SECTIONS 656-663.2 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 656-663.2

656. A new trial is a re-examination of an issue of fact in the
same court after a trial and decision by a jury, court, or referee.

657. The verdict may be vacated and any other decision may be
modified or vacated, in whole or in part, and a new or further trial
granted on all or part of the issues, on the application of the party
aggrieved, for any of the following causes, materially affecting the
substantial rights of such party:
1. Irregularity in the proceedings of the court, jury or adverse
party, or any order of the court or abuse of discretion by which
either party was prevented from having a fair trial.
2. Misconduct of the jury; and whenever any one or more of the
jurors have been induced to assent to any general or special verdict,
or to a finding on any question submitted to them by the court, by a
resort to the determination of chance, such misconduct may be proved
by the affidavit of any one of the jurors.
3. Accident or surprise, which ordinary prudence could not have
guarded against.
4. Newly discovered evidence, material for the party making the
application, which he could not, with reasonable diligence, have
discovered and produced at the trial.
5. Excessive or inadequate damages.
6. Insufficiency of the evidence to justify the verdict or other
decision, or the verdict or other decision is against law.
7. Error in law, occurring at the trial and excepted to by the
party making the application.
When a new trial is granted, on all or part of the issues, the
court shall specify the ground or grounds upon which it is granted
and the court's reason or reasons for granting the new trial upon
each ground stated.
A new trial shall not be granted upon the ground of insufficiency
of the evidence to justify the verdict or other decision, nor upon
the ground of excessive or inadequate damages, unless after weighing
the evidence the court is convinced from the entire record, including
reasonable inferences therefrom, that the court or jury clearly
should have reached a different verdict or decision.
The order passing upon and determining the motion must be made and
entered as provided in Section 660 and if the motion is granted must
state the ground or grounds relied upon by the court, and may
contain the specification of reasons. If an order granting such
motion does not contain such specification of reasons, the court
must, within 10 days after filing such order, prepare, sign and file
such specification of reasons in writing with the clerk. The court
shall not direct the attorney for a party to prepare either or both
said order and said specification of reasons.
On appeal from an order granting a new trial the order shall be
affirmed if it should have been granted upon any ground stated in the
motion, whether or not specified in the order or specification of
reasons, except that (a) the order shall not be affirmed upon the
ground of the insufficiency of the evidence to justify the verdict or
other decision, or upon 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 upon the
ground of the insufficiency of the evidence to justify the verdict or
other decision, or upon the ground of excessive or inadequate
damages, it shall be conclusively presumed that said order as to such
ground was made only for the reasons specified in said order or said
specification of reasons, and such order shall be reversed as to
such ground only if there is no substantial basis in the record for
any of such reasons.

657.1. A new trial may also be granted as provided in Section 914
of this code.

658. When the application is made for a cause mentioned in the
first, second, third and fourth subdivisions of Section 657, it must
be made upon affidavits; otherwise it must be made on the minutes of
the court.

659. The party intending to move for a new trial must file with the
clerk and serve upon each adverse party a notice of his intention to
move for a new trial, designating the grounds upon which the motion
will be made and whether the same will be made upon affidavits or the
minutes of the court or both, either
1. Before the entry of judgment; or
2. Within 15 days of the date of mailing notice of entry of
judgment by the clerk of the court pursuant to Section 664.5, or
service upon him by any party of written notice of entry of judgment,
or within 180 days after the entry of judgment, whichever is
earliest; provided, that upon the filing of the first notice of
intention to move for a new trial by a party, each other party shall
have 15 days after the service of such notice upon him to file and
serve a notice of intention to move for a new trial.
Said notice of intention to move for a new trial shall be deemed
to be a motion for a new trial on all the grounds stated in the
notice. The time above specified shall not be extended by order or
stipulation or by those provisions of Section 1013 of this code which
extend the time for exercising a right or doing an act where service
is by mail.

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

660. On the hearing of such motion, reference may be had in all
cases to the pleadings and orders of the court on file, and when the
motion is made on the minutes, reference may also be had to any
depositions and documentary evidence offered at the trial and to the
report of the proceedings on the trial taken by the phonographic
reporter, or to any certified transcript of such report or if there
be no such report or certified transcript, to such proceedings
occurring at the trial as are within the recollection of the judge;
when the proceedings at the trial have been phonographically
reported, but the reporter's notes have not been transcribed, the
reporter must upon request of the court or either party, attend the
hearing of the motion and shall read his notes, or such parts thereof
as the court, or either party, may require.
The hearing and disposition of the motion for a new trial shall
have precedence over all other matters except criminal cases, probate
matters and cases actually on trial, and it shall be the duty of the
court to determine the same at the earliest possible moment.
Except as otherwise provided in Section 12a of this code, the
power of the court to rule on a motion for a new trial shall expire
60 days from and after the mailing of notice of entry of judgment by
the clerk of the court pursuant to Section 664.5 or 60 days from and
after service on the moving party by any party of written notice of
the entry of the judgment, whichever is earlier, or if such notice
has not theretofore been given, then 60 days after filing of the
first notice of intention to move for a new trial. If such motion is
not determined within said period of 60 days, or within said period
as thus extended, the effect shall be a denial of the motion without
further order of the court. A motion for a new trial is not
determined within the meaning of this section until an order ruling
on the motion (1) is entered in the permanent minutes of the court or
(2) is signed by the judge and filed with the clerk. The entry of a
new trial order in the permanent minutes of the court shall
constitute a determination of the motion even though such minute
order as entered expressly directs that a written order be prepared,
signed and filed. The minute entry shall in all cases show the date
on which the order actually is entered in the permanent minutes, but
failure to comply with this direction shall not impair the validity
or effectiveness of the order.

