Motion for a new trial in California

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

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

Law authorizing a motion for a new trial in California.

A motion for a new trial in California is governed by the statutes found in Code of Civil Procedure sections 656 through 663.2.

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

Code of Civil Procedure section 657 states in pertinent part that

“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.
  1. 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.
  1. Accident or surprise, which ordinary prudence could not have guarded against.
  1. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
  1. Excessive or inadequate damages.
  1. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
  1. Error in law, occurring at the trial and excepted to by the party making the application.”

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

Deadline to file a motion for a new trial in California.

There are strict deadlines that must be met in order to file a motion for a new trial in California.

A party that wants to file a motion for a new trial in California must first serve and file a notice of their  intention to move for a new trial and specify all of the seven grounds listed in section 657. This MUST be done in a timely manner or the motion will be denied.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

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

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

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

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

A memorandum of points and authorities with citations to case law and statutory authority must be drafted and should be filed and served at the same time as the supporting affidavits.

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

The California Supreme Court has stated that trial courts have broad discretion in ruling on motions for new trial, with great deference given to the ruling, which will be set aside only on a showing of “manifest and unmistakable abuse of discretion.” See Brandelius v. City and County of San Francisco (1957) 47 Cal.2d 729, 733-734; see also Jimenez v. Sears Roebuck & Co. (1971) 4 Cal.3d 379, 387.

The California Supreme Court has also stated that,

“The determination of a motion for a new trial rests so completely within 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.  So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.”  See Jimenez v. Sears, Roebuck & Company, supra 4 Cal. 3d at 387. (Citations and quotations omitted.)

The California Supreme Court has stated that a motion for a new trial in California can also challenge judgments of dismissal after a demurrer is sustained without leave to amend, judgments of dismissal generally, judgments on the pleadings and decisions granting judgments on agreed statements of ultimate facts. See Carney v. Simmonds, (1957) 49 Cal. 2d 84, 88.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion for a new trial is the appropriate strategy in your case.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Motion for terminating sanctions in California

A motion for terminating sanctions in California is the topic of this blog post.

This blog post will discuss obtaining an order of the Court, pursuant to Code of Civil Procedure section 2030.290 for failure to respond to several orders of the Court to respond to an interrogatory or interrogatories although the basic principles that are discussed apply to any other authorized method of written discovery.

A terminating sanction is an extremely harsh remedy that can result in the Court striking the answer of a defendant, or the complaint of a plaintiff and entering a default and even a default judgment against them.

Because filing a motion for terminating sanctions is an extremely harsh remedy they should only be filed when you can show a persistent failure of a party to comply with a court order or orders to respond to discovery.

Pursuant to Code of Civil Procedure §§ 2023.010(d), (g), and (i), “failing to respond or to submit to authorized methods of discovery”, “disobeying a court order to provide discovery”, and “failing to confer” are all misuses of the discovery process.

California Code of Civil Procedure § 2030.290(c) states, in relevant part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: (c) …If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.”

Courts including the United States Supreme Court and a California Court of Appeal have stated in published decisions that failing to respond to discovery creates a presumption that the resisting party is admitting a lack of merit in their claim or defense.

Terminating sanctions are appropriate when a chronic pattern of delay or evasiveness by the defaulting party is egregious enough to warrant denial of a trial on the merits.  Electronic Funds Solutions, LLC v Murphy (2005) 134 Cal. App. 4th 1161, 1183 (in that case the Court ruled that terminating sanctions were appropriate when the defendants’ “persistent failure to comply with the court’s discovery orders resulted in a discovery stay and continuance of the trial”).

And terminating sanctions have been deemed proper if the authority of the court cannot be vindicated by the use of a less severe sanction.

In fact, in one recent California Court of Appeal published decision an abuse of discretion was found where the trial court had not ordered any terminating sanctions during the trial even though it was aware that defendant had still not complied with previous discovery orders.  In Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th  967, 994, the Court ruled that the trial court abused its discretion by not ordering terminating sanctions during trial when it learned that defendant still had failed to comply with discovery orders and had failed to produce documents that should have been produced months earlier.

Although terminating sanctions are an extremely harsh remedy, in the right situation where the other party has demonstrated a persistent failure to comply with a court order to respond to discovery, they are extremely useful.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion for terminating sanctions is appropriate in your case.  Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Civil litigation attorney in Riverside County, California

Civil litigation attorney in Riverside County, California.

Are you searching for a civil litigation attorney in Riverside County, California?

Nathan Mubasher is a civil litigation attorney located in Riverside County.  The Law Offices of Nathan Mubasher is located in the City of Corona and Mr. Mubasher is a native of Riverside County having lived there for 26 years.  Mr. Mubasher will provide you with a free consultation and evaluation of your case.

Mr. Mubasher is an experienced civil litigation attorney that has appeared in almost every court located in Los Angeles, San Bernardino, and Riverside County, even in the courts that are considered “remote” by most attorneys.  Mr. Mubasher is an astute attorney that understands that studying the local rules before making an appearance is very important as every court, and judge for that matter is different in significant respects based on the customs of the locality or the preferences of the individual judge.

Mr. Mubasher can provide you all the details on the cost of representation, the likelihood of success, and what action to take depending on your appetite for risk. Most importantly, Mr. Mubasher provides genuine care and concern for you, and will stand by you throughout your matter.

Mr. Mubasher has gained extensive knowledge about law, medicine and business. He is also very experienced in dealing with people in high-pressure situations. He can put this experience to work for you.

Mr. Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside.  He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California.  He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys.  He is very experienced in mediation and other forms of Alternative Dispute Resolution as he has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Mr.  Mubasher has sued the largest banks in the nation for vast sums of damages, sometimes in the millions. Counsel for the banks would sometimes offer $500.00 for him to dismiss the complaint.  Even if this was an insult for his clients who were homeowners who were mistreated for years by poor mortgage banking procedures, there was a take-away. That takeaway was that there was a willingness to settle that he could not ignore, no matter how small the price was.  Mr. Mubasher would take that small settlement offer and use it as a stepping stone for much larger settlements, many times in the tens of thousands, or for an entirely different settlement.

Mr. Mubasher understands that had he been the aggressive attorney, like the proverbial “pit bull attorney”, he would have cost his clients much of their hard earned money, by likewise becoming insulted, and ending all settlement discussions, only to be met in court by a judge or jury who might not see things the way that he and his client did.  He knows from long and hard experience that sometimes, the victory comes early, by settling, either as a defendant or a plaintiff – because it signifies a willingness to be reasonable, and there are situations where reasonable people can always agree to get along and come up with a creative solution that all parties can agree on.

Civil litigation practice areas for Nathan Mubasher.

Mr. Mubasher has extensive experience in civil litigation cases in such various areas of the law as:

Personal Injury and Medical Malpractice

Ethics and Professional Responsibility

Legal Malpractice

Landlord-Tenant Law

Real Estate Law

Commercial or Business Disputes

Arbitration and Mediation

Debt Collection and Debt Settlement

Employment and Labor

Wrongful Termination

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.