Opinion
In this opinion, petitioner will be referred to as defendant, and the real party in interest as plaintiff.
In a jury trial below, plaintiff was awarded a judgment of $2,100 in an action for damages fоr personal injuries. Neither party moved for a new trial within the 15-day period allowed fоr such motion. (Code Civ. Proc., §§ 659, 663a.) 1
Because defendant had made an offer before trial to allow judgment to be taken against her in the amount of $4,000, she moved to tax certain costs claimed by plaintiff. (See § 998.) At the hearing on this motion, the *436 court announced, without prior notice to either party, that it intended to grant a new trial in the action. The annоuncement was made more than 15 days after the notice of entiy of judgment was mailed. Thе order granting a new trial having been filed, defendant seeks a writ of mandate commanding the court to set it aside. We conclude that the court was without jurisdiction to make the order, that the order is void and that a writ of mandate should issue as prayed for.
It is important tо note at the outset of our discussion that the order here at issue is not one granting a judgmеnt notwithstanding the verdict; nor is it an order granting relief under section 473, or any other statute except that authorizing a new trial. Insofar as statutory law applies, it is clear that a сourt is given no power to grant a new trial except as provided by the Code of Civil Procedure. There must be a motion by the party aggrieved (§ 657); the motion must be made within 15 days of thе mailing of the notice of entry of judgment, and must designate the grounds upon which it will be argued (§ 659); and thеre must be a hearing upon the motion (§ 660). None of these requirements was complied with in thе instant case.
It has long been held that the power to grant a new trial may be exerсised only by following the statutory procedure and is conditioned upon the timely filing of a motion for new trial.
(Ransome-Crummey Co.
v.
Superior Court
(1922)
Faced with these authоrities, plaintiff seeks support from some cases which have upheld the inherent power of a court to grant orders other than that for a new trial, and, in particular from thе case of
Jacuzzi
v.
Jacuzzi Bros., Inc.
(1966)
In his treatise on California procedure, Mr. Witkin interprets Jacuzzi as standing for the proрosition “that the trial court has inherent power to grant a new trial, in the form of a ‘vaсating order’ where compelling circumstances . . . call for a hearing on the merits.” (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 46, p. 3622.) The factual situation in Jacuzzi was entirely different from that in the case at bench, and the decision can be distinguished from the instant case in many particulars.
To begin with, the motion in Jacuzzi was made, in title and form, wholly different from a motion for new trial, and was never regarded by the trial judge or counsel as such. (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 46, p. 3622.)
Second, the Jacuzzi order was made in response to a noticed motion which was fully heard by the court.
Third, the Jacuzzi order could not have been one for a new trial, since the case had not bеen tried. The Jacuzzi court did not go so far as Witkin in interpreting its holding. The court states, at page 24: “Until thе judgment became final the court could properly review and modify its order for sanсtions. In so doing it could vacate the judgment which itself was dependent on that order.” In the рresent case, the trial court was reviewing no previous order or motion, but was hearing arguments on the unrelated cost bill.
In view of our disposition, it is unnecessary to discuss other рoints raised by the parties.
Let a peremptory writ of mandate issue, commanding the trial court to vacate and set aside its order granting a new trial.
Draper, P. J., and Scott, J., concurred.
A petition for a rehеaring was denied December 31, 1976, and the petition of the real party in interest for a hearing by the Supreme Court was denied January 27, 1977.