POINTS & AUTHORITIES

Chapter 155 MOTIONS AFTER TRIAL

I INTRODUCTION
§ 155.01 Scope of Chapter
This chapter contains forms of points and authorities for use in memoranda relating to post trial motions for judgment notwithstanding the verdict (JNOV) (§ 155.10 et seq.), motions for new trial (§ 155.50 et seq.), and motions to set aside and vacate a judgment and enter another and different judgment (§ 155.320 et seq.).

This chapter does not contain include points and authorities supporting or opposing a motion for new trial on the ground of excessive or inadequate damages [see Code Civ. Proc. § 657(5)[Deering's] ]. For these, see Ch. 65, Damages.
§ 155.02 Governing Law
[1]--Motions for Judgment Notwithstanding the Verdict (JNOV)
Motions for judgment notwithstanding the verdict, also known as motion JNOV, are governed by Code Civ. Proc. § 629[Deering's] . Time for serving and filing the motion is governed by Code Civ. Proc. § 659[Deering's] . Code Civ. Proc. § 664[Deering's] governs the entry of judgment when a motion for judgment notwithstanding the verdict is pending.

Code Civ. Proc. §§ 904.1(d)[Deering's] and 904.2(e)[Deering's] govern appeals from orders denying the motion. When the parties consent, Gov. Code § 69741.1[Deering's] allows the motion to be heard anywhere in the state by the judge who presided at trial.

Cal. Rules of Ct., Rules 3(c)[Deering's] and 123[Deering's] govern the filing of an appeal after an order denying the motion.
[2]--Motions for New Trial
Motions for new trial are governed by Code Civ. Proc. §§ 655-663.2[Deering's] and 914[Deering's] . A new trial is defined in Code Civ. Proc. § 656[Deering's] . Grounds on which the motion may be granted are set forth in Code Civ. Proc. § 657[Deering's] .

The time limits for serving and filing the notice of intention to move for a new trial are set out in Code Civ. Proc. § 659[Deering's] . Code Civ. Proc. §§ 660-662[Deering's] govern the hearing and disposition of the motion, and Code Civ. Proc. §§ 904.1(d)[Deering's] and 904.2(e)[Deering's] cover appeals from orders granting the motion.

Points and authorities in support of a motion for new trial are governed by Cal. Rules of Ct., Rule 203[Deering's] . Cal. Rules of Ct., Rules 3(a)[Deering's] and 123(a)[Deering's] , cover extension of time to appeal when notice of intention to move for new trial is filed. A new motion for trial following a bifurcated trial is governed by Cal. Rules of Ct., Rule 232.5[Deering's] .
[3]--Motions to Vacate Judgment and Enter Another Judgment
Motions to set aside and vacate a judgment and to enter another and different judgment are governed by Code Civ. Proc. §§ 663[Deering's] and 663a[Deering's] . The grounds on which the motion may be made are contained in Code Civ. Proc. § 663(1)[Deering's], (2)[Deering's] . The contents of the motion and the time within which the motion must be filed are governed by Code Civ. Proc. § 663a[Deering's] . The hearing of a motion to set aside and vacate a judgment and to enter another and different judgment is governed by Cal. Rules of Ct., Rule 236[Deering's] .

Extensions of time to appeal from a judgment when notice of intention to move to vacate a judgment and enter another and different judgment are governed by Cal. Rules of Ct., Rules 3(b)[Deering's] and 123(b)[Deering's] .
§ 155.03 How to Use the Forms in This Chapter
[1]--Page Limits on Points and Authorities
One of the more significant drafting requirements to keep in mind are page limits: supporting and opposing memoranda of points and authorities must not exceed 15 pages, or 20 pages in summary judgment or summary adjudication proceeding. A reply or closing memorandum may not exceed 10 pages. Exhibits, declarations, attachments, a table of contents, a table of authorities, and the proof of service are excluded from these page limits [ Cal. Rules of Ct., Rule 313(d)[Deering's] ]. Any party must obtain leave of court to file a longer memorandum [see Cal. Rules of Ct., Rule 313(e)[Deering's] ]. These and other drafting requirements are discussed in further detail in Ch. 1, Writing Legal Memoranda and Briefs.
[2]--Using the Forms to Build a Draft Memorandum
Most of the forms included in this chapter are designed to be combined with other points and authorities to form a complete memorandum. For example, in Part II, Subpart B, the forms relating to motions for a new trial include ``general'' forms supporting or opposing a motion for new trial based on one of the statutory grounds. More specific forms of points and authorities relate to individual issues or factual variations within one of these statutory grounds, and are designed to be combined, when appropriate, with the relevant general form. Thus, one of the general forms may be used alone, in the absence of either more specific issues or fact variations or another general ground. The more specific forms, however, are not intended for use alone, but must be combined with the relevant general form to create a more complete memorandum.

For discussion on how to select and use the forms in the publication generally, in order to build a draft memorandum and complete the draft, with detailed discussion of all drafting requirements and strategic or stylistic considerations, see Ch. 1, Writing Legal Memoranda and Briefs. For a skeletal form of memorandum for use in creating a properly formatted outline in which to compile relevant forms from this publication, see also Ch. 1, Writing Legal Memoranda and Briefs.
§ 155.04 Memoranda Supporting or Opposing Post Trial Motions
With respect to motions for new trial, the moving party must serve and file a memorandum of points and authorities relied on within 10 days after filing the notice of intention to move for a new trial. Within 10 days thereafter, the opposing party may serve and file a corresponding memorandum in reply. If the moving party does not serve and file the prescribed memorandum, the court may deny the motion without a hearing on the merits [ Cal. Rules of Ct., Rule 203[Deering's] ].

When a motion for judgment notwithstanding the verdict is combined with a motion for new trial, the points and authorities for each should be filed separately. If combined, the memorandum should clearly indicate in the caption that it supports both motions. If this is not done, the court may strike the motion for new trial on the ground that there is no memorandum of points and authorities filed supporting it [ Clay v. Lagiss (1956) 143 Cal. App. 2d 441, 450, 299 P.2d 1025 ].
§ 155.05 Related Discussion and Forms
[1]--Related Pleading and Practice Chapters
For discussion, procedural checklists, and forms for use involving these post trial motions, see Ch. 371, Motions After Trial in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender). For a discussion of noticed motions generally, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 372, Motions and Orders.
[2]--Related Points and Authorities
For memoranda of points and authorities relating to a motion for new trial on the ground of excessive or inadequate damages, see Ch. 65, Damages. For memoranda of points and authorities relating to motions for new trial in contract actions, see Ch. 50, Contracts, Part IV.
§§ 155.06-155.09 [Reserved]

II FORMS
A Motions for Judgment Notwithstanding the Verdict
§ 155.10 Supporting Motion for Judgment Notwithstanding the Verdict [Code Civ. Proc. § 629]
[1]--FORM


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF MOTION FOR
)JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
_________________________ [name ],)[Telephone Appearance]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name ],)Location: _____________
Defendant. )Judge: _______________
)Date Action Filed: ____
)Trial Date: __________
)

THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD BE GRANTED BECAUSE A MOTION FOR DIRECTED VERDICT SHOULD HAVE BEEN GRANTED HAD A PREVIOUS MOTION BEEN MADE AND BECAUSE THERE IS NO SUBSTANTIAL EVIDENCE OR REASONABLE INFERENCES DRAWN THEREFROM TO SUPPORT A VERDICT IN THE PREVAILING PARTY'S FAVOR.

A. Judgment Notwithstanding the Verdict. Before the expiration of its power to rule on a motion for new trial, the court, on motion of a party against whom a verdict has been rendered, must render judgment in favor of an aggrieved party notwithstanding the verdict whenever a motion for directed verdict for the aggrieved party should have been granted had a previous motion been made ( Code Civ. Proc. § 629[Deering's] ).

B. Grounds Same as for Directed Verdict. The grounds for granting a judgment notwithstanding the verdict are the same as for granting a motion for directed verdict (see Trammell v. Western Union Tel. Co. (1976) 57 Cal. App. 3d 538, 556, 129 Cal. Rptr. 361 ).

C. Lack of Substantial Conflict in Evidence. The primary requirement for the granting of the motion is that there is no substantial conflict in the evidence ( Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57 ).

D. Lack of Substantial Evidence to Support Verdict. The court will grant a motion for judgment notwithstanding the verdict only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence or reasonable inference drawn therefrom to support the verdict ( Hauter v. Zogarts (1975) 14 Cal. 3d 104, 110, 120 Cal. Rptr. 681, 534 P.2d 377 ).

[EITHER, if motion by defendant when no evidence of sufficient substantiality to support plaintiff's verdict ]

E. No Evidence of Sufficient Substantiality to Support Verdict in Plaintiff's Favor. Defendant's motion for judgment notwithstanding the verdict is granted when and only when, disregarding conflicting evidence on behalf of defendants and giving plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, no evidence of sufficient substantiality supports a verdict in plaintiff's favor ( Reynolds v. Willson (1958) 51 Cal. 2d 94, 99, 331 P.2d 48 ; Hamakawa v. Crescent Wharf etc. Co. (1935) 4 Cal. 2d 499, 501, 50 P.2d 803 ).

[OR, if motion by defendant when plaintiff failed to prove essential element of his or her cause of action ]

E. Plaintiff's Failure to Prove Essential Element of Cause of Action. A motion by defendant for judgment notwithstanding the verdict for plaintiff will be granted when plaintiff has failed to prove an element essential to his or her cause of action ( Kerby v. Elk Grove Union H.S. Dist. (1934) 1 Cal. App. 2d 246, 36 P.2d 431 ).

[OR, if motion by plaintiff when evidence dictates determination in plaintiff's favor ]

E. Evidence Dictates Determination in Plaintiff's Favor. Plaintiff's motion for judgment notwithstanding the verdict will be granted if the evidence, as a matter of law, dictates a determination of all the issues in the case in his or her favor (see Jach v. Edson (1967) 255 Cal. App. 2d 96, 99, 62 Cal. Rptr. 925 ).

[OR, if motion by plaintiff when no substantial support given to defense of defendant ]

E. No Substantial Support Given to Defense of Defendant. The court may grant plaintiff's motion for judgment notwithstanding the verdict, if, on the whole evidence, the cause of action alleged in the complaint is supported, and no substantial support is given to the defense alleged by defendant ( Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 515, 78 Cal. Rptr. 417 ).

[CONTINUE ]

[Optional ] F. Inherently Incredible Evidence Ignored. In ruling an a motion for judgment notwithstanding the verdict, the court may disregard evidence in support of the verdict if that evidence is inherently incredible ( Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1215, 238 Cal. Rptr. 130 ).

[Add further points and authorities, as appropriate, setting out substantive law pertaining to cause of action or defense to show why motion should be granted.]

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]
[2]--Comments
[a]--Use of Form
This memorandum of points and authorities may be submitted in support of a motion for judgment notwithstanding the verdict under Code Civ. Proc. § 629[Deering's] .

The filing of a notice of appeal from the judgment does not deprive the trial court of jurisdiction to grant a judgment notwithstanding the verdict [ Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 1210-1213, 238 Cal. Rptr. 130 (rejecting contrary holding in Weisenburg v. Molina (1976) 58 Cal. App. 3d 478, 486, 129 Cal. Rptr. 813 )].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should show the propriety of granting the judgment notwithstanding the verdict in light of the substantive issues involved in the particular cause of action or defense. For instance, in a negligence action, counsel might argue that the court should grant the motion because the record is devoid of any evidence from which the jury could reasonably find negligence on the part of the moving party [see Scott v. Fuller Co. (1940) 41 Cal. App. 2d 501, 507, 107 P.2d 55 ]. Similarly, in the contest of a will on the ground of undue influence, counsel might argue that the evidence for the contestant goes no further than perhaps to justify the suspicion of undue influence, but it has no substantial force as evidence that the suspicion is well-founded [see Estate of Leahy (1936) 5 Cal. 2d 301, 306, 54 P.2d 704 ].

