State Court Notice of Intention to Move for New Trial / Motion to Vacate Judgment (Civil)

SUPERIOR COURT OF THE STATE OF CALIFORNIA — COUNTY OF [COUNTY]

[MOVING PARTY]'S NOTICE OF INTENTION TO MOVE FOR NEW TRIAL (Cal. Code Civ. Proc. §§ 657, 659); AND, IN THE ALTERNATIVE, NOTICE OF INTENTION TO MOVE TO SET ASIDE AND VACATE THE JUDGMENT AND ENTER ANOTHER AND DIFFERENT JUDGMENT (Cal. Code Civ. Proc. §§ 663, 663a)

Notice of entry of judgment was served on [__/__/____]. The Court's power to rule on this motion expires on [__/__/____] (75 days after service of notice of entry of judgment). (Cal. Code Civ. Proc. § 660(c).)

NOTICE OF INTENTION TO MOVE FOR NEW TRIAL

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that [MOVING PARTY NAME] ("Movant"), the party aggrieved, hereby gives notice of its intention to move for a new trial in the above-entitled action pursuant to California Code of Civil Procedure sections 657 and 659, on all or part of the issues, as to the [verdict / decision / judgment] entered on [__/__/____] in favor of [OPPOSING PARTY] and against Movant.

This Notice of Intention is deemed to be a motion for a new trial on all of the grounds stated below. (Code Civ. Proc., § 659(b).) The motion will be made [☐ upon the minutes of the court / ☐ upon affidavits / ☐ upon both the minutes of the court and affidavits], as designated below and as required by Code of Civil Procedure section 658.

Statutory Grounds for New Trial (Cal. Code Civ. Proc. § 657)

The verdict and/or decision may be vacated, and a new or further trial granted, on the following grounds, materially affecting the substantial rights of Movant. Movant designates each checked ground (and reserves all grounds, to avoid waiver):

☐ (1) Irregularity in the proceedings. "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." (On affidavits.)

☐ (2) Misconduct of the jury. "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." (On affidavits.)

☐ (3) Accident or surprise. "Accident or surprise, which ordinary prudence could not have guarded against." (On affidavits.)

☐ (4) Newly discovered evidence. "Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." (On affidavits.)

☐ (5) Excessive or inadequate damages. "Excessive or inadequate damages." (On the minutes; see § 662.5 additur/remittitur.)

☐ (6) Insufficiency of the evidence / decision against law. "Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law." (On the minutes.)

☐ (7) Error in law. "Error in law, occurring at the trial and excepted to by the party making the application." (On the minutes.)

This Notice of Intention is based on this Notice; the Memorandum of Points and Authorities to be filed within 10 days (§ 659a); the supporting affidavits/declarations and exhibits to be served and filed within the period specified by § 659a; the minutes of the court; the trial record and reporter's transcript; and all pleadings, records, and papers on file in this action.

Dated: [__/__/____]

_______________________________
[ATTORNEY NAME] (State Bar No. [____])
[LAW FIRM NAME]
[ADDRESS] | [PHONE] | [EMAIL]
Attorney for [MOVING PARTY]

IN THE ALTERNATIVE: NOTICE OF INTENTION TO MOVE TO SET ASIDE AND VACATE THE JUDGMENT (Cal. Code Civ. Proc. §§ 663, 663a)

PLEASE TAKE FURTHER NOTICE that, in the alternative, Movant hereby gives notice of its intention to move to set aside and vacate the judgment entered on [__/__/____] and to enter another and different judgment pursuant to California Code of Civil Procedure sections 663 and 663a.

This motion will be made on the ground that the judgment rests on an incorrect or erroneous legal basis not consistent with or not supported by the facts [and/or is not consistent with the special verdict]. The particulars in which the legal basis for the decision is not consistent with or supported by the facts (or in which the judgment is not consistent with the special verdict) are as follows: [state each particular with specificity, citing the findings/special verdict].

Upon such motion, Movant requests that the Court vacate the existing judgment and enter the following different judgment: [describe the corrected judgment sought].

Dated: [__/__/____]

_______________________________
[ATTORNEY NAME] (State Bar No. [____])
Attorney for [MOVING PARTY]

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

By this motion, Movant respectfully moves for a new trial under Code of Civil Procedure section 657 [and, in the alternative, to vacate the judgment and enter a different judgment under section 663]. As shown below, [one-sentence summary of the strongest ground — e.g., "the verdict is against the weight of the evidence and the damages awarded are excessive as a matter of law" / "prejudicial error in the jury instructions deprived Movant of a fair trial"].

