is any substantial evidence to support judgment, new trial order as required to be reversed unless some error of law is actually demonstrated; rule that on appeal every intendment is in favor of order granting new trial as not applicable. Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 951, 111 Cal. Rptr. 210

--Review of Entire Cause

On appeal from order granting new trial, reviewing court could not conclude as matter of law that trial court failed to conduct examination of entire cause as required by Cal. Const., art. VI, 13[Deering's] , because, although trial judge may not have been able to read entire transcript, he presided over entire eight-day trial and ruled on motion less than two months after entry of judgment. Maher v. Saad (2000) 82 Cal. App. 4th 1317, 1324, 99 Cal. Rptr. 2d 213

--Waiver

Claim of attorney misconduct as entitled to no consideration on appeal unless record shows timely and proper objection and request that jury be admonished; right of review of order denying new trial not waived even though request for admonition made only after last instance of alleged misconduct, if objection made to all improper questions and claim is made that cumulative effect of repeated instances of misconduct was prejudicial. Dominguez v. Pantalone (1989) 212 Cal. App. 3d 201, 211-212, 260 Cal. Rptr. 431

Service and Filing

Notice of intention to move for new trial as served and filed after jury verdict. Estate of Green (1944) 25 Cal. 2d 535, 541, 154 P.2d 692

If order granting new trial issued more than 60 days after filing of notice, court's power to grant new trial as lapsing and motion as effectively denied; result as not avoided by entry of nunc pro tunc order purporting to grant new trial after court had lost jurisdiction. Worth v. Asiatic Transpacific, Inc. (1979) 93 Cal. App. 3d 849, 853-854, 156 Cal. Rptr. 110

General rule of Code Civ. Proc. 12a[Deering's] , providing that time in which any act provided by law is to be done is computed by excluding the first day and including the last, as applying to notices of intention to move for new trial, and notice filed on the 15th day from date that notice of entry of judgment mailed as timely. LaBorne v. Mulvany (1974) 43 Cal. App. 3d 905, 909-911, 119 Cal. Rptr. 596

Clerk as properly refusing to file notice of intention to move for new trial until receipt of filing fee. Kientz v. Harris (1953) 117 Cal. App. 2d 787, 790, 257 P.2d 41

Specification of Grounds and Reasons in Order--Assistance of Counsel Forbidden

Although court cannot direct attorney to prepare an order granting new trial or specification of reasons, counsel may assist court by calling any deficiency to its attention within 10-day period for filing specification of reasons so that court may correct order. Mercer v. Perez (1968) 68 Cal. 2d 104, 123-124 n. 8, 65 Cal. Rptr. 315, 436 P.2d 315

Amended order for new trial is not in compliance with Code Civ. Proc. 657[Deering's] when one of specifications was adopted verbatim from defense counsel's specification of reasons. Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 168-170, 209 Cal. Rptr. 427

New trial order is not vitiated by court's use of some language used by counsel in brief supporting new trial motion. Eltolad Music, Inc. v. April Music, Inc. (1983) 139 Cal. App. 3d 697, 706-708, 188 Cal. Rptr. 858

Order adopting specification of reasons voluntarily drafted by counsel as insufficient since court required to personally prepare specification of reasons under Code Civ. Proc. 657[Deering's] . Oberstein v. Bisset (1976) 55 Cal. App. 3d 184, 189, 127 Cal. Rptr. 413

Court as not complying with Code Civ. Proc. 657[Deering's] where trial court's minute order referred to its oral statement of reasons made during hearing and order was prepared by counsel. Worden v. Gentry (1975) 50 Cal. App. 3d 600, 605, 123 Cal. Rptr. 496

Judge must personally prepare specification of reasons and order incorporating by reference written argument of counsel for moving party as insufficient. Devine v. Murrieta (1975) 49 Cal. App. 3d 855, 860, 122 Cal. Rptr. 847

Penalty imposed where order for new trial and supporting reasons prepared by attorney for prevailing party rather than by court as expressly required by Code Civ. Proc. 657[Deering's] . S.F. Bay Area Rapid Transit Dist. v. McKeegan (1968) 265 Cal. App. 2d 263, 267-271, 71 Cal. Rptr. 204

--Correction of Specification of Reasons

Court as in excess of jurisdiction if attempting to correct its order or specification of reasons nunc pro tunc after the expiration of the 10-day period for filing a separate specification of reasons. Mercer v. Perez (1968) 68 Cal. 2d 104, 121, 65 Cal. Rptr. 315, 436 P.2d 315

--Excessive or Inadequate Damages

When motion for new trial granted on ground of excessive damages, specification of reasons as indicating respect in which evi dence dictated less sizable verdict, but different concern as applying when primary concern is amount of punitive damages awarded; in that case, specification as adequate when it makes reference to those aspects of trial proceedings that the court viewed as having improperly led jury to inflate its award. Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 932, 148 Cal. Rptr. 289, 582 P.2d 980 ; Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 822, 174 Cal. Rptr. 348

Same rules that apply to specification of reasons with respect to ground of insufficiency of evidence as applying to ground of excessive damages and court as required to state reasons and not ultimate facts to support grant of motion. Stevens v. Parke, Davis & Co. (1973) 9 Cal. 3d 51, 63, 107 Cal. Rptr. 45, 507 P.2d 653

Trial court has wider latitude in specifying reasons for granting new trial when issue is punitive damages rather than compensatory damages; order stating that punitive damages award does not bear reasonable relationship to value of total assets of defendant and does not bear reasonable relationship to defendant's annual income is adequate specification of reasons for granting new trial on grounds of excessive punitive damages. Gerard v. Ross (1988) 204 Cal. App. 3d 968, 978 n.6, 979, 251 Cal. Rptr. 604

New trial limited to damages is proper remedy when jury improperly apportioned nondivisible damages between codefendants. Marshall v. Brown (1983) 141 Cal. App. 3d 408, 415, 190 Cal. Rptr. 392

Specification of reasons as adequate when punitive damages were court's primary concern, and reasons included ratio of punitive damages to compensatory damages, amount punitive damages exceeded compensatory damages, and defendant's wealth and profit-generating capacity. Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 822, 174 Cal. Rptr. 348

Reasons for order granting new trial on ground of inadequate damages as adequately specified when court referred to portions of record containing testimony of extent of plaintiff's medical expense, lost earnings, impairment of earning capacity, and pain and suffering. Sanchez v. Hasencamp (1980) 107 Cal. App. 3d 935, 940-942, 166 Cal. Rptr. 118

In specification of reasons in order granting motion for new trial on ground of insufficiency of evidence where judge disbelieves witness or testimony, judge as required to state that he or she disbelieved witness because of demeanor or testimony, but as not required to attempt description of extra-record impressions such as bearing or expression of witness. Meiner v. Ford Motor Co. (1971) 17 Cal. App. 3d 127, 141, 94 Cal. Rptr. 702

--Insufficiency of Evidence

Where judge carefully and clearly set forth reasons why evidence was insufficient but failed to explicitly state ground of insufficiency of evidence, order granting new trial as affirmed since ground implied in stated reasons and court's intention made clear by order. Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal. 3d 706, 709-710, 106 Cal. Rptr. 28, 505 P.2d 220

Trial court's specification of reasons for granting motion on ground of insufficiency of evidence as not complying with requirements of Code Civ. Proc. 657[Deering's] where without identifying deficiencies in terms of evidence, record, or proof, specification simply reiterates statutory ground or is phrased as terms or issues or ultimate fact. Scala v Jerry Witt & Sons, Inc. (1970) 3 Cal. 3d 359, 367-370, 90 Cal. Rptr. 592, 475 P.2d 864

When stating reasons for grant of motion on ground of insufficient evidence, trial judge must briefly recite the respects in which he or she finds the evidence to be legally inadequate and must briefly identify the portion of the record that convinces the judge that the court or jury clearly should have reached a different decision. Mercer v. Perez (1968) 68 Cal. 2d 104, 116, 65 Cal. Rptr. 315, 436 P.2d 315

Written order granting motion for new trial but failing to specify insufficiency of evidence as ground thereof as unsustainable on that ground although intent of trial court to grant motion on that ground is clear. Malkasian v. Irwin (1964) 61 Cal. 2d 738, 744, 40 Cal. Rptr. 78, 394 P.2d 822

Provisions of Code Civ. Proc. 657[Deering's] requiring written statement of reasons for granting new trial were satisfied by written order attaching and incorporating hearing transcript in which trial judge stated that evidence did not support jury's finding of no negligence because testimony of defendant driver showed her negligence at least partially caused collision with plaintiff's vehicle. Twedt v. Franklin (2003) 109 Cal. App. 4th 413, 418-420, 134 Cal. Rptr. 2d 740

When ground for relief relied on is insufficiency of evidence, order granting new trial must briefly identify portion of record that convinces judge that court or jury clearly should have reached different verdict or decision. Candido v. Huitt (1984) 151 Cal. App. 3d 918, 923, 199 Cal. Rptr. 41

Trial court's statement that its ruling and reasons were directed solely to proximate cause is specific enough to meet requirement of Code Civ. Proc. 657[Deering's] ; it need not state why it found evidence insufficent in that area. Candido v. Huitt (1984) 151 Cal. App. 3d 918, 923-924, 199 Cal. Rptr. 41

Where there are two or more issues on which evidence exists to support jury verdict, order as required to specify reasons why evidence on each is insufficient. Previte v. Lockwood (1975) 48 Cal. App. 3d 976, 987, 122 Cal. Rptr. 194

Order granting new trial on ground of insufficiency of evidence and excessive damages after jury verdict for plaintiffs in action for breach of contract of distribution agreement as not satisfying requirement of Code Civ. Proc. 657[Deering's] where reasons stated insufficient. Aronowicz v. Nalley's, Inc. (1972) 30 Cal. App. 3d 27, 39-40, 106 Cal. Rptr. 424

Failure to specify reasons for granting new trial on ground of insufficiency of evidence [ Code Civ. Proc. 657[Deering's] ] as requiring reversal of order. McLaughlin v. City etc. of San Francisco (1968) 264 Cal. App. 2d 310, 314, 70 Cal. Rptr. 782

--Mandamus to Compel

Where judge fails to specify reasons for granting motion within 10 days after motion granted, party's remedy as writ of mandate ordering judge to specify reasons for granting motion within the 10-day period. LaBorne v. Mulvany (1974) 43 Cal. App. 3d 905, 916-917, 119 Cal. Rptr. 596

--Minute Order

Initial minute order entered in permanent minutes as determination of motion for new trial; written order subsequently prepared, signed, and filed as sufficient compliance with statutory requirements of Code Civ. Proc. 657[Deering's] . San Francisco Bay Area Rapid Transit Dist. v. Fremont Meadows, Inc. (1971) 20 Cal. App. 3d 797, 801-803, 97 Cal. Rptr. 898

--No Ground or Reason Specified

Where no ground or reasons specified in order granting new trial, burden on appeal as on movant to advance any grounds on which order should be affirmed. People ex rel. Dept. Pub. Wks. v. Hunt (1969) 2 Cal. App. 3d 158, 162, 82 Cal. Rptr. 546

--Oral Recital

Oral recital by court of reasons for granting motion for new trial as insufficient specification of reasons; court as required to state reasons in writing. La Manna v. Stewart (1975) 13 Cal. 3d 413, 422, 118 Cal. Rptr. 761, 530 P.2d 1073

--Specification of Reasons

New trial order was not deficient in its statement of reasons, as it adequately referred to evidence both to guide appellate court's review and to supply substantial basis for order. Romero v. Riggs (1994) 24 Cal. App. 4th 117, 124, 29 Cal. Rptr. 2d 219

Order for new trial on punitive damages was reversed because judge failed to state reasons; irrelevant that judge also gave reasons for ordering new trial on portion of compensatory damages. Stewart v. Truck Ins. Exchange (1993) 17 Cal. App. 4th 468, 484-485, 21 Cal. Rptr. 2d 338

Specification of reasons for granting new trial is sufficent if it makes record sufficiently precise to permit meaningful review; specifications are insufficient if they are simply couched in form of conclusions or statements of ultimate facts. Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 170, 209 Cal. Rptr. 427

When four out of five specified reasons for new trial are not adequately specified or supported by evidence, remaining reason is determinative, and order for new trial will be upheld. Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 173-174, 209 Cal. Rptr. 427 (jury misconduct alone as sufficient reason)

--Statement of Grounds

Failure of trial court to comply with statutory mandate that court must specify ground or grounds on which new trial is granted and court's reason or reasons for granting new trial on each ground stated [ Code Civ. Proc. 657[Deering's] ] does not prevent successful move on appeal to show that order should be affirmed on any one of the grounds presented to the trial court other than insufficiency of evidence to justify verdict. People ex rel. Dept. Pub. Wks. v. Hunt (1969) 2 Cal. App. 3d 158, 161-162, 82 Cal. Rptr. 546