661. The motion for a new trial shall be heard and determined by
the judge who presided at the trial; provided, however, that in case
of the inability of such judge or if at the time noticed for hearing
thereon he is absent from the county where the trial was had, the
same shall be heard and determined by any other judge of the same
court. Upon the expiration of the time to file counter affidavits the
clerk forthwith shall call the motion to the attention of the judge
who presided at the trial, or the judge acting in his place, as the
case may be, and such judge thereupon shall designate the time for
oral argument, if any, to be had on said motion. Five (5) days'
notice by mail shall be given of such oral argument, if any, by the
clerk to the respective parties. Such motion, if heard by a judge
other than the trial judge shall be argued orally or shall be
submitted without oral argument, as the judge may direct, not later
than ten (10) days before the expiration of the time within which the
court has power to pass on the same.

662. In ruling on such motion, in a cause tried without a jury, 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,
vacate the judgment, in whole or in part, and grant a new trial on
all or part of the issues, or, in lieu of granting a new trial, may
vacate and set aside the statement of decision and judgment and
reopen the case for further proceedings and the introduction of
additional evidence with the same effect as if the case had been
reopened after the submission thereof and before a decision had been
filed or judgment rendered. Any judgment thereafter entered shall be
subject to the provisions of sections 657 and 659.

662.5. In any civil action where after trial by jury an order
granting a new trial limited to the issue of damages would be proper,
the trial court may in its discretion:
(a) If the ground for granting a new trial is inadequate damages,
make its order granting the new trial subject to the condition that
the motion for a new trial is denied if the party against whom the
verdict has been rendered consents to an addition of so much thereto
as the court in its independent judgment determines from the evidence
to be fair and reasonable.
(b) If the ground for granting a new trial is excessive damages,
make its order granting the new trial subject to the condition that
the motion for a new trial is denied if the party in whose favor the
verdict has been rendered consents to a reduction of so much thereof
as the court in its independent judgment determines from the evidence
to be fair and reasonable.

663. A judgment or decree, when based upon a decision by the court,
or the special verdict of a jury, may, upon motion of the party
aggrieved, be set aside and vacated by the same court, and another
and different judgment entered, for either of the 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 case when
the judgment is set aside, the statement of decision shall be amended
and corrected.
2. A judgment or decree not consistent with or not supported by
the special verdict.

663a. The party intending to make the motion mentioned in the last
section must file with the clerk and serve upon the adverse party a
notice of his intention, designating the grounds upon which the
motion will be made, and specifying the particulars in which the
legal basis for the decision is not consistent with or supported by
the facts, or in which the judgment or decree is not consistent with
the special verdict, either
1. Before the entry of judgment; or
2. Within 15 days of the date of mailing of notice of entry of
judgment by the clerk of the court pursuant to Section 664.5, or
service upon him by any party of written notice of entry of judgment,
or within 180 days after the entry of judgment, whichever is
earliest.
The provisions of Section 1013 of this code extending the time for
exercising a right or doing an act where service is by mail shall
not apply to extend the time above specified.
An order of the court granting such motion may be reviewed on
appeal in the same manner as a special order made after final
judgment.

663.1. The court may grant a new trial of any action or proceeding
when all of the following conditions exist:
(a) Any proposed bill of exceptions or statement of the case on
motion for a new trial is lost or destroyed by reason of
conflagration or other public calamity.
(b) No other record of the proceedings upon the trial thereof can
be obtained.
(c) Such action or proceeding is subject to review by motion for
new trial pending at the time of such loss or destruction.
(d) The court in which such action or proceeding is pending deems
it impossible or impracticable to restore such proceedings and to
settle a bill of exceptions or statement of the case containing such
proceedings, so as to enable the court to review the judgment or
order therein by motion for new trial.
(e) At the time of such loss or destruction a motion for new trial
was pending.
In order to grant such new trial, it shall be unnecessary to have
any bill of exceptions or statement of the case settled, but upon the
facts recited in this section being shown to the satisfaction of the
court by affidavit or otherwise, the court may grant such new trial.

663.2. Pending the hearing of a motion pursuant to Section 663.1 to
grant a new trial, the time within which a bill of exceptions may be
prepared, served, or presented for settlement shall be extended and
shall not commence to run until the decision upon the motion. The
motion must be made within 30 days after the loss or destruction of
the records.