II. PROCEDURAL BACKGROUND AND THE JUDGMENT AT ISSUE

1. This action was tried [to a jury / to the court] before the Honorable [JUDGE NAME] commencing [__/__/____].
2. On [__/__/____], the [jury returned a verdict / the court rendered its decision] [describe].
3. Judgment was entered on [__/__/____] in favor of [OPPOSING PARTY] and against Movant [describe the judgment and amount].
4. [Notice of entry of judgment was served by the clerk under § 664.5 / written notice of entry was served by a party] on [__/__/____]. This Notice of Intention is filed within 15 days of that service (and within 180 days after entry of judgment), as required by Code of Civil Procedure section 659(a)(2). The Court's power to rule expires 75 days after that date (§ 660(c)).

III. LEGAL STANDARD

"The right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in [section 657]." (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Because new-trial motions are creatures of statute, "the procedural steps … for making and determining such a motion are mandatory and must be strictly followed." (Linhart v. Nelson (1976) 18 Cal.3d 641, 644.) Whatever the ground asserted, Movant must show prejudice: the court may not grant a new trial where the error was harmless. (Cal. Const., art. VI, § 13.)

On the grounds of insufficiency of the evidence (§ 657(6)) or excessive/inadequate damages (§ 657(5)), the trial court sits as an independent trier of fact — a "thirteenth juror" — and may reweigh the evidence, reassess witness credibility, and draw inferences different from the jury's; the court may grant a new trial on these grounds only if, "after weighing the evidence[,] the court is convinced from the entire record … that the court or jury clearly should have reached a different verdict or decision." (Code Civ. Proc., § 657.)

IV. ARGUMENT

A. ☐ Ground (1) — Irregularity in the Proceedings / Abuse of Discretion

[Identify the irregularity or order/abuse of discretion that prevented a fair trial — e.g., an improper evidentiary ruling, violation of an in limine order, or improper communication. Support with the affidavit/declaration below. Show prejudice.] (Code Civ. Proc., § 657(1).)

B. ☐ Ground (2) — Misconduct of the Jury

[Identify the juror misconduct, supported by juror or party declarations. Show that neither Movant nor counsel was aware of the misconduct until after the verdict. A presumption of prejudice arises from juror misconduct.] (Code Civ. Proc., § 657(2); Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416–417.)

C. ☐ Ground (3) — Accident or Surprise

[Identify the accident or surprise that ordinary prudence could not have guarded against, and the diligence exercised. Note: this ground cannot rest on mere attorney mistake or negligence.] (Code Civ. Proc., § 657(3).)

D. ☐ Ground (4) — Newly Discovered Evidence

[Identify the newly discovered, material evidence and show, by affidavit, that it could not with reasonable diligence have been discovered and produced at trial, and that it is likely to produce a different result.] (Code Civ. Proc., § 657(4).)

E. ☐ Ground (5) — Excessive or Inadequate Damages

[Demonstrate, from the entire record, that the damages are excessive (or inadequate) such that the court is convinced the jury clearly should have reached a different result. Note the court's authority to order a conditional new trial subject to additur or remittitur under § 662.5.] (Code Civ. Proc., §§ 657(5), 662.5.)

F. ☐ Ground (6) — Insufficiency of the Evidence / Decision Against Law

[Show, from the entire record, that the evidence is insufficient to justify the verdict/decision, or that the verdict is against law (e.g., inconsistent special-verdict findings). The court must weigh the evidence as the thirteenth juror.] (Code Civ. Proc., § 657(6).)

G. ☐ Ground (7) — Error in Law

[Identify the legal error occurring at trial that was excepted to — e.g., erroneous jury instructions, an improper evidentiary ruling, or application of the wrong legal standard — and show prejudice.] (Code Civ. Proc., § 657(7); McCarty v. Dept. of Transp. (2008) 164 Cal.App.4th 955, 983–984.)

H. ☐ Alternative — Motion to Vacate and Enter a Different Judgment (§ 663)

[Show that the judgment rests on an incorrect or erroneous legal basis not consistent with or supported by the facts found (or the special verdict), and that on those same facts a different judgment should be entered. This is not a re-trial; it asks the court to correct the legal conclusion drawn from facts already determined.] (Code Civ. Proc., § 663.)

V. CONCLUSION

For the foregoing reasons, Movant respectfully requests that the Court grant a new trial on the issues identified above [or, in the alternative, vacate the judgment and enter a different judgment as specified], together with such other relief as the Court deems just.

