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 Personal Habits, Conduct, or Statements
The factual and procedural background of Gay v. Torrance (1904) 145 Cal. 144, 78 P. 540 is discussed in 155.50[3][a]. The Supreme 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, 148-149). 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, however, that the 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 motion for new trial. 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).
[c]--Decided Cases Not Controlling Precedents in New Situation
In Weil v. Weil (1951) 37 Cal. 2d 770, 236 P.2d 159 , plaintiff husband brought an action for divorce and defendant wife cross complained for separate maintenance. During trial, the judge stated to counsel at the bench and in chambers that he did not believe in separate maintenance for short marriages and that unless there was additional evidence that he had not heard, he would not award separate maintenance. He also stated that if defendant amended her cross complaint to ask for divorce, he was disposed to granting one. At the conclusion of trial, defendant amended her cross complaint to pray for divorce. A divorce was granted to defendant, and a property settlement was made. After the decree was entered, defendant refused to comply with its provisions. She discharged her attorney and moved for new trial on the ground that the trial judge was guilty of misconduct in coercing her to amend her prayer and consent to the judgment. Her motion was denied.

The Supreme Court affirmed the judgment granting defendant a divorce on the amended cross complaint, stating that each of the cited cases in which trial judges have been found guilty of misconduct has been substantially different from the others. None of them can be a controlling precedent in a new situation in which new factual questions are presented. Differences in the nature of the litigation, the particular comments or conduct of the trial judge, the scope and reliability of affidavits by parties and attorneys, and the state of the evidence at the trial make it essential that each case turn on its own facts (37 Cal. 2d 770, 786).

In Gardner v. Mobil Oil Co. (1963) 217 Cal. App. 2d 220, 31 Cal. Rptr. 731 , plaintiffs lessors brought an action to reform a written lease agreement and to recover damages from defendant lessee for the breach of the agreement as reformed. After judgment for defendant, plaintiffs moved for a new trial on the ground that there were irregularities in the proceedings of the court by which they were prevented from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. The plaintiffs claimed that the trial judge formed an opinion on the merits of the case before they had completed presentation of their evidence and that he also expressed this opinion to respective counsel, urging them to make a settlement. Their motion was denied.

The court of appeal affirmed judgment for defendant, concluding that the record did not present a situation in which the trial judge was guilty of misconduct that required the granting of a new trial (217 Cal. App. 2d 220, 226). Each of the cases that plaintiffs cited in which trial judges had been found guilty of misconduct differed substantially from the others; none of them can be a controlling precedent in a new situation in which new factual questions are presented. Each case must turn on its own facts because of differences in the nature of the litigation, the particular comments or conduct of the trial judge, the scope or reliability of affidavits, and the state of the evidence (217 Cal. App. 2d 220, 225-226).
[d]--Judge's Expression of Disagreement With Policy of Statute
The factual and procedural background of Weil v. Weil (1951) 37 Cal. 2d 770, 236 P.2d 159 , is discussed in [c], above. After defendant's motion for new trial on the grounds of irregularity in the proceedings of the court [ Code Civ. Proc. 657(1)[Deering's] ] based on the judge's alleged misconduct was denied, she appealed the judgment.

The Supreme Court affirmed the judgment granting defendant a divorce on the amended cross complaint, stating that the judge's statement that he did not believe in separate maintenance for short marriages did not evidence an unwillingness to try defendant's case according to law. A judge is not required to approve every statute or precedent by which his decision is governed. A judge who disagrees with the policy of a statute is not necessarily disqualified from hearing a case in which that statute must be applied. In the present case, the judge's opposition to separate maintenance was a personal opinion concerning the wisdom of the legislation. The judge stated that his mind was still open on this issue and that he did not believe that separate maintenance should be granted unless there was additional evidence that he had not heard. Had he regarded length of marriage as a controlling circumstance, additional evidence would have made no difference to him. Therefore, the judge was not guilty of misconduct in thus expressing to the parties what he believed the law should be (37 Cal. 2d 770, 776).
[e]--Judge's Encouragement of Settlement of Litigated Cases
Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 103 Cal. Rptr. 106 , was an action brought by plaintiff to foreclose a mechanic's lien against the property owner with whom plaintiff had contracted, the present owners of the property who had purchased it from the prior owner, and the assignees of a second deed of trust from the prior owner. After judgment was rendered for plaintiff against all defendants, defendants 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 based on conduct of the trial judge that allegedly prevented defendants from having a fair trial.

The court of appeal modified the judgment to provide liability only against the prior owner who had contracted with the plaintiff and affirmed the original judgment with the modification (26 Cal. App. 3d 621, 642). The court rejected defendants' contention that the trial judge committed certain irregularities that prevented them from having a fair trial. Although defendants contended that the judge exerted pressure on defendants to settle the case in the amount offered by plaintiff, the claim of coercion was without substance. The judge's statement that he thought counsel for plaintiff offered a fair figure was made in the light of the court's belief that defendants' defense, based on lack of prelien notice, was not valid. When the offer was unequivocally rejected, the judge proceeded with trial (26 Cal. App. 3d 621, 639). According to the record, there was nothing more than a sincere effort on the part of the judge to settle a case which, as it then appeared to him, was one that called for settlement. The trial judge's ultimate decision was one that he was obliged to render under the law and was not one that could be said to be the result of pique because the settlement had been rejected (26 Cal. App. 3d 621, 639-640).

The factual and procedural background of Gardner v. Mobil Oil Co. (1963) 217 Cal. App. 2d 220, 31 Cal. Rptr. 731 , is discussed in [c], above. After judgment for defendant, plaintiffs moved for new trial on the ground of irregularities in the proceedings of the court [ Code Civ. Proc. 657(1)[Deering's] ]. Plaintiffs claimed that the trial judge had formed an opinion on the merits of the case before plaintiffs had completed the presentation of their evidence and had expressed his opinion to respective counsel, urging them to make a settlement. Plaintiffs' motion was denied, and they appealed the judgment.

The court of appeal affirmed judgment for defendant, stating that the rule is well established that, within proper bounds, a trial judge should encourage the settlement of litigated cases. The trial judge's comment that he was interested in knowing whether a settlement could be made and his indication that he thought a figure of less than $1,000 was appropriate was not more than a comment that the judge felt might be considered in a settlement discussion. It merely represented an observation based upon what had transpired up to that point in the case. It did not indicate that the judge had closed his mind on the issue of damages or that he would not award damages if the law and the evidence required him to do so (217 Cal. App. 2d 220, 223-224). The court distinguished the instant case from Rosenfield v. Vosper (1941) 45 Cal. App. 2d 365, 114 P.2d 29 (discussed in 155.50[4][b]), in which the judge urged defendant's counsel to settle for $7,500 before defendants had presented any evidence. In the case at bar, the remarks of the court were made after plaintiffs had been conducting their case for three days and had not yet produced sufficient evidence to establish a prima facie case (217 Cal. App. 2d 220, 225). Considering the court's frame of mind at the conference, his remarks became less significant, since if plaintiffs were not going to be able to prove a prima facie case or damages as a result of breach, there would be no point in defendant offering a settlement of any substantial amount (217 Cal. App. 2d 220, 225).
[f]--Judge's Expression of Tentative Views of Case
The factual and procedural background of Gardner v. Mobil Oil Co. (1963) 217 Cal. App. 2d 220, 31 Cal. Rptr. 731 , is discussed in [c] and [e], above. On motion for new trial, plaintiffs claimed that the trial judge was guilty of prejudicial misconduct when he stated in chambers that he was interested in knowing whether a settlement could be made and was thinking of a figure less than $1,000. After denial of plaintiffs' motion, they appealed the judgment.

The court of appeal affirmed judgment for defendant, stating that the comments of the trial judge were made without bias or prejudice toward either party. The comments were made with a desire to give counsel for the respective parties an expression of the conclusions of the trial judge up to the moment so that counsel could be advised of what course to take (217 Cal. App. 2d 220, 226). The judge's remarks represented an observation based upon what had transpired up to that point in the case. They did not indicate that he had closed his mind on the issue of damages or that he would not award damages if the law and evidence required him to do so (217 Cal. App. 2d 220, 224).
[g]--Judge's Expression of Doubt Concerning Credibility of Witness
In Jaffee v. Vitz (1948) 84 Cal. App. 2d 810, 191 P.2d 802 , plaintiff brought an action on a written contract for services rendered in connection with the purchase of real property. As the trial neared completion, the trial judge remarked sharply on defendant's lack of credibility as a witness. Defendant appealed the judgment for plaintiff, charging that the trial judge was guilty of prejudicial misconduct and that a new trial should be granted.

The court of appeal affirmed the judgment for plaintiff, stating that it was apparent from the entire record that both parties received a fair trial. There was no intimation that the judge prejudged the case. In fact, the remarks of the court for which complaint was made had been uttered either after the case had closed or at the end of trial, and the witness in question had already been thoroughly impeached by an entirely disinterested witness. The judge had the right to announce the mental processes by which he determined the credibility of the witnesses and by which he arrived at his conclusions. A new trial cannot be demanded on the ground that the judge in exercising this right may have exceeded the bounds of propriety (84 Cal. App. 2d 810, 814).

The factual and procedural background of Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 103 Cal. Rptr. 106 , is discussed in [e], above. The court of appeal rejected defendants' contention that the trial judge committed certain irregularities that prevented them from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. One irregularity that defendants asserted was that the trial judge expressed a doubt concerning the credibility of Chinese witnesses. In a colloquy between the court and counsel at the time findings were being settled, defense counsel asserted that it was apparent that two Chinese witnesses had not lied, and the trial judge stated that he did not know whether they had lied or not. The judge related a previous experience when a Chinese witness testified that he did not understand English and later turned out to be a university graduate who was articulate in English. The judge added, however, that he should not judge individuals by past experience. Although the court of appeal stated that it would have been better to have left these remarks unsaid, it was apparent from the other remarks of the trial judge that he was not motivated by past experience in judging the credibility of the Chinese witnesses in the case at bar (26 Cal. App. 3d 621, 640-641).
[h]--Judge's Expression of Opinion on Question of Law or Interpretation of Statute
The factual and procedural background of Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 103 Cal. Rptr. 106 , is discussed in [e], above. The court of appeal rejected defendants' contention that the trial judge committed certain irregularities that prevented them from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. Defendants contended that the trial court prejudged the case in favor of plaintiff before the introduction of any evidence by either party (26 Cal. App. 3d 621, 638-639). Defendants' declaration asserted that after hearing opening statements, the trial judge stated that defendants did not have a defense, that he thought title companies should pay claims like this one, that he referred to title companies as the ``Supreme Court of Montgomery Street,'' and that he used this expression several times in a manner indicating hostility to title companies. The counterdeclaration stated that the colloquy between court and counsel revolved around whether plaintiff was required to give prelien notice and that the trial judge stated in effect that although he was not prejudging the case, he felt that there was no merit in the defense of lack of prelien notice to the buyer of the property. The court of appeal said that it was apparent that the trial judge was merely expressing an opinion on a question of law and the interpretation of a statute, an interpretation with which the court agreed. The trial record revealed that the defendants were permitted at trial to present their defenses, both legal and factual, without any hindrance or restraint on the part of the court. Therefore, this was not grounds for a new trial pursuant to Code Civ. Proc. 657(1)[Deering's] (26 Cal. App. 3d 621, 638-639).
[i]--Judge's Questioning of Witness
The factual and procedural background of Schrader Iron Works, Inc. v. Lee (1972) 26 Cal. App. 3d 621, 103 Cal. Rptr. 106 , is discussed in [e], above. The court of appeal rejected defendants' contention that the trial judge committed certain irregularities that prevented them from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. Defendants claimed that the trial court demonstrated hostility toward the defense in connection with the testimony of a witness. Defendants' declaration stated that the judge took over the examination of the witness concerning the purchase contract of the real property before the witness had been permitted to testify concerning that matter on direct examination. During this questioning, the court allegedly used leading questions to elicit confused testimony contrary to the face of the document. The court of appeal stated that the statements made in the declaration were essentially conclusionary and were not evidentiary. The court pointed out that a trial judge is permitted to question a witness in order to ascertain the truth and that it is not error for him or her to do so unless the party claiming error can point out such error, as well as its prejudicial effect (26 Cal. App. 3d 621, 640).
[j]--Judge's Bias or Prejudice Not Irregularity
In Develop-Amatic Engineering v. Republic Mortgage Co. (1970) 12 Cal. App. 3d 143, 91 Cal. Rptr. 193 , a corporation brought an action against several defendants for declaratory relief, an accounting, and an injunction in an effort to have a deed absolute in form to be declared a mortgage in fact and to quiet title to a parcel of land. After closing arguments, the trial judge remarked that he found the value estimates of the property adduced during trial difficult to believe. The court ordered that plaintiff take nothing by its complaint. Plaintiff moved for new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. 657(1)[Deering's] ], contending that the trial judge's judgment was based on bias and prejudice as defined by former Code Civ. Proc. 170(5) (now see Code Civ. Proc. 170.1(a)(6)[Deering's] ), which provides for the disqualification of a judge by reason of bias or prejudice. Plaintiff did not move to disqualify the judge during the action and urged bias or prejudice for the first time on its motion for a new trial. After its motion was denied, it appealed the judgment.

The court of appeal affirmed the judgment, stating that plaintiff should have moved to disqualify the judge as provided by former Code Civ. Proc. 170(5) (now see Code Civ. Proc. 170.1(a)(6)[Deering's], 170.3(c)[Deering's] ) when the judge made the comments in question. The disqualification of a judge as provided in former Code Civ. Proc. 170(5) (now see Code Civ. Proc. 170.1(a)(6)[Deering's], 170.3(c)[Deering's] ) must be asserted at the earliest practicable opportunity, otherwise it is deemed waived. Since plaintiff failed to do so, he waived any claimed grounds of disqualification, since he could not gamble on a favorable judgment and then move for disqualification on receiving an adverse judgment. The court also observed that the question of bias or prejudice cannot be raised for the first time on a motion for a new trial. Bias or prejudice is not an irregularity but a condition of mind that may only be taken advantage of by the method prescribed in former Code Civ. Proc. 170[Deering's] (now see Code Civ. Proc. 170-170.5[Deering's] ). However, evidence of the trial judge's conduct during the trial may be shown as evidence of irregularities preventing a fair trial. An irregularity is an overt act of the judge that prevents the complaining party from having a fair trial (12 Cal. App. 3d 143, 150). However, plaintiff's declaration in support of its motion for a new trial did not show any irregularities in the conduct of the court. In the court's findings, the trial judge accepted the valuation placed on the property by a witness for defendant. Accordingly, the court of appeal presumed that plaintiff was attempting to impeach the trial court's findings by using remarks the trial court made from the bench. The plaintiff could not do this, since the findings superseded any opinion the judge may have expressed (12 Cal. App. 3d 143, 151).
[k]--Lack of Objection to Improper Statement
The factual and procedural background of Ward v. DeMartini (1930) 108 Cal. App. 745, 292 P. 192 , is discussed in 155.50[3][f]. The court of appeal affirmed the judgment, stating that it was the duty of the defendant promptly to call attention to the impropriety of the remarks in order to give the court an opportunity to prevent any prejudicial effect on the jury by means of a proper instruction. When there is a failure to do so, the claim of misconduct will not be considered on appeal unless the conduct complained of was such that a harmful result could not be obviated by an instruction. In this case, the court could not say that any harmful effect upon the jury could not have been removed by instructing them to disregard the remarks. In fact, the trial court instructed the jury that questions of fact were solely for the jury's consideration, and that the court had no right to suggest, and did not suggest, what facts had been established in the case (108 Cal. App. 745, 751). After examining the entire case, the court was satisfied that the verdict was fully sustained by the evidence and that no miscarriage of justice occurred (108 Cal. App. 745, 750-752).
[4]--Additional Authorities
[a]--No New Trial for Harmless Error
In Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 236 Cal. Rptr. 778 , the trial court granted plaintiff's motion for new trial on the ground that prejudicial hearsay statements were admitted into evidence, and defendants appealed. The court of appeal reversed, holding, inter alia, that even if admission of the disputed statements constituted error, the error was harmless in light of the substantial evidence supporting the judgment and the mitigating admonishments given to the jury (191 Cal. App. 3d 851, 867). The court therefore adhered to the holding in Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 265-266, 145 Cal. Rptr. 584 (see [3][a], above), stating that granting a new trial motion on harmless error violates Cal. Const., Art. VI, 13[Deering's] , and rejected the holding of Richard v. Scott (1978) 79 Cal. App. 3d 57, 65, 144 Cal. Rptr. 672 , stating that the party prevailing on the motion for new trial is not required to demonstrate that prejudice resulted from the error for which a new trial was granted (191 Cal. App. 3d 851, 858-860).
[b]--Judge's Personal Habits, Conduct, or Statements
In Lowe v. Massachusetts Mut. Life Ins. Co. (1976) 54 Cal. App. 3d 718, 127 Cal. Rptr. 23 , the court of appeal affirmed a judgment against the plaintiff assignees of a loan applicant for the return of a deposit retained by an insurance company on failure to close the loan. The court held that the trial court did not abuse its discretion in denying plaintiff's motion for a new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. 657(1)[Deering's] ] based on the court's remarks. The court noted 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 (54 Cal. App. 3d 718, 740).
[c]--Judge's Encouragement of Settlement of Litigated Cases
In Chalfin v. Chalfin (1953) 121 Cal. App. 2d 229, 263 P.2d 16 , the court of appeal affirmed a judgment of divorce that distributed the property of the parties. Plaintiff wife maintained that she had been coerced by the court into accepting a property settlement. However, the court of appeal stated that the position assumed by the judge did not deprive her of her day in court, since the court never forbade her from introducing pertinent and competent evidence (121 Cal. App. 2d 229, 236). The trial court also repeatedly insisted that plaintiff not make a property settlement unless she chose to do so of her own free will (121 Cal. App. 2d 229, 235).
[d]--Judge's Expression of Tentative Views of Case
Hansen v. Hansen (1965) 233 Cal. App. 2d 575, 43 Cal. Rptr. 729 , was a divorce action in which plaintiff wife was granted an interlocutory decree of divorce. Plaintiff appealed from the judgment on the ground that the trial judge manifested such prejudice that it was impossible for her to receive a fair and impartial trial on the merits. The court of appeal affirmed the judgment in part and reversed it in part, but held that the conduct of the judge did not constitute prejudicial misconduct. The court noted that it has the right, if not the duty, to give the parties its tentative conclusions as the case unfolds, or to give an expression of its conclusions up to the moment, in order that counsel may be advised what course to take (233 Cal. App. 2d 575, 585).
[e]--Judge's Expression of Doubt Concerning Credibility of Witness
In Smith v. Coleman (1941) 46 Cal. App. 2d 507, 116 P.2d 133 , the court of appeal affirmed a judgment against defendant physicians in a medical malpractice action. At the conclusion of a nonjury trial, the trial judge referred to defendants as ``butchers and bunglers,'' suggested that they were committing perjury or were suffering from a loss of memory, and stated that an expert witness was endeavoring to cover up for his professional colleagues (46 Cal. App. 2d 507, 513-514). The court of appeal stated that the trial judge had a right to announce the mental processes by which he determined the credibility of the witnesses and by which he arrived at his conclusions. It added that a new trial cannot be demanded in a nonjury trial on the ground that the judge in exercising this right may have exceeded the bounds of propriety (46 Cal. App. 2d 507, 514).
[f]--Judge's Questioning of Witness
Toriyama v. Putnam (1933) 134 Cal. App. 201, 25 P.2d 34 , was an action for wrongful death resulting from an automobile accident in which defendant passed plaintiff's car and plaintiff's car ran off the road. After the jury returned a verdict for defendant, plaintiff's motion for new trial on the ground of irregularity in the proceedings of the court [ Code Civ. Proc. 657(1)[Deering's] ] and newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ] was denied. Plaintiff's charge of prejudicial misconduct was based on the fact that the judge asked several questions of plaintiff's witness regarding the location of bamboo plants on the left running board of plaintiff's car. The court of appeal affirmed the judgment, stating that prejudicial misconduct could not be predicated on the judge's questions, since he desired to clear up uncertainty in the testimony concerning a material point and testimony relating to the condition of the car and plaintiff's load had been previously offered by both sides without objection (134 Cal. App. 201, 204-205).
[g]--Lack of Objection to Improper Statement
In Woods v. Pacific Greyhound Lines (1949) 91 Cal. App. 2d 572, 205 P.2d 738 , the court of appeal affirmed judgment for defendant bus company in a personal injury action. The court held that the trial court did not abuse its discretion in denying plaintiffs' motion for new trial based on the remarks of the trial judge [ Code Civ. Proc. 657(1)[Deering's] ] and jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. It is not improper for a trial judge, in passing on the competency of evidence to which an objection has been made, to give his reasons for the ruling, provided that the remarks are not expressed in language or manner that is prejudicial. Furthermore, plaintiffs waived their objection to the alleged prejudicial nature of the court's statement of its reason for sustaining the objection to the question propounded by their failure to assign it as prejudicial error or to ask the court to instruct the jury to disregard it (91 Cal. App. 2d 572, 575).
155.61-155.64 [Reserved]

155.65 Opposing Motion for New Trial [Code Civ. Proc. 659]--Court Order or Abuse of Discretion Did Not Prevent Fair Trial [Code Civ. Proc. 657(1)]
[1]--FORM


[Caption. See 155.60[1].]

A NEW TRIAL SHOULD NOT BE GRANTED SINCE THE _________________ [ORDER OF THE COURT and/or ALLEGED ABUSE OF DISCRETION] DID NOT PREVENT _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND DID NOT MATERIALLY AFFECT HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. No New Trial If No Prejudice to Jury and Evidence Supports Verdict. A new trial will not be granted for an order of the court or abuse of discretion if there is no evidence that it prejudiced the jury and if the evidence in the case is sufficient to sustain the verdict ( Sheehan v. Hammond (1905) 2 Cal. App. 371, 375, 84 P. 340 ).

[Optional ] B. Indiscreet Order of Court. An indiscreet order of the court made during trial, but after the retirement of the jury, is not grounds for granting a new trial when it is shown that none of the jurors had knowledge of the order until after the rendition of the verdict ( Sheehan v. Hammond (1905) 2 Cal. App. 371, 375-376, 84 P. 340 ).

[Optional ] C. Denial of Continuance to Produce Material Party-Witness. A new trial will not be granted if the denial of a motion for continuance was within the discretion of the trial court (see Henderson v. Drake (1953) 118 Cal. App. 2d 777, 782, 258 P.2d 879 ).

[Optional ] D. Refusal of Leave to Amend Answer. A new trial will not be granted for refusal to allow defendant leave to amend his or her answer if the alleged abuse of discretion was entirely within the discretion of the trial court ( Cook v. Suburban Realty Co. (1912) 20 Cal. App. 538, 541-542, 129 P. 801 ).

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 that there was a court order or abuse of discretion that prevented the moving party from having a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. It generally opposes a motion for new trial that is supported by the points and authorities set out in 155.55.
[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 how the moving party was not prejudiced by the order of the court or the alleged abuse of discretion. 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.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--No New Trial If No Prejudice to Jury and Evidence Supports Verdict
In Sheehan v. Hammond (1905) 2 Cal. App. 371, 84 P. 340 , plaintiff employee brought an action for personal injuries claimed to have resulted from defendant employer's negligence in furnishing unsafe appliances for plaintiff to use in the course of employment. During trial, a witness for defendant testified during cross examination that he had given false testimony at the direction of defendant. After the case had been submitted to the jury, the court made an order that recited that the witness's testimony was ``a tissue of falsehoods'' and that the record had shown that he had been suborned to testify as he did by the defendant. The court further committed defendant to the custody of the sheriff and set his bail at $2,000. After the jury rendered a verdict in favor of plaintiff, defendant moved for a new trial on several grounds, including an order of the court preventing a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. When the motion was denied, defendant appealed the judgment.

The court of appeal affirmed the judgment, finding that the trial court's denial of defendant's motion for a new trial was proper. The court stated that the order of the court, under the circumstances disclosed by the record, was not a ground for granting a new trial. If the jury had known of the order, the order would have seriously injured defendant. However, the order was not made in the presence or hearing of the jury. The bailiff who had charge of the jury had sworn that the jury had no knowledge of the order until after the verdict had been rendered. The court stated that it could not set aside the verdict because the court made an order of which the jury was ignorant (2 Cal. App. 371, 375). Furthermore, the evidence was sufficient to sustain the verdict. There was evidence showing that the appliance was defective and that plaintiff was not warned of the danger (2 Cal. App. 371, 375-376). Since no prejudice resulted to the jury and the evidence supported the verdict, the court affirmed the judgment and the order denying a new trial (2 Cal. App. 371, 375-377).
[b]--Indiscreet Order of Court
The factual and procedural background of Sheehan v. Hammond (1905) 2 Cal. App. 371, 84 P. 340 , is discussed in [a], above. After the case had been submitted to the jury, the court made an order that stated that a witness's testimony was a ``tissue of falsehoods'' and that the record had shown that he had been suborned by defendant to perjure himself. The court committed defendant to the custody of the sheriff and set his bail at $2,000. After the jury rendered a verdict in favor of plaintiff, defendant moved for a new trial on several grounds, including an order of court preventing a fair trial [ Code Civ. Proc. 657(1)[Deering's] ]. When defendant's motion was denied, he appealed the judgment.

The court of appeal affirmed the judgment, noting that the trial court's denial of defendant's motion for a new trial was proper. The court stated that the court order regarding the witness's testimony was indiscreet and made without the mature and careful deliberation that should characterize all judicial action. Nevertheless, the circumstances of the record did not justify the granting of a new trial. The order was not made until after the jury had retired. The bailiff who had charge of the jury had sworn that they had no knowledge of the order until after the verdict had been rendered and the jury had been discharged. The court added that it cannot set aside a verdict because the court, after the jury retired, made an order of which the jury was ignorant. Furthermore, the evidence in the case sufficiently supported the verdict. Since there was no showing that the jury had been prejudiced by the order in question and the evidence supported the verdict, the court affirmed the denial of defendant's motion for a new trial (2 Cal. App. 371, 375-376).
[c]--Denial of Continuance to Produce Material Party-Witness
In Henderson v. Drake (1953) 118 Cal. App. 2d 777, 258 P.2d 879 , plaintiff brought an action on a draft payable to him and for the enforcement of a Mexican judgment obtained on the draft. Defendant had executed the draft in Mexico as payment to plaintiff for legal services. Before trial, plaintiff's counsel moved for a continuance on the ground that it was imperative for plaintiff, who was then in Mexico, to be present at trial. Counsel had thought that plaintiff would not have to be present at trial until defendant amended her cross complaint to allege that plaintiff had conspired with a third party to defraud defendant. The trial court denied the motion for a continuance and ordered the case to trial the next day. After judgment for defendant, the trial court granted plaintiff's motion for a new trial on the basis of insufficiency of the evidence [ Code Civ. Proc. 657(6)[Deering's] ] and improper denial of a motion for a continuance [ Code Civ. Proc. 657(1)[Deering's] ]. Defendant appealed the order.

Even though the court of appeal affirmed the order, it stated that it was quite apparent that the granting or denial of this continuance was probably within the discretion of the trial court and that a ruling either way on the motion probably would not be disturbed on appeal. It was equally apparent, the court added, that on the motion for new trial, after the court had presumably discovered how imperative plaintiff's presence was for the presentation of his case, it had decided that it had abused its discretion in denying the motion and concluded that the motion should have been granted (118 Cal. App. 2d 777, 782-783). No reason appeared why the trial court, on the motion for new trial, cannot change its mind as to the weight of certain facts on which discretionary action was predicated. The court added that the ground of improper denial of the continuance was sufficient to support the trial court's order granting a new trial and that the order granting the new trial should therefore be affirmed (118 Cal. App. 2d 777, 783).
[d]--Refusal of Leave to Amend Answer
Cook v. Suburban Realty Co. (1912) 20 Cal. App. 538, 129 P. 801 , was an action to recover damages for injuries alleged to have been inflicted on the real property of plaintiff by defendant's wrongful acts. Defendant allegedly filled a natural drain that carried water from plaintiff's property and a large portion of plaintiff's land had, on numerous occasions, been submerged. After verdict for plaintiff, defendant moved for a new trial, claiming that the court prejudicially erred when it refused to allow defendant to amend his answer. When the motion was denied, defendant appealed the judgment.

The court of appeal dismissed the appeal and affirmed the order denying a new trial. It noted that Code Civ. Proc. 657(1)[Deering's] specifies four separate and distinct grounds on which a motion for a new trial may be made, and the last of these grounds is any order of the court or abuse of discretion by which either party was prevented from having a fair trial. The court stated that the action of a trial court in refusing a party leave to amend a pleading can only be reviewed on a motion for new trial, and in that case, the notice of intention must set forth the ground enumerated above. Since the motion at bar did not set forth this ground, the court stated that the alleged abuse of discretion could not be reviewed (20 Cal. App. 538, 542). However, the court added, assuming that the notice of intention were properly filed and served, the refusal of the amendment was a matter entirely within the discretion of the court. Even though the trial courts should generally allow great liberality in the matter of amendments to pleadings, the circumstances of the case disclosed that the court's denial of the proposed amendment was not an abuse of discretion. In this case, defendant, by his answer, virtually admitted a material allegation of the complaint and had allowed the admission to stand for nearly a year before attempting to controvert it (20 Cal. App. 538, 541-542).
155.66-155.69 [Reserved]

2 Irregularity in Jury Proceedings or Juror Misconduct
155.70 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]--General Form
[1]--FORM


[Caption. See 155.50[1].]

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

A. New Trial on the Ground of Irregularity in the Proceedings of the Jury. 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 of irregularity in the proceedings of the jury 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] ).

B. Evidence Admissible to Show Misconduct. Upon an inquiry as to the validity of the verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined ( Evid. Code 1150(a)[Deering's] ; see Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 414-415, 185 Cal. Rptr. 654, 650 P.2d 1171 ).

C. Use of Affidavit to Show Statements or Objective Facts. Affidavits of jurors may be received to show statements or other objective facts that were likely to have influenced the verdict improperly and entitle the moving party to a new trial ( People v. Hutchinson (1969) 71 Cal. 2d 342, 350, 78 Cal. Rptr. 196, 455 P.2d 132 ).

D. No-Knowledge Requirement. A new trial is properly granted on the ground of irregularity in the proceedings of the jury or juror misconduct if a party and his or her counsel were unaware of the misconduct until after the verdict was returned ( Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ).

[Add additional points and authorities, if appropriate, supporting the contention that there was an irregularity in the proceedings of the jury (see, e.g., 155.71 et seq.).]

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 jury [ Code Civ. Proc. 657(1)[Deering's] ]. This form is a general one that should be used in combination with more specific forms of points and authorities relating to particular issues or fact situations [see 155.71 et seq.].
[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 how it prevented the moving party from having a fair trial and materially affected the moving party's substantial rights.
[c]--Supporting Declarations or Affidavits Required
A motion for new trial made on the ground of irregularity in the proceedings of the jury must be supported by declarations or affidavits [ Code Civ. Proc. 658[Deering's] ; see Code Civ. Proc. 2015.5[Deering's] ]. Counsel may include declarations from the offending juror or other jurors showing, for example, that certain conduct occurred. This declaration should contain evidence of objective facts and not mental processes by which the jurors reached their verdict [see Evid. Code 1150[Deering's] ; see also People v. Hutchinson (1969) 71 Cal. 2d 342, 350, 78 Cal. Rptr. 196, 455 P.2d 132 ]. It must be based on personal knowledge and cannot contain hearsay [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132 ]. If a juror's out-of-court statements are offered to show that the statements were made and are evidence of the bias of the speaker, they are not hearsay, since they are not offered to prove the truth of the matter stated [see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 109-110, 95 Cal. Rptr. 516, 485 P.2d 1132 ].
[d]--``No Knowledge'' Requirement
A party relying on the ground of jury irregularities must support his or her motion for new trial with a declaration or affidavit showing that neither counsel nor the moving party had knowledge of the facts constituting the irregularity until the rendition of the verdict [ Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ]. For a form of ``no knowledge'' declaration, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[e]--Irregularity of Jury Proceedings Versus Jury Misconduct
The definition of irregularity in the proceedings of the jury as a ground for new trial [ Code Civ. Proc. 657(1)[Deering's] ] is unclear in light of the subsequent provision that enumerates jury misconduct as a separate ground for new trial [see Code Civ. Proc. 657(2)[Deering's] ; see also Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182, 91 P.2d 194 ]. Consequently the ground of jury irregularity has been used primarily to challenge proceedings other than misconduct, such as matters relating to the formation of the jury [see, e.g., People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 388-389, 63 Cal. Rptr. 138 (concealment of bias on voir dire); Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 248, 296 P.2d 563 (competency of juror)].
[f]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of irregularity in the proceedings of the jury and a related form of supporting declaration, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a form of notice of intention to move for a new trial on the separate ground of jury misconduct, see Ch. 326A, Jury Verdicts in that publication.
[g]--Related Points and Authorities
For more specific points and authorities based on the same ground, that of irregularity of the proceedings of the jury, see 155.71 et seq. For points and authorities on the closely related ground of jury misconduct, see 155.80 et seq.
[h]--Opposing Points and Authorities
In an appropriate case, the points and authorities set out in 155.100 et seq. may be used to oppose those set out in this form.
[3]--Discussion of Authorities
[a]--Evidence Admissible to Show Misconduct
The factual and procedural background of Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 , is discussed in 155.110[3][b]. The Hasson decision involved a products liability action in which the court of appeal overturned a judgment for plaintiffs on the sole ground of juror misconduct. The Supreme Court affirmed the trial court judgment. The Court found that defendant had made a prima facie showing of improper conduct by certain jurors in that some jurors had engaged in distracting activities during the presentation of evidence at trial. It held that plaintiffs could not rely on jurors' counterdeclarations to rebut the inference that some jurors were inattentive during trial, because these counterdeclarations relate to the subjective mental processes of the jurors and are inadmissible under Evid. Code 1150(a)[Deering's] (32 Cal. 3d 388, 414-415). Nevertheless, the Court affirmed the trial court judgment because defendant failed to show it was prejudiced by the jurors' inattentiveness (32 Cal. 3d 388, 414-417).
[b]--Use of Affidavit to Show Statements or Objective Facts
In People v. Hutchinson (1969) 71 Cal. 2d 342, 78 Cal. Rptr. 196, 455 P.2d 132 , defendant was found guilty of possession of marijuana. His motion for new trial, based on the misconduct of the bailiff while the jury deliberated, was denied. On appeal, defendant contended that the trial court erred in refusing to consider the affidavit of a juror when it ruled on the motion for new trial. The court of appeal vacated the order denying new trial with directions to the trial court to determine the motion in accordance with its opinion (71 Cal. 2d 342, 351). Although the general rule was that a jury could not impeach its own verdict except to prove certain judicially or statutorily recognized exceptions, the Legislature, in enacting Evid. Code 1150(a)[Deering's] , permitted a juror to impeach a verdict by proof of overt acts, but not by proof of subjective reasoning processes of individual jurors (71 Cal. 2d 342, 349). The bailiff's remarks and the tone of their delivery constituted statements and conduct that were likely to have influenced the verdict (71 Cal. 2d 342, 351). Admission of the jurors' affidavits within the limits set by Evid. Code 1150[Deering's] protects the stability of verdicts and allows proof by the best evidence of misconduct on the part of either jurors or third parties that should be exposed and upon which no verdict should be based. Admission of this evidence on a motion for new trial would not present a breach in the postverdict privacy of jury deliberations. It would merely ensure that evidence of misconduct will be available to courts, freeing them to determine the substantive questions of whether the particular misconduct is a recognized ground for new trial and whether it has prejudiced the losing party (71 Cal. 2d 342, 350).
[c]--No-Knowledge Requirement
Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 95 Cal. Rptr. 516, 485 P.2d 1132 , was an action for wrongful death due to medical malpractice brought by a widow and her two children. After judgment for defendants, plaintiffs' motion for a new trial, based on the ground of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] and misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ] was granted. Defendants appealed the order, challenging the sufficiency of plaintiffs' declarations. Defendants contended that plaintiffs' motion for new trial was fatally defective because it was not supported by separate declarations by plaintiffs as well as by their counsel that indicated their respective lack of knowledge of the alleged jury irregularities prior to the rendition of the verdict.

The Supreme Court affirmed the order, stating that a litigant seeking a new trial on the ground of juror improprieties must present affidavits showing that neither he or she and counsel were aware of the misbehavior until after the verdict was returned. The rationale for the requirement was to prevent a party from withholding knowledge of jury improprieties until after an unfavorable verdict. Although in this case only the attorney submitted a declaration and the parties did not, the Court held that the attorney's declaration substantially complied with the ``no-knowledge'' rule. In the declaration, the attorney unequivocally stated that both plaintiffs and their attorneys lacked prior knowledge of the jury misconduct raised in the motion for new trial. The Court concluded that although the filing of separate affidavits was preferable, the failure of plaintiffs to do so was not fatal error (5 Cal. 3d 98, 103-105). After examining the record, the Court upheld the order on the basis of several jurors' concealment of bias on voir dire (5 Cal. 3d 98, 110-111).
[4]--Additional Authorities
[a]--Use of Affidavit to Show Statements or Objective Facts
Clemens v. Regents of University of California (1970) 8 Cal. App. 3d 1, 87 Cal. Rptr. 108 , was a medical malpractice action in which plaintiff, on a motion for new trial, sought to introduce affidavits of jurors to show that a juror concealed a bias on voir dire. The trial court rejected the offer on the ground that statements made during trial did not show that the juror was biased at the time of his voir dire examination. The court of appeal stated that jurors are competent witnesses to prove objective facts to impeach a verdict under Evid. Code 1150[Deering's] and that the affidavits in question contained competent evidence as defined by People v. Hutchinson (1969) 71 Cal. 2d 342, 351, 78 Cal. Rptr. 196, 455 P.2d 132 (discussed in [3][b], above). The increased scope of consideration to be given juror affidavits as mandated by Hutchinson would require a determination not only of the issue of the juror's allegedly concealed bias but also of his or her possible misconduct while serving on the jury (8 Cal. App. 3d 1, 19).
155.71 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]--Concealment of Juror Bias During Voir Dire
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the jury (see, e.g., 155.70).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE JURY BECAUSE A JUROR CONCEALED A BIAS ON VOIR DIRE THAT PREVENTED _________________ [HIM or HER] FROM ACTING IMPARTIALLY AT TRIAL, THUS DEPRIVING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Constitutional Right to Unbiased Jury. The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the California Constitution ( Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132 ).

B. Juror's Concealment of Bias on Voir Dire. Concealment by a juror during voir dire examination of a state of mind that would prevent his or her acting impartially is misconduct constituting irregularity for which a new trial may be granted. Such concealment need not be intentional ( People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 388-389, 63 Cal. Rptr. 138 ; Shipley v. Permanente Hospital (1954) 127 Cal. App. 2d 417, 423-424, 274 P.2d 53 ).
[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 jury [ Code Civ. Proc. 657(1)[Deering's] ] based on a juror's concealment of bias on voir dire. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of irregularity in the proceedings of the jury [see 155.70].
[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 conduct of the juror that showed the concealment of bias on voir dire and show how this bias prevented the moving party from having a fair trial. For example, if a juror made certain statements during deliberations that indicated that he or she was biased against plaintiff, counsel should include declarations from the offending juror or other jurors to show which statements were made. Counsel should then argue that the statements were evidence of a bias that prevented this juror from acting impartially [see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 106-111, 95 Cal. Rptr. 516, 485 P.2d 1132 ]. For further discussion of this declaration, see 155.70[2][c].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and other supporting papers, 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 155.101 and 155.102 may be used in an appropriate case to oppose a motion for new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Constitutional Right to Unbiased Jury
The factual and procedural background of Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 95 Cal. Rptr. 516, 485 P.2d 1132 , is discussed in 155.70[3][c]. The Supreme Court affirmed an order granting plaintiffs' motion for new trial on the ground of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] and misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. The Court stated that the right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the California Constitution. In this case, the Court upheld the order on the basis that a juror concealed a bias on voir dire. Since the verdict was nine to three, the Court stated that the disqualification for bias of any one of the majority jurors could have resulted in a different verdict. Therefore, the Court concluded that the order granting the new trial was sufficiently supported by competent evidence (5 Cal. 3d 98, 110).
[b]--Juror's Concealment of Bias on Voir Dire
In People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 63 Cal. Rptr. 138 , defendant condemnees appealed from a judgment awarding them payment for property taken for highway purposes and for severance damages to the remaining property. During the voir dire examination of the jury, a prospective juror, who later became foreman, did not disclose that he was attending weekly classes in real estate appraisal even though he was asked if he had any connection, direct or indirect, with real estate valuation or appraisal or had any preconceived ideas on the subject. The trial court denied defendants' motion for new trial on the ground of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ], and they appealed the judgment.

The court of appeal reversed the judgment, stating that concealment by a juror during voir dire examination of a state of mind that would prevent his or her acting impartially is misconduct constituting an irregularity for which a new trial may be granted. Concealment need not be intentional (255 Cal. App. 2d 378, 388-389). Information that the jury foreman received in his real estate class about the qualifications of real estate appraisers tended to prejudice his judgment of the case. The questions propounded to him on voir dire fairly called for disclosure of this prejudice (255 Cal. App. 2d 378, 389). During deliberations at a point when the jury was deadlocked, the foreman told the jury that one of the state's appraisers had higher qualifications than one of appellants' appraisers (255 Cal. App. 2d 378, 390). The prejudicial effect of the misconduct was apparent, since the amount of the verdict indicated rejection of appellant's appraisal testimony in favor of a value much closer to the one fixed by the state's appraisers (255 Cal. App. 2d 378, 391).

In Shipley v. Permanente Hospital (1954) 127 Cal. App. 2d 417, 274 P.2d 53 , plaintiffs brought a medical malpractice action for negligent diagnosis of a back injury. After judgment for defendants, plaintiffs were granted a new trial. Plaintiffs' motion was based on the grounds of irregularity in the proceedings of the jury and adverse party [ Code Civ. Proc. 657(1)[Deering's] ], misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ], accident and surprise [ Code Civ. Proc. 657(3)[Deering's] ], and error in law [ Code Civ. Proc. 657(7)[Deering's] ]. The hearing of the motion was concerned mainly with the alleged sympathy of some jurors with the doctors charged with malpractice, which contradicted those jurors' answers on voir dire, and the trial judge indicated that he considered this to be the main point.

The court of appeal affirmed the order, stating that the impaneling of a juror who is subject to challenge for cause in consequence of untrue answers that concealed the ground of challenge is certainly an irregularity (127 Cal. App. 2d 417, 424). The affidavits of the jurors that stated that the prejudiced frame of mind existed from the outset of the trial were conclusional and without evidentiary value. However, the trial judge in his or her wide discretion could infer the earlier existence of the prejudice from the utterances in the jury room (127 Cal. App. 2d 417, 424-425). No circumstances were shown or urged that made it probable that the prejudice had developed during the trial. Since the prejudice did not relate to a specific person involved in the trial but was generally in favor of all physicians charged with malpractice, the probability was that the prejudice existed longer than the few days of trial (127 Cal. App. 2d 417, 425).

Shipley v. Permanente Hospital was disapproved on other grounds by the Supreme Court in Kollert v. Cundiff (1958) 50 Cal. 2d 768, 773, 329 P.2d 897 , which in turn was overruled on other grounds by People v. Hutchinson (1969) 71 Cal. 2d 342, 351, 78 Cal. Rptr. 196, 455 P.2d 132 [see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 110, 95 Cal. Rptr. 516, 485 P.2d 1132 ].
[4]--Additional Authorities
[a]--Juror's Concealment of Bias on Voir Dire
In Tapia v. Barker (1984) 160 Cal. App. 3d 761, 206 Cal. Rptr. 803 , the court of appeal reversed the trial court's denial of plaintiff's motion for new trial on the grounds of jury misconduct and irregularity in the proceedings of the jury [see Code Civ. Proc. 657(1)[Deering's], (2)[Deering's] ]. The court of appeal noted that the jurors concealed bias during voir dire when none of them had answered affirmatively when asked if they would be reluctant to award damages for pain and suffering or if the plaintiff's Mexican background would affect their ability to be fair and impartial. The court of appeal found that the jurors' declarations showed that several jurors stated during deliberations that they did not believe that a dollar amount could be put on pain and suffering and made remarks indicating that they were racially prejudiced against the plaintiff (160 Cal. App. 3d 761, 765-767).

In Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , the court of appeal reversed the trial court's denial of a motion for new trial, stating that improper communications by a juror evidenced a concealment of bias on voir dire and constituted misconduct as shown by jurors' affidavits. The juror had made no affirmative answer to a question whether or not there was anything about a lawsuit to recover damages for personal injuries that would interfere with the juror's ability to give both sides a fair trial, but during jury deliberations, the juror told fellow jurors that he was against people suing one another and that high verdicts in cases like this one caused high insurance rates (100 Cal. App. 3d 947, 954-955).

Clemens v. Regents of University of California (1971) 20 Cal. App. 3d 356, 97 Cal. Rptr. 589 , was a medical malpractice action in which the court of appeal reversed the trial court's judgment for defendant. The court held that plaintiff was denied a fair trial by the undisclosed bias of a juror and that plaintiff's motion for new trial should have been granted (20 Cal. App. 3d 356, 366-367). On voir dire, when asked the nature of his profession, a juror did not indicate that he was a dentist. Affidavits and declarations of other jurors contained statements attributing substantial bias and prejudice of the juror against persons, including plaintiff, who would prosecute a medical malpractice action, as well as evidence of prejudgment of the case (20 Cal. App. 3d 356, 362-363).

In Pollock v. Standard Oil Co. (1967) 256 Cal. App. 2d 307, 64 Cal. Rptr. 66 , the court of appeal affirmed an order vacating an order that denied a new trial. The effect of the order was to require a new trial of the case. The court stated that the rule is clear that a juror's intentional concealment, on voir dire, of a state of mind that would prevent his acting impartially constitutes an irregularity for which a new trial may be granted (256 Cal. App. 2d 307, 309).
155.72 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]--Mental Incompetency of Juror
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the jury (see, e.g., 155.70).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE JURY BECAUSE A JUROR WAS MENTALLY INCOMPETENT DURING TRIAL, THUS PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Constitutional Right to Mentally Competent Jury. The right to a trial before mentally competent jurors is as fundamental as the right to trial before unbiased and unprejudiced jurors which courts have held to be an inseparable and inalienable part of the right to trial by jury guaranteed by the California Constitution ( Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 248, 296 P.2d 563 ).

B. Mental Incompetence of Juror. Mental incompetence of a juror at the time of trial may be an irregularity for which a new trial may be granted (see Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 248-250, 296 P.2d 563 ).
[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 jury [ Code Civ. Proc. 657(1)[Deering's] ] based on a juror's mental incompetence during trial. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of irregularity in the proceedings of the jury [see 155.70].
[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 that the juror was mentally incompetent at the time of trial, that this fact could not be discovered on voir dire examination of that juror, and that the juror's mental incompetence prevented the moving party from having a fair trial. For discussion of the requirement that the facts be established by supporting declarations or affidavits, see 155.70[2][c].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and other supporting papers, 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 155.103 may be used in an appropriate case to oppose a notice of intention to move for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Constitutional Right to Mentally Competent Jury
Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 296 P.2d 563 , was an action for personal injuries in which a jury verdict was rendered in favor of defendant. No ruling was made on plaintiffs' motion for a new trial, and it was deemed denied by operation of law [see Code Civ. Proc. 660[Deering's] ]. On appeal, plaintiffs contended that they were denied their right to trial by 12 competent persons, since the foreman of the jury was mentally incompetent at the time of trial. Eleven days after trial, the juror's wife filed a petition to have him declared mentally ill and later had him committed to a state hospital. Although the court of appeal affirmed the judgment, it stated that there can be no question that the right to trial before mentally competent jurors is as fundamental as the right to trial before unbiased and unprejudiced jurors which the courts have held to be an inseparable and inalienable part of the right to trial by jury guaranteed by the California Constitution. The Legislature has determined by statute who are competent [former Code Civ. Proc. 198 (now see Code Civ. Proc. 203[Deering's] )] and who are not competent to act as jurors [former Code Civ. Proc. 199 (now see Code Civ. Proc. 203[Deering's] )]. By such provision, a person who is not in possession of his natural faculties may be disqualified to act as a juror (141 Cal. App. 2d 246, 248). However, in this case, the affidavits in support of and in opposition to the motion were conflicting, and although a different conclusion by the trial court would have been equally well founded, the trial court did not abuse its discretion in denying the motion for new trial (141 Cal. App. 2d 246, 250).
[b]--Mental Incompetence of Juror
The factual and procedural background of Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 296 P.2d 563 , is discussed in [a], above. Plaintiff moved for a new trial on the grounds of the alleged mental incompetence of the jury foreman at the time of trial. After trial, the juror's wife filed a petition to have him declared mentally ill and had him committed to a state mental hospital. Although the court of appeal affirmed the denial of the motion, it recognized that the incompetency of a juror may be a basis for granting a new trial (141 Cal. App. 2d 246, 248-251). It noted that possession of one's natural faculties would not necessarily be disclosed under ordinary questioning on voir dire. Therefore, contrary to defendant's argument, the very nature of the affliction would preclude the application of any rule predicated upon the intentional or unintentional failure to disclose one's disqualification on voir dire (141 Cal. App. 2d 246, 248).
155.73-155.79 [Reserved]

155.80 Supporting Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--General Form
[1]--FORM


[Caption. See 155.50[1]. ]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THERE WAS JURY MISCONDUCT THAT MATERIALLY AFFECTED THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT].

A. New Trial on Ground of Jury Misconduct. 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 of misconduct of the jury, if the substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. 657(2)[Deering's] ).

B. Evidence Admissible to Show Misconduct. [See 155.70[1], Paragraph B.]

C. New Trial if Prejudice Results From Misconduct. A new trial may be granted on the ground of jury misconduct if the misconduct results in prejudice to the opposing party's case ( Smith v. Covell (1980) 100 Cal. App. 3d 947, 953-954, 161 Cal. Rptr. 377 ).

D. Presumption of Prejudice. Once juror misconduct is established, a presumption of prejudice arises. The presumption may be rebutted only by an affirmative evidentiary showing that prejudice does not exist ( Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321, 276 Cal. Rptr. 430 ; Smith v. Covell (1980) 100 Cal. App. 3d 947, 953-954, 161 Cal. Rptr. 377 ).

E. No-Knowledge Requirement. [ 155.70[1], Paragraph D.]

[Optional ] F. Affidavit of Juror to Show Inducement to Assent to Verdict or Finding by Resort to Chance. Whenever one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a result to a determination of chance, such misconduct may be proved by the affidavit of jurors ( Code Civ. Proc. 657(2)[Deering's] ).

[Optional ] G. Use of Affidavit to Show Statements or Objective Facts. [See 155.70[1], Paragraph C.]

[Add further points and authorities, if appropriate, relating to the specific fact situation in question (see, e.g., 155.80 et seq.).]

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. It is a general form that should be used in conjunction with points and authorities relating to the specific fact situation [see, e.g., 155.81 et seq.].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of the jury misconduct and how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights.
[c]--Supporting Declarations or Affidavits Required
A motion for new trial made on this ground must be supported by declarations or affidavits [ Code Civ. Proc. 658[Deering's] ; see Code Civ. Proc. 2015.5[Deering's] ].
[d]--Jury Misconduct Versus Irregularity of Jury Proceedings
Irregularities in the formation of the jury, such as a juror's concealment of a bias on voir dire or the mental incompetency of a juror, are generally challenged under Code Civ. Proc. 657(1)[Deering's] as an irregularity in the proceedings of the jury [see, e.g., People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 388-389, 63 Cal. Rptr. 138 (concealment of bias on voir dire); Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 248, 296 P.2d 563 (mental competency of juror); see also 155.70 et seq. (supporting motion for new trial on ground of irregularity in proceedings of jury)]. However, the definition of irregularity in the proceedings of the jury is unclear in light of the ground of jury misconduct as a basis for new trial [see Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182, 91 P.2d 194 ]. Therefore, counsel may desire to make the motion on both grounds, even if the alleged misconduct does not occur during jury formation and clearly seems to be jury misconduct under Code Civ. Proc. 657(2)[Deering's] [see also discussion in 155.70[2][e]].
[e]--Burden of Proof
The initial burden of proof is on the party supporting a new trial. The party must establish that misconduct occurred. Once juror misconduct is established, a presumption of prejudice arises that must be rebutted [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321, 276 Cal. Rptr. 430 ; Smith v. Covell (1980) 100 Cal. App. 3d 947, 953-954, 161 Cal. Rptr. 377 ]. For a memorandum of points and authorities contending that the opposing party has failed to rebut the presumption of prejudice, see 155.81.
[f]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial on the ground of jury misconduct, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial, and Ch. 326A, Jury Verdicts (Matthew Bender).
[g]--Opposing Points and Authorities
The points and authorities set out in 155.110 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--New Trial if Prejudice Results From Misconduct
The factual and procedural background of Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , is discussed in 155.83[3][a]. During trial, the jury foreman told other jurors about his back problem in discussing one plaintiff's alleged back injuries. After the jury awarded a small amount of damages in light of the injuries claimed, plaintiffs moved for a new trial on the basis of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiffs appealed the judgment.

The court of appeal reversed, stating that the juror's misconduct resulted in prejudice to plaintiff's cause. The court explained that in communicating his evidence to the jurors, the foreman precluded the plaintiffs from testing it or making an answer and thus deprived plaintiffs of due process of law (100 Cal. App. 3d 947, 954). Jurors cannot, without violation of their oath, receive or communicate information to fellow jurors from sources outside the evidence in the case (100 Cal. App. 3d 947, 952). The foreman's statement supported defense doctors' conclusions that the automobile accident did not cause plaintiff's lower back injury.

The jury's small award of damages in light of the severity of the injuries claimed indicated a reasonable probability of actual harm to plaintiff's case. Accordingly, the court reversed the judgment (100 Cal. App. 3d 947, 953-954).
[b]--Presumption of Prejudice
In Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 276 Cal. Rptr. 430 , plaintiffs sued defendant firearms distributor for injuries caused by a revolver that unexpectedly discharged during a hunting trip while being carried in a holster. The jury returned a verdict in favor of plaintiffs, and defendant appealed from the judgment. Defendant claimed that the trial court erred in denying its motion for new trial based on juror misconduct. Defendant also contended that two of the jurors committed misconduct in looking up the dictionary definition of ``preponderance'' and discussing it with the other jurors.