Order granting new trial which does not specify unambiguously ground on which it is based is reversible. Hilts v. County of Solano (1968) 265 Cal. App. 2d 161, 177-178, 71 Cal. Rptr. 275

--Timeliness

Order granting motion for new trial more than 60 days after filing of notice of intention to move for new trial was void for lack of jurisdiction, where plaintiffs filed and served notice of motion and motion for new trial, court issued tentative ruling granting motion within 60 days but, after hearing oral argument, court issued final written decision confirming tentative ruling more than 74 days after filing. However, because trial court never entered final judgment and retained inherent authority to reconsider, correct, and change its interim orders, appellate court would direct trial court on remand to exercise its inherent constitutional authority to reconsider summary judgment order. Fischer v. First Int'l. Bank (2003) 109 Cal. App. 4th 1433, 1451-1452, 1 Cal. Rptr. 3d 162

Trial court properly denied motion for new trial on ground of lack of jurisdiction when motion was not heard within 60-day time period specified in Code Civ. Proc. 660[Deering's] . In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 151-152, 242 Cal. Rptr. 649

Time to file statement of reasons runs from date of conditional grant of new trial; failure to timely file requires reversal of grant of new trial and reinstatement of judgment. Ballou v. Master Properties No. 6 (1987) 189 Cal. App. 3d 65, 71-72, 234 Cal. Rptr. 264

If order granting new trial made on 60th day and 10 days thereafter specification of reasons filed by court, specification is timely since it must be filed 10 days after order but need not be filed within jurisdictional 60-day period for determination of the motion under Code Civ. Proc. 660[Deering's] . Fortenberry v. Weber (1971) 18 Cal. App. 3d 213, 221, 95 Cal. Rptr. 834

Court is required to state reasons for granting motion in order or in separate document filed 10 days after filing of the order; 10-day period runs from determination of motion rather than from filing of order. Swanson v. Western Greyhound Lines, Inc. (1969) 268 Cal. App. 2d 758, 759-760, 74 Cal. Rptr. 381

Time for Determination of Motion

Prevailing party's attorney's mailing to opposing counsel of photocopy of file-stamped and dated judgment started time limit for determining motion for new trial under Code Civ. Proc. 660[Deering's] , so that determination of motion 66 days later was untimely, where service of written notice of entry of judgment and filing of original notice of entry and proof of service complied with section 660, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067

Trial court erroneously granted new trial 61 days after plaintiffs served notice of entry of judgment on defendants by mail; Code Civ. Proc. 1013(a)[Deering's] does not extend deadline for court to act under Code Civ. Proc. 660[Deering's] , so that once 60 days had run, motion was denied by operation of law and court lacked jurisdiction to act on it. Westrec Marina Management, Inc. v. Jardine Ins. Brokers Orange County, Inc. (2000) 85 Cal. App. 4th 1042, 1047-1049, 102 Cal. Rptr. 2d 673

Court's ruling on motion for new trial is invalid under Code Civ. Proc. 660[Deering's] when made 63 days after defendant's filing of first notice of intention to move for new trial; fact that ruling was made within 60 days after clerk mailed notice of entry of judgment is not determinative since mailing of notice does not commence new 60-day period. Bunton v. Arizona Pacific Tanklines (1983) 141 Cal. App. 3d 210, 215-216, 190 Cal. Rptr. 295

Time limits set by Code Civ. Proc. 660[Deering's] are mandatory and jurisdictional; limits are not susceptible to change by consent, waiver, agreement, or acquiescence. Meskell v. Culver City Unified School Dist. (1970) 12 Cal. App. 3d 815, 825, 90 Cal. Rptr. 381

Trial court has discretion to delay determination of new trial motion to any date within 60-day period and further discretion to permit motion to be denied by operation of law if 60-day period expires without determination being made. Meskell v. Culver City Unified School Dist. (1970) 12 Cal. App. 3d 815, 823, 90 Cal. Rptr. 381

In determining whether 60-day jurisdictional period under Code Civ. Proc. 660[Deering's] within which trial court can rule on motions for new trial had run, permanent minutes, not rough minutes, fixed date on which order granting new trial was entered. Meskell v. Culver City Unified School Dist. (1970) 12 Cal. App. 3d 815, 821, 90 Cal. Rptr. 381

Sixty-day period within which trial court can rule on motions for new trial pursuant to Code Civ. Proc. 660[Deering's] is not extended under Code Civ. Proc. 1013(a)[Deering's] by service of notice of entry of judgment by mail. Meskell v. Culver City Unified School Dist. (1970) 12 Cal. App. 3d 815, 822-824, 90 Cal. Rptr. 381

Sixty-day period within which trial court can rule on motions for new trial pursuant to Code Civ. Proc. 660[Deering's] runs from date notice of entry of judgment was filed and served by adverse party and not from date notice of entry of judgment was given by clerk. Meskell v. Culver City Unified School Dist. (1970) 12 Cal. App. 3d 815, 824, 90 Cal. Rptr. 381

Code Civ. Proc. 660[Deering's] , imposing time limitation on when judge must pass on motion for new trial, does not prevent judge from making conditional order within time specified and specifying additional time for performance of condition, although additional time must be reasonable. Albertson v. Superior Court (1968) 265 Cal. App. 2d 812, 814-815, 71 Cal. Rptr. 553

Sixty-day period within which trial court retains jurisdiction under Code Civ. Proc. 660[Deering's] to rule on motion for new trial begins from date that notice of entry of judgment is given by clerk; order made after 60-day period purporting to rule on motion for new trial is in excess of court's jurisdiction and void. Brennan v. Spanach (1968) 266 Cal. App. 2d 350, 353, 72 Cal. Rptr. 211

Judicial function of granting new trial must be completed within 60-day period (or period as enlarged by holidays under Code Civ. Proc. 12a[Deering's] ); matter is jurisdictional and attempt by court to act later is futile, motion being denied by operation of law. Alberton v. Superior Court (1968) 265 Cal. App. 2d 812, 814, 71 Cal. Rptr. 553

Nunc pro tunc additions either of reasons or grounds for ordering new trial--even for clerical error--as prohibited more than 10 days after motion is determined in manner prescribed by Code Civ. Proc. 660[Deering's] . Fry v. Young (1968) 267 Cal. App. 2d 340, 347, 73 Cal. Rptr. 62

With Motion for Judgment Notwithstanding the Verdict

Motion for new trial as frequently made with motion for judgment notwithstanding verdict. Schroeder v. Auto Driveaway Co. (1974) 11 Cal. 3d 908, 919, 114 Cal. Rptr. 622

Court as unable to grant motion for judgment notwithstanding verdict with conditional order granting motion for new trial if for any reason judgment notwithstanding verdict is reversed on appeal. Widener v. Pacific Gas & Electric Co. (1977) 75 Cal. App. 3d 415, 436, 142 Cal. Rptr. 304

Trial judge who erroneously grants motion for judgment notwithstanding verdict as capable of determining sufficiency of evidence on motion for new trial since two motions decided on different standard and Code Civ. Proc. 629[Deering's] clearly contemplates that both motions should be decided by judge who presided at trial. Zambrana v. Standard Oil Co. (1972) 26 Cal. App. 3d 209, 215, 102 Cal. Rptr. 699

Order from which no appeal taken will not be reversed; motion for judgment notwithstanding verdict granted and motion for new trial granted only in event order granting judgment notwithstanding verdict reversed on appeal; where appeal confined to motion for judgment N.O.V. motion granting new trial will not be reversed. Aguirre v. Reno (1971) 19 Cal. App. 3d 284, 286, 96 Cal. Rptr. 924
Law Reviews
Note, Pre-Deliberations Juror Misconduct, Evidential Incompetence, and Juror Responsibility, 98 Yale L.J. 187 (1988)

Adams, Written Specification of Reasons for New Trial Orders, 64 Cal. L. Rev. 286 (1976)

Comment, Jurors' Impeachment of Verdict, 58 Cal. L. Rev. 259 (1970)

Leedy, New Trial: Demise of the Thirteenth Juror, 44 Cal. St. B.J. 380 (1969)

Note, New Trial Orders: The Erosion of Code of Civil Procedure Section 657[Deering's], 9[Deering's] Santa Clara Law. 119 (1968)

Note, California Restores Additur: Jehl v. Southern Pacific Co. (Cal 1967), 8 Santa Clara Law. 123 (1967)

Note, Civil Procedure: New Trial: Validity of Order Granting New Trial Unless Defendant Accepts Additur, 6 UCLA L. Rev. 441 (1959)

Comment, New Trial Motions After Rulings on Issues of Law, 10 Stan. L. Rev. 581 (1958)

Note, Trial Practice--New Trial--Excessive Damages--Interpretation of Section 657(5)[Deering's] of the Code of Civil Procedure, 12[Deering's] S. Cal. L. Rev. 501 (1939)
Text References
California Civil Procedure During Trial, ch. 25, Motions After Trial, 25.22 et seq. (Cal. C.E.B. 3d ed. 1995)

Witkin, California Procedure, vol. 8, Attack on Judgment in Trial Court, 18 et seq. (4th ed. 1997)

______________
Procedural Checklist
I Moving Party
A Preliminary Determinations
1. Ascertain whether any of the grounds for a motion for new trial exist [see also Introduction under Introduction under Grounds For Granting New Trial, above]. The grounds are as follows:

a. Irregularity in proceedings of the court, the jury, or the adverse party [ Code Civ. Proc. 657(1)[Deering's] ];

b. Any court order or abuse of discretion that prevented fair trial [ Code Civ. Proc. 657(1)[Deering's] ];

c. Jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ];

d. Accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ];

e. Newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ];

f. Excessive or inadequate damages [ Code Civ. Proc. 657(5)[Deering's] ];

g. Insufficient evidence to justify verdict [ Code Civ. Proc. 657(6)[Deering's] ];

h. Verdict or decision against law [ Code Civ. Proc. 657(5)[Deering's] ];

i. Error in law occurring at trial [ Code Civ. Proc. 657(6)[Deering's] ];

j. Lack of phonographic report of trial [ Code Civ. Proc. 657.1[Deering's] ]; or

k. Loss or destruction of bill of exceptions or statement of case due to public calamity [ Code Civ. Proc. 663.1[Deering's] ].

2. In nonjury trials, determine the desirability of requesting alternative relief under Code Civ. Proc. 662[Deering's] [see discussion in Introduction under Introduction under Alternative Relief in Lieu of Granting New Trial, above].

3. Decide whether or not stay in execution of judgment under Code Civ. Proc. 918a is desired. For a form for use in staying execution see Ch. 254, Executions and Enforcement of Judgments, General Introduction

4. Determine the availability of other alternative procedures by which the aggrieved party may obtain a judgment in his or her favor. Alternative procedures are as follows:

a. Judgment notwithstanding the verdict [ Code Civ. Proc. 629[Deering's] ; see Part I, above; see also Introduction under --With Motion for Judgment Notwithstanding Verdict Introduction under --With Motion for Judgment Notwithstanding Verdict --Introduction under --With Motion for Judgment Notwithstanding Verdict, above].

b. Motion for judgment on special finding [ Code Civ. Proc. 625[Deering's] ; see Ch. 326A, Jury Verdicts].

c. Motion to vacate [ Code Civ. Proc. 663[Deering's] ; see Part III, below].

d. Motion to correct clerical error or set aside void judgment [ Code Civ. Proc. 473[Deering's] ; see Ch. 318, Judgments; Ch. 489, Relief From Judgements].
B Preparation of Papers
1. Prepare notice of intention to move for new trial [Form 10] in the following number of copies:

a. Original for filing.

b. One copy for opposing party's attorney of record, or if none, for opposing party.

c. One copy for client, if desired.

d. One office copy.

e. Additional copies as desired.

2. Date and sign the notice of intention to move for new trial.

3. Prepare memorandum of points and authorities in the same number of copies as the notice of intention to move for new trial and attach a copy to each copy of the notice.

For a memorandum in support of a notice of intention to move for new trial, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial, pt. II (Matthew Bender).

4. If required, prepare the affidavit (or declaration [ Code Civ. Proc. 2015.5[Deering's] ]) in support of the motion for new trial [see Form 12]. For a form of affidavit that may be prepared in support of the motion, see Ch. 15, Affidavits, Certificates, and Declarations. Affidavits or declarations are required when the motion is made on the following grounds [ Code Civ. Proc. 658[Deering's] ]:

a. Irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[Deering's] ];

b. Court order or abuse of discretion that prevented either party from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ];

c. Jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ];

d. Accident or surprise, which ordinary prudence could not have guarded against [ Code Civ. Proc. 657(3)[Deering's] ]; or

e. Newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ].