Counsel should cite case authority relevant to the particular cause of action or defense to support his or her contentions. Care should be taken to differentiate between cases that deal with defendant's motions and those that deal with plaintiff's motions, since the standards for granting the motions differ depending on whether plaintiff or defendant is the moving party.
[c]--Related Pleading and Practice Forms
For a form of a notice of motion and order relating to a motion for judgment notwithstanding the verdict pursuant to Code Civ. Proc. § 629[Deering's] , see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[d]--Opposing Points and Authorities
The points and authorities set out in § 155.30 may be used in an appropriate case to oppose a motion for judgment notwithstanding the verdict supported by this memorandum.
[3]--Discussion of Authorities
[a]--Grounds Same as For Directed Verdict
Trammell v. Western Union Tel. Co. (1976) 57 Cal. App. 3d 538, 129 Cal. Rptr. 361 , was an action in which an addressee of a telegram sued the telegraph company for negligence in the nondelivery of a telegram intended to inform the addressee to return to work. The telegram had allegedly been delivered to the wrong person, causing plaintiff to be terminated by his employer. Plaintiff further alleged that defendant was motivated by malice and oppression in misrepresenting to plaintiff's former employer that the telegram had been properly delivered. The jury found for plaintiff, awarding him compensatory damages of $13,500 and punitive damages of $50,000. The court then granted defendant's motion for judgment notwithstanding the verdict on the issue of punitive damages with an alternative order granting a new trial on the ground of insufficiency of the evidence to support the verdict. The court denied defendant's motion for judgment notwithstanding the verdict on the issue of compensatory damages. Plaintiff appealed the judgment notwithstanding the verdict and the alternative order granting a new trial. Defendant appealed from the judgment as originally entered relating to punitive damages and from the portion of the judgment awarding compensatory damages in excess of $500.

The court of appeal affirmed the judgment notwithstanding the verdict on the issue of punitive damages, but reversed the judgment for compensatory damages to the extent of recovery above $500 (57 Cal. App. 3d 538, 558). Noting that a judgment notwithstanding the verdict should be granted only if a motion for directed verdict should have been granted, the court stated that the record failed to show substantial evidence that Western Union's employees acted with either malice or oppression in not providing information to correct or show the mistake at an earlier date (57 Cal. App. 3d 538, 56-558). The court explained that a directed verdict or judgment notwithstanding the verdict may be sustained on appeal only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it or the trial court would be required to set it aside as a matter of law (57 Cal. App. 3d 538, 556-557).
[b]--Lack of Substantial Conflict in Evidence
Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 30 Cal. Rptr. 57 , was an action brought by decedent's widow to determine whether or not the decedent had coverage under a group life insurance policy issued by defendant. The policy only covered those who were actively at work on the effective date of the policy. For those who were not actively at work on that date, coverage became effective on the date of return to active work. After trial by jury, plaintiff was denied recovery. The court also denied her motion for judgment notwithstanding the verdict and in the alternative for a new trial. She appealed from the denial of the motion.

The court of appeal stated that the cardinal requirement for the granting of a motion for judgment notwithstanding the verdict is that there is no substantial conflict in the evidence. However, in this case, a substantial conflict in the evidence existed as to whether or not the decedent had returned to active work after the effective date of the policy. Therefore, the court held that the trial court's denial of the motion was proper (215 Cal. App. 2d 111, 118).
[c]--Lack of Substantial Evidence to Support Verdict
Hauter v. Zogarts (1975) 14 Cal. 3d 104, 120 Cal. Rptr. 681, 534 P.2d 377 , concerned a products liability action on three theories of liability: misrepresentation, breach of express and implied warranty, and strict liability in tort based on defective design of defendant's product, a golf ball driving device. While using the device, plaintiff was seriously injured when a golf ball struck him in the left temple. After the jury found for defendant, the trial court granted plaintiff's motion for judgment notwithstanding the verdict. Defendant appealed, claiming that substantial evidence supported the jury's verdict.

The Supreme Court affirmed the judgment notwithstanding the verdict. It held that the motion for judgment notwithstanding the verdict may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict (14 Cal. 3d 104, 110). The Court noted, however, that even though it was bound to view the evidence in the light most favorable to the party securing the verdict, its review of the record disclosed no evidence nor any reasonable inference therefrom that supported the jury's verdict (14 Cal. 3d 104, 111). The evidence led the Court to a contrary conclusion--that the plaintiff should recover as a matter of law under each cause of action (14 Cal. 3d 104, 111). The Court then remanded the case for an ascertainment of damages (14 Cal. 3d 104, 121).
[d]--No Evidence of Sufficient Substantiality to Support Verdict in Plaintiff's Favor
Reynolds v. Willson (1958) 51 Cal. 2d 94, 331 P.2d 48 , involved an action for personal injuries to a child who, while trespassing on defendant's land, fell into defendant's partially filled swimming pool. Plaintiff suffered considerable brain damage. Through his father as guardian ad litem, plaintiff sued defendant for damages and obtained a jury verdict in the sum of $50,000. Defendant's motion for judgment notwithstanding the verdict was denied.

The Supreme Court affirmed the order denying the motion for judgment notwithstanding the verdict, noting that defendant's motion can be granted only when, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, no evidence of sufficient substantiality supports a verdict in plaintiff's favor (51 Cal. 2d 94, 99). After reviewing the record, the Court concluded that there was sufficiently substantial evidence to support the verdict on the theories of liability raised by plaintiff (51 Cal. 2d 94, 106). The elements of the attractive nuisance doctrine and the trap theory had been present (51 Cal. 2d 94, 100-101). The Court then affirmed the order denying the motion (51 Cal. 2d 94, 106).

Hamakawa v. Crescent Wharf etc. Co. (1935) 4 Cal. 2d 499, 50 P.2d 803 , was an action for personal injuries sustained by plaintiff while he was about to board a freighter docked at a municipal pier. Defendant, a stevedoring company, was loading cargo when an empty loading sling caused a bale of paper to fall onto plaintiff. The jury awarded damages to plaintiff. Defendant's motion for judgment notwithstanding the verdict was denied, and it appealed.

The Supreme Court held that a judgment notwithstanding the verdict was proper and reversed the lower court's order. The Court stated that if the court had granted the motion for a directed verdict, defendant is entitled to a judgment notwithstanding the verdict. The Court said that the trial court should have granted a directed verdict for the defendant if, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in plaintiff's favor. The Court concluded that defendant owed plaintiff no legal duty except to refrain from inflicting any willful or wanton injury and to conduct its activities with reasonable care for his safety after it knew or should have known of plaintiff's presence (4 Cal. 2d 499, 501). Since plaintiff was a trespasser and defendant had no reason to expect plaintiff to be on the premises, the Court held that plaintiff was not entitled to recover as a matter of law (4 Cal. 2d 499, 503). It then reversed the lower court's order denying defendant's motion for judgment notwithstanding the verdict for plaintiff (4 Cal. 2d 499, 504).
[e]--Plaintiff's Failure to Prove Essential Element of Cause of Action
Kerby v. Elk Grove Union H.S. Dist. (1934) 1 Cal. App. 2d 246, 36 P.2d 431 , was an action for damages for death of a high school student hit by a basketball during physical education class. The suit was based on the alleged negligence of the instructor in failing to adequately supervise the game. After a verdict was rendered for plaintiff, the trial court granted judgment for defendant, notwithstanding the verdict.

The court of appeal affirmed the judgment notwithstanding the verdict, stating that the rule regarding the consideration of the evidence authorizing the rendering of a judgment notwithstanding the verdict is exactly the same as that which applies to a motion for nonsuit (1 Cal. App. 2d 246, 250). A nonsuit may be granted for failure of the defendant to prove a sufficient cause only when there is no substantial evidence to support some essential issue on which plaintiff's right to recover judgment depends (1 Cal. App. 2d 246, 250). Since the student had a chronic aneurism that the instructor did not know he possessed, the court held that the instructor was not negligent in allowing the student to participate in the game (1 Cal. App. 2d 246, 252). There was no evidence that the instructor omitted to perform any duty at the time of the accident. Therefore, the judgment notwithstanding the verdict was proper (1 Cal. App. 2d 246, 253).
[f]--Evidence Dictates Determination in Plaintiff's Favor
Jach v. Edson (1967) 255 Cal. App. 2d 96, 62 Cal. Rptr. 925 , was an action in which plaintiff was injured in a scuffle with defendant that occurred in a high school gymnasium. The action was based on negligence and assault and battery. A jury trial resulted in a verdict for defendant. The court granted plaintiff's motion for judgment notwithstanding the verdict on the issue of liability and granted plaintiff's motion for a new trial on the issue of damages. Defendant appealed.

The court of appeal dismissed the appeal from the judgment notwithstanding the verdict since the order granting the motion was not a judgment, and therefore, was not appealable (255 Cal. App. 2d 96, 98). However, since a court can consider the propriety of an order for judgment notwithstanding the verdict prior to the entry of judgment, the court considered the validity of the order. The court noted that the trial court may enter judgment notwithstanding the verdict in favor of the plaintiff if the evidence, as a matter of law, dictates a determination of all the issues in the case in his or her favor. However, a trial court has no authority to enter multiple final judgments determining multiple issues between the same parties to an action (255 Cal. App. 2d 96, 99). Therefore, it was error for the trial court to enter a judgment notwithstanding the verdict on the issue of liability and a new trial on the issues of damages (255 Cal. App. 2d 96, 100).

It should be noted however, that the court of appeal in Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 78 Cal. Rptr. 417 (discussed in [g], below), held that the trial court properly granted a motion for judgment notwithstanding the verdict on the issue of liability and a motion for new trial on the issue of damages (273 Cal. App. 2d 504, 517-518).
[g]--No Substantial Support Given to Defense of Defendant
Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal. App. 2d 504, 78 Cal. Rptr. 417 , involved an action for injuries resulting to a child who fell into the swimming pool of an apartment complex. Plaintiff sued the corporation, Strawther Enterprises, Inc., the legal owner of the apartment complex, and Big North Enterprises, Inc., which had entered into an agreement to purchase the complex at the time of the accident and was the equitable owner in possession and control of the complex. The jury rendered a verdict for $500,000 in favor of plaintiff against Strawther, but rendered a verdict that plaintiff take nothing as against defendant Big North. The trial court granted a new trial to plaintiff as against Big North on both the issues of liability and damages and granted a new trial to Strawther on the question of damages. The court denied plaintiff's motion for judgment notwithstanding the verdict as against Big North. All parties appealed.

The court of appeal reversed the denial of the judgment notwithstanding the verdict in favor of Big North and remanded the case with instructions to the trial court to render judgment in favor of plaintiff, leaving the issue of damages to be determined on retrial (273 Cal. App. 2d 504, 519). In reversing the denial of judgment notwithstanding the verdict, the court stated that plaintiff's motion may be granted if, on the whole evidence, the cause of action alleged in the complaint is supported, and no substantial support is given to the defense alleged by the defendant. The court noted that it was clear from all the evidence in the case that Big North's act or omission was a proximate cause of plaintiff's injuries since Big North was in possession and control of the premises and failed to secure the gate to the pool, thus violating a city ordinance (273 Cal. App. 2d 504, 515). The court also held that the granting of the motion for judgment notwithstanding the verdict on the issue of liability and the granting of a new trial on the issue of damages was within the discretion of the trial court (273 Cal. App. 2d 504, 517-518).

It should be noted however, that the court of appeal in Jach v. Edson (1967) 255 Cal. App. 2d 96, 62 Cal. Rptr. 925 (discussed in [f], above), held that it was error for the trial court to enter a judgment notwithstanding the verdict on the issue of liability and an order granting a new trial on the issue of damages (255 Cal. App. 2d 96, 99).
[h]--Inherently Incredible Evidence Ignored
Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 238 Cal. Rptr. 130 , was an action by a husband and wife against a real estate corporation engaged in the business of real estate appraisal and two of its employees for damages for negligence and fraud in appraising real property to be used as security for the repayment of a loan to be made by plaintiffs to the property owner, and which was made on the basis of the appraisal. The jury returned a verdict for plaintiffs against the corporation only. The trial court, having determined that the testimony of a particular witness in support of the verdict on the issue of damages did not constitute substantial evidence and was inherently incredible, granted defendant's motion for judgment notwithstanding the verdict on the ground there was no substantial evidence that plaintiffs had suffered any damage. The court also granted in part and denied in part a motion for new trial. Judgment was entered for defendant corporation notwithstanding the verdict for plaintiffs, and plaintiffs appealed.