The court of appeal reversed. The court stated that once juror misconduct is established, a presumption of prejudice arises. Citing Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 (discussed in 155.110[3][b]), the court stated that the presumption developed in criminal cases, but that civil litigants also have a constitutionally protected right to the complete consideration of their case by an impartial panel of jurors (226 Cal. App. 3d 314, 322 n.4). The presumption may be rebutted only by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the actual harm to the complaining party resulting from misconduct (226 Cal. App. 3d 314, 321). After reviewing the record, the court stated that there was a substantial likelihood that the jury was improperly influenced by the extraneous dictionary definition to the defendant's detriment (226 Cal. App. 3d 314, 326).

The factual and procedural background of Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , is discussed in 155.83[3][a] and in [a], above. The court of appeal stated that a presumption of prejudice arises from any juror misconduct and that presumption may be rebutted by proof that no prejudice actually resulted. In this case, the presumption of harm was unrebutted (100 Cal. App. 3d 947, 953-954). Moreover, the court's analysis of the facts of the case demonstrated a reasonable probability of actual harm from the jury foreman's interjection of information from a source outside the evidence in the case (100 Cal. App. 3d 947, 954). Therefore, the court reversed the judgment and order denying plaintiff's motion for a new trial on the basis of jury misconduct under Code Civ. Proc. 657(2)[Deering's] (100 Cal. App. 3d 947, 960).
[4]--Additional Authorities
[a]--New Trial if Prejudice Results From Misconduct
In Tapia v. Barker (1984) 160 Cal. App. 3d 761, 206 Cal. Rptr. 803 , the court of appeal reversed the trial court's denial of plaintiff's motion for new trial on the grounds of jury misconduct and irregularity in the proceedings of the jury [see Code Civ. Proc. 657(1)[Deering's], (2)[Deering's] ]. The court of appeal noted that the jurors had concealed bias during voir dire, that they had discussed collateral sources of income and high insurance rates during deliberations, and had made racially prejudiced statements against the plaintiff. The court found that the jury misconduct during deliberations resulted in an unfair trial (160 Cal. App. 3d 761, 765-767).
155.81 Supporting Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Presumption of Prejudice Not Rebutted
[1]--FORM


[The following may submitted in a supplemental memorandum or reply brief, or may be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of jury misconduct (see 155.80).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE OPPOSING PARTY HAS FAILED TO REBUT THE PRESUMPTION OF JURY MISCONDUCT.

A. Presumption of Prejudice. [See 155.80[1], Paragraph D.]

B. Test for Determining Prejudice. The standard to be applied in civil cases is whether there is a substantial likelihood that enough jurors were impermissibly influenced by misconduct to have affected the verdict to the detriment of the complaining party. If so, there is reasonable probability of actual harm to the complaining party resulting from the misconduct and the presumption of prejudice is not rebutted ( Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 322-323, 276 Cal. Rptr. 430 ).

C. Factors for Determining Whether Presumption Is Rebutted. Some of the factors to be considered when determining whether the presumption of prejudice is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued ( Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 323, 276 Cal. Rptr. 430 ).
[2]--Comments
[a]--Use of Form
These points and authorities may be submitted in support of a motion for new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] on the basis that the opposing party has failed to rebut the presumption of prejudice resulting from the misconduct.

Once it is established that misconduct was committed, a presumption of prejudice arises and the burden shifts to the opposing party to rebut the presumption by proving that prejudice does not exist [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 321, 276 Cal. Rptr. 430 ]. Thus, these points and authorities would normally be used in a supplemental memorandum or reply brief submitted in response to an opposing memorandum that has failed to rebut the presumption of prejudice.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and other supporting papers, see California Forms of Pleading and Practice Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Test for Determining Prejudice
The facts and procedural background of Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 276 Cal. Rptr. 430 , is discussed in 155.80[3][b]. In Glage, the court of appeal reversed the trial court's judgment and order denying new trial. After referring to the standard in criminal cases, the court stated that when it finds a substantial likelihood that enough jurors were impermissibly influenced by misconduct to have affected the verdict to the detriment of the complaining party, there is a reasonable probability of harm to the complaining party resulting from the misconduct (226 Cal. App. 3d 314, 322). Under such circumstances, the presumption of prejudice is not rebutted (226 Cal. App. 3d 314, 323).

The court gave some examples illustrating that the number of tainted jurors needed to justify a new trial will vary since unanimity is not required in civil cases. For example, when a jury renders a unanimous verdict against the complaining party, evidence of only one impermissibly tainted juror does not compel reversal because the remaining untainted jurors were sufficiently numerous to render a proper and fair verdict, and the record conclusively rebuts the presumption of prejudice. However, evidence of only one tainted juror would not necessarily rebut the presumption when the jury's verdict is nine to three, unless that juror voted for the complaining party (226 Cal. App. 3d 314, 323 n.5).
[b]--Factors for Determining Whether Presumption Is Rebutted
The facts and procedural background of Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 276 Cal. Rptr. 430 , are discussed in 155.80[3][b]. In Glage, the court cited Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 417, 185 Cal. Rptr. 654, 650 P.2d 1171 (discussed in 155.110[3][b]), to state that some of the factors to be considered when determining whether the presumption of prejudice is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued (226 Cal. App. 3d 314, 324).
[c]--Test for Determining Prejudice
In Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 25 Cal. Rptr. 2d 667 , a juror read a newspaper article that discussed the case and a previous trial in the case that had resulted in a hung jury. The juror had told several other jurors about the article. After returning the verdict, juror declarations established the misconduct. The court of appeal reversed the judgment, holding that a new trial was warranted. Prejudice was presumed from the misconduct, and that prejudice was not rebutted because the misconduct was serious, the final tally of the vote was nine to three, and a previous trial had resulted in a hung jury, indicating that a different result might have occurred had there not been the misconduct (20 Cal. App. 4th 1673, 1678-1680).
155.82 Supporting Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Improper Communications, Discussions, Statements of Opinion
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of jury misconduct (see 155.80).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF JURY MISCONDUCT BECAUSE A JUROR IMPROPERLY COMMUNICATED OR DISCUSSED MATTERS PERTAINING TO THE CASE DURING TRIAL, THUS PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. New Trial for Jurors' Improper Discussion of Case Before Submission. It is improper for jurors to discuss a case prior to its submission to them and a new trial may be granted if the improper discussion has resulted in prejudice to the moving party (see Monaghan v. Rolling Mill Co. (1889) 81 Cal. 190, 194, 22 P. 590 ; see also City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 431-432, 82 Cal. Rptr. 1 ).

[Optional ] B. Discussion of Case Outside Court. It is misconduct if a juror discusses a matter under investigation outside the court, and a new trial may be granted if this discussion improperly influences the verdict (see People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 598-599, 128 Cal. Rptr. 697 ).

[Optional ] C. Prejudgment of Case Prior to Court's Instruction. A new trial may be granted for misconduct of the jury if a juror expresses an opinion that shows prejudgment of the case before the jury has been instructed by the court ( Deward v. Clough (1966) 245 Cal. App. 2d 439, 442-444, 54 Cal. Rptr. 68 ).

[Optional ] D. Jury Entertained by Party or Counsel. During the trial, if the jury has been treated, fed, or entertained by the successful party or his or her counsel, or at the expense of either, a new trial will, in nearly all cases, be granted ( Wright v. Eastlick (1899) 125 Cal. 517, 520, 58 P. 87 ).

[Optional ] E. Communication Between Juror and Witness. Communication between a witness and a juror may be a ground for granting a new trial if there is a showing that the juror was influenced by the communication to the prejudice of one of the parties to the action (see City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 428, 82 Cal. Rptr. 1 ).

[Optional ] F. Erroneous Statement of Law Made by Juror to Fellow Jurors. Juror misconduct occurs when a juror communicates an erroneous statement of law to other members of the jury ( Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 1349-1350, 232 Cal. Rptr. 588 ).
[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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] on the basis of a juror's improper communications, discussions, or statements of opinion. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the basis of jury misconduct [see 155.80].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the nature of the jury misconduct and how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights.

A motion for new trial made 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 on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial and Ch. 326A, Jury Verdicts (Matthew Bender).
[d]--Opposing Points and Authorities
The points and authorities set out in 155.110 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--New Trial for Jurors' Improper Discussion of Case Before Submission
Monaghan v. Rolling Mill Co. (1889) 81 Cal. 190, 22 P. 590 , was an action for personal injuries caused by defendant's allegedly negligent maintenance of machinery. During trial, one juror discussed the case with the other jurors, stating that ``if the hook at the top of the suspended rod had been entirely closed or lashed, the accident could not have happened.'' After a verdict was rendered for plaintiff, defendant moved for a new trial. When the motion was denied, he appealed.

The Supreme Court stated that it is improper for jurors to talk with each other about a case before it is finally submitted. However, it affirmed the judgment and felt that the order denying the new trial was proper because the juror stated a self-evident fact that could not have improperly influenced the verdict. Moreover, the Court noted that defendant knew of the occurrence when it happened, yet made no objection, and the Court felt that he could not remain quiet, take the chance of a favorable verdict, and raise the point for the first time on a motion for new trial (81 Cal. 190, 194).

The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in [e], below. During trial, a lone juror alleged that four named jurors were discussing the case during trial, two of them on many occasions. Although the court of appeal affirmed judgment for defendant and felt that the order denying plaintiff's motion for a new trial was proper, it stated that it is improper for jurors to discuss a case prior to its submission to them. The court noted that the allegedly offending jurors offered subscribed allegations to the effect that they did not discuss the case except in the jury room (1 Cal. App. 3d 384, 429). Since the lower court found that the misconduct was not prejudicial, the court of appeal decided that denial of the motion should not be set aside unless there was no evidence to sustain it (1 Cal. App. 3d 384, 430). After examining the record, the court held that the trial court was warranted in finding that no prejudice ensued (1 Cal. App. 3d 384, 431).
[b]--Discussion of Case Outside Court
In People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 128 Cal. Rptr. 697 , the state brought an action against a power company for fire suppression expenses pursuant to Health & Safety Code 13007-13009[Deering's] . In fighting a fire allegedly caused by the contact of defendant's 12,000 volt power line with an oak tree, the state incurred substantial expenses and sought reimbursement from defendant. During the course of trial, a juror went to the store where he was employed to finish some work. The juror talked to a power company employee who happened to be there and asked him whether or not a limb could catch fire when it came in contact with a powerline. The power company employee answered affirmatively. During jury deliberations, the juror orally communicated this information to the other jurors. After a verdict was rendered for plaintiff, defendant moved for a new trial on the sole ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. When defendant's motion was granted, plaintiff appealed the order and defendant filed a timely protective cross appeal from the judgment.

Although the court of appeal reversed the order granting defendant a new trial, it stated that the facts of the case were patently adequate to support the trial court's order granting a new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. However, the defendant's declaration was technically insufficient since it failed to show that the party and counsel were not aware of the misconduct until after the verdict was returned. Counsel's declaration only showed that he lacked knowledge of the misconduct; absence of knowledge on the part of the party was not established. Therefore, the court reversed the order granting defendant's motion for a new trial (56 Cal. App. 3d 593, 598-602).
[c]--Prejudgment of Case Prior to Court's Instruction
In Deward v. Clough (1966) 245 Cal. App. 2d 439, 54 Cal. Rptr. 68 , plaintiff brought an action for personal injuries resulting from a collision of his motorcycle with defendant's car. During the morning recess of the last day of trial, several jurors came out of the courtroom and headed for the jury room, but found the door to the jury room locked. One juror said, ``I don't see why they don't open up the jury room now. We could bring in a verdict already.'' After verdict for defendant, plaintiff moved for a new trial on the basis of misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

The court of appeal reversed the judgment, stating that since the misconduct was clearly proved and resulted in an unfair trial, the trial court's denial of plaintiff's motion for a new trial was reversible error (245 Cal. App. 2d 439, 441-442). The court stated that the timing of the incident was significant. It occurred after all of the evidence had been introduced and after plaintiff's attorney had completed his opening argument. However, defendant had not made her argument, and the jury had not yet been instructed. The court characterized the incident as misconduct that was serious, especially in light of the fact that the juror had made up his mind before hearing all of the arguments or any of the court's instructions (245 Cal. App. 2d 439, 443-444). Furthermore, on voir dire, the juror stated that he would keep an open mind until he heard all of the evidence and the law. The jurors had also been admonished by the court that it was their duty not to form or express an opinion on any subject of the trial until the case had finally been submitted to them. The court stated that the juror failed to keep his promises that he would keep an open mind and had also failed to heed the court's admonitions. Absent any counteraffidavit from the juror, the court accepted the fact that the juror had prejudged the case (p. 444). Accordingly, the court reversed the judgment and ordered a retrial of the case (245 Cal. App. 2d 439, 453).
[d]--Jury Entertained by Party or Counsel
Wright v. Eastlick (1899) 125 Cal. 517, 58 P. 87 , was an action involving a dispute over the borderline dividing two mining claims. During trial, two jurors went drinking with defendants. After a verdict was rendered for defendants, plaintiffs moved for a new trial on the ground of jury misconduct. When the motion was denied, plaintiffs appealed the judgment.

The Supreme Court reversed the judgment noting that the order denying a new trial was proper. The Court stated that if the jury has been treated, fed, or entertained by the successful party or his or her counsel, or at the expense of either, a new trial will, in nearly all cases, be granted (125 Cal. 517, 520). The Court added that this rule is deemed indispensably necessary to preserve the integrity of juries and is a rule of public policy that will be enforced without reference to the question of whether or not the verdict was correct (125 Cal. 517, 520-521). Even though defendants contended that such drinking and carousing was a custom among miners in the mining district, the Court stated that miners must realize the obligations of their oath and their duty as good citizens, and act accordingly. Furthermore, the Court stated that the verdict in the case was by the bare constitutional number required of nine to three and the result might have been different if the misconduct did not occur. Therefore, the Court concluded that on this showing, the lower court should have granted a new trial (125 Cal. 517, 519-521).
[e]--Communication Between Juror and Witness
In City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , plaintiff city brought an action against a church to condemn certain church lands. During trial, a juror had a conversation with an appraisal witness for the church. The juror had admitted on voir dire that he had bought a home from the witness 18 years before. After judgment for defendant church, plaintiff moved for a new trial on several grounds including misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

Although the court of appeal affirmed the judgment, it stated that communication between a witness and a juror is not a ground for granting a new trial in the absence of a showing that the juror was influenced by the communication to the prejudice of one of the parties to the action. Here, the judge had interviewed the juror in chambers after the conversation, and the juror had assured him that the conversation was purely social and that there had been no discussion of the pending case. Even though the court found no prejudice in this case, the court indicated that a new trial might be proper in a situation in which a party was prejudiced (1 Cal. App. 3d 384, 427-428).
[f]--Erroneous Statement of Law Made by Juror to Fellow Jurors
In Young v. Brunicardi (1986) 187 Cal. App. 3d 1344, 232 Cal. Rptr. 588 , plaintiff brought suit for personal injury arising out of an automobile accident. The jury returned a special verdict that defendant was not negligent in causing the accident. During jury deliberations, a juror who was a retired police officer stated to the other jury members that defendant was not negligent if he was not cited for a Vehicle Code violation as a consequence of the accident. This juror also stated that plaintiff must have had something to hide because the police report of the accident was not brought into evidence. Plaintiff brought a motion for a new trial citing jury misconduct based on jurors' affidavits of the statements made by the retired police officer. The trial court denied the motion.

The court of appeal reversed. Initially, the court noted that once juror misconduct is established, a presumption of prejudice will arise, but that the presumption is not conclusive and may be rebutted by an affirmative evidentiary showing that the prejudice does not exist or by a reviewing court's finding, after an examination of the entire record, that there was no reasonable probability of actual harm to the complaining party resulting from the misconduct (187 Cal. App. 3d 1344, 1348). The court then found juror misconduct based on the fact that the retired officer violated his duty to follow the law according to the court's jury instructions by describing his own experiences as a police officer on a question of law, and by instructing the jury that defendant was not negligent if he was not cited as a result of the accident. The court further found that defendant did not rebut the presumption of prejudice, and that there was a reasonable probability that plaintiff suffered harm as a result of the juror's misconduct given the nine to three jury verdict and in light of the fact that other jurors had apparently followed the erroneous statement of law made by the retired officer (187 Cal. App. 3d 1344, 1351-1352).
[4]--Additional Authorities
[a]--Discussion of Case Outside Court
People v. Pierce (1979) 24 Cal. 3d 199, 155 Cal. Rptr. 657, 595 P.2d 91 , was a second-degree murder action in which the Supreme Court reversed the conviction of defendant on the basis of prejudicial jury misconduct. After adjournment, the jury foreman approached his neighbor, one of the first police officers to arrive at the scene of the crime, and asked him questions about the evidence presented in the case. The Supreme Court stated that the juror's misconduct resulted in a presumption of prejudice and since the prosecution did not rebut that presumption, defendant was entitled to a new trial (24 Cal. 3d 199, 206-209).

Although this case was a criminal proceeding decided under a criminal new trials statute, Penal Code 1181(3)[Deering's] , it has been cited in civil cases decided under Code Civ. Proc. 657(2)[Deering's] [see, e.g., Wagner v. Doulton (1980) 112 Cal. App. 3d 945, 950, 169 Cal. Rptr. 550 ]. Furthermore, the presumption of prejudice raised by jury misconduct has also been applied in civil cases [see, e.g., Smith v. Covell (1980) 100 Cal. App. 3d 947, 953-954, 161 Cal. Rptr. 377 ].
155.83 Supporting Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Improper Reception of Evidence
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of jury misconduct (see 155.80).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF JURY MISCONDUCT SINCE A JUROR IMPROPERLY RECEIVED EVIDENCE DURING TRIAL, THUS PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. New Trial for Improper Reception of Evidence. A new trial may be granted for misconduct of the jury if a juror receives evidence on the subject of litigation from sources outside of court and the improper reception of evidence results in prejudice to the moving party ( Smith v. Covell (1980) 100 Cal. App. 3d 947, 952-953, 161 Cal. Rptr. 377 ).

[Optional ] B. Experiment by Juror, Viewing of Premises, Examination of Exhibits Not in Evidence. Certain experiments by jurors, the viewing of the premises, and the examination of exhibits not in evidence but acquired by the jurors have been held to be the equivalent of taking evidence outside of court and will require a new trial ( Walter v. Ayvazian (1933) 134 Cal. App. 360, 364, 25 P.2d 526 ).

[Optional ] C. Experiment by Juror. A new trial may be granted if a juror conducts experiments that put him or her in possession of evidence not offered at trial and that evidence is prejudicial to the moving party's case (see Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313 ; see also Wagner v. Doulton (1980) 112 Cal. App. 3d 945, 950, 169 Cal. Rptr. 550 ).

[Optional ] D. Unauthorized View of Premises. A new trial may be granted for an unauthorized view of the premises if the juror has made observations or measurements that indicate that he or she has received evidence outside of court (see Woebbe v. Sperry (1941) 48 Cal. App. 2d 340, 344, 119 P.2d 743 ).

[Optional ] E. Examination of Exhibits Not in Evidence. A new trial may be granted if a juror examines an exhibit prior to its introduction in evidence if the examination consists of taking evidence along new lines that the opposing party had no opportunity to explain or refute ( Tunmore v. McLeish (1919) 45 Cal. App. 266, 268, 187 P. 443 ).

[Optional ] F. Reliance by Juror on Outside Expert. A new trial may be granted when a juror solicits an opinion from an outside expert source on a question that is material to the principal issue, is submitted to the jury for its determination, and on which qualified experts in the case have differed ( Walter v. Ayvazian (1933) 134 Cal. App. 360, 364, 25 P.2d 526 ).
[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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] on the basis of a juror's improper reception of evidence. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the basis of jury misconduct [see 155.80].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of the juror's improper reception of evidence, showing how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights.

A motion for new trial made 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 notice of intention to move for a new trial on the ground of jury misconduct, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial and Ch. 326A, Jury Verdicts (Matthew Bender).
[d]--Opposing Points and Authorities
The points and authorities set out in 155.112 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--New Trial for Improper Reception of Evidence
In Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , plaintiffs, husband and wife, brought an action for back injuries allegedly sustained by wife as a result of an automobile accident and for loss of consortium suffered by her husband. During jury deliberation, the foreman of the jury told other jurors about his back condition when discussing whether or not plaintiff should have complained of back pain immediately after the accident. The juror stated that when his back ``went out'' it ``hurt right away,'' but that he could still go to work. Since defendant had conceded liability and the absence of any contributory negligence, the trial was solely on the issue of damages. After the jury returned a verdict in favor of plaintiff wife in the amount of $10,000 and a verdict of zero as to plaintiff husband, plaintiffs moved for a new trial on the basis of alleged jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] and on several alleged instances of misconduct of counsel [ Code Civ. Proc. 657(1)[Deering's] ]. When the motion was denied, plaintiffs appealed the judgment.

The court of appeal reversed the judgment and granted plaintiffs a new trial, stating that jurors cannot, without violation of their oath, receive or communicate information to fellow jurors from sources outside the evidence in the case. The jury foreman's statement interjected improper evidence at the most critical point in the case. An analysis of the facts of the case demonstrated a reasonable probability of actual harm. The jury's verdict, when viewed in light of the evidence most favorable to it, gave no award, or only a token award for the wife's general damages. No award was made to the husband, even though the evidence of his loss of consortium was uncontradicted. Had the juror's communication been revealed in open court, evidence could possibly have been introduced to distinguish the injuries. By communicating his evidence to the jurors outside the court, the foreman precluded plaintiffs from testing it or making an answer and thus deprived plaintiff of due process of law (100 Cal. App. 3d 947, 952-954).
[b]--Experiments by Jurors, Viewing of Premises, Examination of Exhibits Not in Evidence
In Walter v. Ayvazian (1933) 134 Cal. App. 360, 25 P.2d 526 , plaintiff husband brought an action for damages allegedly caused by defendant's negligent operation of an automobile. The accident allegedly caused kidney injuries to plaintiff's wife who later died from the injuries. During the jury's deliberation, one juror telephoned her family doctor to ask about a symptom of decedent's kidney condition. After verdict was rendered for plaintiff, defendant moved for a new trial. When the motion was denied, defendant appealed the judgment.

The court of appeal reversed the judgment on the basis of prejudicial jury misconduct, stating that it is a fundamental rule that all evidence must be taken in open court, and that each party to the controversy must have knowledge of that evidence in order to meet and answer it. The court said that certain experiments by jurors, viewing of premises, and examination of exhibits not in evidence but acquired by the jurors, have been held to be the equivalent of taking evidence outside of court. The court noted that this deprives a party of his or her constitutional right to have knowledge of and to meet and answer the evidence and, therefore, requires the granting of a new trial (134 Cal. App. 360, 364). Since the juror had greater confidence in the opinion of her family doctor than in the opinions of the doctors produced at trial, the court could not say that the verdict was not influenced by outside evidence (134 Cal. App. 360, 364-365). Furthermore, the expert witnesses disagreed on the issue at trial, and this issue had been submitted to the jury as a question of fact on which to base its verdict (134 Cal. App. 360, 364).
[c]--Experiment by Juror
In Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 115 P. 313 , plaintiff landlord brought an action against defendant gas company for damages caused to plaintiff's building by a gas explosion. Plaintiff claimed that the explosion was caused by a spark from a flashlight used by defendant's employee to investigate a gas leak. Defendant contended that the explosion was caused by a flame from an oil stove and that plaintiff's tenant was negligent in not having extinguished the flame after defendant's employee demanded that he do so. Although the original flashlight was lost in the explosion, a similar light was given to the jury to use in its deliberations. After verdict was rendered for plaintiff, defendant moved for a new trial on the basis of the jury's allegedly prejudicial use of the flashlight in its deliberation. When the motion was granted, plaintiff appealed the order.

Although the Supreme Court reversed the order because it found that defendant was not prejudiced by the jury's use of the flashlight, it stated that the fundamental rule is that all evidence must be taken in open court and that each party to a controversy must have knowledge of, and thus to have the opportunity to meet and answer, any evidence brought against that party. This rule, the Court said, governs the use of exhibits by the jurors. They may use the exhibit according to its nature to aid in weighing the evidence that has been given and in reaching a conclusion on a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments invade new fields and their verdict is influenced by discoveries from these experiments, then the jury has taken evidence without the knowledge of either party, evidence that the injured party could not meet, answer, or explain (159 Cal. 651, 656-657). However, even though the trial judge felt that he had committed an error in allowing the jury to experiment with the exhibit without limiting the scope of its experiments by proper instruction, the Supreme Court found that defendant could not have been injured by the improper experiment. Even if the explosion were caused by the tenant's oil stove, plaintiff's action could not be defeated by proof of the tenant's contributory negligence. Thus, if it were established that the concurrent negligence of the gas company and the tenant united to produce the injury to the property, the landlord would have recourse against the gas company and/or tenant. Therefore, the Court stated that the finding that the spark from the flashlight caused the explosion, even if erroneous or erroneously arrived at, could not have caused injury to defendant, and a new trial was not necessary (159 Cal. 651, 660-661, 663).

Note that an order denying a motion for new trial is no longer appealable [see Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's] ]. If a party attempts to appeal from an order denying a new trial, the reviewing court will dismiss the appeal [see Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 199-200, 210, 250 P.2d 166 ]. A party must appeal the judgment, and if he or she raises the issue on appeal, the appellate court, when reviewing the judgment, will assess the propriety of the trial court's ruling on the motion for new trial [see Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 199-200, 210, 250 P.2d 166 ].

In Wagner v. Doulton (1980) 112 Cal. App. 3d 945, 169 Cal. Rptr. 550 , plaintiff brought an action for personal injuries sustained in a collision between his motorcycle and defendants' automobile. During the jury's deliberation, a juror, who was also an engineer, prepared a scale map of the accident location. After verdict for defendants, plaintiff moved for a new trial on the basis of the juror's presentation of extrajudicial evidence during jury deliberations. When the motion was denied, plaintiff appealed the judgment.

Although the court of appeal affirmed judgment, noting that the denial of the motion for new trial was proper, it restated the basic rule that jurors may not receive evidence out of court and may not conduct experiments that put them in possession of evidence not offered at trial. However, the juror's affidavit revealed that he had prepared the map in the jury room using evidence obtained at trial. The court stated that the diagram the juror prepared was a pictorial representation of his idea of the testimony he heard during trial. The fact that the juror was an engineer and was perhaps more skillful at drawing diagrams made no difference since each juror's discussion of the case is necessarily tinged or affected by his or her own viewpoint or experience. Therefore, the court held that it was not misconduct for a juror to make a diagram based solely on the evidence received in court. Accordingly, the court affirmed the judgment (112 Cal. App. 3d 945, 950-951).
[d]--Unauthorized View of Premises
In Woebbe v. Sperry (1941) 48 Cal. App. 2d 340, 119 P.2d 743 , plaintiff passenger brought an action for personal injuries suffered in an automobile accident that occurred when the driver of the car attempted to turn left and was struck by an oncoming car driven by one of defendants. Before trial, a juror repeatedly passed through the intersection where the accident occurred as he drove between his place of business and his home. During trial, he continued to travel the same path. After judgment for defendants, plaintiff moved for a new trial based on the juror's misconduct in viewing the scene. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment since there was no evidence that indicated that the juror had received evidence outside of court. If there were evidence that the juror had stopped at the intersection and made observations and measurements, the court indicated that a new trial may have been necessary. In this case, however, the juror's affidavit gave no indication that he received, directly or indirectly, any evidence during his view of the scene (48 Cal. App. 2d 340, 344).
[e]--Examination of Exhibits Not in Evidence
In Tunmore v. McLeish (1919) 45 Cal. App. 266, 187 P. 443 , plaintiff brought an action for personal injuries suffered when plaintiff's motorcycle collided with defendant's car. During a recess from trial and before the motorcycle was introduced into evidence, two jurors carefully examined the motorcycle and discussed whether or not plaintiff's wife could see the speedometer from where she was sitting on the rear seat at the time of the accident. Subsequent affidavits by plaintiff and plaintiff's wife showed that the speedometer had slipped from its original location because of the impact of the collision. No evidence was introduced at trial regarding the position of the speedometer prior to the collision. After the jury rendered a verdict for defendant, plaintiff moved for a new trial on several grounds including misconduct of the jurors in examining the motorcycle out of court. When the motion was granted, defendant appealed.

The court of appeal affirmed, stating that the jurors' examination of the motorcycle was not only the taking of evidence outside of court without the knowledge of the parties, but was also the taking of evidence along new lines which the plaintiff had no opportunity to explain or refute. The fundamental rule, the court explained, was that all evidence must be taken in open court so that each party will have knowledge of and have the opportunity to meet and answer any evidence brought against that party. The court stated that this fundamental rule governs the use of exhibits by the jury. Jurors may use exhibits to aid them in weighing the evidence and may carry out experiments within the lines of offered evidence, but if their experiments invade new fields and their verdict is influenced by discoveries from such experiments, then they have impermissibly taken evidence outside of court without the knowledge of either party. Furthermore, in this case, the court found an added irregularity since the exhibit was examined before it was introduced in evidence. Because of the prejudicial nature of the jury's misconduct, the court affirmed the order granting plaintiff a new trial (45 Cal. App. 266, 268-269).
[f]--Reliance by Juror on Outside Expert
The factual and procedural background of Walter v. Ayvazian (1933) 134 Cal. App. 360, 25 P.2d 526 , is discussed in [b], above. During the jury's deliberation, a juror telephoned her family doctor to ask about a symptom that the decedent allegedly suffered as a result of an automobile accident with defendant. After verdict was rendered for plaintiff, defendant moved for a new trial. When the motion was denied, defendant appealed the judgment.

The court of appeal reversed the judgment on the basis of prejudicial jury misconduct, stating that the juror's consultation with the doctor consisted of evidence taken outside of court that would require a new trial. The use of the expert opinion could not withstand that degree of scrutiny as to fairness that guaranteed the rendition of a just verdict, uninfluenced by outside evidence. Since the juror had greater confidence in the opinion of her family doctor than in the opinions of the doctors produced at trial, the court could not say that the verdict was not influenced by the outside evidence. Furthermore, the opinion of the doctor was direct evidence on a material question of the case. This material question had been submitted to the jury for its determination as a question of fact on which to base its verdict and on which expert witnesses at trial had differed (134 Cal. App. 360, 364-365).
[4]--Additional Authorities
[a]--New Trial for Improper Reception of Evidence
In Province v. Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 25 Cal. Rptr. 2d 667 , a juror read a newspaper article that discussed the case and a previous trial in the case that had resulted in a hung jury. The juror had told several other jurors about the article. After returning the verdict, juror declarations established the misconduct. The court of appeal reversed the judgment, holding that a new trial was warranted. Prejudice was presumed from the misconduct, and that prejudice was not rebutted because the misconduct was serious, the final tally of the vote was nine to three, and a previous trial had resulted in a hung jury, indicating that a different result might have occurred had there not been the misconduct (20 Cal. App. 4th 1673, 1678-1680).

People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 63 Cal. Rptr. 138 , was a condemnation action in which the court of appeal reversed a judgment for defendants and awarded defendants a new trial on the basis of misconduct and irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's], 657(2)[Deering's] ]. On voir dire examination, a juror concealed the fact that he was attending real estate appraisal classes, and during the jury's deliberation, he referred to information learned in the classes when discussing the qualifications of appraisers produced at trial. The court stated that the juror's misconduct in imparting information received out of court prejudiced the outcome of the case and that the trial court abused its discretion in denying defendants' motion for a new trial (255 Cal. App. 2d 378, 386-392).

Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal. App. 3d 1724, 286 Cal. Rptr. 435 , involved a cross complaint by a developer against various subcontractors for indemnification for damages resulting from defects in the construction of a condominium complex. The developer moved for new trial based on juror misconduct, contending that one of the jurors committed prejudicial misconduct by performing an experiment on pouring concrete. The juror used a small box, filled with kitty litter, and some crayons to demonstrate how concrete was poured. In conducting the demonstration, the juror explained that she knew about concrete construction practice from discussion with her family. She also told the jury how inconsistencies in the sand, on top of which the concrete is placed, can be caused by footprints of people walking back and forth across the building pad before the concrete is poured. The court concluded from these facts that the demonstration constituted misconduct because it brought new evidence into the deliberations (234 Cal. App. 3d 1724, 1749).
155.84 Supporting Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Arrival at Verdict by Chance
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of jury misconduct (see 155.80).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE JURORS ARRIVED AT A VERDICT BY CHANCE, THUS PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. New Trial for Chance Verdict. The jury's arrival at a verdict by chance is misconduct for which a new trial may be granted ( Dixon v. Pluns (1893) 98 Cal. 384, 385, 33 P. 268 ; see Buhl v. Wood Truck Lines (1944) 62 Cal. App. 2d 542, 544, 144 P.2d 847 ).

B. Hazard, Risk, or Result of Uncertain Conditions. Chance may be defined as hazard, risk, or the result or issue of uncertain and unknown conditions or forces ( Dixon v. Pluns (1893) 98 Cal. 384, 387, 33 P. 268 ; see Mirabito v. San Francisco Dairy Co. (1934) 1 Cal. 2d 400, 404, 35 P.2d 513 ).

[Optional ] C. Quotient Verdict. An agreement to vote for an amount calculated by averaging sums favored by the individual jurors, without further deliberation, is a verdict arrived at by chance, and such a verdict constitutes jury misconduct for which a new trial may be granted ( Buhl v. Wood Truck Lines (1944) 62 Cal. App. 2d 542, 544-546, 144 P.2d 847 ).
[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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] on the basis of the jury's rendition of a verdict obtained by chance. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the basis of jury misconduct [see 155.80].
[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 verdict was reached by chance and how this deprived the moving party of a fair trial and materially affected the moving party's substantial rights.

A motion for new trial made on this ground must be supported by declarations or affidavits [ Code Civ. Proc. 658[Deering's] ; see Code Civ. Proc. 2015.5[Deering's] ]. Counsel may also submit an affidavit or declaration of any one of the jurors to show that the verdict was reached by chance [see Code Civ. Proc. 657(2)[Deering's] ].
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial on the ground of jury misconduct, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial, and Ch. 326A, Jury Verdicts (Matthew Bender).
[d]--Opposing Points and Authorities
The points and authorities set out in 155.115 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 for Chance Verdict
In Dixon v. Pluns (1893) 98 Cal. 384, 33 P. 268 , plaintiff brought a personal injury action against defendant for injuries suffered when struck by a chisel that fell from a scaffolding. During the jury's deliberations, each juror agreed to write on a piece of paper what he or she thought the amount of the verdict should be. The sums were added together and divided by 12, and the result was rendered as the verdict. Defendant moved for a new trial. When the motion was denied, defendant appealed.

The Supreme Court reversed the order denying a new trial and remanded the cause for further proceedings on the motion for new trial, finding that the verdict was obtained by a resort to chance (98 Cal. 384, 387-389). The Court stated that the arrival at a verdict by chance is misconduct that could be shown by the affidavits of jurors (98 Cal. 384, 385). The Court added that in arriving at the verdict in the manner here practiced, the chance of the respective parties, plaintiff and defendant, to secure the verdict is entirely dependent on the sum total of the estimates made by the various jurors, and that sum total is as uncertain and unknown to the jurors as the casting of a die is to a gamester (98 Cal. 384, 387).

Buhl v. Wood Truck Lines (1944) 62 Cal. App. 2d 542, 144 P.2d 847 , was an action for damages brought by plaintiffs against a trucking company. During the jury's deliberation, each juror wrote down the amount that he or she favored as a verdict, and this sum was divided by 12. After a verdict was rendered for plaintiffs, defendant moved for a new trial on the ground of misconduct of the jury. When the motion was granted, plaintiffs appealed the order.

The court of appeal affirmed the order, stating that an agreement to vote for an amount calculated by averaging the sums favored by the individual juror is a verdict arrived at by chance. Chance verdicts constitute misconduct for which a new trial may be granted. However, the court said that the jury may calculate an average amount as a basis for discussion if there is a later consideration of the amount and a vote on it, even if the jury agrees on the original amount. Affidavits submitted by the jurors were conflicting regarding whether the verdict was fixed by averaging the different amounts or whether after discussion and subsequent voting, a different sum was arrived at. Since the affidavits did in fact create a conflict, the court decided not to disturb the order made by the trial court. Accordingly, it affirmed the order (62 Cal. App. 2d 542, 544-546).
[b]--Hazard, Risk, or Result of Uncertain Conditions
The factual and procedural background of Dixon v. Pluns (1893) 98 Cal. 384, 33 P. 268 , is discussed in [a], above. In that case, the Supreme Court reversed an order denying defendant a new trial and remanded the case since it found that the verdict was obtained by a resort to chance (98 Cal. 384, 387-389). The Court stated that chance may be defined to be hazard, risk, or the result or issue of uncertain and unknown conditions or forces, and that the facts of the case clearly brought it within this definition (98 Cal. 384, 387).

Mirabito v. San Francisco Dairy Co. (1934) 1 Cal. 2d 400, 35 P.2d 513 , was an action for damages for personal injuries suffered by plaintiff. While deliberating, the jurors could not decide on the amount of damages to award plaintiff. Hence, they decided to vote on two known figures and agreed to accept the figure that received a majority of votes as its unanimous verdict. When the sum of $5,000 received the most votes, the jurors accepted it without further discussion. After this verdict was rendered for plaintiff, defendants moved for a new trial on several grounds, including misconduct on the part of the jurors in resorting to a chance verdict. When the court denied the motion, defendants appealed the judgment.

The Supreme Court stated that chance is commonly understood to imply an absence of explainable or controllable causation and has, moreover, been defined as hazard, risk, or the result of uncertain or unknown conditions or forces. The Court noted, however, that each juror accepted one of the two known figures as his or her first choice and, by way of compromise and for the sake of coming to an agreement, agreed to accept the other as a verdict if it should be the first choice of the majority. The Court felt that there was no operation of any unknown force or unexplainable cause in the jury's verdict, but the verdict was an exercise of judgment of each juror. Therefore, the Court affirmed the judgment for plaintiff (98 Cal. 384, 404).
[c]--Quotient Verdict
The factual and procedural background of Buhl v. Wood Truck Lines (1944) 62 Cal. App. 2d 542, 144 P.2d 847 , is discussed in [a], above. The court of appeal affirmed an order granting defendants a new trial in an action in which each juror wrote down the amount that he or she favored as a verdict, and the sum was divided by 12. The court stated that an agreement to vote for an amount calculated by averaging the sums favored by the individual jurors is a verdict arrived at by chance (62 Cal. App. 2d 542, 544). In this case, the jurors' affidavits conflicted as to whether the amount of the verdict was fixed by averaging the different amounts, or whether, after discussion and subsequent vote, a different sum was arrived at (62 Cal. App. 2d 542, 545). Since the court of appeal concluded that the affidavits did conflict, it decided not to disturb the finding of the lower court that a new trial was necessary (62 Cal. App. 2d 542, 545-546).
[4]--Additional Authorities
[a]--Quotient Verdict
Ham v. County of Los Angeles (1920) 46 Cal. App. 148, 189 P. 462 , was an action for wrongful death in which the court of appeal affirmed an order granting a new trial made on several grounds, including misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. The jury reached its verdict by averaging the sums favored by the individual jury members. The court stated that it was obviously a chance verdict that made a new trial imperative (46 Cal. App. 148, 152-153).
155.85 Supporting Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Reference to Dictionary to Define Term in Instruction
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of jury misconduct (see 155.80).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF JURY MISCONDUCT BECAUSE _________________ [A JUROR HAS or JURORS HAVE] REFERRED TO A DICTIONARY TO DEFINE A TERM USED IN THE INSTRUCTION.

Juror Reference to Dictionary Is Misconduct. It is well established that a juror's reference to a dictionary for the definition of a term used in an instruction constitutes misconduct ( Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 323, 276 Cal. Rptr. 430 ).
[2]--Comments
[a]--Use of Form
These points and authorities may be submitted in support of a motion for new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ], on the basis of a juror's reference to a dictionary for the definition of a term given in the instruction to the jury.

Once it is established that misconduct was committed, a presumption of prejudice arises and the burden shifts to the opposing party to rebut the presumption [ Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 323, 276 Cal. Rptr. 430 ; see 155.81].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should identify facts showing that a juror or jurors consulted a dictionary for the meaning of a term used in the instruction.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial on the ground of jury misconduct, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial, and Ch. 326A, Jury Verdicts (Matthew Bender).
[d]--Opposing Points and Authorities
In an appropriate case, the points and authorities set out in 155.110 et seq. may be used to oppose the motion supported by the foregoing points and authorities.
[3]--Discussion of Authorities
[a]--Juror Reference to Dictionary Is Misconduct
The facts and procedural background of Glage v. Hawes Firearms Co. (1990) 226 Cal. App. 3d 314, 276 Cal. Rptr. 430 , are discussed in 155.80[3][b]. In Glage, the court reversed the trial court's judgment and order denying new trial. Among the contentions on appeal was the charge that two of the jurors committed misconduct in looking up the dictionary definition of ``preponderance'' and discussing it with the other jurors (226 Cal. App. 3d 314, 320). The court stated that it is well established that a juror's reference to a dictionary for the definition of a term used in an instruction constitutes misconduct. The court quoted from the explanation in People v. Karis (1988) 46 Cal. 3d 612, 642-542, 250 Cal. Rptr. 659, 758 P.2d 1189 , that use of a dictionary to obtain further understanding of the court's instructions poses a risk that the jury will misunderstand the meaning of terms that have a technical or unique usage in the law (note, however, that Karis found no basis for prejudice in the jury's consideration of the dictionary definition of ``mitigating''). Further, the jury in Glage was specifically instructed not to consult reference works for additional information [see California Jury Instructions--Civil BAJI No. 1.00.5[Deering's] (7th ed. 1986)], and the plaintiff conceded that the jurors committed misconduct by looking up the definition of ``preponderance'' and discussing it with all the jurors (226 Cal. App. 3d 314, 323).

The issue before the court then became whether the presumption of prejudice from the misconduct had been rebutted (226 Cal. App. 3d 314, 323; see 155.81). The court determined that in light of the restricted legal meaning of ``preponderance of the evidence,'' the broader scope of the common definition of ``preponderance'' stated in dictionaries and the jury's duty to use the former and not the latter, the juror misconduct created a clear and substantial risk that the jury might apply the burden of proof in a mechanical, quantitative way rather than to properly determine which evidence was most convincing. Thus, the court held that the record amply supported a finding of a substantial likelihood that the jury was improperly influenced by the extraneous dictionary definition (226 Cal. App. 3d 314, 326).
155.86-155.99 [Reserved]

155.100 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]--Moving Party Has Not Shown Lack of Prior Knowledge of Alleged Irregularity
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED, BECAUSE _________________ [PLAINTIFF or DEFENDANT] HAS FAILED TO AFFIRMATIVELY SHOW THAT _________________ [HE/SHE/IT and/or HIS/HER/ITS COUNSEL] HAD NO KNOWLEDGE OF THE ALLEGED JURY IRREGULARITY BEFORE THE RENDITION OF THE VERDICT, AND THE FAILURE TO MAKE THIS SHOWING IS FATAL TO THE MOTION.

Affirmative Showing of Lack of Prior Knowledge of Misconduct. A party moving for a new trial under Section 657(1)[Deering's] of the Code of Civil Procedure on the ground of irregularity in the proceedings of the jury must affirmatively show that neither he or she nor his or her counsel knew of the facts constituting the claimed misconduct before the rendition of the verdict; absence of this showing is fatal to the motion (see Forman v. Alexander's Markets (1956) 138 Cal. App. 2d 671, 674-675, 292 P.2d 257 ; see also Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 103, 95 Cal. Rptr. 516, 485 P.2d 1132 ).

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 jury [ Code Civ. Proc. 657(1)[Deering's] ] based on the moving party's failure to show no prior knowledge of the irregularity. 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 155.70 et seq.
[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 how the moving party has failed to affirmatively show that he or she and his or her counsel were unaware of the facts constituting the alleged irregularity until after the verdict was rendered. Counsel may submit declarations of those parties who had personal knowledge that either the moving party or counsel knew of the alleged irregularity during trial [see Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal. 2d 480, 495-496, 55 P.2d 870 ].
[c]--Related Pleading and Practice Forms
For forms relating to new trial motion proceedings, including an order denying the motion and declarations that may be modified for use as opposing declarations, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Affirmative Showing of Lack of Prior Knowledge of Misconduct
Forman v. Alexander's Markets (1956) 138 Cal. App. 2d 671, 292 P.2d 257 , was an action for personal injuries in which verdict was rendered for defendants. Plaintiffs' motion for new trial, based on a juror's allegedly concealed bias on voir dire, was denied, and plaintiff appealed the judgment. The court of appeal affirmed the judgment, noting that a motion for a new trial may be granted on the ground that a juror made untrue answers to questions asked on voir dire if it appears that the moving party was not aware of the falsity at the time of the completion of the impanelment of the jury and did not discover that fact during the trial and before rendition of the verdict (138 Cal. App. 2d 671, 674). In the case at bar, neither plaintiffs nor their attorney submitted any affidavits. Plaintiffs failed to affirmatively show in support of their motion for a new trial that both they and their counsel were ignorant of the facts constituting the claimed misconduct prior to the rendition of the verdict. The absence of such a showing in support of the motion for a new trial was fatal (138 Cal. App. 2d 671, 674-675). The court quoted Sherwin v. Southern Pacific Co. (1914) 168 Cal. 722, 726, 145 P. 92 , which stated that if the moving party or its attorneys had discovered these facts at any time during the trial it would have been their duty, if they desired to take advantage thereof, to apply to the court for leave to reopen the examination of the jurors, elicit the facts, and offer a challenge to the juror guilty of misconduct.

In failing to show that they did not acquire such knowledge during the course of the trial after the jury was sworn, the moving party failed to present sufficient ground for new trial on that cause (138 Cal. App. 2d 671, 675).

The factual and procedural background of Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 95 Cal. Rptr. 516, 485 P.2d 1132 , is discussed in 155.70[3][c]. Plaintiffs' motion for a new trial on the ground of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] and jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] was granted, and defendant appealed the order, claiming that plaintiffs' motion was fatally defective because it failed to include supporting declarations by both plaintiffs and their counsel to show their lack of knowledge of the juror improprieties prior to the rendition of the verdict.

Although the Supreme Court affirmed the order, it reiterated the basic rule that a litigant seeking a new trial on the ground of juror improprieties must present affidavits that neither he or she nor counsel were aware of the misbehavior until after the verdict was returned. The purpose of the rule is to prevent a party who has learned of some jury misconduct during the course of the proceedings from gambling on the outcome of trial while secretly preserving the error to be raised on a motion for new trial in the event of an unfavorable verdict. When at any time during trial a party or counsel becomes aware of facts constituting misconduct or irregularity in the proceedings of the jury, he or she must promptly bring such matters to the attention of the court, if an objection is desired. Otherwise, the point will be waived as a ground for a motion for new trial (5 Cal. 3d 98, 103). In this case, the declaration submitted by plaintiffs' attorney substantially complied with the requirement that plaintiffs and their counsel lack prior knowledge of any jury misconduct. In counsel's declaration he unequivocally stated that both plaintiffs and their attorneys lacked prior knowledge of the jury misconduct raised in the motion for new trial. Although the filing of separate declarations by counsel and client was undoubtedly far preferable, the failure of plaintiffs to do so was not fatal error (5 Cal. 3d 98, 105).
[4]--Additional Authorities
[a]--Affirmative Showing of Lack of Prior Knowledge of Misconduct
In Lindemann v. San Joaquin Cotton Oil Co. (1936) 5 Cal. 2d 480, 55 P.2d 870 , the trial court properly denied defendants' motion for new trial on the ground of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] based on a juror's alleged concealment, on voir dire, of her friendship with plaintiff and his wife. Affidavits of plaintiff's wife and defendant's counsel showed that counsel knew of the facts during trial. The Supreme Court stated that it is improper to permit a party knowing of misconduct to withhold action and gamble on the outcome of trial before making a complaint (5 Cal. 2d 480, 495-496).
155.101 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]--Moving Party Has Not Shown Alleged Concealment of Bias Was Prejudicial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE JURY, BECAUSE _________________ [PLAINTIFF or DEFENDANT] HAS FAILED TO SHOW THAT THE JUROR'S ALLEGED CONCEALMENT OF BIAS ON VOIR DIRE WAS PREJUDICIAL TO HIS/HER/ITS CASE; THUS _________________ [PLAINTIFF or DEFENDANT] WAS NOT PREVENTED FROM HAVING A FAIR TRIAL AND HIS/HER/ITS SUBSTANTIAL RIGHTS WERE NOT MATERIALLY AFFECTED.

A. Showing of Prejudice Required. In the absence of a showing of prejudice from an alleged irregularity in impaneling a juror with concealed bias or prejudice, a motion for new trial is properly denied (see City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 432-433, 82 Cal. Rptr. 1 ; see also West v. Reigal (1962) 208 Cal. App. 2d 638, 642-643, 25 Cal. Rptr. 288 ).

B. Proof by Preponderance of Evidence. An order granting a new trial based on a juror's alleged concealment of bias on voir dire must be supported by a preponderance of the evidence to show that the statements were actually made by the juror and that the juror was, because of a general bias against the party, irrevocably committed to voting against that party regardless of the facts that might emerge at trial. An order for a new trial based on insufficient evidence is an abuse of discretion ( Johns v. City of Los Angeles (1978) 78 Cal. App. 3d 983, 990-996, 144 Cal. Rptr. 629 ).

C. Juror Must Be Subject to Challenge for Cause. A motion for new trial on the ground of irregularity in the proceedings of the jury based on a juror's concealment of bias on voir dire is properly denied in the absence of an adequate showing that the juror was subject to challenge for cause as a consequence of untrue answers ( Castro v. Fowler Equipment Co. (1965) 233 Cal. App. 2d 416, 423-424, 43 Cal. Rptr. 589 ).

[Optional ] D. Jurors as Unable to Deny Prejudicial Influence in Declaration. Jurors' declarations to the effect that their subjective reasoning processes were not affected by the conduct of the allegedly offending juror should not be considered in ruling on the motion for new trial, because jurors cannot deny the prejudicial influence on their minds of knowledge acquired by misconduct (see Evid. Code 1150[Deering's] ; City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 433, 82 Cal. Rptr. 1 ).

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 jury [ Code Civ. Proc. 657(1)[Deering's] ] based on a juror's alleged concealment of bias on voir dire. This form may be used to oppose a motion for new trial supported by the points and authorities set out in 155.71.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should argue that the moving party failed to affirmatively show that he or she was prejudiced by the juror's alleged bias. Counsel may include declarations from the allegedly offending juror stating that he or she was not prejudiced against the moving party's case either at the outset of trial or during the conduct of trial, and also never said anything to that effect [see West v. Reigal (1962) 208 Cal. App. 2d 638, 640-641, 25 Cal. Rptr. 288 ]. Counsel may also include declarations from any person with personal knowledge that a juror's biased statements were not made [see West v. Reigal (1962) 208 Cal. App. 2d 638, 641, 25 Cal. Rptr. 288 (declaration from defendant's attorney)] or declarations from other jurors stating that the allegedly biased juror deliberated in a fair and impartial manner without attempting to dominate or influence the other jurors in an improper manner [see West v. Reigal (1962) 208 Cal. App. 2d 638, 643, 25 Cal. Rptr. 288 ].
[c]--Related Pleading and Practice Forms
For forms relating to new trial motion proceedings, including an order denying the motion and declarations that may be modified for use as opposing declarations, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Showing of Prejudice Required
In City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , a city brought an action to condemn certain lands that belonged to a church. The primary issue at trial was whether or not the church had suffered severance damages. After judgment for defendant church, plaintiff moved for a new trial on several grounds, including irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ]. Plaintiff alleged that juror Steede had expressed the opinion that cities should not have the right to condemn property and that he concealed this bias on voir dire examination. Plaintiff also contended that juror McClarinon concealed her prior knowledge that the church was engaged in beneficial youth work. Plaintiff's motion for a new trial was denied, and it appealed the judgment.

The court of appeal affirmed the judgment, finding that the jurors' alleged concealment did not constitute a sufficient basis for the granting of a new trial (1 Cal. App. 3d 384, 433). The declaration of the accused jurors provided ample support for the finding that neither juror was prejudiced against the city prior to his or her selection as a juror (1 Cal. App. 3d 384, 432). It was questionable whether the statements attributed to juror McClarinon evidenced a demonstrated concealment of a prejudiced mind (1 Cal. App. 3d 384, 432-433). Furthermore, juror Steede's vote was not needed for the verdict. Under these circumstances, it has been held that no prejudice requiring a new trial is demonstrated by showing the misconduct of a single juror. Nevertheless, if juror Steede's alleged prejudice was communicated to and acted upon by other jurors, it could require a new trial. However, the city failed to show that any juror was influenced by juror Steede's opinion, and therefore the granting of a new trial was not necessary (1 Cal. App. 3d 384, 433).

West v. Reigal (1962) 208 Cal. App. 2d 638, 25 Cal. Rptr. 288 , was an action for personal injuries in which plaintiffs' motion for a new trial, based on a juror's allegedly concealed bias on voir dire, was denied. On voir dire examination, the juror stated that he felt that he could be a fair juror, that he had no prejudice against plaintiffs as a class, that they had a right to come into court and have their cases determined by a jury, and that he would decide the case entirely on the basis of the evidence and the law.

The court of appeal affirmed judgment for defendant, stating that assuming that the juror was prejudiced against plaintiff as claimed, it still remained the burden of plaintiff to affirmatively show that prejudice resulted therefrom. In this case, the jury voted 10 to two in favor of the defendant. The uncontradicted affidavit of another juror showed that the deliberations of the jury were confined to the evidence and the law as given to it by the court's instructions. There was no showing that the allegedly biased juror attempted to dominate the other jurors or in any way influence them in an improper manner. Since nine votes would secure a verdict for defendant, even if the biased juror had voted the other way, the verdict would still be for defendant. Since there was nothing to indicate that plaintiff's rights to a fair trial were prejudiced, the court of appeal did not disturb the trial court's ruling (208 Cal. App. 2d 638, 643-644).
[b]--Proof by Preponderance of Evidence
Johns v. City of Los Angeles (1978) 78 Cal. App. 3d 983, 144 Cal. Rptr. 629 , was a wrongful death action in which verdict was rendered for defendants. Plaintiffs moved for a new trial on several grounds, including irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] based on two jurors' concealment of bias on voir dire and on the ground of insufficiency of the evidence [ Code Civ. Proc. 657(6)[Deering's] ]. Both instances of misconduct rested on the affidavit of a single, although different, juror. However, the instances were refuted by the affidavits of all the other jurors. The trial judge granted the motion for new trial.