5. If the motion is to be made on the minutes of the court, excerpt pertinent parts of the trial record and attach them as exhibits to the memorandum of points and authorities. The body of the memorandum should also incorporate these pertinent facts to show why, for example, the evidence at trial was insufficient to justify the verdict or other decision [see Code Civ. Proc. 657(6)[Deering's] ; see also CALIFORNIA POINTS AND AUTHORITIES, ch. 155 Motions After Trial, pt. II (Matthew Bender)].

6. Prepare proof of service in same number of copies as notice of intention to move for new trial and attach original to original of the notice and a copy to each copy of the notice.

a. If notice is to be mailed by counsel, prepare certificate of service [ Code Civ. Proc. 1013a(2)[Deering's] ].

b. If notice is to be mailed by someone other than counsel, prepare affidavit of service [ Code Civ. Proc. 1013a(1)[Deering's] ] or declaration under penalty of perjury [ Code Civ. Proc. 2015.5[Deering's] ].

For forms of proof of service, see Ch. 518, Service of Summons and Papers.

c. If notice is to be served separately from the supporting declarations and memorandum of points and authorities, separate proofs of service are required [see Paragraph I(C)(1)-(3), below].
C Service and Filing
1. Determine time limits within which motion for new trial must be made. The notice of motion must be filed as follows:

a. Before entry of judgment, but after the jury, court, or referee has rendered a decision [ Code Civ. Proc. 656[Deering's], 659[Deering's] ]; or

b. The earliest of the following [ Code Civ. Proc. 659[Deering's] ]:

(1) 15 days after the court clerk mails notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] ,

(2) 15 days after any party serves written notice of entry of judgment on the moving party, or

(3) 180 days after judgment is entered.

2. Serve the notice on each opposing party's attorney, or if none, on each opposing party [see Code Civ. Proc. 1015[Deering's] ].

NOTE

NOTE: Time for serving and filing notice is not extended by Code Civ. Proc. 1013[Deering's] which extends the time when service is by mail [ Code Civ. Proc. 1013[Deering's] ].

3. Serve accompanying memorandum of points and authorities at the same time or within 10 days after filing notice of intention to move for new trial [ Cal. Rules of Ct., Rule 203[Deering's] ].

NOTE

NOTE: On failure of moving party to timely serve and file memorandum, the court may deny the motion without a hearing on the merits [ Cal. Rules of Ct., Rule 203[Deering's] ].

4. Serve any affidavits or declarations at the same time or within 10 days of fifing the notice of intention to move for a new trial [ Code Civ. Proc. 659a[Deering's] ].

Time can be extended for additional period not to exceed 20 days for good cause shown upon affidavit or written stipulation of the parties [ Code Civ. Proc. 659a[Deering's] ; for stipulation and order extending time, see Form 13].

5. Deliver original notice of motion and attached originals of accompanying papers, if filing concurrently, to court clerk and pay filing fee.

NOTE

NOTE: Amount of filing fee is prescribed by Gov. Code 26830[Deering's] .
II Opposing Party
A Preliminary Determinations
1. Examine notice of motion to determine if timely filed and served under Code Civ. Proc. 659[Deering's] [see Paragraph I(C)(1), above].

2. Examine supporting memorandum of points and authorities and affidavit or declaration, if any.
B Preparation of Papers
Prepare opposing memorandum of points and authorities and counteraffidavits, if necessary, and make copies in same number as notice of motion [see Paragraphs I(B)(1)(a)-(e), above]. For an opposing memorandum, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial, pt. II (Matthew Bender).
C Service and Filing
1. Serve and file memorandum of points and authorities within 10 days after moving party's memorandum is served and filed [ Cal. Rules of Ct., Rule 203[Deering's] ].

2. Serve and file counteraffidavits or declarations within 10 days after moving party's affidavits or declarations are served and filed [ Code Civ. Proc. 659a[Deering's] ].

______________


Forms
Form 10 Notice of Intention to Move for New Trial [Code Civ. Proc. 659]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ],)
Plaintiff, )NO. __________
vs. )NOTICE OF INTENTION TO
)MOVE FOR NEW TRIAL
_________________________ [name ],)
Defendant. )
)

To _________________ [specify party, e.g., defendant] _________________ [name ] and to _________________ [name ], his/her attorney of record:

NOTICE IS HEREBY GIVEN that _________________ [specify moving party, e.g., plaintiff] _________________ [name ] intends to move this court, at a time to be set by the court, to vacate and set aside _________________ [the verdict of the jury or the decision of the court] rendered in favor of _________________ [specify adverse party, e.g., defendant] _________________ [name ] and against _________________ [specify moving party, e.g., plaintiff] _________________ [name ], and the judgment entered on that _________________ [verdict or decision] and to grant _________________ [specify moving party, e.g., plaintiff] _________________ [name ] a new trial on _________________ [all of the issues or the following issues only: _________________ (specify )].

[Allege alternative relief under Code Civ. Proc. 662 , if desired; see Form 11.]

The motion will be made on the following grounds:

[Choose appropriate statutory ground or grounds from the following and list separately. ]

1. Irregularity in the proceedings of the court prevented _________________ [specify party, e.g., plaintiff] _________________ [name ] from having a fair trial as shown by the declaration(s) of _________________ [name(s) ].

2. Irregularity in the proceedings of the jury prevented _________________ [specify party, e.g., plaintiff] _________________ [name ] from having a fair trial as shown by the declaration(s) of _________________ [name(s) ].

3. Irregularity in the proceedings of the adverse party prevented _________________ [specify party, e.g., plaintiff] _________________ [name ] from having a fair trial as shown by the declaration(s) of _________________ [name(s) ].

4. An order of the court prevented _________________ [specify party, e.g., plaintiff] _________________ [name ] from having a fair trial as shown by the declaration(s) of _________________ [name(s) ].

5. An abuse of discretion prevented _________________ [specify party, e.g., plaintiff] _________________ [name ] from having a fair trial as shown by the declaration(s) of _________________ [name(s) ].

6. There was misconduct of the jury as shown by the declaration(s) of _________________ [name(s) ].

7. There was _________________ [accident or surprise or both ] at trial which ordinary prudence could not have guarded against as shown by the declaration(s) of _________________ [name(s) ].

8. There is newly discovered evidence, material for the moving party, _________________ [name ], which could not with reasonable diligence have been discovered and produced at trial as shown by the declaration(s) of _________________ [name(s) ].

9. _________________ [Excessive or Inadequate] damages appear to have been awarded as shown by the minutes of the court.

10. The evidence is insufficient to justify the _________________ [verdict or decision] as shown by the minutes of the court.

11. The _________________ [verdict or decision] is against law as shown by the minutes of the court.

12. There was an error in law, occurring at trial and excepted to by the moving party, as shown by the minutes of the court.

13. There is a lack of a phonographic report of the trial due to _________________ [death of the reporter or disability of the reporter or loss or destruction of the reporter's notes in whole or substantial part] as shown by the declaration(s) of _________________ [name(s) ].

14. There was a _________________ [loss or destruction] of the _________________ [bill of exceptions or statement of the case] due to public calamity as shown by the declaration(s) of _________________ [name(s) ].

[EITHER ]

With respect to the grounds specified in Paragraphs _________________ [specify numbers ], above, this motion will be made on _________________ [affidavits or declarations].

[AND/OR ]

With respect to the grounds specified in Paragraphs _________________ [specify numbers ], above, this motion will be made on the minutes of the court.

[CONTINUE ]

This motion is also based on a memorandum of points and authorities to be served and filed _________________ [herewith or hereafter].

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________ [moving party's status]

COMMENTS

CAUTION: A memorandum of points and authorities is required to be served and filed within 10 days after filing the foregoing notice of intention to move for a new trial [ Cal. Rules of Ct., Rule 203[Deering's] ]. For discussion and forms, see Ch. 417, Points and Authorities.

Use of Form

This form is for use in initiating a motion for new trial under Code Civ. Proc. 659[Deering's] .

Time For Hearing

The court appoints the time for hearing of the motion for new trial and the clerk notifies both parties of the appointed time. For this reason, the notice of intention does not set forth the time for hearing [see Code Civ. Proc. 661[Deering's] ; discussion in Introduction under --Time for Hearing Introduction under --Time for Hearing --Introduction under --Time for Hearing, above].

Filing Fee

A filing fee, in an amount prescribed by Gov. Code 26830[Deering's] , is required to be paid when the notice of intention is filed with the clerk.

Trial Court May Grant Relief Not Requested

When posttrial motions attacking the judgment have been made, the trial court is not limited to an order granting or denying the relief requested in the moving party's papers [ Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rtpr. 480 (dicta) (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 ); see Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 609-612, 248 P.2d 910 ; Manor Investment Co. v. F. W. Woolworth Co. (1984) 159 Cal. App. 3d 586, 590-592, 206 Cal. Rptr. 37 (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 )]. For example, even though a party has moved for new trial on limited issues, the trial court has power to grant new trial on all issues [ Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 608-612, 248 P.2d 910 ]. Similarly, on appeal from an order granting a party's motion for new trial on one issue, the appellate court has power to order new trial on an additional issue or on the all issues [ Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 608-612, 248 P.2d 910 ; Manor Investment Co. v. F. W. Woolworth Co. (1984) 159 Cal. App. 3d 586, 598, 206 Cal. Rptr. 37 (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 )]. In addition to granting new trial on more issues than requested, the trial court may be able to amend its judgment when the motion was for new trial and judgment N.O.V. [ Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1473, 272 Cal. Rtpr. 480 (dicta approving trial court's amendment of judgment to eliminate a finding) (disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 521 n.10, 28 Cal. Rptr. 2d 475, 869 P.2d 454 )].

REFERENCES

Cross References

For an additional form of notice of intention to move for new trial, on the ground of excessive or indequate damages in a tort action, see Ch. 177, Damages, Pt. I.

California Points and Authorities

For memoranda of points and authorities in support of and in opposition to a notice of intention to move for a new trial, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial (Matthew Bender)

State Statutes

Grounds for new trial. Code Civ. Proc. 657[Deering's]

Notice of intention to move for new trial. Code Civ. Proc. 659[Deering's]

Altering statement of decision, or modifying or vacating judgment, and granting new trial, or in lieu of granting new trial, vacating and setting aside judgment and reopening case. Code Civ. Proc. 662[Deering's]

California Rules of Court

Requirements for points and authorities supporting or opposing notice of intention to move for new trial. Cal. Rules of Ct., Rule 203[Deering's]

Decisions

In General

New trial as proper to reexamine issues of law where there has been no trial on the merits. Carney v. Simmonds (1957) 49 Cal. 2d 84, 90, 315 P.2d 305

Grounds--In General

Court, in ruling on motion for new trial, as confined to grounds specified in notice. Van Ostrum v. State of California (1957) 148 Cal. App. 2d 1, 4, 306 P.2d 44

Purpose of Notice

Purpose of notice of intention to move for new trial as to give adverse party reasonable opportunity to oppose motion on its merits. Nichols v. Hast (1965) 62 Cal. 2d 598, 600, 43 Cal. Rptr. 641, 400 P.2d 753

Service and Filing

Mailing to opposing counsel of photocopy of file-stamped and dated judgment starts 15-day time limit for serving notice of intention to move for new trial under Code Civ. Proc. 659[Deering's] . Service of written notice of entry of judgment and filing of original notice of entry and proof of service complies with section 659, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067

Mailing conformed copy of judgment showing date it was filed with clerk (or in counties using judgment book rather than file of actions and microfilm copy, date it was entered) starts the 15-day period for giving notice of intention to move for new trial; Code Civ. Proc. 664.5[Deering's] (as amended in 1981) procedures for prevailing party to give notice of entry of judgment do not govern sufficiency of notice for purposes of Code Civ. Proc. 659[Deering's] . Tri-County Elevator Co. v. Superior Court (1982) 135 Cal. App. 3d 271, 276-277, 185 Cal. Rptr. 208

Notice of intention to move for new trial as served and filed after jury verdict. Estate of Green (1944) 25 Cal. 2d 535, 541, 154 P.2d 692
Form 11 Allegation in Notice of Intention to Move for New Trial [Code Civ. Proc. 659]--Alternative Relief in Nonjury Trial [Code Civ. Proc. 662]
[Insert as directed after first paragraph in Form 10 ].

If, in ruling on this motion, the court grants alternative relief under Section 662[Deering's] of the Code of Civil Procedure , _________________ [specify moving party, e.g., plaintiff ] _________________ [name ] requests the court to

[EITHER ]

_________________ [change or add to] the statement of decision and _________________ [modify or vacate] the judgment in the following respects: _________________ [describe changes in statement of decision and judgment ] and grant a new trial on _________________ [all or the following] issues: _________________ [specify issues ].