Although the court of appeal reversed the judgment notwithstanding the verdict and affirmed the order granting a new trial, it upheld the propriety of the trial court's determination that the testimony of the witness on the issue of damages was inherently incredible. The court said: (1) to be substantial the evidence supporting the verdict must be of ponderable legal significance; (2) the term ``substantial'' evidence is not synonymous with ``any'' evidence; (3) the evidence must be reasonable in nature, credible, and of solid value; and (4) in ruling on a motion for judgment notwithstanding the verdict, the trial court may disregard evidence in support of the verdict if that evidence is ``inherently incredible'' (192 Cal. App. 3d 1204, 1214-1215).
[4]--Additional Authorities
[a]--Lack of Substantial Evidence to Support Verdict
Clark v. Bellefonte Insurance Co. (1980) 113 Cal. App. 3d 326, 169 Cal. Rptr. 832 , involved an action by the owner of an automobile polishing company against his insurer involving claims connected with the theft of two automobiles. The court of appeal reversed the trial court's denial of the defendant's motion for judgment notwithstanding the verdict for the insured since there was no substantial evidence that the failure to reimburse the plaintiff was a breach of contract (113 Cal. App. 3d 326, 335).

Van Der Eikhof v. Hocker (1978) 87 Cal. App. 3d 900, 151 Cal. Rptr. 456 , was a personal injury action against a father whose daughter negligently drove his business car while on a personal trip. The court of appeal reversed the order denying defendants' motion for judgment notwithstanding the verdict insofar as the order applied to the father (87 Cal. App. 3d 900, 906). It stated that no substantial evidence existed to support the special finding of the jury that, at the time of the accident, the daughter was the agent of her father and acting within the scope of her authority (87 Cal. App. 3d 900, 902).

In Washer v. Bank of America (1948) 87 Cal. App. 2d 501, 197 P.2d 202 , plaintiff, a former bank employee, sued Bank of America for libel and slander allegedly resulting from a press release issued by the bank's personnel director and vice-president. The release charged that plaintiff had falsified an expense account and was guilty of flagrant insubordination. The court affirmed judgment for defendants notwithstanding the verdict, stating that it was proper to grant the motion reasonable minds could draw but one inference and that inference pointed inevitably to the falsification of the expense account and the truth of the charge of insubordination (87 Cal. App. 2d 501, 507).

Estate of Smethurst (1936) 15 Cal. App. 2d 322, 59 P.2d 830 , involved the contest of a will on the grounds that the testator was incapable of making a will due to intoxication. The court of appeal affirmed judgment for the proponents of the will notwithstanding the verdict, stating that the fact that the testator may have been under the influence of alcohol at the time he made his will did not invalidate the instrument unless he had no independent comprehension of what he was doing at the time (15 Cal. App. 2d 322, 331). Since contestants failed to submit evidence on that issue, judgment for the proponents notwithstanding the verdict was proper (15 Cal. App. 2d 322, 336).
[b]--Plaintiff's Failure to Prove Essential Element of Cause of Action
Estate of Leahy (1936) 5 Cal. 2d 301, 54 P.2d 704 , was a contest of a will on the ground of undue influence. Judgment for the proponents of the will notwithstanding the verdict was affirmed. The court of appeal stated that the evidence for the contestant went no further than perhaps to justify the suspicion of undue influence and had no substantial force as evidence that the suspicion was well-founded (5 Cal. 2d 301, 306). The court concluded that the trial court did not err in granting the motion for judgment notwithstanding the verdict (5 Cal. 2d 301, 306).

In Sukoff v. Lemkin (1988) 202 Cal. App. 3d 740, 249 Cal. Rptr. 42 , the court of appeal held that a trial court improperly denied a defendant's motion for judgment notwithstanding the verdict in a legal malpractice action. The action arose out of legal representation during marital dissolution proceedings. The court found that the evidence was insufficient, as a matter of law, to support the verdict, which awarded $90,000 in compensatory damages to the plaintiff. The plaintiff failed to establish that the defendant was negligent, that his conduct was the proximate cause of the alleged damages, or that the plaintiff actually suffered damages. The court stated that the purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury's deliberation but to prevent a miscarriage of justice in those cases in which the verdict rendered is without foundation. The scope of appellate review is to determine whether there is any substantial evidence, contradicted or not, supporting the jury's conclusions. While the denial of such a motion largely rests within the trial judge's discretion, the denial in this case was in error because the plaintiff failed to establish the necessary elements of her cause of action (202 Cal. App. 3d 740, 743-744).

In Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc. (1981) 116 Cal. App. 3d 111, 172 Cal. Rptr. 74 , plaintiff brought an action for damages based on intentional interference with prospective business advantage against a parent corporation and two subsidiaries. The trial court directed a verdict for the parent on the issue of punitive damages and later granted its motion for judgment notwithstanding the verdict on the issue of compensatory damages. The court of appeal affirmed, stating that there was insufficient evidence to support a verdict in plaintiff's favor for compensatory damages, since plaintiff failed under both the alter ego and agency principles to establish the parent's responsibility for the conduct of its subsidiaries (116 Cal. App. 3d 111, 121).

In Rollenhagen v. City of Orange (1981) 116 Cal. App. 3d 414, 172 Cal. Rptr. 49 , plaintiff, a self-employed auto mechanic, brought a defamation action against a broadcasting company and a former customer who gave a television interview in which she stated that she had been victimized by plaintiff. The court of appeal affirmed judgment for defendants notwithstanding the verdict, stating that absent evidence of malice, the privilege of fair comment governed, and defendants were entitled to judgment as a matter of law (116 Cal. App. 3d 111, 428-429).

In Borba v. Thomas (1977) 70 Cal. App. 3d 144, 138 Cal. Rptr. 565 , the purchaser of excess lands in a water district brought an action for fraud against the seller who stated that Bureau of Reclamation approval of the purchase price would be no problem. The court of appeal affirmed judgment for defendant notwithstanding the verdict, noting that, as a matter of law, defendant had made no misrepresentation of fact, but had made a nonactionable expression of opinion, and if a misrepresentation had been made, plaintiff was not justified in relying on it (70 Cal. App. 3d 144, 155).

Brock v. Southern Pacific Co. (1948) 86 Cal. App. 2d 182, 195 P.2d 66 , was an action for malicious prosecution of civil proceedings brought by defendants to establish plaintiff's insanity. The court of appeal affirmed the granting of the motion for judgment notwithstanding the verdict as to defendants Southern Pacific Company and the Board of Trustees of Stanford University (86 Cal. App. 2d 182, 190). Plaintiff's evidence failed to prove that the Southern Pacific Company doctors had instigated the institution of commitment proceedings or that the Stanford Hospital doctor, in recommending plaintiff's commitment, had acted without probable cause to believe plaintiff was mentally ill (86 Cal. App. 2d 182, 190-199).

In McKellar v. Pendergrast (1945) 68 Cal. App. 2d 485, 156 P.2d 950 , plaintiff sought to recover damages from the manager of her apartment building for personal injuries received when she slipped on an oily substance on the lobby floor. She maintained that defendant's agent, a janitor, was negligent in disposing garbage from individual apartments. The court of appeal affirmed judgment for defendants, notwithstanding the verdict for plaintiff, stating that plaintiff failed to prove the existence of every essential fact on which she relied, in that she failed to prove the causal connection between the alleged negligence and the resulting injury (68 Cal. App. 2d 485, 489).

Scott v. Fuller Co. (1940) 41 Cal. App. 2d 501, 107 P.2d 55 , was an action by a subcontractor's employee for personal injuries sustained when he fell from a joist set up by the general contractor as part of a form for pouring concrete and not as a scaffold. The court of appeal affirmed judgment for defendants notwithstanding the verdict for plaintiff, stating that the record was devoid of any evidence from which the jury could reasonably find negligence on the part of respondents (41 Cal. App. 2d 501, 507). If there was any breach of duty toward the appellant, the court stated that it was on the part of appellant's employer, the subcontractor, in failing to furnish appellant with equipment essential to safe working conditions (41 Cal. App. 2d 501, 507).
[c]--Evidence Dictates Determination in Plaintiff's Favor
Doyle v. McPherson (1939) 36 Cal. App. 2d 81, 97 P.2d 249 , involved an action to recover the balance due on a stock brokerage account. The court of appeal affirmed judgment for plaintiffs, notwithstanding the verdict, finding that plaintiffs had proved by substantial evidence the allegations of their complaint and that defendant had failed to offer evidence to prove his special defenses of the statute of limitations and damages by way of counterclaim (36 Cal. App. 2d 81, 84-85).
§§ 155.11-155.29 [Reserved]

§ 155.30 Opposing Motion for Judgment Notwithstanding the Verdict [Code Civ. Proc. § 629]
[1]--FORM


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)OPPOSITION TO MOTION
)FOR JUDGMENT
)NOTWITHSTANDING THE
)VERDICT
_________________________ [name],)[Telephone Appearance]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)

THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD BE DENIED BECAUSE SUBSTANTIAL EVIDENCE, VIEWED IN THE LIGHT MOST FAVORABLE TO THE PREVAILING PARTY, SUPPORTS THE VERDICT.

A. Substantial Evidence Supports Verdict. A motion for judgment notwithstanding the verdict of a jury should be denied if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is substantial evidence to support the verdict ( Sweatment v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 ; Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 878, 151 Cal. Rptr. 285, 587 P.2d 1098 ; Brandenburg v. Pac. Gas & Elec. Co. (1946) 28 Cal. 2d 282, 284, 169 P.2d 909 ).

B. Power of Trial Court. In ruling on a motion for judgment notwithstanding the verdict, the court cannot weigh the evidence or judge the credibility of witnesses, but must accept the evidence tending to support the verdict as true, unless such evidence is inherently incredible on its face ( Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 72, 92 Cal. Rptr. 2d 611 ; Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 690, 117 Cal. Rptr. 146 ; see also Sprigg v. Garcin (1980) 105 Cal. App. 3d 869, 873, 164 Cal. Rptr. 677 ).

[EITHER ]

C. Reasonable Inference Supports Verdict. The motion for judgment notwithstanding the verdict will be denied if any reasonable inferences drawn from the evidence support the verdict ( McFarland v. Voorheis-Trindle Co. (1959) 52 Cal. 2d 698, 706, 343 P.2d 923 ; Gray v. Southern Pacific Co. (1944) 23 Cal. 2d 632, 645-646, 145 P.2d 561 ).

[AND/OR ]

D. Substantial Conflict in Evidence. A motion for judgment notwithstanding the verdict will denied if there is a substantial conflict on a material issue in the evidence ( Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 118, 30 Cal. Rptr. 57 ).

[AND/OR ]

E. Evidence Presents Question for Jury's Determination. A judgment notwithstanding the verdict should be denied where the evidence presents a question for the jury's determination ( Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 939-940, 149 Cal. Rptr. 808 ).

[Add further points and authorities setting out substantive law pertaining to cause of action or defense to show why motion should be denied.]

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]
[2]--Comments
[a]--Use of Form
This memorandum of points and authorities may be submitted in opposition to a motion for judgment notwithstanding the verdict under Code Civ. Proc. § 629[Deering's] .
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should add further points and authorities showing the propriety of denying the motion in light of the substantive issues raised at trial. For instance, in a personal injury action based on negligence in which plaintiff has recovered damages and defendants have moved for judgment notwithstanding the verdict, plaintiff's counsel should demonstrate that there was a sufficient showing from which the jury could have reasonably concluded that defendants' actions constituted negligence. In preparing these points and authorities, counsel may consult the substantive chapters contained in this publication and in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).
[c]--Related Pleading and Practice Forms
For a form of order denying a motion for judgment notwithstanding the verdict, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[d]--Opposing Points and Authorities
The form may be used to oppose a motion for judgment notwithstanding the verdict supported by the points and authorities set out in § 155.10.
[3]--Discussion of Authorities
[a]--Substantial Evidence Supports Verdict
In Sweatment v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68, 104 Cal. Rptr. 2d 602, 28 P.3d 29 , a veteran sued the Department of Veterans Affairs for breach of contract after the Department denied his claim for disability benefits for bipolar manic-depressive disorder because of misrepresentations in his application for coverage under the Cal-Vet home protection plan, including omission of his prior hospitalization for depression. At trial, the jury returned a special verdict finding that the Department did not breach its contract with the veteran. The trial court denied the veteran's motion for judgment notwithstanding the verdict, which contended that the home protection plan constituted insurance subject to the mandatory provisions of the Insurance Code, including the requirement that disability insurance include an incontestability clause, stating that the legal basis supporting the jury's verdict was the law governing contracts, rescission, and false representation, impliedly rejecting the claim that the plan constituted insurance (25 Cal. 4th 62, 67).