The court of appeal reversed the order, holding that it was arbitrary and an abuse of discretion (78 Cal. App. 3d 983, 999). A trial judge may accept the testimony of one witness as against that of opposing witnesses, but does not have the same unfettered right to accept the untested averments in one affidavit as against 11 to the contrary (78 Cal. App. 3d 983, 993). Plaintiffs on a motion for new trial had the burden of proving by a preponderance of evidence that the controverted statements of the jurors were made and that the jurors who had made them had in fact committed perjury on voir dire (78 Cal. App. 3d 983, 991). It was then necessary for the trial judge, before granting the motion, to find that the juror was, because of a general bias against plaintiffs, irrevocably committed to voting against plaintiffs regardless of the facts that might emerge at trial (78 Cal. App. 3d 983, 996). The court concluded that there was insufficient evidence in the record to support a finding that either of the jurors made the contested statements or that they harbored a bias against plaintiffs' cause which they concealed on voir dire (78 Cal. App. 3d 983, 996, 998).
[c]--Juror Must Be Subject to Challenge for Cause
Castro v. Fowler Equipment Co. (1965) 233 Cal. App. 2d 416, 43 Cal. Rptr. 589 , was an employee's action against a third-party tortfeasor for personal injuries sustained in plaintiffs' employment. After judgment for plaintiff, defendant moved for a new trial based on a juror's false answer given on voir dire examination [ Code Civ. Proc. 657(1)[Deering's] ]. After the motion was denied, defendant appealed the judgment and also sought review of the order denying the motion for a new trial.

The court of appeal affirmed the judgment, stating that the moving party must show that the questioned juror had a biased or prejudiced state of mind towards the defendant and that a challenge for cause would have been granted (233 Cal. App. 2d 416, 423-424). In this case, the juror was asked if any member of her family had been injured in an accident, to which she replied negatively. After trial, appellant hired a professional investigator who found that the juror's husband had filed a claim with an insurance company for personal injuries arising out of an automobile accident. However, the juror's declaration showed that she did not recall the specific question relating to injuries suffered by an immediate member of her family. She averred that her husband had been in an accident and at a later date had seen a doctor, but she did not know that it was in connection with the accident. She also did not know that he had retained an attorney or had filed a claim. She further stated that her husband owned a vending machine company, had 20 vehicles, drove constantly, and did not discuss business matters with her (233 Cal. App. 2d 416, 423).

Note that a subsequent court of appeal decision has held that concealment of bias by a juror during voir dire examination need not be willful in order for a new trial to be granted [see People ex rel. Dept. Pub. Wks. v. Curtis (1967) 255 Cal. App. 2d 378, 388-389, 63 Cal. Rptr. 138 , discussed in 155.71[3][b]].
[d]--Jurors as Unable to Deny Prejudicial Influence in Declaration
The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in [a], above. The court of appeal affirmed the judgment and order denying plaintiff's motion for a new trial, stating that the court under prior law refused to consider the affidavits of the prevailing jurors to show that the misconduct did not result in their receiving improper information [see Kritzer v. Citron (1950) 101 Cal. App. 2d 33, 36-37, 224 P.2d 808 ]. In Kimic v. San Jose-Los Gatos etc. Ry. Co. (1909) 156 Cal. 379, 388-389, 104 P. 986 , the Court stated that it is thoroughly settled that jurors cannot be heard to deny the prejudicial influence on their minds of knowledge acquired by misconduct. In this case, the court of appeal stated that this ruling prohibiting evidence of a juror's subjective state is retained by Evid. Code 1150[Deering's] , which provides that no evidence is admissible to show the effect of such statement, conduct, condition, or event on a juror either in influencing him or her to assent to or dissent from the verdict or concerning the mental processes by which it was determined. Here, some of the jurors' declarations contained statements that their subjective reasoning processes were not affected by anything said or done by the allegedly biased juror. The court explained that even if these statements were stricken, plaintiff had still failed to show that the jury was influenced by the statements of the biased juror. Therefore, the court affirmed the order denying the motion (1 Cal. App. 3d 384, 433).
[4]--Additional Authorities
[a]--Showing of Prejudice Required
Brickell v. Wittmar (1959) 175 Cal. App. 2d 190, 345 P.2d 494 , was a personal injury action in which plaintiff's motion for new trial on the ground that one of the jurors concealed his prejudice on voir dire was denied. On voir dire examination, the juror stated that he was not prejudiced against anyone bringing a personal injury action in which the amount of damages sought was $15,000-$25,000. However, during jury deliberations, the juror remarked that actions in which high verdicts are awarded make everyone's insurance premiums increase. The court of appeal affirmed the judgment, since the question of damages was never considered by the jury and there was no affirmative showing that the juror's statements caused prejudice sufficient to warrant a reversal (175 Cal. App. 2d 190 196).
[b]--Juror Must Be Subject to Challenge for Cause
The facts and procedural background of Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 , are discussed in 155.110[3][b]. The Supreme Court affirmed the trial court judgment, which was entered after the denial of defendant's motion for a new trial based on alleged juror misconduct. The Court found that retrial was not necessary due to the concealment of bias against defendant by two jurors when questioned on voir dire, because the incidents only involved failure to respond affirmatively to generalized inquiries asked of a group of jurors. The Court held that this failure did not amount to concealment of bias, and defendant did not present evidence of actual bias other than silence on voir dire (32 Cal. 3d 388, 408).

Dunford v. General Water Heater Corp. (1957) 150 Cal. App. 2d 260, 309 P.2d 958 , was a personal injury action in which the court of appeal affirmed the judgment for defendants and the denial of plaintiffs' motion for new trial based, in part, on a juror's allegedly false answers given on voir dire. Although plaintiffs maintained that the juror gave untrue answers and that truthful answers would have given rise to a successful challenge for cause, plaintiffs failed to make an adequate showing when they failed to supply the court with a record of the voir dire proceedings or sufficient affidavits (150 Cal. App. 2d 260, 264-265).
155.102 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]-- Moving Party Waived Objection by Failing to Interrogate Juror Fully During Voir Dire
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE JURY BECAUSE COUNSEL FOR THE MOVING PARTY FAILED TO FULLY INTERROGATE THE JUROR ON VOIR DIRE ON THOSE MATTERS THAT MAY HAVE EXPOSED THE ALLEGED BIAS; THUS, THE MOVING PARTY HAS WAIVED ANY OBJECTION TO THE JUROR'S POSSIBLE PREJUDICE.

Waiver of Objection If Counsel Fails to Interrogate Juror Fully on Voir Dire. Affidavits that purport to show a juror's alleged bias but that show prejudice on matters that a juror could have been but was not interrogated about do not furnish grounds for granting a new trial; failure of counsel to interrogate fully waives any disqualification that might have developed ( Davilla v. Liberty Life Ins. Co. (1931) 114 Cal. App. 308, 312, 299 P. 831 ).

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 jury [ Code Civ. Proc. 657(1)[Deering's] ] based on a juror's alleged concealment of bias on voir dire. This form may be used to oppose a motion for new trial supported by the points and authorities set out in 155.71.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should argue that the juror did not answer untruthfully or conceal any bias on voir dire, and assuming that the moving party's declarations showed that the juror might have been prejudiced, the prejudice concerned matters that the juror could have been but was not interrogated about [see Davilla v. Liberty Life Ins. Co. (1931) 114 Cal. App. 308, 312, 299 P. 831 ].
[c]--Related Pleading and Practice Forms
For forms relating to new trial motion proceedings, including an order denying the motion and declarations that may be modified for use as opposing declarations, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Waiver of Objection If Counsel Fails to Interrogate Juror Fully on Voir Dire
In Davilla v. Liberty Life Ins. Co. (1931) 114 Cal. App. 308, 299 P. 831 , plaintiff beneficiary received a verdict holding the insurer liable in the amount of the policy for her husband's death. The defendant insurance company's motion for a new trial was dismissed for failure to state whether the motion would be made on affidavits or the minutes of the court or both [see Code Civ. Proc. 659[Deering's] ]. The court of appeal affirmed, stating that, assuming the question of the juror's prejudice was properly presented, the affidavits did not disclose that the juror, on voir dire examination, answered untruthfully or concealed any prejudice (114 Cal. App. 308, 311-312). Even assuming that such prejudice was shown, it appeared that the prejudice concerned matters in which she could have been interrogated but was not. A juror is not required to volunteer information. Failure of counsel to more fully interrogate waived any disqualification that might have developed (114 Cal. App. 308, 312).

Although defendant's motion for a new trial was denied in this case because it failed to state whether the motion would be based on affidavits or the minutes of the court or both, the Supreme Court has held that if the notice of motion states the grounds on which it will be made, the court abuses its discretion if it denies the motion for a failure to state the nature of the supporting documents [see Nichols v. Hast (1965) 62 Cal. 2d 598, 601, 43 Cal. Rptr. 641, 400 P.2d 753 ].
[4]--Additional Authorities
[a]--Waiver of Objection If Counsel Fails to Interrogate Juror Fully on Voir Dire
Jutzi v. County of Los Angeles (1987) 196 Cal. App. 3d 637, 242 Cal. Rptr. 74 , was an action against defendant county for alleged medical malpractice involving the Los Angeles County U.S.C. Medical Center (County Hospital) in rendering emergency medical services to plaintiff for a broken ankle, which allegedly caused gangrene and resulted in the amputation of plaintiff's leg. In response to a general question directed by the trial judge to the entire jury panel, a juror revealed that she had been a patient at County Hospital some 18 or 19 years before during one of her pregnancies, but her experience would not affect her ability to render a fair and impartial verdict. Plaintiff's counsel chose not to examine the juror on this subject. The juror later stated to fellow jurors that she had been a patient of the center some 17 times and they always treated her well. Judgment was for the defendant. Plaintiff's motion for new trial on the ground of juror misconduct was denied, and plaintiff appealed.

The court of appeal affirmed. With respect to the asserted juror misconduct, the court said that although one of the statements that the juror may have made would indicate a bias in favor of County Hospital, there was no evidence that she intentionally concealed such a bias on voir dire, that, on the contrary, she willingly revealed her experience as a patient in response to the general question directed to the entire panel (196 Cal. App. 3d 637, 654-655). The court said that it must be assumed that follow-up questions from counsel further probing the juror's feelings as a result of her experience as a patient would have been answered with the same candor with which she responded to the general question (196 Cal. App. 3d 637, 655). Declining to follow the rule promulgated in People v. Diaz (1984) 152 Cal. App. 3d 926, 932, 200 Cal. Rptr. 77 , that even an inadvertent failure to reveal ``a strong potential of juror bias'' constitutes misconduct, the court said it was clear that where a juror intentionally lies on voir dire, such an act constitutes misconduct, but that to find misconduct where ``concealment'' is unintentional and the result of misunderstanding or forgetfulness is clearly excessive (196 Cal. App. 3d 637, 655). The court explained that the juror had made no attempt to conceal her past involvement with County Hospital and said that once her experience was revealed it was the function of plaintiff's attorney to explore the subject if he wished to decide for himself whether a potential for juror bias existed (196 Cal. App. 3d 637, 655). The court concluded that there was no misconduct on the part of the juror with respect to the voir dire (196 Cal. App. 3d 637, 655).

Pollind v. Polich (1947) 78 Cal. App. 2d 87, 177 P.2d 63 , was an action for personal injuries in which plaintiff's motion for a new trial, on the ground that a juror concealed a bias on voir dire, was denied. The court of appeal held that it was not error to deny plaintiff's motion when the juror was not questioned regarding a possible prejudice against young drivers or his knowledge of the intersection where the accident occurred. If the plaintiff feared that the jurors might be prejudiced against the driving of automobiles by young boys, the jurors should have been questioned on that point (78 Cal. App. 2d 87, 92).
155.103 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity in Jury Proceedings [Code Civ. Proc. 657(1)]--Moving Party Failed to Show Juror Was Mentally Incompetent During Trial
[1]--FORM


[Caption. See 155.60[1]. ]

A NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE JURY, BECAUSE THE MOVING PARTY HAS FAILED TO SHOW THAT A JUROR WAS INCOMPETENT AT THE TIME OF TRIAL.

Preponderance of Evidence Required. Mental incompetence of a juror is not a basis for granting a new trial if it cannot be shown by a preponderance of evidence that the juror was insane at the time of trial ( Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 248, 296 P.2d 563 ).

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 jury [ Code Civ. Proc. 657(1)[Deering's] ] based on a juror's mental incompetency during trial. This form may be used in an appropriate case to oppose a motion for new trial supported by the points and authorities set out in 155.72.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. In particular, counsel should argue that the moving party has failed to show by a preponderance of evidence that the juror was incompetent during trial. Counsel may also argue that the juror's alleged incompetency has not been shown to have been prejudicial to the moving party's case.
[c]--Related Pleading and Practice Forms
For forms relating to new trial motion proceedings, including an order denying the motion and declarations that may be modified for use as opposing declarations, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Preponderance of Evidence Required
The factual and procedural background of Church v. Capital Freight Lines (1956) 141 Cal. App. 2d 246, 296 P.2d 563 , is discussed in 155.72[3][a]. The court of appeal affirmed the denial of plaintiffs' motion for new trial, stating that the presumption is always that a person is sane and that, therefore, plaintiffs had the burden of proving, by a preponderance of evidence, that the juror was insane at the time of trial. The fact that the juror was insane subsequent to trial may have some evidentiary effect but will not create or carry a presumption of the past existence of such insanity (141 Cal. App. 2d 246, 248). In view of the conflicting evidence presented by affidavit, the court of appeal stated that although a different conclusion by the trial court would have been equally well founded, the trial judge did not abuse his discretion in following the conclusion of defendants' doctors rather than the evidence produced by plaintiffs (141 Cal. App. 2d 246, 250).
155.104-155.109 [Reserved]

155.110 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Alleged Misconduct Not Prejudicial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE THE ALLEGED MISCONDUCT OF THE JURY DID NOT PREVENT _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND DID NOT MATERIALLY AFFECT HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Denial of Motion if No Showing of Prejudice. A motion for a new trial on the ground of jury misconduct is properly denied if the moving party fails to show that he or she has suffered prejudice by reason of the juror's misconduct ( Elsworth v. Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 556-558, 208 Cal. Rptr. 874, 691 P.2d 630 ; Kritzer v. Citron (1950) 101 Cal. App. 2d 33, 37, 224 P.2d 808 ).

B. Misconduct of Trifling Nature. A new trial will not be granted for misconduct of the jury if the misconduct was of such a trifling nature that it could not have been prejudicial to the moving party, and when it appears that the fairness of trial was not affected by the impropriety ( Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 417-418, 185 Cal. Rptr. 654, 650 P.2d 1171 ; Siemsen v. Oakland, S. L., & H. Electric Ry. (1901) 134 Cal. 494, 498, 66 P. 672 ; see Elsworth v. Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 556-558, 208 Cal. Rptr. 874, 691 P.2d 630 ).

[Optional ] C. Improper Discussion, Communication, or Statement of Opinion. A new trial will not be granted for a juror's improper discussion, communication, or statement of opinion if no prejudice to the moving party has resulted from the misconduct ( City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 426-431, 82 Cal. Rptr. 1 ).

[Optional ] D. Discussion of Case Before Final Submission to Jury. If jurors have improperly discussed the case before its final submission, and no prejudice to the substantial rights of a party has resulted, a new trial will not be granted ( City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 428-430, 82 Cal. Rptr. 1 ; Williams v. Layne (1942) 53 Cal. App. 2d 81, 86, 127 P.2d 582 ).

[Optional ] E. Comments by Juror on Evidence. When a juror, while in the jury box, comments on an introduced piece of evidence at trial, a new trial will not be granted if the remarks were vague and the moving party suffered no prejudice from the remarks ( Sepulveda v. Ishimaru (1957) 149 Cal. App. 2d 543, 547, 308 P.2d 809 ).

[Optional ] F. Communication Between Juror and Counsel. The mere fact that a few words were spoken between an attorney and a member of the jury does not, in itself, constitute prejudicial misconduct for which a new trial will be granted ( Dimmick v. Alvarez (1961) 196 Cal. App. 2d 211, 217, 16 Cal. Rptr. 308 ).

[Optional ] G. Communication Between Juror and Witness. Mere communication between a juror and a witness in a civil action is not a ground for setting aside the verdict or granting a new trial in the absence of a showing that the juror was influenced by the communication to the prejudice of one of the parties to the action ( City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 427-428, 82 Cal. Rptr. 1 ).

[Optional ] H. Improper Reception of Evidence. A new trial will not be granted for jury misconduct when a juror has improperly received evidence at trial if the improper reception of evidence did not result in prejudice to the moving party ( Anderson v. Pacific Tank Lines (1942) 52 Cal. App. 2d 244, 249, 126 P.2d 153 ).

[Optional ] I. Unauthorized View of Premises. A new trial will not be granted if a juror has made an unauthorized view of the premises if no prejudice to the moving party has resulted from the juror's inspection ( Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 661-663, 115 P. 313 ; see Maffeo v. Holmes (1941) 47 Cal. App. 2d 292, 296, 117 P.2d 948 ).

[Optional ] J. Examination of Exhibits Not in Evidence. A new trial will not be granted if a juror examines an exhibit that is not in evidence if no prejudice has resulted from the juror's misconduct ( Anderson v. Pacific Tank Lines (1942) 52 Cal. App. 2d 244, 249, 126 P.2d 153 ).

[Optional ] K. Reliance by Juror on Outside Expert. A new trial will not be granted when a juror consults with an outside expert concerning an issue pertinent to the litigation if the information did not result in prejudice to the moving party ( Kritzer v. Citron (1950) 101 Cal. App. 2d 33, 36-37, 224 P.2d 808 ).

[Optional ] L. Inattentive Jurors. A new trial will not be granted when a juror is inattentive while evidence is being presented at trial if no prejudice has resulted from the juror's misconduct ( Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 417, 185 Cal. Rptr. 654, 650 P.2d 1171 ).

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. It may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.80 et seq.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of the alleged jury misconduct, showing how it did not deprive the moving party of a fair trial and did not materially affect the moving party's substantial rights.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For discussion and forms relating to new trial proceedings based on jury misconduct, see also Ch. 326A, Jury Verdicts in that publication.
[3]--Discussion of Authorities
[a]--Denial of Motion if No Showing of Prejudice
Elsworth v. Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 208 Cal. Rptr. 874, 691 P.2d 630 , was a wrongful death action based on strict liability and negligence arising out of an air crash. The jury returned a general verdict against defendant aircraft manufacturer, but two jurors voted in favor of defendant. During a recess in the trial, and before the jury began deliberations, a television program aired, criticizing the safety record of aircraft such as that at issue in the trial and mentioning defendant-manufacturer. Subsequent to return of the verdict, a juror who had voted in defendant's favor signed a declaration stating that two jurors had indicated they had seen the program. No counteraffidavits were filed. Defendant moved for a new trial, claiming this event amounted to jury misconduct raising a presumption of prejudice. After viewing a videotape of the program and a transcript of the videotape, the trial court denied defendant's motion.

On appeal, the Supreme Court affirmed, finding that any misconduct was not of such a character as was likely to have influenced the verdict improperly (37 Cal. 3d 540, 558). The Court held that even if the jurors committed misconduct by watching the program and a presumption of prejudice arose, the presumption was rebutted (37 Cal. 3d 540, 557). Citing Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 (discussed in [b], below), the Court stated that the test is whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. Some of the factors to be considered in applying the test are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued (37 Cal. 3d 540, 557). Applying the test, the Court found that the evidence of misconduct was not convincing, because the declarant was uncertain of the identity of one of the jurors who allegedly viewed the program. There was no indication that either juror saw the whole program, and the declaration lacked specificity regarding the actual statements of the two jurors and the circumstances under which they were made (37 Cal. 3d 540, 557-558). The Court also found that the misconduct, if it occurred, was not serious in the sense of revealing a deliberate act by the two jurors in violating the trial court's instruction to confine their consideration of the case to evidence heard in court. Finally, the Court found it highly unlikely that the jurors were prejudiced by viewing the program. It noted that the two jurors' statements that they had viewed the program were not made in the jury room, the broadcast did not refer to either the type of aircraft or the accident at issue in the case, and the transcript of the television program left the Court unable to conclude whether it favored plaintiffs' theory of design defect or defendant's theory of pilot error Cal. 3d 540, 558).

In Kritzer v. Citron (1950) 101 Cal. App. 2d 33, 224 P.2d 808 , plaintiffs brought an action against defendants for damages resulting from an allegedly unauthorized operation on one plaintiff, following delivery of her third child. During trial, a juror contacted her own doctor and asked him questions relating to the proper practice in performing the operation in question. After judgment for defendants, plaintiffs' motion for a new trial was granted. Defendants appealed the order granting plaintiffs a new trial, and plaintiffs appealed the judgment for defendants.

The court of appeal reversed the order for a new trial and affirmed the judgment, stating that it was incumbent on plaintiffs to prove that they were deprived of a fair trial, and since they failed to show that they suffered prejudice by reason of the juror's misconduct, the order granting the motion for a new trial had to be reversed. In this case, while the juror did attempt to acquire pertinent information from a learned source outside of court, plaintiffs did not show that she imparted any of the information to her fellow jurors. Furthermore, the juror accused of misconduct did not vote on the verdict, but abstained from voting. Since nine jurors may determine the factual matters submitted to a jury, and 10 voted for defendants, the court found that the verdict was not tainted by the offending juror. Therefore, the court reversed the order granting a new trial (101 Cal. App. 2d 33, 36-37).
[b]--Misconduct of Trifling Nature
The facts and procedural background of Elsworth v. Beech Aircraft Corp. (1984) 37 Cal. 3d 540, 208 Cal. Rptr. 874, 691 P.2d 630 , are discussed in [a], above. In affirming judgment after denial of defendant's motion for new trial, the Supreme Court found that any presumption of prejudice raised by claimed jury misconduct was rebutted. It found that the fact that two jurors, sitting on a wrongful death case arising out of an airplane crash, viewed a television program criticizing aircraft safety records, did not constitute serious misconduct in the sense of revealing a deliberate act by jurors in violation of the trial court's instructions to confine their consideration of the case to the evidence they heard in court (37 Cal. 3d 540, 558).

In Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 , plaintiffs sued defendant, an automobile manufacturer, on theories of strict liability and negligence for damages incurred when the brakes on plaintiffs' automobile failed. The jury found defendant to be negligent and strictly liable. Defendant moved for a new trial on numerous grounds, including several varieties of jury misconduct. One form of jury misconduct claimed by defendant was inattentiveness at trial. Defendant presented juror declarations stating that one juror was reading a novel during trial while other jurors worked crossword puzzles. Counterdeclarations were submitted denying inattentiveness. The trial court rejected all grounds for a new trial, and judgment was entered for plaintiffs but in a reduced amount. The court of appeal overturned the judgment and ordered a new trial on the ground of juror misconduct. Defendant appealed the judgment to the Supreme Court, and plaintiffs cross appealed the trial court order reducing the amount of their compensatory award.

The Supreme Court affirmed the trial court judgment. The Court stated that a jury's failure to pay attention to the evidence presented at trial is a form of misconduct that will justify the granting of a new trial if shown to be prejudicial to the losing party (32 Cal. 3d 388, 411). The Court held that the trial court improperly considered juror counterdeclarations that only proved the subjective mental processes of the jurors, and thus defendant's juror declarations remained unrebutted (32 Cal. 3d 388, 414-415). However, a new trial is required only if it is established that defendant was somehow prejudiced by the jurors' inattentiveness. Prejudice exists if, in the absence of proven misconduct, it is reasonably probable that a result more favorable to the complaining party would have been achieved. The Court stated that based on the facts of the case, there was but the flimsiest evidence of actual prejudice (32 Cal. 3d 388, 415). Even if one accepted defendant's argument that prejudice should be presumed in civil cases from juror misconduct, the Court stated, such a presumption may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether or not there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. Some factors to be considered when determining if the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued (32 Cal. 3d 388, 416-417). The Court stated that the jurors in the case engaged in essentially neutral, albeit distracting, activities at unspecified times during the presentation of evidence. There was overwhelming proof of liability against defendant and no substantial likelihood that actual prejudice may have resulted from the jurors' activities. It was not clear what type of evidence was being presented whilee misconduct occurred or even which side' case was being presented. In conclusion, the Court held that the showing of misconduct was rebutted by an examination of the record, which revealed no substantial likelihood that defendant was given anything less than a full and fair consideration of its case by an impartial jury (32 Cal. 3d 388, 417).

In Siemsen v. Oakland, S. L., & H. Electric Ry. (1901) 134 Cal. 494, 66 P. 672 , plaintiff brought an action to recover damages for personal injuries sustained when he was thrown by one of defendant's electric streetcars. It was alleged that during trial, a juror visited the scene of the accident and made an examination of the track and rails. After judgment for plaintiff, defendant moved for a new trial on several grounds, including misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was granted, plaintiff appealed the order.

The Supreme Court reversed the order, stating that while the exercise of a liberal discretion in the granting of new trials is recognized, it does not follow that an order must always be upheld when an examination of the record discloses that the misconduct was of such trifling nature that it could not have been prejudicial to the moving party. When it appears that the fairness of the trial has not been affected by such impropriety, the verdict will not be disturbed. The Court noted that if the location or its condition had an essential bearing on the controversy, it may well be that a verdict should be set aside on proof that a juror improperly acquired knowledge of the location or its condition by visiting the scene. In this case, however, the place of the accident was not disputed, nor was it charged that the car left the track because of defective rails. The complaint alleged that the car was negligently maintained, operated, and managed so that while moving at great and unlawful speed, the car ran off the track. Defendant answered that the accident was caused by a latent defect in a wheel that could not, by the exercise of due care, have been discovered. After considering a juror's affidavit, the Court felt that the evidence presented therein was insufficient to justify the granting of a new trial. Therefore, the Court reversed the order granting defendant a new trial (134 Cal. 494, 498-499).
[c]--Improper Discussion, Communication, or Statement of Opinion
The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in 155.82[3][e]. In that case, several instances of juror misconduct were alleged by plaintiff, including a juror's improper conversation with a witness, the jurors' improper discussion of the case among themselves during trial, and the jurors' formation and expression of opinions on the merits of the case before it was submitted to them. After judgment for defendant church, plaintiff moved for a new trial on several grounds, including misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, stating that a new trial will not be granted for misconduct if it is so trifling that it could not have been prejudicial to the moving party, and when it appears that the fairness of the trial has not been affected by the impropriety. In this case, the trial court had all the evidence before it and was in the best position to evaluate the prejudicial effect of the alleged misconduct. This finding of no prejudice, the court explained, should not be set aside unless there is no evidence to sustain it. The court of appeal then concluded that the findings of the trial court should govern. Therefore, it affirmed the judgment and order denying a new trial (1 Cal. App. 3d 384, 429-430).

Note that an order denying a motion for new trial is no longer appealable [see Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's] ]. If a party attempts to appeal from an order denying a new trial, the reviewing court will dismiss the appeal [see Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 199-200, 210, 250 P.2d 166 ]. A party must appeal the judgment, and if he or she raises the issue on appeal, the appellate court, when reviewing the judgment, will assess the propriety of the trial court's ruling on the motion for new trial [see Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 199-200, 210, 250 P.2d 166 ].
[d]--Discussion of Case Before Final Submission to Jury
The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in 155.82[3][e] and in [c], above. In that case, several instances of juror misconduct were alleged by plaintiff, including the discussion of the case by four named jurors during trial. After judgment was rendered for defendant church, plaintiff moved for a new trial on several grounds, including misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, stating that it is improper for jurors to discuss a case prior to its submission to them. Insofar as any juror formed and expressed an opinion prior to the submission of the case, the juror violated the prescribed protocol for performance of his or her duties. However, the affidavits of the jurors were in conflict regarding whether or not the jurors had discussed the case except in the jury room. Because of this conflict, the court of appeal stated that the weight and sufficiency of the affidavits and the credence to be given to them was for the trial court to determine (1 Cal. App. 3d 384, 429). Since the trial court determined that the alleged misconduct did not prejudice plaintiff, the court of appeal upheld the trial court's findings and affirmed the judgment and order denying a new trial (1 Cal. App. 3d 384, 430).

In Williams v. Layne (1942) 53 Cal. App. 2d 81, 127 P.2d 582 , plaintiff brought an action for personal injuries suffered when her car collided with defendants' parked truck. During a court recess, several jury members conversed with the court reporter and the bailiff. After verdict was rendered for plaintiff, defendants moved for a new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, defendants appealed the judgment.

The court of appeal affirmed the judgment because the only testimony concerning the conversation was given by the court reporter and the bailiff in chambers soon after the conversation took place, and both testified positively that no reference whatsoever was made to the present case or to any of the facts involved. The court stated that even when it is shown that jurors have improperly talked to each other about the case before its final submission, a new trial is not justified unless it appears that prejudice to the substantial rights of a party resulted therefrom. Since no reference was made in the conversation to the present case, the court concluded that no prejudice resulted. Therefore, the court affirmed the judgment for plaintiff and the order denying defendants' motion for a new trial (53 Cal. App. 2d 81, 86).
[e]--Comments by Juror on Evidence
In Sepulveda v. Ishimaru (1957) 149 Cal. App. 2d 543, 308 P.2d 809 , plaintiffs brought an action for personal injuries sustained in an automobile accident. During trial, when plaintiffs' attorney placed a bumper on the counsel table, he heard a juror say, ``He can sell that for a fee.'' After verdict was rendered for defendants, plaintiffs moved for a new trial on the ground of misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiffs appealed the judgment.

The court of appeal affirmed the judgment, stating that the possible prejudicial character and influence on the jurors of the very vague remark were primarily matters of fact for the trial court. The order denying the new trial decided by implication that the verdict was not materially affected by the matter complained of and that the plaintiffs suffered no prejudice through it. Furthermore, counsel for plaintiffs did not bring the matter to the attention of the court. When knowledge of the objectionable fact is obtained in time to apply to the court to remedy or correct it, a party may not sit by in silence, taking chances of a favorable verdict, and complain after a hostile verdict is rendered. That party will have waived his or her right to complain. Because of the lack of prejudice and counsel's failure to immediately raise the issue at trial, the court of appeal affirmed the denial of plaintiffs' motion for a new trial (149 Cal. App. 2d 543, 547).
[f]--Communication Between Juror and Counsel
In Dimmick v. Alvarez (1961) 196 Cal. App. 2d 211, 16 Cal. Rptr. 308 , plaintiffs brought an action for personal injuries and property damage against defendants. After the case was submitted to the jury, plaintiffs' attorney informed the court that during recess he had observed conversations between members of the jury and counsel for defendants. Counsel for defendant explained that the juror had asked him if he could ask a question and that he told the juror that it was not a good idea in light of the court's admonition. When defendant's counsel suggested that the jurors involved be questioned, plaintiffs' attorney indicated that he was only stating the matter for the record. After a verdict was rendered for plaintiffs, plaintiffs moved for a new trial on several grounds, including misconduct of the jury. When the motion was denied, plaintiffs appealed the judgment.

The court of appeal affirmed the judgment, stating that the mere fact that a few words were spoken between an attorney and a member of the jury does not in itself amount to prejudicial misconduct. In this case, the juror wanted to ask a question of defense counsel, but never asked the intended question. Furthermore, plaintiffs' counsel failed to object to the conversation and waited until after the case had been submitted to the jury to call it to the attention of the court. By failing to object and by failing to ask for a mistrial at the time the fact of the conversation came to his attention, plaintiffs' counsel waived any right he might have had for a new trial or reversal of the judgment on that ground (196 Cal. App. 2d 211, 217).
[g]--Communication Between Juror and Witness
The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in 155.82[3][e] and in [c] and [d], above. In that case, several instances of juror misconduct were alleged by plaintiff, including improper communication between a witness and a juror. After judgment was rendered for defendant church, plaintiff moved for a new trial on several grounds, including misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, stating that it is generally held that a mere communication between a witness and a juror in a civil action is not a ground for setting aside the verdict or granting a new trial in the absence of a showing that the juror was influenced by such communication to the prejudice of one of the parties to the action. When misconduct of a juror is urged, prejudice from that misconduct must be shown. The court added that the trial court passed on the matter and that by its denial of the motion for a new trial, the trial court had determined that the alleged misconduct of the juror was not prejudicial. The court concluded that since there was no showing of abuse of discretion, the trial court's decision would not be disturbed on appeal (1 Cal. App. 3d 384, 427-428).
[h]--Improper Reception of Evidence
In Anderson v. Pacific Tank Lines (1942) 52 Cal. App. 2d 244, 126 P.2d 153 , plaintiff brought an action for personal injuries suffered in a truck accident. During trial, a juror inspected plaintiff's truck to learn about the condition of the brakes. After verdict was rendered for plaintiff, defendants moved for judgment notwithstanding the verdict and for a new trial on the ground of jury misconduct. When both motions were denied, defendants appealed the judgment and the order denying the motion for judgment notwithstanding the verdict. Defendants also maintained that the lower court should have granted their motion for new trial.

The court of appeal affirmed the judgment and order denying the motion for judgment notwithstanding the verdict, stating that when misconduct of a juror is urged, prejudice from that misconduct must be shown. In this case, there was no showing of prejudice to defendants resulting from the misconduct of the juror. There was no showing of what information, if any, the juror obtained, or what effect, if any, the inspection of the truck had on the verdict. The record showed that 11 jurors voted for the verdict that was returned in favor of plaintiff, and one voted against it. The court stated that it may be that the juror who inspected the truck was the one who voted against the return of the verdict. However, the court stated that it could not assume prejudice and in the absence of a showing of prejudice, it could not regard the misconduct of the juror as prejudicial (52 Cal. App. 2d 244, 249).
[I]--Unauthorized View of the Premises
The factual and procedural background of Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 115 P. 313 , is discussed in 155.83[3][c] and in 155.114[3][a]. During trial, the sheriff in charge of the jury led the jurors past plaintiff's damaged building while conducting them to lunch. After judgment for plaintiff, defendant's motion for new trial was granted on the ground that the court erred in sending the jury to the consultation room with a specific piece of demonstrative evidence. Plaintiff appealed the order granting defendant a new trial. Defendant maintained that the use of this demonstrative evidence by the jury was prejudicial and that the trial court also erred in allowing the jurors to view the scene of the property damage.

The Supreme Court reversed the order, stating that the use of the demonstrative evidence did not prejudice defendant and that the jurors were not conducted past the building for the purpose of inspection. It did not appear that the jurors knew that they were passing the building or that their attention was directed to it. The building itself had been so repaired at the time and the circumstance was of so trifling a character, that even if the case had been criminal, it would not be a ground for disturbing the verdict. In a criminal case, the court noted that a mere casual visit of the jury to the res gestae, as where the jury walked by the scene while taking exercise under the custody of an officer, is not a ground for setting aside the verdict. It added that the rule should be no more rigid in a civil case (159 Cal. 651, 661-662). Therefore, the Court reversed the order granting defendant a new trial (159 Cal. 651, 663).

In Maffeo v. Holmes (1941) 47 Cal. App. 2d 292, 117 P.2d 948 , plaintiff brought an action for wrongful death of her minor child due to defendant's alleged negligent operation of an automobile. During trial, two jurors visited the scene of the accident. One juror drove along the street at the same time of day that the accident occurred. Another juror visited the scene and made observations concerning the lighting conditions and the position of the boy's body with reference to the crosswalk. After judgment for defendant, plaintiff moved for a new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] and irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment because plaintiff submitted improper affidavits to impeach the jury's verdict. However, the court also stated that it was not shown that the jurors' misconduct substantially prejudiced plaintiff's rights. By denying the motion, the court stated, the trial court implied that no prejudice was suffered. Accordingly, the court affirmed judgment for defendant (47 Cal. App. 2d 292, 295-296).

Note that in a later case, the Supreme Court held that affidavits of jurors may be received to show statements or other objective facts that were likely to have influenced the verdict and that entitled the moving party to a new trial [ People v. Hutchinson (1969) 71 Cal. 2d 342, 78 Cal. Rptr. 196, 455 P.2d 132 ; see also Evid. Code 1150(a)[Deering's] ].
[j]--Examination of Exhibits Not in Evidence
The factual and procedural background of Anderson v. Pacific Tank Lines (1942) 52 Cal. App. 2d 244, 126 P.2d 153 , is discussed in [h], above. During trial, a juror inspected plaintiff's truck to learn about the condition of the brakes. After verdict was rendered for plaintiff, defendants moved for judgment notwithstanding the verdict and a new trial. When both motions were denied, defendants appealed the judgment and the order denying judgment notwithstanding the verdict.

The court of appeal affirmed the judgment and the order denying the motion for judgment notwithstanding the verdict, stating that there was no showing of prejudice to defendants resulting from the juror's misconduct. There was no showing of what information, if any, the juror obtained, or what effect, if any, the inspection of the truck had on the verdict. The record showed that 11 jurors voted for the verdict that was returned for plaintiff, and one voted against it. The court stated that it may be that the juror who inspected the truck was the one who voted against the return of the verdict. However, the court said that it could not assume prejudice, and in the absence of a showing of prejudice, it could not regard the misconduct of the juror as prejudicial (52 Cal. App. 2d 244, 249).
[k]--Reliance by Juror on Outside Expert
The factual and procedural background of Kritzer v. Citron (1950) 101 Cal. App. 2d 33, 224 P.2d 808 , is discussed in [a], above. During trial, a juror contacted her personal doctor and asked him questions relating to a surgical procedure at issue during trial. After a verdict was rendered for defendants, plaintiffs' motion for a new trial on the ground of jury misconduct was granted. Defendants appealed the order; plaintiffs appealed the judgment.

The court of appeal reversed the order and affirmed the judgment, stating that it is misconduct for a juror to discuss the matter under investigation outside of court or to receive information on the subject of the litigation except in open court and in the manner provided by law. Such misconduct, unless shown by the prevailing party to have been harmless, will invalidate the verdict. The court found, however, that no prejudice was caused by the conduct of the juror in this case. While she did attempt to acquire pertinent information from a learned source, it was not shown that she imparted any of the information to her fellow jurors. Moreover, she abstained from voting and 10 jurors voted for defendants. Since nine jurors may determine the factual matters submitted to a jury and 10 voted for the defendants the court felt that the verdict was not affected by the juror's misconduct either by her conversation or her vote. Since it was incumbent on plaintiffs to prove, and since they failed to show that they suffered prejudice by reason of the juror's misconduct, the court of appeal reversed the order granting a new trial (101 Cal. App. 2d 33, 36-37).
[l]--Inattentive Juror
Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 , is discussed in [b], above.
[4]--Additional Authorities
[a]--Misconduct of Trifling Nature
In Locksley v. Ungureanu (1986) 178 Cal. App. 3d 457, 223 Cal. Rptr. 737 , plaintiff, a pedestrian, was walking across a street at an intersection when he was struck by a vehicle driven by defendant. A jury found that defendant was not negligent, and plaintiff moved for a new trial on the ground of juror misconduct. Plaintiff's claim was based on the fact that a juror experimented by driving with one eye shut because defendant had only one good eye. The trial court denied plaintiff's motion, and the court of appeal affirmed. The court held that even if the juror's experiment was misconduct, not every minor infraction of the rules by juror mandates a new trial. If the conduct is of such a nonprobative nature that it could not, in the nature of things, have prevented a party from having a fair trial, the verdict should not be set aside. The court held that the trial court's finding that the experiment could not have prejudicially effected the outcome of the case was not an abuse of discretion (178 Cal. App. 3d 457, 461-462).

In Akers v. Kelley Company Inc. (1985) 173 Cal. App. 3d 633, 219 Cal. Rptr. 243 , defendant moved to overturn the verdict of the jury based on the affidavit of one of the jurors suggesting various forms of jury misconduct. The appellate court affirmed the trial court's denial of defendant's motions. The court initially noted that not every insignificant infringement of the rules calls for a new trial (173 Cal. App. 3d 633, 656). The court then held that the juror's affidavit was insufficient evidence of misconduct since elements relied on as constituting misconduct, such as statements made, conduct, conditions, or events, must be objectively ascertainable and subject to corroboration, and the juror's affidavit consisted mainly of conjecture and incompetent evidence (173 Cal. App. 3d 633, 656-659).

The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in 155.82[3][e] and in [c], above. In affirming the judgment granted after denial of plaintiff's motion for a new trial, the court of appeal stated that a new trial will not be granted for misconduct of the jury if it is so trifling that it could not have been prejudicial to the moving party and when it appeared that the fairness of the trial had not been affected by the impropriety (1 Cal. App. 3d 384, 430).
[b]--Discussion of Case Before Final Submission to Jury
Wilson v. California Cab Co. (1932) 125 Cal. App. 383, 13 P.2d 758 , was an action for wrongful death in which the court of appeal affirmed judgment for plaintiff, noting that an order denying defendants' motion for a new trial on the ground of jury misconduct was proper [ Code Civ. Proc. 657(2)[Deering's] ]. During a five-minute recess from trial, after all the evidence had been introduced and both parties had rested, several jurors were observed to have been talking while pointing to a map of the accident scene that had been properly admitted in evidence. The court of appeal stated that assuming that this conduct was a technical violation of the court's instruction to the jury not to discuss the case until it was finally submitted to them, the conduct had not been shown to have been prejudicial to defendants. Therefore, the court affirmed the judgment (125 Cal. App. 383, 386).
[c]--Communication Between Juror and Witness
The factual and procedural background of Los Angeles Co. F.C. Dist. v. Abbot (1938) 24 Cal. App. 2d 728, 76 P.2d 188 , is discussed in [g], below. During the progress of trial, a juror asked a witness, the city engineer, questions concerning the deposits of sand, rock, and gravel on certain land. The court stated that although the conduct of the juror was reprehensible, it tended to aid rather than to militate against plaintiff. Thus, the court affirmed the judgment, noting that the denial of plaintiff's motion for a new trial was proper (24 Cal. App. 2d 728, 741).
[d]--Improper Reception of Evidence
The factual and procedural background of Hasson v. Ford Motor Co. (1982) 32 Cal. 3d 388, 185 Cal. Rptr. 654, 650 P.2d 1171 , is discussed in [b], above. The Supreme Court affirmed the trial court judgment, which was entered after the denial of defendant's motion for a new trial based on alleged juror misconduct. The Court rejected defendant's argument that a juror's paralegal studies during trial amounted to improper reception of evidence concerning the subject of the trial. The Court held that a juror's inadvertent attendance of a single class during which the subject of an arguably related piece of litigation was mentioned did not constitute misconduct [32 Cal. 3d 388, 409].
[e]--Unauthorized View of Premises
Siemsen v. Oakland, S. L., & H. Electric Ry. (1901) 134 Cal. 494, 66 P. 672 , was a personal injury action in which the Supreme Court reversed an order granting defendant a new trial on the ground of jury misconduct. During trial, a juror allegedly inspected the scene of the accident. However, the Court stated that an examination of the record disclosed that the misconduct was of such a trifling nature that it could not have been prejudicial to the moving party. Since the Court felt that the fairness of the trial was in no way affected by the juror's conduct, it reversed the order granting a new trial (134 Cal. 494, 498).

An order denying a motion for new trial is no longer appealable [see Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's] ]. If a party attempts to appeal from an order denying a new trial, the reviewing court will dismiss the appeal [see Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 199-200, 210, 250 P.2d 166 ]. A party must appeal the judgment, and if he or she raises the issue on appeal, the appellate court, when reviewing the judgment, will assess the propriety of the trial court's ruling on the motion for new trial [see Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 199-200, 210, 250 P.2d 166 ].

The factual and procedural background of Woebbe v. Sperry (1941) 48 Cal. App. 2d 340, 119 P.2d 743 , is discussed in 155.83[3][d]. The court of appeal affirmed the judgment, noting that order denying plaintiff's motion for a new trial was proper because even though the juror repeatedly drove through the intersection where the accident had occurred, there was no indication that he had received evidence outside of court during the view of the scene. The juror did not stop at the intersection or make any observations or measurements (48 Cal. App. 2d 340, 344).
[f]--Examination of Exhibits Not in Evidence
Kimic v. San Jose-Los Gatos etc. Ry. Co. (1909) 156 Cal. 379, 104 P. 986 , was a personal injury action in which the Supreme Court affirmed judgment for plaintiff, noting that an order denying defendant's motion for a new trial was proper. While the jurors visited the scene of the accident under a court order, they examined the railroad car's brakes, even though the quality of the brakes was not at issue in the litigation. Since the evidence received out of court was immaterial to any real issue in the case, the Court stated that it could not see how the examination of the brake and its mechanism was a matter of any importance or that it could have been prejudicial to defendant (156 Cal. 379, 398-399).

Watson v. Los Angeles Transit Lines (1958) 157 Cal. App. 2d 112, 320 P.2d 890 , was a personal injury action in which the court of appeal affirmed judgment for defendants, noting that the order denying plaintiff's motion for a new trial was proper. During the jury's deliberation, one juror read the dictionary definitions of ``negligent'' and ``prudent'' to the other jurors. The court stated, however, that no prejudice had resulted to plaintiff by reason of the juror's conduct. Accordingly, it affirmed the judgment (157 Cal. App. 2d 112, 116).
[g]--Reliance by Juror on Outside Expert
Los Angeles Co. F.C. Dist. v. Abbot (1938) 24 Cal. App. 2d 728, 76 P.2d 188 , was an eminent domain proceeding in which the court of appeal affirmed judgment for defendants, noting that an order denying plaintiff's motion for a new trial was proper. During the progress of trial, a juror asked a witness, the city engineer, questions concerning the deposits of sand, rock, and gravel on certain land. The court stated that although the conduct of the juror was reprehensible, it tended to aid rather than to militate against plaintiff. Thus, the court affirmed the denial of plaintiff's motion for a new trial (24 Cal. App. 2d 728, 741).
155.111 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Failure of Moving Party to Comply With No-Knowledge Requirement
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD BE DENIED BECAUSE _________________ [PLAINTIFF or DEFENDANT] FAILED TO SHOW THAT BOTH _________________ [HE or SHE] AND COUNSEL WERE NOT AWARE OF THE ALLEGED MISCONDUCT UNTIL AFTER THE VERDICT WAS RETURNED.

No-Knowledge Requirement. A litigant seeking a new trial on the ground of juror improprieties must present affidavits showing that neither the party nor his or her attorney were aware of the misbehavior until after the verdict was returned, and if the party does not comply with this requirement, the motion for a new trial is properly denied ( People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 598-600, 128 Cal. Rptr. 697 ).

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. It may be submitted in opposition to a motion for new trial that is supported by the points and authorities set out in 155.80 et seq.
[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 moving party's affidavits or declarations failed to show that both the moving party and his or her counsel were unaware of the misconduct until after the verdict was rendered. Although the filing of separate affidavits or declarations by counsel and client is preferable, the moving party's failure to do so will not be fatal to his or her motion [see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132 ].
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For additional discussion and forms relating to new trial proceedings based on jury misconduct, see Ch. 326A, Jury Verdicts in that publication.
[3]--Discussion of Authorities
[a]--No-Knowledge Requirement
The factual and procedural background of People v. Southern Cal. Edison Co. (1976) 56 Cal. App. 3d 593, 128 Cal. Rptr. 697 , is discussed in 155.82[3][b]. After a verdict was rendered for plaintiff, defendant moved for a new trial on the sole ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. When defendant's motion was granted, plaintiff appealed the order and defendant filed a timely protective cross appeal from the judgment.

The court of appeal reversed the order granting defendant a new trial, stating that defendant's declaration was technically insufficient because it failed to show that the party and counsel were unaware of the misconduct until after the verdict was returned. The court stated that uninterrupted case authority since Sherwin v. Southern Pacific Co. (1914) 168 Cal. 722, 145 P. 92 , imposes the inflexible requirement that a litigant seeking a new trial on the ground of juror improprieties present affidavits showing that neither he or she nor his or her attorney was aware of the misbehavior until after the verdict was returned. Applying these principles to the facts, the court concluded that the declaration submitted by defendant's attorney established by inference that the attorney did not know of the misconduct until after the verdict was rendered. The requirement that a declaration establish an absence of knowledge on the part of the client remained unsatisfied. Even though the declaration, if technically sufficient, would have made a patently adequate showing to support the trial court's order granting a new trial, the court could not extend counsel's declaration to include his or her client. Therefore, the court reversed the order granting the motion for a new trial (56 Cal. App. 3d 593, 598-600).
155.112 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Failure of Moving Party to Object at Trial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE _________________ [_________________ (PLAINTIFF or DEFENDANT) and/or _________________ (PLAINTIFF'S COUNSEL or DEFENDANT'S COUNSEL)] HAD KNOWLEDGE OF THE ALLEGED MISCONDUCT DURING TRIAL BUT FAILED TO BRING IT TO THE ATTENTION OF THE COURT TO REMEDY OR CORRECT IT; THUS, THE _________________ [PLAINTIFF or DEFENDANT] WAIVED HIS/HER/ITS RIGHT TO COMPLAIN OF THE MISCONDUCT.

Waiver of Right to Complain. If counsel or the moving party had knowledge of the alleged misconduct during trial but failed to bring it to the attention of the court to remedy or to correct it, the moving party will have waived his or her right to complain of the misconduct on a motion for a new trial ( Sepulveda v. Ishimaru (1957) 149 Cal. App. 2d 543, 547, 308 P.2d 809 ).

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. It may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.80 et seq.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss how the moving party or his or her counsel gained knowledge of the alleged misconduct during trial and should argue that the moving party's failure to object constituted a waiver of his or her right to complain on a later motion for new trial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial on the ground of jury misconduct, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 326A, Jury Verdicts (Matthew Bender). For a discussion of new trials generally and an order denying the motion, see Ch. 371, Motions After Trial in that publication.
[3]--Discussion of Authorities
[a]--Waiver of Right to Complain
The factual and procedural background of Sepulveda v. Ishimaru (1957) 149 Cal. App. 2d 543, 308 P.2d 809 , is discussed in 155.110[3][e]. After verdict was rendered for defendants, plaintiffs moved for a new trial on the ground of misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ]. When the motion was denied, plaintiffs appealed the judgment.

The court of appeal affirmed the judgment, stating that when knowledge of the objectionable fact is obtained in time to apply to the court to remedy or correct it, a party may not sit by in silence, taking chances of a favorable verdict, and be heard to complain after a hostile verdict. He or she will have waived the right to complain. In this case, counsel heard the alleged improper comments by the juror, but counsel did not move for a mistrial or bring the matter to the attention of the court. The possible prejudicial character and influence over the jury of the very vague remark made by a fellow juror were primarily matters of fact for the trial court to determine. The order denying the new trial decided by implication that the verdict was not materially affected by the matter complained of and that appellants suffered no prejudice through it. Accordingly, the court affirmed the judgment (149 Cal. App. 2d 543, 547).
[4]--Additional Authorities
[a]--Waiver of Right to Complain
Newton v. Thomas (1955) 137 Cal. App. 2d 748, 291 P.2d 503 , was a wrongful death action in which the court of appeal affirmed judgment for plaintiffs and an order denying defendants' motion for judgment notwithstanding the verdict. The court also noted that a new trial was not necessary even though the jury had inadvertently been given certain papers that were not exhibits in evidence. After the jury deliberated for 20-25 minutes, defense counsel became aware that the jurors had these papers in their possession, yet he failed to call the situation to the attention of the court. The court stated that the rule is that when knowledge of the irregularity is made known in time for the court to remedy or correct it, a party may not sit by in silence, taking chances of a favorable verdict, and after a hostile verdict, for the first time, be heard to complain (137 Cal. App. 2d 748, 769).
155.113 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Moving Party's Declarations or Affidavits Not Supported by Competent Evidence
[1]--FORM


[Caption. See 155.60[1]. ]

THE COURT SHOULD DENY THE MOTION FOR NEW TRIAL BECAUSE _________________ [PLAINTIFF'S or DEFENDANT'S] _________________ [DECLARATIONS or AFFIDAVITS] ARE PRIMARILY SUPPORTED BY INCOMPETENT EVIDENCE THAT SHOULD NOT BE CONSIDERED.

A. Incompetent Evidence. Incompetent evidence contained in the moving party's affidavits or declarations supporting his or her motion for new trial should not be considered by the trial court in ruling on the motion (see Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132 ).

[Optional ] B. Hearsay. Evidence presented by affidavit or declaration in connection with a motion for new trial, like oral testimony at trial, must be given from personal knowledge and cannot contain hearsay ( Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 105, 95 Cal. Rptr. 516, 485 P.2d 1132 ; Burns v. 20th Century Ins. Co. (1992) 9 Cal. App. 4th 1666, 1670, 1672, 12 Cal. Rptr. 2d 462 ).

[Optional ] C. Evidence of Mental Processes of Jurors. A new trial will not be granted on the ground of jury misconduct if the moving party's motion is supported by affidavits or declarations that are based on inadmissible evidence of the mental processes of jurors (see Evid. Code 1150(a)[Deering's] ; Aronowicz v. Nalley's, Inc. (1972) 30 Cal. App. 3d 27, 41, 106 Cal. Rptr. 424 ).

[Optional ] D. ``Mental Processes'' Include Misunderstanding of Law. Juror declarations are inadmissible when they at most suggest deliberative error in the jury's collective mental process; that is, confusion, misunderstanding, and misinterpretation of the law ( Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 1683, 12 Cal. Rptr. 2d 279 ).

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 on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. It may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.80 et seq.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the substantive law of evidence to show that the moving party's affidavits or declarations contain incompetent evidence that should not be considered by the court. Counsel may also desire to argue that the admissible evidence contained in the moving party's affidavits or declarations is either insufficient to show the alleged misconduct or to show that the moving party was prevented from having a fair trial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial on the ground of jury misconduct, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 326A, Jury Verdicts (Matthew Bender). For a discussion of new trials generally and an order denying the motion, see Ch. 371, Motions After Trial in that publication.
[3]--Discussion of Authorities
[a]--Incompetent Evidence
The factual and procedural background of Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 95 Cal. Rptr. 516, 485 P.2d 1132 , is discussed in 155.70[3][c]. Although the Supreme Court affirmed an order granting plaintiffs' motion for a new trial on the grounds of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] and jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ], it indicated that certain types of evidence contained in jurors' declarations were not admissible. The Court noted that hearsay evidence, if contained in a juror's declaration, is inadmissible (5 Cal. 3d 98, 105). The Court also indicated that only overt acts of jurors, as opposed to mental processes, may be shown by a juror's declaration under Evid. Code 1150(a)[Deering's] (5 Cal. 3d 98, 111).
[b]--Hearsay
The factual and procedural background of Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal. 3d 98, 95 Cal. Rptr. 516, 485 P.2d 1132 , is discussed in 155.70[3][c], and in [a], above. Although the Supreme Court affirmed an order granting plaintiffs' motion for a new trial on the grounds of irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] and jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ], it stated that evidence presented by affidavit in connection with a motion for new trial, like oral testimony at trial, must be given from personal knowledge and cannot contain hearsay (5 Cal. 3d 98, 105). The Court stated, however, that since the trial court did not grant defendants' motion to strike certain portions from the juror's affidavit, it impliedly determined that the testimony was not hearsay. The Court added that it could not say that the lower court's conclusion was erroneous (5 Cal. 3d 98, 106).

