The motion for a new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court. Upon the expiration of the time to file counter affidavits the clerk forthwith shall call the motion to the attention of the judge who presided at the trial, or the judge acting in his place, as the case may be, and such judge thereupon shall designate the time for oral argument, if any, to be had on said motion. Five (5) days' notice by mail shall be given of such oral argument, if any, by the clerk to the respective parties. Such motion, if heard by a judge other than the trial judge shall be argued orally or shall be submitted without oral argument, as the judge may direct, not later than ten (10) days before the expiration of the time within which the court has power to pass on the same.
§ 661.Judge to Hear and Determine Motion; Oral Argument
Title 8. Of the Trial and Judgment In Civil Actions · Chapter 7. Provisions Relating to Trials in General · Article 2. New Trials · Last amended 1933 · Last verified July 28, 2026
In one sentenceSection 661 requires the new-trial motion to be heard by the judge who presided at trial, unless that judge is unavailable or absent from the county, in which case another judge of the same court hears it, with the clerk setting oral argument on 5 days' notice by mail once the counter-affidavit period ends.
Full Text of § 661
Plain-English Summary
The trial judge gets first crack at deciding whether the trial they presided over needs a do-over. Only if that judge can't act — through inability, or absence from the county at the time set for hearing — does another judge of the same court step in.
The clerk plays a scheduling role, too. Once the time to file counter-affidavits runs out, the clerk brings the motion to the presiding (or substitute) judge's attention, and that judge sets the time for oral argument. The parties get 5 days' notice by mail of that argument date.
When a judge other than the trial judge hears the motion, that judge decides whether to hear oral argument or take the matter on the papers alone — but either way, that has to happen no later than 10 days before the court's power to rule expires under § 660.
Frequently Asked Questions
Who hears a motion for new trial?
The judge who presided at trial, if that judge is able to act.
When does another judge hear the motion instead?
When the trial judge is unable to act, or is absent from the county at the time set for the hearing.
How much notice of oral argument do the parties get?
Five days' notice by mail from the clerk.
Is oral argument required?
Not necessarily. A judge other than the trial judge may direct that the motion be submitted without oral argument.
Amendment History
Amended by Stats. 1933, Ch. 744.
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: who hears new trial motion california