The California Supreme Court affirmed. The Court held that a motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support (25 Cal. 4th 62, 68). The veteran did not dispute that there was substantial evidence that his application for coverage under the plan did not disclose his history of depression and that the master agreement excluded coverage for preexisting conditions and permitted rescission for misstatements in the application. Further, the jury was not asked to resolve factual questions bearing on the question whether the plan constituted insurance nor did the parties offer conflicting evidence on that point, so that the question before the Court was one of law, to be addressed under a de novo standard of review. The Court then found that disability coverage under the Cal-Vet home protection plan is not disability insurance subject to the provisions of the Insurance Code generally governing such policies (25 Cal. 4th 62, 73).

Clemmer v. Hartford Insurance Co. (1978) 22 Cal. 3d 865, 151 Cal. Rptr. 285, 587 P.2d 1098 , was an action brought by a widow and the minor son of the deceased to recover from the slayer's insurance company the amount of a wrongful death judgment obtained against the slayer. The slayer had previously been convicted of second-degree murder. The insurance company defended on the ground that the death arose from the slayer's willful act for which the insurer was not liable under a policy exclusion and Ins. Code § 533[Deering's] . Following a jury verdict, the trial court entered judgment against the defendant insurer, but it subsequently granted defendant insurer's motion for a new trial on the issue of whether the death was caused by a willful act. Plaintiffs appealed from the order granting a limited new trial. Defendant appealed from that portion of the judgment that was not affected by the order granting a limited new trial and also from the orders of the court denying its motions for judgment notwithstanding the verdict, to set aside and vacate the judgment and enter a new and different judgment, and for a new trial. Defendant also filed a protective cross appeal from the whole of the judgment pursuant to Cal. Rules of Ct., Rule 3(c)[Deering's] .

Since the denial of a motion to set aside and vacate and the denial of a motion for new trial are nonappealable orders, the Supreme Court dismissed defendant's appeal insofar as it purported to be from these orders. The Court held that the denial of the motion for judgment notwithstanding the verdict was proper, stating that if the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied (22 Cal. 3d 865, 877-878). A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence viewed in the light most favorable to the party securing the verdict that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.

Although defendant contended that there was no substantial evidence to support the verdict since the testimony of plaintiffs' expert witness was rendered absurd by certain internal inconsistencies, the Court held that these inconsistencies did not require that the testimony be disregarded in its entirety nor did they mean that the testimony was necessarily insufficient to support the verdict. The trier of fact must consider internal inconsistencies, resolve them if possible, and determine what weight to give the testimony (22 Cal. 3d 865, 878). Since the trial court, in considering this testimony, decided that the evidence did not as a matter of law compel the conclusion that the slayer was in possession of his mental faculties at the time of the murder, the Court held that the trial court properly denied defendant's motion for judgment notwithstanding the verdict (22 Cal. 3d 865, 877-878).

Brandenburg v. Pac. Gas & Elec. Co. (1946) 28 Cal. 2d 282, 169 P.2d 909 , was an action for personal injuries sustained by plaintiff who was hit by a turning streetcar that overlapped the safety zone. After judgment for plaintiff, the trial court granted defendant's motion for judgment notwithstanding the verdict.

The Supreme Court reversed the judgment notwithstanding the verdict, holding that a motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied (28 Cal. 2d 282, 284). Since it was apparent to defendant that persons alighting in the safety zone would relax their vigilance, the motorman had a duty to give warning that the rear of the car would protrude into the safety zone even if the zone was maintained by the city and not the carrier. There was also a duty of the company to instruct the motorman to give this warning (28 Cal. 2d 282, 286). The Court held that plaintiff was also not contributorily negligent since he had no reason to believe that the safety zone would be within the area of overswing (28 Cal. 2d 282, 287). Since there was ample evidence to support the verdict, the Court reversed the lower court's granting of judgment for defendant notwithstanding the verdict and directed the lower court to enter judgment in accordance with the jury's verdict (28 Cal. 2d 282, 288).
[b]--Power of Trial Court
In Begnal v. Canfield & Associates, Inc. (2000) 78 Cal. App. 4th 66, 92 Cal. Rptr. 2d 611 , a former employee sued her former employer, alleging that her employment was terminated based on her age in violation of the Fair Employment and Housing Act ( Gov. Code § 12900[Deering's] et seq. ). The former employer had taken over the functions of the department at the hospital at which the former employee worked and terminated her employment allegedly for ``job abandonment,'' making discriminatory comments, and failure to perform newly imposed duties. The former employee testified that she did perform the duties. Further, her employment was terminated only 8 days after she had received a performance rating of ``good'' or ``very good'' in all categories. Finally, another employee testified that she had made the racially discriminatory comment. The jury found that the former employer had terminated the former employee based on her age. The former employer moved for judgment notwithstanding the verdict on the ground that the former employee was replaced by a person older than her, and therefore as a matter of law could not have been terminated because of her age. The trial court granted the motion.

The court of appeal reversed and remanded with directions to enter a new judgment in the former employee's favor in accordance with the jury verdict, stating that the trial may grant judgment notwithstanding the verdict only if the verdict is not supported by substantial evidence, and that the court may not weigh evidence, draw inferences contrary to the verdict, or assess the credibility of witnesses. The appellate court may uphold an order granting judgment notwithstanding the verdict only if, reviewing all the evidence in the light most favorable to the party in whose favor the verdict was entered, resolving all conflicts, and drawing all inferences in that party's favor, and deferring to the implicit credibility determinations of the trier of fact, there is no substantial evidence to support the jury verdict. In this case, the court held that evidence that an employee is replaced by an older person who is also within the protected class does not preclude any inference that the employee was terminated based on age if the employee presents other evidence to support an inference of discrimination (78 Cal. App. 4th 66, 73-76). The court found that evidence that the former employee was replaced by an older person weighed against the inference that she was terminated based on her age, but did not conclusively establish the absence of age discrimination so as to preclude the jury from drawing other inferences. Further, the former employee presented the jury with substantial evidence that the stated reasons for her termination were false or pretextual and that the decision was based on age. The court thus concluded that the jury verdict was supported by substantial evidence (78 Cal. App. 4th 66, 76-78).

Hale v. Farmers Ins. Exch. (1974) 42 Cal. App. 3d 681, 117 Cal. Rptr. 146 , involved an action against an insurance company and its employees in which plaintiff alleged bad-faith refusal to pay medical benefits under his automobile insurance policy. The jury awarded damages against the insurer for breach of contract, compensatory damages against all defendants for bad faith, and punitive damages against the insurance company and its employees. The trial court granted defendant insurance company's motion for judgment notwithstanding the verdict on the issue of punitive damages, but denied the motion of the individual defendants.

The court of appeal reversed the granting of the motion, stating that the trial court may not weigh the evidence or judge the credibility of witnesses, but must accept the evidence tending to support the verdict as true, unless it is inherently incredible on its face. The order may be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from plaintiff's evidence, there is no evidence sufficiently substantial to support the verdict. The court stated that the denial of the individual employees' motion for judgment notwithstanding the verdict reflected the trial court's concurrence in the original verdict since it was clear that the trial court had found that the evidence established oppression or malice. The court of appeal held that since an employer is not responsible for punitive damages when he or she neither directed nor ratified the employee's action, the propriety of granting the insurance company's motion for judgment notwithstanding the verdict had to be resolved by a determination of whether or not there was any substantial evidence to sustain a finding of knowledge, authorization, or ratification on the part of the company for the acts of the individual employees (42 Cal. App. 3d 681, 690). Since the court found evidence from which the jury could have inferred either authorization or ratification of the acts of the employees, it reversed the judgment notwithstanding the verdict (42 Cal. App. 3d 681, 692).

Sprigg v. Garcin (1980) 105 Cal. App. 3d 869, 164 Cal. Rptr. 677 , was an action for legal malpractice against a law firm that originally represented plaintiff in a lawsuit against the lessee of plaintiff's warehouse. After plaintiff substituted attorneys and later settled the action for $25,000, plaintiff filed the professional negligence action against his original attorneys. After trial, the jury returned a verdict for plaintiff in the amount of $34,640.31. The trial court granted defendants' motion for new trial, but denied their motion for judgment notwithstanding the verdict. From these orders, the parties appealed.

The court of appeal reversed and ordered that judgment notwithstanding the verdict be entered for the defendants. The court noted that the trial judge's power to grant a judgment notwithstanding the verdict is identical to his or her power to grant a directed verdict. The trial judge cannot weigh the evidence or judge the credibility of witnesses. The court stated that if the evidence is conflicting or several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. It added that a motion for judgment notwithstanding the verdict may be properly granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied (105 Cal. App. 3d 869, 873). However, the court's review of the record indicated that no evidence or reasonable inference therefrom was offered from which the jury could properly find that the defendants' activities proximately caused injury to the plaintiff even though there was evidence from which defendants' negligence could be inferred (105 Cal. App. 3d 869, 874). Therefore, the court reversed the trial court's denial of defendants' motion for judgment notwithstanding the verdict and also reversed the order granting a new trial (105 Cal. App. 3d 869, 875).
[c]--Reasonable Inference Supports Verdict
In McFarland v. Voorheis-Trindle Co. (1959) 52 Cal. 2d 698, 343 P.2d 923 , a bulldozer operator brought an action against a landowner for personal injuries sustained in clearing the landowner's property. After verdict for plaintiff, the trial court granted judgment for defendants notwithstanding the verdict on the ground that plaintiff was a special employee as a matter of law and plaintiff's sole remedy was workers' compensation.

The Supreme Court reversed the motion for judgment notwithstanding the verdict, stating that the motion may be granted when and only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff (52 Cal. 2d 698, 703). Since the evidence most favorable to the verdict supported the inference that the operator was not a special employee of the landowner, the trial court erred in granting judgment notwithstanding the verdict (52 Cal. 2d 698, 706).

Gray v. Southern Pacific Co. (1944) 23 Cal. 2d 632, 145 P.2d 561 , was an action under the Federal Employers' Liability Act ( 45 U.S.C. §§ 51-59 ) for the wrongful death of a brakeman due to the alleged negligent operation of the train by defendant. After judgment for plaintiff, the trial court granted defendant's motion for judgment notwithstanding the verdict.

The Supreme Court reversed the granting of the motion, stating that the inference drawn by the jury that defendant negligently caused the fatal accident was supported by the evidence. The Court stated that it is not the function of the court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. The jury, and not the court, is the fact-finding body; it weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusions as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers the most reasonable. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. Therefore, the Court reversed the judgment notwithstanding the verdict (23 Cal. 2d 632, 646).
[d]--Substantial Conflict in Evidence
The factual and procedural background of Robinson v. North American Life & Cas. Co. (1963) 215 Cal. App. 2d 111, 30 Cal. Rptr. 57 , is discussed in § 155.10[3][b]. In the Robinson case, the court of appeal held that the cardinal requirement for the granting of the motion for judgment notwithstanding the verdict is a lack of substantial conflict in the evidence. This requirement was not met in the case. Since there were substantial conflicts in the evidence, the trial court's denial of the motion for judgment notwithstanding the verdict was correct (215 Cal. App. 2d 111, 118).
[e]--Evidence Presents Question for Jury's Determination
Meyser v. American Bldg. Maintenance, Inc. (1978) 85 Cal. App. 3d 933, 149 Cal. Rptr. 808 , was an action by the lessor-owners of commercial property and their tenant against a building maintenance company for damages caused by fire. The trial was bifurcated pursuant to Code Civ. Proc. § 598[Deering's] . At the conclusion of plaintiff's case in the liability phase of the trial, defendant's motion for nonsuit was denied. The jury later returned a verdict for plaintiff. Before the damages trial and after the entry of the verdict, defendant moved for judgment notwithstanding the verdict and a new trial. The motion for judgment notwithstanding the verdict was granted, and the new trial motion was denied.

The court of appeal reversed the judgment notwithstanding the verdict, holding that the trial court had no jurisdiction to enter it after the liability phase of a bifurcated trial (85 Cal. App. 3d 933, 937). The motion for judgment notwithstanding the verdict cannot be made until the jury has returned verdicts on both liability and damages (85 Cal. App. 3d 933, 937). Furthermore, the court held that if the evidence in a case is such that different conclusions can be rationally drawn, the case presented is one for a jury and a judgment notwithstanding the verdict is improper (85 Cal. App. 3d 933, 938-940). Thus, even though defendant's motion for judgment notwithstanding the verdict should not have been granted because the testimony of plaintiff's expert witness, a fire chief, was internally inconsistent regarding the cause of the fire, it was not so inherently weak that it was insufficient to uphold the verdict. The conflict in the evidence was sufficient to present a question for the jury even though it existed in the testimony of a single witness (85 Cal. App. 3d 933, 940).
[4]--Additional Authorities
[a]--Substantial Evidence Supports Verdict
Reuther v. Viall (1965) 62 Cal. 2d 470, 42 Cal. Rptr. 456, 398 P.2d 792 , was a personal injury action in which plaintiffs recovered judgment on a special jury verdict finding willful misconduct by defendant automobile driver. The court of appeal stated that since there was a sufficient showing from which the jury could reasonably conclude that defendant's actions constituted willful misconduct, the trial court's order denying defendant's motion for judgment notwithstanding the verdict was proper (62 Cal. 2d 470, 472).