In Burns v. 20th Century Ins. Co. (1992) 9 Cal. App. 4th 1666, 12 Cal. Rptr. 2d 462 , after trial in her action against her insurance company for bad faith, the plaintiff moved for a new trial based on juror misconduct. In support of the motion, the plaintiff submitted two declarations from her attorney's investigator purporting to recount his conversations with two jurors following the verdict. The declaration stated that the jurors informed him that they were insured by the defendant insurer and that they had never received treatment such as that described in the plaintiff's case. The trial court denied the motion and the plaintiff's appeal followed.

The court of appeal affirmed the judgment. The court cited the statutory rule that on an inquiry as to a verdict's validity, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, in or out the jury room, of such a character as is likely to have influenced the verdict improperly [ Evid. Code 1150(a)[Deering's] ]. Further, under Evid. Code 1200[Deering's] , except as provided by law, hearsay is inadmissible. The court stated that the only evidence the plaintiff submitted in support of her new trial motion consisted of the declarations from her attorney's investigator concerning the purported statements and thoughts of two jurors during their deliberations. The declarations, observed the court, were inadmissible hearsay (9 Cal. App. 4th 1666, 1670). The court held that the trial court did not abuse its discretion in denying the plaintiff's new trial motion. In so deciding, the court cited the Supreme Court's statement in People v. Williams (1988) 45 Cal. 3d 1268, 1318, 248 Cal. Rptr. 834, 756 P.2d 221 , that the determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears (9 Cal. App. 4th 1666, 1672).
[c]--Evidence of Mental Processes of Jurors
In Aronowicz v. Nalley's, Inc. (1972) 30 Cal. App. 3d 27, 106 Cal. Rptr. 424 , plaintiffs brought an action based on breach of contract and alternatively on the doctrine of promissory estoppel. After verdict was rendered for plaintiffs, defendant moved for a new trial on several grounds, including jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. Defendant alleged that the jury reached its verdict by chance and submitted defense counsel's declaration reciting a conversation that counsel had with a juror immediately after the verdict. The juror told counsel that the million dollar verdict was based on the assumption that there were about 100 shareholders in plaintiffs' corporation and one million dollars seemed about right for that number of shareholders. The juror further said that if the jury had known there were fewer shareholders, the verdict would have been less. When defendant's motion was granted, plaintiffs appealed the order.

The court of appeal reversed the order and affirmed judgment for plaintiffs, stating that so far as the matter set out in counsel's declaration is intended to show the mental processes by which the verdict was reached, the declaration is inadmissible under Evid. Code 1150[Deering's] . The court added that counsel's declaration contained the rankest kind of hearsay and that the matter recited did not show that the verdict was reached by chance. After considering other potential grounds for a new trial, the court reversed the order (30 Cal. App. 3d 27, 41).
[d]--``Mental Processes'' Include Misunderstanding of Law
In Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 12 Cal. Rptr. 2d 279 , the plaintiff brought an action against a county and deputy sheriff for battery and violation of her civil rights when the defendant deputy sheriff allegedly twisted her arm behind her back, administered a ``compliance hold,'' and forced her to the ground. The incident occurred when the plaintiff did not present satisfactory identification as she attempted to leave a prison after a video arraignment with her client. At trial, the jury awarded the plaintiff damages for the tortious conduct and the county moved for new trial and/or judgment notwithstanding the verdict. The trial court denied the county's motion, and the defendants appealed from the judgment entered on the jury's verdict.

The court of appeal affirmed. The county contended that because of juror misconduct, the trial court was required to grant its new trial motion on the battery cause of action. Specifically, the county submitted declarations by six jurors in support of its motion stating that during the deliberations they, and other jurors, defined a ``battery'' as contact that is intentional or unlawful or harmful or offensive. This definition conflicted with the court's instruction which provided that a battery is any intentional, unlawful and harmful or offensive contact by one person with the person of another (9 Cal. App. 4th 1677, 1682-1683). The court stated that although jurors may testify to overt acts, that is, statements, conduct, conditions, or events open to sight, hearing, and the other senses and thus subject to corroboration, they may not testify to the subjective reasoning processes of the individual juror. Likewise, stated the court, evidence about a jury's subjective collective mental process purporting to show how the verdict was reached is inadmissible to impeach a jury verdict. Thus, juror declarations are inadmissible when they at most suggest deliberative error in the jury's collective mental process; that is, confusion, misunderstanding, and misinterpretation of the law (9 Cal. App. 4th 1677, 1683). The county attempted to avoid the impact of these rules by focusing on the fact that several of the jurors communicated their misunderstanding of the instructions during deliberations. However, the subjective quality of one juror's reasoning is not purged by the fact that another juror heard and remembers the verbalization of that reasoning. To hold otherwise would destroy the rule that clearly prohibits the upsetting of a jury verdict by assailing these subjective mental processes. It would also restrict the free exchange of ideas during the jury's deliberations (9 Cal. App. 4th 1677, 1683-1684).
[4]--Additional Authorities
[a]--Evidence of Mental Processes of Jurors
Worden v. Gentry (1975) 50 Cal. App. 3d 600, 123 Cal. Rptr. 496 , was an action for personal injuries in which the court of appeal reversed plaintiff's motion for a new trial that was made on several grounds, including misconduct of the jury. The court stated that the declaration of counsel filed with the motion was merely hearsay as to the jurors' alleged prejudice based on feelings against police officers, and the lower court properly concluded that it was an impermissible attempt to impeach the jury's verdict and mental processes; thus, the declaration could not be considered in support of the motion for new trial (50 Cal. App. 3d 600, 606-607).

Cove, Inc. v. Mora (1985) 172 Cal. App. 3d 97, 218 Cal. Rptr. 7 , was an action concerning the breach of a lease and related matters. The court of appeal reversed an order granting a new trial to defendants that was based on declarations by jurors stating that the jury had rewarded compensatory damages on a nonexistent legal theory. The court held that the declarations were insufficient to impeach the verdict because they concerned the jurors' beliefs and intents at the time they rendered the verdict, and were not based on improper influences open to sight, hearing, and the other senses subject to corroboration (172 Cal. App. 3d 97, 100-103).

In Maple v. Cincinnati, Inc. (1985) 163 Cal. App. 3d 387, 209 Cal. Rptr. 451 , the court of appeal reversed the trial court's granting of plaintiff's motion for new trial on the ground of jury misconduct after verdict for defendant in a personal injury action. The court of appeal reasoned that the trial court erred in considering the jurors' oral testimony, because an application for a new trial must be on the basis of affidavits or declarations [see Code Civ. Proc. 657(2)[Deering's] ] (163 Cal. App. 3d 387, 392). The court further held that the decision was improperly based on the trial judge's subjective determination that the jurors failed to correctly analyze the case, rather than on objective evidence of a verdict arrived at by lot or chance (163 Cal. App. 3d 387, 393-394).
155.114 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Juror's Experiment Was Within Lines of Evidence Offered at Trial
[1]--FORM


[Caption. See 155.60[1]. ]

THE COURT SHOULD DENY THE MOTION FOR NEW TRIAL BECAUSE THE JUROR'S EXPERIMENT WAS WITHIN THE LINES OF EVIDENCE OFFERED AT TRIAL AND WAS CONSISTENT WITH THE EVIDENCE PRESENTED THEREIN; THUS, _________________ [PLAINTIFF or DEFENDANT] WAS NOT DEPRIVED OF A FAIR TRIAL AND HIS/HER/ITS SUBSTANTIAL RIGHTS WERE NOT MATERIALLY AFFECTED.

Experiment by Juror. A new trial will not be granted if a juror carries out experiments within the lines of evidence offered at trial if the experiment is consistent with the evidence presented therein ( Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 657, 115 P. 313 ; Wagner v. Doulton (1980) 112 Cal. App. 3d 945, 950, 169 Cal. Rptr. 550 ).

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] based on a juror's conduct in carrying out experiments to test certain evidence offered at trial. This form may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.83.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the nature of the juror's experiment, showing that it was within the lines of the evidence offered at trial and was consistent with that evidence. Counsel should also argue that the moving party was not deprived of a fair trial and that his or her substantial rights were not materially affected by the juror's experiment.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and other supporting papers, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Experiment by Juror
The factual and procedural background of Higgins v. L.A. Gas & Electric Co. (1911) 159 Cal. 651, 115 P. 313 , is discussed in 155.83[3][c]. During deliberation, the jury was allowed to examine a flashlight that was similar to the one lost in a gas explosion allegedly caused by defendant gas company's negligence. After verdict was rendered for plaintiff, defendant moved for a new trial on the basis of the jury's allegedly prejudicial use of the flashlight in its deliberation. When the motion was granted, plaintiff appealed the order.

The Supreme Court reversed the order because it found that defendant was not prejudiced by the jury's use of the flashlight. The Court stated that the fundamental rule is that all evidence must be taken in open court and that each party to a controversy must have knowledge of, and thus be enabled to meet and answer, any evidence brought against that party. Jurors may use exhibits to aid in weighing the evidence that has been given and in reaching a conclusion on a controverted matter. They may carry out experiments within the lines of offered evidence. However, if these experiments invade new fields and influence the jury's verdict, then the jury has taken evidence without the knowledge of either party, evidence that the injured party could not meet, answer, or explain (159 Cal. 651, 656-657). In this case, though the trial judge concluded that he had committed an error in allowing the jury to experiment with the exhibit without limiting the scope of its experiments by proper instruction, the Supreme Court found that the defendant could not have been injured by the improper experiment. Even if the explosion were caused by the tenant's oil stove, the landlord plaintiff's action could not be defeated by the tenant's contributory negligence. Thus, if it were established that the concurrent negligence of the gas company and the tenant united to produce the injury to the property, the landlord would have recourse against the gas company or tenant. Therefore, the Court stated that the finding that the spark from the flashlight caused the explosion, even if erroneous, or erroneously arrived at, could not have worked injury to the defendant, and a new trial was not necessary (159 Cal. 651, 660-661).

The factual and procedural background of Wagner v. Doulton (1980) 112 Cal. App. 3d 945, 169 Cal. Rptr. 550 , is discussed in 155.83[3][c]. During the jury's deliberations, a juror, who was also an engineer, prepared a scale map of the accident location. After verdict for defendants, plaintiff moved for a new trial on the basis of the juror's presentation of extrajudicial evidence during jury deliberations. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, noting that the denial of the motion was proper. The court stated that it was not misconduct for a juror to make a diagram that was based solely on the evidence received in court. It restated the basic rule that jurors may not receive evidence out of court and may not conduct experiments that put them in possession of evidence not offered at trial. However, the juror's affidavit revealed that he had prepared the map in the jury room using evidence obtained at trial. The court stated that the diagram that the juror prepared was a pictorial representation of his idea of the testimony he heard during trial. The fact that the juror was an engineer and was perhaps more skillful at drawing diagrams made no difference since each juror's discussion of the case is necessarily tinged or affected by his or her own viewpoint or experience. Accordingly, the court affirmed the judgment (112 Cal. App. 3d 945, 950-951).
[4]--Additional Authorities
[a]--Experiment by Juror
The facts and procedural background of Locksley v. Ungureanu (1986) 178 Cal. App. 3d 457, 223 Cal. Rptr. 737 , are discussed in 155.110[4][a]. The court of appeal affirmed the trial court's denial of plaintiff's motion for a new trial on the ground of juror misconduct. Plaintiff based his motion on the fact that a juror experimented by driving with one eye shut because defendant had only one good eye. The court held that it was not at all clear that the juror's actions were an impermissible experiment, and thus misconduct, as the actions did not invade a new field. They were merely an experiment on an issue within the evidence, to wit, the ability of a one-eyed individual to drive (178 Cal. App. 3d 457, 461).

In People v. Phillips (1981) 122 Cal. App. 3d 69, 175 Cal. Rptr. 703 , defendant was convicted of murdering one of her two adopted children and willfully endangering the life and health of the other. Defendant allegedly poisoned her children with sodium bicarbonate in their formula. The court of appeal affirmed the judgment, noting the propriety of an order denying defendant a new trial on the ground that a juror had engaged in misconduct by conducting an at-home experiment involving the solubility of sodium bicarbonate in water. The court stated that defendant was not adversely affected by the experiment since the experiment was consistent with evidence presented at trial, related to a matter of fairly common knowledge, and was tangential rather than critical to the case (122 Cal. App. 3d 69, 80-81).
155.115 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Verdict Was Not Obtained by Chance
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE THE JURY'S VERDICT IS NOT A CHANCE VERDICT.

A. Verdict Not Chance Verdict. A verdict that is reached without the operation of any unknown force or unexplainable cause, but which required the exercise of the judgment of each juror, is not a chance verdict, even though some jurors may have reached a decision by methods other than weighing the evidence and may have based considerations on other than his or her opinion of the proper amount of damages to be awarded ( Mirabito v. San Francisco Dairy Co. (1934) 1 Cal. 2d 400, 404, 35 P.2d 513 ).

[Optional ] B. Jury Votes on Two Known Sums and Agrees to Accept One. A jury verdict that is reached by the jurors voting on two known sums, while agreeing to accept the sum that receives the most votes, is not a chance verdict for which a new trial may be granted ( Mirabito v. San Francisco Dairy Co. (1934) 1 Cal. 2d 400, 404, 35 P.2d 513 ).

[Optional ] C. Subsequent Discussion of Quotient Verdict. A quotient verdict, obtained by taking the average of sums voted by the jurors, does not constitute a chance verdict if the jurors adopted the sum after subsequent discussion and were not bound to accept the sum without further consideration ( Bardessono v. Michels (1970) 3 Cal. 3d 780, 795, 91 Cal. Rptr. 760, 478 P.2d 480 ; City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 434-435, 82 Cal. Rptr. 1 ).

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] on the basis of the jury's rendition of a verdict allegedly obtained by chance. This form may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.84.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the manner in which the jury reached its verdict to show that the verdict rendered was not reached by chance. Counsel may desire to include affidavits or declarations of jurors to show, for example, that the jurors discussed the verdict and were not bound to accept the sum without further consideration. The affidavits of declarations may include evidence of overt acts of the jurors and cannot discuss the mental processes by which the jurors reached their verdict [see Evid. Code 1150(a)[Deering's] ].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial and other supporting papers, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Verdict Not Chance Verdict
The factual and procedural background of Mirabito v. San Francisco Dairy Co. (1934) 1 Cal. 2d 400, 35 P.2d 513 , is discussed in 155.84[3][b]. In that case, the Supreme Court affirmed judgment for plaintiff, noting that the order denying defendants' motion for a new trial was proper. During deliberations, the jury voted on two known sums and agreed to accept the figure that received the majority of votes as its verdict. The Court felt that this manner of arriving at a verdict involved no operation of any unknown force or unexplainable cause, but required an exercise of the judgment of each juror. The Court stated that each juror, by an act of conscious volition, participated in the determination of the amount of the verdict even though he or she may have reached a decision by other methods than weighing the evidence and may have based his or her judgment on considerations other than an opinion of the proper amount of damages to be awarded. The Court held that the jury's manner of arriving at the verdict did not involve a resort to the determination of chance (1 Cal. 2d 400, 404).
[b]--Jury Votes on Two Known Sums and Agrees to Accept One
The factual and procedural background of Mirabito v. San Francisco Dairy Co. (1934) 1 Cal. 2d 400, 35 P.2d 513 , is discussed in 155.84[3][b] and in [a], above. While deliberating, the jurors could not decide on the amount of damages to award plaintiff in a personal injury action. Therefore, they decided to vote on two known sums and agreed to accept the sum that received a majority of votes as its unanimous verdict. When the sum of $5,000 received the most votes, the jurors accepted it without further discussion. The Supreme Court affirmed judgment for plaintiff and an order denying defendants' motion for a new trial made on several grounds, including jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. The Court stated that the manner of arriving at a verdict involved no operation of any unknown force or unexplainable cause, but required an exercise of the judgment of each juror. Hence, the Court concluded that the verdict was not a chance verdict (1 Cal. 2d 400, 404).
[c]--Subsequent Discussion of Quotient Verdict
In Bardessono v. Michels (1970) 3 Cal. 3d 780, 91 Cal. Rptr. 760, 478 P.2d 480 , plaintiff brought a medical malpractice action against an orthopedic surgeon. After verdict for plaintiff, defendant moved for a new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. Defendant alleged that the jury had arrived at its verdict by adding to a total sum the damages favored by each of the 12 jurors and then dividing that total sum by 12 to reach a final decision. Plaintiff, however, produced the testimony of two jurors indicating that the jurors had not agreed that they would be bound by the figure arrived at by this quotient method, and that the jurors later revised the quotient figure and ultimately agreed on the revised damages. When defendant's motion for a new trial was denied, she appealed the judgment.

The Supreme Court affirmed the judgment, noting that the order denying the motion for a new trial was proper. The Court stated that a quotient verdict does not necessarily constitute a chance verdict, provided that the average sum which is thus procured is not adopted without subsequent consideration or balloting by the jurors. If, after a quotient figure is obtained, the jurors discuss and ballot on the adoption or rejection of that sum, it is conclusive evidence that they were not bound by a previous agreement to accept it without further consideration. The Court stated that the foregoing rule applied to this case and that it would not disturb the findings of the trial court in the absence of a clear abuse of discretion. The Court felt that the trial judge was familiar with the evidence, witnesses, and proceedings and was in the best position to determine whether, in view of all the circumstances, justice demanded a retrial. Since the Court did not find any abuse of discretion, it upheld the trial court's denial of the motion for new trial (3 Cal. 3d 780, 794-796).

The factual and procedural background of City of Pleasant Hill v. First Baptist Church (1969) 1 Cal. App. 3d 384, 82 Cal. Rptr. 1 , is discussed in 155.82[3][e]. After judgment for defendant church in an eminent domain action, plaintiff city moved for a new trial on several grounds, including jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. The affidavit of one juror indicated that in determining severance damages, the jurors pooled or averaged their respective opinions as to value, and pursuant to prior agreement, they returned that sum as compensation for the damages to the remaining property. On the other hand, 11 jurors averred that there was no agreement that the jurors would be bound by the figure arrived at after adding the figures and dividing by 12, and that they voted on the figure later. When plaintiff's motion for a new trial was denied, it appealed the judgment.

The court of appeal affirmed the judgment, stating that the situation was governed by the rule of Balkwill v. City of Stockton (1942) 50 Cal. App. 2d 661, 670-672, 123 P.2d 596 . In Balkwill, the court stated that a quotient verdict does not necessarily constitute a chance verdict, provided that the average sum which is procured is not adopted without subsequent consideration or balloting by the jurors. If, after a quotient figure is obtained, the jurors discuss and ballot on the adoption or rejection of the sum, it is conclusive evidence that they were not bound by previous agreement to accept it without further consideration. In the Pleasant Hill case, the court of appeal felt that the trial court's determination that the facts lay within this rule was binding on it, and it therefore upheld the trial court's denial of the motion for new trial (1 Cal. App. 3d 384, 434-435).
[4]--Additional Authorities
[a]--Subsequent Discussion of Quotient Verdict
Will v. Southern Pacific Co. (1941) 18 Cal. 2d 468, 116 P.2d 44 , was a wrongful death action in which the Supreme Court reversed an order granting defendant's motion for a new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. After averaging the amount that each juror submitted as proper damages, the jurors discussed the average amount in detail. The Court stated that it was not improper for jurors to calculate an average amount as a basis for discussion if there is a later consideration of the amount and a vote on it. Since the jurors discussed the average amount at length and the amount awarded was $1,000 less than the final average computed, the Court reversed the order granting a new trial (18 Cal. 2d 468, 477-478).

Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal. App. 3d 581, 94 Cal. Rptr. 200 , was a negligence action in which the court of appeal affirmed judgment for plaintiff against one defendant and the denial of that defendant's motion for a new trial on the ground of jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ]. In reaching a damages award, the jurors averaged an amount that each juror submitted on paper. However, their affidavits were in conflict on whether or not they had agreed to be bound in advance by this figure. The court of appeal stated that a quotient verdict does not necessarily constitute a chance verdict, provided that the average sum which is procured is not adopted without subsequent consideration or balloting by the jurors. The court of appeal declined to disturb the trial court's determination that the jurors had not agreed to be bound by the quotient amount (16 Cal. App. 3d 581, 605).

Glass v. Gulf Oil Corp. (1970) 12 Cal. App. 3d 412, 89 Cal. Rptr. 514 , was a slander of title action in which the court of appeal affirmed judgment for plaintiffs, noting that an order denying defendants' motion for new trial on grounds including irregularity in the proceedings of the jury [ Code Civ. Proc. 657(1)[Deering's] ] and misconduct of the jury [ Code Civ. Proc. 657(2)[Deering's] ] was proper. Three jurors averred that in determining the amount of punitive damages, each juror gave a figure and the sum of the figures was divided by 12. The average came to $6,300 and was rounded off to $6,500. The court stated that it is not improper for jurors to calculate an average amount as a basis for discussion if there is a later consideration of the amount and a vote on it. Since the court found evidence of a discussion after the averaging had been done, it agreed with the lower court's denial of the motion (12 Cal. App. 3d 412, 435-436)
155.116 Opposing Motion for New Trial [Code Civ. Proc. 659]--Juror Misconduct [Code Civ. Proc. 657(2)]--Moving Party Has No Right to Compel Jurors to Discuss Issues
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED, EVEN THOUGH THE JURY DID NOT DISCUSS THE _________________ [ISSUES or ISSUE OF _________________ (identify specific issue moving party contends was decided without discussion during deliberations)] BECAUSE _________________ [identify party, e.g., PLAINTIFF] HAS NO RIGHT TO COMPEL JURORS TO DISCUSS ISSUES WHICH THEY HAVE CHOSEN TO DECIDE WITHOUT DISCUSSION.

Moving Party Has No Right to Compel Jurors to Discuss Issues. A party's constitutional right to have his or her case decided by a jury does not include the right to compel jurors to discuss issues which they have chosen to decide without discussion ( Vomaska v. City of San Diego (1997) 55 Cal. App. 4th 905, 911, 64 Cal. Rptr. 2d. 492 ).

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 jury misconduct [ Code Civ. Proc. 657(2)[Deering's] ] on the basis of the jury's rendition of a verdict allegedly rendered because of improper communications, by failing to discuss an issue during deliberations. This issue may arise when the jury has returned with what may be considered a quick verdict.

This form may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.82.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show that the lack of discussion by the jury was a result of the jury's choice not to discuss the issue.

If appropriate, counsel may point to the absence of facts in the moving papers showing that the jury did not have an opportunity to view any specific evidence before retiring for deliberations, or of any overt conduct or statements showing jurors failed to properly perform their duties to pay attention during trial and consider all the evidence presented or that any jurors were compelled to render a vote before they were ready to do so [see Vomaska v. City of San Diego (1997) 55 Cal. App. 4th 905, 911, 64 Cal. Rptr. 2d. 492 , discussed in [3][a], below].

Counsel may desire to include affidavits or declarations of jurors to show, for example, that the jurors discussed the verdict and were not bound to accept, without further consideration, the sum prayed for by the moving party. The affidavits of declarations may include evidence of overt acts of the jurors and cannot discuss the mental processes by which the jurors reached their verdict [see Evid. Code 1150(a)[Deering's] ].
[3]--Discussion of Authorities
[a]--Moving Party Has No Right to Compel Jurors to Discuss Issues
Vomaska v. City of San Diego (1997) 55 Cal. App. 4th 905, 64 Cal. Rptr. 2d. 492 , involved an action for personal injuries against a city defendant. The trial court rendered a judgment in favor of the city after a jury verdict finding no dangerous condition on public property where the plaintiff was seriously injured. The plaintiff filed a motion for a new trial, supported by five juror declarations, showing that the bailiff was informed that the jury had reached a verdict after retiring to the jury deliberation room for about 10 to 15 minutes. At the time of the announcement, exhibits had not yet been brought into the jury room. After the jury selected a foreperson, the foreperson suggested everyone write their vote on separate pieces of paper as to the first question asking whether the public property was in a dangerous condition. After adding up the votes, the foreperson announced there were 10 ``no'' votes and 2 ``yes'' votes; he then said ``that's it;'' and without further discussion, he filled out and signed the special verdict form. The jurors did not discuss their individual views before the special verdict form was filled out and signed.

At trial, the jury was given BAJI instruction 15.30, telling them, ``[e]ach of you must decide the case for yourself, but should do so only after considering the views of each juror.'' The motion for new trial was denied and the plaintiff appealed from the judgment, arguing that the judgment should be reversed because, among other contentions, the jury failed to deliberate an issue they were bound to consider.

The court of appeal affirmed the judgment. The court stated that discussion of the case, as instructed by the BAJI instructions, would be the preferred procedure so as to ensure the jury carefully considered the evidence and its possible varying interpretations. The court was not persuaded, however, that a party's constitutional right to have his or case decided by a jury includes the right to compel jurors to discuss issues which they have chosen to decide without discussion (55 Cal. App. 4th 905, 911). The court observed that the jurors took a straw vote to see how they each viewed the issue, and when that vote revealed 10 jurors were in agreement, they decided to render a verdict rather than discuss the issue further. The court concluded that this procedure is a type of ``deliberations,'' in that each juror, having considered the evidence and arguments independently, is setting forth his or her opinion, albeit without accompanying reasons or explanations (55 Cal. App. 4th 905, 912). The court quoted from an opinion of another state: ``While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, yet, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict without retiring, or on very brief deliberation after retiring, although the trial court may, in its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties.'' The court concluded that the affidavits on their face did not show a flippant disregard, and the trial court apparently had not observed any such disregard (55 Cal. App. 4th 905, 913).

The court noted that this is not a case in which the jury does choose to discuss a case, in which situation each juror must have the opportunity to participate equally in all discussions in order to satisfy the constitutional right to trial by jury. Regarding the contention that the verdict was rendered before the exhibits, including photographs of the accident scene, were delivered to the jury room, the court cited the fact that the jury visited the scene of the accident themselves, and thus had ample opportunity to consider the import of the photographs. In addition, no argument was made that the jury did not have an opportunity to view any specific pertinent exhibit prior to retiring for deliberations. Nor was there any indication of any overt conduct or statements showing jurors failed properly to perform their duties to pay attention during trial and consider all the evidence presented or that any jurors were compelled to render a vote before they were ready to do so. The jurors were polled in open court as to their individual votes, and all answered without equivocation (55 Cal. App. 4th 905, 912).
155.117-155.129 [Reserved]

3 Misconduct of Adverse Party or Counsel
155.130 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Adverse Party
[1]--FORM


[Caption. See 155.50[1]. ]

A NEW TRIAL SHOULD BE GRANTED BECAUSE THERE WAS AN IRREGULARITY IN THE PROCEEDINGS OF THE ADVERSE PARTY, CONSISTING OF THAT PARTY'S MISCONDUCT, 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 Irregularity in Proceedings of Adverse Party. 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 adverse party 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. Overt Acts of Adverse Party. An overt act of the adverse party, violating the right to a fair and impartial trial and amounting to misconduct, may be regarded as an irregularity for which a new trial may be granted (see Gray v. Robinson (1939) 33 Cal. App. 2d 177, 182, 91 P.2d 194 ).

[Optional ] C. Admonishing Instruction Not Obviating Prejudicial Effect. The court may grant a new trial for irregularity in the proceedings of the adverse party although the jury was admonished to disregard the irregularity, if it appears that the admonition did not obviate the prejudicial effect ( Baroni v. Rosenberg (1930) 209 Cal. 4, 6-7, 284 P. 1111 ).

[Optional ] D. One Party Misled by Act of Other. Whenever one party is misled to his or her prejudice by the act of the other, justice demands that a new trial be granted ( Pinkham & McDonough v. McFarland & Elrod (1855) 5 Cal. 137 ).

[Optional ] E. Prevention of Full Presentation of Evidence. Any misconduct of a party to an action that prevents full presentation to the court or jury of evidence material to the other party's cause, thus preventing a fair trial, is an irregularity for which a new trial may be granted ( Piercy v. Piercy (1906) 149 Cal. 163, 166, 86 P. 507 ).

[Optional ] F. Witness Induced to Give False Evidence. When an adverse party has induced a witness to give false evidence on matters material to the case, thereby preventing a fair trial, a new trial should be granted ( Smith v. Mitchell (1923) 64 Cal. App. 463, 469, 221 P. 964 ).

[Optional ] G. Intentional Misconduct of Party in Courtroom. Intentional misconduct of a party in the courtroom, such as a simulated fainting spell or collapse, that has aroused the sympathy of the jury and influenced the verdict may be an irregularity in the proceedings of the adverse party for which a new trial may be granted (see Fonts v. Southern Pacific Co. (1916) 30 Cal. App. 633, 637-638, 159 P. 215 ).

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on a party's misconduct.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of the opposing party's misconduct, showing how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights.
[c]--Supporting Declarations or Affidavits Required
A motion for new trial made on the ground of irregularity in the proceedings of the adverse party 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 ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[e]--Opposing Points and Authorities
The points and authorities set out in 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Overt Acts of Adverse Party
In Gray v. Robinson (1939) 33 Cal. App. 2d 177, 91 P.2d 194 , plaintiffs brought a personal injury action for damages resulting from an automobile accident. After judgment for plaintiffs, defendants were granted a new trial on the basis of misconduct of the jury and irregularity in the proceedings by which defendants were prevented from having a fair trial. The court of appeal affirmed the order, stating that there was no evidence that the trial court abused its discretion in granting the motion for a new trial (33 Cal. App. 2d 177, 185). It defined an irregularity as an overt act of the trial court, jury, or adverse party, violating the right to a fair and impartial trial and amounting to misconduct (33 Cal. App. 2d 177, 182). The court felt that the injection by plaintiffs' counsel of the fact that defendants carried liability insurance, coupled with the concealed bias of a juror on voir dire, may have resulted in prejudice to the rights of the defendants. Therefore, the granting of defendants' motion for a new trial was proper (33 Cal. App. 2d 177, 182-185).
[b]--Admonishing Instruction Not Obviating Prejudicial Effect
In Baroni v. Rosenberg (1930) 209 Cal. 4, 284 P. 1111 , plaintiff brought a personal injury action for injuries sustained when he was struck by defendant's dump truck. During trial, defendant's counsel falsely stated that plaintiff was to receive Workers' Compensation for the rest of his life. After verdict for defendant, plaintiff's motion for new trial was granted.

The Supreme Court affirmed the order on the basis of counsel's prejudicial misconduct (209 Cal. 4, 5-7). Although the court admonished the jury to disregard counsel's remarks, the harm was done and the court had no power to wipe away the false concept of the situation imprinted on the minds of the members of the jury. The remark was properly assigned as misconduct and, despite the admonition, was still prejudicial (209 Cal. 4, 6). The absolutely erroneous statement that plaintiff would get compensation as long as he lived was flatly made by defendant's counsel and correct information regarding the method of rating disabilities was not and could not be given to the jury (209 Cal. 4, 6-7). The Court stated that there was ample justification for the exercise of the trial court's discretion in granting a new trial (209 Cal. 4, 7).
[c]--One Party Misled by Act of Other
In Pinkham & McDonough v. McFarland & Elrod (1855) 5 Cal. 137 , defendants were sued as the makers of two promissory notes. The notes were regularly endorsed to plaintiffs. Defendants' answer admitted the genuineness and execution of the notes but alleged that plaintiffs were not the legal holders of the notes. At trial, plaintiffs offered the notes and rested. Defendants moved for a nonsuit on the ground that plaintiffs had not proved the genuineness of the endorsements. The trial court granted the nonsuit. On appeal, the Supreme Court granted a new trial, stating that the plaintiffs had been misled by the acts of the defendants and that justice required that a new trial should be granted (5 Cal. 137, 138). The endorsements of the notes were not denied with sufficient certainty by defendants' answers. If defendants intended to deny the genuineness of the endorsements, they should have objected to the introduction of the notes in evidence (5 Cal. 137, 137-138).
[d]--Prevention of Full Presentation of Evidence
In Piercy v. Piercy (1906) 149 Cal. 163, 86 P. 507 , plaintiff brought an action to set aside a deed purporting to convey real property from her to defendant. Plaintiff alleged that the deed had been obtained from her by defendant by means of undue influence and ignorance on her part as to the contents of the deed. After judgment for defendant, plaintiff moved for a new trial on the basis of irregularities in the proceedings of the adverse party [ Code Civ. Proc. 657(1)[Deering's] ]. Plaintiff alleged that through the wrongful procurement of defendant, the case was tried as a mere formal matter without any full presentation of plaintiff's case, since those representing her at trial, a guardian ad litem and his attorney, had the understanding that the transaction between the parties was entirely regular and valid and that the real object of the trial was to dispose of any question of the validity of the deed and to confirm title in defendant. The motion for new trial was granted, and defendant appealed the order.

The Supreme Court affirmed the granting of the order, stating that any misconduct of a party to an action that prevents a full presentation to the court or jury of evidence material to the other party's cause is an irregularity for which a new trial may be granted (149 Cal. 163, 166). The direct effect of the irregularity was that certain material evidence in support of plaintiff's claim was not presented. The trial court, having heard and seen the witnesses at trial and having knowledge of the circumstances of the case, is in a better position than the appellate court to determine the effect of the irregularity on the result of the trial. However, the Court felt that there was sufficient evidence to justify the finding of misconduct on the part of the defendant. Although the Court felt that it was true that there was a conflict in the evidence, the Supreme Court cannot interfere with the trial court's determination when there is substantial evidence to support the conclusion reached (149 Cal. 163, 166).br> [e]--Witness Induced to Give False Evidence
In Smith v. Mitchell (1923) 64 Cal. App. 463, 221 P. 964 , plaintiff sued to recover damages for the alienation of his wife's affections by defendant. During trial, plaintiff's wife was the most important witness for defendant. She denied the material parts of her husband's testimony and testified that defendant had in no manner influenced her conduct toward her husband or caused her to lose affection for him. After verdict for defendant, plaintiff's motion for a new trial on the ground of irregularity in the proceedings of the adverse party and error in law was granted. The court of appeal affirmed the order on the ground of defendant's misconduct. Plaintiff's wife stated in an affidavit that she was induced by defendant to testify falsely. She revealed that at the time of trial she was under defendant's dominion and influence to such an extent that by reason of his persuasion, promises, and influence she testified falsely regarding facts material to the case (64 Cal. App. 463, 465). When a party to an action induces a witness to give perjured testimony in matters material to the case, he or she thereby prevents the other party from having a fair trial. The uncontradicted evidence presented at the hearing of the motion for a new trial entitled plaintiff to a retrial (64 Cal. App. 463, 469).
[f]--Intentional Misconduct of Party in Courtroom
In Fonts v. Southern Pacific Co. (1916) 30 Cal. App. 633, 159 P. 215 , plaintiff brought an action for personal injuries sustained while in the employment of defendant. During trial, plaintiff, while on the witness stand, lost consciousness and fell from his chair. After judgment for plaintiff, defendant moved for a new trial, contending that the fainting episode excited the sympathy of the jury and influenced their verdict. However, the defendant's motion was denied.

The court of appeal affirmed the judgment and order, stating that it did not feel that the jury's verdict was influenced by plaintiff's conduct. The presumption is that the jury regarded its oath and determined the cause according to the law and the evidence. The granting of a new trial in consequence of the unavoidable illness of the plaintiff, sudden though it be and in the presence of the jury, would certainly be something novel in the history of judicial proceedings. However, the court noted that if there had been simulation on the part of the plaintiff or other intentional misconduct, the case would be obviously different (30 Cal. App. 633, 638).
[4]--Additional Authorities
[a]--Admonishing Instruction Not Obviating Prejudical Effect
The factual and procedural background of Hoffman v. Brandt (1966) 65 Cal. 2d 549, 55 Cal. Rptr. 417, 421 P.2d 425 , is discussed in 155.132[3][a], [b]. The Supreme Court reversed the judgment for defendant and ordered a new trial on the basis of defense counsel's misconduct. Even though the plaintiff objected to the prejudicial statement made by defense counsel, the court stated that the trial court's equivocal admonition did not cure the error (65 Cal. 2d 549, 553).

The factual and procedural background of Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal. App. 3d 600, 136 Cal. Rptr. 787 , is discussed in 155.132[3][b]. The court of appeal affirmed defendant's order granting a partial new trial on the issue of damages on the basis of prejudicial misconduct by plaintiff's counsel. The fact that counsel for respondent failed to take timely exception to the prejudicial remarks is not to be considered in determining whether the trial court has abused its discretion in granting a new trial. To hold otherwise would mean that the trial court, by reason of the action of the parties, would be powerless to correct an obvious miscarriage of justice (67 Cal. App. 3d 600, 604-605).

The factual and procedural background of Love v. Wolf (1964) 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 , is discussed in 155.133[3][a]. The court of appeal reversed judgment for plaintiff in a malpractice action and ordered a new trial even though defendant did not always object to counsel's misconduct or ask that the jury be admonished. It stated that multiple objections have a tendency to alienate a jury's goodwill. Error may be cured by admonishing the jury when the error is isolated and unemphasized, but an attempt to rectify repeated and resounding misconduct is ``like trying to unring a bell'' (226 Cal. App. 2d 378, 392).
155.131 Supporting Motion for New Trial [Code Civ. Proc. 659] --Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--General Form
[1]--FORM


[Caption. See 155.60[1]. ]

A NEW TRIAL SHOULD BE GRANTED BECAUSE THERE WAS AN IRREGULARITY IN THE PROCEEDINGS OF THE ADVERSE PARTY, CONSISTING OF COUNSEL'S MISCONDUCT, 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 Irregularity in Proceedings of Adverse Party. [See 155.130[1], Paragraph A.]

B. Overt Acts of Adverse Party. [See 155.130[1], Paragraph B.]

C. Influence on Jury's Verdict. Misconduct of counsel results in a miscarriage of justice for which a new trial may be granted when it fairly appears, all of the evidence considered, that the irregularities complained of, in all probability, largely influenced the jury in arriving at its verdict ( Cote v. Rogers (1962) 201 Cal. App. 2d 138, 144, 19 Cal. Rptr. 767 ).

[Optional ] D. Admonishing Instruction Not Obviating Prejudicial Effect. [See 155.130[1], Paragraph C.]

[Add additional points and authorities, if appropriate, supporting the contention that there was an irregularity in the proceedings of the adverse party consisting of counsel's misconduct (see, e.g., 155.132 et seq.).]

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on the misconduct of opposing counsel. It is a general form that may be used alone or in conjunction with forms containing points and authorities relating to specific factual situations [see, e.g., 155.132 et seq.].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of opposing counsel's misconduct, showing how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights.

A motion for new trial made 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 ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Influence on Jury's Verdict
The factual and procedural background of Cote v. Rogers (1962) 201 Cal. App. 2d 138, 19 Cal. Rptr. 767 , is discussed in 155.134[3][d]. The case involved defense counsel's alleged misconduct in using an inadmissible magazine article during trial of a wrongful death action. After judgment for defendants, plaintiff's motion for a new trial was denied. The court of appeal reversed the judgment and order denying a new trial, stating that misconduct of counsel results in a miscarriage of justice that furnishes ground for reversal when it fairly appears, from all of the evidence considered, that the irregularities complained of, in all probability, largely influenced the jury in arriving at its verdict (201 Cal. App. 2d 138, 144). In this case, the court felt that counsel's conduct warranted a new trial. The court stated that defense counsel might just as well have prepared a handbill containing the inadmissible evidence and taken it around to the homes of the jurors (201 Cal. App. 2d 138, 145).
[b]--Improper Argument by Counsel
The factual and procedural background of Love v. Wolf (1964) 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 , is discussed in 155.133[3][a]. The case involved alleged misconduct of plaintiff's counsel in vilifying defendant's counsel, in referring to defendant corporation's wealth, and in asking questions on cross examination that were designed to introduce matters that were not in evidence. The court of appeal reversed judgment for plaintiff and ordered a new trial on the basis of counsel's misconduct. The court stated that aggressive advocacy is not only proper, but desirable, and that long trials that are vigorously prosecuted and defended sometimes cause frayed tempers that lead to intemperate outbursts. However, in this case, counsel's conduct went beyond the limit. The misconduct here was intentional, blatant, and continuous from opening statement, throughout the trial, to closing argument (226 Cal. App. 2d 378, 393). It was committed by a seasoned and experienced trial lawyer, and the record left no doubt that it was carefully contrived and calculated to produce a result (226 Cal. App. 2d 378, 393-394). That sought-for result was to arouse and inflame the jury so that it would render a large verdict. The court noted that the verdict was an unusually large one. It was satisfied that the conduct was prejudicial and that justice miscarried (226 Cal. App. 2d 378, 394).
155.132 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--Improper Appeal to Prejudice or Sympathy of Jury
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the adverse party's counsel (see 155.131).]

A NEW TRIAL SHOULD BE GRANTED SINCE OPPOSING COUNSEL MADE AN APPEAL TO THE SYMPATHY OR PREJUDICE OF THE JURY THAT PREVENTED _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND THAT MATERIALLY AFFECTED HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Appeal to Sympathy or Prejudice of Jury. An appeal by opposing counsel to the sympathy or prejudices of the jury that is irrelevant to the issues of the case and that is calculated to produce a certain result, with that result being achieved, is an irregularity in the proceedings of the adverse party for which a new trial may be granted ( Hoffman v. Brandt (1966) 65 Cal. 2d 549, 552-553, 55 Cal. Rptr. 417, 421 P.2d 425 ; Deibler v. Wright (1931) 119 Cal. App. 277, 282-283, 6 P.2d 344 ).

[Optional ] B. Improper Comments Concerning Relative Wealth of Litigants. A deliberate attempt by counsel to appeal to the social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct warranting a new trial when the asserted wealth or poverty is not relevant to the issues of the case ( Hoffman v. Brandt (1966) 65 Cal. 2d 549, 552-553, 55 Cal. Rptr. 417, 421 P.2d 425 ; Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal. App. 3d 600, 606, 136 Cal. Rptr. 787 ).
[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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] on the basis of counsel's improper appeal to the prejudice or sympathy of the jury. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the basis of misconduct of counsel [see 155.131].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the improper appeal to the prejudice or sympathy of the jury and how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights. Counsel may refer to a reporter's transcript of the proceedings, and if used, counsel should attach relevant portions of the transcript to this memorandum.

A motion for new trial made 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 ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Appeal to Sympathy or Prejudice of Jury
In Hoffman v. Brandt (1966) 65 Cal. 2d 549, 55 Cal. Rptr. 417, 421 P.2d 425 , plaintiff, a 20-year-old woman, brought an action for personal injuries and property damage resulting from an automobile collision with defendant, a 69-year-old retired machinist. During closing argument, defendant's counsel commented on the age disparity, stating that a judgment for plaintiff would put defendant in Laguna Honda Home, a city and county home for the indigent. After verdict for defendant, plaintiff moved for a new trial, claiming that defense counsel's statement constituted misconduct because it was based on matters not supported by the evidence, it was an appeal to sympathy and prejudice, and it implied that there was no liability insurance when there actually was. The motion was denied.

On appeal, the Supreme Court reversed the judgment, stating that the argument was clearly erroneous (65 Cal. 2d 549, 552). The possibility, even if true, that a judgment for plaintiff would mean that defendant would have to go to the Laguna Honda Home, had no relevance to the issues of the case, and the argument of defense counsel was clearly a transparent attempt to appeal to the sympathies of the jury on the basis of the claimed lack of wealth of the defendant. As such, it was clearly misconduct (65 Cal. 2d 549, 553).

In Deibler v. Wright (1931) 119 Cal. App. 277, 6 P.2d 344 , plaintiff sued through her guardian for damages resulting from an automobile collision. During trial, plaintiff's counsel questioned plaintiff's father regarding a military medical examination in which he was suspected of having tuberculosis on the theory that plaintiff's injury might make her less likely to resist the disease if she had been exposed to the disease in her home. Counsel further stated that plaintiff had been harassed for the greater part of an afternoon in the taking of a deposition and was in bed for two weeks afterwards. After judgment for plaintiff, defendant appealed, claiming that the verdict was excessive because of the misconduct of plaintiff's counsel and because of error in jury instructions which allowed the jury to consider a preexisting ailment of plaintiff in awarding damages.

The court of appeal reversed the judgment and granted a new trial on the basis of the misconduct of plaintiff's attorney. The court stated that in view of the expert evidence that plaintiff had not been afflicted with tuberculosis since her return home, the inquiry relating to prior home conditions had no bearing on the case. It was apparent that the inquiry was solely for the purpose of enlisting the sympathy of the jurors toward plaintiff and her father because of his ``World War'' services (119 Cal. App. 277, 283). Counsel's statement regarding plaintiff's harassment in the taking of a deposition was unsupported by any evidence. Counsel admitted that it was unsupported and although the court admonished the jury to disregard the remarks, the error was not cured by the admonition (119 Cal. App. 277, 282-283). Since the damages awarded were far in excess of what ordinarily might be expected for the injury, the court found that the misconduct prejudiced defendant (119 Cal. App. 277, 283).
[b]--Improper Comments Concerning Relative Wealth of Litigants
The factual and procedural background of Hoffman v. Brandt (1966) 65 Cal. 2d 549, 55 Cal. Rptr. 417, 421 P.2d 425 , is discussed in [a], above. During closing argument, defendant's counsel commented on the age disparity between plaintiff and his client, stating that a judgment for plaintiff would put defendant in Laguna Honda Home, a city and county home for the indigent. After plaintiff's motion for new trial was denied, the Supreme Court reversed the judgment in favor of defendant, stating that defense counsel's argument was clearly erroneous (65 Cal. 2d 549, 552). Justice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to the social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct when the asserted wealth or poverty is not relevant to the issues of the case (65 Cal. 2d 549, 552-553). The questions of liability and the amount of damages, if any, in the ordinary personal injury case are to be determined without regard to the defendant's ability to pay any judgment rendered against him or her (65 Cal. 2d 549, 554). The argument of defense counsel was clearly a transparent attempt to appeal to the sympathies of the jury on the basis of the claimed lack of wealth of the defendant (65 Cal. 2d 549, 553).

Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal. App. 3d 600, 136 Cal. Rptr. 787 , was an action against a railroad for personal injuries suffered by plaintiff when his truck was struck by a train. During closing argument, plaintiff's counsel attempted to portray himself and his client as financial underdogs, or as ``little guys'' against the wealthy ``big guy'' railroad corporation. After the jury returned a special verdict finding both parties negligent and allowing a 50 percent recovery to plaintiff, defendant moved for a new trial alleging misconduct by plaintiff's counsel and excessive damages. The motion for new trial was granted as to the issue of damages after plaintiff refused to agree to remittitur, and plaintiff appealed.

The court of appeal affirmed the granting of the new trial, stating that counsel's remarks were clearly improper. The court quoted Hoffman v. Brandt (1966) 65 Cal. 2d 549, 552-553, 55 Cal. Rptr. 417, 421 P.2d 425 , discussed above, which said that justice is to be accorded to rich and poor alike, and a deliberate attempt by counsel to appeal to social or economic prejudices of the jury, including the wealth or poverty of the litigants, is misconduct when the asserted wealth or poverty is not relevant to the issues of the case. The questions of liability and the amount of damages in the ordinary personal injury case are to be determined without regard to the existing financial status of the plaintiff or plaintiff's counsel, or the ability of defendant to pay any judgment that might be rendered against him or her. The court stated that the improper comments may have caused the jury to render an inflated verdict. Even though the error did not seem too serious from the court's vantage point, it gave weight to the expressed opinion of the trial judge that the error resulted in a verdict of passion or prejudice (67 Cal. App. 3d 600, 606).
[4]--Additional Authorities
[a]--Improper Comments Concerning Relative Wealth of Litigants
Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , was an action for personal injuries sustained by a wife and for loss of consortium suffered by her husband. The trial concerned solely the issue of damages because defendant conceded liability and the absence of contributory negligence. After the jury awarded plaintiff wife $10,000, but did not award any damages to plaintiff husband, plaintiffs moved for a new trial, and on its denial, they appealed the judgment. The court of appeal reversed the judgment on several grounds, including defense counsel's misconduct in suggesting that plaintiffs were wealthy. Though plaintiffs' objections were sustained, the jurors asserted that they were impressed with the idea that plaintiffs ``already had a lot of money'' and ``didn't need any more'' (100 Cal. App. 3d 947, 960).

Weaver v. Shell Oil Co. of California (1933) 129 Cal. App. 232, 18 P.2d 736 , was an action for wrongful death in which verdict was rendered for plaintiffs. The court of appeal affirmed the trial court's order granting defendant's motion for a new trial on the basis of improper statements made by plaintiffs' counsel. During closing argument, counsel stated that someone must take care of decedent's widow and her four children and that the defendant, Shell Company, is a great big, rich corporation that has millions and can afford to take care of them (129 Cal. App. 232, 234).
155.133 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--Personal Attack on Character or Motives of Counsel, Party, or Witness
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the adverse party's counsel (see 155.131).]

A NEW TRIAL SHOULD BE GRANTED BECAUSE OPPOSING COUNSEL MADE PERSONAL ATTACKS ON THE CHARACTER OR MOTIVES OF _________________ [specify person, e.g., PLAINTIFF or DEFENDANT and/or COUNSEL and/or A WITNESS] THAT WERE UNSUPPORTED BY THE EVIDENCE AND THAT PREVENTED _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND THAT MATERIALLY AFFECTED HIS/HER/ITS SUBSTANTIAL RIGHTS.

Personal Attacks on Character or Motives of Adverse Party, Counsel, or Witness. Personal attacks on the character or motives of the adverse party, counsel, or witnesses, unsupported by the evidence and calculated to inflame the jury, with that result being achieved, are an irregularity for which a new trial may be granted (see Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal. App. 3d 341, 351-355, 133 Cal. Rptr. 42 ; Love v. Wolf (1964) 226 Cal. App. 2d 378, 391-392, 38 Cal. Rptr. 183 ).
[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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on opposing counsel's personal attacks on the character or motives of the moving party, his or her counsel, or witnesses. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the basis of counsel's misconduct [see 155.131].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the derogatory characterizations or remarks, showing how they were calculated to inflame the jury, and how an unfavorable trial result was produced by these remarks. If appropriate, counsel may refer to a reporter's transcript of the proceedings, and if used, counsel should attach relevant portions of the transcript to this memorandum.

A motion for new trial made 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 ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Personal Attacks on Character or Motives of Adverse Party, Counsel, or Witness
Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal. App. 3d 341, 133 Cal. Rptr. 42 , was an action for damages against a railroad company following an accident in which one plaintiff and another plaintiff's decedent were struck by a train. After verdict for plaintiffs, defendant's motion for a new trial was denied. Defendant appealed the judgment. The court of appeal reversed the judgment on the basis of prejudicial misconduct by plaintiffs' counsel. A study of the record showed that from the very beginning of trial, plaintiffs' counsel embarked on a campaign of hate, vilification, and subterfuge for the sole purpose of prejudicing the jury against defendant Southern Pacific and its employees (62 Cal. App. 3d 341, 351). Plaintiffs' counsel engaged in numerous instances of misconduct, including statements that the workers of Southern Pacific would perjure, cheat, lie, and steal. Counsel emphasized the wealth of the railroad company, insinuated that the company had tampered with a crucial file, produced a whiskey bottle with a faked evidence tag when questioning defendant's witness, and questioned witnesses on immaterial or purported facts. The court stated that the ultimate determination of the issue of alleged misconduct depriving a party of a fair trial rests on the court's view of the overall record, taking into account such factors as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances (62 Cal. App. 3d 341, 351). Even though some of the instances were of minor importance, in their totality, together with the totally irrelevant testimony of one witness, they made it impossible for Southern Pacific to have a fair trial (62 Cal. App. 3d 341, 355). The court's admonitions, when given, were mostly inadequate. Even though objections were not always made, the record showed that further objctions would have overemphasized the objectionable material and would have alienated the jury, who, because of plaintiffs' counsel's conduct, was unfavorably disposed against defendant (62 Cal. App. 3d 341, 355).

Love v. Wolf (1964) 226 Cal. App. 2d 378, 38 Cal. Rptr. 183 , was a medical malpractice and negligence action against a treating physician and a drug company, Parke-Davis. Following a substantial verdict against defendants, they appealed primarily on the ground that plaintiff's attorney was guilty of outrageous misconduct. The court of appeal reversed the judgment and ordered a new trial, concluding that counsel had been guilty of prejudicial, egregious misconduct from the opening day of trial until its conclusion (226 Cal. App. 2d 378, 393). Plaintiff's counsel continually vilified defendant's counsel by calling him ``an idiot,'' ``a smart guy,'' and a ``laughing hyena.'' He characterized defense objections as ``asinine'' and ``hogwash'' and accused defense counsel of suborning perjury. He frequently told defense counsel to ``shut up'' (226 Cal. App. 2d 378, 391). He also made references to Parke-Davis' earnings, false references to profits on those earnings, and repeatedly used ``Do you know that'' type questions that were designed not to obtain information or test adverse testimony but to afford him a device by which his own unsworn statements could reach the ears of the jury and be accepted by it as proof (226 Cal. App. 2d 378, 390). The court stated that the record left no doubt that the conduct was carefully contrived and calculated to arouse and inflame the jury to render a large verdict. The verdict was an unusually large one (226 Cal. App. 2d 378, 394). Although the court found that there was substantial, but conflicting, evidence of negligence on the part of the doctor, the court felt that both defendants were denied a fair trial because of counsel's misconduct (226 Cal. App. 2d 378, 392-393). Even though it could not be stated with certainty that the misconduct changed the result of the case, a litigant who had engaged in misconduct is not entitled to the benefit of calculation, which can be little better than speculation, as to the extent of the wrong inflited on his opponent. The court was satisfied that counsel's behavior was prejudicial and that justice miscarried. Accordingly, it reversed the judgment and remanded the case for new trial (226 Cal. App. 2d 378, 394).
155.134 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--Urging Facts Not in Evidence, Insinuation of Matters Not Supported by Evidence, or Attempt to Introduce Inadmissible Objects Into Evidence
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the adverse party's counsel (see 155.131).]

