When the application is made for a cause 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.
§ 658.Application Made Upon Affidavits Or On Minutes of Court
Title 8. Of the Trial and Judgment In Civil Actions · Chapter 7. Provisions Relating to Trials in General · Article 2. New Trials · Last amended 1983 · Last verified July 28, 2026
In one sentenceSection 658 requires a new-trial application based on the first four grounds listed in § 657 — irregularity, jury misconduct, accident or surprise, and newly discovered evidence — to be made on affidavits, while every other ground must be made on the minutes of the court.
Full Text of § 658
Plain-English Summary
Not every ground for a new trial gets proven the same way. Section 658 splits § 657's seven causes into two procedural tracks. The first four — irregularity in the proceedings, jury misconduct, accident or surprise, and newly discovered evidence — all depend on facts outside the trial record, so the moving party has to support them with affidavits.
The remaining three grounds — excessive or inadequate damages, insufficient evidence, and legal error — are decided from what already happened at trial. For those, the motion is made on the minutes of the court: the existing record, without new affidavits attached.
Frequently Asked Questions
Which new-trial grounds require affidavits?
Irregularity, jury misconduct, accident or surprise, and newly discovered evidence — the first four grounds listed in § 657.
Which grounds use the minutes of the court instead?
Excessive or inadequate damages, insufficient evidence, and legal error.
Why the difference in procedure?
The affidavit grounds rest on facts outside the trial record; the minutes grounds are decided entirely from the existing trial record.
Amendment History
Amended by Stats. 1983, Ch. 1167, Sec. 9.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: new trial affidavits vs minutes california