Hergenrether v. East (1964) 61 Cal. 2d 440, 39 Cal. Rptr. 4, 393 P.2d 164 , was an action for personal injuries sustained in an automobile accident resulting from the negligent operation of defendants' vehicle by an unapprehended and unidentified thief. Since there was substantial evidence that justified the imposition of liability on defendants, the court of appeal reversed the lower court's granting of defendants' motion for judgment notwithstanding the verdict for plaintiffs (62 Cal. 2d 470, 445).

In Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal. App. 3d 695, 243 Cal. Rptr. 907 , an action by an insured against its insurer based on the insurer's refusal to defend and settle a third-party suit, the court of appeal affirmed the trial court's denial of the insurer's motion for judgment notwithstanding the verdict with regard to one of the plaintiffs. The court noted that the insurer did little to refute the existence of substantial evidence supporting its breach of duty, and held that if there is any substantial evidence, or reasonable inferences to be drawn from it, in support of the verdict, the motion should be denied (198 Cal. App. 3d 695, 703).

The factual background of Foggy v. Ralph F. Clark & Associates, Inc. (1987) 192 Cal. App. 3d 1204, 238 Cal. Rptr. 130 , is discussed in § 155.10[3][h]. In reversing a judgment for defendant notwithstanding the verdict for plaintiffs, the court said that it is well established that a motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict and that, if there is any substantial evidence, or reasonable inferences to be drawn from the evidence, in support of the verdict, the motion should be denied (192 Cal. App. 3d 1204, 1213).

Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 , was an action for personal injuries sustained when a Ford Pinto was rear-ended by a car proceeding in the same direction. After verdict for plaintiff, the trial court denied defendant's motion for judgment notwithstanding the verdict on the issue of punitive damages. The court of appeal affirmed the denial, stating that there was substantial evidence from which the jury could reasonably find corporate malice on the part of defendant (119 Cal. App. 3d 757, 814).

Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 150 Cal. Rptr. 722 , involved an action in which plaintiff sued a shopping center for personal injuries suffered when she was struck by a bicycle that a young boy rode on the premises. The court of appeal reversed judgment for defendant notwithstanding the verdict, stating that the evidence supported a verdict in favor of the plaintiff since it sustained a finding that the chance of the accident was foreseeable, that defendant breached its duty of care to plaintiff, and that the breach was a proximate cause of plaintiff's injury (87 Cal. App. 3d 44, 53).

Hozz v. Felder (1959) 167 Cal. App. 2d 197, 334 P.2d 159 , was an action to recover the value of merchandise allegedly sold by plaintiffs to defendants on an open-book account. Since it was apparent from the evidence presented that the jury could have returned various verdicts, all supported by substantial evidence, the court of appeal reversed the lower court's granting of plaintiffs' motion for judgment notwithstanding the verdict (167 Cal. App. 2d 197, 200).
[b]--Power of Trial Court
Quintal v. Laurel Grove Hospital (1964) 62 Cal. 2d 154, 41 Cal. Rptr. 577, 397 P.2d 161 , was a medical malpractice action based on a six-year-old boy's permanent brain injury suffered as a result of cardiac arrest during the administration of an anesthetic. After verdict for plaintiff, the trial court granted defendants' motion for judgment notwithstanding the verdict. The Supreme Court reversed, stating that the trial court is not permitted to weigh the evidence, and since the evidence was sufficient to go to the jury of the issue of negligence, the granting of the motion was improper (62 Cal. 2d 154, 159-163).

Knight v. Contracting Engineers Co. (1961) 194 Cal. App. 2d 435, 15 Cal. Rptr. 194 , was an action by a roofing subcontractor's employee against the general contractor for personal injuries. After verdict for plaintiff, the trial court granted defendant's motion for judgment notwithstanding the verdict. The court of appeal affirmed the granting of the motion, stating that the court may not consider the credibility of witnesses, but must give the plaintiff's evidence its full legal value and must draw all legitimate inferences from that evidence (194 Cal. App. 2d 435, 442).
[c]--Substantial Conflict in Evidence
In Castro v. State of California (1981) 114 Cal. App. 3d 503, 170 Cal. Rptr. 734 , an employee of a construction company engaged by the state sued the state for injuries suffered when another employee backed his truck into plaintiff. After judgment for plaintiff based on the jury's special verdict finding that the state should have recognized that the work done by the contractor would create a peculiar risk of harm without special precautions, the trial court granted defendant's motion for judgment notwithstanding the verdict. The court of appeal reversed the judgment notwithstanding the verdict, holding that there was sufficient evidence to support the jury's finding and that the existence of conflicting evidence made it inappropriate to grant the motion (114 Cal. App. 3d 503, 512-513).

McCown v. Spencer (1970) 8 Cal. App. 3d 216, 87 Cal. Rptr. 213 , was an action by plaintiff for damages for breach of an escrow agreement. After verdict for plaintiff, the trial court granted defendant's motion for judgment notwithstanding the verdict. The court of appeal reversed, stating that a basic requirement for sustaining a judgment notwithstanding the verdict is that no substantial conflict exists in the evidence. The granting of the motion was improper, since the evidence was in conflict on the points foundational to the trial court's rulings (8 Cal. App. 3d 216, 226).

Spillman v. City etc. of San Francisco (1967) 252 Cal. App. 2d 782, 60 Cal. Rptr. 809 , was an action for personal injuries sustained in an automobile collision. Since the jury found that plaintiff sustained no damages as a result of defendants' negligence, it entered a verdict in favor of plaintiff on the issue of liability and in favor of defendants on the issue of damages. After the trial court granted plaintiff's motion for judgment notwithstanding the verdict and fixed plaintiff's damages at $10,000, the court of appeal reversed, stating that since there was a considerable conflict in the evidence regarding the amount of damages sustained by plaintiff, the trial court abused its discretion in granting the motion and usurped defendants' right to trial by jury in assessing plaintiff's damages (252 Cal. App. 2d 782, 786-787).
[d]--Evidence Presents Question for Jury's Determination
Beck v. San Francisco etc. Sch. Dist. (1964) 225 Cal. App. 2d 503, 37 Cal. Rptr. 471 , was a student's action for personal injury against the school district based on its alleged failure to adequately supervise school activities. The trial court's denial of defendant's motion for judgment notwithstanding the verdict was affirmed since although the district argued that the proximate cause of the action was not lack of supervision but an intervening wrong, the causal relationship between lack of supervision and injury was a factual determination for the jury (225 Cal. App. 2d 503, 508-509).

In Urland v. French (1956) 141 Cal. App. 2d 278, 296 P.2d 568 , plaintiff sought to recover damages for personal injuries sustained in an automobile accident. After verdict for plaintiff, the trial court granted judgment for defendant notwithstanding the verdict. The court of appeal held that it was reversible error to grant defendant's motion because the question of negligence and proximate cause was one for the jury's determination, and there was substantial evidence, considered in the light most favorable to plaintiff, on which the jury could have concluded that defendant was negligent and that the negligence proximately caused the accident (141 Cal. App. 2d 278, 284-285).
§§ 155.31-155.49 [Reserved]

B Motions for New Trial
1 Irregularity in Court Proceedings or Court Action Preventing Fair Trial
§ 155.50 Supporting Motion for New Trial [Code Civ. Proc. § 659]--Irregularity in Court Proceedings [Code Civ. Proc. § 657(1)]
[1]--FORM


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


) NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF MOTION FOR
)NEW TRIAL
_________________________ [name],)[Telephone Appearance]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)

A MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THERE WAS AN IRREGULARITY IN THE PROCEEDINGS OF THE COURT THAT PREVENTED THE _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND THAT MATERIALLY AFFECTED HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. New Trial on Ground of Irregularity in Court Proceedings. On the application of the party aggrieved, the verdict or decision may be vacated, in whole or in part, and a new trial may be granted, on all or some of the issues, on the ground of irregularity in the proceedings of the court by which either party is prevented from having a fair trial if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. § 657(1)[Deering's] ).

B. Departure by Court From Due and Orderly Method. An irregularity in the proceedings of the court is any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party are materially affected ( Gay v. Torrance (1904) 145 Cal. 144, 149, 78 P. 540 ).

[Optional ] C. Court's Prejudgment of Case Before Hearing. A new trial may be granted on the ground of irregularity in the proceedings of the court when the trial judge has prejudged a case before the introduction of all evidence by either party ( Webber v. Webber (1948) 33 Cal. 2d 153, 156-158, 199 P.2d 934 ; McVey v. McVey (1955) 132 Cal. App. 2d 120, 122-125, 281 P.2d 898 ).

[Optional ] D. Court's Prejudicial Expression and Action Against Use of Particular Witness. An expression of prejudice by the court against the use of a particular witness, notwithstanding the competency of his or her testimony, with such prejudice being reflected in the action of the court against the aggrieved party, is an irregularity preventing the aggrieved party from having a fair trial and materially affecting his or her substantial rights ( Pratt v. Pratt (1903) 141 Cal. 247, 250-252, 74 P. 742 ).

[Optional ] E. Court's Invasion of Province of Jury and Influence on Verdict. When the court attempts to invade the province of the jury and the verdict appears to have been influenced by the court's misconduct, a new trial may be granted on the ground of irregularity in the proceedings of the court preventing the aggrieved party from having a fair trial and materially affecting his or her substantial rights ( Crowe v. Sacks (1955) 44 Cal. 2d 590, 598, 283 P.2d 689 ; Cook v. Los Angeles Ry. Corp. (1939) 13 Cal. 2d 591, 593-594, 91 P.2d 118 ).

[Optional ] F. Failure to Give 15 Days' Notice of Trial. Failure to give the aggrieved party 15 days' notice of the time set for trial as required by Code Civ. Proc. § 594(a)[Deering's] is an irregularity in the proceedings of the court preventing the aggrieved party from having a fair trial and materially affecting his or her substantial rights ( Gordon v. Gordon (1956) 145 Cal. App. 2d 231, 233-234, 302 P.2d 355 (decided under former Code Civ. Proc. § 594(1), which required five days' notice)).

[Optional ] G. Objection by Aggrieved Party and Admonishing Instruction by Court Unnecessary. If an admonition of the judge to the jury to disregard his or her misconduct would not remove its prejudicial effect, it is not a prerequisite that the aggrieved party have objected and made the request that the jury be instructed to disregard it ( Etzel v. Rosenbloom (1948) 83 Cal. App. 2d 758, 762, 189 P.2d 848 ; see Ward v. DeMartini (1930) 108 Cal. App 745, 751, 292 P. 192 ).

[Optional ] H. Assignment by Court of Irregularity as Error Unnecessary. An assignment of judicial misconduct as error is unnecessary if it is evident from the attitude of the trial judge, as shown by the record, that any assignment of misconduct would be disregarded and counsel, by making the assignment, would bring further attack on himself or herself ( People v. Mahoney (1927) 201 Cal. 618, 622, 258 P. 607 ).