A NEW TRIAL SHOULD BE GRANTED BECAUSE OPPOSING COUNSEL _________________ [URGED FACTS THAT WERE NOT IN EVIDENCE and/or INSINUATED MATTERS THAT WERE NOT SUPPORTED BY THE EVIDENCE and/or ATTEMPTED TO INTRODUCE INADMISSIBLE PHYSICAL OBJECTS INTO EVIDENCE], THUS PREJUDICING THE JURY AND PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Counsel's Suggestion of Matters Other Than by Legitimate Introduction Into Evidence. Counsel's attempts to suggest matters of an evidentiary nature to a jury other than by the legitimate introduction into evidence, whether by questions on cross examination, argument, or other means, is misconduct for which a new trial may be granted ( Smith v. Covell (1980) 100 Cal. App. 3d 947, 960, 161 Cal. Rptr. 377 ).

[EITHER, if improper statements made during counsel's argument ]

B. Assuming Facts Not in Evidence During Argument. Argument by counsel that assumes facts that are not in evidence, or that are known to be unsupported by any factual basis and invite the jury to speculate on unsupported inferences, is an irregularity in the proceedings of the adverse party for which a new trial may be granted ( Malkasian v. Irwin (1964) 61 Cal. 2d 738, 745-748, 40 Cal. Rptr. 78, 394 P.2d 822 ).

[AND/OR, if improper statements made during counsel's cross examination of witness ]

B. Insinuation of Untrue Matters or Inadmissible Evidence on Cross Examination. On cross examination, when counsel insinuates as fact, matters which he or she knows are not fact or cannot be put into evidence, counsel may be guilty of prejudicial misconduct constituting an irregularity in the proceedings of the adverse party ( Smith v. Covell (1980) 100 Cal. App. 3d 947, 957-960, 161 Cal. Rptr. 377 ).

[AND/OR when counsel uses objects that are not admissible as evidence ]

B. Use of Object Not Admissible as Evidence. Attempts by counsel to place inadmissible physical evidence before the jury in an effort to influence the jury in reaching its verdict and that has influenced the jury, may be an irregularity in the proceedings of the adverse party for which a new trial may be granted ( Cote v. Rogers (1962) 201 Cal. App. 2d 138, 140-146, 19 Cal. Rptr. 767 ).
[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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on opposing counsel's improper urging of facts not in evidence, insinuation of matters not supported by the evidence, or attempt to introduce inadmissible physical objects into evidence.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the improper conduct of opposing counsel and show how this conduct deprived the moving party of a fair trial and materially affected the substantial rights of the moving party. Counsel may refer to a reporter's transcript of the proceedings, and if used, counsel should attach relevant portions of the transcript to this memorandum.

A motion for new trial made 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 notice of intention to move for a new trial and a declaration to be submitted in support of the motion on the ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Counsel's Suggestion of Matters Other Than by Legitimate Introduction Into Evidence
Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , was an action for personal injuries suffered by a wife and loss of consortium suffered by her husband. Defendant conceded liability and the absence of contributory negligence, and the trial was solely on the issue of damages. During his opening statement, counsel stated that plaintiff wife went to a psychiatrist who said that her pain was purely psychological and that she had an antagonism toward her husband that made her desire to punish him. Plaintiff had consulted a psychiatrist and a psychologist; however, the balance of counsel's statement was pure speculation. Counsel also stated that plaintiff's psychologist did not want her as a patient anymore. The doctor, however, left his practice for military services and had referred her to a neurologist. After the jury awarded $10,000 to the wife, but awarded no damages to the husband, plaintiffs moved for a new trial. When their motion was denied, they appealed the judgment.

The court of appeal reversed the judgment on several grounds, including defense counsel's misconduct. During opening statement and cross examination, counsel insinuated as fact matters that he knew were not fact or could not be put into evidence (100 Cal. App. 3d 947, 957). The court stated that counsel, in opening statements, should not include testimony that he or she knows will not be received and state that testimony for the purpose of prejudicing the jury. When prejudice results from such improper statements, a new trial should be awarded (100 Cal. App. 3d 947, 958-959). During cross examination, counsel asked plaintiff wife questions that asked for patent hearsay evidence that did not come within any cited exception to the hearsay rule. The court stated that California courts have repeatedly held that attempts to suggest matters of an evidentiary nature to a jury other than by legitimate introduction into evidence constitute misconduct. This applies to questions on cross examination, argument, or any other means (100 Cal. App. 3d 947, 960).
[b]--Assuming Facts Not in Evidence During Argument
In Malkasian v. Irwin (1964) 61 Cal. 2d 738, 40 Cal. Rptr. 78, 394 P.2d 822 , plaintiff brought an action for wrongful death of her son. During closing argument, counsel for defendant gave several possible scenarios for the accident, all unsupported by, or contrary to, the evidence. Counsel suggested that decedent drove off the highway, returned, hit the truck-trailer in the rear, then bounced into the south lane. There was damage, however, only on one side of the trailer and witnesses, prior to and at the time of the accident, stated that the decedent was traveling south the whole time in the southbound lane of highway. Following verdict for defendant, plaintiff moved for a new trial. When the motion was granted, defendant appealed.

The Supreme Court affirmed the order on the basis of defense counsel's improper argument to the jury. The Court stated that there was no factual foundation for any of counsel's speculations, assumptions, or inferences. He was not simply arguing that the cause of the accident was unknown. He was arguing that defendant ran into the trailer because of any one of the suggested reasons and that the jury could speculate as to which one was true (61 Cal. 2d 738, 746). There can be no doubt that to argue facts not justified by the record, and to suggest that the jury could speculate, was misconduct. While counsel may indulge in all fair arguments in favor of his or her client's case, he or she may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences. The trial court has broad discretion in considering motions for new trial. Here, the Court definitely determined that there had been a miscarriage of justice (61 Cal. 2d 738, 747).

Note that the Court in Malkasian held that the party that prevailed in a motion for new trial in the trial court is not required to demonstrate that prejudice resulted from the error for which a new trial was granted. For discussion of subsequent conflicting decisions that extended or explained that holding, see 155.251[3][a].
[c]--Insinuation of Untrue Matters or Inadmissible Evidence on Cross Examination
The factual and procedural background of Smith v. Covell (1980) 100 Cal. App. 3d 947, 161 Cal. Rptr. 377 , is discussed in [a], above. When plaintiffs' motion for new trial was denied, they appealed the judgment.

The court of appeal reversed the judgment on several grounds, including defense counsel's prejudicial misconduct during cross examination when he insinuated that certain matters were fact although he knew that these matters were not fact or could not be put into evidence. During cross examination, counsel asked plaintiff if her doctor or any other doctor had told her that her injury was a means of getting attention or of demonstrating dependence or hostility, thus suggesting that a qualified doctor had formed an opinion that her symptoms were purely psychological. However, no evidence was later offered to support these insinuations. Defense counsel's medical witnesses gave no testimony that the pain was in plaintiff's mind or that she had an antagonism toward her husband and that this was her way of punishing him as defense counsel had falsely alleged during his opening statement (100 Cal. App. 3d 947, 957-958). The court noted that California courts have repeatedly held attempts to suggest matters of an evidentiary nature to a jury other than by legitimate introduction into evidence to be misconduct. This applies to questions on cross examination, argument, or any other means (100 Cal. App. 3d 947, 959-960).
[d]--Use of Object Not Admissible as Evidence
Cote v. Rogers (1962) 201 Cal. App. 2d 138, 19 Cal. Rptr. 767 , was an action for wrongful death arising from a truck collision. During trial, defense counsel sought to place a California Highway Patrol magazine article before the jury. The article carried pictures of the accident and stated that the cause of the accident was improper care of loose equipment in the cab of the truck that prevented decedent from braking. After the court rejected the admission of the article as hearsay, counsel had the article published in a local newspaper and broadcast over a local radio station. Counsel referred to the article during cross examination and carried it in his hand during trial. After judgment for defendants, plaintiff's motion for a new trial, based on the alleged misconduct of counsel, was denied.

The court of appeal reversed the judgment and order denying a new trial, stating that defense counsel knew that the article was not admissible in evidence and that his continuing reference to it, while holding a copy of the magazine in his hand, was calculated solely to impress the jury that a statement of a highly respected law enforcement agency was being withheld from it because of some obscure, highly technical rule of evidence. While none of the jurors admitted to having read the newspaper story, the court stated that a juror who had done so would be extremely reluctant to publicly admit it (201 Cal. App. 2d 138, 144). The court also felt that it would be extremely naive to conclude that the jury neither saw nor read the article which appeared in the local newspaper. If a newspaper read by jurors contains matters in connection with the subject of the trial that would be likely to influence the jurors in the performance of their duties, a presumption of improper influence arises and a new trial will be granted, without requiring the offended party to show that harm was in fact done to his cause (201 Cal. App. 2d 138, 145).
[4]--Additional Authorities
[a]--Assuming Facts Not in Evidence During Argument
City of Los Angeles v. Decker (1977) 18 Cal. 3d 860, 135 Cal. Rptr. 647, 558 P.2d 545 , was an eminent domain proceeding involving property condemned for airport expansion. Defendant maintained that the highest and best use for her property was as an airport parking lot. Following a jury determination of the value of the land based on its use as a residence, defendant property owner's motion for new trial was denied. The Supreme Court reversed, holding that the city attorney committed misconduct that warranted a new trial when he argued that there was no need for airport parking when he knew of the city's determination that there was such a need and that defendant's property was suitable to fill it (18 Cal. 3d 860, 870-871).

Kenworthy v. State of California (1965) 236 Cal. App. 2d 378, 46 Cal. Rptr. 396 , was an action by a contractor for loss of profits allegedly due to the state's breach of a construction and lease contract. After judgment for plaintiffs, defendant's motion for new trial was denied. The court of appeal reversed, finding no substantial evidence to support the verdict and prejudicial misconduct of plaintiffs' counsel (236 Cal. App. 2d 378, 380). During trial, counsel engaged in numerous instances of misconduct, including improper attempts to introduce irrelevant evidence in the jury's presence, unproven suggestions of bribery of state officials, unfounded accusations of suppression of evidence by the state, gratuitous remarks made in front of the jury, and arguments replete with insinuations, none of which had any support in the record (236 Cal. App. 2d 378, 396-401).
[b]--Insinuation of Untrue Matters or Inadmissible Evidence on Cross Examination
The factual and procedural background of Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal. App. 3d 341, 133 Cal. Rptr. 42 , is discussed in 155.133[3][a]. The court of appeal reversed the judgment on the basis of prejudicial misconduct by plaintiffs' counsel. Counsel engaged in many instances of misconduct, including the frequent placing of immaterial or purported facts before the jury by asking witnesses questions prefaced by ``Isn't it true that'' or ``Did you know that'' (62 Cal. App. 3d 341, 354).

Dastagir v. Dastagir (1952) 109 Cal. App. 2d 809, 241 P.2d 656 , was a paternity suit instituted by the mother of an infant daughter against defendant. After judgment for defendant, the court of appeal reversed, granting a new trial on the basis of defense counsel's misconduct. During cross examination of plaintiff, counsel sought to intimate that plaintiff had engaged in illicit relations with men other than defendant at a time prior to the date the child must have been conceived. The court stated that while wide latitude should be given in cross examination, counsel should not be allowed to assume facts not in evidence and state as positive assertions facts which, if true, would be detrimental to the opposing party's case and of such a nature as to inflame and prejudice the minds of the jurors (109 Cal. App. 2d 809, 818).
[c]--Use of Object Not Admissible as Evidence
In Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal. App. 3d 232, 102 Cal. Rptr. 547 , plaintiffs obtained a judgment against their insurance company for wrongful refusal to pay a claim arising out of an accident with an uninsured motorist. The court of appeal reversed the judgment, granting a new trial solely on the issue of damages, concluding that conduct of plaintiffs' counsel was improper. During trial, counsel left a newspaper article on the counsel table. The headline, clearly visible to the jury, stated that an insurer had been held liable in a similar case. The court stated that the article was exposed for the purpose of influencing the jury and that the size of the verdict indicated possible influence (25 Cal. App. 3d 232, 242-244).
155.135 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--False Accusation of Suppression of Evidence
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the adverse party's counsel (see 155.131).]

A NEW TRIAL SHOULD BE GRANTED BECAUSE _________________ [PLAINTIFF'S or DEFENDANT'S] COUNSEL DELIBERATELY ACCUSED AND INSINUATED THAT COUNSEL FOR _________________ [PLAINTIFF or DEFENDANT] WILLFULLY SUPPRESSED EVIDENCE, THEREBY PREJUDICING THE JURY AND DEPRIVING _________________ [PLAINTIFF or DEFENDANT] OF A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

Accusation of Suppression of Evidence. Counsel's deliberate accusation and insinuation that opposing counsel has willfully suppressed evidence that has created a prejudice in the mind of the jury may be an irregularity in the proceedings of the adverse party for which a new trial may be granted ( Keena v. United Railroads (1925) 197 Cal. 148, 156-160, 239 P. 1061 ).
[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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] on the basis of counsel's accusation that opposing counsel has suppressed evidence. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the basis of misconduct of counsel [see 155.131].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the nature of opposing counsel's accusation of suppression of evidence and show how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights. Counsel may refer to a reporter's transcript, and if used, counsel should attach relevant portions of the transcript to this memorandum.

A motion for new trial made 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 notice of intention to move for a new trial and a declaration to be submitted in support of the motion on the ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Accusation of Suppression of Evidence
Keena v. United Railroads (1925) 197 Cal. 148, 239 P. 1061 , was an action for wrongful death of an infant due to a cable car accident. At the close of plaintiff's case, defendant called two witnesses and then rested its case without calling the gripman who had operated the cable car at the time of the accident. In the presence of the jury, plaintiff's counsel repeatedly asked defendant's counsel about the whereabouts of the gripman and if he intended to call him as a witness. Plaintiff's counsel then called defense counsel as a witness and pursued the inquiry while repeatedly charging that defense counsel was guilty of willful suppression of the evidence in failing to call the gripman. After judgment for plaintiff, defendant appealed.

The Supreme Court reversed judgment for plaintiff, stating that the misconduct of the attorney for plaintiff prejudicially and materially affected the substantial rights of defendant and prevented it from having a fair trial (197 Cal. 148, 160). The Court stated that failure to call a witness does not amount to willful suppression of evidence (197 Cal. 148, 158). Quoting the dissenting opinion in LaFargue v. United Railroads (1920) 183 Cal. 720, 728, 192 P. 538 , the Court stated that an entirely false quantity was injected into the case by plaintiff's counsel, over repeated admonitions of the court, and the false quantity was of a character so prejudicial to the defendant as to have prevented the jury from considering the case fairly on its own merits (197 Cal. 148, 159). In this case, the Court noted that the misconduct was not induced by possible emotion of the attorney or untoward thoughtlessness, but was the result of premeditation and deliberation (197 Cal. 148, 159). It did not consist of a single utterance of a charge, but embraced repetition and included hints, suggestions, and insinuations to such an extent that there was no possibility that counsel's meaning could have been misinterpreted or misunderstood by the jury (197 Cal. 148, 159). The purpose of the accusation was to bolster a weak case by creating a prejudice against defendant in the minds of the members of the jury (197 Cal. 148, 159-160). The Court concluded that the misconduct of plaintiff's attorney prejudicially and materially affected the substantial rights of defendant and prevented it from having a fair trial (197 Cal. 148, 160).
[4]--Additional Authorities
[a]--Accusation of Suppression of Evidence
Kenworthy v. State of California (1965) 236 Cal. App. 2d 378, 46 Cal. Rptr. 396 , was an action by a contractor for loss of profits allegedly due to the state's breach of a construction and lease contract. After judgment for plaintiffs, defendant's motion for a new trial was denied. The court of appeal reversed, finding no substantial evidence to support the verdict and prejudicial misconduct of plaintiffs' counsel. During trial, counsel engaged in numerous instances of misconduct, including unfounded accusations of suppression of evidence by the state (236 Cal. App. 2d 378, 398).
155.136 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--Reference to Insurance Before Jury
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of irregularity in the proceedings of the adverse party's counsel (see 155.131).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE OPPOSING COUNSEL REFERRED TO _________________ [PLAINTIFF'S or DEFENDANT'S] INSURANCE DURING TRIAL AND THE REFERENCE PREJUDICED THE JURY, THUS PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Reference to Insurance During Trial. If opposing counsel refers to a party's insurance during trial and this reference prejudices the jury, a new trial may be granted on the ground of irregularity in the proceedings of the adverse party based on counsel's misconduct (see Self v. General Motors Corp. (1974) 42 Cal. App. 3d 1, 12-14, 116 Cal. Rptr. 575 ).

[Optional ] B. Fact of Insurance Injected to Show Defendant Well Insured. In a personal injury action, the prejudicial injection by opposing counsel of the fact of liability insurance to show that defendant is well insured and able to respond in damages is an irregularity in the proceedings of the adverse party for which a new trial may be granted (see Roche v. Llewellyn Iron Works Co. (1903) 140 Cal. 563, 574-577, 74 P. 147 ).

[Optional ] C. Plaintiff Already Compensated by Insurance. Defense counsel's attempt to prove, in the presence of the jury, that plaintiff carried insurance policies that have already compensated him or her for damages, is an irregularity in the proceedings of the adverse party for which a new trial may be granted ( Loggie v. Interstate Transit Co. (1930) 108 Cal. App. 165, 168-169, 291 P. 618 ).

[Optional ] D. Plaintiff Shows That One Defendant Not Well Insured. In a personal injury action, the action of plaintiff's counsel in showing that one defendant is not well insured so that the jury will find a codefendant liable is an irregularity in the proceedings of the adverse party for which a new trial may be granted ( Self v. General Motors Corp. (1974) 42 Cal. App. 3d 1, 12-14, 116 Cal. Rptr. 575 ).

[Optional ] E. Plaintiff's Insurance Company Real Party in Interest. Defense counsel's attempt to show that an insurance company is the real party in interest behind plaintiff's case may be prejudicial misconduct of counsel for which a new trial may be granted ( Mangino v. Bonslett (1930) 109 Cal. App. 205, 208-212, 292 P. 1006 ).

[Optional ] F. Questions About Insurance on Voir Dire. When an insurance company is not a party to an action, it is improper for counsel to question prospective jurors on voir dire about ownership of stock or other financial interests in insurance companies, and when the error results in prejudice, a new trial may be granted ( Scally v. Pacific Gas & Electric Co. (1972) 23 Cal. App. 3d 806, 813-814, 100 Cal. Rptr. 501 ).
[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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on opposing counsel's misconduct in referring to insurance during trial. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of irregularity in the proceedings of the adverse party based on counsel's misconduct [see 155.131].
[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 opposing counsel's reference to insurance deprived the moving party of a fair trial and materially affected the moving party's substantial rights. This argument may refer to a reporter's transcript, and if used, relevant portions should be attached to this memorandum.

A motion for new trial made 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 notice of intention to move for a new trial and a declaration to be submitted in support of the motion on the ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq., and particularly those set out in 155.153, may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Reference to Insurance During Trial
The factual and procedural background of Self v. General Motors Corp. (1974) 42 Cal. App. 3d 1, 116 Cal. Rptr. 575 , is discussed in [d], below. The court of appeal affirmed orders denying defendant's motion for judgment notwithstanding the verdict, but granted defendant's motion for new trial on several grounds, including opposing counsel's misconduct in referring to one codefendant's limited amount of insurance during trial. The court stated that the reference to insurance was clearly prejudicial in light of the amount of damages claimed by plaintiff and references of plaintiff's counsel during trial to the other defendant's wealth and profits (42 Cal. App. 3d 1, 13-14).
[b]--Fact of Insurance Injected to Show Defendant Well Insured
In Roche v. Llewellyn Iron Works Co. (1903) 140 Cal. 563, 74 P. 147 , plaintiff brought an action to recover damages for personal injuries alleged to have been sustained by reason of the negligence of his employer, a corporation. During trial, plaintiff's counsel asked the corporation president if the company was insured by a named insurer and if the defense counsel was defending the action on behalf of the insurer at the request of defendant company. After defendant's objections to these questions were overruled, the company president answered affirmatively. After verdict for plaintiff, defendant moved for a new trial, and the motion was denied.

The Supreme Court reversed the judgment and order denying a new trial, stating that it was prejudicial error to permit evidence showing that defendant was being defended by an insurance company at defendant's request. The evidence that defendant objected to showed that the claim was well founded, that the defendant did in fact have a policy covering its employees, that the insurance company admitted its liability thereon, and that if plaintiff recovered judgment, the defendant would not be injured thereby, but that the loss would fall on the insurance company (140 Cal. 563, 577). The evidence also did not tend to prove or disprove any of the issues in the case (140 Cal. 563, 576-577). Accordingly, a new trial was ordered (140 Cal. 563, 577).
[c]--Plaintiff Already Compensated by Insurance
In Loggie v. Interstate Transit Co. (1930) 108 Cal. App. 165, 291 P. 618 , plaintiff brought an action for personal injuries and property damage allegedly caused by the negligence of defendant. During trial, defense counsel attempted to show that plaintiff carried accident and collision insurance and that the insurance company had already compensated plaintiff for damages to his automobile. When the jury returned a verdict for defendant, plaintiff moved for a new trial on the ground of irregularity in the proceedings of the adverse party based on counsel's misconduct. The motion was granted and defendant appealed.

The court of appeal affirmed the order granting a new trial, stating that counsel's reference was prejudicial (108 Cal. App. 165, 168-170). It added that the first thought of the juror, unfamiliar with legal principles, was that plaintiff had probably received full compensation for his loss and was not entitled to a second recovery (108 Cal. App. 165, 168-169). The court noted that counsel should not be permitted to obtain verdicts by other than fair presentations of causes on the facts and legitimate argument based on these facts, and when verdicts are otherwise obtained, they should promptly be set aside by the trial court (108 Cal. App. 165, 170).
[d]--Plaintiff Shows That One Defendant Not Well Insured
In Self v. General Motors Corp. (1974) 42 Cal. App. 3d 1, 116 Cal. Rptr. 575 , plaintiff brought a personal injury action against the manufacturer of the car in which she was a passenger and the driver of the car that struck it in the rear. After verdict for plaintiff, the trial court granted defendant manufacturer's motion for new trial on the basis of a juror's concealment of certain facts on voir dire and because of the conduct of plaintiff's attorney in bringing to the jury's attention the limited amount of defendant driver's insurance coverage. The court also denied defendant manufacturer's motion for judgment notwithstanding the verdict.

The court of appeal affirmed the orders denying the judgment notwithstanding the verdict and granting a new trial, stating that the reference to defendant driver's insurance coverage was clearly prejudicial to the manufacturer in light of the damages claimed by the plaintiff and references of plaintiff's counsel during trial to defendant manufacturer's wealth and profits (42 Cal. App. 3d 1, 13-14). The vice in the misconduct lay not in the familiar ``injection of the subject of insurance into the case'' to show that defendant was well insured and well able to respond in damages, but to show the contrary--that he was not adequately insured or otherwise financially responsible. The purpose of this was to impress upon the jury that one of two concurrent or successive tortfeasors was unable to respond in damages in an amount in excess of $25,000. Therefore, the jury must find against the other tortfeasor in order to satisfy the judgment for the very substantial damages warranted by the evidence. The prejudicial effect of the misconduct was compounded by counsel's persistent and ill-advised references during trial to General Motors' wealth and profits and the magnitude of its operations. Repeated references to a litigant's wealth or poverty amount to prejudicial misconduct. The court stated that the trial court was in the best position to assess the impact of counsel's misconduct on the jury and that it agreed with the trial court's decision to grant a new trial (42 Cal. App. 3d 1, 14).
[e]--Plaintiff's Insurance Company Real Party in Interest
In Mangino v. Bonslett (1930) 109 Cal. App. 205, 292 P. 1006 , plaintiffs brought an action for personal injuries resulting from an automobile accident. Throughout the entire trial and during closing argument, defense counsel attempted to convey to the jury that an insurance company was the real party in interest behind plaintiffs' case. After judgment for defendant, plaintiffs' motion for a new trial was granted. Plaintiffs predicated their motion on practically all of the grounds in Code Civ. Proc. 657[Deering's] , but cited the alleged prejudicial misconduct of defense counsel as the main specification of error.

The court of appeal affirmed the order granting a new trial, stating that the record was replete with prejudicial remarks by defendant's counsel during his closing argument (109 Cal. App. 205, 208). These remarks were not warranted by any phase of the testimony and could have had but one purpose, that is to prejudice the minds of the jury against plaintiffs' case. The court stated that there was no evidence in the record that plaintiffs were insured or that an insurance company was the real party in interest in plaintiffs' case. Nor did the court's repeated admonition to the jury to disregard the remarks of counsel cure the prejudicial effect of the remarks. The court was satisfied that the remarks were of such a character, and the purpose of their injection into the case so apparent, that they could not have been completely obliterated from the minds of the jury by any admonition that the court gave or could have given (109 Cal. App. 205, 212). The court of appeal affirmed the order granting a new trial, stating that it was of the opinion that the trial court exercised its discretion wisely in granting plaintiffs a new trial (109 Cal. App. 205, 213).
[f]--Questions About Insurance on Voir Dire
In Scally v. Pacific Gas & Electric Co. (1972) 23 Cal. App. 3d 806, 100 Cal. Rptr. 501 , plaintiffs brought an action for property damage allegedly caused by defendant power company's negligence. During voir dire, defense counsel asked a juror if he owned stock in any of several named insurance companies. When the juror stated that his car was insured with Farmers Insurance, counsel responded that Farmers was not involved in this action but Fireman's Fund was involved. Plaintiffs objected, and the court gave a curative instruction and admonished the jury. After verdict for defendant, plaintiffs moved for a new trial on several grounds including misconduct of defendant's attorney. When the motion was denied, plaintiffs appealed the judgment.

The court of appeal affirmed the judgment since it found that no prejudice resulted from the attorney's conduct. The court noted that Evid. Code 1155[Deering's] codifies the long-established rule that evidence that a party is insured is inadmissible to prove that party's negligence. Notwithstanding the logic of this rule, however, the court said that a totally illogical and unnecessary circumvention was engrafted by case law whereby under the guise of voir dire, counsel may, in good faith, ask prospective jurors whether they are interested in a particular insurance company so long as the question does not unnecessarily convey the impression that defendant is in fact insured. The court stated that to suggest that such a question can be asked without telling the jury that a party is in fact insured is naivete of the highest order. It added that lawsuits are not games and the appellate courts should not be distributors of toys with which counsel can play. Furthermore, the court said that any judge or lawyer who has observed or participated in jury voir dire knows that such questions are asked for one purpose only--to convey the impression that a party is insured (23 Cal. App. 3d 806, 813). The court stated that when an insurance company is not a party, it is improper to ask prospective jurors any questions about ownership of stock or other financial interest in insurance companies (23 Cal. App. 3d 806, 814). In this case, however, counsel acted in good faith and his single act of misconduct was not repeated. Furthermore, the trial judge's curative instructions and the jury's verdict showed that there was no prejudicial effect on the jury (23 Cal. App. 3d 806, 814-815). Thus, the court affirmed the order denying plaintiffs' motion for a new trial (23 Cal. App. 3d 806, 821).
[4]--Additional Authorities
[a]--Fact of Insurance Injected to Show Defendant Well Insured
Schlenker v. Egloff (1933) 133 Cal. App. 393, 24 P.2d 224 , was an action for wrongful death in which the court of appeal reversed a judgment for plaintiff on the basis of prejudicial misconduct of plaintiff's counsel. During trial, plaintiff's counsel stated that defendant had told a police officer at the scene that she was insured and that her insurance company would pay for all the damages. The court found, however, that the statement was not an admission against interest since counsel referred to it for the sole purpose of impressing the fact of insurance and creating a prejudice in the minds of the jury members (133 Cal. App. 393, 399-402).
155.137 Supporting Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct of Counsel--Reference to Own Client's Perjury and Collusion
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the grounds of irregularity in the proceedings of the adverse party's counsel (see 155.131).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE OPPOSING COUNSEL RAISED THE ISSUE OF HIS/HER OWN CLIENT'S PERJURY AND COLLUSION WITH _________________ [PLAINTIFF or DEFENDANT], THUS PREJUDICING THE JURY AND PREVENTING _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

Reference to Own Client's Perjury and Collusion With Other Party. When counsel for one party interjects the issue of that party's perjury and collusion with the other party, thus acting adversely to his or her own client's interest, it is an abuse of discretion to deny the other party's motion for new trial on the grounds of irregularity ( Price v. Giles (1987) 196 Cal. App. 3d 1469, 1473-1474, 242 Cal. Rptr. 559 ).
[2]--Comments
[a]--Use of Form
This memorandum of points and authorities may be submitted in support of a motion for a new trial on the ground of irregularity in the proceedings by the adverse party [ Code Civ. Proc. 657(1)[Deering's] ], specifically, opposing counsel's misconduct in referring during trial to the possibility of his or her client's perjury and collusion with the opposing party. It does not provide a complete form but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of irregularity in the proceedings by the adverse party because of counsel's misconduct [see 155.131].
[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 adverse counsel's reference to the possibility of his or her own client's perjury and collusion with the moving party deprived the moving party of a fair trial and materially affected his or her substantial rights. This argument may refer to a reporter's transcript, and, if used, relevant portions should be attached to this memorandum.

A motion for new trial made 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 notice of intention to move for a new trial and a declaration to be submitted in support of the motion on the ground of irregularity in the proceedings of the court, jury, or adverse party [ Code Civ. Proc. 657(1)[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 155.150 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Reference to Own Client's Perjury and Collusion With Other Party
In Price v. Giles (1987) 196 Cal. App. 3d 1469, 242 Cal. Rptr. 559 , plaintiff brought an action for personal injuries against the owner of a pick-up truck in which she was a passenger. There was conflicting evidence at trial regarding whether plaintiff or defendant had been driving the truck at the time of the accident. During trial, defense counsel repeatedly questioned the veracity of his client's testimony and stated to the jury that he himself did not believe his client. He also intimated that plaintiff and defendant had some sort of personal interest in each other. The jury returned a verdict in favor of defendant and specifically found that he was not negligent. Plaintiff moved for a new trial on the grounds of irregularity in the proceedings, surprise, and insufficiency of the evidence under Code Civ. Proc. 657(1)[Deering's], (3)[Deering's], and (6)[Deering's] , respectively. The trial court denied the motion, and plaintiff appealed.

The court of appeal reversed. The court relied on Pennix v. Winton (1943) 61 Cal. App. 2d 761, 766, 143 P.2d 940 , a case involving a defense counsel retained by an insurance company to represent the insured as defendant. In that case, defense counsel attempted to impeach the insured by attacking the veracity of both plaintiff and defendant. The court noted that in the case at bar, while it may have appeared that defense counsel acted in his client's interest when he stated that he did not believe his client's testimony that he was driving, counsel was, in fact, impugning his client's integrity by making it appear that he had committed perjury or conspiracy. The court concluded that once defense counsel had indicated to the jury that defendant was not credible, it was impossible for plaintiff to receive a fair trial. A jury is unlikely to believe a party whom his or her own counsel disbelieves, even if that party is in fact telling the truth. This action by defense counsel warranted reversal under Pennix (196 Cal. App. 3d 1469, 1473). The court thus found that it was an abuse of discretion on the trial court's part to deny plaintiff's motion for a new trial on the ground of irregularity in the proceedings (196 Cal. App. 3d 1469, 1474).
155.138-155.149 [Reserved]

155.150 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Alleged Misconduct of Party or Counsel Not Prejudicial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE ADVERSE PARTY, BECAUSE THE ALLEGED MISCONDUCT OF _________________ [PLAINTIFF or DEFENDANT or COUNSEL FOR_________________ (PLAINTIFF or DEFENDANT)] DID NOT PREVENT THE MOVING PARTY FROM HAVING A FAIR TRIAL AND DID NOT MATERIALLY AFFECT HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. No Prejudice Error Resulting From Alleged Misconduct. A new trial will not be granted for irregularity in the proceedings of the adverse party if no prejudice has resulted from the alleged misconduct of a party or a party's counsel ( Robinson v. Western States Gas etc. Co. (1920) 184 Cal. 401, 407, 194 P. 39 ; People ex rel. Dept. Pub. Wks. v. Hunt (1969) 2 Cal. App. 3d 158, 172, 82 Cal. Rptr. 546 ; Winningar v. Bales (1961) 194 Cal. App. 2d 273, 281-282, 14 Cal. Rptr. 908 ).

B. Court Must View Overall Record. Each case must ultimately rest on the court's view of the overall record, taking into account such factors as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances ( Sabella v. Southern Pac. Co. (1969) 70 Cal. 2d 311, 321, 74 Cal. Rptr. 534, 449 P.2d 750 ).

[Optional ] C. Remarks Made by Party. A new trial will not be granted for a party's remarks allegedly made for the purpose of influencing the jury if the evidence fails to show that the remarks were communicated to the juror, or, if communicated, the record shows that no prejudice resulted ( Bramble v. McEwan (1940) 40 Cal. App. 2d 400, 415-416, 104 P.2d 1054 ).

[Optional ] D. Conduct of Party in Courtroom. A new trial will not be granted for the conduct of a party in the courtroom, such as a fainting spell or collapse, if there is insufficient evidence to show that the occurrence was simulated (see Wright v. Southern Counties Gas Co. (1929) 102 Cal. App. 656, 668, 283 P. 823 ).

[Optional ] E. Counsel's Statements Were Vigorous Argument. A new trial will not be granted on the basis of opposing counsel's comments on a party, counsel, or witness if the remarks were part of a vigorous and effective argument of counsel and if no prejudice has resulted to the opposing party ( Henninger v. Southern Pacific Co. (1967) 250 Cal. App. 2d 872, 881, 59 Cal. Rptr. 76 ).

[Optional ] F. Assuming Language Was Misconduct, No Prejudice to Opposing Party. Assuming that counsel's strong language in referring to a party, counsel, or witness was misconduct, if in light of the evidence and verdict reached, it does not appear that the conduct was prejudicial to the opposing party, the granting of a new trial is improper ( Deevy v. Tassi (1942) 21 Cal. 2d 109, 121-122, 130 P.2d 389 ).

[Optional ] G. Mention of Financial Condition Not Prejudicial. Although the mention of the financial condition of a party is improper and should not be made, a new trial will not be granted when counsel's conduct did not result in prejudice to the opposing party ( Drotleff v. Renshaw (1949) 34 Cal. 2d 176, 180, 208 P.2d 969 ; Shabshin v. Pacifici (1961) 196 Cal. App. 2d 192, 200, 16 Cal. Rptr. 440 ).

[Optional ] H. Reference During Argument to Existence of Facts Not Proven During Trial. If counsel, in his or her opening argument, makes reference to the existence of facts that counsel is prepared to prove but later does not attempt to prove and allegedly knew at the time that the facts could not be proven, this reference is not grounds for granting a new trial if the conduct resulted in no serious prejudice to the opposing party ( Mudrick v. Market Street Ry. Co. (1938) 11 Cal. 2d 724, 737-738, 81 P.2d 950 ).

[Optional ] I. Reference to Extraneous Matters During Argument. Although counsel's reference to extraneous matters during argument may be misconduct, if it is not prejudicial to the opposing party, a new trial is not proper ( Woebbe v. Sperry (1941) 48 Cal. App. 2d 340, 344, 119 P.2d 743 ).

[Optional ] J. Insinuation of Untrue or Inadmissible Matters on Cross Examination. During cross examination, counsel's insinuation of matters that are not factually true or are inadmissible as evidence is not a basis for granting a new trial if the statements are not prejudicial to the opposing party's case ( People ex rel. Dept. Public Works v. Auburn Ski Club (1966) 241 Cal. App. 2d 781, 787-789, 50 Cal. Rptr. 859 ).

[Optional ] K. Counsel's Attempt to Place Inadmissible Physical Evidence Before Jury. If the complaining party is not prevented from having a fair trial, counsel's attempt to place certain inadmissible physical evidence before the jury is not grounds for granting a new trial ( Robinson v. Western States Gas etc. Co. (1920) 184 Cal. 401, 407, 194 P. 39 ).

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on the misconduct of a party or a party's counsel. In an appropriate case, this memorandum may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.130 et seq.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the alleged misconduct, showing that the moving party was not prejudiced by it and that his or her substantial rights were not materially affected. Counsel may desire to refer to a reporter's transcript of the proceedings, and if used, he or she should attach relevant portions of the transcript to this memorandum.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--No Prejudice Resulting From Alleged Misconduct
In Robinson v. Western States Gas etc. Co. (1920) 184 Cal. 401, 194 P. 39 , plaintiffs brought an action for wrongful death allegedly caused by defendant's negligence. During trial, plaintiffs' attorney, when offering papers in evidence, attempted to read the contents of incompetent documents in the presence of the jury. After judgment for plaintiffs, defendant's motion for a new trial was denied, and defendant appealed the judgment. The Supreme Court affirmed the judgment, stating that misconduct is not cause for reversal or a new trial unless it has the effect of preventing the complaining party from having a fair trial. The Court stated the ruling rejecting the evidence together with the court's instruction to the jury lessened the injurious effect of the misconduct so that it could not be deemed sufficient to justify a reversal of the case (184 Cal. 401, 407).

People ex rel. Dept. Pub. Wks. v. Hunt (1969) 2 Cal. App. 3d 158, 82 Cal. Rptr. 546 , was a condemnation action in which the condemnees were granted a new trial after a judgment was entered on a verdict that awarded them $35,000 for the property taken. The order granting the new trial failed to state the grounds on which it was granted. The state, as condemnor, appealed the order.

On appeal, when no grounds are specified in the order, the movant must advance any grounds on which the order must be upheld (2 Cal. App. 3d 158, 162). Condemnees claimed that there was an irregularity in the proceedings of the adverse party [ Code Civ. Proc. 657(1)[Deering's] ] and accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ] since they expected the condemnor's witness to testify that the property was worth more than the value he gave at trial. In a telephone conversation, the state's counsel allegedly told counsel for condemnees that the state's appraisal would be very close to the staff appraisal. Therefore, condemnees' attorney did not subpoena the staff appraiser since it was his practice to do so only if the state's appraisal was sufficiently below the staff value. Counsel claimed that opposing counsel was guilty of intentionally deceiving him, thereby violating ethical standards, as well as constituting grounds for a new trial.

The court of appeal reversed the order granting a new trial, stating that it was questionable whether the irregularity or accident or surprise of which the condemnees complained, materially affected their substantial rights. The reason for this was that the jury returned a verdict which was equal to or in excess of the appraisal that the condemnees alleged they were precluded from producing. It has been aptly stated that the trial court, no less than an appellate court, is expressly enjoined by Cal. Const., Art. VI, 13[Deering's] from granting a new trial for errors unless they are prejudicial, and that if it clearly appears that such errors could not have affected the result of the trial, the court is bound to deny the motion (2 Cal. App. 3d 158, 172). Furthermore, the court held that the record had shown that condemnor's counsel did not intentionally deceive opposing counsel and that there was no cognizable accident or surprise (2 Cal. App. 3d 158, 162, 166-172). Thus, the order granting a new trial was reversed (2 Cal. App. 3d 158, 172).

In Winningar v. Bales (1961) 194 Cal. App. 2d 273, 14 Cal. Rptr. 908 , plaintiff brought an action for personal injuries arising out of an automobile accident. Before the opening of court on the second day of trial, a spectator asked the defendant, in the presence of about half the impaneled jurors, if he was covered by insurance. He replied negatively. After verdict for defendant, plaintiff's motion for a new trial on the basis of alleged prejudice of a juror and defendant's remark was denied.

The court of appeal affirmed the judgment, since defendant's remarks did not appear to have prejudiced the jury in favor of defendant. While a party should not discuss the question of insurance in the presence of any juror, it cannot be said that defendant's statement influenced the verdict. Although the spectator and one juror said that the statement was made in the presence of the jury, no other juror claimed to have heard it. In fact, eight jurors denied hearing it (194 Cal. App. 2d 273, 281). The court cited Bramble v. McEwan (1940) 40 Cal. App. 2d 400, 104 P.2d 1054 , in which the respondent allegedly made remarks to the mother and sister of a juror for the purpose of influencing the juror. While the evidence failed to show that the remarks were communicated to the juror, the court said, in effect, that even if they were communicated, the juror voted for the other party, and hence there could be no prejudice (194 Cal. App. 2d 273, 281-282).
[b]--Court Must View Overall Record
In Sabella v. Southern Pac. Co. (1969) 70 Cal. 2d 311, 74 Cal. Rptr. 534, 449 P.2d 750 , plaintiff brought an action under the Federal Employers' Liability Act [ 45 U.S.C. 51 ] for personal injuries sustained in the course of his employment. During trial, plaintiff's counsel made statements that disparaged defendant by repeatedly referring to defendant as ``inhuman'' and ``heartless,'' and as a ``cheapskate'' who cast plaintiff on the ``human trash pile'' and who attempted to put up a smokescreen by perjury and deceit. Counsel also made reference to the disparity in wealth between defendant and plaintiff. After verdict for plaintiff, defendant moved for a new trial on several grounds including the misconduct of plaintiff's attorney. A new trial was denied, however, on the condition that plaintiff consent to a reduction of the verdict. Plaintiff agreed, and defendant appealed the judgment.

The Supreme Court affirmed the judgment even though it found counsel's conduct to be improper and possibly prejudicial (70 Cal. 2d 311, 318). In the absence of a timely objection, the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice. In this case, defendant remained silent as to all but one line of argument, and as to the latter, he objected, but failed to request an admonition of the jury to disregard the remarks (70 Cal. 2d 311, 319). However, the Court emphasized that its conclusions should in no way be interpreted as condoning the deplorable conduct of plaintiff's counsel. Each case must ultimately rest on the court's view of the overall record, taking into account such factors as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances (70 Cal. 2d 311, 320-321).
[c]--Remarks Made by Party
In Bramble v. McEwan (1940) 40 Cal. App. 2d 400, 104 P.2d 1054 , plaintiffs brought an action to recover damages for the death of their daughter in an automobile accident. Outside the courtroom, defendant allegedly told the mother and sister of one of the jurors that the deceased looked as though she were pregnant and that she ran around with service men. He also allegedly stated that her funeral bill was excessive for people on the WPA, a government work program. After judgment for defendant, plaintiff's motion for a new trial, based on defendant's remarks, was denied.

The court of appeal affirmed the judgment, since there was an absence of proof that the jury heard the conversation. The witnesses testified that they had not told the juror of the conversation until after the rendition of the verdict (40 Cal. App. 2d 400, 415). The court stated that even if the juror were informed of this conversation before the verdict was returned, she was one of three who voted for the plaintiffs. Hence, there was no prejudice as shown by the record, and the motion for a new trial was properly denied (40 Cal. App. 2d 400, 416).
[d]--Conduct of Party in Courtroom
In Wright v. Southern Counties Gas Co. (1929) 102 Cal. App. 656, 283 P. 823 , plaintiff brought an action against a gas company and a building owner to recover for personal injuries suffered in a gas explosion. During trial, plaintiff collapsed on the witness stand during the course of his cross examination. After verdict was rendered against defendant building owner, his motion for a new trial, based on the alleged misconduct of plaintiff, was denied.

The court of appeal affirmed the judgment (102 Cal. App. 656, 668). Conflicting affidavits were submitted to the court on the question of whether or not the collapse was actual or simulated. Since the trial court observed the occurrence, it had a basis for its ruling that the court of appeal did not have. Nevertheless, on the basis of the affidavits, the court of appeal found that the trial court did not abuse its discretion in denying the motion (102 Cal. App. 656, 668).
[e]--Counsel's Statements Were Vigorous Argument
In Henninger v. Southern Pacific Co. (1967) 250 Cal. App. 2d 872, 59 Cal. Rptr. 76 , plaintiff brought an action to recover damages for personal injuries sustained in the course of his employment. Plaintiff, a conductor brakeman, lost both legs as a result of a train accident. During trial, plaintiff's counsel asserted that defendant's counsel was insincere in pretending not to understand the present value of money. He argued that defense counsel's purpose was to ``save the railroad every bit of money that has already been set aside, mind you, as a deductible expense of doing business.'' He characterized defense counsel's suggestion of a verdict for a particular amount as ``ridiculous'' and labeled his efforts as ``an attempt to short change a cripple.'' Defendant's motion for a new trial based, in part, on plaintiff's counsel's allegedly prejudicial misconduct, was denied. Defendant appealed the judgment.

The court of appeal affirmed the judgment, stating that the record left no doubt that counsel's argument was vigorous and effective, but it did not amount to prejudicial misconduct for which a new trial should be granted. The court concluded that the judge who presided at trial was in a far better position to evaluate the effect of the disputed argument. The judge's determination of the issue will not be set aside unless it is unquestionably wrong (250 Cal. App. 2d 872, 881). Here, the court could not say that the trial judge was unquestionably wrong or wrong at all. Furthermore, defendant failed to object to plaintiff's counsel's argument or to request that the jury be admonished to disregard it. The court stated that it is clear that when no claim of misconduct is made in the trial court, complaint cannot be made for the first time on appeal (250 Cal. App. 2d 872, 882).
[f]--Assuming Language Was Misconduct, No Prejudice to Opposing Party
In Deevy v. Tassi (1942) 21 Cal. 2d 109, 130 P.2d 389 , plaintiffs brought an action for assault and battery against two defendants who allegedly injured plaintiffs when they sought to repossess plaintiffs' cattle. Plaintiffs were in default under the terms of a chattel mortgage on the cattle. During trial, plaintiffs' counsel referred to defendants as desperadoes, racketeers, cowpunchers, cattle gangsters, and drunken brutes. After each plaintiff was awarded compensatory and punitive damages against both defendants, defendants moved for a new trial. The motion, based in part on plaintiffs' counsel's alleged misconduct, was denied. Defendants appealed the judgment.

The Supreme Court found nothing in the record that justified the granting of a new trial, but modified the judgment by striking the award of punitive damages as against one defendant (21 Cal. 2d 109, 112). The Court stated that it did not appear that the jurors were incited to passion or prejudice by counsel's remarks. The language was strong, but so was the evidence. Furthermore, assuming that the use of such language in the heat of a trial was misconduct, the Court said that it did not appear, in the light of the evidence and the verdicts reached, that such misconduct was prejudicial (21 Cal. 2d 109, 121-122).
[g]--Mention of Financial Condition Not Prejudicial
The factual and procedural background of Drotleff v. Renshaw (1949) 34 Cal. 2d 176, 208 P.2d 969 , is discussed in 155.151[3][a]. The Supreme Court affirmed judgment for plaintiff, stating that the conduct of plaintiff's attorney in referring to the plaintiff's financial condition did not operate to defendants' prejudice. The reference was a casual one, with no effort at repetition to aggravate the effect, and the trial court acted promptly to correct the impropriety and remove any effect it might otherwise have had (34 Cal. 2d 176, 180). Under the circumstances, it could not be said that the reference in question contributed to the amount of the verdict, and that the trial court's timely action was ineffectual in curing the impropriety (34 Cal. 2d 176, 181).

In Shabshin v. Pacifici (1961) 196 Cal. App. 2d 192, 16 Cal. Rptr. 440 , plaintiff brought an action for personal injuries against the owner and the manufacturer of a gas stove. During trial, one defendant's counsel referred to the other defendant's financial condition. However, opposing counsel objected, and the court admonished the jury to disregard the reference. After judgment for defendant, plaintiff moved for a new trial on the basis of prejudicial misconduct of one defendant's counsel. The motion was denied, and plaintiff appealed the judgment.

The court of appeal affirmed judgment for defendants since it found that the remark had done no damage to plaintiff's case. Under the circumstances, the court could not say that the reference in question contributed to the amount of the verdict and that the trial court's timely action was ineffectual in curing the impropriety. Considering the record, the apparent personal conflict existing among counsel, the nature of the remark and that it was a casual one, the time it was made during the argument, the trial judge's immediate instruction to the jury, and that it was never referred to or repeated, the court found that no prejudice had resulted (196 Cal. App. 2d 192, 200).
[h]--Reference During Argument to Existence of Facts Not Proven During Trial
In Mudrick v. Market Street Ry. Co. (1938) 11 Cal. 2d 724, 81 P.2d 950 , plaintiff brought an action for personal injuries against defendant, a railway company. During his opening statement, plaintiff's counsel represented that plaintiff was prepared to prove certain facts. These facts concerned defendant's allegedly old and obsolete equipment, defendant's understaffing of its cars at the time and place of the accident, and defendant's failure to maintain proper guards to prevent a passenger thrown from a car from going under the wheels. After judgment for plaintiff, defendant moved for a new trial on several grounds, including prejudicial misconduct of plaintiff's attorney. When the motion was denied, defendant appealed the judgment.

The Supreme Court affirmed the judgment, since the remarks resulted in no serious prejudice to defendant. The Court noted that the trial court had instructed the jury that there was no evidence that the equipment of the corporation's car was not of standard kind and character (11 Cal. 2d 724, 738). While the practice indulged in by plaintiff's counsel has frequently been condemned by the courts, it has also been held that unless prejudice has resulted, a new trial will not be awarded (11 Cal. 2d 724, 737). While the Court was not willing to place its stamp of approval on the conduct, it was also not prepared to say that defendant was prejudiced by counsel's remarks (11 Cal. 2d 724, 738).
[i]--Reference to Extraneous Matters During Argument
In Woebbe v. Sperry (1941) 48 Cal. App. 2d 340, 119 P.2d 743 , plaintiff brought an action against defendants for personal injuries sustained in an automobile accident. During argument, while defendants' counsel discussed testimony given by a police officer, counsel referred to a police scandal. After judgment for defendants, plaintiff moved for a new trial on several grounds, including the allegedly prejudicial misconduct of defendants' attorney. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, conceding that although the conduct may have been error, it is patent that the misconduct was not prejudicial. The court noted that plaintiff's counsel had promptly objected to the argument and that the trial court told the jury that police scandals had nothing to do with the case. Furthermore, since the trial court was not asked to admonish the jury to disregard the statements, the alleged misconduct may not be urged for the first time on appeal (48 Cal. App. 2d 340, 344).
[j]--Insinuation of Untrue or Inadmissible Matters on Cross Examination
People ex rel. Dept. Public Works v. Auburn Ski Club (1966) 241 Cal. App. 2d 781, 50 Cal. Rptr. 859 , was a condemnation action brought by the state, which had acquired land for freeway purposes, against defendant condemnees. During trial, defendants' attorney frequently made attempts to suggest facts that could not be introduced as evidence or that were not supported by the evidence when he used the ``do you know that'' technique in asking questions during cross examination. Counsel used this phrase to inject his unsworn statements into trial. After defendants were awarded a judgment, the state moved for a new trial on the ground of counsel's allegedly prejudicial misconduct. When the motion was denied, the state appealed the judgment.

The court of appeal affirmed the judgment, stating that the jury was not seriously affected by counsel's overzealous advocacy. It stated that the trial judge kept control of the proceedings; objections were promptly ruled on and the jury was at no time permitted to forget that the statements of counsel were not to be considered by it (241 Cal. App. 2d 781, 791). The court noted that the use of the phrase, ``do you know that,'' does not automatically make a question improper. Counsel frequently used the phrase to state a commonly known fact or readily verifiable matter (241 Cal. App. 2d 781, 789). The court added that it is only in extreme cases that the court, when acting promptly, cannot correct the impropriety of the act of counsel and remove any effect that his or her remarks would otherwise have. Regardless of the antagonism between the attorneys, the court did not believe that it was likely to have had any effect on the jury except to compel boredom (241 Cal. App. 2d 781, 792).
[k]--Counsel's Attempt to Place Inadmissible Physical Evidence Before Jury
In Robinson v. Western States Gas etc. Co. (1920) 184 Cal. 401, 194 P. 39 , plaintiffs brought an action for decedent's wrongful death that was allegedly caused by defendant power company's negligence. During trial, plaintiffs' attorney proceeded to read a document that was hearsay and incompetent. Although the court failed to promptly prevent him from doing so, it rejected the evidence pursuant to an objection by opposing counsel. After judgment for plaintiffs, defendant moved for a new trial on several grounds, including prejudicial misconduct of plaintiffs' attorney. When the motion was denied, defendant appealed the judgment.

The Supreme Court affirmed the judgment, stating that the ruling rejecting the evidence and the court's further instruction to the jury, taken together, lessened the injurious effect of the misconduct so that it could not be deemed to justify a reversal of the case. Misconduct is not cause for reversal or a new trial unless it has the effect of preventing the complaining party from having a fair trial. The Court stated that the other assignments of misconduct were too trivial to be worthy of discussion. Hence, it affirmed the judgment (184 Cal. 401, 407).
[4]--Additional Authorities
[a]--No Prejudice Resulting from Alleged Misconduct
The court of appeal in Da Silva v. Pacific King, Inc. (1987) 195 Cal. App. 3d 1, 240 Cal. Rptr. 395 , affirmed a judgment for an injured seaman. Plaintiff claimed that defense counsel acted improperly in displaying to the jury medical records that disclosed plaintiff's application for social security benefits. Plaintiff's counsel refused a curative instruction, but moved for a new trial. The trial court denied the motion, holding that there was no prejudice by defense counsel's reference to a collateral source of compensation. The court of appeal agreed that there was no prejudice, noting that damages appeared to have been calculated without deduction for the collateral source and that plaintiff failed to ask for a curative instruction (195 Cal. App. 3d 1, 9-10).

The factual and procedural background of Jackson v. Barnett (1958) 160 Cal. App. 2d 167, 324 P.2d 643 , is discussed in 155.152[3][a]. The court of appeal affirmed the denial of plaintiff's motion for a new trial based on defendant's alleged misconduct. The court stated that it affirmatively appeared that the jurors did not participate in the allegedly prejudicial conversation or consider it as having any effect on them (160 Cal. App. 2d 167, 172).

The factual and procedural background of Fonts v. Southern Pacific Co. (1916) 30 Cal. App. 633, 159 P. 215 , is discussed in 155.130[3][f]. The court of appeal affirmed judgment for plaintiff and an order denying defendant's motion for new trial on the basis of plaintiff's fainting spell while on the witness stand. The court stated that it did not feel that the jury's verdict was influenced by plaintiff's conduct. The presumption is that the jury members regarded their oaths and determined the case according to law and evidence (30 Cal. App. 633, 638).
[b]--Remarks Made by Party
The factual and procedural background of Winningar v. Bales (1961) 194 Cal. App. 2d 273, 14 Cal. Rptr. 908 , is discussed inn [3][a], above. The court of appeal affirmed the judgment and order denying plaintiff's motion for a new trial because defendant's remarks did not appear to have prejudiced the jury. Although a spectator and one juror said that the statement was made in the presence of the jury, no other juror claimed to have heard it. In fact, eight jurors denied hearing it (194 Cal. App. 2d 273, 281).