Dated: [__/__/____]

_______________________________
[ATTORNEY NAME] (State Bar No. [____])
Attorney for [MOVING PARTY]

DECLARATION OF [DECLARANT NAME] IN SUPPORT OF MOTION FOR NEW TRIAL

I, [DECLARANT NAME], declare:

1. I am [the attorney of record for Movant / a party / title and relationship]. I have personal knowledge of the facts stated herein and, if called as a witness, could and would competently testify thereto.

2. The trial and judgment. This matter was tried before the Honorable [JUDGE NAME] beginning [__/__/____]. On [__/__/____], [the jury returned a verdict / the court rendered its decision], and judgment was entered on [__/__/____].

3. Timeliness. Notice of entry of judgment was served on [__/__/____]. This Notice of Intention is filed within 15 days of that service and within 180 days of entry of judgment.

4. Facts supporting the ground(s) asserted. [State, with specificity, the facts supporting each affidavit-based ground checked above — e.g., the irregularity, the juror misconduct and when it was discovered, the accident/surprise and the diligence exercised, or the newly discovered evidence and why it could not have been produced at trial.]

5. [Attach and authenticate supporting exhibits: "Attached as Exhibit A is a true and correct copy of [document]."]

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

Executed on [__/__/____] at [CITY], California.

_______________________________
[DECLARANT NAME]

[PROPOSED] ORDER

The motion of [MOVING PARTY] for a new trial under Code of Civil Procedure section 657 [and, in the alternative, to vacate the judgment under section 663], came on for hearing on [__/__/____] before the Honorable [JUDGE NAME]. Having considered the moving papers, the supporting affidavits/declarations, the minutes and record of trial, any opposition and reply, and the argument of counsel:

IT IS ORDERED that the motion for a new trial is GRANTED [on all issues / on the issue(s) of __________], on the following ground(s): [court to specify ground(s) and reasons per § 657].

[OR] IT IS ORDERED that the judgment entered [__/__/____] is VACATED and a different judgment shall be entered as follows: [specify]. (Code Civ. Proc., § 663.)

[OR] IT IS ORDERED that the motion is DENIED.

DATED: ____________________

_______________________________
HON. [JUDGE NAME]
Judge of the Superior Court

TIMING AND APPELLATE NOTES (California)

Critical: A motion for judgment notwithstanding the verdict (JNOV) under CCP § 629 is frequently filed together with, or in the alternative to, a new-trial motion and is subject to its own related deadlines; consider whether a JNOV motion should accompany this motion.

CERTIFICATE / PROOF OF SERVICE

(Cal. Code Civ. Proc. §§ 1013, 1013a; Cal. R. Ct. 2.251(c))

I am employed in the County of [COUNTY], State of California. I am over the age of 18 and not a party to this action. My business address is [ADDRESS].

On [__/__/____], I served the foregoing [MOVING PARTY]'S NOTICE OF INTENTION TO MOVE FOR NEW TRIAL (AND, IN THE ALTERNATIVE, TO VACATE THE JUDGMENT); MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF [DECLARANT NAME] on the interested parties in this action by:

☐ ELECTRONIC SERVICE (CCP § 1010.6; Cal. R. Ct. 2.251)
☐ FIRST-CLASS MAIL (CCP §§ 1013, 1013a)
☐ OVERNIGHT DELIVERY (CCP § 1013(c))
☐ PERSONAL SERVICE (CCP § 1011)

addressed as follows:

[NAME & ADDRESS / EMAIL OF RECIPIENT(S)]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on [__/__/____] at [CITY], California.

_______________________________
[NAME OF DECLARANT]

SOURCES & REFERENCES

• Cal. Code Civ. Proc. § 657 (new trial; seven grounds; specification of reasons): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=657.&lawCode=CCP
• Cal. Code Civ. Proc. § 658 (affidavits vs. minutes): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=658.&lawCode=CCP
• Cal. Code Civ. Proc. § 659 (Notice of Intention to Move for New Trial): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=659.&lawCode=CCP
• Cal. Code Civ. Proc. § 659a (time for affidavits and briefs): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=659a.&lawCode=CCP
• Cal. Code Civ. Proc. § 660 (hearing; 75-day expiration of power to rule): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=660.&lawCode=CCP
• Cal. Code Civ. Proc. § 662.5 (conditional new trial; additur/remittitur): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=662.5.&lawCode=CCP
• Cal. Code Civ. Proc. §§ 663, 663a (motion to vacate judgment and enter a different judgment): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=663.&lawCode=CCP
• Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162; Linhart v. Nelson (1976) 18 Cal.3d 641 (statutory grounds; strict compliance).
• Ryan v. Rosenfeld (2017) 3 Cal.5th 124 (order denying § 663 motion is separately appealable).