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]
[2]--Comments
[a]--Use of Form
This memorandum of points and authorities may be submitted in support of a motion for new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ]. In addition to Paragraphs A and B, any combination of the optional Paragraphs C-H may be used if applicable to the facts of the case.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should set out the actions of the court, show how these actions were a departure from the due and orderly method of disposition of an action, and explain how the moving party was prevented from having a fair trial because of these actions [see Gay v. Torrance (1904) 145 Cal. 144, 149, 78 P. 540 ]. If the trial judge has made statements during trial that indicate, for example, a prejudgment of the case, counsel may want to refer to and attach pertinent portions of the reporter's transcript, if any, to this memorandum [see Webber v. Webber (1948) 33 Cal. 2d 153, 156-157, 199 P.2d 934 ].
[c]--Supporting Declarations or Affidavits Required
A motion for new trial made on the ground of irregularity in the proceedings of the court must be supported by declarations or affidavits [ Code Civ. Proc. § 658[Deering's] ; see Code Civ. Proc. § 2015.5[Deering's] ].
[d]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and a declaration to be submitted in support of the motion on the grounds of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[e]--Related Points and Authorities
The points and authorities set out in § 155.55 may be combined in an appropriate case with those in this form.
[f]--Opposing Points and Authorities
The points and authorities set out in § 155.60 or § 155.65 may be used in an appropriate case to oppose a motion for new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Departure by Court From Due and Orderly Method
Gay v. Torrance (1904) 145 Cal. 144, 78 P. 540 , was a divorce action in which defendant husband was granted an interlocutory judgment on his cross complaint against petitioner, his wife. Subsequently, petitioner wife moved for a new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ] based on alleged misconduct of the trial judge. The trial court, on motion of defendant husband, made an order striking petitioner's affidavits on the ground that one was based solely on information and belief and that all affidavits contained immaterial, impertinent, and scandalous charges against the judge who heard the case. Petitioner asked for a writ of mandate commanding the judge to certify a bill of exceptions containing the stricken affidavits to be used on appeal from the order striking the affidavits. She also sought a writ of prohibition restraining the judge from hearing the motion for new trial pending the hearing of the appeal from the order striking the affidavits. An alternative writ was issued requiring the judge to certify the bill of exceptions containing the affidavits or show cause why he had not done so.

The Supreme Court discharged the alternative writ of mandate and denied the application for a peremptory writ of mandate because it found that the affidavits only contained information and belief and embodied no competent or proper evidence (145 Cal. 144, 151-154). However, the Court stated that personal misconduct of a judge who has under advisement a case tried in his or her court can be an irregularity in the proceedings of the court for which a new trial may be granted under Code Civ. Proc. § 657(1)[Deering's] (145 Cal. 144, 148). The language of the statute is sufficiently broad to include any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected, where such departure is not evidenced by a ruling or order that may be the subject of an exception (145 Cal. 144, 149-150). The Court stated that personal habits, conduct, deportment, or statements of the judge that have no relation to or effect on the disposition of the case are not the proper subject of complaint on a motion for new trial (145 Cal. 144, 150). The question is whether the acts were of a nature and done under such circumstances as to afford reasonable grounds for the conclusion that the defeated party has not had a fair and impartial trial (145 Cal. 144, 150).
[b]--Court's Prejudgment of Case Before Hearing
Webber v. Webber (1948) 33 Cal. 2d 153, 199 P.2d 934 , was a divorce action in which plaintiff was awarded an interlocutory decree of divorce, custody of her son, and one half of the community property. However, she was denied any right of support before the trial judge had heard her testimony regarding her condition or need. The Supreme Court reversed the interlocutory judgment of divorce on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ] based on the court's prejudgment of the case before the aggrieved party had an opportunity to present her evidence (33 Cal. 2d 153, 156-158). The Court stated that it was apparent that she did not have a fair trial by reason of the trial judge's preconceived and declared aversion to spousal support (33 Cal. 2d 153, 157). The Court also noted that plaintiff's lack of affidavits in support of her motion for new trial did not prevent her from raising the alleged misconduct of the trial judge on appeal since she relied wholly on facts appearing on the face of the record (33 Cal. 2d 153, 163-164). Even though motions based on the first four grounds of Code Civ. Proc. § 657[Deering's] are required to be supported by affidavit [ Code Civ. Proc. § 658[Deering's] ], the Court held that if the moving party relies wholly on facts appearing on the face of the record, the reason for the rule requiring affidavits is no longer valid and the rule is inapplicable (33 Cal. 2d 153, 164). Accordingly, the court ordered a new trial (33 Cal. 2d 153, 165).

In McVey v. McVey (1955) 132 Cal. App. 2d 120, 281 P.2d 898 , plaintiff wife filed an action for separate maintenance and defendant husband cross complained for divorce. Before the trial judge had heard any evidence, he stated in chambers to the parties and their attorneys that a husband and wife who were separated without the possibility of reconciliation should be divorced and that separate maintenance was socially and morally undesirable. After introduction of plaintiff's evidence, the trial judge, in chambers, also stated this viewpoint to counsel for both parties. Before hearing defendant's testimony, the judge also encouraged plaintiff to change her prayer to request a divorce, indicating that he might be persuaded by defendant's testimony to grant him a divorce, deny her alimony, and award her less than half of the property. After plaintiff was denied a decree of separate maintenance and defendant was granted an interlocutory decree of divorce, plaintiff moved for new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ] based on the judge's alleged preconceived and declared aversion to an action for separate maintenance. Her motion was denied.

The court of appeal reversed the interlocutory decree, stating that a judge should not prejudge the issues but should keep an open mind until all the evidence is presented (132 Cal. App. 2d 120, 123). When a trial judge sits as a trier of facts he takes the place of a jury, and his conduct is subject to the same rules, one of which is that before the case is submitted to him, he should not form or express an opinion thereon (132 Cal. App. 2d 120, 123). The court stated that it was apparent that plaintiff did not receive a fair trial by reason of the preconceived and declared aversion of the trial judge to an action for separate maintenance (132 Cal. App. 2d 120, 124). The record shows that plaintiff established a strong case for separate maintenance, and defendant a weak case for divorce (132 Cal. App. 2d 120, 125). The court stated that it appeared from what the judge said after plaintiff had made her proof that he had made up his mind not to award her separate maintenance (132 Cal. App. 2d 120, 125). The trial judge's conduct, which indicated his unsympathetic attitude toward the litigation, did not accord with recognized principles of judicial behavior and were not consistent with the presentation of a case in an atmosphere of fairness and impartiality (132 Cal. App. 2d 120, 125).
[c]--Court's Prejudicial Expression and Action Against Use of Particular Witness
In Pratt v. Pratt (1903) 141 Cal. 247, 74 P. 742 , plaintiff wife sought an accounting from defendant husband regarding the disposition of separate property derived from her mother's estate. Plaintiff wife claimed that defendant had purchased certain property with her separate funds. Defendant husband did not refer to the purchase, but claimed that he had given the rents to his wife. During trial, the judge interrupted the examination of plaintiff's and defendant's daughter, who was giving competent testimony in favor of defendant. The judge intimated that the failure to withdraw the daughter as a witness would seriously prejudice defendant's case, since a child put on the witness stand to dispute a parent was shocking and revolting. After judgment for plaintiff, defendant moved for a new trial on the grounds of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ]. The motion was denied.

The Supreme Court reversed the judgment, stating that the action of the judge was an irregularity in the proceedings of the court. The testimony of the daughter was competent and proper, and therefore the judge had no right to permit it to arouse in his mind a prejudice against the father. The court also had no right, by an expression of such prejudice and its threatened results, to drive the party to withdraw testimony against which no legal objection existed. Extreme prejudice to defendant was shown by an examination of the findings, which were against him in every particular to which the proposed testimony of the daughter was directed. The trial of a case should not only be fair in fact, but it should also appear to be fair. If the contrary appears, it shocks the judicial instinct to allow the judgment to stand (141 Cal. 247, 252).
[d]--Court's Invasion of Province of Jury and Influence on Verdict
In Crowe v. Sacks (1955) 44 Cal. 2d 590, 283 P.2d 689 , plaintiffs brought an action for personal injuries suffered in an automobile collision with defendant. After the jury had rendered a verdict for plaintiffs, the judge sent the jury back for further deliberation, stating that he found the verdict grossly inadequate. The jury later returned a verdict for plaintiffs for a substantially higher sum. Defendant's motion for a new trial, based on the judge's conduct, was denied. Defendant appealed the judgment.

The Supreme Court reversed judgment for plaintiffs, stating that the trial court had invaded the province of the jury when it attempted to influence the amount of damages awarded. The higher sum reached on redeliberation was a clear indication that the jury was thus influenced in reaching its final verdict (44 Cal. 2d 590, 598). Any action of the judge in the correction of verdicts should be taken with caution. The judge must not throw the weight of his or her influence into the deliberations of the jury as to matters exclusively within its province. If the jury allows damages so grossly inadequate as to show that it must have disregarded the evidence and the instructions of the court, it should be returned for further deliberation under proper instruction (44 Cal. 2d 590, 598).

In Cook v. Los Angeles Ry. Corp. (1939) 13 Cal. 2d 591, 91 P.2d 118 , plaintiff brought an action for personal injuries allegedly suffered as a result of the negligent operation of a streetcar owned by defendant. After slightly less than two hours of deliberation, the jury returned to the courtroom after the foreman requested a rereading of the instructions. The judge then remarked that he did not believe that the plaintiff was entitled to recover and that the jury should not take more than 10 minutes to state that conclusion in a verdict. Approximately 10 minutes later, the jury rendered a verdict in favor of defendant. Plaintiff appealed both the judgment and an order that struck from the file affidavits presented by her in support of a motion for new trial.

The Supreme Court reversed the judgment, stating that considering all the circumstances shown, the trial judge's remarks unquestionably prejudiced the plaintiff's right to a fair trial and invaded the province of the jury (13 Cal. 2d 591, 595). The exclusive right to agree or disagree rests with the jury; the judge may not tell them that they must agree nor may he harry their deliberations with coercive threats or disparaging remarks (13 Cal. 2d 591, 594). The Court stated that the remarks may have also been suggestive and misleading (13 Cal. 2d 591, 595). While the words do not, on their face, appear to show any bias in favor of defendant, other factors that are not disclosed by the record, such as the tone or inflection with which the comments were delivered, or the attitude of the court during the trial of the case, may well have imparted such an impression to the jurors (13 Cal. 2d 591, 595).
[e]--Failure to Give 15 Days' Notice of Trial
Gordon v. Gordon (1956) 145 Cal. App. 2d 231, 302 P.2d 355 , was a divorce action in which plaintiff was not given adequate notice of trial under former Code Civ. Proc. § 594(1) [now see Code Civ. Proc. § 594(a)[Deering's] ]. When plaintiff failed to appear for trial, the court heard evidence on defendant's cross complaint and, at the conclusion of the testimony, granted him an interlocutory decree of divorce, all the community property, and custody of their two-year-old child. Plaintiff's motion for new trial, on the ground that she was not served with written notice of trial, was granted.

The court of appeal affirmed the order, stating that the failure to give notice of trial was a proper ground for the granting of a new trial under Code Civ. Proc. § 657(1)[Deering's] on the theory of error in law or irregularity in the proceedings of the court (145 Cal. App. 2d 231, 233). Code Civ. Proc. § 594[Deering's] requires service of notice of trial and, when the adverse party fails to appear, proof of service. Compliance with the section is mandatory (145 Cal. App. 2d 231, 233). The court deemed the appeal from the order frivolous and assessed a penalty against defendant (145 Cal. App. 2d 231, 235).
[f]--Objection by Aggrieved Party and Admonishing Instruction by Court Unnecessary
Etzel v. Rosenbloom (1948) 83 Cal. App. 2d 758, 189 P.2d 848 , was an action for personal injuries arising from an automobile accident. During trial, the judge made many comments that indicated that he believed that one defendant was not telling the truth and that defense counsel was trying to keep the facts from being presented to the jury. Defendants did not object to the remarks during trial. After the jury rendered a verdict for plaintiff, defendants appealed.

The court of appeal reversed the judgment, stating that the judge's conduct constituted prejudicial error that deprived defendants of a fair and impartial trial by jury (83 Cal. App. 2d 758, 762-765). The court added that the general rule is that unless the harmful result of the trial judge's misconduct cannot be obviated by an appropriate instruction, error cannot be predicated thereon in the absence of an assignment of such misconduct as error and a request to the trial court to instruct the jury to disregard it. However, in cases in which an admonition of the judge to the jury to disregard the misconduct would not remove the prejudicial effect of the misconduct, it is not a prerequisite to the urging of such error on appeal for the appellant to have objected thereto and made a request that the jury be instructed to disregard it. In this case, the court stated that it was evident that an objection to the misconduct and an admonition by the court to the jury to disregard it would have been ineffectual and would have accentuated the error rather than have removed it. Hence, the court felt that this case was an exception to the general rule and that it was not necessary for defendants to have objected to the judge's misconduct and to have requested that he admonish the jury to disregard it (83 Cal. App. 2d 758, 762).

Although this case did not involve a motion for new trial, the rule regarding objection and an admonishing instruction appears to be the general rule when moving for a new trial based on irregularity in the proceedings of the court [see Ward v. DeMartini (1930) 108 Cal. App 745, 751, 292 P. 192 ].

