New trial motion in California dissolution (divorce) case

A new trial motion in a California dissolution (divorce) case is the topic of this blog post.  A new trial motion in California can also be filed in a legal separation or an annulment case as well as a divorce.  The advantage of filing new trial motion is that it permits the court to reexamine an issue of fact or law.

Motions for a new trial in a divorce case in California can be filed pursuant to Code of Civil Procedure section 657 and Family Code section 210 on several grounds including (1) irregularity in the proceedings of the court, adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) accident or surprise, which ordinary prudence could not have guarded against; (3) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (4) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law and (5) error in law, occurring at the trial and excepted to by the party making the application.

A motion for a new trial may be made in a California divorce case pursuant to Family Code

§ 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

When the application for a new trial is made for any ground 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. Note that the second ground would obviously not apply as a jury trial is not authorized in any divorce proceeding in California.

However, there are strict deadlines that must be met.   The first thing any party who wants to request a new trial should do is file a notice of their intention to move for a new trial and specify all of the grounds listed in section 657 that even remotely could be applicable in that particular case.  This MUST be done in a timely manner or their 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.

While not technically required a memorandum of points and authorities with citations to case law and statutory authority is strongly recommended 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 expires 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 no notice has been given, then 60 days after filing of the first notice of intention to move for a new trial. If the motion for a new trial is not determined within the 60 day period, or within that period as extended by law, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

Attorneys or parties in California who would like to view a portion of a sample 15 page sample motion for new trial in a California divorce case containing brief instructions, a notice of intention to move for new trial, memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author of this blog post can use the link shown below.

Sample motion for new trial for California divorce

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The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.