[OR ]

vacate and set aside the statement of decision and judgment and, in lieu of granting a new trial on the grounds of _________________ [specify grounds, e.g., insufficiency of the evidence to justify verdict or error in law], to reopen the case for further proceedings and the introduction of additional evidence as described in _________________ [specify, e.g., the declaration of _________________ (name ) in support of the motion for new trial or the memorandum of points and authorities filed in support of this motion] because _________________ [specify reason, e.g., the evidence regarding _________________ (describe ) was held inadmissable into evidence by the court although it constituted an exception to the hearsay rule under Section 1230[Deering's] of the Evidence Code or state other reason ]. These further proceedings would have the same effect as if the case had been reopened after the submission thereof and before a decision had been filed or judgment rendered.

COMMENTS

Use of Form

This form is to be used to specify appropriate alternative relief in nonjury causes under Code Civ. Proc. 662[Deering's] [see discussion in Introduction under Introduction under Alternative Relief in Lieu of Granting New Trial, above]. It is to be inserted after the first paragraph of Form 10 as indicated in that form.

Relief to Nonmoving Party

The court is authorized under Code Civ. Proc. 662[Deering's] to amend its statement of decision and judgment on denying a motion for new trial in favor of a party who did not make the motion for new trial [see Avery v. Associated Seed Growers, Inc. (1963) 211 Cal. App. 2d 613, 625, 27 Cal. Rptr. 625 (decided when findings existed under Code Civ. Proc. 632[Deering's] )]. For this reason, the party in whose favor judgment was rendered might in his or her memorandum of points and authorities seek alternative relief under Code Civ. Proc. 662[Deering's] .

REFERENCES

State Statutes

Request for alternative relief in nonjury trials. Code Civ. Proc. 662[Deering's]

Decisions

New judgment entered pursuant to Code Civ. Proc. 662[Deering's] on denial of motion for new trial as superseding first judgment; appeal from superseded judgment as nullity and subject to dismissal. Medak v. Cox (1970) 13 Cal. App. 3d 70, 74, 90 Cal. Rptr. 452

Sixty-day limitation for determination of new trial motion as applying to alternative relief under Code Civ. Proc. 662[Deering's] and any purported action taken by court on motion after that period as void. Tuck v. Tuck (1966) 245 Cal. App. 2d 260, 263, 53 Cal. Rptr. 872

Request for relief under Code Civ. Proc. 662[Deering's] as required to be made in time prescribed for motion for new trial. Lewith v. Rehmke (1935) 10 Cal. App. 2d 97, 104, 51 P.2d 476
Form 12 Declaration [Code Civ. Proc. 2015.5] Supportive of Motion for New Trial [Code Civ. Proc. 658]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ],)
Plaintiff, )NO. __________
vs. )DECLARATION OF ________
)_________________
)[name ]
_________________________ [name ],)IN SUPPORT OF MOTION
)FOR NEW TRIAL
Defendant. )
)

I, _________________ [name ], declare:

1. I am _________________ [identify declarant, e.g., an attorney at law duly admitted to practice before all the courts of the State of California and the attorney of record herein for _________________ (specify moving party, e.g., plaintiff) or a party in the above-entitled action or any other person with personal knowledge of the facts ].

[In separate, consecutively numbered paragraphs state the grounds for the motion in the statutory language of Code Civ. Proc. 657[Deering's], 657.1[Deering's], or 663.1[Deering's] , specifying facts that support the grounds, e.g., if the ground is irregularity of the court, jury, or adverse party, use Paragraph 2. ]

2. There was irregularity in the proceedings of the _________________ [court and/or jury and/or adverse party] by which _________________ [specify moving party, e.g., plaintiff] _________________ [name ] was prevented from having a fair trial in that _________________ [specify misconduct of court, jury, or adverse party, e.g., the court expressed prejudice against the use by plaintiff of his daughter as a witness to testify against the defendant, his wife, notwithstanding the competency of the testimony or a juror, _________________ (name ), witnessed the accident in question and had formed an opinion that plaintiff was contributorily negligent but on voir dire examination, he/she falsely denied having any knowledge of the accident or other misconduct]. This occurred on _________________ [date ], and was a departure from the orderly method of disposition of an action, materially affecting the substantial rights of _________________ [specify moving party, e.g., plaintiff] _________________ [name ] in that _________________ [specify moving party, e.g., plaintiff] did not receive a fair trial since _________________ [specify reasons, e.g., the court prejudged the testimony of the witness and intimated that unless the witness were withdrawn, the use of the witness would arouse a prejudice in the court's mind against the plaintiff or the juror who had personal knowledge of the accident told the other jurors during deliberations that she knew the fence was poorly maintained and was not surprised that it fell and that this expression of opinion improperly influenced the jury's verdict or specify other reason ]. A different result is likely on retrial in that _________________ [specify how verdict may differ, e.g., the verdict may be rendered in favor of the moving party if the testimony of the witness is considered without prejudice since it is competent testimony to prove that defendant received the money in question or the amount of damages may be reduced if the jurors are guided solely by evidence produced at trial or specify other difference ]. [If ground is irregularity of the jury add: _________________ (specify, e.g., Counsel and/or Moving parties) had no knowledge of the facts constituting misconduct or irregularity in the proceedings of the jury prior to the rendition of the verdict.] Because of the nature and the effect of this irregularity, this declaration in support of a motion for new trial was prepared.

[If ground is accident or surprise ]

3. There was _________________ [accident and/or surprise] occurring at trial which ordinary prudence could not have guarded against in that _________________ [specify party, e.g., plaintiff] _________________ [name ] was _________________ [surprised and/or accident occurred] when _________________ [specify incident, e.g., a witness for plaintiff gave testimony at trial that was entirely different from testimony that he/she had earlier stated would be given or specify other incident ]. This incident materially affected the substantial rights of _________________ [moving party, e.g., plaintiff] _________________ [name ], prejudicing the outcome of the case in that _________________ [state reasons, e.g., plaintiff's case would have been stronger if the witness had testified as expected or if the witness were not called, plaintiff's case would have been stronger than it was after the witness had testified against him/her or state other reasons ]. A different result is likely on retrial in that _________________ [state how verdict or decision may differ, e.g., damages may be reduced or a verdict may be rendered in favor of plaintiff or specify other difference ] since _________________ [state reasons, e.g., counsel has procured a witness to testify to the facts as stated to counsel by the first witness or counsel has procured a witness to impeach the testimony of the first witness or state other reasons ]. Due to the _________________ [accident and/or surprise], counsel was unable to take these measures at trial. _________________ [Specify person, e.g., Moving party or Counsel] exercised due diligence and prudence to guard against this _________________ [accident and/or surprise] when _________________ [state facts to show diligence, e.g., counsel diligently questioned the witness and investigated the facts of the case and it was impossible to foresee that the witness would testify differently from the facts previously stated to counsel and other facts ]. This declaration in support of a motion for new trial has been prepared because of the prejudicial nature of the _________________ [accident and/or surprise].

[If the ground is newly discovered evidence ]

4. There is newly discovered evidence, material for _________________ [specify moving party, e.g., plaintiff] _________________ [name ] which he/she could not, with reasonable diligence, have discovered and produced at trial in that after the trial of the above-entitled action, _________________ [specify moving party, e.g., plaintiff] _________________ [name ] learned for the first time, on or about _________________ [date ], that _________________ [state evidence on which reliance is placed, e.g., a new witness, _________________ (name ), occupied a house near the scene of the accident and saw the accident in question or state other evidence ]. Lack of this evidence at trial, materially affected the substantial rights of _________________ [specify moving party, e.g., plaintiff] in that _________________ [specify reasons, e.g., there were no eyewitnesses produced at trial or state other reasons ]. A different result is likely on retrial since _________________ [state how verdict or decision may differ., e.g., the amount of damages may be increased or the decision may be rendered in favor of plaintiff or state other difference ]. This evidence is not merely cumulative or impeaching but is material in that _________________ [explain probable effect of evidence, e.g., the newly discovered evidence furnishes a plausible and probable explanation of what, in its absence, had seemed to present the impossible situation of two cars parked in the same place or state other effect ]. _________________ [Specify moving party, e.g., Plaintiff] _________________ [name ] exercised due diligence to discover and produce this evidence for trial when _________________ [specify person who exercised due diligence, e.g., his/her attorney] _________________ [state facts to show due diligence, e.g., interviewed all neighbors near the scene of the accident, went twice to the house of the newly discovered witness only to find it closed and unoccupied, was never told that the witness was present at the accident and additional facts ]. After trial, this evidence was discovered and this declaration was prepared in support of a motion for new trial.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

_________________ [date ]

_________________ [signature ]
_________________ [typed name ]

COMMENTS

Use of Form

This declaration is for use in support of a motion for new trial. It may be used in lieu of an affidavit [see Code Civ. Proc. 2015.5[Deering's] ].

Irregularity in the Proceedings of the Jury

If the motion is based on irregularity in the proceedings of the jury, it is necessary to file declarations by the individual jurors to show, for example, that another juror may have concealed bias on voir dire. Furthermore, it is preferable for all of the moving parties and their attorneys to file individual supporting declarations indicating their lack of knowledge of the misconduct prior to the rendition of the verdict. However, the failure to file separate declarations is not a fatal error [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132 ]. For a form of juror declaration, see Form 12.1. For a separate, more detailed form of ``no knowledge'' declaration, to indicate lack of knowledge of jury misconduct before the verdict, see Form 12.3.

Newly Discovered Evidence

If the newly discovered evidence is testimony of a recently located witness, counsel should include a declaration of that witness stating what he or she knows and how he or she will testify if a new trial is granted. An affidavit or declaration that states counsel's or moving party's belief that a witness will testify in a certain manner is hearsay and will not be received by the court unless, for good cause shown, the affidavit or declaration of the witness cannot be received in time [ Smith v. Schwartz (1936) 14 Cal. App. 2d 160, 167, 57 P.2d 1386 ].

REFERENCES

Cross References

For general forms of affidavits and declarations, see Ch. 15, Affidavits, Certificates, and Declarations

California Points and Authorities

For memoranda in support of and in opposition to a notice of intention to move for new trial, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 155, Motions After Trial (Matthew Bender)

State Statutes

Grounds for new trial requiring application to be made on affidavits. Code Civ. Proc. 658[Deering's]

Time for filing affidavits and counteraffidavits. Code Civ. Proc. 659a[Deering's]

Decisions

Accident or Surprise

Where defendant's attorney interviewed witness before trial, had no intimation that witness would testify differently at trial, and witness explained that he testified differently out of confusion, new trial as granted on ground of accident or surprise since different result probable on retrial and ordinary prudence could not have guarded against surprise. Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 738-739, 64 P.2d 960

Hearsay Unacceptable

Evidence presented by affidavit in connection with motion for new trial as required to be given from personal knowledge and cannot contain hearsay. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132

Irregularity in Proceedings of Court, Jury, or Adverse Party

Where court expresses prejudice against use of particular witness, notwithstanding the competency of the testimony, and this prejudice is reflected in the actions of the court against the aggrieved party, new trial as granted on the ground of irregularity in the proceedings of the court. Pratt v. Pratt (1903) 141 Cal. 247, 251-252, 74 P. 742

Where juror falsely denied having knowledge of accident on voir dire but during jury deliberations stated that she had personal knowledge of material facts in the case and had formed and expressed an opinion on the case, new trial as granted on ground of irregularity in the proceedings of the jury. Williams v. Bridges (1934) 140 Cal. App. 537, 540, 35 P.2d 407

Newly Discovered Evidence

General averment of diligence as insufficient to support motion for new trial on ground of newly discovered evidence and particular circumstances or acts as required to be stated. Pierce v. Nash (1954) 126 Cal. App. 2d 606, 620, 272 P.2d 938

After trial, where newly discovered witness's testimony may affect outcome of case and proponent of evidence has fulfilled requirement of due diligence, new trial as granted on ground of newly discovered evidence. Celli v. French (1951) 107 Cal. App. 2d 599, 602, 237 P.2d 536
Form 12.1 Declaration by Juror [Code Civ. Proc. 658, 659a, 2015.5] Supporting Motion for New Trial [Code Civ. Proc. 657(1),(2)]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ],)
Plaintiff, )NO. __________
vs. )DECLARATION OF ________
)_________________
)[name ]
_________________________ [name (s ),)IN SUPPORT OF MOTION
)FOR NEW TRIAL
Defendant(s). )
)

I, _________________ [name ], declare:

1. I served as a juror in the above-captioned action.

2. _________________ [Specify facts indicating irregularities in jury proceedings or jury misconduct, e.g., On the _________________ (e.g., third day of trial), _________________ (name of juror ) approached me in the jury room during a recess. He/She stated that we should be sent to the jury room immediately because we could all arrive at a verdict without hearing any additional testimony. This statement was made prior to the close of the case and prior to submission of the case to the jury].

3. _________________ [Specify any additional facts indicating irregularities in jury proceedings or jury misconduct, e.g., During deliberations _________________ (name of juror ) expressed the opinion that he/she opposed a city's right to condemn property for a public purpose. The _________________ (plaintiff or defendant) in this action is a municipality seeking to condemn private property for a public purpose].