The factual and procedural background of Jackson v. Barnett (1958) 160 Cal. App. 2d 167, 324 P.2d 643 , is discussed in 155.152[3][a]. The court of appeal affirmed the denial of plaintiff's motion for new trial based on defendant's allegedly prejudicial statements to the jury. After the judge left the courtroom with respective counsel to discuss a matter, defendant remained on the witness stand and remarked to the jury,``I guess they want to talk about something they don't want us to hear,'' and the jury laughed. The court affirmed the denial of the motion because it appeared that the remark did not prejudice the jury and because plaintiff did not call the remark to the attention of the court until after the return of a verdict (160 Cal. App. 2d 167, 171-172).
[c]--Conduct of Party in Courtroom
The factual and procedural background of Fonts v. Southern Pacific Co. (1916) 30 Cal. App. 633, 159 P. 215 , is discussed in 155.130[3][f]. The court of appeal affirmed judgment for plaintiff an order denying defendant's motion for a new trial. During trial, plaintiff fainted while on the witness stand. However, since there was no evidence of simulation or other intentional misconduct, the court held that a new trial was not proper because of the unavoidable illness of the plaintiff (30 Cal. App. 633, 638).
[d]--Assuming Language Was Misconduct, No Prejudice to Opposing Party
In Curcio v. Svanvik (1984) 155 Cal. App. 3d 955, 202 Cal. Rptr. 499 , plaintiff sought to recover for injuries sustained in a vehicle collision. The jury found for plaintiff, and defendant moved for a new trial based on alleged instances of misconduct by plaintiff's counsel. These instances included reference to plaintiff's receiving a Purple Heart, reference to the relative financial status of the parties, insinuation that the defendant was suppressing evidence, and the implication that defendant had filed its general denial in bad faith (155 Cal. App. 3d 955, 961). The trial court denied the motion. Defendant appealed, and the court of appeal affirmed. The court held that, assuming arguendo that the misconduct occurred as claimed, the court did not believe that a different or more favorable verdict would have resulted in its absence (155 Cal. App. 3d 955, 966).

In Mize v. Atchison, T. & S.F. Ry. Co. (1975) 46 Cal. App. 3d 436, 120 Cal. Rptr. 787 , the court of appeal affirmed judgment for plaintiff and the denial of defendants' motion for new trial in a wrongful death action. The court upheld the trial court's determination that no prejudice resulted from plaintiff's counsel's conduct in asking decedent's ex-wife if she suffered a nervous breakdown following decedent's death and if her present husband was in good health. Nothing had been brought to the court's attention to indicate any play for sympathy because of Mrs. Jones's condition (46 Cal. App. 3d 436, 451-452).

Jonte v. Key System (1949) 89 Cal. App. 2d 654, 201 P.2d 562 , was a personal injury action against a transportation company in which the court of appeal affirmed judgment for plaintiff and an order denying defendant's motion for a new trial. During trial, counsel stated that defendant was accustomed to trying to ``beat'' claims of its patrons by such means as subjecting them to the expense of lawsuits, influencing witnesses, confusing evidence, and using political influence. Although the court concluded that counsel's statements constituted misconduct, the court's admonition to the jury to disregard the statements cured the error and the denial of the motion for new trial was proper (89 Cal. App. 2d 654, 659-660).

McCabe v. Cheseldine (1931) 117 Cal. App. 526, 4 P.2d 282 , was an action for personal injuries in which the court of appeal affirmed judgment for plaintiff and an order denying defendant's motion for a new trial. During his argument to the jury, plaintiff's counsel referred to defendant as a ``potential murderer.'' The court stated that assuming that the expression had no place in the case, it did not result in a miscarriage of justice and that a new trial was not necessary (117 Cal. App. 526, 527).

Porter v. Granich (1934) 136 Cal. App. 523, 29 P.2d 220 , was a false imprisonment action in which the court of appeal affirmed judgment for plaintiff and an order denying a motion for new trial. During trial, plaintiff's counsel habitually mispronounced defendant's name, Granich, and referred to his client as an ``American boy'' in an effort to prejudice the jury against a man with a foreign name. The court stated that the trial court was in a better position to pass on this point than it was and that the lower court's decision did not appear to be an abuse of discretion (136 Cal. App. 523, 531).

Aydlott v. Key System Transit Co. (1930) 104 Cal. App. 621, 286 P. 456 , was a personal injury action in which the court of appeal affirmed judgment for plaintiff and an order denying defendant's motion for a new trial. During trial, plaintiff's counsel stated that since plaintiff could no longer work, she could not help her husband pay for their home and they had to move to a house over a garage. Counsel also stated that plaintiff was in danger of becoming a public charge. Although the court stated that remarks that attempt to unjustly enlist the jury's sympathies and prejudices are always improper and should be avoided, it decided that the trial judge's decision to deny the motion was proper since the verdict did not appear to have been influenced by misconduct of counsel (104 Cal. App. 621, 628-629).
[e]--Reference During Argument to Existence of Facts Not Proven During Trial
Rather v. City & County of San Francisco (1947) 81 Cal. App. 2d 625, 184 P.2d 727 , was a personal injury action in which the court of appeal affirmed judgment for defendants and an order denying plaintiff's motion for a new trial. During trial, defendants' counsel repeatedly told the jury that he had an eyewitness to the accident, but he never produced this witness. The court of appeal stated that the trial court was in a better position to decide whether or not the situation worked to the prejudice of plaintiff, and since the trial court decided that no prejudice resulted, its denial of the motion was upheld (81 Cal. App. 2d 625, 637-639).
[f]--Insinuation of Untrue or Inadmissible Matters on Cross Examination
Liberty Bank v. Nonnenmann (1929) 96 Cal. App. 478, 274 P. 568 , was an action on two promissory notes executed by defendants in which the court of appeal affirmed judgment for defendant and an order denying plaintiff's motion for a new trial. During his cross examination of a witness, defense counsel repeatedly referred to a verdict in another case, in which judgment had been reversed, with the innuendo that another jury had found plaintiff guilty of fraud. The court stated that the evidence so amply supported the verdict for defendants that the same result would have been reached even if counsel had not made reference to the other verdict (96 Cal. App. 478, 487-488).
155.151 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Misconduct Cured by Timely Objection and Admonition
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE ADVERSE PARTY BECAUSE COUNSEL'S ALLEGED MISCONDUCT WAS CURED BY A TIMELY OBJECTION AND ADMONITION, THUS _________________ [PLAINTIFF or DEFENDANT] WAS NOT PREVENTED FROM HAVING A FAIR TRIAL AND HIS/HER/ITS SUBSTANTIAL RIGHTS WERE NOT MATERIALLY AFFECTED.

A. Casual Statement Cured by Court's Action. A new trial will not be granted if counsel's allegedly prejudicial statement was a casual one with no effort at repetition to aggravate the effect and if the trial court acted promptly to correct the impropriety by directing the jury to disregard the statement and by reprimanding counsel ( Drotleff v. Renshaw (1949) 34 Cal. 2d 176, 180, 208 P.2d 969 ).

B. Impropriety Correctable Except in Extreme Cases. It is only in extreme cases that the court, when acting promptly, and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove the effect his or her conduct or remarks would otherwise have ( Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 211-212, 260 Cal. Rptr. 431 ).

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on the misconduct of a party or a party's counsel. In an appropriate case, this memorandum may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.130 et seq.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the inconsequential nature of the alleged misconduct and show that the moving party was not deprived of a fair trial because of the court's admonition to the jury and reprimand of the adverse party or adverse party's counsel.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Casual Statement Cured by Court's Action
In Drotleff v. Renshaw (1949) 34 Cal. 2d 176, 208 P.2d 969 , plaintiff brought an action for personal injuries suffered in an automobile collision. During closing argument, plaintiff's attorney informed the jury that he did not bring a certain doctor to testify in the case because plaintiff could not afford the expense. After judgment for plaintiff, defendants moved for a new trial on the basis of prejudicial misconduct of plaintiff's attorney. The motion was denied, and defendants appealed the judgment.

The Supreme Court affirmed the judgment, stating that the conduct of plaintiff's attorney did not operate to prejudice against defendants in relation to the fixing of the amount of the verdict. Other physicians testified sufficiently to establish by a preponderance of the evidence that the particular injuries to plaintiff had occurred. Even though the reference to plaintiff's financial condition was improper and should not have been made, the reference was a casual one, with no effort at repetition to aggravate the effect. The trial court acted promptly to correct the impropriety and remove any effect it otherwise might have had, not only in directing the jury to disregard the objectionable statement, but in reprimanding plaintiff's attorney with an admonition to confine his remarks to the evidence in the case. Under these circumstances, the Court could not say that the reference in question contributed to the amount of the verdict. Moreover, the alleged consequences of the cited reference were fully but unavailingly argued before the trial court as grounds for a new trial. There appeared to be no reason to disturb the trial court's conclusion on these points (34 Cal. 2d 176, 180-181).
[b]--Impropriety Correctable Except in Extreme Cases
Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 260 Cal. Rptr. 431 , was a personal injury action based on a collision between plaintiff's motorcycle and defendant's automobile. During trial, plaintiff's counsel repeatedly sought to introduce improper evidence of a police officer's opinion of the fault of the accident, and defendant's counsel objected. The jury found in favor of plaintiff and judgment was entered against defendant. Defendant thereafter moved for new trial on the ground that misconduct of plaintiff's attorney resulted in prejudice because defendant was unable to cross-examine the officer on the subject of the opinion, thus depriving defendant of a fair trial. The trial court denied the motion and defendant appealed.

The court of appeal affirmed judgment. The court stated that plaintiff's attorney's attempts to find other theories of relevancy or admissibility of the officer's opinion did not overstep the permissible line of proper lawyering conduct. The court also concluded that even were the acts to constitute misconduct, they would not be prejudicial, because it was a lengthy trial, aggressively litigated on both sides, with many witnesses and with frequent objections being made on both sides; the officer's opinion was not a major theme of the trial; the trial court maintained firm control of the proceedings, which resulted in an impartial and dignified atmosphere; and the admonitions given to the jury were sufficient to remove any impropriety and prejudice which could have resulted from the attorney's conduct. The court also quoted Tingley v. Times Mirror (1907) 151 Cal. 1, 23, 89 P. 1097 , stating that it is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have (212 Cal. App. 3d 201, 213-214).
[4]--Additional Authorities
[a]--Casual Statement Cured by Court's Action
The factual and procedural background of Curcio v. Svanvik (1984) 155 Cal. App. 3d 955, 202 Cal. Rptr. 499 , is discussed in 155.150[4][d]. In affirming, the court of appeal held that any possible prejudice resulting from a reference by plaintiff's counsel during direct examination to plaintiff's receipt of a Purple Heart in Vietnam was surely cured by the trial court's admonition to the jury that they were not to consider as evidence any statements of counsel (155 Cal. App. 3d 955, 962-963).

Hart v. Wielt (1970) 4 Cal. App. 3d 224, 84 Cal. Rptr. 220 , the court of appeal affirmed the denial of defendant's motion for new trial based on argument of plaintiff's counsel in which he stated that plaintiff was a burden on taxpayers and subject to charity because of her personal injuries. Even though the references to charity were improper, the trial court admonished the jury to decide the case on facts and law, not on appeals to emotion. The court felt that this admonition cured the error and that no prejudice resulted from the improper conduct (4 Cal. App. 3d 224, 234-235).
155.152 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Waiver for Failure to Make Timely Objection to Misconduct
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE ADVERSE PARTY, BECAUSE THE MOVING PARTY FAILED TO MAKE A TIMELY OBJECTION TO _________________ [PLAINTIFF'S or DEFENDANT'S] ALLEGED MISCONDUCT DURING TRIAL AND HE/SHE/IT CANNOT RAISE THE IRREGULARITY FOR THE FIRST TIME ON A MOTION FOR NEW TRIAL.

Failure of Moving Party to Make Timely Objection. A motion for new trial, based on the misconduct of a party or a party's counsel, will be denied if a timely and proper objection is not made at trial, since a party cannot await the outcome of the case and raise the irregularity for the first time on a motion for new trial ( Sabella v. Southern Pac. Co. (1969) 70 Cal. 2d 311, 319-320, 74 Cal. Rptr. 534, 449 P.2d 750 ; Horn v. Atchison T. & S.F. Ry. Co. (1964) 61 Cal. 2d 602, 609-611, 39 Cal. Rptr. 721, 394 P.2d 561 ; Jackson v. Barnett (1958) 160 Cal. App. 2d 167, 171-172, 324 P.2d 643 ).

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on the misconduct of a party or a party's counsel. In an appropriate case, this memorandum may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.130 et seq.
[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 that the moving party, knowing of the alleged misconduct, failed to make a timely objection to it. Counsel may also argue that the moving party should not be allowed to raise the question for the first time on motion for new trial after awaiting the outcome of trial and receiving an unfavorable verdict [see Jackson v. Barnett (1958) 160 Cal. App. 2d 167, 172, 324 P.2d 643 ].
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Failure of Moving Party to Make Timely Objection
The factual and procedural background of Sabella v. Southern Pac. Co. (1969) 70 Cal. 2d 311, 74 Cal. Rptr. 534, 449 P.2d 750 , is discussed in 155.150[3][b].

The Supreme Court affirmed judgment for plaintiff even though it concluded that plaintiff's counsel was guilty of deplorable misconduct which might have been prejudicial (70 Cal. 2d 311, 318). During trial, defendant did not object to the allegedly prejudicial remarks except on one occasion. When defendant did object, he failed to request an admonition of the jury to disregard the remarks. The Court stated that in the absence of a timely objection, the offended party is deemed to have waived the claim of error through his or her participation in the atmosphere which produced the claim of prejudice (70 Cal. 2d 311, 319). It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his or her conduct or remarks would otherwise have (70 Cal. 2d 311, 318). Since defendant remained silent as to all but one line of argument, the Court concluded that defendant must be denied relief (70 Cal. 2d 311, 319).

In Horn v. Atchison T. & S.F. Ry. Co. (1964) 61 Cal. 2d 602, 39 Cal. Rptr. 721, 394 P.2d 561 , plaintiff brought an action under the Federal Employers' Liability Act [ 45 U.S.C. 51 ] and the Safety Appliance Act [ 45 U.S.C. 2 ] for personal injuries suffered while working as an employee of defendant railroad company. During trial, plaintiff's counsel made frequent abusive remarks directed at defendant and its witnesses. Counsel also asked the jury members to fix damages as if they or a loved one were the injured party. Counsel for defendant did not object to the claimed instances of misconduct during trial. At the conclusion of opposing counsel's closing argument, defendant's counsel moved for a mistrial. The motion was denied. The trial court also denied defendant's motion for a new trial, which was made on numerous grounds, including misconduct of plaintiff's counsel.

The Supreme Court affirmed judgment for plaintiff, stating that defendant waived its right to complain by its failure to make timely objections (61 Cal. 2d 602, 609-610). In the absence of a timely objection, the offended party is deemed to have waived the claim of error through his or her participation in the atmosphere which produced the claim of prejudice. The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel, and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his or her conduct or remarks would otherwise have. In this case, the Court stated that misconduct of plaintiff's counsel could have been obviated by timely objections and instructions. An attack on the instances of misconduct at the onset, together with proper instruction from the court to both the jury and counsel, would not only have removed the effect of the initial improprieties, but would also have forestalled the commission of subsequent acts of misconduct (61 Cal. 2d 602, 610-611).

In Jackson v. Barnett (1958) 160 Cal. App. 2d 167, 324 P.2d 643 , plaintiff brought an action for personal injuries suffered in a fall from the balcony of defendant's store. During trial, the judge left the courtroom to discuss an objection in chambers with counsel for the respective parties. Defendant remained on the witness stand and allegedly remarked, ``I guess they want to talk about something they don't want us to hear,'' and the jury laughed. After verdict was rendered for defendant, plaintiff moved for a new trial on the basis of defendant's misconduct. The motion was denied.

The court of appeal affirmed the judgment and the denial of the motion, since the claimed error was not called to the attention of the court until after the return of a verdict and on a motion for new trial. Plaintiff's wife noticed the irregularity, but no action was taken by plaintiff or his counsel. The court indicated that the trial court was justified in denying the motion on this ground. Furthermore, although the remark should not have been made, it was probably true. It also affirmatively appeared that the jurors did not participate in the conversation or consider it as having any effect on them (160 Cal. App. 2d 167, 172).
[4]--Additional Authorities
[a]--Failure of Moving Party to Make Timely Objection
The factual and procedural background of Curcio v. Svanvik (1984) 155 Cal. App. 3d 955, 202 Cal. Rptr. 499 , is discussed in 155.150[4][d]. In affirming, the court of appeal held that defendant had waived its claim of misconduct based on the reference of plaintiff's counsel during trial to the relative wealth of defendant, because the record failed to disclose a timely and proper objection and a request that the jury be admonished (155 Cal. App. 3d 955, 963).

Hansen v. Warco Steel Corp. (1965) 237 Cal. App. 2d 870, 47 Cal. Rptr. 428 , was a personal injury action in which the court of appeal affirmed judgment for plaintiff and the denial of plaintiff's motion for a new trial based on the allegedly prejudicial misconduct of defendant's counsel. The court stated that counsel was guilty of serious misconduct in arguing the importance of an excluded document and in asking the jury to draw an inference because plaintiff's attorney had made an objection that the court had sustained. Because plaintiff did not object or request that the jury be admonished, however, he waived the claim of error and could not demand a retrial after hearing a disappointing verdict (237 Cal. App. 2d 870, 878-879).
155.153 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Reference to Insurance Not Prejudicial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE COUNSEL'S REFERENCE TO THE FACT OF LIABILITY INSURANCE DID NOT PREVENT _________________ [PLAINTIFF or DEFENDANT] FROM HAVING A FAIR TRIAL AND DID NOT MATERIALLY AFFECT HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. No Prejudice to Opposing Party. In a personal injury action, a new trial will not be granted because of a reference to insurance if the reference caused no prejudice to the opposing party ( Hatfield v. Levy Brothers (1941) 18 Cal. 2d 798, 813-814, 117 P.2d 841 ; Hart v. Wielt (1970) 4 Cal. App. 3d 224, 230-233, 84 Cal. Rptr. 220 ).

B. Court Must View Overall Record. In a closely balanced case, whether counsel's reference to insurance constitutes prejudicial misconduct that cannot be cured by the court's admonition is determined by the court's view of the overall record, taking into account the nature and seriousness of the remarks, the good faith of counsel, whether the misconduct consisted of a single utterance or repeated persistent reiteration thereof, the judge's control of the trial, and the probable likelihood of prejudicing the jury ( Neumann v. Bishop (1976) 59 Cal. App. 3d 451, 473, 130 Cal. Rptr. 786 ).

[Optional ] C. Reference to Insurance During Voir Dire. In a personal injury action, counsel may, in good faith, ask prospective jurors whether they are interested in a particular insurance company so long as the question does not unnecessarily convey the impression that a party is in fact insured ( Hart v. Wielt (1970) 4 Cal. App. 3d 224, 230, 84 Cal. Rptr. 220 ).

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on opposing counsel's alleged misconduct in injecting the fact of liability insurance into trial. It generally opposes a motion for new trial supported by the points and authorities contained in 155.136.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show the inconsequential nature of the reference to insurance and how this reference did not deprive the moving party of a fair trial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--No Prejudice to Opposing Party
In Hatfield v. Levy Brothers (1941) 18 Cal. 2d 798, 117 P.2d 841 , plaintiffs, husband and wife, brought an action for personal injuries sustained when one plaintiff fell inside defendants' store. While cross examining a witness during trial, plaintiffs' counsel asked about a conversation that occurred immediately after the accident. In that conversation, the witness related that she told plaintiff that the store was insured. After the witness was excused, defendants moved for a mistrial. The court denied the motion, but instructed the jury that insurance was not involved in the case. After verdict for plaintiffs, defendants moved for a new trial on the basis of opposing counsel's misconduct. When the motion was denied, defendants appealed the judgment.

The Supreme Court affirmed, stating that it did not believe that defendants could claim prejudice in view of all the circumstances. No objection was made by defendants until the witness had left the stand. Defendants never made a motion to strike and never asked the court to instruct the jury to disregard the references. Furthermore, there was nothing in cross examination of plaintiff's counsel that indicated a design and intent to inject insurance into the case and thereby influence the jury. Since the witness was defendants' and not plaintiffs', it cannot be presumed that plaintiffs' counsel knew what the answer would be, as might be the case if plaintiffs or one of their witnesses were testifying. Under the circumstances, the Court stated that it was not inclined to disturb the trial court's denial of the motion (18 Cal. 2d 798, 813-814).

In Hart v. Wielt (1970) 4 Cal. App. 3d 224, 84 Cal. Rptr. 220 , plaintiff brought an action for personal injuries sustained in an automobile accident. During voir dire examination of a prospective juror, plaintiff's counsel asked if he or any member of his family were employed by or owned stock in State Farm Insurance Company. During trial, counsel asked plaintiff several questions about medical bills and examinations and plaintiff's answers contained references to State Farm. When plaintiff's counsel cross examined defendants' private investigator, it was revealed that the private investigator had previously worked at State Farm. After judgment for plaintiff, defendants' motion for a new trial made on several grounds, including misconduct of plaintiff's counsel, was denied. Defendants appealed the judgment.

The court of appeal affirmed the judgment, concluding that there was no prejudicial error in the repeated references to insurance. Although the court said that it was aware of the thin line that exists in this area, it felt that the line had not been crossed. Furthermore, the court stated that the trial court impliedly found no misconduct, or at least no prejudice, when ruling on the motion for new trial. A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and the court's conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. Since the decision of the trial court did not appear to be plainly wrong, the court upheld the denial of defendant's motion (4 Cal. App. 3d 224, 232-233).
[b]--Court Must View Overall Record
In Neumann v. Bishop (1976) 59 Cal. App. 3d 451, 130 Cal. Rptr. 786 , plaintiff brought an action for personal injuries sustained in an automobile accident. During trial, plaintiff's attorney referred to defendant as ``defense interests,'' a term that allegedly was an improper reference to insurance. After judgment for plaintiff, defendant's motion for a new trial on several grounds, including misconduct of plaintiff's counsel, was denied, and defendant appealed the judgment. The court of appeal affirmed, stating that, in a closely balanced case, whether counsel's improper reference to insurance constitutes misconduct that cannot be cured by the court's admonition is determined by the court's view of the overall record, taking into account, inter alia, the nature and seriousness of the remarks, the good faith of counsel, whether the misconduct consisted of a single utterance or repeated, persistent reiteration thereof, the judge's control of the trial, and the probable likelihood of prejudicing the jury. In this case, counsel's references were ambiguous at best and suffered from a lack of objection. The court stated that if defense counsel felt that the issue of insurance had been improperly interjected into the case, he should have asked for an admonishing instruction to be given to the jury. The court conceded that such an instruction might ``blow smoldering coals into a blazing fire of speculation,'' but if defense counsel thought that such speculation would occur anyway, he should have asked for an instruction. Since the court felt that there was no demonstrable prejudicial misconduct in hinting at the existence of insurance, it affirmed the denial of defendant's motion for a new trial (59 Cal. App. 3d 451, 473).
[c]--Reference to Insurance During Voir Dire
The factual and procedural background of Hart v. Wielt (1970) 4 Cal. App. 3d 224, 84 Cal. Rptr. 220 , is discussed in [a], above. During voir dire examination of prospective jurors, plaintiff's counsel asked if he or any member of his family were employed by or owned stock in the State Farm Insurance Company. Counsel for defendants made no timely objection and did not request that the jury be admonished. After judgment for plaintiff, defendants' motion for a new trial made on several grounds, including plaintiff's counsel's misconduct, was denied. Defendants appealed the judgment.

The court of appeal affirmed the judgment, stating that in a personal injury action, counsel may, in good faith, ask prospective jurors whether they are interested in a particular insurance company so long as the question does not unnecessarily convey the impression that defendant is in fact insured. The court stated that it found no evidence of bad faith in this case, and even though plaintiff's counsel referred to insurance at other times during trial, the court stated that it found no prejudicial error (4 Cal. App. 3d 224, 230). Accordingly, the court upheld the trial court's denial of the motion.

The decision in Hart v. Wielt was sharply criticized by the court of appeal in another case, Scally v. Pacific Gas & Electric Co. (1972) 23 Cal. App. 3d 806, 100 Cal. Rptr. 501 . In the Scally case, the court stated that to suggest that such a question can be asked without telling the jury that a party is in fact insured is naivete of the highest order. Any lawyer or judge who has observed or participated in jury voir dire knows that such questions are asked for one purpose only--to convey the impression that a party is insured (23 Cal. App. 3d 806, 813). For further discussion of the Scally case, see 155.136[3][f].
[4]--Additional Authorities
[a]--No Prejudice to Opposing Party
Rocray v. Pasadena City Lines, Inc. (1958) 159 Cal. App. 2d 265, 323 P.2d 772 , was a personal injury action in which the court of appeal affirmed judgment for plaintiff and an order denying defendant transit company's motion for a new trial. Defendant claimed that plaintiff's counsel prejudicially and unnecessarily made references to insurance when counsel repeatedly referred to defendant's claims manager. However, the court of appeal felt that no prejudice resulted from counsel's conduct and it upheld the denial of the motion (159 Cal. App. 2d 265, 271-275).

Covely v. C.A.B. Construction Co. (1952) 110 Cal. App. 2d 30, 242 P.2d 87 , was a wrongful death action against a construction company in which the court of appeal affirmed judgment for defendants and the denial of plaintiffs' motion for a new trial. Plaintiffs claimed that defense counsel improperly brought the subject of insurance into the case when he stated in his argument to the jury that the accident was an industrial accident for which the law provides workers' compensation. However, the court of appeal agreed with the trial court's determination that no prejudice had resulted, and it decided not to disturb the trial court's denial of plaintiffs' motion (110 Cal. App. 2d 30, 35-36).

Adams v. Southern Pacific Co. (1947) 82 Cal. App. 2d 560, 186 P.2d 729 , was a personal injury action against a railroad company in which the court of appeal affirmed judgment for defendants and an order denying plaintiffs' motion for a new trial. Plaintiffs claimed that defendants' attorney was guilty of prejudicial misconduct in questioning witnesses on cross examination with respect to compensation insurance which was carried by plaintiffs' employer and in referring to that insurance in his argument to the jury. However, the court concluded that defense attorney's conduct resulted in no prejudice to plaintiffs, since the existence of compensation insurance was shown with the express consent of plaintiffs' counsel, and plaintiffs may not complain of evidence that was adduced with their consent (82 Cal. App. 2d 560, 564).
[b]--Reference to Insurance During Voir Dire
Shriver v. Silva (1944) 65 Cal. App. 2d 753, 151 P.2d 528 , was a personal injury action in which the court of appeal affirmed judgment for plaintiffs and upheld an order denying defendants' motion for a new trial. Defendants claimed that plaintiffs' counsel was guilty of prejudicially injecting the fact of insurance into the case during voir dire examination of the jury. However, the court of appeal stated that counsel may, in good faith, ask a prospective juror whether he or she is interested in any insurance company as long as the questions do not convey the impression that defendant is in fact insured. In this case, the court said that it was doubtful whether the question asked by plaintiffs' counsel contained any implication that defendants were insured, and if it did convey that impression, the statement by defense attorney and by the trial court that no insurance company was involved in the action negated any prejudicial effect (65 Cal. App. 2d 753, 762).

Jones v. Bayley (1942) 49 Cal. App. 2d 647, 122 P.2d 293 , was a personal injury action in which the court of appeal affirmed judgment for plaintiffs and the denial of defendants' motion for a new trial. Defendants claimed that plaintiffs' counsel prejudicially and unnecessarily brought the matter of insurance before the jury during voir dire examination. However, the court stated that counsel may, in good faith, ask whether a prospective juror is interested in insurance as long as the questions do not unnecessarily convey the impression that a party is in fact insured. Since the court found that no prejudice resulted from counsel's conduct, it upheld the denial of defendants' motion (49 Cal. App. 2d 647, 658-659).
155.154 Opposing Motion for New Trial [Code Civ. Proc. 659]--Irregularity of Proceedings Due to Adverse Party [Code Civ. Proc. 657(1)]--Reference to Insurance Was Relevant to Material Issue
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED ON THE GROUND OF IRREGULARITY IN THE PROCEEDINGS OF THE ADVERSE PARTY BECAUSE COUNSEL'S REFERENCE TO INSURANCE WAS RELEVANT TO A MATERIAL ISSUE IN THE CASE, THUS _________________ [PLAINTIFF or DEFENDANT] WAS NOT DEPRIVED OF A FAIR TRIAL AND HIS/HER/ITS SUBSTANTIAL RIGHTS WERE NOT MATERIALLY AFFECTED.

A. Relevance to Issue in Case. In a personal injury action, counsel may refer to the existence of insurance if it is relevant to a material issue in the case ( Huber v. Henry J. Kaiser Co. (1945) 71 Cal. App. 2d 278, 285, 162 P.2d 693 ; Brown v. McCuan (1942) 56 Cal. App. 2d 35, 40, 132 P.2d 838 ).

[Optional ] B. Facts Tending to Show Interest, Bias, or Motive. Facts tending to show interest, bias, or motive on the part of a witness may always be brought out on cross examination, even though it may thereby be disclosed that a party was protected by insurance ( Hart v. Wielt (1970) 4 Cal. App. 3d 224, 231, 84 Cal. Rptr. 220 ).

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 adverse party [ Code Civ. Proc. 657(1)[Deering's] ] based on opposing counsel's reference to insurance during trial. It generally opposes a motion for new trial that is supported by the points and authorities set out in 155.136.
[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 reference to insurance was relevant to the case and how the reference did not prevent the moving party from having a fair trial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Relevance to Issue in Case
In Huber v. Henry J. Kaiser Co. (1945) 71 Cal. App. 2d 278, 162 P.2d 693 , plaintiff brought an action against a third party to recover damages for personal injuries suffered in the course of his employment. His employer had already paid compensation and plaintiff, through his attorney, filed a notice of lien in the case for compensation for benefits his employee had paid plaintiff. During defense counsel's argument, he made reference to the compensation insurance. The court instructed the jury that it was not to consider the fact of compensation insurance in determining the amount damages to be awarded plaintiff, if damages were to be awarded. After judgment was rendered for defendants, plaintiff moved for a new trial on the basis of prejudicial misconduct of defendants' attorney. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, stating that when the existence of compensation insurance is relevant to a material issue, it may be discussed in argument and considered by the jury. Here, the existence of insurance was a fact of record that could not be kept from the jury. Furthermore, the jury had been properly instructed on its lack of relevance to the issue of damages. The court of appeal stated that when the case comes to it after the trial judge has denied a new trial, the judgment must be affirmed unless there is no reasonable basis for his or her finding. Since the court felt that there had been a reasonable basis for the trial judge's finding, it did not disturb the denial of the motion (71 Cal. App. 2d 278, 285-286).

In Brown v. McCuan (1942) 56 Cal. App. 2d 35, 132 P.2d 838 , plaintiff brought an action for personal injuries sustained in an automobile accident. During trial, defendant's counsel asked the doctor, who testified to the nature of plaintiff's injury, who had referred plaintiff to him. The doctor answered that the insurance company had done so. During counsel's final argument, he again referred to the insurance company in order to cast doubt on the integrity of plaintiff's witnesses. After judgment for defendant, plaintiff moved for a new trial on the basis of defendant's counsel's misconduct. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed, stating that there is nothing to prevent a prejudicial fact such as the existence of insurance from going before the jury as long as it is relevant to an issue in the case. Here the jury might have found the testimony of the doctor to have been biased by reason of his connection with the insurance company. The evidence objected to was admissible to prove that theory. Furthermore, plaintiff himself put the fact that an insurance company was involved in the case before the jury. He introduced exhibits for medical expenses that were all addressed to the insurance carrier, attempted to impeach one of defendant's witnesses with a written statement given to an insurance investigator, and also made references to insurance during his final argument. Since the trial court had found that no prejudice had existed in the case, the court of appeal upheld the determination (56 Cal. App. 2d 35, 40-41). The court stated that it could not assume that the jury denied plaintiff any recovery because it believed that he might get compensation from another source. It was more reasonable, the court maintained, to assume that the verdict followed the evidence on the issues of the case (56 Cal. App. 2d 35, 41-42).
[b]--Facts Tending to Show Interest, Bias, or Motive
The factual and procedural background of Hart v. Wielt (1970) 4 Cal. App. 3d 224, 84 Cal. Rptr. 220 , is discussed in 155.153[3][a]. During the cross examination of defendants' private investigator by plaintiff's counsel, it was revealed that the private investigator had previously worked for State Farm Insurance Company. Plaintiff's counsel added that defendants' counsel was the attorney for State Farm. He also made other references to insurance during the trial and had made such references during the voir dire examination of prospective jurors. After judgment for plaintiff, defendants' motion for a new trial, made on several grounds, including the misconduct of plaintiff's counsel, was denied. Defendants appealed the judgment.

The court of appeal affirmed the judgment, stating that in a personal injury action, counsel may, in good faith, ask prospective jurors whether they are interested in a particular insurance company so long as the question does not unnecessarily convey the impression that the defendant is insured. The court concluded that there was no evidence of bad faith in this case (4 Cal. App. 3d 224, 230). Furthermore, quoting Moniz v. Bettencourt (1938) 24 Cal. App. 2d 718, 74 P.2d 535 , the court said that facts tending to show interest, bias, or motive on the part of a witness may always be brought out on cross examination, even though it may thereby be disclosed that defendant was protected by insurance (4 Cal. App. 3d 224, 231). In Hart, the court of appeal noted that the trial court had denied defendant's motion for a new trial and for judgment notwithstanding the verdict. The court of appeal stated that the lower court impliedly found no misconduct, or at least no prejudice when ruling on these motions (4 Cal. App. 3d 224, 233). During trial, defense counsel immediately objected to the misconduct of counsel and the lower court admonished the jury that the case was to be decided on facts and law, not on ``emotional feelings'' (p. 234). After examining the entire record, the court of appeal found that there was no prejudicial error and affirmed the judgment (4 Cal. App. 3d 224, 236).
155.155-155.169 [Reserved]

4 Accident or Surprise
155.170 Supporting Motion for New Trial [Code Civ. Proc. 659]--Accident or Surprise [Code Civ. Proc. 657(3)]
[1]--FORM


[Caption. See 155.50[1]. ]

A NEW TRIAL SHOULD BE GRANTED BECAUSE A(N) _________________ [ACCIDENT and/or SURPRISE] OCCURRED AT TRIAL THAT MATERIALLY AFFECTED _________________ [PLAINTIFF'S or DEFENDANT'S] SUBSTANTIAL RIGHTS, AGAINST WHICH ORDINARY PRUDENCE COULD NOT HAVE GUARDED.

A. New Trial on Ground of Accident or Surprise. 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 of accident or surprise, against which ordinary prudence could not have guarded, if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. 657(3)[Deering's] ).

B. Accident and Surprise Defined. The terms, accident and surprise, although not strictly synonymous, have substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed, to his or her injury, without any default or negligence of his or her own and which ordinary prudence could not have guarded against ( Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432, 189 P.2d 271 ).

C. Different Result Probable on Retrial. A new trial may be granted on the ground of accident or surprise if the aggrieved party shows that in the event of a new trial, a different result would be reached that will be favorable to that party ( Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 738, 64 P.2d 960 ).

D. Exercise of Ordinary Prudence to Guard Against Surprise or Accident. A new trial may be granted if the aggrieved party has exercised ordinary prudence to guard against the surprise or accident ( Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 739-740, 64 P.2d 960 ).

[Optional ] E. Failure to Seek Continuance or Ask for Relief at Time of Surprise. A new trial may be granted even though the aggrieved party has failed to seek a continuance or to ask for relief at the time of the accident or surprise, if no practicable steps that counsel could have taken would have effaced the disastrous effect of the accident or surprise (see Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 737, 64 P.2d 960 ).

[Optional ] F. Raising New Material Issue by Adverse Party. A new trial may be granted on the ground of accident or surprise if, during the trial, the adverse party raises a new issue that did not appear in the pleadings and that is supported by testimony contrary to what was anticipated ( Blankman v. Parsons (1925) 73 Cal. App. 218, 224-225, 238 P. 728 ).

[Optional ] G. Raising New Material Issue by Court at Close of Trial. A new trial may be granted on the ground of accident or surprise if the court, at the close of trial, raises a new material issue not raised by the pleadings ( Lavely v. Nonemaker (1931) 212 Cal. 380, 386-387, 298 P. 976 ).

[Optional ] H. Testimony by Own Witness Contrary to Anticipated Testimony. If a party has used reasonable diligence to ascertain what his or her witness will testify, has reasonable grounds to believe that the witness will testify to a certain state of facts, relies on the witness to do so, but the witness does not do so at trial and the case is lost in consequence, a new trial may be granted on the ground of accident or surprise ( Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 736, 64 P.2d 960 ).

[Optional ] I. Abandonment of Case by Counsel Without Notice. The complete abandonment of the case of the aggrieved party by his or her counsel without any notice or ground for anticipating the abandonment is an accident or surprise for which a new trial may be granted ( Peoples F. & T. Co. v. Phoenix Assur. Co. (1930) 104 Cal. App. 334, 336-337, 285 P. 857 ).

[Optional ] J. Presentation by Adverse Party of Unknown and Nondiscoverable Material Evidence. The presentation by the adverse party during trial of unknown and nondiscoverable material evidence is an accident or surprise for which a new trial may be granted ( Delmas v. Martin (1870) 39 Cal. 555, 556-557 ).

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 accident or surprise, which ordinary prudence could not have guarded against [ Code Civ. Proc. 657(3)[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 show how the accident or surprise could not have been guarded against with the use of ordinary prudence and how the moving party was prevented from having a fair trial.
[c]--Supporting Declarations or Affidavits Required
A motion for new trial made on the ground of accident or surprise 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 on the ground of accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[e]--Opposing Points and Authorities
The points and authorities set out in 155.180 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Accident and Surprise Defined
In Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 189 P.2d 271 , plaintiffs brought an action for damages due to personal injuries suffered in an automobile collision. During trial, an eyewitness, subpoenaed by plaintiffs, failed to appear. Plaintiffs had planned to use him as a rebuttal witness. After verdict was rendered for defendant, plaintiffs moved for a new trial on the sole ground of accident or surprise which ordinary prudence could not have guarded against [ Code Civ. Proc. 657(3)[Deering's] ]. When the motion was granted, defendant appealed the order.

Although the Supreme Court reversed the order, it defined the terms ``accident'' and ``surprise,'' stating that although not strictly synonymous, the terms have substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed, to his or her injury, without any default or negligence of his or her own, and against which ordinary prudence could not have guarded. However, when a situation arises that might constitute legal surprise, counsel cannot speculate on a favorable verdict. He or she must act at the earliest possible time for the right to a new trial on the ground of surprise. This right is waived if, when the surprise is discovered, it is not made known to the court, and no motion is made for a mistrial or continuance of the cause. In this case, since the litigant did not take prompt action when confronted by the absence of a material witness, the Court held that the trial court's granting of the motion was improper and it reversed the order granting a new trial (31 Cal. 2d 429, 432-434).
[b]--Different Result Probable on Retrial
In Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 64 P.2d 960 , plaintiff brought an action for personal injuries against defendant. During trial, one of defendant's witnesses testified that a mark on the highway was of recent occurrence. Defendant expected the witness to testify that it was an old mark in order to show that it was made by defendant's car and that the car was on the proper side of the highway. After verdict was rendered for plaintiff, defendant moved for a new trial on the ground of surprise occurring at trial [ Code Civ. Proc. 657(3)[Deering's] ]. When the motion was granted, plaintiff appealed the order.

The court of appeal affirmed the order even though plaintiff had contended that the showing of surprise was insufficient since it was not shown that a different result was probable in the event of a new trial. The court stated that the lower court apparently believed that a different result might have been reached and that this conclusion was not wholly unfounded. In a new trial, the witness would testify as he originally stated to the attorney. Even if the witness were not called as a witness in a new trial, the court said that defendant's case would be in much better shape than it was when the witness testified against him. Although the court admitted that the witness's testimony regarding the age of the mark was a mere conclusion and would be inadmissible as evidence, the court stated that on a new trial, if objection were made, the witness could testify to the physical condition of the mark and leave it for the jury to conclude what its age might be. While the rule is that one seeking relief on the ground of surprise must show what case he or she could establish in the event of a new trial and that a different result favorable to him or her would be reached, it cannot be said in this case that the lower court manifestly abused its discretion in holding that such a showing was made. Accordingly, the court affirmed the order (18 Cal. App. 2d 730, 738-739).
[c]--Exercise of Ordinary Prudence to Guard Against Surprise or Accident
The factual and procedural background of Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 64 P.2d 960 , is discussed in [b], above. During trial, the testimony of a defense witness differed from the statement that he made originally to defense counsel. When defendant's motion for a new trial on the ground of surprise was granted, plaintiff appealed the order.

The court of appeal affirmed the order, even though the plaintiff maintained that defendant failed to explain why he did not exercise ordinary prudence in guarding against any surprise occurring at trial. The court stated that neither ordinary nor extraordinary prudence could have guarded against the witness's change in testimony without warning. According to affidavits on which the lower court based its action, counsel had interviewed the witness before he came into court. There was nothing from this interview or during any time prior to the delivery of the changed testimony that gave defense counsel any intimation that the witness would testify differently than he previously related. The witness claimed that he became confused on the witness stand, but whether this claim was true or not, the court stated that the net result was testimony that defendant neither expected nor could have reasonably anticipated. The court said that defendant need only show that the reason for the change is not chargeable to himself or herself, and having done so, defendant need not go further in this regard. Since defendant did show that he was in no way responsible or prepared for the actions of the witness, the court concluded that the motion for a new trial was properly granted (18 Cal. App. 2d 730, 739-740).
[d]--Failure to Seek Continuance or Ask for Relief at Time of Surprise
The factual and procedural background of Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 64 P.2d 960 , is discussed in [b], above. During trial, the testimony of a defense witness differed from the statement that he originally made to defense counsel. When defendant's motion for a new trial on the ground of accident or surprise was granted, plaintiff appealed the order.

The court of appeal affirmed the order even though defendant failed to take immediate action at trial by moving for a continuance or by introducing new testimony. The court stated that the general rule was that a party surprised at trial must apply for relief at the earliest practicable moment, and in such method as to produce the least vexation, expense, and delay. A party will not be allowed to speculate on the chances of a favorable decision on other points, and if an unfavorable result is produced, that party cannot fall back on a motion for new trial on the ground of surprise (18 Cal. App. 2d 730, 735). In this case, however, the lower court held that there was nothing that counsel could have done that would have adequately met the situation. The lower court evidently felt, from its familiarity with the case, that the witness's testimony created an effect that nothing could obviate. The court of appeal noted that a continuance would probably have been futile under the circumstances and an attempt at impeachment might only have made matters worse. Furthermore, the court of appeal conceded that the trial judge was in a better position to determine whether there were any practicable steps that counsel should reasonably have been required to take at trial that would have effaced the disastrous effect of the testimony. Hence, the court of appeal concluded that it could not be said, from a complete examination of the entire record, that the lower court's conclusion was unwarranted. Therefore, the court affirmed the order (18 Cal. App. 2d 730, 737).
[e]--Raising New Material Issue by Adverse Party
In Blankman v. Parsons (1925) 73 Cal. App. 218, 238 P. 728 , plaintiff brought an action against an administrator of decedent's estate to recover money allegedly loaned to the decedent. The administrator filed a cross complaint against plaintiff. During trial, defendant's counsel introduced testimony that various payments had been made to plaintiff by decedent pursuant to a grubstake agreement. However, there was nothing in defendant's cross complaint to give warning to plaintiff, who at the time of trial was in Alaska, that defendant would introduce testimony concerning the grubstake agreement. After judgment was rendered against plaintiff, plaintiff moved for a new trial on the ground of accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. When the motion was denied, plaintiff appealed the judgment.

The court of appeal reversed the judgment with instructions to the trial court to grant plaintiff and cross defendant a new trial (73 Cal. App. 218, 225). The court stated that there was nothing in the pleadings that would have given warning to plaintiff or counsel that the testimony would be introduced, and if it came as a surprise to plaintiff's counsel, justice and equity demanded that the plaintiff be given an opportunity to put forth the claim. The peculiar circumstances of this case, the plaintiff being in Alaska and the other party to the transaction being dead, coupled with the fact that much of the testimony introduced on behalf of defendant was hearsay, required a little more leniency to enable the parties to have the case decided on the merits (73 Cal. App. 218, 223). The court concluded that the situation was squarely within the new trial provisions of Code Civ. Proc. 657(3)[Deering's] , on the ground of accident or surprise, and Code Civ. Proc. 657(4)[Deering's] , on the ground of newly discovered evidence, and that plaintiff was entitled to a new trial (73 Cal. App. 218, 225).
[f]--Raising New Material Issue by Court at Close of Trial
In Lavely v. Nonemaker (1931) 212 Cal. 380, 298 P. 976 , plaintiff father brought an action to cancel a deed on the ground of fraud and undue influence against defendant daughter. Although the pleadings in the case did not raise the issue of delivery of the deed, the trial court questioned plaintiff concerning the circumstances surrounding the execution of the deed. The court found the allegations of fraud and undue influence to be untrue, and also found that there had been no valid delivery of the deed. At the conclusion of the trial, the court permitted plaintiff to amend his complaint to conform to the proof and to allege that there was no delivery of the deed. After judgment for plaintiff, defendant moved for a new trial specifying, among other grounds, that it was error to allow the amendment after the evidence had been closed, and asserting surprise which ordinary prudence could not have guarded against [ Code Civ. Proc. 657(3)[Deering's] ]. When the motion was denied, defendant appealed the judgment.

The Supreme Court reversed the judgment, stating that defendant's motion for a new trial on the ground of surprise should have been granted in order that she might be afforded the opportunity to meet this new issue so unconsciously injected into the case by the queries of the court (212 Cal. 380, 387). The Court said that amendments of pleadings to conform to the proof should not be allowed when they raise new issues not included in the original pleadings and on which the adverse party had no opportunity to defend (212 Cal. 380, 385). The record failed to disclose that defendant was given an opportunity, either on the trial of the cause or at any subsequent time, to meet or rebut this new issue aimed at the validity of the deed under which she claimed title. Accordingly, the Court reversed the judgment (212 Cal. 380, 386-388).
[g]--Testimony by Own Witness Contrary to Anticipated Testimony
The factual and procedural background of Whitfield v. Debrincat (1937) 18 Cal. App. 2d 730, 64 P.2d 960 , is discussed in [b], above. During trial, defendant's witness testified differently from what was expected by defendant's attorney. After verdict was rendered for plaintiff, defendant's motion for a new trial on the ground of accident or surprise was granted, and plaintiff appealed the order.

The court of appeal affirmed the order, stating that if a party has used reasonable diligence to ascertain what his or her witness will testify to, has reasonable grounds to believe that the witness will testify to a certain state of facts, relies on his or her doing so, but the witness does not do so and the case is lost in consequence, a new trial will be granted (18 Cal. App. 2d 730, 736). In this case, defense counsel interviewed the witness before trial and anticipated that the witness would testify that a mark on the highway was an old mark in order to show that it was made by defendant's car. However, the witness testified that the mark was of recent occurrence. The court stated that there were other cases to the effect that the mere fact that the witness of a party swears contrary to the party's expectation does not furnish adequate ground for granting a new trial, but all cases agree that if the witness suddenly changes front, by collusion with the party against whom he or she is called, or fails to testify in accordance with previous assurances, by reason of any fact or occurrence for which neither the witness nor the party calling the witness is in any measure responsible, a new trial will be granted as a matter of right (18 Cal. App. 2d 730, 734-735). After examining the record in the case, the court was convinced that the lower court did not abuse its discretion in granting a new trial. Accordingly, the court affirmed the order (18 Cal. App. 2d 730, 740).
[h]--Abandonment of Case by Counsel Without Notice
Peoples F. & T. Co. v. Phoenix Assur. Co. (1930) 104 Cal. App. 334, 285 P. 857 , was an action in which defendants' attorneys abandoned their case without notice to defendants who lacked knowledge that their attorneys of record were not looking after their interests. After judgment for plaintiff, defendants were granted a new trial on the ground of accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. Plaintiff appealed the order.

The court of appeal affirmed the order granting a new trial, stating that the attorneys' conduct was a complete abandonment of the case and was an accident and surprise that defendants could not, in the exercise of ordinary prudence, have guarded against. Affidavits filed in support of the motion indicated that defendants had retained attorneys of established reputation to represent them. These attorneys had a conference with defendants' agents, had advised defendants of a good and valid defense to the action, and had filed an answer to the complaint. The notice of the time set for trial was served on the attorneys, but they failed to appear at trial, and failed to notify defendants of the date of trial, so that defendants had no notice or knowledge of the trial until long after the rendition and entry of judgment against them. The court stated that a client has a right to assume and rely on his or her attorneys of record to make the necessary appearances for the protection of that party's rights. If the attorneys abandon the client's interests without notice or any ground for anticipating the abandonment, the abandonment will constitute accident or surprise for which a new trial will be granted (104 Cal. App. 334, 336-337). Therefore, the court affirmed the lower court's granting of defendants' motion for a new trial (104 Cal. App. 334, 340).
[i]--Presentation by Adverse Party of Unknown and Nondiscoverable Material Evidence
In Delmas v. Martin (1870) 39 Cal. 555 , plaintiff brought an action to recover certain land that plaintiff claimed had been conveyed to him by deed. During trial, plaintiff introduced an unrecorded deed that conveyed the land to plaintiff a few days prior to trial. After a verdict was rendered for plaintiff, defendants moved for a new trial on several grounds, including the ground of accident and surprise [ Code Civ. Proc. 657(3)[Deering's] ]. Defendants claimed that they had been surprised by the production of the deed to plaintiff at trial and were unable to call a certain rebuttal witness who lived a considerable distance from the place of trial. When defendants' motion was denied, they appealed the judgment.

The Supreme Court reversed the judgment and ordered a new trial, stating that surprise was sufficiently established and a new trial should have been granted on that ground. Defendants had no reason to infer that the grantor would have made this conveyance to plaintiff. Furthermore, the Court found that defendants were not guilty of laches and rejected plaintiff's contention that defendants had not come to trial prepared with adequate proof of title, since the deed was not recorded but produced at trial from the custody of plaintiff (39 Cal. 555, 556-557). Even though defendants did not move for a continuance at trial, the Court relaxed the general rule that a party surprised at trial must apply for relief at the earliest practicable moment. In this case, the deed presented by plaintiff was the last evidence offered at trial, and the trial court immediately proceeded to charge the jury. The Court stated that it perceived nothing in the record to justify the belief that defendants and their counsel did not act in good faith in omitting to apply for a continuance, and it was satisfied that defendants were surprised within the meaning of the statute. Therefore, the Court reversed the judgment and ordered a new trial (39 Cal. 555, 557-558).
[4]--Additional Authorities
[a]--Failure to Seek Continuance or Ask for Relief at Time of Surprise
The factual and procedural background of Delmas v. Martin (1870) 39 Cal. 555 , is discussed in [I], above. Even though defendants did not move for a continuance when surprised at trial, under the circumstances of the case, the Supreme Court relaxed the general rule that a party surprised at trial must apply for relief at the earliest practicable moment. The Court stated that it perceived nothing in the record to justify the belief that defendants did not act in good faith and that it was satisfied that defendants were surprised within the meaning of the statute (39 Cal. 555, 557-558).
[b]--Testimony by Own Witness Contrary to Anticipated Testimony
Rodriguez v. Comstock (1864) 24 Cal. 85 , was an action for ejectment in which the Supreme Court reversed judgment for plaintiffs and ordered a new trial for defendants. During trial, defendants were surprised by the testimony of their own witness who testified differently from how he previously stated that he would testify. The Court stated that if a witness suddenly changes his testimony, by collusion with the party against whom he is called, or fails to testify in accordance with his or her previous assurances, by reason of any fact or occurrence for which neither the party calling the witness nor the witness is responsible, a new trial will be granted as a matter of right (24 Cal. 85, 89).
155.171-155.179 [Reserved]

155.180 Opposing Motion for New Trial [Code Civ. Proc. 659]--Accident or Surprise [Code Civ. Proc. 657(3)]--Moving Party Failed to Exercise Ordinary Prudence
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD BE DENIED BECAUSE _________________ [PLAINTIFF or DEFENDANT] FAILED TO EXERCISE ORDINARY PRUDENCE TO GUARD AGAINST THE ACCIDENT OR SURPRISE AT TRIAL.

A. Court's Suspicion of Ground. The courts have traditionally looked on the granting of a new trial on the ground of accident or surprise with suspicion, and a motion on this ground is seldom successful ( Fletcher v. Pierceall (1956) 146 Cal. App. 2d 859, 866, 304 P.2d 770 ).

B. Failure to Exercise Ordinary Prudence. A new trial will not be granted on the ground of accident or surprise if ordinary prudence could have guarded against and prevented the surprise and the moving party was negligent under the circumstances (see Wade v. De Bernardi (1970) 4 Cal. App. 3d 967, 971-972, 84 Cal. Rptr. 817 ).

[Optional ] C. Testimony by Witness Contrary to Anticipated Testimony. While a trial court may grant a motion for a new trial on the ground of accident or surprise when it appears that a party is misled by a witness as to the evidence expected from that party, or is unexpectedly presented with claimed perjured testimony, the court is not compelled to grant the motion when the evidence related to an issue that is obviously within the issues to be tried ( Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 206, 250 P.2d 166 ).

[Optional ] D. Absence of Material Witness. The absence of a material witness does not warrant the granting of a new trial on the ground of surprise, since the parties are bound to use reasonable diligence in endeavoring to procure the attendance of witnesses, and, in the case of their nonappearance, to move for a continuance (see Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432-433, 189 P.2d 271 ; Baker v. Berreman (1943) 61 Cal. App. 2d 235, 237-238, 142 P.2d 448 ).

