Winning Your Appeal at the Trial Court Level:
Motion for New Trial
You must file a motion for new trial in order to preserve certain issues for appeal. For instance, you can only make the argument on appeal that the damage award was excessive or inadequate by first filing a motion for new trial. If you do not, you waive the issue on appeal. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919.)
In addition, the only way to make a record of certain events that occurred off the record is through a motion for new trial. This includes, for example, issues of jury misconduct during deliberations, newly discovered evidence, agreements to or withdrawals of proposed jury instructions during a chambers conference.
Procedure: In order to file a motion for new trial, you must first file a notice of intention to move for new trial. (Cal. Civ. Proc. §659.) Your motion for new trial is limited to the grounds stated in your notice. (Wagner v. Singleton (1982) 133 Cal.App.3d 69.) Typically, for that reason, your notice should list all conceivably available grounds for new trial. This gives the court of appeal a broader range of bases to grant a new trial on appeal. (Cal. Civ. Proc. §657 [last paragraph].)
Your notice must state whether the motion will be based on affidavits, which are required if the motion is based on irregularity in proceedings, jury misconduct, accident, surprise, or newly discovered evidence. (Cal. Civ. Proc. 658.) Without declarations, these matters would not be reflected in the record. In addition, consider that a party seeking a new trial on the ground of juror improprieties must present affidavits showing that neither he nor his attorney was aware of the misbehavior until after the verdict was returned. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103.) Your declaration must contain admissible evidence; juror declarations may address only objectively verifiable phenomena (what people said, saw, heard, or did), not jurors’ thought processes or how particular evidence or incidents affected jurors. (Cal. Evid. Code §1150; People v. Hutchinson (1969) 71 Cal.2d 342, 349-350.)
Jurisdictional deadline: The court must act on a motion for new trial within 60 days of service on the moving party of written notice of the entry of the judgment, or if such notice has not theretofore been served, then 60 days after service of the notice of intention to move for a new trial. (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 522.) If the motion for new trial has not been decided by then, it is deemed denied. (Cal. Civ. Proc. §660; Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.) Any order granting a new trial is not effective unless entered in the permanent minutes of the court or signed by the judge by the 60th day. In addition, the judge must state the grounds for granting a new trial and the reasons for doing so on each ground. (Cal. Civ. Proc. §657.) The order is defective otherwise.