4. _________________ [Specify any additional facts indicating irregularities in jury proceedings or jury misconduct, e.g., _________________ (name of juror ) stated to all jurors during deliberations that the moving party's expert witness was unqualified; _________________ (name of juror ) then stated that he/she was enrolled in a class on the subject matter of the controversy and had solicited and received information from his/her instructor with respect to the qualifications of expert witnesses in that subject area].

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

_________________ [date ]

_________________ [signature ]

_________________ [typed name ]

COMMENTS

Use of Form

This form of declaration is for use by a juror in impeaching a jury verdict by showing jury misconduct or irregularities in the jury's proceedings. The juror's declaration is for use in support of a motion for a new trial under Code Civ. Proc. 659[Deering's] [see Form 10]. For an additional allegation of misconduct that may be included in this form, see Form 12.2.

A juror declaration must show misconduct by overts facts that can be objectively corroborated, not subjective mental processes [see Evid. Code 1150(a)[Deering's] ; Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1678, 25 Cal. Rptr. 2d 667 ]. For further discussion of this requirement, see the Introduction under -- --Juror Affidavits, above. For discussion of the types of misconduct that may be shown, see the Introduction under -- --Type of Jury Misconduct, above.

REFERENCES

Cross References

For discussion and forms for use in declarations and affidavits, see Ch. 15, Affidavits, Certificates, and Declarations

State Statutes

Affidavits required where application to vacate verdict and for new trial based on irregularity or chance verdict. Code Civ. Proc. 658[Deering's]

Declaration under penalty of perjury in lieu of affidavit. Code Civ. Proc. 2015.5[Deering's]

Evidence allowed to show improper influence on jury. Evid. Code 1150(a)[Deering's]

Inadmissible evidence to impeach verdict. Evid. Code 1150(b)[Deering's]

Decisions

Bias or Disqualification

Affidavit accepted as to occurrences during trial and deliberations showing prejudice in mind of juror which prevents that juror from acting impartially where bias was concealed on voir dire. People ex rel. Dept. of Pub. Wks v. Curtis (1967) 255 Cal. App. 2d 378, 389, 63 Cal. Rptr. 138

Facts Required

Jurors' affidavits required to state overt facts that can be objectively proved and not subjective mental processes that cannot be proved. People v. Turner (1971) 22 Cal. App. 3d 174, 183-184, 99 Cal. Rptr. 186

Jurors' affidavits is inadmissible when dealing with and having effect of proving mental processes or reasons and subjective considerations which influenced verdict. Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal. App. 3d 378, 383, 94 Cal. Rptr. 887

Use of Affidavits Genera lly

Use of affidavits is mandatory, oral testimony of subpoenaed jurors is insufficient. Linhart v. Nelson (1976) 18 Cal. 3d 641, 644-645, 134 Cal. Rptr. 813, 557 P.2d 104

Jurors' affidavits are inadmissible to construe or interpret verdict. Telles v. Title Ins. & Trust Co. (1969) 3 Cal. App. 3d 179, 187, 83 Cal. Rptr. 444

When affidavits used to impeach verdicts. Campbell v. Zokelt (1969) 272 Cal. App. 2d 315, 319, 77 Cal. Rptr. 561

See also Comments and References to Form 12.
Form 12.2 Allegation in Juror Declaration of Chance Verdict [Code Civ. Proc. 657(2)]
During deliberations, all jurors agreed to be bound by the average of their individual estimates of the damages owing to _________________ [name of moving party ]. Thereafter, each juror wrote his/her estimate of _________________'s [name of moving party ] damages on a slip of paper; the slips were collected and the figures on each slip added; the total figure thus obtained was divided by the number of jurors. There was no discussion of the rationale for the final figure obtained. This figure was presented to the court as the jury's verdict.

COMMENTS

Use of Form

This form of allegation is for use in a juror's declaration offered to show jury misconduct. The allegation is in support of a motion for new trial on the ground of a chance verdict [see Code Civ. Proc. 657(2)[Deering's] ]. This allegation may be used in addition to or as a replacement for Paragraphs 2-4 of Form 12.1. For further discussion of chance verdicts, see the Introduction under, above.

REFERENCES

State Statutes

Chance verdict proved by juror's affidavits. Code Civ. Proc. 657(2)[Deering's], 658[Deering's]

Decisions

Affidavits accepted as to juror's not agreeing to quotient verdict. Bardessono v. Michels (1970) 3 Cal. 3d 780, 794-795, 91 Cal. Rptr. 760, 478 P.2d 480

Trial court's determination based on conflicting affidavits not disturbed on appeal. Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 605, 94 Cal. Rptr. 200

See also Comments and References to Forms 12 and 12.1.
Form 12.3 Declaration [Code Civ. Proc. 658, 659a, 2015.5] Supporting Motion for New Trial Showing ``No Knowledge'' of Jury Misconduct
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ],)NO. __________
Plaintiff, )DECLARATION OF ________
)_________________
)[name ]
vs. )IN SUPPORT OF MOTION
)FOR
_________________________ [name(s) ],)NEW TRIAL
Defendant(s). )
)

I, _________________ [name ], declare:

1. I am _________________ [attorney of record for the moving party herein or the moving party herein].

[EITHER ]

2. There were irregularities in the proceedings of the jury which prevented _________________ [name of moving party ] from having a fair trial in that: _________________ [specify acts taking place at trial which constituted the irregularities ].

[OR ]

2. There was misconduct of the jury in that: _________________ [specify matters constituting instances of misconduct ].

3. I had no knowledge of the jury _________________ [irregularities or misconduct] alleged prior to the rendering of the verdict in the above-captioned matter. Thereafter, I learned of the _________________ [irregularities or misconduct] alleged.

4. To the best of my information and belief, _________________ [my client or my attorney] had no knowledge of the jury _________________ [irregularities or misconduct] prior to the rendering of the verdict in the above-captioned matter.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

_________________ [date ]

_________________ [signature ]
_________________ [typed name ]
Attorney for _________________
[Plaintiff or Defendant or moving party ]

COMMENTS

Use of Form

This form of declaration is for use by counsel for a moving party or by the moving party to show no prior knowledge of the jury irregularities or misconduct complained of in the motion for new trial. This declaration should be filed with the jurors' declarations attesting to jury irregularities and/or misconduct [see Forms 12.1, 12.2].

REFERENCES

Decisions

``No knowledge'' affidavits as showing neither party nor counsel aware of jury misbehavior until after verdict returned and as establishing nonreliance on errors known prior to jury's verdict. Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132

``No knowledge'' affidavits as not required where alleged jury misconduct was of such a nature that it could not have been known to party until after verdict rendered. Krouse v. Graham (1977) 19 Cal. 3d 59, 82, 137 Cal. Rptr. 863, 562 P.2d 1022

Although submitted by one person, ``no knowledge'' affidavit as establishing nonreliance on known errors by both party and attorney. People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 599, 128 Cal. Rptr. 697

See also Comments and References to Forms 12-12.2.
Form 13 Stipulation and Order Extending Time to File Affidavits or Declarations [Code Civ. Proc. 659a]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )
Plaintiff,)
)NO. __________
vs. )STIPULATION AND ORDER
)EXTENDING TIME TO FILE
)AFFIDAVITS OR
)DECLARATIONS
)
_________________________ [name ], )
Defendant.)
)

IT IS HEREBY STIPULATED by the parties and their respective undersigned attorneys that _________________ [specify moving party, e.g., plaintiff] _________________ [name ] may have an additional _________________ [number not exceeding 20 ] days, up to and including the _________________ day of _________________ [date ], in which to serve and file his/her _________________ [affidavits or declarations] in support of his/her motion for new trial [continue if appropriate : and that _________________ (specify adverse party, e.g., defendant)_________________ (name ) will have _________________ (number not exceeding 20 ) additional days to serve and file his/her _________________ (affidavits or declarations)].

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for Plaintiff

Dated: _________________.

_________________ [ firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for Plaintiff

IT IS SO ORDERED:

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

The foregoing form is for use in stipulating to an extension of time to file affidavits or declarations under Code Civ. Proc. 659a[Deering's]

Limitation on Extension of Time

The moving party is required to serve on all other parties and to file any affidavits intended to be used on the motion for new trial within 10 days of filing the notice of intention to move for new trial [ Code Civ. Proc. 659a[Deering's] ]. The other parties have 10 days after this service within which to serve on the moving party and file counteraffidavits. The time specified by Code Civ. Proc. 659a[Deering's] may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not exceeding 20 days [ Code Civ. Proc. 659a[Deering's] ].

REFERENCES

State Statutes

Extension of time for filing affidavits and counteraffidavits. Code Civ. Proc. 659a[Deering's]

Decisions

When affidavits in support of new trial motion are not filed within time required by Code Civ. Proc. 659a[Deering's] , court as justified in disregarding them. Peterson v. Peterson (1953) 121 Cal. App. 2d 1, 8-9, 262 P.2d 613 ; Terry v. Lessem (1928) 89 Cal. App. 682, 685-686, 265 P. 523
Form 14 Order Denying New Trial [Code Civ. Proc. 660]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )
Plaintiff,)
)NO. __________
vs. )ORDER DENYING NEW
)TRIAL
)
_________________________ [name ], )
Defendant.)
)

The motion of _________________ [specify moving party, e.g., plaintiff] _________________ [name ] for a new trial in the above-entitled action came on regularly for hearing by the court on this date. Plaintiff appeared by counsel _________________ [name ]; defendant appeared by counsel _________________ [name ].

On proof made to the satisfaction of the court that the motion ought to be denied,

IT IS ORDERED that the motion for a new trial be, and hereby is, denied.

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

This order is for use when the court denies a motion for new trial.

REFERENCES

State Statutes

Time for ruling on new trial motion. Code Civ. Proc. 660[Deering's]

Proper judge for hearing motion. Code Civ. Proc. 661[Deering's]

Decisions

No appeal as lying from order denying new trial; ruling as reviewed only through appeal of judgment. Hamasaki v. Flotho (1952) 39 Cal. 2d 602, 608, 248 P.2d 910
Form 15 Order Granting New Trial [Code Civ. Proc. 657, 660]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )
Plaintiff,)
)NO. __________
vs. )ORDER GRANTING NEW
)TRIAL
)
_________________________ [name ], )
Defendant.)
)

The motion of _________________ [specify moving party, e.g., plaintiff] _________________ [name ] for a new trial came on regularly for hearing by the court this date. Plaintiff appeared by counsel _________________ [name ]; defendant appeared by counsel _________________ [name ].

On proof made to the satisfaction of the court that the motion ought to be granted,

IT IS ORDERED that the motion be, and hereby is, granted and that the _________________ [verdict or decision] rendered on _________________ [date ], [and the judgment entered on that _________________ (verdict or decision)] be _________________ [modified or set aside and vacated] and that a new trial is ordered _________________ [on all issues or on the following issues: _________________ (specify )].

SPECIFICATION OF REASONS

The court's reasons for granting the new trial on _________________ [the or if more than one, each] ground stated are as follows: _________________ [state reasons for each ground ].

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

The foregoing order and specification of reasons are for use when the court grants a new trial. The order and reasons are prepared by the court which may not request counsel to prepare them [ Code Civ. Proc. 657[Deering's] ].

Statement of Grounds and Specification of Reasons

The court is required to state the ground or grounds for granting the motion in the order; moreover, the court does not have jurisdiction to correct the order nunc pro tunc by adding any ground or grounds after the expiration of the 60-day period allowed for making the order under Code Civ. Proc. 660[Deering's] because the 10-day extended period for filing the specification of reasons does not apply to the statement of grounds [see Code Civ. Proc. 657[Deering's] ; Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 901-905, 215 Cal. Rptr. 679, 701 P.2d 826 ]. The order may contain the court's specification of reasons, or the specification may be separately prepared, but the court must, in that case, prepare, sign, and file the specification with the clerk within 10 days after the order is filed [ Code Civ. Proc. 657[Deering's] ].