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 accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. It may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.170.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of how the accident or surprise could have been guarded against if the moving party had used ordinary prudence.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Court's Suspicion of Ground
In Fletcher v. Pierceall (1956) 146 Cal. App. 2d 859, 304 P.2d 770 , plaintiff brought an action to recover damages for personal injuries sustained when the car in which plaintiff was riding as a guest was hit from the rear by a car driven by defendant. During trial, a witness for defendant testified that there were certain signs posted on the freeway where the accident occurred. After the witness had testified, however, he discovered that the area was not signposted on the day of the accident. After verdict was rendered for defendant, plaintiff moved for a new trial on the grounds of surprise and newly discovered evidence. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed, stating that from a very early date the courts have held that surprise, as a ground for a motion for a new trial, should be looked on with suspicion [relying on Schellhous v. Ball (1866) 29 Cal. 605 ]. A motion on this ground is seldom successful because the moving party must make a showing of injury, a showing of diligence, and a showing that he or she did not unduly delay in seeking redress. In this case, the court stated that plaintiff did not exercise reasonable diligence that would require a reversal of the order denying a new trial. Reasonable diligence would seem to have required that the attorney, before trial, should have investigated whether the highway was or was not signposted. Thus, the court affirmed the judgment (146 Cal. App. 2d 859, 865-867).
[b]--Failure to Exercise Ordinary Prudence
In Wade v. De Bernardi (1970) 4 Cal. App. 3d 967, 84 Cal. Rptr. 817 , plaintiffs brought an action for wrongful death and personal injuries arising out of an automobile accident with defendants. Defendants filed a cross complaint. During trial, plaintiffs' expert testified adversely regarding the speed of the two vehicles at the time of the accident. After a verdict was rendered for defendants on the complaint, and in favor of plaintiffs on the cross complaint, plaintiffs' motion for a new trial on the ground of accident or surprise was granted [ Code Civ. Proc. 657(3)[Deering's] ]. Defendants appealed from the order.

The court of appeal reversed the order, stating that surprise as a ground for a new trial denotes some condition or situation in which a party to an action is unexpectedly placed to his or her detriment. The condition or situation must have been such that ordinary prudence on the part of the person claiming surprise could not have guarded against and prevented it. Such party must not have been negligent in the circumstances. In this case, the court stated that the plaintiffs failed to exercise due diligence to protect themselves against potentially adverse testimony from the expert witness. The declarations in support of and in opposition to the granting of the motions showed that the witness was employed by the plaintiffs on May 14, 1968, to give expert testimony at trial on July 31, 1968. No reports were rendered by the witness, nor was contact made with him, until the afternoon of the last day of trial, at which time a brief oral interview was accomplished. No estimate of the speed of plaintiffs' vehicle was ever solicited prior to trial. There was no evidence in the record to suggest that plaintiffs sought a pretrial interview with their other expert, an officer of the highway patrol, who they then declared had evidence favorable to them on this issue. Since it was apparent to the court that the plaintiffs had no justification whatsoever for expecting favorable testimony from the expert witness, the court reversed the order granting plaintiffs a new trial (4 Cal. App. 3d 967, 971-972).
[c]--Testimony by Witness Contrary to Anticipated Testimony
In Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 250 P.2d 166 , plaintiff brought an action for personal injuries suffered when he allegedly slipped on defendants' cafe floor. Defendants claimed that plaintiff's injury was caused when the screwdriver he was using slipped upward into his eye. During trial, defendants produced a screwdriver that allegedly was not the screwdriver that plaintiff had used at the time of the accident. After a verdict was rendered for defendants, plaintiff moved for a new trial on the grounds of newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ] and accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. Plaintiff's counsel claimed that he learned of the testimony of additional witnesses after trial and that he did not know of the existence of the screwdriver. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed judgment for defendants, stating that while a trial court may grant a motion for a new trial on the ground of accident and surprise when it appears that a party is misled by a witness as to the evidence expected from him or her, or is unexpectedly presented with claimed perjured testimony, the court is not compelled to grant the motion when the evidence relates to an issue that is obviously within the issues to be tried. The surprise must be the result of some fact or circumstance occurring at trial that could not reasonably have been anticipated and is of such importance or magnitude in its influence on the result at trial as to have produced injury or damage to the rights of the moving party (114 Cal. App. 2d 198, 206). The court stated that the mere giving of testimony contrary to the interests of a party, or even the fact that false testimony has thus been given, although wholly unexpected by that party, will not always operate as a predicate for the awarding of a new trial on that issue (114 Cal. App. 2d 198, 206-207). In examining the facts of this case, the court stated that it is not certain that the proffered testimony would be of such a nature that, if accepted, a different result would have been reached by the jury. Furthermore, the plaintiff did not claim at trial that he was surprised by the production of the screwdriver, nor did he request a continuance to secure opposing evidence. Under these circumstances, the court stated that the trial court did not abuse its discretion in denying the motion for a new trial (114 Cal. App. 2d 198, 207).
[d]--Absence of Material Witness
The factual and procedural background of Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 189 P.2d 271 , is discussed in 155.170[3][a]. The Supreme Court reversed an order granting plaintiffs a new trial, stating that when a situation arises that might constitute legal surprise, counsel must act at the earliest possible moment, since the right to a new trial on the ground of surprise is waived if, when the surprise is discovered, it is not made known to the court, and no motion is made for a mistrial or continuance of the cause. Although plaintiffs conceded that a litigant must take prompt action when he or she is confronted by the absence of a material witness, the Court disagreed with their contention that they were excused from asking for a continuance because they did not have time for deliberation as to the effect of not calling the witness. In this case, the Court said that plaintiffs and their counsel knew that the witness would not be able to attend before they commenced the presentation of rebuttal evidence. Defendant's attorney suggested a continuance so that the witness might testify, but opposing counsel stated that he did not intend to have the case continued and that if anything went wrong he would move for a new trial. The Court held that this amounted to an express statement that counsel intended to speculate on a favorable verdict. The Court felt that plaintiffs were disappointed rather than surprised. Accordingly, the Court reversed the order granting a new trial (31 Cal. 2d 429, 432-434).

In Baker v. Berreman (1943) 61 Cal. App. 2d 235, 142 P.2d 448 , plaintiffs brought an action for wrongful death caused by an automobile accident. An eyewitness to the accident agreed to testify at trial; however, two days prior to trial, he informed plaintiffs that he could not appear at trial because he had been inducted into the army and the outbreak of war made it impossible for him to attend. After judgment for defendants, plaintiffs moved for a new trial on several grounds, including the ground of accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. When the motion was granted, defendants appealed the order.

The court of appeal reversed the order, stating that the absence of a witness does not warrant the granting of a new trial on the ground of surprise, since the parties are bound to use reasonable diligence in endeavoring to procure the attendance of witnesses, and, in the case of their nonappearance, to move for a continuance. The court stated that here the record shows that the witness had never been subpoenaed, nor had any attempt been made to take his deposition, although up to two days prior to the trial plaintiffs were given ample opportunity to do so. Furthermore, two days prior to the commencement of trial, the witness notified plaintiffs that he would not be able to attend, and plaintiffs did not request a continuance, nor did they at any time intimate to the court or opposing counsel that they had suffered any accident or surprise because of the absence of any witness (61 Cal. App. 2d 235, 237-238). Since there was a lack of diligence in failing to procure the deposition of the witness, and a failure to bring the matter to the attention of the court, the court concluded that the lower court's order granting plaintiffs a new trial was not sustainable (61 Cal. App. 2d 235, 240-246).
[4]--Additional Authorities
[a]--Failure to Exercise Ordinary Prudence
In In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 242 Cal. Rptr. 649 , the court of appeal held that a wife's motion for a new trial in an annulment action was properly denied. In considering the merits of her motion, it held that she could not obtain a new trial on the ground of accident or surprise that ordinary prudence would not have guarded against. She claimed that the negligence of her own attorney created an accident or surprise that she could not have guarded against because of her limited knowledge of English and lack of familiarity with American culture. However, it is established that trial counsel's negligence is not a ground on which a new trial may be granted (197 Cal. App. 3d 143, 154-155).

The factual and procedural background of Fletcher v. Pierceall (1956) 146 Cal. App. 2d 859, 304 P.2d 770 , is discussed in [3][a], above. The court of appeal affirmed judgment for defendant, finding that the trial court's denial of plaintiff's motion for a new trial was proper. The court stated that plaintiff did not sufficiently exercise reasonable diligence in the case. Reasonable diligence would have required plaintiff's attorney to make an investigation of whether or not the highway was signposted at the time of the accident so that plaintiff would not have been surprised by the witness's testimony (146 Cal. App. 2d 859, 865-867).

The factual and procedural background of Baker v. Berreman (1943) 61 Cal. App. 2d 235, 142 P.2d 448 , is discussed in [3][d], above. The court of appeal reversed an order granting plaintiffs a new trial on the ground of accident or surprise. Although one of plaintiffs' material witnesses failed to appear at trial, the court stated that there was a lack of diligence in failing to procure the testimony of the witness. In this case, plaintiffs knew for two and one-half months before trial that the witness had been inducted into the army and might be transferred at any time. Plaintiffs failed, however, to procure the deposition of the witness. Therefore, the court reversed the order (61 Cal. App. 2d 235, 239-240).
[b]--Testimony by Witness Contrary to Anticipated Testimony
Rudin v. Luman (1921) 53 Cal. App. 212, 199 P. 874 , was an action to recover the rental value of property in which the court of appeal affirmed judgment for plaintiffs, finding that an order denying defendant's motion for a new trial was proper. During trial, one of plaintiffs' witnesses testified differently from what was expected. The court stated that the mere giving of testimony contrary to the interests of the party, or even the fact that false testimony has been given, will not always operate as a predicate for awarding a new trial. Furthermore, no grounds exist for the granting of a new trial on the basis of surprise when the alleged surprise is clearly within the issues presented by the pleadings (53 Cal. App. 212, 220-221).
155.181 Opposing Motion for New Trial [Code Civ. Proc. 659]--Accident or Surprise [Code Civ. Proc. 657(3)]--Moving Party Failed to Show Different Result Probable on Retrial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE _________________ [PLAINTIFF or DEFENDANT] HAS FAILED TO SHOW THAT THERE IS OTHER EVIDENCE THAT COULD PRODUCE A DIFFERENT RESULT ON RETRIAL.

A. Court's Suspicion of Ground. [See 155.180[1], Paragraph A. ]

B. Failure to Show Different Result Probable on Retrial. A new trial will not be granted on the ground of accident or surprise if the moving party has failed to show that there is other evidence that could produce a different result on retrial. ( Wade v. De Bernardi (1970) 4 Cal. App. 3d 967, 972, 84 Cal. Rptr. 817 ).

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 accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. It may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.170.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss how the moving party has failed to show that there is other evidence that could produce a different result of retrial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Failure to Show Different Result Probable on Retrial
The factual and procedural background of Wade v. De Bernardi (1970) 4 Cal. App. 3d 967, 84 Cal. Rptr. 817 , is discussed in 155.180[3][b]. After plaintiffs' motion for a new trial was granted on the ground of accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ], defendants appealed the order.

The court of appeal reversed the order, stating that even if the surprise was in no way attributable to plaintiffs' lack of diligence in investigation, it afforded no grounds for granting plaintiffs a new trial because there was no showing that plaintiffs will have other evidence that could produce a different result on retrial. Although plaintiffs indicated that, on retrial, they planned to introduce the testimony of a highway patrol officer regarding the speed of plaintiffs' car, they made no effort to demonstrate that they had other evidence on the speed of the defendant's car or that their expert witness would change his adverse testimony. The court said that even assuming that plaintiffs will merely delete the testimony of the expert witness on this point at the new trial, the court did not believe that it was reasonably possible that a different result would be forthcoming. Plaintiffs had not shown that this testimony was a material influence on the jury. They made no effort to show that the testimony substantially affected the jurors and, therefore, that a different verdict could reasonably be expected if this testimony were omitted. Under these circumstances, the court concluded that the surprise was not a sufficient basis for granting a new trial (4 Cal. App. 3d 967, 972-973).
[4]--Additional Authorities
[a]--Failure to Show Different Result Probable on Retrial
Wilson v. Kopp (1952) 114 Cal. App. 2d 198, 250 P.2d 166 , was an action for personal injuries in which the court of appeal affirmed judgment for defendants, noting that the order denying plaintiff's motion for a new trial was proper. Plaintiff's attorney averred that he did not learn of the identity or testimony of three witnesses until after the date of trial and that he did not know of the existence of a certain item produced in evidence until after defendants had produced it at trial. The court stated that it was not certain that the proffered evidence was of such a nature that, if accepted, a different result would have been reached by the jury. Thus, the court affirmed the judgment (114 Cal. App. 2d 198, 207).

McNary v. Hanley (1933) 131 Cal. App. 188, 20 P.2d 966 , was an action for personal injuries in which the court of appeal affirmed judgment for plaintiff, noting that the order denying defendant's motion for a new trial on the ground of accident or surprise was proper. During trial, certain witnesses testified contrary to their written statements made prior to trial. The court stated that defendant must show facts that establish that he can produce a different result on retrial. Since the witnesses were confronted with their inconsistent statement while on the witness stand and the jury weighed the worth of their testimony in light of these inconsistencies, there was no showing that a new trial would change the result in the case. Therefore, the court affirmed the judgment for plaintiff (131 Cal. App. 188, 190).
155.182 Opposing Motion for New Trial [Code Civ. Proc. 659]--Accident or Surprise [Code Civ. Proc. 657(3)]--Moving Party Waives Ground if No Action Was Taken at Trial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE _________________ [PLAINTIFF or DEFENDANT] FAILED TO TAKE ACTION AT TRIAL WHEN THE ACCIDENT OR SURPRISE WAS DISCOVERED; HENCE, HE/SHE/IT HAS WAIVED THE GROUND ON A SUBSEQUENT MOTION FOR NEW TRIAL.

A. Court's Suspicion of Ground. [See 155.180[1], Paragraph A. ]

B. Waiver of Ground If No Immediate Action. When a situation arises that might constitute legal surprise, counsel cannot speculate on a favorable verdict, but must act at the earliest possible moment, since the right to a new trial on the ground of surprise is waived if, when the surprise is discovered, it is not made known to the court, and no motion is made for a mistrial or a continuance of the cause ( Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432, 189 P.2d 271 ).

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 accident or surprise [ Code Civ. Proc. 657(3)[Deering's] ]. It may, in an appropriate case, be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.170.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the moving party's failure to take action during trial when the accident or surprise was discovered and should argue that this failure to take action constituted a waiver of the ground.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Waiver of Ground If No Immediate Action
The factual and procedural background of Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 189 P.2d 271 , is discussed in 155.170[3][a]. The Supreme Court reversed an order granting plaintiffs a new trial, stating that when a situation arises that might constitute legal surprise, counsel cannot speculate on a favorable verdict. He or she must act at the earliest possible time because the right to a new trial on the ground of surprise is waived if, when the surprise is discovered, it is not made known to the court, and no motion is made for a mistrial or continuance of the cause. In this case, since the litigant did not take prompt action when confronted by the absence of a material witness, the Court held that the trial court's granting of the motion was improper, and it reversed the order granting the new trial (31 Cal. 2d 429, 432-434).
[4]--Additional Authorities
[a]--Waiver of Ground If No Immediate Action
McCown v. Spencer (1970) 8 Cal. App. 3d 216, 87 Cal. Rptr. 213 , was an action for breach of an escrow agreement in which the court of appeal reversed a judgment for defendants notwithstanding the verdict and an order granting defendants a new trial in the alternative. When a situation arose that might have constituted legal surprise, defendants' counsel did not claim surprise and move for a continuance, ask to reopen the case and produce further evidence, or move for a mistrial. The court stated that the right to a new trial on the ground of surprise is waived if, when the surprise is discovered, it is not made known to the court and no motion for a mistrial or continuance is made. Since there was no timely claim of surprise in this case, the court held that the granting of a new trial on this ground was error (8 Cal. App. 3d 216, 228).
155.183-155.189 [Reserved]

5 Newly Discovered Evidence
155.190 Supporting Motion for New Trial [Code Civ. Proc. 659]--Newly Discovered Evidence [Code Civ. Proc. 657(4)]
[1]--FORM


[Caption. See 155.50[1]. ]

A NEW TRIAL SHOULD BE GRANTED BECAUSE THERE IS NEWLY DISCOVERED EVIDENCE THAT IS MATERIAL FOR _________________ [PLAINTIFF or DEFENDANT], WHICH HE/SHE/IT COULD NOT, WITH REASONABLE DILIGENCE, HAVE PRODUCED AT TRIAL; THUS, THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] HAVE BEEN MATERIALLY AFFECTED.

A. New Trial on Ground of Newly Discovered Evidence. 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 of newly discovered evidence, material for the party making the application, which he or she could not, with reasonable diligence, have discovered and produced at trial, if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. 657(4)[Deering's] ).

B. Requirements for Granting of Motion. In order for a trial court to grant a new trial on the ground of newly discovered evidence, it must satisfactorily appear that reasonable diligence was used to discover and produce the evidence at trial; that the newly discovered evidence is not merely cumulative; and that it may be reasonably inferred that the result of the trial would have been different if the newly discovered evidence had been presented at trial ( Cahill v. E.B. & A.L. Stone Co. (1914) 167 Cal. 126, 133, 138 P. 712 ; see Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 909-910, 83 Cal. Rptr. 888 ).

C. Newly Discovered Evidence. Evidence is newly discovered if it was not available at the time of trial and could not have been discovered with reasonable diligence (see Andersen v. Howland (1970) 3 Cal. App. 3d 380, 384, 83 Cal. Rptr. 308 ; Dasso v. Bradbury (1940) 39 Cal. App. 2d 712, 717, 104 P.2d 128 ).

D. Reasonable Diligence. Reasonable diligence is exercised when the moving party has made every reasonable effort to produce the new evidence before the case was submitted to the jury and no grounds for estoppel appear ( Celli v. French (1951) 107 Cal. App. 2d 599, 603, 237 P.2d 536 ).

E. Materiality. A new trial is proper on the ground of newly discovered evidence if the evidence is material to the issues and of so important a character as to render a different result probable on retrial ( Oberlander v. Fixen & Co. (1900) 129 Cal. 690, 691, 62 P. 254 ; Brannock v. Bromley (1939) 30 Cal. App. 2d 516, 520, 86 P.2d 1062 ).

[Optional ] F. Cumulative Evidence Showing Different Result Probable. Even if the newly discovered evidence is cumulative, a new trial may be granted if that evidence renders a different result probable on retrial ( Cahill v. E.B. & A.L. Stone Co. (1914) 167 Cal. 126, 135, 138 P. 712 ).

[Optional ] G. Failure to Move for Continuance. When the moving party does not know the nature or materiality of the newly discovered evidence, and the procurement of a continuance would have been impossible, it is not a lack of due diligence to fail to ask for a continuance ( Andersen v. Howland (1970) 3 Cal. App. 3d 380, 383, 83 Cal. Rptr. 308 ).

[Optional ] H. Newly Discovered Witness. A new trial may be granted on the ground of newly discovered evidence when the moving party, after resting his or her case, discovers a new witness whose testimony may clarify the situation and might affect the outcome of the case (see Celli v. French (1951) 107 Cal. App. 2d 599, 602, 237 P.2d 536 ).

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 newly discovered evidence, material for the party making the application, which he or she could not, with reasonable diligence, have discovered and produced at trial [ Code Civ. Proc. 657(4)[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 show that the evidence is newly discovered, that reasonable diligence has been exercised in its discovery and production, and that the evidence is material to the moving party's case [see Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 909-910, 83 Cal. Rptr. 888 ].
[c]--Supporting Declarations or Affidavits Required
A motion for new trial made on the ground of newly discovered evidence must be supported by declarations or affidavits [ Code Civ. Proc. 658[Deering's] ; see Code Civ. Proc. 2015.5[Deering's] ]. In order to sufficiently show that the moving party exercised reasonable diligence, the affidavit or declaration should specifically enumerate facts that show the steps taken by the moving party or counsel to find the newly discovered evidence in time for trial [see Brannock v. Bromley (1939) 30 Cal. App. 2d 516, 522, 86 P.2d 1062 ].
[d]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[e]--Opposing Points and Authorities
The points and authorities set out in 155.200 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Requirements for Granting of Motion
In Cahill v. E.B. & A.L. Stone Co. (1914) 167 Cal. 126, 138 P. 712 , plaintiff brought an action for personal injuries suffered when his foot was caught under the wheels of a railroad car. A demurrer to the complaint was sustained, but on appeal the judgment was reversed, and the case was then set for trial seven years after the accident had occurred. Defendant, relying on the assurance of counsel that the judgment would be affirmed on appeal, made no attempt to preserve evidence, but routinely destroyed the old records containing the names of the employees present at the time and place of the accident. At trial, defendant could only ascertain the names of two employees, but it later learned of other employees who could give material testimony. After verdict was rendered for plaintiff, defendant's motion for a new trial was granted on the ground of newly discovered evidence.

The Supreme Court affirmed the order, stating that in order for a trial court to grant a new trial on the ground of newly discovered evidence, it must satisfactorily appear, among other things, that reasonable diligence was used to discover and produce the evidence at the former trial; that the newly discovered evidence was not merely cumulative; and that it may be reasonably inferred that the result of the trial would have been different if the newly discovered evidence had been presented at trial (167 Cal. 126, 133). The Court found that the defendant exercised reasonable diligence in the discovery and the production of the evidence, since it appeared that representatives of the defendant were working to secure the evidence on its behalf for several weeks prior to trial and that there was no source of information that indicated the identity of the newly discovered witnesses (167 Cal. 126, 134). Furthermore, the Court chose not to disturb the trial court's determination that even though the evidence may have been cumulative, it might have produced a different result had it been introduced at trial (167 Cal. 126, 135). Accordingly, the Court affirmed the order granting a new trial (167 Cal. 126, 141).

In Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 83 Cal. Rptr. 888 , plaintiffs brought an action for wrongful death of their son in an automobile accident with defendant. On July 20, 1965, plaintiffs received a letter from a Mr. Andrus in which he stated that he and his wife arrived on the scene and heard defendant say ``he didn't know what had happened but thought the other car swerved in front of him, although he couldn't say for sure.'' On February 2, 1968, plaintiffs' attorney attempted to have Andrus served with a subpoena for attendance in court on February 5; on February 5, counsel was informed that Andrus had moved and could not be located; on February 7, an investigator reported that Andrus had been located, but by that time the case had gone to the jury. After verdict was rendered for defendant, plaintiffs moved for a new trial on several grounds, including newly discovered evidence and insufficiency of the evidence to support the verdict. When the motion was granted on both grounds, defendant appealed the order granting the new trial.

Although the court of appeal reversed the order granting the motion, it reiterated the essential elements that must be established for the granting of a new trial on the ground of newly discovered evidence. These elements are that the evidence must be newly discovered, that reasonable diligence has been exercised in its discovery and production, and that the evidence is material to the movant's case. In this case, the court felt that the declaration by plaintiffs' counsel was fatally deficient in material respects. The evidence was not newly discovered since the plaintiffs had the letter from Andrus two and one-half years before trial, there was no showing of due diligence in the production of the evidence, and the evidence was not shown to have been material to the movants' case. Accordingly, the court reversed the order (3 Cal. App. 3d 904, 910).
[b]--Newly Discovered Evidence
In Andersen v. Howland (1970) 3 Cal. App. 3d 380, 83 Cal. Rptr. 308 , plaintiff brought an action for personal injuries sustained when her car was struck from behind by defendant's car. During trial, plaintiff's treating doctor testified regarding the whiplash injury to her neck. A radiologist, who had not yet testified, discovered a previously undiagnosed fracture of plaintiff's cervical vertebra. However, the radiologist did not testify regarding the existence of the fracture at trial. Plaintiff's treating physician had left the jurisdiction and could not be immediately brought back to court to testify concerning the significance of the discovery. After verdict was rendered for plaintiff in the amount of $2,800, plaintiff was denied a new trial on the ground of newly discovered evidence, and she appealed the judgment.

The court of appeal reversed the judgment, stating that the evidence was newly discovered within the meaning of Code Civ. Proc. 657(4)[Deering's] . The court said that the new evidence was not the discovery of the fracture by the radiologist; it was the later-developed opinion of the treating physician that further painful and disabling arthritis would be suffered. The opinion of a qualified expert was itself evidence, though it was partly based on other evidence such as x-ray pictures already put before the jury. The new opinion was highly material evidence; it did not exist at the time of trial, but was newly discovered when it was communicated to counsel after the treating physician had completed a reexamination of plaintiff. Furthermore, the court deferred to the trial court's finding that plaintiff was not guilty of a lack of due diligence in the case. Accordingly, the court reversed the judgment (3 Cal. App. 3d 380, 384-385).

In Dasso v. Bradbury (1940) 39 Cal. App. 2d 712, 104 P.2d 128 , plaintiffs brought an action for personal injuries suffered when an automobile that one plaintiff was driving was struck by an automobile owned by defendants but operated by their chauffeur. At the time of the accident, neither defendant was riding in the car, and defendants denied that the chauffeur was acting within the scope and course of his employment and authority. After judgment was rendered for defendants, plaintiffs moved for a new trial on several grounds, including the ground of newly discovered evidence. Plaintiffs claimed that they had located a witness who had new evidence showing that defendant told her chauffeur to get gasoline when the accident occurred. When the motion was granted, defendants appealed the order, contending that plaintiffs failed to show that the evidence was newly discovered and that it could not with reasonable diligence have been discovered and produced at trial.

The court of appeal affirmed the order, holding that the evidence was newly discovered and that plaintiffs had exercised reasonable effort to discover and produce it at trial. The court stated that a party who relies on the ground of newly discovered evidence must have made a reasonable effort to produce all the evidence at trial, and that party will not be allowed a new trial for the purpose of introducing evidence known and obtainable at trial, or which would have been known if he or she simply had exercised reasonable effort to discover and present it. In this case, the court felt that plaintiffs did not lack diligence in attempting to produce the evidence at trial. Accordingly, the court affirmed the order (39 Cal. App. 2d 712, 717-718).
[c]--Reasonable Diligence
In Celli v. French (1951) 107 Cal. App. 2d 599, 237 P.2d 536 , plaintiff brought an action for personal injuries when he was struck by defendant's automobile. The main question at trial was whether or not defendant had been traveling on the wrong side of the street. None of plaintiff's witnesses were able to testify to this matter. After verdict was rendered in favor of the defendant, plaintiff moved for a new trial on the ground of newly discovered evidence. Plaintiff claimed that he had discovered a new witness that could clarify this situation. When the motion was granted, defendant appealed the order.

The court of appeal affirmed the order, stating that every reasonable effort was made to produce the new evidence before the case was submitted to the jury and no grounds for estoppel appeared. Plaintiff's counsel made a considerable effort for several months to discover any witnesses who might know facts material to the case by interviewing all of the neighbors near the scene of the accident. He had gone twice to the house sometimes occupied by the new witness, finding it closed and unoccupied, and no one had told him that the witness was present at the scene of the accident. There was no evidence of anything that could reasonably be expected to have indicated to the plaintiff that this new witness had been present at the scene, or that she knew of any facts that were material to the action that was pending. Furthermore, plaintiff was not estopped from seeking a new trial since he did not request a continuance. He acted as soon as the new evidence became known and before the close of trial, trying to have the case reopened and offering to pay the expense of bringing defendant back from Oregon. When his requests were denied, he made a timely motion for a new trial. Accordingly, the court held that the lower court did not abuse its discretion in making the order (107 Cal. App. 2d 599, 603).
[d]--Materiality
In Oberlander v. Fixen & Co. (1900) 129 Cal. 690, 62 P. 254 , plaintiff brought an action for personal injuries suffered when she fell down a staircase leading to defendant's storeroom. After judgment was rendered for plaintiff, defendant was granted a new trial on the ground of newly discovered evidence. Plaintiff appealed the order, claiming, in part, that defendant lacked diligence in preparing for trial, and that the newly discovered evidence was merely cumulative.

The Supreme Court affirmed the order, stating that the newly discovered evidence had to be material for the party making the application, or it must materially affect the substantial rights of the moving party. The Court said that this requisite seemed to imply that the newly discovered evidence should be of such a character as to render a different result probable on a new trial. A new trial should not be granted when the evidence is merely cumulative unless it is clear that such evidence would change the result. In this case, the Court felt that the trial judge could best determine whether or not the evidence, although possibly cumulative, was sufficiently strong to render a different result possible (129 Cal. 690, 691-692). A trial judge's discretion will not be interfered with except in cases of manifest abuse. Since the trial judge determined that the evidence was of a character that would probably affect the result on a new trial and the Court was not convinced to a certainty that such a determination was wrong, the Court did not disturb the finding (129 Cal. 690, 691-692).

In Brannock v. Bromley (1939) 30 Cal. App. 2d 516, 86 P.2d 1062 , plaintiffs, husband and wife, brought an action against defendants for personal injuries arising out of an automobile accident in which wife, a pedestrian, was admittedly struck by an automobile driven by one defendant. The jury returned a verdict in favor of defendants since it found that both plaintiffs and defendants were guilty of negligence. Plaintiffs moved for a new trial on the ground of newly discovered evidence, and in support of the motion, they filed an affidavit of an eyewitness who stated that defendants' car was traveling no less than 45 miles per hour and that the car swerved off the highway and struck plaintiff wife even though she had already crossed the road. When plaintiffs' motion was granted, defendants appealed the order, claiming that the newly discovered evidence was cumulative and that there was no reasonable probability that the result of a retrial would be different.

The court of appeal affirmed the order, stating that the newly discovered evidence must be material to the issues and of so important a character as to satisfy the court that it may reasonably be inferred that the verdict would have been different if the newly discovered evidence had been introduced at the former trial. In this case, there was no direct evidence regarding the speed of defendant's automobile. The newly discovered evidence showed the speed of the automobile to have been excessive, and this affected the issue of contributory negligence of plaintiff. If the jury should find that the car was actually going 45 miles per hour, it might reasonably find that plaintiff could have crossed in safety. Furthermore, the newly discovered witness was the only disinterested witness to the accident. Since there was a doubt as to whether or not the evidence was cumulative, the court of appeal decided to defer to the finding of the trial court unless there had been a manifest abuse of discretion. Since no abuse of discretion appeared, the court decided not to interfere (30 Cal. App. 2d 516, 520-521). After examining the record, the court also held that plaintiffs showed due diligence in seeking to produce the testimony at trial, and it accordingly affirmed the order (30 Cal. App. 2d 516, 521-524).
[e]--Cumulative Evidence Showing Different Result Probable
The factual and procedural background of Cahill v. E.B. & A.L. Stone Co. (1914) 167 Cal. 126, 138 P. 712 , is discussed in [a], above. The Supreme Court affirmed an order granting defendant a new trial on the ground of newly discovered evidence, stating that even if the newly discovered evidence is merely cumulative, the court is not precluded from granting a new trial. When the newly discovered evidence is cumulative, the question before the trial court is whether the newly discovered evidence would probably have produced a different result if it had been presented at trial. The determination of that question is peculiarly within the province of the trial court, and its discretion will not be reviewed except for manifest abuse. In this case, the trial court determined that if the newly discovered evidence had been presented to the jury, they may have rendered a different result, and the court of appeal chose not to disturb that determination (167 Cal. 126, 135). After the court concluded that defendant did not lack due diligence in seeking to produce this information at trial, it affirmed the order granting the motion (167 Cal. 126, 135-141).
[f]--Failure to Move for Continuance
The factual and procedural background of Andersen v. Howland (1970) 3 Cal. App. 3d 380, 83 Cal. Rptr. 308 , is discussed in [b], above. After verdict was returned for plaintiff in the amount of $2,800, plaintiff was denied a new trial on the ground of newly discovered evidence, and she appealed the judgment. Plaintiff claimed that a newly formed expert opinion was sufficient to support an order granting a new trial.

The court of appeal reversed the judgment, stating that the evidence was newly discovered within the meaning of the statute [ Code Civ. Proc. 657(4)[Deering's] ]. On appeal, defendant contended that plaintiff was not diligent since she failed to ask for a continuance at trial. The court acknowledged that when a party knows of an important witness and the materiality of his or her testimony, but is unable to produce the witness at trial, due diligence normally requires the party to move for a continuance. His or her failure to seek a continuance justifies the denial of a subsequent motion for new trial on the ground of newly discovered evidence. In this case, however, the newly discovered evidence did not exist at the time of trial, and the facts that indicated that newly discovered evidence might be forthcoming did not permit counsel to show the nature or materiality of the evidence, so that counsel could have successfully moved for a continuance (3 Cal. App. 3d 380, 383-384). In denying the motion in the trial court, the judge expressly stated his determination that there was no lack of diligence in the case, but he felt that a change of professional opinion after the date of trial is not a ground for new trial. The court of appeal, on the other hand, felt that a newly formed expert opinion was sufficient to support an order granting a new trial as a matter of law. Because it noted that there was no lack of due diligence in the case, the court of appeal reversed the judgment (3 Cal. App. 3d 380, 384-385).
[g]--Newly Discovered Witness
The factual and procedural background of Celli v. French (1951) 107 Cal. App. 2d 599, 237 P.2d 536 , is discussed in [c], above. The court of appeal affirmed an order granting plaintiff a new trial on the ground of newly discovered evidence. The court stated that the newly discovered witness could offer evidence that would naturally clarify a puzzling situation and might well affect the result of trial. The new witness viewed a very material element of the situation from a different angle than that of any of the other witnesses. The court stated that it appeared, without dispute, that the identity of this new witness, and the fact that she had been present and seen certain things, was not known to plaintiff or counsel until after the taking of evidence was completed. The court concluded that the evidence in question was sufficient to constitute newly discovered evidence within the meaning of the established rules (107 Cal. App. 2d 599, 602). Accordingly, the court affirmed the order granting plaintiff a new trial (107 Cal. App. 2d 599, 603).
[4]--Additional Authorities
[a]--Reasonable Diligence
The factual and procedural background of Brannock v. Bromley (1939) 30 Cal. App. 2d 516, 86 P.2d 1062 , is discussed in [3][d], above. The court of appeal affirmed an order granting plaintiffs' motion for a new trial, stating that there was a sufficient showing of diligence under the circumstances. Plaintiffs diligently searched for witnesses who might have seen the accident in question, and it was not until after trial that a witness informed plaintiffs that he had seen the accident. The court added that although there is no hard-and-fast rule to the effect that each step taken by the moving party in searching for witnesses must be detailed in a meticulous manner, it is the better practice to specifically enumerate such facts (30 Cal. App. 2d 516, 522).
[b]--Cumulative Evidence Showing Different Result Probable
The factual and procedural background of Brannock v. Bromley (1939) 30 Cal. App. 2d 516, 86 P.2d 1062 , is discussed in [3][d] and in [a], above. The court of appeal affirmed an order granting plaintiffs' motion for a new trial, stating that the newly discovered evidence must be material to the issues, and of so important a character as to satisfy the court that it may reasonably be inferred that the verdict would have been different if the newly discovered evidence had been introduced at trial. However, the court added that a new trial should not be refused for the reason that the evidence is cumulative, if the cumulation is sufficiently strong to render a different result probable (30 Cal. App. 2d 516, 520).
[c]--Failure to Move for Continuance
MacKenzie v. Angle (1947) 82 Cal. App. 2d 254, 186 P.2d 30 , was an action for damages for personal injuries in which the court of appeal affirmed an order granting plaintiff a new trial on the ground of newly discovered evidence. During the trial, plaintiff failed to move for a continuance in order to produce a certain witness. The court stated that the lower court did not abuse its discretion in granting plaintiff a new trial because the trial court was in the best position to determine whether it would have granted a continuance, if requested, in light of the fact that plaintiff did not know the exact nature of the witness's testimony, may not have been able to show that he could produce the witness at a subsequent time, and could not have offered any statement as to the witness's testimony to which defendant would have stipulated (82 Cal. App. 2d 254, 262).
[d]--Newly Discovered Witness
The factual and procedural background of MacKenzie v. Angle (1947) 82 Cal. App. 2d 254, 186 P.2d 30 , is discussed in [c], above. The court of appeal affirmed an order granting plaintiff a new trial on the ground of newly discovered evidence since plaintiff discovered after trial a material witness who saw the accident in question. The court concluded that the materiality of the witness's testimony was not known to plaintiff or his attorneys. Though it was believed that the witness would be able to shed light on the situation, it was not known how he would testify until after trial (82 Cal. App. 2d 254, 259).

The factual and procedural background of Brannock v. Bromley (1939) 30 Cal. App. 2d 516, 86 P.2d 1062 , is discussed in [3][d], above. The court of appeal affirmed an order granting plaintiffs' motion for a new trial since plaintiffs discovered an additional witness who would be the only disinterested witness to the accident in question. This additional witness, discovered after trial, also would be able to offer testimony regarding the speed of defendant's vehicle when it struck plaintiff. Since there was a question as to whether or not this newly discovered evidence would render a different result probable on retrial, the court of appeal decided to defer to the finding of the trial court, and it affirmed the granting of the motion (30 Cal. App. 2d 516, 521).

Laverne v. Dold (1936) 17 Cal. App. 2d 180, 61 P.2d 497 , was a personal injury action in which the court of appeal affirmed an order granting plaintiff a new trial on the grounds of insufficiency of the evidence and newly discovered evidence. After trial, a new witness was discovered who claimed to have seen the automobile accident from a different angle than the other witnesses, and who would have testified to the position of the cars and the speed of each. After examining the affidavits in support of the motion, the court concluded that the evidence of the missing witness justified the granting of a new trial (17 Cal. App. 2d 180, 183-184).
155.191-155.199 [Reserved]

155.200 Opposing Motion for New Trial [Code Civ. Proc. 659]--Newly Discovered Evidence [Code Civ. Proc. 657(4)]--Evidence Not Newly Discovered
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE THE EVIDENCE CLAIMED TO HAVE BEEN NEWLY DISCOVERED WAS KNOWN TO _________________ [PLAINTIFF or DEFENDANT] _________________ [BEFORE TRIAL and/or AT THE TIME OF TRIAL].

A. Requirements for Granting of Motion. The court should not grant a motion for new trial on the ground of newly discovered evidence unless the moving party establishes (1) that the evidence is newly discovered, (2) that reasonable diligence has been exercised in its discovery and production, and (3) that the evidence is material to the moving party's case ( Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 909-910, 83 Cal. Rptr. 888 ).

B. Distrust and Disfavor of Courts. The claim of newly discovered evidence as a ground for new trial is uniformly looked on by the courts with distrust and disfavor; public policy requires a litigant to exhaust every reasonable effort to produce at trial all existing evidence in his or her behalf ( Estate of Shepard (1963) 221 Cal. App. 2d 70, 76, 34 Cal. Rptr. 212 ).

C. Evidence Not Newly Discovered. A new trial will not be granted on the ground of newly discovered evidence if the evidence claimed to have been newly discovered is known to the moving party before or at the time of trial ( Broads v. Mead and Cook (1911) 159 Cal. 765, 768, 116 P. 46 ; Hayutin v. Weintraub (1962) 207 Cal. App. 2d 497, 512, 24 Cal. Rptr. 761 ).

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 newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ]. In an appropriate case, it may be submitted in opposition to a motion for a new trial supported by the points and authorities set out in 155.190.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the moving party's knowledge of the evidence either before or during trial to show that the evidence was not newly discovered.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Requirements for Granting of Motion
The factual and procedural background of Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 83 Cal. Rptr. 888 , is discussed in 155.190[3][a]. The court of appeal reversed the order granting plaintiffs a new trial on the grounds of newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ] and insufficiency of the evidence [ Code Civ. Proc. 657(6)[Deering's] ]. It stated that the essential elements that must be established for the granting of a new trial on the ground of newly discovered evidence are (1) that the evidence is newly discovered (2) that reasonable diligence has been exercised in its discovery and production and (3) that the evidence is material to the movant's case (3 Cal. App. 3d 904, 909-910). In this case, the court stated that the evidence was not newly discovered since the plaintiffs had a letter from the newly discovered witness more than two and one-half years prior to trial, that there was no showing of due diligence in the production of the evidence, and that the evidence was not shown to have been material to the movants' case. Accordingly, the court reversed the order (3 Cal. App. 3d 904, 910).
[b]--Distrust and Disfavor of Courts
In Estate of Shepard (1963) 221 Cal. App. 2d 70, 34 Cal. Rptr. 212 , plaintiffs brought an action to determine if they were the granddaughters and pretermitted heirs of the deceased. After the trial court found against plaintiffs, they moved for a new trial on the ground of newly discovered evidence. Plaintiffs claimed that they had found two new witnesses that would testify to the fact that the decedent had been married to a Carl Baddaky and had given birth to plaintiffs' mother. When the motion was denied by operation of law, plaintiffs appealed the judgment.

The court of appeal affirmed the judgment, stating that the claim of newly discovered evidence is uniformly looked on by the courts with distrust and disfavor. It is said that public policy requires a litigant to exhaust every reasonable effort to produce at trial all existing evidence in his or her behalf (221 Cal. App. 2d 70, 76). In this case, although the court conceded that the newly discovered evidence might produce a different result on retrial, plaintiffs did not show that they exercised reasonable diligence in discovering and producing this evidence at trial. Accordingly, the court affirmed the judgment (221 Cal. App. 2d 70, 76-80).
[c]--Evidence Not Newly Discovered
In Broads v. Mead and Cook (1911) 159 Cal. 765, 116 P. 46 , plaintiff brought an action for damages and to enjoin defendants from maintaining advertising signs on plaintiff's upper-story wall space. Defendants claimed that there was an oral agreement between themselves and the original lessee and assignor of plaintiff that gave defendants the privilege of placing their signs on the upper walls. After judgment was entered for plaintiff, defendants moved for a new trial on the ground of newly discovered evidence. Defendants claimed that they had located the original lessee who would testify that the oral agreement had been made as claimed. When the motion was denied, defendants appealed the judgment.

The Supreme Court modified the judgment as to the amount of damages and affirmed the judgment as modified, noting that the lower court's order denying the motion for new trial was proper. The Court stated that defendants' affidavit showed that they knew, prior to trial, that the witness would testify in the manner claimed. Hence, it was not strictly newly discovered evidence. The Court added that it was not shown or claimed that any application was made to postpone the trial to give an opportunity to discover the witness and secure his attendance or deposition. Therefore, the Court held that a new trial was properly denied (159 Cal. 765, 768).

In Hayutin v. Weintraub (1962) 207 Cal. App. 2d 497, 24 Cal. Rptr. 761 , plaintiff brought an action for equitable cancellation of an agreement in which plaintiff and defendant participated in a private auction of their shares of corporate stock. Defendant cross complained for specific performance. Plaintiff and defendant, each 50 percent owners of the capital stock, agreed that they would bid for each other's stock in the corporation. Plaintiff claimed that the parties agreed to deliver letters to each other setting forth all the assets, activities, potential deals, and negotiations of the corporation so that the parties could evaluate the worth of the company. Defendant outbid plaintiff at the auction and was declared to be the buyer. After trial, the court awarded defendant specific performance on his cross complaint. Plaintiff moved for a new trial on the ground of newly discovered evidence, claiming that defendant failed to disclose prior to the date of the auction that a wholly owned subsidiary of the corporation had acquired a valuable asset. When the motion was denied, plaintiff appealed the judgment.

The court of appeal affirmed the judgment, stating that this was not newly discovered evidence for purposes of a motion for a new trial. The court said that evidence within the knowledge of the moving party before the action was begun, while the case was pending, or which under the circumstances must have been known to the moving party at the trial, or by the use of reasonable diligence might have been known and produced at trial, may not be regarded as newly discovered. In this case, plaintiff's counsel averred this alleged concealment in a proposed amendment to the complaint and insisted on proving it at trial. Counsel's proposal to amend the complaint grew out of his examination of the depositions. Since the court did not feel that the evidence was newly discovered, it stated that there was no error in the ruling on the motion for new trial (207 Cal. App. 2d 497, 512-513).
[4]--Additional Authorities
[a]--Requirements for Granting of Motion
White v. Dorfman (1981) 116 Cal. App. 3d 892, 172 Cal. Rptr. 326 , was an action concerning the violation by defendants of certain restrictive covenants on real property in which the court of appeal affirmed judgment for defendants and an order denying plaintiffs' motion for a new trial. Plaintiffs sought to introduce the testimony of a newly discovered witness who offered a definition of certain terms in the declaration of restrictions. The court stated that the essential elements that must be established by plaintiffs are: (1) that the evidence is newly discovered, (2) that reasonable diligence has been exercised in its discovery and production, and (3) that the evidence is material to the movant's case. Since the court felt that the newly discovered evidence was cumulative to the testimony of a witness produced at trial and was also probably immaterial and irrelevant, it affirmed the denial of the motion (116 Cal. App. 3d 892, 899-900).
[b]--Distrust and Disfavor of Courts
Hicks v. Ocean Shore Railroad, Inc. (1941) 18 Cal. 2d 773, 117 P.2d 850 , was a personal injury action in which the Supreme Court affirmed judgment for plaintiff, noting that an order denying defendants' motion for a new trial was proper. The Court stated that newly discovered evidence is regarded with suspicion and disfavor and that there was no abuse in discretion by the trial court in denying the motion (18 Cal. 2d 773, 789).

Horowitz v. Noble (1978) 79 Cal. App. 3d 120, 144 Cal. Rptr. 710 , involved an action for declaratory relief of rights under an easement by implication in which the court of appeal affirmed judgment for plaintiffs, noting that an order denying defendants' motion for a new trial on the ground of newly discovered evidence was proper. The court stated that ordinarily newly discovered evidence is looked on with suspicion and disfavor. Since the trial court found that the newly discovered evidence would not have changed the result of trial, the court of appeal upheld the denial of the motion (79 Cal. App. 3d 120, 138).
[c]--Evidence Not Newly Discovered
The factual and procedural background of Scanlan v. San Francisco etc. Ry. Co. (1900) 128 Cal. 586, 61 P. 271 , is discussed in 155.201[3][b]. The Supreme Court affirmed the judgment for plaintiff, noting that an order denying defendant a new trial was proper. It stated that the testimony, urged as newly discovered evidence, was in no sense newly discovered. Defendant's engineers had knowledge through their attorney of the materiality of the witness's testimony, and took certain steps to procure his attendance at trial, but did not discover him until after trial. The Court concluded that since defendant knew the importance of this witness's testimony, defendant should have moved for a continuance (128 Cal. 586, 589).

Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal. App. 3d 1035, 237 Cal. Rptr. 14 , was an appeal considering three judgments in three separate actions between former partners after dissolution of their partnership. Some of the partners continued most of the business in a new partnership. One of the matters involved an accounting by the continuing partners in which they were required to segregate receipts from ongoing clients between receipts representing payments of fees earned by the dissolved partnership and receipts relating to matters handled by the new partnership. Because they had failed to keep records that showed segregation, all receipts that could not be properly allocated were treated as receipts of the dissolved partnership. Before judgment was entered, but after the trial court announced its tentative decision, the continuing partners moved to reopen to present new evidence that their accountant's declaration said could be developed by questioning clients. The court of appeal affirmed the denial of the motion to reopen, saying that denial is proper when failure to present evidence earlier is neither inadvertent nor excusable but a knowing and informed choice of trial tactic (191 Cal. App. 3d 1035, 1052-1053).

In Hartford Acc. & Indem., Co. v. Goossen (1978) 84 Cal. App. 3d 649, 148 Cal. Rptr. 784 , plaintiff insurance company brought an action for declaratory relief against a claimant of uninsured motorist coverage, and the court of appeal affirmed judgment for plaintiff, noting that an order denying defendant's motion for a new trial on the ground of newly discovered evidence was proper. The court stated that the additional facts did not support a motion for a new trial because they were not newly discovered, since they were known to defendant from the time of the accident (84 Cal. App. 3d 649, 653).
155.201 Opposing Motion for New Trial [Code Civ. Proc. 659]--Newly Discovered Evidence [Code Civ. Proc. 657(4)]--Inadequate Showing of Reasonable Diligence
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE _________________ [PLAINTIFF or DEFENDANT] HAS FAILED TO SHOW THAT THE EVIDENCE, WITH REASONABLE DILIGENCE, COULD NOT HAVE BEEN DISCOVERED AND PRODUCED AT TRIAL.

A. Requirements for Granting of Motion. [See 155.200[1], Paragraph A. ]

B. Distrust and Disfavor of Courts. [See 155.200[1], Paragraph B. ]

C. Inadequate Showing of Reasonable Diligence. A new trial on the ground of newly discovered evidence will be granted only if the affidavit in support thereof recites facts showing that the evidence, with reasonable diligence, could not have been discovered and produced at trial ( Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal. 2d 162, 165, 10 Cal. Rptr. 462, 358 P.2d 918 ).

[Optional ] D. Failure to Move for Continuance. If the existence and materiality of evidence is known, but cannot be located, the party desiring to produce it must seek a continuance for the purpose of locating and producing the evidence; failure to do so prevents a subsequent successful motion for a new trial based on newly discovered evidence ( Scanlan v. San Francisco etc. Ry. Co. (1900) 128 Cal. 586, 589, 61 P. 271 ; Estate of Shepard (1963) 221 Cal. App. 2d 70, 77, 34 Cal. Rptr. 212 ).

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 newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ]. In an appropriate case, it may be submitted in opposition to a motion for a new trial supported by the points and authorities set out in 155.190.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss how the moving party's affidavits or declarations do not recite facts sufficient to show that the moving party exercised reasonable diligence in attempting to produce the evidence at trial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Inadequate Showing of Reasonable Diligence
In Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal. 2d 162, 10 Cal. Rptr. 462, 358 P.2d 918 , plaintiff brought an action to recover damages for breach of a contract for the sale of carrot crops. After judgment was entered for plaintiff, defendants moved for a new trial on the ground of newly discovered evidence. Defendants claimed that they had recently discovered that plaintiff could not recover because it was not licensed as a dealer or cash buyer as required by the Agricultural Code. When the motion was denied, defendants appealed the judgment.

The Supreme Court affirmed the judgment, stating that a new trial on the ground of newly discovered evidence will be granted only when the affidavit in support thereof recites facts showing that the evidence could not, with reasonable diligence, have been discovered and produced at trial (55 Cal. 2d 162, 165). In this case, the Court said that there was no showing of diligence on the part of defendants before trial. In fact, none could have been made since the fact was a matter of public record open to defendants' discovery at any time on inquiry or examination of the records. The Court added that none of the decided cases hold that after a judgment has been entered without any evidence having been introduced establishing illegality, a court must grant a motion for a new trial on the ground of newly discovered evidence of illegality even though the moving party has failed to show the exercise of diligence. Accordingly, the Court affirmed the judgment for plaintiff (55 Cal. 2d 162, 166).
[b]--Failure to Move for Continuance
In Scanlan v. San Francisco etc. Ry. Co. (1900) 128 Cal. 586, 61 P. 271 , plaintiff contractor brought an action to recover the contract price for the construction of a railway embankment. Payment for the embankment was to be based on the cubic contents of the embankment. At trial, plaintiff called an engineer who testified on the measurements of the embankment and its cubic contents. After judgment was rendered for plaintiff, based on the computation of plaintiff's engineer, defendant moved for a new trial on the ground of newly discovered evidence. When the motion was denied, defendant appealed the judgment and order denying a new trial.

The Supreme Court affirmed the judgment, stating that the trial court did not err in refusing defendant a new trial on the ground of newly discovered evidence. Although defendant sought to produce an engineer who had made a survey of the embankment, had left defendant's employ, and had been discovered too late to be produced at trial, the Court stated that since defendant had known of the importance of this witness's testimony, defendant should have moved for a continuance. In failing to do so, defendant entered on the trial at its peril. Thus, the Court affirmed the judgment and order denying a new trial (128 Cal. 586, 589).

Note that, while the defendant in Scanlan appealed an order denying a new trial, such orders are no longer appealable [see Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's] ].

The factual and procedural background of Estate of Shepard (1963) 221 Cal. App. 2d 70, 34 Cal. Rptr. 212 , is discussed in 155.200[3][b]. When the plaintiffs' motion for a new trial was denied by operation of law, they appealed the judgment.

The court of appeal affirmed the judgment, stating that if the existence of a witness and the materiality of his or her testimony is known prior to trial, a failure to seek a continuance in order to determine the witness's whereabouts and to obtain his or her testimony prevents a subsequent successful motion for a new trial based on that testimony (221 Cal. App. 2d 70, 77). In this case, the court felt that the plaintiffs did not exercise reasonable diligence in discovering and producing the newly discovered evidence at trial. After an adverse judgment was rendered against plaintiffs, they ran newspaper ads in Hawaii to find out if there were any witnesses still living there who might remember the deceased's relationship with Carl Baddaky. Plaintiffs discovered that the decedent may have lived in Hawaii when defense counsel showed plaintiffs' counsel certain newspaper clippings and photographs of the decedent prior to trial. However, plaintiffs failed to seek a continuance to enable them to investigate any leads that may have arisen from the clippings. They did not take the deposition of defendant, the husband of the deceased, who had possession of these items, nor did they avail themselves of any discovery proceedings which almost certainly would have led to the earlier discovery of the evidence. The court concluded that such a total lack of diligence prevented reliance on evidence allegedly derived from the newspaper clipping and photographs, particularly when no continuance was sought even when the existence of the items became known. Accordingly, the court affirmed the judgment (221 Cal. App. 2d 70, 80).
[4]--Additional Authorities
[a]--Inadequate Showing of Reasonable Diligence
In In re Marriage of Liu (1987) 197 Cal. App. 3d 143, 242 Cal. Rptr. 649 , the court of appeal held that a wife's motion for a new trial in an annulment action was properly denied. In considering the merits of her motion, it held that she could not obtain a new trial on the ground of newly discovered evidence because she failed to show that the evidence could not have been produced at trial with reasonable diligence. In making a motion for new trial on this ground, the party seeking relief has the burden to prove that he or she exercised reasonable diligence to discover and produce the evidence at trial. If this showing is not made, the motion must be denied. A general averment of diligence is insufficient; the moving party must state the particular acts or circumstances that establish diligence (197 Cal. App. 3d 143, 153-154).

National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal. App. 3d 131, 186 Cal. Rptr. 165 , involved a petition by an elevator inspection company for a writ of mandate to command defendant to issue annual elevator permits based on plaintiff's inspections. The petition was granted and defendant appealed from the denial of its motion for new trial based on newly discovered evidence. The court of appeal stated that the proponent of a motion for new trial based on newly discovered evidence must show that reasonable diligence has been exercised in its discovery and production (136 Cal. App. 3d 131, 137). The court found that defendant had failed to make a satisfactory showing that it had been diligent in producing new evidence (136 Cal. App. 3d 131, 138). For that and other reasons, the court held that the motion for new trial was properly denied (136 Cal. App. 3d 131, 137, 138).

