Case Number: EC058649 Hearing Date: May 23, 2014 Dept: B

Motion for New Trial

This case arises from a dispute regarding a bakery business. The matter proceeded to trial and on December 26, 2013 the jury rendered a verdict.
This hearing concerns the Cross-Defendants’ second motion for a new trial. The Cross-Defendants filed its first motion for a new trial along with a notice of intent to move for new trial on January 24, 2014. The matter was set for a hearing on March 7, 2014 and then continued to March 25, 2014. This would have been within the 60 days time period.

However, on March 24, 2014, the Cross-Defendants filed a notice that they were taking their motion off calendar. The Cross-Defendants also filed a notice of intent to move for a new trial and a new motion on March 24, 2014.

To be absolutely clear: following is a chronology of Cross-Defendants motion for new trial:
1. First Notice of Intent to Move for New Trial Filed: January 24, 2014
2. Notice of taking motion for new trial off calendar: March 24, 2014
3. Second Notice of Intent to Move for New Trial Filed: March 24, 2014

In the current motion, the Court is without jurisdiction to apply the procedures for a new trial because the Cross-Defendants’ motion was not filed or heard in the required time. CCP section 660 states that the power of the Court to rule on a motion for a new trial shall expire 60 days after “filing of the first notice of intention to move for a new trial” (italics added). Section 660 states that if a motion for new trial is not determined within the 60-day period, the effect shall be a denial of the motion without further order of the Court.

The 60-day limitation period of section 660 is mandatory and jurisdictional and may not be changed by consent, waiver, agreement or acquiescence. Jones v. Sieve (1988) 203 Cal.App.3d 359, 369; Tabor v. Superior Court of Los Angeles County (1946) 28 Cal. 2d 505, 507-508. An order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court’s jurisdiction and void. Jones, 203 Cal.App.3d at 369.

This rule concerns a jurisdictional limitation and the 60-day period cannot be extended by any of the following procedural methods:

1) as an exercise of judicial discretion under the guise of mistake, inadvertence, surprise, or excusable neglect under section 473,
2) by means of a nunc pro tunc order, or
3) by the procedural device of moving under section 1008 for reconsideration.
Jones, 203 Cal.App.3d at 369.

It is the duty of the party to be present and see that the party’s motion for a new trial is set for hearing within the statutory period. Meskell v. Culver City Unified School District (1970) 12 Cal.App.3d 815, 824. If the motion is inadvertently continued to a date too late under the statute, the party should request that the Court advance the matter on the calendar. Id. When the party is guilty of lack of diligence in the prosecution and presentation of the motion, the party cannot complain of the Court’s inadvertence. Id.

Here, the Cross-Defendants filed the first notice of intent to move for a new trial on January 24, 2014. Under CCP section 660, the Court’s jurisdiction to rule on a motion for new trial expired 60 days after that date. An order granting a motion for a new trial more than 60 days after the filing of the notice of intention is beyond the Court’s jurisdiction and void. Allen v. Paradise Grange No. 490, Inc. (1959) 176 Cal. App. 2d 227, 230.

Accordingly, the Court’s jurisdiction to rule on a motion for new trial ended 60 days after January 24, 2014, or on Tuesday, March 25, 2014 one day after the second notice was filed. The pending hearing is set for May 2, 2014. Since the matter was not set within the 60 day period, the Court has no jurisdiction to grant a new trial.

The Cross-Defendants’ decision to take their original motion for new trial off calendar did not, unfortunately, restart the 60-day period. As noted above, CCP section 660 expressly states that the time begins to run from the filing of the first notice of intent to move for new trial. Since the first notice of intent to move for new trial was filed on January 24, 2014, the 60-day time period ran from that notice and not from the Cross-Defendants’ second notice of intent to move for new trial.

Therefore, the Court takes the Cross-Defendants’ motion off calendar because it is moot and any order granting it would be void for lack of jurisdiction.