REFERENCES

State Statutes

Court as not permitted to direct attorney to prepare order and specification of reasons. Code Civ. Proc. 657[Deering's]

Order granting new trial on ground of insufficiency of evidence as required to be specified in writing, otherwise, presumed that motion not granted on that ground. Code Civ. Proc. 657[Deering's]

Court as having 60 days to determine motion; signed entry in minutes and filing with clerk as requisites to determination. Code Civ. Proc. 660[Deering's]

Decisions

Mailing to opposing counsel of photocopy of file-stamped and dated judgment starts 60-day time limit for determining motion for new trial under Code Civ. Proc. 660[Deering's] . Service of written notice of entry of judgment and filing of original notice of entry and proof of service complies with section 660, and posttrial motion statutes do not require filing of original notice of entry or file-stamped copy of judgment accompanied by proof of service to start time limits for bringing posttrial motions. Palmer v. GTE (2003) 30 Cal. 4th 1265, 1277-1278, 135 Cal. Rptr. 2d 654, 70 P.3d 1067

Trial court's specification of reasons for granting motion on ground of insufficiency of evidence as not complying with requirements of Code Civ. Proc. 657[Deering's] where without identifying deficiencies in terms of evidence, record, or proof, specification simply reiterates statutory ground or is phrased in terms or issues or ultimate fact. Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal. 3d 359, 367-370, 90 Cal. Rptr. 592, 475 P.2d 864

Although court cannot direct attorney to prepare order granting new trial or specification of reasons, counsel may assist court by calling any deficiency to its attention within 10-day period for filing specification of reasons so that court may correct order. Mercer v. Perez (1968) 68 Cal. 2d 104, 123-124 n. 8, 65 Cal. Rptr. 315, 436 P.2d 315

Order for new trial on punitive damages as reversed because judge failed to state reasons; irrelevant that judge also gave reasons for ordering new trial on portion of compensatory damages. Stewart v. Truck Ins. Exchange (1993) 17 Cal. App. 4th 468, 484-485, 21 Cal. Rptr. 2d 338

When four out of five specified reasons for new trial are not adequately specified or supported by evidence, remaining reason as determinative, and order for new trial will be upheld. Tramell v. McDonnell Douglas Corp. (1984) 163 Cal. App. 3d 157, 173-174, 209 Cal. Rptr. 427 (jury misconduct alone as sufficient reason)

Requirement of specification of reasons as mandatory; mandate as remedy to compel judge to specify reasons. LaBorne v. Mulvany (1974) 43 Cal. App. 3d 905, 916-917, 119 Cal. Rptr. 596

Court as required to state reasons for granting motion in order or as separate document filed 10 days after filing of order; ten-day period as running from determination of motion rather than from filing of order. Swanson v. Western Greyhound Lines, Inc. (1969) 268 Cal. App. 2d 758, 759-760, 74 Cal. Rptr. 383
Forms 16-19 [Reserved]

______________


Part III MOTION TO SET ASIDE AND VACATE A JUDGMENT AND TO ENTER ANOTHER AND DIFFERENT JUDGMENT
Introduction
Scope of Part
This part discusses the motion to set aside and vacate a judgment and to enter another and different judgment under Code Civ. Proc. 663[Deering's] and 663a[Deering's] . It includes a form of notice of motion [Form 20] and an order granting the motion [Form 21].

For discussion, procedures, and forms for use in correcting clerical error as distinguished from judicial error, see Ch. 318, Judgments, Pt. II.
Governing Statutes
The motion to set aside, vacate, and enter another and different judgment is governed by Code Civ. Proc. 663[Deering's] and 663a[Deering's] .
Statutory Basis for Motion
A judgment or decree, when based on a decision by the court, or the special verdict of a jury, may, on motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:

1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts, and in such a case when the judgment is set aside, the statement of decision must be amended and corrected; or

2. A judgment or decree not consistent with or not supported by the special verdict [ Code Civ. Proc. 663[Deering's] ].
Statement of Decision Versus Findings of Fact
Prior to January 1, 1982, Code Civ. Proc. 663[Deering's] stated that grounds for granting a motion to vacate the judgment and to enter another and different judgment were incorrect or erroneous conclusions of law, not consistent with or supported by the findings of fact, and that in cases where the judgment is set aside, the conclusions of law must be amended and corrected.

Under Stats. 1981, ch. 900 , operative January 1, 1982, the Legislature amended Code Civ. Proc. 663[Deering's] to conform to its amendment of Code Civ. Proc. 632[Deering's] , which blended the former conclusions of law and findings of fact into the newly entitled statement of decision explaining the factual and legal bases for the decision. Thus, Code Civ. Proc. 663[Deering's] now states that grounds for granting the motion are incorrect or erroneous legal bases for the decision that are not consistent with or supported by the facts, and in cases where the judgment is set aside, the statement of decision must be amended and corrected.

Since the 1981 amendment appears to have been made only to conform Code Civ. Proc. 663[Deering's] to Code Civ. Proc. 632[Deering's] , in which the Legislature more exhaustively altered the former findings of fact and conclusions of law, it appears that the change of terminology in Code Civ. Proc. 663[Deering's] only minimally affects the import of the statute. Therefore, case law that deals primarily with the old terms, ``findings of fact'' and ``conclusions of law,'' can probably be used to interpret the amended version of Code Civ. Proc. 663[Deering's] in the absence of cases under the new law. The situations that will arise under the amended statute will probably be reasonably analogous to those situations that occurred under the prior version of the statute.
When Motion Proper--Nonjury Trials
The motion to set aside and vacate a judgment and enter another and different judgment may be made whenever a court draws an incorrect legal conclusion or renders as erroneous judgment of the facts found by it to exist [see Code Civ. Proc. 663[Deering's] ; see also County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 738, 97 Cal. Rptr. 385, 488 P.2d 953 ]. Thus, the motion may be granted if the court comes to a legal conclusion that is contrary to an express statutory provision [ Gibson v. Hammang (1904) 145 Cal. 454, 456, 78 P. 953 ], if the court's legal conclusions are inconsistent with uncontroverted facts showing the intention of the parties [ Swanson v. Wheeler (1952) 112 Cal. App. 2d 43, 44-45, 245 P.2d 699 ], and if the court wrongly maintains that an element is part of a settled doctrine when, in fact, it is not [ Crook v. Leinenweaver (1950) 100 Cal. App. 2d 790, 792-794, 224 P.2d 891]. However, the motion will only be granted if the substantial rights of a party are materially affected [ Code Civ. Proc. 663[Deering's] ].
Jury Trials
The court may correct its judgment when that judgment is not consistent with or supported by the special verdict [see Code Civ. Proc. 663[Deering's] ; see San Francisco v. Superior Court v. San Francisco v. Superior Court (1928) 94 Cal. App. 318, 322, 271 P. 121 ]. A special verdict is one in which the jury finds the facts only, leaving the judgment to the court, whereas a general verdict is one in which the jury pronounces generally on all or any of the issues, either in favor of the plaintiff or defendant [ Code Civ. Proc. 624[Deering's] ]. If the jury's findings on particular questions of fact are inconsistent with its general verdict, a motion to set aside and vacate under Code Civ. Proc. 663[Deering's] will not be applicable. This is because Code Civ. Proc. 625[Deering's] provides that the jury's inconsistent findings control the general verdict, and the court must give judgment accordingly [see Code Civ. Proc. 625[Deering's] ].
Alternative Relief in Lieu of New Trial Contrasted
Code Civ. Proc. 662[Deering's] now provides that the court may grant certain alternative relief in lieu of granting a new trial. The court may change or add to the statement of decision and grant a partial new trial or vacate and set aside the statement of decision and judgment and reopen the case for further proceedings [ Code Civ. Proc. 662[Deering's] ; see also Part II, above]. Formerly, the statute read ``findings'' in place of the term ``statement of decision'' [see Stats. 1929, ch. 843 ].

A closely related statute, Code Civ. Proc. 663[Deering's] , now provides that the court may set aside, vacate, and enter another and different judgment if incorrect or erronous legal bases for the decision are not consistent with or supported by the facts [ Code Civ. Proc. 663(1)[Deering's] ]. Formerly, this statute provided that conclusions of law that were incorrect or erroneous and were not consistent with or supported by the findings of fact could be amended and corrected [see Stats. 1933, ch. 744 ].

The statutes were designed to apply to different situations. If counsel desired a correction of erroneous legal conclusions, he or she could proceed under Code Civ. Proc. 663(1)[Deering's] [ Gardner v. Rich Mfg. Co. (1945) 68 Cal. App. 2d 725, 739-740, 158 P.2d 23 ]. If counsel desired a reexamination of both legal and factual matters, he or she could proceed under Code Civ. Proc. 662[Deering's] .

Even though Code Civ. Proc. 662[Deering's] and 663(1)[Deering's] have been amended effective January 1, 1982, it appears that the major distinctions between the two statutes still remain. Thus, in granting alternative relief in lieu of a new trial under Code Civ. Proc. 662[Deering's] , the court may reweigh the evidence and reexamine the legal and factual bases for its decision [see Warren Southwest, Inc. v. Wicks (1969) 276 Cal. App. 2d 152, 155, 80 Cal. Rptr. 723 ]. However, under Code Civ. Proc. 663[Deering's] , the court may only correct erroneous legal bases for its decision; it cannot reexamine the facts [ Code Civ. Proc. 663[Deering's] ; see Gardner v. Rich Mfg. Co. (1945) 68 Cal. App. 2d 725, 739-740, 158 P.2d 23 ]. The motion under Code Civ. Proc. 663[Deering's] is to be used when the court has used incorrect legal bases for its decision on the basis of uncontroverted evidence. It appears that it is still not proper to use the motion to challenge the sufficiency of the evidence [see Simac Design, Inc. v. Alciati (1979) 92 Cal. App. 3d 146, 153, 154 Cal. Rptr. 676 ].
Judicial Error Compared to Clerical Error
The trial court may correct its own inadvertence or clerical error on motion of the injured party, or on its own motion under Code Civ. Proc. 473[Deering's] so that the judgment or order as entered will conform to the judgment or order directed [ Code Civ. Proc. 473(d)[Deering's] ; In re Candelario (1970) 3 Cal. 3d 702, 705, 91 Cal. Rptr. 497, 477 P.2d 729 ; see Ch. 489, Relief From Judgments and Orders]. However, it may correct judicial error only on a motion for new trial or on a motion under Code Civ. Proc. 663[Deering's] to vacate the order or judgment and enter a different one [ Greene v. Superior Court (1961) 55 Cal. 2d 403, 405-406, 10 Cal. Rptr. 817, 359 P.2d 249 ]. The difference between a clerical error and a judicial error is whether the error was made in rendering the judgment or in recording the judgment rendered [ People v. Anderson (1976) 59 Cal. App. 3d 831, 839, 131 Cal. Rptr. 104 ].
Procedure--Contents of Notice
The procedure is initiated by a notice of intention to move for an order setting aside and vacating a judgment or decree. The notice must designate the grounds on which the motion will be made and specify the particulars showing that the legal basis for the decision is not consistent with or supported by the facts or the ways in which the judgment or decree is not consistent with the special verdict [ Code Civ. Proc. 663a[Deering's] ].

Although under Cal. Rules of Ct., Rules 301[Deering's], 303(a)[Deering's] , a memorandum of points and authorities is not specifically required to be submitted in support of the motion, it is better practice to submit a memorandum as is generally required in law and motion proceedings [see Code Civ. Proc. 1005(b)[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rule 313(a)[Deering's] ]. For general discussion and forms, see Ch. 417, Points and Authorities.
Time for Serving and Filing
The motion to vacate a judgment and enter another and different judgment is proper only after final judgments and not after interlocutory judgments or orders [ Remington v. Davis (1951) 108 Cal. App. 2d 251, 253, 238 P.2d 662 ]. The party intending to make the motion must file with the clerk and serve on the adverse party a notice of his or her intention either (1) before entry of judgment; or (2) within the earliest of the following times: (a) within 15 days after the clerk mails notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] ; (b) within 15 days of service of written notice of entry of judgment by any party; or (c) within 180 days after judgment is entered [ Code Civ. Proc. 663a[Deering's] ].

The provisions of Code Civ. Proc. 1013[Deering's] , which extends time for exercising a right or doing an act when service is by mail, do not lengthen the time for service under Code Civ. Proc. 663a[Deering's] [ Code Civ. Proc. 663a[Deering's] ]. This time period is also not extended if the moving party's attorney is a legislator [ Code Civ. Proc. 1054.1[Deering's] ].
Hearing--Time of Hearing
The date of the hearing is generally set forth in the notice. Code Civ. Proc. 1005(b)[Deering's] requires that a notice of motion be given at least 15 calendar days before the time appointed for hearing plus additional time for service by mail, unless the court prescribes a shorter time [ Code Civ. Proc. 1005(b)[Deering's] ].