In Ward v. DeMartini (1930) 108 Cal. App 745, 292 P. 192 , plaintiff recovered damages for personal injuries alleged to have been maliciously inflicted by defendant. Defendant's motion for new trial, based on several grounds, including prejudicial remarks by the judge, was denied. Although the court of appeal affirmed the judgment, it stated that courts' oral statements to the jury that the witness is a person of respectability had, in several cases, been held as error (108 Cal. App 745, 750-751). However, it was also the duty of the defendant to promptly call attention to the impropriety of the remarks to give the court an opportunity to prevent any prejudicial effect on the jury by means of a proper instruction (108 Cal. App 745, 751). If the admonition of the judge to the jury to disregard the misconduct would not remove its prejudicial effect, the aggrieved party need not have objected and requested that the jury be instructed to disregard the impropriety. In this case, the court felt that a court's instruction to the jury may have obviated any prejudicial effect (108 Cal. App 745, 751). Nevertheless, notwithstanding the error or misconduct, it felt that the jury's verdict was fully sustained by the evidence and the judge's misconduct resulted in no miscarriage of justice requiring a reversal of the judgment (108 Cal. App 745, 751-752).
[g]--Assignment by Court of Irregularity as Error Unnecessary
In People v. Mahoney (1927) 201 Cal. 618, 258 P. 607 , defendant, a contractor, was convicted of manslaughter in connection with the faulty construction of a grandstand that collapsed and killed several spectators. During the trial, the judge made frequent disparaging remarks to defendant's counsel and witnesses. Defendant's motion for new trial, based on the alleged misconduct of the judge and the alleged erroneous admission of certain evidence, was denied.

The Supreme Court reversed the conviction and ordered a new trial on the basis of the judge's misconduct (201 Cal. 618, 627). The Court recognized the rule that effort had to be made at trial to correct and undo that harm caused by the judge's conduct; however, it was evident from the attitude of the trial judge that any assignment of misconduct would have been disregarded and counsel, by making an assignment, would have brought himself under further judicial attack (201 Cal. 618, 622). The Court held that when the trial court persists in making discourteous and disparaging remarks to defendant's counsel and witnesses, and utters frequent comment from which the jury may plainly perceive that the judge does not believe the witnesses, a new trial is necessary (201 Cal. 618, 627).

It appears that the rule of People v. Mahoney (1927) 201 Cal. 618, 258 P. 607 , a criminal case, may be used as authority when moving for a new trial in a civil action under Code Civ. Proc. §§ 657[Deering's] and 659[Deering's] [see Ward v. DeMartini (1930) 108 Cal. App 745, 751, 292 P. 192 (citing People v. Mahoney)].
[4]--Additional Authorities
[a]--Departure by Court From Due and Orderly Method
Jacoby v. Feldman (1978) 81 Cal. App. 3d 432, 146 Cal. Rptr. 334 , was an action for declaratory relief brought by the surviving partners seeking interpretation of an amended partnership agreement. After judgment for defendant that dissolved the partnership, the trial court denied plaintiffs' motion for new trial that was made on the ground of irregularity in the proceedings of the court. Although the court of appeal affirmed the denial, it stated that the language of Code Civ. Proc. § 657(1)[Deering's] is sufficiently broad to include any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected (81 Cal. App. 3d 432, 446).
[b]--Court's Prejudgment of Case Before Hearing
Rosenfield v. Vosper (1941) 45 Cal. App. 2d 365, 114 P.2d 29 , was an action for the reasonable value of legal services in which the court of appeal reversed a judgment for plaintiff on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ] based on the court's prejudgment of the case (45 Cal. App. 2d 365, 372). The trial judge had suggested a settlement of $7,500 before plaintiff had finished his testimony and before defendants had presented any testimony as to an alleged accord and satisfaction (45 Cal. App. 2d 365, 371-372). The trial judge had the duty to refrain from forming an opinion until the case was finally submitted to him (45 Cal. App. 2d 365, 372).
[c]--Court's Invasion of Province of Jury and Influence on Verdict
In Delzell v. Day (1950) 36 Cal. 2d 349, 223 P.2d 625 , the Supreme Court reversed judgments for defendants against two plaintiffs and in favor of a third plaintiff in a personal injury action on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ]. Numerous comments and remarks by the trial judge during the examination of jurors and witnesses, taken as a whole, had prejudiced the appellants' case (36 Cal. 2d 349, 351). The Court ordered a new trial, since in the absence of the comments complained of, a different verdict would not have been improbable (36 Cal. 2d 349, 351-352).

Shippy v. Peninsula Rapid Transit Co. (1925) 197 Cal. 290, 240 P. 785 , was a personal injury action in which the Supreme Court affirmed the trial court's order granting a new trial under Code Civ. Proc. § 657(1)[Deering's] on the ground of irregularity in the proceedings of the court (197 Cal. 290, 296). During trial and after the conclusion of the taking of evidence, the court asked the jury if it was prepared to pass upon the issues in the case without argument of counsel or instruction by the court on the law of the case (197 Cal. 290, 294-295). This amounted to a requirement of the jurors that they evince a fixed state of mind that they were not entitled to hold at that stage of the proceedings (197 Cal. 290, 295).

In People v. Burns (1952) 109 Cal. App. 2d 524, 241 P.2d 308 , the court of appeal reversed a conviction of second-degree murder on the ground of irregularity in the proceedings of the court based on the trial judge's exhibition of hostility toward defense counsel. When the district attorney had not objected to certain testimony, the court would interrupt defendant's examination or cross examination of a witness and rule that the subject was not admissible. While the judge admonished the jury that it was the sole judge of the evidence and that it must draw no conclusion as to guilt or innocence based on the court's remarks, these admonitions did not overcome the judge's evident attitude throughout the trial (109 Cal. App. 2d 524, 542).

Langdon v. Superior Court (1923) 65 Cal. App 41, 223 P. 72 , was an action for damages arising from an automobile collision. After the jury had rendered a compromise verdict for one dollar, the trial court directed the jury to return a verdict for $248.32, the stipulated amount expended for repairs. Judgment was entered on the verdict and a new trial was denied (65 Cal. App 41, 42). The court of appeal issued a writ of certiorari annulling the verdict for plaintiff, since it determined that the functions of the jury in determining the facts were usurped by the judge (65 Cal. App 41, 43). The court's thinly veiled threats and intimidation of the jury coerced it into returning a verdict on which it otherwise would not have agreed (65 Cal. App 41, 43).
[d]--Failure to Give 15 Days' Notice of Trial
Simon v. Tomasini (1950) 97 Cal. App. 2d 115, 217 P.2d 488 , was an action for attorney's fees and expenses which was kept on the ready calendar for almost two years pursuant to an agreement between the parties. When the case was assigned for trial, plaintiff failed to give defendant adequate notice under Code Civ. Proc. § 594[Deering's] , and defendant did not appear. The court of appeal affirmed the trial court's order granting a new trial, stating that lack of notice, as required by law, constituted an irregularity in the proceedings of the court for which a new trial should be granted (97 Cal. App. 2d 115, 123).
[e]--Objection by Aggrieved Party and Admonishing Instruction by Court Unnecessary
The factual and procedural background of Delzell v. Day (1950) 36 Cal. 2d 349, 223 P.2d 625 , is discussed in [c], above. In that case, plaintiffs appealed from a judgment for defendants, contending that the judge was guilty of prejudicial misconduct. The Supreme Court stated that although a request for an instruction, in addition to an assignment of error, generally is necessary as the basis for an appeal on the ground of misconduct of counsel, there is no such requirement when it is charged that the appellant's rights were prejudiced by the improper action of the trial judge. A request for an instruction would in all probability have made a bad matter worse. The remarks would probably have been repeated with emphasis, and counsel would have found himself or herself in a position anything but pleasant or secure (36 Cal. 2d 349, 351).
§§ 155.51-155.54 [Reserved]

§ 155.55 Supporting Motion for New Trial [Code Civ. Proc. § 659]--Court Order or Abuse of Discretion Prevented Fair Trial [Code Civ. Proc. § 657(1)]
[1]--FORM


[Caption. See § 155.50[1].]

A NEW TRIAL SHOULD BE GRANTED SINCE THERE WAS AN _________________ [ORDER OF THE COURT and/or ABUSE OF DISCRE- TION] THAT PREVENTED _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND THAT MATERIALLY AFFECTED HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. New Trial on Ground of Order of Court or Abuse of Discretion Preventing Fair Trial. On application of the party aggrieved, the verdict or decision may be vacated, in whole or in part, and a new trial may be granted, on all or some of the issues, on the ground that there was an order of the court or abuse of discretion by which either party was prevented from having a fair trial, if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. § 657(1)[Deering's] ; Hays v. Viscome (1953) 122 Cal. App. 2d 135, 137-140, 264 P.2d 173 ).

[Optional ] B. Order Preventing Reliance on Favorable Presumption. An order of the court that precludes the aggrieved party from relying on a favorable presumption because of admissible but improperly excluded evidence, and that thereby prevents him or her from having a fair trial, may be grounds for the granting of a new trial ( Hays v. Viscome (1953) 122 Cal. App. 2d 135, 137-140, 264 P.2d 173 ).

[Optional ] C. Denial of Continuance to Produce Material Evidence. If the aggrieved party desires a continuance for the purpose of producing material evidence that has just come to his or her attention and the court abuses its discretion by denying a continuance, a new trial my be granted (see Hays v. Viscome (1953) 122 Cal. App. 2d 135, 140-141, 264 P.2d 173 ; see also Murr v. Murr (1948) 87 Cal. App. 2d 511, 521-522, 197 P.2d 369 ).

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]
[2]--Comments
[a]--Use of Form
This memorandum of points and authorities may be submitted in support of a motion for new trial on the ground that there was an order of the court or abuse of discretion that prevented a party from having a fair trial [ Code Civ. Proc. § 657(1)[Deering's] ].

Note that an order of the court that may be asserted as erroneous under Code Civ. Proc. § 657(1)[Deering's] may also be asserted under Code Civ. Proc. § 657(7)[Deering's] as an error in law occurring at trial [see § 155.250 et seq.]. Counsel may desire to raise the claimed error as grounds for new trial under both provisions.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show how the order or abuse of discretion prevented the moving party from having a fair trial and materially affected the moving party's substantial rights. If the motion is based on a court order, counsel may desire to include a copy of the order after obtaining one from the court clerk.

A motion for new trial based on this ground must be supported by declarations or affidavits [ Code Civ. Proc. § 658[Deering's] ; see Code Civ. Proc. § 2015.5[Deering's] ].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and a declaration to be submitted in support of the motion on the grounds of court order or abuse of discretion preventing a fair trial [ Code Civ. Proc. § 657(1)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[d]--Related Points and Authorities
The points and authorities set out in § 155.50 may be combined in an appropriate case with those in this form.
[e]--Opposing Points and Authorities
The points and authorities set out in § 155.60 or § 155.65 may be used in an appropriate case to oppose a motion for new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--New Trial on Ground of Order of Court or Abuse of Discretion Preventing Fair Trial
In Hays v. Viscome (1953) 122 Cal. App. 2d 135, 264 P.2d 173 , plaintiff brought a personal injury action against defendants for injuries suffered in an automobile accident. Before commencement of trial and at defendants' request, plaintiff submitted to two physical examinations by two different doctors. However, at trial, defendants failed to call one of the doctors as a witness. Since it was presumed that the doctor's testimony was adverse to defendants, plaintiff's attorney requested a continuance to give him an opportunity to bring the doctor to testify. Plaintiff's counsel explained that he was surprised by defendants' failure to call the doctor and he had not placed the doctor under subpoena because he had not anticipated that it would be necessary to call him as plaintiff's witness. The court refused the continuance because it felt that there were too many cases pending and it could not permit delay. It stated that plaintiff should have already had the doctor under subpoena. After judgment for plaintiff in the sum of $700, she moved for a new trial. When the motion was denied, she appealed the judgment.