Neither a motion for judgment notwithstanding the verdict [ Code Civ. Proc. 629[Deering's] ] nor a motion for new trial [ Code Civ. Proc. 657[Deering's] ] is required to be heard at the same time as a motion to vacate judgment and to enter a different judgment [see Code Civ. Proc. 663[Deering's], 663a[Deering's] ]. This is true even though a motion for judgment notwithstanding the verdict must be heard at the same time as a motion for new trial [see Code Civ. Proc. 629[Deering's] ]. In practice, however, a motion to vacate a judgment and enter a different judgment is often made concurrently with these other motions. Therefore, the motion to vacate a judgment and enter a different judgment is often heard at the same time as a motion for judgment notwithstanding the verdict and a motion for new trial.
Proper Judge
The judge who presided at trial must hear the motion to vacate a judgment and enter another and different judgment under Code Civ. Proc. 663[Deering's] unless that judge is dead, unable to hear the motion, or absent from the county on the date set for hearing. In that case, the motion may be heard and determined by another judge of the same court [ Cal. Rules of Ct., Rule 236[Deering's] ]. Furthermore, if the parties agree, the motion may be heard anywhere in the state by the judge who presided at trial [ Code Civ. Proc. 166(a)(2)[Deering's] ; Gov. Code 69741.1[Deering's] ].
Discretion of Court
On hearing the motion, the court has no power to consider or determine any matter except what judgment should be entered on the facts as found [ Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 190 P. 469 ]. The court cannot reopen the case and receive further evidence or reexamine the evidence before it [see Gossman v. Gossman (1942) 52 Cal. App. 2d 184, 196, 126 P.2d 178 ; see also Alternative Relief in Lieu of New Trial Contrasted, above].
Form of Order
Since Code Civ. Proc. 663[Deering's] specifically provides for the vacation of the judgment and the entry of another judgment, if the court grants the motion, but fails to enter a new judgment, the order granting the motion will be void [ Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 190 P. 469 ]. However, it appears that it will be of no consequence if the court fails to correct the legal basis for the decision, and enters only a different judgment. The judgment will supersede the erroneous legal basis embraced in the statement of decision [see Howard A. Deason & Co. v. Costa Tierra Ltd. (1969) 2 Cal. App. 3d 742, 760, 83 Cal. Rptr. 105 ].
Review
An order granting the motion may be reviewed on appeal in the same manner as a special order made after a final judgment [ Code Civ. Proc. 663a[Deering's] ; Reeves v. Hutson (1956) 144 Cal. App. 2d 445, 450, 301 P.2d 264 ]. In reviewing the grant of the motion, the presumption is in favor of the court's action [ Moklofsky v. Moklofsky (1947) 79 Cal. App. 2d 259, 264, 179 P.2d 628 ].

Generally, an order denying a motion to vacate a judgment is nonappealable. The rationale for this rule is that, if the underlying judgment or order is appealable, two appeals from the same judgment should not be permitted. If the underlying judgment or order is nonappealable, allowing an appeal from the denial of a motion to vacate judgment would in practical effect make the nonappealable judgment or order appealable [ Howard v. Lufkin (1988) 206 Cal. App. 3d 297, 300-301, 253 Cal. Rptr. 422 ]. Nevertheless, under a long line of cases, courts have created an exception to this rule on nonappealability for motions to vacate a judgment pursuant to Code Civ. Proc. 663[Deering's] , termed a ``statutory motion'' [see Socol v. King (1949) 34 Cal. 2d 292, 296-297, 209 P.2d 577 ; Howard v. Lufkin (1988) 206 Cal. App. 3d 297, 301, 253 Cal. Rptr. 422 (citing additional following opinions)].

In 1978, however, without discussion or explanation, the Supreme Court contradicted this long-standing, judicially created rule of civil procedure and stated that orders denying a motion to set aside and vacate a judgment and enter a new and different judgment are nonappealable [ Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 890, 151 Cal. Rptr. 285, 587 P.2d 1098 ]. The court of appeal in Howard characterized the Clemmer pronouncement as dicta, and held that the denial of a statutory motion under Code Civ. Proc. 663[Deering's] is an appealable order [ Howard v. Lufkin (1988) 206 Cal. App. 3d 297, 302-303, 253 Cal. Rptr. 422 (citing opinions critical of Clemmer )].

Whatever the rule is concerning the appealability of a denial of a Code Civ. Proc. 663[Deering's] motion, the court of appeal has held that when a postjudgment order resolves constitutional issues concerning the judgment involved, it is appealable [ County of Los Angeles v. Thompson (1985) 172 Cal. App. 3d 18, 20, 218 Cal. Rptr. 101 (vacation of stipulated paternity judgment order)].

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Research Guide
Cross References
For vacation of an adoption decree, see Ch. 12E, Adoptions: Attack on Decree

For proceedings to set aside judgments, including default judgments, see Ch. 489, Relief From Judgments and Orders
State Statutes
Court's correction of clerical errors in judgment or order. Code Civ. Proc. 473(d)[Deering's]

General and special verdicts. Code Civ. Proc. 624[Deering's]

Conflict of jury's special finding with general verdict. Code Civ. Proc. 625[Deering's]

Alternative relief in lieu of granting new trial. Code Civ. Proc. 662[Deering's]

Motion to set aside and vacate judgment and enter another and different judgment. Code Civ. Proc. 663[Deering's]

Grounds for motion to set aside and vacate a judgment and to enter another and different judgment. Code Civ. Proc. 663(1)[Deering's],(2)[Deering's]

Notice of intention to set aside and vacate judgment--contents and time limit for filing. Code Civ. Proc. 663a[Deering's]

Motion heard anywhere in state by trial judge if all parties consent. Gov. Code 69741.1[Deering's]
California Rules of Court
Judge who will hear and determine motion as judge who presided at trial. Cal. Rules of Ct., Rule 236[Deering's]

Extension of time to appeal when notice of intention to move for order vacating judgment is filed. Cal. Rules of Ct., Rule 3(b)[Deering's]
Decisions
Denial of Code Civ. Proc. 663[Deering's] motion is not appealable order. Clemmer v. Hartford Ins. Co. (1978) 22 Cal. 3d 865, 871, 873, 890, 151 Cal. Rptr. 285, 587 P.2d 1098 ; but see Howard v. Lufkin (1988) 206 Cal. App. 3d 297, 302-303, 253 Cal. Rptr. 422 (characterizing statement in Clemmer as dictum and reaffirming prior rule that order denying motion under Code Civ. Proc. 663[Deering's] is appealable); see also Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal. 3d 660, 663-664, 125 Cal. Rptr. 757, 542 P.2d 1349 (citing with approval Witkin's recitation of rule of Socol v. King (1949) 34 Cal. 2d 292, 296-297, 209 P.2d 577 , that order denying Code Civ. Proc. 663[Deering's] motion is appealable)

Motion is proper to set aside judgment and enter different judgment whenever court draws incorrect legal conclusion or renders erroneous judgment upon facts found by it to exist. County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 738, 97 Cal. Rptr. 385, 488 P.2d 953

A person not party to the action as it was originally commenced or tried may intervene even after judgment by moving to vacate under Code Civ. Proc. 663[Deering's] ; person thereby gains right to appeal order denying motion to vacate. County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 736-737, 97 Cal. Rptr. 385, 488 P.2d 953 ; Simac Design, Inc. v. Alciati (1979) 92 Cal. App. 3d 146, 152, 154 Cal. Rptr. 676

Order denying motion to vacate judgment and enter different judgment under Code Civ. Proc. 663[Deering's] and 663a[Deering's] is appealable. Socol v. King (1949) 34 Cal. 2d 292, 296, 209 P.2d 577

``Aggrieved party'' under Code Civ. Proc. 663[Deering's] is one whose rights or interests are injuriously affected by judgment, and interest must be immediate, pecuniary, and substantial, and not nominal or remote consequence of judgment. Thus, insurer lacked standing and trial court properly denied insurer's motion to vacate judgment obtained against insured, where possibility that insurer would be bound by judgment did not satisfy ``aggrieved party'' standard; where insurer's incurring litigation costs as result of insured's coverage action was not substantial right or interest affected by judgment and was at most nominal consequence of judgment; where insurer's rights would only be injuriously affected if coverage were found; and where insurer would not be bound by finding that insured was liable if insurer could show fraud or collusion in coverage action. Tomassi v. Scarff (2000) 85 Cal. App. 4th 1053, 102 Cal. Rptr. 2d 750

Court has power under Code Civ. Proc. 663[Deering's] to set aside judgment granting writ of mandate when indispensable party to mandate proceedings was not made party. Inland Counties Regional Center, Inc. v. Office of Administrative Hearings (1987) 193 Cal. App. 3d 700, 703-707, 238 Cal. Rptr. 422

Parties' consent to vacate judgment does not enable court to vacate judgment; power to vacate judgment is strictly statutory. Southern Cal. White Trucks v. Teresinski (1987) 190 Cal. App. 3d 1393, 1407-1408, 236 Cal. Rptr. 159

Discussion of conflict among Supreme Court's opinions regarding appealability of order denying Code Civ. Proc. 663[Deering's] motion. Forman v. Knapp Press (1985) 173 Cal. App. 3d 200, 202-203, 218 Cal. Rtpr. 815 (dictum)

Motion to vacate order on stipulated paternity judgment was brought with due diligence although filed six years after entry of judgment, because motion filed shortly after Supreme Court declared that type of judgment unconstitutional, and various pertinent Supreme Court cases were decided during six years' time. County of Los Angeles v. Thompson (1985) 172 Cal. App. 3d 18, 27-28, 217 Cal. Rptr. 884

Code Civ. Proc. 663a[Deering's] imposes strict time limits, and court lacks power under Code Civ. Proc. 663a[Deering's] to vacate judgment after time has elapsed within which proceedings by motion could be instituted, even when parties consent that motion be granted. County of Inyo v. City of Los Angeles (1984) 160 Cal. App. 3d 1178, 1183, 207 Cal. Rptr. 425

Code Civ. Proc. 663[Deering's] , regarding motions to set aside and vacate a judgment and enter a different judgment is not intended to affect remedy of appeal, but to provide remedy in addition to appeal. Delta Farms v. Chinese American Farms (1927) 201 Cal. 201, 204, 255 P. 1097 ; Fitzsimmons v. Jones (1960) 179 Cal. App. 2d 5, 11, 3 Cal. Rptr. 373

Motion to vacate judgment and enter different judgment under Code Civ. Proc. 663[Deering's] properly granted where court improperly disallowed costs to plaintiff when statute expressly authorized costs. Gibson v. Hammang (1904) 145 Cal. 454, 456, 78 P. 953

Requirement of Code Civ. Proc. 663[Deering's] regarding correction of conclusions of law when judgment is set aside is merely directory; failure to correct does not require reversal of judgment. Howard A. Deason & Co. v. Costa Tierra Ltd. (1969) 2 Cal. App. 3d 742, 760, 83 Cal. Rptr. 105

Trial court making new findings and ordering counsel to prepare new findings, conclusions, and judgment is deemed to be acting pursuant to Code Civ. Proc. 662[Deering's] , even though it mistakenly purports to act under Code Civ. Proc. 663[Deering's] . Warren Southwest, Inc. v. Wicks (1969) 276 Cal. App. 2d 152, 155, 80 Cal. Rptr. 723

Order granting motion to vacate judgment and enter different judgment under Code Civ. Proc. 663[Deering's] and 663a[Deering's] is reviewable on appeal in same manner as special order made after final judgment. Reeves v. Hutson (1956) 144 Cal. App. 2d 445, 450, 301 P.2d 264

Because facts indicated that parties wished to terminate sale and purchase agreement and court concluded that agreement should be completed, thereby ordering the completion, motion to vacate judgment and enter different judgment was properly granted. Swanson v. Wheeler (1952) 112 Cal. App. 2d 43, 44-45, 245 P.2d 699

Motion to vacate judgment and enter different judgment under Code Civ. Proc. 663[Deering's], 663a[Deering's] proper only after final judgments and not after interlocutory judgments or orders. Remington v. Davis (1951) 108 Cal. App. 2d 251, 253, 238 P.2d 662

If court wrongly concluded that dispute or argument was element of agreed boundary line doctrine and doctrine in fact did not contain that element, motion to vacate judgment and enter different judgment properly granted. Crook v. Leinenweaver (1950) 100 Cal. App. 2d 790, 792-794, 224 P.2d 891

On motion to vacate judgment and enter different judgment, court is not permitted to reopen case and receive further evidence or reexamine evidence before it. Gossman v. Gossman (1942) 52 Cal. App. 2d 184, 196, 126 P.2d 178

Motion to vacate judgment and enter different judgment is proper when judgment not consistent with or supported by special verdict. San Francisco v. Superior Court (1928) 94 Cal. App. 318, 271 P. 121

Order that vacates judgment and does not enter different judgment is void and therefore nonappealable. Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 190 P. 469
Law Reviews
Rahl, Civil Procedure: Recent Amendments Affecting Motions for New Trial and Motions to Vacate and Set Aside Judgments, 47 Cal. L. Rev. 919 (1959)
Text References
California Trial Practice: Civil Procedure During Trial, ch. 25, Motions After Trial (Cal. C.E.B. 3d ed. 1995)

Witkin, California Procedure, vol. 8, Attack on Judgment in Trial Court, 147 et seq. (4th ed. 1997)

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Procedural Checklist
I Moving Party's Checklist
A Preliminary Determinations
1. Ascertain whether or not either of the grounds for a motion to set aside and vacate a judgment and to enter another and different judgment exist. The grounds are as follows [ Code Civ. Proc. 663[Deering's] ]:

a. Nonjury trial--There is an incorrect or erroneous legal basis for the decision not consistent with or supported by the facts.

b. Jury trial--The judgment or decree is not consistent with or not supported by the special verdict.

2. Determine the availability of other alternative procedures by which the aggrieved party may obtain a judgment in his or her favor. Possible alternative procedures are as follows:

a. A motion for new trial [ Code Civ. Proc. 657[Deering's] ; see Part II, above].

b. A motion for judgment notwithstanding the verdict under Code Civ. Proc. 629[Deering's] [see Part I, above].

c. A motion for judgment on a jury's special finding if that finding is inconsistent with the general verdict [see Code Civ. Proc. 625[Deering's] ; see also Ch. 326A, Jury Verdicts].

NOTE

NOTE: A motion for judgment on a special finding must be made before judgment is entered on the general verdict [ Napa Val. Pkg. Co. v. S.F. etc. Funds (1911) 16 Cal. App. 461, 471, 118 P. 469 ].

d. A motion to correct clerical mistakes in judgments and to set aside void judgments [ Code Civ. Proc. 473(d)[Deering's] ; see also Ch. 318, Judgments, Pt. II; Ch. 489, Relief From Judgments and Orders].
B Preparation of Papers
1. Prepare the notice of intention to move to set aside and vacate the judgment and to enter another and different judgment in the following number of copies:

a. Original for filing.

b. One copy for service on the opposing party's attorney of record, or if no attorney, on the opposing party.

c. One copy for client, if desired.

d. One office copy.

e. Additional copies as desired.

2. Date and sign the notice of intention to move under Code Civ. Proc. 663[Deering's] .

3. Prepare the accompanying memorandum of points and authorities in the same number of copies as the notice of motion. Attach the original memorandum to the original of the notice and a copy to each copy of the notice.

For memoranda of points and authorities in support of and in opposition to a motion and to vacate a judgment and to enter another and different judgment, see CALIFORNIA POINTS AND AUTHORITIES, ch. 155, Motions After Trial, pt. III (Matthew Bender).

NOTE

CAUTION: Although, under Cal. Rules of Ct., Rules 301[Deering's], 303(a)[Deering's] , a memorandum of points and authorities is not specifically required to be submitted in support of the motion, it is better practice to submit a memorandum as is generally required in law and motion proceedings [see Code Civ. Proc. 1005(b)[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rule 313(a)[Deering's] ].

4. Contact court clerk to determine local practice regarding setting of time for the hearing.

a. In some jurisdictions, counsel sets time for the hearing, taking care to give the opposing party adequate notice under Code Civ. Proc. 1005(b)[Deering's] . Since the judge who presided at trial will hear the motion [ Cal. Rules of Ct., Rule 236[Deering's] ], counsel is advised to contact the judge to arrange a convenient time. Counsel should then fill in the time and place of hearing in the notice of motion.

b. In other jurisdictions, the court will appoint a time for the hearing and the clerk will notify the parties of the appointed time. In this case, counsel should leave blank the time for hearing on the notice of motion.

5. Prepare the proof of service in the same number of copies as the notice of motion and attach the original to the original of the notice and a copy to each copy of the notice.

a. If notice is to be mailed by counsel, prepare a certificate of service [ Code Civ. Proc. 1013a(2)[Deering's] ].

b. If notice is to be mailed by someone other than counsel, prepare affidavit of service [ Code Civ. Proc. 1013a(1)[Deering's] ] or declaration under penalty of perjury [ Code Civ. Proc. 2015.5[Deering's] ].

For forms of proof of service, see Ch. 518, Service of Summons and Papers.


C Service and Filing
1. Determine the time within which the motion must be made. The moving party must file with the clerk and serve on the adverse party a notice of his or her intention to move under Code Civ. Proc. 663[Deering's] either [ Code Civ. Proc. 663a[Deering's] ]:

a. Before entry of judgment, or

b. Within the earliest of the following times:

(1) Within 15 days after the clerk mails notice of entry of judgment under Code Civ. Proc. 664.5[Deering's] ,

(2) Within 15 days after any party serves written notice of entry of judgment, or

(3) Within 180 days after judgment is entered.

2. Serve the notice of intention to set aside and vacate the judgment and to enter another and different judgment on the opposing party's attorney, or if none, on the opposing party [ Code Civ. Proc. 1011[Deering's], 1012[Deering's], 1015[Deering's] ].

NOTE

NOTE: The provisions of Code Civ. Proc. 1013[Deering's] extending the time for excercising a right or doing an act where service is by mail, Express Mail or other overnight delivery, or fax do not apply to the time specified in Code Civ. Proc. 663a[Deering's] for the filing and serving of the notice of intention to set aside and vacate the judgment and to enter another and different judgment [ Code Civ. Proc. 663a[Deering's], 1013[Deering's] ]. The extension provided for in Code Civ. Proc. 1010.6[Deering's] in case of electronic service also does not apply [ Code Civ. Proc. 1010.6(a)(6)[Deering's] ]. However, the provisions of Code Civ. Proc. 1005(b)[Deering's] , extending the time for notice of hearing when service is by mail, do apply [see Code Civ. Proc. 1005(a)(13)[Deering's] ].

3. Deliver original notice of motion and attached originals of accompanying papers to court clerk for filing.

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Forms
Form 20 Notice of Intention to Move to Set Aside and Vacate Judgment and Enter Another and Different Judgment [Code Civ. Proc. 663, 663a]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ], )
Plaintiff,)NO. __________
vs. )NOTICE OF INTENTION TO
)MOVE TO SET ASIDE AND
)VACATE JUDGMENT AND
)ENTER ANOTHER AND
)DIFFERENT JUDGMENT
_________________________ [name ], )
Defendant.)
)

To _________________ [specify party, e.g., defendant] _________________ [name ] and to _________________ [name ] his/her attorney of record:

NOTICE IS HEREBY GIVEN that, on _________________ [date ], at _________________ [time], or as soon thereafter as the matter may be heard, in [_________________ (Department or Division) _________________ of ] this court, located at _________________ [address ], _________________ [city ], _________________ [specify party, e.g., plaintiff] will move for an order:

1. To set aside and vacate the judgment entered on _________________ [date ];

[EITHER ]

2. To amend and correct the statement of decision filed in this action on _________________ [date ]; and

[OR ]

2. To correct the judgment or decree of the court that is not consistent with the special verdict, rendered by the jury on _________________ [date ]; and

[CONTINUE ]

3. To enter another and different judgment.

[EITHER, for the ground of incorrect or erroneous legal basis for the decision ]

The motion will be made on the ground that the legal basis for the decision filed by the court is _________________ [incorrect and/or erroneous] in that it is not _________________ [consistent with and/or supported by] the facts. These errors have materially affected the substantial rights of _________________ [specify, e.g., plaintiff] entitling him/her to a different judgment in that _________________ [state facts showing how party was deprived of fair trial ].

The following legal bases for the decision, for the reasons specified, are _________________ [incorrect and/or erroneous] and not _________________ [consistent with and/or supported by] the facts:

1. [Set out erroneous or incorrect legal bases, identifying them by paragraph, page, and line number in statement of decision, and specify reasons why they are erroneous or incorrect.]

The statement of decision should be amended and corrected as follows:

1. [Specify changes desired in statement of decision.]

[OR, if judgment or decree is neither consistent with nor supported by the special verdict ]

The motion will be made on the ground that the _________________ [judgment or decree] is not _________________ [consistent with or supported by] the special verdict of the jury. This error materially affected the substantial rights of _________________ [specify, e.g., plaintiff] entitling him/her to a different judgment in that _________________ [state facts showing how party was deprived of fair trial ].

The _________________ [judgment or decree] of the court that _________________ [specify contents of judgment or decree ] is not _________________ [consistent with or supported by] the special verdict of the jury that stated the following: ``_________________'' [incorporate verbatim copy of jury's special verdict ]. The _________________ [ judgment or decree] is _________________ [inconsistent with or unsupported by the verdict] because:

1. [Set out reasons why judgment or decree is neither consistent with nor supported by the special verdict.]

[CONTINUE ]

The following _________________ [ judgment or decree] should be entered:

1. [Specify desired judgment or decree.]

This motion will be based on this notice and on the memorandum of points and authorities served and filed herewith, and on all the papers and records of this action.

Dated: _________________.

_________________ [ firm name, if any ]
By: _________________ [signature ]
_________________ [typed name ]
Attorney for _________________ [moving party's status and name ]

COMMENTS

CAUTION: Although under Cal. Rules of Ct., Rules 301[Deering's], 303(a)[Deering's] a memorandum of points and authorities is not specifically required to be submitted in support of the motion, it is better practice to submit a memorandum as is generally required in law and motion proceedings [see Code Civ. Proc. 1005(b)[Deering's], 1010[Deering's] ; Cal. Rules of Ct., Rule 313(a)[Deering's] ]. For discussion and forms, see Ch. 417, Points and Authorities.

Use of Form

This form is for use as a notice of intention to set aside and vacate a judgment and to enter another and different judgment. Before using the form, however, counsel should determine local court practice regarding whether the notice should set forth the time and place of hearing or whether the time and place of hearing are to be appointed by the court.

REFERENCES

California Points and Authorities

For memoranda of points and authorities in support of and in opposition to a motion to vacate a judgment and enter a different judgment, see CALIFORNIA POINTS AND AUTHORITIES, Ch. 155, Motions After Trial (Matthew Bender)

State Statutes

Grounds of motion to vacate judgment. Code Civ. Proc. 663[Deering's]

Notice of intention to move to vacate judgment. Code Civ. Proc. 663a[Deering's]

California Rules of Court

Extension of time to appeal when notice of intention to move for order vacating judgment is filed. Cal. Rules of Ct., Rule 3(b)[Deering's]

Judge who will hear and determine motion as judge who presided at trial. Cal. Rules of Ct., Rule 236[Deering's]

Decisions

Motion is proper to set aside judgment and enter another and different judgment whenever court draws incorrect legal conclusion or renders erroneous judgment upon facts found by it to exist. County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 738, 97 Cal. Rptr. 385, 488 P.2d 953

Motion to vacate and set aside judgment and enter another and different judgment was proper only after final judgments and not after interlocutory judgments or orders. Remington v. Davis (1951) 108 Cal. App. 2d 251, 253, 238 P.2d 662

On hearing motion to vacate and set aside judgment and enter different judgment, court has no power to consider or determine any matter except what judgment should be entered on facts as found. Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 190 P. 469
Form 21 Order Setting Aside and Vacating Judgment and Directing Entry of Another and Different Judgment [Code Civ. Proc. 663, 663a]
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]


_________________________ [name ], )
Plaintiff,)NO. __________
vs. )ORDER SETTING ASIDE
)AND VACATING JUDGMENT
)AND DIRECTING ENTRY OF
)ANOTHER AND DIFFERENT
)JUDGMENT
_________________________ [name ], )
Defendant.)
)

The motion of _________________ [specify moving party, e.g., plaintiff] _________________ [name ] for an order setting aside and vacating the judgment entered in favor of _________________ [specify adverse party, e.g., defendant] _________________ [name ] on _________________ [date ], by this court and directing the entry of another and different judgment, on the ground _________________ [specify, e.g., that the legal basis for the decision filed by the court is incorrect and erroneous in that it is not _________________ (consistent with or supported by) the facts of the case or that the judgment made by the court, entered on _________________ [date ], is not _________________ (consistent with or supported by) the special verdict rendered], came on regularly for hearing before the court this date. Plaintiff appeared by counsel _________________ [name ]; defendant appeared by counsel _________________ [name ].

On proof made to the satisfaction of the court that the motion ought to be granted,

IT IS ORDERED that the motion be, and hereby is, granted and the judgment entered is vacated and set aside.

[Where the statement of the decision is to be amended and corrected add IT IS FURTHER ORDERED that the statement of decision which read ``_________________,'' is hereby changed to read ``_________________,'' (specify changes )].

IT IS FURTHER ORDERED that the following judgment be entered: _________________ [recite other and different judgment ].

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court

COMMENTS

Use of Form

This form is for use as an order setting aside and vacating a judgment and directing the entry of another and different judgment. However, before using the form, counsel should check to determine local court practice regarding whether or not the new judgment is to be incorporated as a part of the order setting aside and vacating the judgment and directing the entry of another and different judgment.

REFERENCES

Decisions

Where court fails to correct conclusions of law and only enters different judgment, judgment as superseding incorrect conclusion of law and failure to correct as not requiring reversal of judgment. Howard A. Deason & Co. v. Costa Tierra Ltd. (1969) 2 Cal. App. 3d 742, 760, 83 Cal. Rptr. 105 (decided when conclusions of law existed under Code Civ. Proc. 632[Deering's] )

Order that vacates judgment, but fails to enter new judgment, as void since Code Civ. Proc. 663[Deering's] specifically provides for vacation of judgment and entry of another judgment. Dolan v. Superior Court (1920) 47 Cal. App. 235, 241, 190 P. 469