The court of appeal reversed the judgment and ordered a retrial, stating that it was an abuse of discretion for the court to refuse the continuance. The fact that there were other cases awaiting trial did not warrant the denial of the continuance in light of the possibly vital nature of the doctor's testimony (122 Cal. App. 2d 135, 140). The court added that plaintiff's counsel could not have known much earlier that he would have to call the doctor as a witness. Therefore, he could not have had the doctor under subpoena. The matter arose as soon as defendants had rested their case, and it was not until then that plaintiff's counsel knew that defendants would not call the doctor. Guided by its own judgment and experience, the court held that plaintiff's case was prejudiced for no good reason by denial of her request for a short continuance (122 Cal. App. 2d 135, 140-141).
[b]--Order Preventing Reliance on Favorable Presumption
The factual and procedural background of Hays v. Viscome (1953) 122 Cal. App. 2d 135, 264 P.2d 173 , is discussed in [a], above. After defendants failed to call a certain doctor as a witness, plaintiff moved for a continuance so that she could bring him in to testify. The court refused to grant the motion for a continuance, and the jury rendered a small award of damages to plaintiff in light of the severity of the injuries claimed. Plaintiff's motion for a new trial was denied, and she appealed the judgment.

The court of appeal reversed the judgment and granted a retrial, stating that the general rule was that willfully suppressed evidence will be presumed adverse to the party that suppressed it, citing former Code Civ. Proc. §§ 1963(6), 2061(6), 2061(7) [now see Evid. Code § 413[Deering's] ]. In this case, defendants requested that plaintiff submit to an examination by two doctors, and they failed to call one of the doctors to testify at trial. However, the trial court improperly instructed the jury on the presumption and the jury failed to take the presumption into consideration. The court stated that the critical question in the case was whether plaintiff had suffered an injury that resulted in nerve pressure. Had the significance of the failure to call the doctor been explained to the jury, the conclusion as to the extent of plaintiff's injuries might have been altogether different. The court noted that the small verdict manifested that the jury disbelieved that plaintiff's injuries were serious. It added that plaintiff should have been permitted the full benefit of the rule of evidence which was excluded from the jury's consideration by the court's ruling (122 Cal. App. 2d 135, 139-140). Because of the prejudicial effect of the trial court's ruling, the court of appeal reversed the judgment and granted plaintiff a new trial (122 Cal. App. 2d 135, 143).
[c]--Denial of Continuance to Produce Material Evidence
The factual and procedural background of Hays v. Viscome (1953) 122 Cal. App. 2d 135, 264 P.2d 173 , is discussed in [a], above. After defendants failed to call a certain doctor as a witness, plaintiff moved for a continuance so that she could bring him in to testify. The court refused to grant the motion, and the jury rendered a small award of damages in light of the severity of injuries claimed by plaintiff. Plaintiff's motion for a new trial was denied, and she appealed the judgment.

The court of appeal reversed the judgment and granted a retrial, stating that the court abused its discretion in refusing to grant the continuance. The court said that the trial judge stated no sound reason for denying the continuance, and the appellate court could discover none. Plaintiff's attorneys were not negligent in failing to anticipate that defendants would not call the doctor as a witness. They acted promptly and their request for a continuance was reasonable. Guided by the dictates of its own judgment, the court stated that plaintiff's case was prejudiced for no good reason by denial of her request of a short continuance. Accordingly, the court reversed the judgment and granted a new trial (122 Cal. App. 2d 135, 140-143).

In Murr v. Murr (1948) 87 Cal. App. 2d 511, 197 P.2d 369 , plaintiff brought an action for divorce on the ground of extreme cruelty, specifying that defendant wife gave birth to an illegitimate child. After defendant had rested her case, plaintiff's counsel moved for a continuance since he desired to recall a doctor in rebuttal and that particular doctor was not present at the time. Plaintiff's counsel stated that he did not ask the doctor to return, when the doctor was present in court, since he did not have knowledge at that time of the facts he desired to present. The court denied the motion for a continuance. After an interlocutory decree of divorce was granted to defendant on her cross complaint, plaintiff moved for a new trial. When the motion was denied, plaintiff appealed the judgment, contending that the trial judge had abused his discretion in denying plaintiff's motions for a new trial and for a continuance.

The court of appeal reversed the judgment and remanded the cause for a new trial, because it found that the trial judge abused his discretion in denying plaintiff's motion for a continuance. It stated that the trial judge should have granted the continuance because of the nature of the proposed evidence. The testimony of the doctor was material in that, if true, it would have indicated that defendant was pregnant in June before plaintiff returned home in July. Since the court felt that plaintiff's case had been prejudicially affected by the denial of the continuance, it remanded the case for a new trial (87 Cal. App. 2d 511, 521-522).
[4]--Additional Authorities
[a]--Denial of Continuance to Produce Material Evidence
In Henderson v. Drake (1953) 118 Cal. App. 2d 777, 258 P.2d 879 , the court of appeal affirmed the granting of plaintiff's motion for a new trial on the grounds of insufficiency of the evidence [ Code Civ. Proc. § 657(6)[Deering's] ] and the court's improper denial of a motion for continuance [ Code Civ. Proc. § 657(1)[Deering's] ]. Before trial, the lower court denied plaintiff's motion for a continuance so that plaintiff could be present to testify at trial. The court of appeal stated that even though the granting or denial of the continuance was probably within the discretion of the court, it was entirely proper for the court, in light of later developments in the case, to decide that it had abused its discretion in denying the motion for a continuance and to grant a new trial (118 Cal. App. 2d 777, 782-783).
§§ 155.56-155.59 [Reserved]

§ 155.60 Opposing Motion for New Trial [Code Civ. Proc. § 659]--No Irregularity in Court Proceedings Sufficient to Require New Trial [Code Civ. Proc. § 657(1)]
[1]--FORM


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)OPPOSITION TO MOTION
)FOR NEW TRIAL
_________________________ [name],)[Telephone Appearance]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)

THE MOTION FOR NEW TRIAL SHOULD BE DENIED BECAUSE THERE WAS NO IRREGULARITY IN THE PROCEEDINGS OF THE COURT THAT PREVENTED _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND THAT MATERIALLY AFFECTED HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. No New Trial for Harmless Error. The trial court is bound by the rule of Article VI, Section 13, of the California Constitution that prejudicial error is a basis for granting a new trial, but the court has no discretion to grant a new trial for harmless error ( Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 265-266, 145 Cal. Rptr. 584 ).

B. Judge's Personal Habits, Conduct, or Statements. Personal habits, conduct, deportment, or statements of the judge that have no relation to or effect on the disposition of the case are not an irregularity in the proceedings of the court for which a new trial may be granted under Section 657(1)[Deering's] of the Code of Civil Procedure ( Gay v. Torrance (1904) 145 Cal. 144, 150, 78 P. 540 ).

C. Decided Cases Not Controlling Precedents in New Situation. Decided cases in which trial judges have been found guilty of misconduct are not controlling precedents in a new situation in which new factual questions are presented ( Weil v. Weil (1951) 37 Cal. 2d 770, 786, 236 P.2d 159 ; Gardner v. Mobil Oil Co. (1963) 217 Cal. App. 2d 220, 225-226, 31 Cal. Rptr. 731 ).

[Optional ] D. Judge's Expression of Disagreement With Policy of Statute. It is not an irregularity in the proceedings of the court for which a new trial may be granted under Section 657(1)[Deering's] of the Code of Civil Procedure if the court expresses to the parties its disagreement with the policy of a statute and what the policy should be if its disagreement does not lead the court to disregard the statute ( Weil v. Weil (1951) 37 Cal. 2d 770, 776, 236 P.2d 159 ).

[Optional ] E. Judge's Encouragement of Settlement of Litigated Cases. A trial judge, within proper bounds, may encourage the settlement of litigated cases, and such encouragement is not an irregularity in the proceedings of the court for which a new trial may be granted under Section 657(1)[Deering's] of the Code of Civil Procedure ( Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 639-640, 103 Cal. Rptr. 106 ; Gardner v. Mobil Oil Co. (1963) 217 Cal. App. 2d 220, 224-226, 31 Cal. Rptr. 731 ).

[Optional ] F. Judge's Expression of Tentative Views of Case. The judge's expression of tentative views of the case to respective counsel during the course of trial so that counsel may be advised of what course to take is not a prejudgment of the case for which a new trial may be granted when the views are expressly subject to modification in the event that later evidence should require it ( Gardner v. Mobil Oil Co. (1963) 217 Cal. App. 2d 220, 222, 225-226, 31 Cal. Rptr. 731 ).

[Optional ] G. Judge's Expression of Doubt Concerning Credibility of Witness. In a nonjury trial, the trial judge's expression of doubt concerning the credibility of a trial witness, if made after the evidence has been presented, is not an irregularity in the proceedings of the court for which a new trial may be granted if it is apparent from a reading of the entire record that both sides received a fair trial (see Jaffee v. Vitz (1948) 84 Cal. App. 2d 810, 813-814, 191 P.2d 802 ; see also Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 640-641, 103 Cal. Rptr. 106 ).

[Optional ] H. Judge's Expression of Opinion on Question of Law or Interpretation of Statute. The court's remarks before the introduction of evidence by either party are not an irregularity in the proceedings of the court for which a new trial may be granted under Section 657(1)[Deering's] of the Code of Civil Procedure when the court merely expressed an opinion on a question of law and the interpretation of a statute and the moving party was permitted to present his/her case fully without any hindrance or restraint on the part of the court ( Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 638-639, 103 Cal. Rptr. 106 ).

[Optional ] I. Judge's Questioning of Witness. The trial judge is entitled to question a witness in order to ascertain the truth and it is not error for him or her to do so when the party claiming error cannot point out the error or the prejudicial effect ( Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 640, 103 Cal. Rptr. 106 ).

[Optional ] J. Judge's Bias or Prejudice Not Irregularity. Bias or prejudice is not an irregularity, but a condition of mind that may only be challenged by moving for disqualification pursuant to Sections 170[Deering's] through 170.5[Deering's] of the Code of Civil Procedure . If the aggrieved party did not urge disqualification at the time the judge made his or her comments, the party is deemed to have waived objection and cannot raise the issue for the first time on motion for new trial ( Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12 Cal. App. 3d 143, 150, 91 Cal. Rptr. 193 ).

[Optional ] K. Lack of Objection to Improper Statement. The moving party has a duty to call attention to the impropriety of the court's remarks in order to give the court an opportunity to prevent, by proper instruction, any prejudicial effect on the jury; when there is a failure to do so, the claim of misconduct will not be considered if any harmful effect on the jury could have been removed by instructing it to disregard the remarks ( Ward v. DeMartini (1930) 108 Cal. App 745, 751, 292 P. 192 ).

Respectfully submitted,
_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney for _________________
[party's status and name]
[2]--Comments
[a]--Use of Form
This memorandum of points and authorities may be submitted in opposition to a motion for new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. § 657(1)[Deering's] ].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should set out the alleged irregularity and show that it did not prevent the moving party from having a fair trial. This might include argument that the judge's actions did not constitute misconduct. For example, if a judge expresses disagreement with the policy of a statute during trial, counsel should show that despite his or her comments, the judge tried the case according to the law, and hence there was no misconduct [see Weil v. Weil (1951) 37 Cal. 2d 770, 776, 236 P.2d 159 ]. In addition, counsel might argue that even though the trial judge's conduct may constitute error, the error was not prejudicial and not a basis for granting a new trial [see Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 265-266, 145 Cal. Rptr. 584 ].
[c]--Related Pleading and Practice Forms
For forms relating to a motion for new trial and an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[d]--Related Points and Authorities
The points and authorities set out in § 155.55 may be combined in an appropriate case with those in this form.
[e]--Opposing Points and Authorities
In an appropriate case, this form may be used to oppose a motion for new trial supported by the points and authorities set out in § 155.50 or § 155.55.
[3]--Discussion of Authorities
[a]--No New Trial for Harmless Error
In Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 145 Cal. Rptr. 584 , plaintiff seller brought an action for damages against a buyer for breach of a contract to purchase real property. After the jury returned a verdict for the buyer, the trial court granted the seller's motion for a new trial on the ground that the court had abused its discretion by admonishing plaintiff and counsel in front of the jury and by refusing to allow plaintiff on rebuttal to call an expert witness to testify to the fair market value of the real property at the time of the breach. The court of appeal reversed the order granting a new trial, stating that the trial court is bound by the rule of Cal. Const., art. VI, § 13[Deering's] , which states that prejudicial error is the basis for a new trial and there is no discretion to grant a new trial for harmless error. In this case, the trial judge appeared to state that he did not think that his conduct could have been prejudicial, but he granted a new trial, because he believed that the grant was required as a matter of form to foster the appearance of justice. On examining the merits of the case, the court decided that the order was unsound, since it was clear that prejudicial error did not occur (80 Cal. App. 3d 259, 266-267). The grant of a new trial for harmless error violates the constitutional provision and wastes judicial time and resources to no purpose (80 Cal. App. 3d 259, 266).
[b]--Judge's Pers