Bostard v. Bostard (1968) 258 Cal. App. 2d 793, 66 Cal. Rptr. 348 , was an action for divorce in which the court of appeal affirmed the granting of an interlocutory decree of divorce to each party, noting that an order denying plaintiff's motion for a new trial was proper. The court stated that a new trial on the ground of newly discovered evidence will be granted only when the affidavit in support of the motion recites facts showing that the evidence could not, with reasonable diligence, have been discovered and produced at trial (258 Cal. App. 2d 793, 797). The court felt that plaintiff's failure to discover the information was inexcusable and showed a complete lack of diligence. The court added that a litigant is required to exhaust diligent and reasonable effort to produce at trial all existing evidence in his or her behalf (258 Cal. App. 2d 793, 798).

The factual and procedural background of Estate of Shepard (1963) 221 Cal. App. 2d 70, 34 Cal. Rptr. 212 , is discussed in 155.200[3][b] and in [3][b], above. The court stated that parties should use a high degree of diligence in discovering and presenting at trial all the evidence of which the cause is to be determined. Since the court did not feel that plaintiffs exercised reasonable diligence in the case, it affirmed the judgment, finding that an order denying plaintiffs' motion for a new trial on the ground of newly discovered evidence did not constitute reversible error (221 Cal. App. 2d 70, 79-80).
[b]--Failure to Move for Continuance
Baron v. Sanger Motor Sales (1967) 249 Cal. App. 2d 846, 57 Cal. Rptr. 896 , is also discussed in 155.202[4][b]. The court of appeal reversed an order granting plaintiff's motion for a new trial, stating that plaintiff failed to act with reasonable diligence and that she waived her right to request a new trial on the ground of newly discovered evidence. The court explained that plaintiff failed to advise the court of her surprise at the testimony of a witness and also failed to ask the court for a reasonable continuance time and time again. Furthermore, the newly discovered evidence related to standard automobile painting practices which could have been obtained with minimal effort (249 Cal. App. 2d 846, 861).

Griffeth v. Fehsel (1943) 61 Cal. App. 2d 600, 143 P.2d 522 , was an action to determine whether or not a joint venture was terminated by mutual consent of the parties. The court of appeal affirmed judgment for defendants, noting that an order denying plaintiff a new trial was proper. The court stated that plaintiff failed to make a sufficient showing of diligence in support of the motion. The court said that when plaintiff could not contact his corroborating witnesses, he should have moved for a continuance at the commencement of trial or for a reopening of the case prior to rendition of judgment (61 Cal. App. 2d 600, 607).
155.202 Opposing Motion for New Trial [Code Civ. Proc. 659]--Newly Discovered Evidence [Code Civ. Proc. 657(4)]--Different Result Not Probable on Retrial
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE IT IS NOT PROBABLE THAT THE ADDITIONAL NEWLY DISCOVERED EVIDENCE WOULD PRODUCE A DIFFERENT RESULT ON RETRIAL.

A. Requirements for Granting of Motion. [See 155.200[1], Paragraph A. ]

B. Distrust and Disfavor of Courts. [See 155.200[1], Paragraph B. ]

C. Different Result Not Probable. A motion for a new trial on the ground of newly discovered evidence is properly denied when, in the opinion of the trial court, it is not probable that the additional evidence would have produced a different result ( Atkinson v. Western D. Syndicate (1915) 170 Cal. 511, 512, 150 P. 363 ; Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 910, 83 Cal. Rptr. 888 ).

[Optional ] D. Impeachment of Witness. Newly discovered evidence that is merely designed to contradict a witness is not of a character to warrant a new trial if the evidence is not material in the sense that its use would make a different result probable on retrial (see Waer v. Waer (1922) 189 Cal. 178, 181, 207 P. 891 ; Lubeck v. Lopes (1967) 254 Cal. App. 2d 63, 68, 62 Cal. Rptr. 36 ).

[Optional ] E. Evidence Merely Cumulative. A motion for new trial on the ground of newly discovered evidence is properly denied if it is shown that the newly discovered evidence is merely cumulative and entirely consistent with the testimony given at trial ( Kircher v. Atchison, T. & S.F. Ry. Co. (1948) 32 Cal. 2d 176, 187, 195 P.2d 427 ).

[Optional ] F. Evidence Speculative and Arguably Remote. A new trial will not be granted on the ground of newly discovered evidence if the evidence is speculative and arguably remote; the evidence must be specific, and if it is not, a new trial will be denied ( Cansdale v. Board of Administration (1976) 59 Cal. App. 3d 656, 667, 130 Cal. Rptr. 880 ).

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 newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ]. In an appropriate case, it may be submitted in opposition to a motion for a new trial supported by the points and authorities set out in 155.190.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the newly discovered evidence and how it is not probable that this additional evidence would produce a different result on retrial.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Different Result Not Probable
In Atkinson v. Western D. Syndicate (1915) 170 Cal. 511, 150 P. 363 , plaintiff judgment creditor brought an action to set aside a conveyance by the defendant judgment debtors on the ground of fraud. After judgment was entered for defendants, plaintiff moved for a new trial on the ground of newly discovered evidence. When the motion was denied, plaintiff appealed the order.

The Supreme Court affirmed the order, stating that a motion for a new trial on the ground of newly discovered evidence is properly denied when, in the opinion of the trial court, it is not probable that the additional evidence would have produced a different result. Although plaintiff desired to introduce evidence that defendant was insolvent at the time of the transfer, the issue of insolvency was not essential to the support of the judgment in favor of defendants. The Supreme Court stated that the trial court may well have concluded that, regardless of any evidence on the question of solvency, the same conclusions regarding intent and consideration would have been reached. After examining the record, the Supreme Court decided that the lower court was justified in denying a new trial (170 Cal. 511, 512).

Note that although plaintiff in Atkinson appealed an order denying a new trial in this case, such orders are no longer appealable. Only orders granting a new trial are appealable [ Code Civ. Proc. 904.1(d)[Deering's], 904.2(e)[Deering's] ]. An order denying a new trial is reviewable on appeal from the judgment; an appeal from an order denying a new trial will be dismissed [ Hayutin v. Weintraub (1962) 207 Cal. App. 2d 497, 514, 24 Cal. Rptr. 761 ].

The factual and procedural background of Schultz v. Mathias (1970) 3 Cal. App. 3d 904, 83 Cal. Rptr. 888 , is discussed in 155.190[3][a]. The court of appeal reversed an order granting plaintiff a new trial on the grounds of newly discovered evidence [ Code Civ. Proc. 657(4)[Deering's] ] and insufficiency of the evidence [ Code Civ. Proc. 657(6)[Deering's] ]. It stated that the evidence was not shown to be material to the movants' case. In order for a new trial to be granted, the newly discovered evidence must be material in the sense that it is likely to produce a different result. Here, the newly discovered witness's testimony would have been cumulative. At most, his testimony would have impeached defendant's testimony. Therefore, the court reversed the order (3 Cal. App. 3d 904, 910).
[b]--Impeachment of Witness
In Waer v. Waer (1922) 189 Cal. 178, 207 P. 891 , plaintiff brought an action to quiet title to certain real property. Plaintiff claimed that he had made and signed a deed, but that he never delivered it to defendants. Defendants, he contended, stole the deed and recorded it without his knowledge and consent. After judgment was entered for plaintiff, defendants moved for a new trial on the ground of newly discovered evidence. Defendants presented the affidavit of a newly discovered witness who related a conversation with plaintiff concerning the loss of the deed in which plaintiff said that four or five days after the deed was executed, he discovered that the deed was missing. At trial, however, plaintiff stated that he had made the deed on May 10 and did not discover the loss of the deed until December. When the motion was denied, defendants appealed the judgment.

The Supreme Court affirmed the judgment, stating that newly discovered evidence which is merely designed to contradict a witness is not of a character to warrant a new trial. Since the affidavit purported to narrate a statement that contradicted something that plaintiff had testified to at trial, it was impeaching in character and did not constitute grounds for reversal of the order. Moreover, the affidavit in question purported to embody evidence which, if produced at trial, would have had no probative force against the testimony of plaintiff concerning nondelivery of the deed. The newly discovered evidence was in harmony with and corroborative of plaintiff's testimony that the deed had been stolen from him. Therefore, the Court concluded that the affidavit in question, was valueless as support for the motion for a new trial, and accordingly, the Court affirmed judgment for plaintiff (189 Cal. 178, 181-182).

In Lubeck v. Lopes (1967) 254 Cal. App. 2d 63, 62 Cal. Rptr. 36 , plaintiff brought an action for personal injuries sustained in an automobile collision. During trial, defendant was asked if he had any trouble with his eyesight. He answered that he did not. Following this response, he was asked when he had last had an eye examination and who his eye doctor was. He then stated that his eye doctor was Dr. Magginis. After a verdict was rendered for defendants, plaintiff was granted a new trial on the ground of newly discovered evidence. Defendants appealed the order, and plaintiff appealed the judgment.

The court of appeal reversed the order granting a new trial and affirmed the judgment. Even though plaintiff discovered evidence that a Dr. Magginis had never been listed in state licensing records, had not been listed as the owner of a city business license, had not been listed in the telephone or police directory, and was generally unknown among local optometrists; the court stated that newly discovered evidence to impeach or discredit a witness, even when discovered shortly after trial and made the basis of a motion for a new trial, is not sufficient to require granting of a new trial. In this case, the court stated that the evidence could not be characterized as material in the sense that its use by way of impeachment on retrial would make a different result probable. The newly discovered evidence did not in any way controvert evidence presented during trial concerning the actual condition of defendant's eyesight. Furthermore, defendant's eyesight did not appear to have been a material issue in the trial, and the name of the doctor who had examined defendant's eyes was clearly a collateral matter (254 Cal. App. 2d 63, 68-69). Moreover, the court noted that defendant's testimony concerning the doctor was already uncertain and confused, so that it can hardly be said that the newly discovered evidence would have a significant effect on attacking defendant's credibility on retrial. The court concluded that the newly discovered evidence only served to impeach defendant's testimony on an immaterial fact of the case (254 Cal. App. 2d 63, 69-70). After examining the entire record, the court reversed the order (254 Cal. App. 2d 63, 70-76).
[c]--Evidence Merely Cumulative
In Kircher v. Atchison, T. & S.F. Ry. Co. (1948) 32 Cal. 2d 176, 195 P.2d 427 , plaintiff brought an action for personal injuries. Plaintiff claimed that he tripped in a depression in the pavement, hit his head, was rendered unconscious, and rolled under the train which then ran over his hand. After judgment was entered for plaintiff, defendant moved for a new trial on the ground of newly discovered evidence. When the motion was denied, defendant appealed the judgment.

The Supreme Court affirmed the judgment, stating that a motion for new trial is properly denied if it is shown that the newly discovered evidence is to be used for impeachment purposes, or if it is merely cumulative. In this case, the alleged new evidence consisted of hospital records, plaintiff's military record, and an affidavit by plaintiff setting forth facts relating to the injury. Defendant sought to introduce the hospital records to refute plaintiff's testimony that he had suffered a blow on his head at the time of the accident. Plaintiff's counsel's counteraffidavit stated that the records were merely cumulative and entirely consistent with the testimony given at the trial. The trial court apparently agreed with this contention, and the Supreme Court stated that unless there is a clear showing of an abuse of discretion, the trial court's denial of the motion will not be interfered with by an appellate court. Since the Supreme Court found no abuse of discretion in the trial court's ruling, it affirmed the judgment (32 Cal. 2d 176, 187-188).

Note that the Supreme Court has held in another case that a court is not precluded from granting a new trial if the newly discovered evidence is cumulative but would produce a different result on retrial [see Cahill v. E.B. & A.L. Stone Co. (1914) 167 Cal. 126, 135, 138 P. 712 ; see also 155.190[3][e]]. It appears, however, that the cumulative evidence in Kircher v. Atchison, T. & S.F. Ry. Co. (1948) 32 Cal. 2d 176, 195 P.2d 427 , was entirely consistent with the evidence produced at trial and hence, a different result would not be probable if the evidence were introduced on retrial [see Kircher v. Atchison, T & S.F. Ry. Co. (1948) 32 Cal. 2d 176, 187-188, 195 P.2d 427 ]. Thus, while these cases appear to conflict, they may be reconciled.
[d]--Evidence Speculative and Arguably Remote
In Cansdale v. Board of Administration (1976) 59 Cal. App. 3d 656, 130 Cal. Rptr. 880 , plaintiff highway patrol officer sought a writ of mandate to set aside a decision of the Board of Administration that cancelled his disability retirement benefits. When the petition was denied, plaintiff filed a notice of motion to reopen the case on the basis of newly discovered evidence. This motion was also denied. Plaintiff then filed a notice of intention to move for a new trial on the ground of newly discovered evidence. When the motion was denied, plaintiff appealed the judgment denying the writ and also purported to appeal the order denying the motion for a new trial.

The court of appeal affirmed the judgment, stating that the newly discovered evidence must be material in the sense that it is likely to produce a different result. In this case, plaintiff sought to introduce the opinion of a doctor who had diagnosed a current back injury of plaintiff. Plaintiff alleged that current diagnosis represented an independent objective finding of disability and had this evidence been presented to the board's doctor, he would have changed his evaluation to agree with the doctors who stated that plaintiff could not perform the duties of a highway patrolman. However, the court concluded that the newly discovered evidence was speculative and arguably remote. In order to grant a new trial on the ground of newly discovered evidence, the court explained, the evidence must be specific, and if it is not, a new trial cannot be granted. Since all presumptions are in favor of the order made by the trial court, a reviewing court will not interfere unless a clear abuse of discretion is shown. Since plaintiff did not prove a clear abuse of discretion, the court affirmed the judgment and dismissed plaintiff's attempted appeal from the order denying his motion for a new trial (59 Cal. App. 3d 656, 667-668).
[4]--Additional Authorities
[a]--Different Result Not Probable
The facts and procedural background of National Elevator Services, Inc. v. Department of Industrial Relations (1982) 136 Cal. App. 3d 131, 186 Cal. Rptr. 165 , are discussed in 155.201[4][a]. In National Elevator, the court of appeal stated that the proponent of a motion for new trial based on newly discovered evidence must show that the evidence is likely to produce a different result at trial (136 Cal. App. 3d 131, 137). The court found that the proffered evidence would not produce a different result because it was cumulative and did not address a fundamental issue in the case (136 Cal. App. 3d 131, 138-139). For that and other reasons, the court held that the motion for new trial was properly denied (136 Cal. App. 3d 131, 137, 138).

Carpenter v. Kilgour (1965) 236 Cal. App. 2d 651, 46 Cal. Rptr. 115 , was an action to foreclose a chattel mortgage on a house in which the court of appeal affirmed judgment for defendants, noting that an order denying plaintiffs' motion for a new trial was proper. The court stated that it was well settled that the evidence produced in support of a motion for new trial on the ground of newly discovered evidence must be material to the moving party's case in that it is likely that the evidence will produce a different decision. Since the evidence presented by plaintiffs was clearly irrelevant to the issue of failure of consideration that was actually before the court, the court stated that the trial court did not err in denying plaintiffs' motion (236 Cal. App. 2d 651, 658).
[b]--Impeachment of Witness
Baron v. Sanger Motor Sales (1967) 249 Cal. App. 2d 846, 57 Cal. Rptr. 896 , was an action for personal injuries in which the court of appeal reversed an order granting plaintiff's motion for a new trial with directions to enter a judgment on the verdict in favor of defendant. The court stated that the newly discovered evidence would be cumulative of the testimony already given at trial by a witness, and if not cumulative, it would be given primarily for impeachment purposes. The court added that it is generally held that a new trial is not compelled by newly discovered evidence that is offered for impeachment purposes only (249 Cal. App. 2d 846, 859).
[c]--Evidence Merely Cumulative
Kyle v. Stone (1965) 234 Cal. App. 2d 286, 44 Cal. Rptr. 390 , was an action for personal injuries in which the court of appeal affirmed judgment for defendants noting that an order denying plaintiffs' motion for a new trial on the ground of newly discovered evidence was proper. The court stated that when the motion for a new trial is based on newly discovered evidence, it must appear that the evidence is not cumulative (234 Cal. App. 2d 286, 294). In this case, the court concluded that the proffered testimony was cumulative in nature and similar to testimony introduced by plaintiffs at trial. It did not appear that the case should or would have resulted differently had the evidence been received (234 Cal. App. 2d 286, 293-294).
155.203-155.209 [Reserved]

6 Insufficiency of Evidence to Justify Verdict or Decision
155.210 Supporting Motion for New Trial [Code Civ. Proc. 659]--Insufficiency of Evidence to Justify Verdict or Decision [Code Civ. Proc. 657(5)]
[1]--FORM


[Caption. See 155.50[1]. ]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE EVIDENCE IS INSUFFICIENT TO JUSTIFY THE _________________ [VERDICT or DECISION] AND SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] WERE MATERIALLY AFFECTED THEREBY.

A. New Trial on Ground of Insufficiency of Evidence. 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 of insufficiency of the evidence to justify the verdict or decision if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. 657(6)[Deering's] ).

B. Judge or Jury Clearly Should Have Reached Different Decision or Verdict. A motion for new trial on the ground of insufficiency of the evidence is properly granted if, after weighing the evidence and reasonable conferences, the court is convinced that it or the jury clearly should have reached a different verdict or decision ( Code Civ. Proc. 657[Deering's] ; Russell v. Nelson (1969) 1 Cal. App. 3d 919, 922, 82 Cal. Rptr. 221 ).

C. Judge Required to Weigh Evidence. In passing on a motion for new trial on the ground of insufficiency of the evidence, the trial judge is required to weigh the evidence and in so doing he or she may disbelieve witnesses and draw inferences contrary to those supporting the verdict (see Mercer v. Perez (1968) 68 Cal. 2d 104, 112, 436 P.2d 315 ; Dietrich v. Litton Industries, Inc. (1970) 12 Cal. App. 3d 704, 707, 717, 90 Cal. Rptr. 856 ).

D. Duty to Grant New Trial If Verdict or Decision Against Weight of Evidence. On a motion for a new trial on the ground of insufficiency of the evidence, the judge must weigh and consider the evidence of both parties; if he or she is convinced that the verdict is clearly against the weight of the evidence, it is the judge's duty to grant a new trial even though there are conflicts in the evidence ( Lucas v. Hesperia Golf & Country Club (1967) 255 Cal. App. 2d 241, 253, 63 Cal. Rptr. 189 ).

[Optional ] E. Court Not Bound by Prior Rulings on Questions of Law or Prior View of Evidence. In granting a new trial on the ground of insufficiency of the evidence, the court is not bound by its prior rulings on questions of law or its prior view of the evidence ( Yarrow v. State of California (1960) 53 Cal. 2d 427, 437, 2 Cal. Rptr. 137, 348 P.2d 687 ).

[Optional ] F. Judge Not Bound by Conflicts in Evidence. A judge is not bound by a conflict in the evidence when ruling on a motion for a new trial; rather, he or she must reweigh the evidence, the inferences therefrom, and the credibility of witnesses in determining whether the jury clearly should have reached a different verdict ( Lippold v. Hart (1969) 274 Cal. App. 2d 24, 25, 78 Cal. Rptr. 833 ).

[Optional ] G. Judge's Duty to Set Aside Verdict If Unjust. It is the trial judge's duty to set aside the jury's verdict whenever his or her conscience is impressed with the injustice thereof ( Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 738, 85 Cal. Rptr. 281 ).

[Optional ] H. Unreliable but Substantial Evidence Supports Verdict. If, in the opinion of the court, the evidence is unreliable, it is the court's duty to grant a new trial and it may grant a new trial even when there is substantial evidence to sustain the verdict if it believes that the evidence preponderates against the verdict (see Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 738, 85 Cal. Rptr. 281 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense. ]

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 a new trial on the ground of insufficiency of the evidence to justify the verdict or other decision [ Code Civ. Proc. 657(6)[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 show how the evidence was insufficient to support the verdict or other decision, and how the court may be convinced from the entire record, including reasonable inferences, that it or the jury clearly should have reached a different verdict or decision [see Code Civ. Proc. 657(6)[Deering's] ].

Counsel should add further points and authorities that set forth the substantive law pertaining to the particular cause of action or defense. For example, in a personal injury action in which plaintiff moves for a new trial on the ground that the evidence is insufficient to support a verdict for defendant, plaintiff should discuss the substantive law of negligence in order to argue that the evidence clearly showed defendant's negligence and plaintiff's lack of contributory negligence [see Russell v. Nelson (1969) 1 Cal. App. 3d 919, 922-923, 82 Cal. Rptr. 221 ]. Similarly, in a libel action in which defendant moves for a new trial on the ground that the evidence is insufficient to support plaintiff's verdict, defendant should discuss the substantive law of libel in order to argue, for example, that the defense of truth has been established by a preponderance of evidence [see Dietrich v. Litton Industries, Inc. (1970) 12 Cal. App. 3d 704, 717, 90 Cal. Rptr. 856 ]. When preparing these substantive 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 notice of intention to move for a new trial on the ground of insufficiency of the evidence [ Code Civ. Proc. 657(6)[Deering's] ], see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[d]--Related Points and Authorities
The grounds of insufficiency of evidence [ Code Civ. Proc. 657(6)[Deering's] ] and excessive or inadequate damages [ Code Civ. Proc. 657(5)[Deering's] ] are frequently combined. For memoranda of points and authorities supporting a motion for new trial on the ground of excessive or inadequate damages, see Ch. 65, Damages in this publication.
[e]--Opposing Points and Authorities
The points and authorities set out in 155.220 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Judge or Jury Clearly Should Have Reached Different Decision or Verdict
In Russell v. Nelson (1969) 1 Cal. App. 3d 919, 82 Cal. Rptr. 221 , plaintiff brought an action for personal injuries suffered when defendant's car struck him as he walked across the street. After the jury rendered a verdict for defendant, plaintiff moved for a new trial on several grounds, including insufficiency of the evidence to justify the verdict. When the motion was granted on that ground, defendant appealed the order.

The court of appeal affirmed the order, stating that the record supported the trial court's determination that, after weighing the evidence, the jury clearly should have reached a different verdict. The facts of the case showed substantial support for the reasons specified in the order granting the motion. The court of appeal added that the trial court could well have concluded that the accident resulted from defendant's negligent inattention to his driving, that plaintiff acted with reasonable caution under the circumstances, and that his conduct did not proximately contribute to the accident (1 Cal. App. 3d 919, 922-923). After concluding that the preparation of the order by an attorney was harmless error, the court affirmed the order (1 Cal. App. 3d 919, 923-924).
[b]--Judge Required to Weigh Evidence
In Mercer v. Perez (1968) 68 Cal. 2d 104, 436 P.2d 315 , plaintiffs brought a personal injury action against defendants. After the jury returned a verdict for defendants, plaintiffs moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial on the ground of insufficiency of the evidence to justify the verdict. The trial court denied the motion for judgment notwithstanding the verdict, but granted the motion for a new trial. Defendants appealed from the order, and plaintiffs cross appealed from the judgment.

The Supreme Court reversed the order granting a new trial because the order failed to specify the trial court's reasons for granting the motion. The Court, however, stated that the trial judge has traditionally broad powers in passing of a motion for new trial on the ground of insufficiency of the evidence. This motion is addressed to the judge's sound discretion; he or she is vested with the authority, for example, to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact (68 Cal. 2d 104, 112). In this case, the order stated the ground on which the motion was granted, but wholly failed to specify the court's reasons for doing so. Since the 1965 amendments to Code Civ. Proc. 657[Deering's] specifically provided that the court must specify the grounds and the reasons for granting a new trial on each ground stated, the order in this case was insufficient, and the Court thus reversed it (68 Cal. 2d 104, 108).

In Dietrich v. Litton Industries, Inc. (1970) 12 Cal. App. 3d 704, 90 Cal. Rptr. 856 , plaintiff brought an action for libel against a company and its president and vice-president. After the jury rendered a verdict for plaintiff, the court granted defendants' motion for judgment notwithstanding the verdict and also ordering a new trial if the judgment should be reversed on appeal. Plaintiff appealed the judgment notwithstanding the verdict and the order granting a new trial; defendants brought a precautionary cross appeal from the judgment on the verdict.

The court of appeal reversed the judgment notwithstanding the verdict and affirmed the order granting a new trial. The court stated that in passing on a motion for a new trial made on the ground of insufficiency of the evidence, the trial judge is required to weigh the evidence and in so doing he or she may disbelieve witnesses and draw inferences contrary to those supporting the verdict. When the motion is granted on this ground, the appellate court may reverse only when, as a matter of law, there is no substantial evidence to support a contrary judgment. In this case, the order granting a new trial specifically stated the portions of the evidence that the trial judge found credible and the inferences he or she drew therefrom to reach a conclusion that the weight of the evidence was contrary to the jury's verdict. Once the trial judge determined that the defense of truth had been established by a preponderance of the evidence, the order granting a new trial necessarily followed. The court stated that since the order was adequately supported on the ground of insufficiency of the evidence, it was unnecessary to discuss any other grounds on which it was granted (12 Cal. App. 3d 704, 717).
[c]--Duty to Grant New Trial If Verdict or Decision Against Weight of Evidence
In Lucas v. Hesperia Golf & Country Club (1967) 255 Cal. App. 2d 241, 63 Cal. Rptr. 189 , plaintiffs brought an action for wrongful death of a 14-year-old boy who died by drowning in a swimming pool maintained by defendants. The jury returned a verdict in favor of plaintiffs, but the trial court granted defendants' motion for judgment notwithstanding the verdict and alternatively ordered a new trial on the ground of insufficiency of the evidence to support the verdict. Plaintiffs appealed from the judgment and order granting a new trial.

The court of appeal reversed the judgment for defendants notwithstanding the verdict, but affirmed the order granting a new trial. The court stated that on a motion for a new trial, the judge must weigh and consider the evidence of both parties. If he or she is convinced that the verdict is clearly against the weight of the evidence, it is the judge's duty to grant a new trial even though there may be conflicts in the evidence. In view of the evidence on some of the crucial issues in the case, the court said that there was no abuse of discretion in granting defendant's motion for a new trial. Accordingly, the court affirmed the order (255 Cal. App. 2d 241, 253-254).
[d]--Court Not Bound by Prior Rulings on Questions of Law or Prior View of Evidence
In Yarrow v. State of California (1960) 53 Cal. 2d 427, 2 Cal. Rptr. 137, 348 P.2d 687 , plaintiffs brought an action for personal injuries sustained in an automobile accident. After the jury rendered a verdict for plaintiffs, defendant moved for a new trial on all statutory grounds including insufficiency of the evidence and that the verdict was against law. Defendant also moved for a judgment notwithstanding the verdict. The court granted the motion for a new trial on the ground of insufficiency of the evidence to justify the verdict but denied the motion for judgment notwithstanding the verdict. Plaintiffs appealed the order.

The Supreme Court affirmed the order, stating that in granting a new trial, the trial court is not bound by its prior rulings on questions of law or its prior view of the evidence. In denying the motion for judgment notwithstanding the verdict and granting the motion for a new trial on the ground of insufficiency of the evidence, the trial court held that the state was not protected by sovereign immunity from a judgment, but that the record did not contain sufficient evidence to make the state liable to these plaintiffs. Although the reasons given in the order appeared to be contradictory to the portion of the order denying the motion for judgment notwithstanding the verdict, the plain unequivocal language of the order stated that the motion was denied and the motion for a new trial granted. Since an order is measured by its terms and not by any reasons the court may give for it, the Court affirmed the order granting defendant a new trial (53 Cal. 2d 427, 437-443).
[e]--Judge Not Bound by Conflicts in Evidence
In Lippold v. Hart (1969) 274 Cal. App. 2d 24, 78 Cal. Rptr. 833 , plaintiffs brought an action to recover for personal injuries and property damage suffered in an automobile collision. After the jury returned a verdict for defendant, plaintiffs' motion for a new trial was denied. Plaintiffs appealed the judgment.

The court of appeal reversed the judgment, stating that a judge is not bound by a conflict in the evidence when ruling on a motion for a new trial; rather, he or she must reweigh the evidence, the inferences therefrom, and the credibility of the witnesses in determining whether the jury clearly should have reached a different verdict. In this case, the comments that the trial judge made at the hearing on the motion for a new trial indicated that he misconceived his function at the hearing. His comments suggested that he thought that he was bound to uphold the jury verdict since the evidence was conflicting. The court of appeal added that if the comments of the trial judge indicated that the judge misconceived his duty at the hearing on the motion, an appellate court will not blindly affirm the judgment because there is some evidence to support it. Such an approach would let the form control the substance. The court of appeal found that the trial judge properly made an independent evaluation of the evidence, but erroneously failed to base his decision on the motion for new trial on that evaluation. Accordingly, the court reversed the judgment (274 Cal. App. 2d 24, 25-27).
[f]--Judge's Duty to Set Aside Verdict If Unjust
In Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 85 Cal. Rptr. 281 , plaintiff brought an action for false arrest and imprisonment against the city and county and the arresting officers. After the jury rendered a verdict for all defendants, plaintiff moved for judgment notwithstanding the verdict and for a new trial. The court granted plaintiff a limited judgment notwithstanding the verdict and, in the alternative, granted a new trial on the ground of insufficiency of the evidence and verdict against the law. Defendant appealed the order.

The court of appeal reversed the judgment notwithstanding the verdict and affirmed the order granting a new trial. Since the trial court's order was granted solely on the issue of false imprisonment, the court of appeal extended the order to the entire judgment. The court stated that it is the trial judge's duty to set aside the jury's verdict whenever his or her conscience is impressed with the injustice thereof. The trial court concluded that plaintiff's detention constituted false imprisonment. The court is authorized to determine the effect of the evidence contrary to the determination of the jury (5 Cal. App. 3d 728, 738-739). Since the court held that the issues of false arrest and imprisonment embraced a single tort, it extended the order granting a new trial to the entire cause and affirmed the lower court's granting of the motion (5 Cal. App. 3d 728, 740-741).
[g]--Unreliable but Substantial Evidence Supports Verdict
The factual and procedural background of Moore v. City & County of San Francisco (1970) 5 Cal. App. 3d 728, 85 Cal. Rptr. 281 , is discussed in [f], above. In affirming an alternative order granting plaintiff a new trial on the grounds of insufficiency of the evidence and verdict against law, the court of appeal stated that it is the duty of the trial court to grant a new trial if he or she believes that the evidence is unreliable. It added that the trial court has the power to grant a new trial even though the evidence might justify a verdict. In this case, the trial court conceded that the jury's findings were not clearly in error. However, the facts of the case showed that the police officers did not act reasonably since the evidence was undisputed that the bail was placed five or six hours prior to the time plaintiff was released. Even though the jury concluded that defendants did not falsely imprison plaintiff, the trial court felt that plaintiff was falsely imprisoned by defendants. The court of appeal stated that if there is any evidence that would uphold and substantiate a verdict for the moving party, if the jury had decided for her, the trial court is justified in ordering a new trial (5 Cal. App. 3d 728, 738-739). Since the court concluded that such evidence existed, it affirmed the order granting a new trial (5 Cal. App. 3d 728, 739-740).
[4]--Additional Authorities
[a]--Judge or Jury Clearly Should Have Reached Different Decision or Verdict
Matlock v. Farmers Mercantile Co. (1968) 258 Cal. App. 2d 362, 65 Cal. Rptr. 723 , was an action for personal injuries in which the court of appeal affirmed an order granting plaintiffs a new trial on the ground of insufficiency of the evidence. After reviewing the evidence, the court concluded that the jury clearly should have reached a contrary verdict. It stated that the statutory standard of Code Civ. Proc. 657[Deering's] had been met and that the lower court did not abuse its discretion in granting a new trial (258 Cal. App. 2d 362, 366).
[b]--Judge Required to Weigh Evidence
The factual and procedural background of Yarrow v. State of California (1960) 53 Cal. 2d 427, 2 Cal. Rptr. 137, 348 P.2d 687 , is discussed in [3][d], above. The Supreme Court affirmed an order granting defendant a new trial on the ground of insufficiency of the evidence. It stated that in considering the sufficiency of the evidence on the hearing of a motion for a new trial, the trial court may judge the credibility of witnesses, determine the probative force of the testimony, weigh the evidence, and draw reasonable inferences therefrom opposed to those drawn by the trier of fact (53 Cal. 2d 427, 434).

Widener v. Pacific Gas & Electric Co. (1977) 75 Cal. App. 3d 415, 142 Cal. Rptr. 304 , was a libel action in which the court of appeal reversed an order granting defendant a judgment notwithstanding the verdict and affirmed an alternate order granting defendant a new trial on the grounds of insufficiency of the evidence and excessive damages. The court stated that in passing on a motion for a new trial made on the ground of insufficiency of the evidence, the trial judge is required to weigh the evidence and in so doing he or she may disbelieve witnesses and draw inferences contrary to those supporting the verdict (75 Cal. App. 3d 415, 440). After examining the record, the court concluded that the trial court did not abuse its discretion in granting the motion (75 Cal. App. 3d 415, 438-440).
[c]--Judge Not Bound by Conflicts in Evidence
Ballard v. Pacific Greyhound Lines (1946) 28 Cal. 2d 357, 170 P.2d 465 , was an action for personal injuries in which the Supreme Court affirmed an order granting defendant a new trial, stating that the trial court in considering a motion for new trial is not bound by a conflict in the evidence and has not abused its discretion when there is any evidence that would support a judgment in favor of the moving party (28 Cal. 2d 357, 358-359). After examining the entire record, the court concluded that the trial court did not abuse its discretion in granting the motion (28 Cal. 2d 357, 359-362).

Candido v. Huitt (1984) 151 Cal. App. 3d 918, 199 Cal. Rptr. 41 , was a negligence action in which the court of appeal affirmed an order granting defendant's motion for a new trial on the ground of insufficiency of the evidence. In its order the trial court said that there was not sufficient evidence in the record to support the jury's finding that plaintiff's negligence was not a proximate cause of the damage alleged by the plaintiff. The appellate court found that this statement was a sufficient explanation of the reason for the order. It also noted that a new trial may be granted even if there is sufficient evidence to sustain the verdict on appeal, as long as the court determines that the weight of the evidence is against the verdict (151 Cal. App. 3d 918, 923).

Martinez v. Harris (1969) 273 Cal. App. 2d 385, 78 Cal. Rptr. 325 , was a personal injury action in which the court of appeal affirmed an order granting defendant's motion for a new trial on the ground of insufficiency of the evidence. The court stated that the trial court, in considering a motion for new trial, is not bound by a conflict in the evidence and has not abused its discretion when there is any evidence which would support a judgment in favor of the moving party (273 Cal. App. 2d 385, 397). The court concluded that there was evidence that would support a judgment in favor of the moving party, and it accordingly affirmed the order (273 Cal. App. 2d 385, 398-399).
155.211-155.219 [Reserved]

155.220 Opposing Motion for New Trial [Code Civ. Proc. 659]--Insufficiency of Evidence to Justify Verdict or Decision [Code Civ. Proc. 657(5)]
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED FOR INSUFFICIENCY OF THE EVIDENCE TO JUSTIFY THE _________________ [VERDICT or DECISION] BECAUSE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] WERE NOT MATERIALLY AFFECTED THEREBY, AND THE _________________ [JURY or COURT] SHOULD NOT CLEARLY HAVE REACHED A DIFFERENT _________________ [VERDICT or DECISION].

A. New Trial Precluded Unless Court Convinced That Court or Jury Clearly Should Have Reached Different Result. A new trial must not be granted on the ground of insufficiency of the evidence to justify the verdict or decision unless, after weighing the evidence, the court is convinced from the entire record, including reasonable inferences therefrom, that the jury or court clearly should have reached a different verdict or decision ( Code Civ. Proc. 657[Deering's] ; Charles D. Warner & Sons, Inc. v. Seilon, Inc. (1974) 37 Cal. App. 3d 612, 616-617, 112 Cal. Rptr. 425 ).

B. Evidence Sufficient to Justify Verdict or Decision. In considering a motion for a new trial, the judge has an affirmative duty to make an independent appraisal of the evidence and to grant the motion when a preponderance of the evidence is opposed to the findings of the jury; however, the motion is properly denied if the judge concludes that the evidence is sufficient to justify the verdict (see Byrne v. City and County of San Francisco (1980) 113 Cal. App. 3d 731, 739-742, 170 Cal. Rptr. 302 ).

[Optional ] C. Denial of Motion When Judge Would Have Ruled Differently If Deciding Case. A motion for new trial on the ground of insufficiency of the evidence may be denied, even though the judge felt that he or she would have ruled differently if deciding the case, when the judge does not conclude that the jury clearly should have reached a different verdict ( County of Riverside v. Loma Linda University (1981) 118 Cal. App. 3d 300, 322, 173 Cal. Rptr. 371 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense.]

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 insufficiency of the evidence to justify the verdict or other decision [ Code Civ. Proc. 657(6)[Deering's] ]. In an appropriate case, the points and authorities set out in this form may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.210.
[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 how the evidence was sufficient to support the verdict or other decision, and how the court or the jury should not clearly have reached a different verdict or decision [see Code Civ. Proc. 657[Deering's] ; see also Charles D. Warner & Sons, Inc. v. Seilon, Inc. (1974) 37 Cal. App. 3d 612, 616-617, 112 Cal. Rptr. 425 ].

Counsel should add further points and authorities that set forth the substantive law pertaining to the particular cause of action or defense. For example, in a personal injury action in which plaintiff moves for a new trial on the ground that the evidence is insufficient to support the verdict for defendant, defendant should discuss the substantive law of negligence in order to argue that there was sufficient evidence from which the jury could conclude that defendant was not guilty of negligence that proximately caused plaintiff's injuries [see Byrne v. City and County of San Francisco (1980) 113 Cal. App. 3d 731, 742, 170 Cal. Rptr. 302 ]. When preparing these substantive 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 notice of intention to move for a new trial as well as 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 grounds of insufficiency of evidence [ Code Civ. Proc. 657(6)[Deering's] ] and excessive or inadequate damages [ Code Civ. Proc. 657(5)[Deering's] ] are frequently combined. For memoranda of points and authorities opposing a motion for new trial on the ground of excessive or inadequate damages, see Ch. 65, Damages in this publication.
[3]--Discussion of Authorities
[a]--New Trial Precluded Unless Court Convinced That Court or Jury Clearly Should Have Reached Different Result
In Charles D. Warner & Sons, Inc. v. Seilon, Inc. (1974) 37 Cal. App. 3d 612, 112 Cal. Rptr. 425 , plaintiff corporation brought an action against two rubber companies and the dealer for damages when one of the corporation's trucks was completely destroyed by the blowout of a defective tire. After the jury returned verdicts against all three defendants, the two rubber companies moved for a new trial on the grounds of excessive damages and insufficiency of the evidence to justify the verdict [ Code Civ. Proc. 657(5)[Deering's], (6)[Deering's] ]. The court denied the motion, and defendants appealed the judgment.

The court of appeal affirmed the judgment, stating that the trial judge satisfied the duty imposed on him in ruling on the motion. He weighed the evidence and exercised independent judgment as to whether the verdict was in error or against the fair preponderance of the evidence (37 Cal. App. 3d 612, 617). However, in the memorandum of decision on the motion for new trial, the judge stated that it was not clear that the jury should have reached a different verdict; reasonable minds might differ with respect to the weight given to the testimony of the witnesses and the opinions expressed (37 Cal. App. 3d 612, 616-617). In reviewing the trial court's exercise of discretion, the court of appeal stated that it does not weigh the evidence, but determines whether or not there is any substantial evidence that will support the conclusion reached by the jury. Since there was clear evidence to support the jury's findings, the court concluded that the verdict must stand. Therefore, it held that the denial of the motion was proper (37 Cal. App. 3d 612, 617).
[b]--Evidence Sufficient to Justify Verdict or Decision
In Byrne v. City and County of San Francisco (1980) 113 Cal. App. 3d 731, 170 Cal. Rptr. 302 , plaintiff brought an action for personal injuries suffered when she was struck by motor vehicles of two defendants while crossing an intersection in a marked crosswalk. Judgment for defendants was entered on a special jury finding that the evidence did not establish negligence on the part of any defendant that amounted to a proximate cause of plaintiff's injuries. Plaintiff moved for a new trial on the ground that the evidence was insufficient to justify the verdict. She claimed that defendants were guilty of negligence per se since she was in the crosswalk when she was struck. The court denied the motion, and plaintiff appealed the judgment.

The court of appeal affirmed the judgment for defendants, stating that in considering a motion for a new trial, the trial court has an affirmative duty to make an independent appraisal of the evidence and to grant the motion when the preponderance of the evidence is opposed to the findings of the jury (113 Cal. App. 3d 731, 739). In this case, however, there was sufficient evidence from which the judge and the jury could conclude that there had been no negligence that was the proximate cause of the injuries incurred by plaintiff (113 Cal. App. 3d 731, 742). The record showed that the defendants had met the burden necessary to excuse the technical violation of the pedestrian's right-of-way statute [ Veh. Code 29150 ]. The view of the defendant who first struck plaintiff was obscured by a stopped bus at the crosswalk; the view of the second defendant was obstructed by the other defendant. Also, it appeared from the record that each defendant responded to the possibility of a pedestrian in the crosswalk by easing off the accelerator and by proceeding when the crosswalk was apparently clear (113 Cal. App. 3d 731, 741). Furthermore, plaintiff did not exercise her statutory and case law duty of care in crossing the street since she was familiar with the intersection and aware of the danger but did not take any precaution before stepping from behind the bus. Therefore, the court concluded that the record did not establish an abuse of discretion by the trial court in denying plaintiff's motion for a new trial since sufficient evidence supported the verdict. The court then affirmed the judgment (113 Cal. App. 3d 731, 741-742).
[c]--Denial of Motion When Judge Would Have Ruled Differently If Deciding Case
In County of Riverside v. Loma Linda University (1981) 118 Cal. App. 3d 300, 173 Cal. Rptr. 371 , plaintiff county brought an action for indemnification against a medical school for the monetary value of a settlement of a medical malpractice action. The medical school was affiliated with the county hospital, and the doctors involved in the medical malpractice suit were residents under a joint residency program between the university and the county hospital. However, the university was not named as a defendant in the medical malpractice action. Following the settlement of that action, the county brought this action for indemnity against the university. The jury returned a special verdict in favor of the county on two theories: (1) that the university and the county were joint venturers, and (2) that the two entities were joint tortfeasors with fault apportioned equally. Defendant university moved for a new trial on the ground of insufficiency of the evidence to justify the verdict. When its motion was denied, defendant university appealed the judgment.

The court of appeal affirmed the judgment, even though the judge had told the jurors before he discharged them that he disagreed with their conclusion, and if deciding the case, he would have exonerated the university. He added, however, that there was sufficient evidentiary basis for the jury's determination. The court of appeal stated that a motion for a new trial should not be granted for insufficiency of the evidence unless the court is convinced from the entire record that the jury clearly should have rendered a different verdict. Here, the judge did not say that he thought that the jury clearly should have reached a different verdict. The court of appeal concluded that the fact that the judge stated that he would have ruled differently did not indicate an abuse of discretion. Accordingly, it affirmed the judgment (118 Cal. App. 3d 300, 322-323).
[4]--Additional Authorities
[a]--Evidence Sufficient to Justify Verdict or Decision
Stevens v. Roman Catholic Bishop of Fresno (1975) 49 Cal. App. 3d 877, 123 Cal. Rptr. 171 , was a wrongful death action in which the court of appeal affirmed judgment for plaintiffs finding that the denial of defendant's motion for a new trial on the ground of insufficiency of the evidence was proper. The plaintiffs sued the driver of the car, who was a missionary from France, as well as the Roman Catholic Bishop of Fresno, a corporation, on the basis of an alleged principal-agent relationship. The court of appeal concluded that there was sufficient evidence to support the jury's finding that the missionary was acting within the scope of his agency at the time of the accident and that the trial court's denial of the motion was proper (49 Cal. App. 3d 877, 889).

Windeler v. Scheers Jewelers (1970) 8 Cal. App. 3d 844, 88 Cal. Rptr. 39 , was an action for personal injuries and property loss in which the court of appeal affirmed judgment for plaintiff finding that the denial of defendant's motion for a new trial on several grounds including insufficiency of the evidence was proper. The court stated that it could perceive no abuse of discretion in the trial court's denial of defendant's motion, nor could it conclude that the evidence was insufficient to sustain the verdict. There was substantial evidence as to defendant's negligence, as to plaintiff's physical and mental suffering, and as to the property damage sustained by her (8 Cal. App. 3d 844, 852-853).

Whyatt v. Kukura (1958) 157 Cal. App. 2d 803, 321 P.2d 860 , was a personal injury action in which the court of appeal affirmed judgment for plaintiff, finding that an order denying her motion for a new trial on the ground of insufficiency of the evidence to justify the verdict was proper. Plaintiff felt that the damages awarded at trial were grossly inadequate. The court of appeal examined expert testimony concerning plaintiff's preexisting injuries and concluded that the evidence was sufficient to support the verdict and judgment. The court stated that the evidence was such that the jury might reasonably have believed that plaintiff's physical disabilities were chargeable largely to preexisting causes (157 Cal. App. 2d 803, 804-805).
[b]--Denial of Motion When Judge Would Have Ruled Differently If Deciding Case
In Domingues v. Pantalone (1989) 212 Cal. App. 3d 201, 260 Cal. Rptr. 431 (discussed in 155.151[3][b]), the court of appeal rejected appellant's claim that the trial court erroneously denied a motion for new trial on the ground of insufficiency of evidence. The appellate court stated that, even though trial court judge independently weighed the evidence and concluded that the jury clearly should have reached a different result, the judge also impliedly found that there was sufficient credible evidence to support the verdict, and that the jury was reasonable in believing the witnesses it apparently had believed in reaching its verdict. The trial court properly recognized that it could not grant the motion for new trial simply because it would have found differently than the jury (212 Cal. App. 3d 201, 216).

Causey v. Cornelius (1958) 164 Cal. App. 2d 269, 330 P.2d 468 , was a personal injury action in which the court of appeal affirmed judgment for plaintiff and reversed an order granting defendants a new trial on the ground of irregularity in the proceedings of the adverse party [ Code Civ. Proc. 657(1)[Deering's] ]. The trial court had also denied defendants' motion for a new trial on the ground of insufficiency of the evidence. The court of appeal stated that on this ground the motion was properly denied. The judge should give due respect to the verdict of the jury and may sometimes properly deny a new trial in cases when if submitted to him or her without a jury, the judge might have made a different decision. The judge must clearly be satisfied that the verdict is wrong; otherwise, he or she should let it stand (164 Cal. App. 2d 269, 284).

Although Causey v. Cornelius (1958) 164 Cal. App. 2d 269, 330 P.2d 468 , was decided prior to the 1965 amendment of Code Civ. Proc. 657[Deering's] [see Stats. 1965, ch 1749], it has been cited with approval in County of Riverside v. Loma Linda University (1981) 118 Cal. App. 3d 300, 322, 173 Cal. Rptr. 371 [see [3][c], above].
155.221-155.229 [Reserved]

7 Verdict or Decision Against Law
155.230 Supporting Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--General Form
[1]--FORM


[Caption. See 155.50[1]. ]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE _________________ [VERDICT or DECISION] IS AGAINST LAW, AND THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] WERE MATERIALLY AFFECTED THEREBY.

New Trial on Ground of Verdict or Other Decision Against Law. 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 the verdict or other decision is against law, if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. 657(6)[Deering's] ).

[Add further points and authorities, if appropriate, relating to particular fact situation to show that verdict or decision is against law (see, e.g., Forms 191-194).]

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 the verdict or decision is against law [ Code Civ. Proc. 657(6)[Deering's] ]. It is a general form that should be used in conjunction with more specific points and authorities [see, e.g., 155.231 et seq.].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the verdict or decision, showing how it is against law and how it materially affected the moving party's substantial rights.

In a general sense, a verdict or decision is against law if there is any ground whatsoever for granting a new trial. However, the application of this ground has been limited to those factual situations that are not covered by the other subdivisions of Code Civ. Proc. 657[Deering's] . Furthermore, although the grounds of insufficiency of the evidence and verdict or decision against law are contained in the same subdivision of Code Civ. Proc. 657[Deering's] , they are entirely distinct grounds for a new trial motion. They are stated in the disjunctive and are alternatives [see Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 382-383, 215 P.2d 487 (difference between decision against law and insufficiency of evidence to justify decision); see also Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 958, 111 Cal. Rptr. 210 (difference between verdict against law and insufficiency of evidence to justify verdict)].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of verdict or decision against law [ Code Civ. Proc. 657(6)[Deering's] ] and other related forms, 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 155.240 et seq. may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
155.231 Supporting Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--General Verdict Unsupported by Substantial Evidence
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities in support of a motion for new trial on the grounds of verdict or decision against law (see 155.230).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE VERDICT IS AGAINST LAW IN THAT IT IS UNSUPPORTED BY ANY SUBSTANTIAL EVIDENCE AND THE ENTIRE EVIDENCE WOULD JUSTIFY A DIRECTED VERDICT IN FAVOR OF _________________ [PLAINTIFF or DEFENDANT].

General Verdict Unsupported by Any Substantial Evidence. When a general verdict is returned, it is against law when it is unsupported by any substantial evidence, that is, when the entire evidence would justify a directed verdict against the party in whose favor the verdict is returned (see Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 789, 342 P.2d 903 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense.]
[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 the verdict is against law [ Code Civ. Proc. 657(6)[Deering's] ] because it is unsupported by substantial evidence. It does not provide a complete memorandum, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the grounds that the verdict or decision is against law [see 155.230].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show that the verdict is against law because it is unsupported by any substantial evidence and that the evidence justifies a directed verdict in favor of the moving party. Counsel should add further points and authorities that set forth the substantive law pertaining to the particular cause of action or defense. For example, in a personal injury action in which plaintiff moves for a new trial on the ground that the verdict for defendant is against law, plaintiff should discuss the substantive law of negligence to show that the verdict is without any substantial evidentiary support [see Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 789, 342 P.2d 903 ]. To aid in preparing these substantive 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 notice of intention to move for a new trial on the ground of verdict or decision against law [ Code Civ. Proc. 657(6)[Deering's] ] and other related forms, 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 155.240 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--General Verdict Unsupported by Any Substantial Evidence
In Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 342 P.2d 903 , plaintiff brought an action for personal injuries against defendant. After the jury returned a verdict for plaintiff in the amount of $2,500, plaintiff moved for a new trial on the grounds of insufficiency of the evidence and verdict against law. The court granted the motion, stating that a new trial was granted on the question of damages. More than 10 days after the granting of the motion, and after defendant's notice of appeal had been filed, the court attempted to amend nunc pro tunc the previous order granting a new trial. The nunc pro tunc order was made on the ground of clerical error; it recited that the new trial was granted on the grounds of insufficiency of the evidence and that the verdict was against law.

The court of appeal held that the nunc pro tunc order was void and of no effect, and it considered the first order that did not specify grounds but stated that the new trial was granted as to the question of damages. The court noted that the notice of motion set forth the grounds of insufficiency of the evidence and verdict against law. It stated that when a general verdict is returned, it can be said to be against law only when it is unsupported by any substantial evidence, that is, when the entire evidence is such as would justify a directed verdict against the party in whose favor the verdict is returned. However, it explained that the words ``against law'' do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment. In this case, the court's order granting a new trial on damages only carried the inescapable inference that there was sufficient evidence to support the verdict, but that the amount of damages awarded was either too large or too small. The court concluded that this inference was irreconcilable with the ground of verdict against law since a verdict must be without any substantial evidentiary support (172 Cal. App. 2d 784, 789). After reviewing the evidence on the issues of liability and damages, the court held that the issue of liability was never properly determined. Thus, it reversed the order granting a new trial on the issue of damages only. It remanded the cause to the trial court with directions to vacate the judgment and order a new trial on all issues (172 Cal. App. 2d 784, 793).
[4]--Additional Authorities
[a]--General Verdict Unsupported by Any Substantial Evidence
Bray v. Rosen (1959) 167 Cal. App. 2d 680, 335 P.2d 137 , was an action for personal injuries in which the court of appeal reversed an order granting plaintiff a new trial. The court noted, however, that a verdict is against law when the evidence is insufficient in law and without conflict on any material point (167 Cal. App. 2d 680, 683). In this case, the court found that there was conflicting evidence regarding the amount of damage sustained. Accordingly, it could not say that the verdict and judgment were against law (167 Cal. App. 2d 680, 684).
155.232 Supporting Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--Verdict Contrary to Correct Jury Instructions
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities in support of a motion for new trial on the ground of verdict or decision against law (see 155.230).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE JURY'S VERDICT IS CONTRARY TO CORRECT JURY INSTRUCTIONS.

Verdict Contrary to Correct Jury Instructions. A new trial may be granted on the ground of verdict against law if the verdict is contrary to correct jury instructions (see Manufacturers' F. Corp. v. Pacific W. Radio (1933) 130 Cal. App. 239, 243, 19 P.2d 1013 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense.]
[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 the verdict is against law [ Code Civ. Proc. 657(6)[Deering's] ] because it is contrary to correct jury instructions. It does not provide a complete memorandum, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the grounds that the verdict or decision is against law [see 155.230].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show that the jury instructions are correct and that the jury's verdict is contrary to these instructions. If, however, the jury instructions are incorrect and the verdict is in disregard of them, a new trial is improper [see Rystrom v. Sutter Butte Canal Co. (1925) 72 Cal. App. 518, 523-524, 238 P. 954 ].

Counsel may also include a discussion of the substantive law pertaining to the particular cause of action or defense in order to show that the jury instructions are a correct statement of law [see Rystrom v. Sutter Butte Canal Co. (1925) 72 Cal. App. 518, 521, 238 P. 954 ]. To aid in preparing these substantive 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 notice of intention to move for a new trial on the ground of verdict or decision against law [ Code Civ. Proc. 657(6)[Deering's] ] and other related forms, 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 155.240 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Verdict Contrary to Correct Jury Instructions
In Manufacturers' F. Corp. v. Pacific W. Radio (1933) 130 Cal. App. 239, 19 P.2d 1013 , plaintiff transferee filed two actions against defendant, one based on trade acceptances, and the other on an unpaid balance due on an open book account. Defendant counterclaimed against plaintiff's transferor, Fried-Eisemann Radio Corp. The jury returned a verdict in the first action in favor of plaintiff; in the second action, it returned a verdict for defendant in the amount of the unpaid balance on the open book account. Both plaintiff and defendant moved for new trials. Both motions were granted. Plaintiff appealed from the order entered in the first action; defendant appealed from the order entered in the second.

The court of appeal affirmed plaintiff's order on the ground that there was an error of law and affirmed defendant's order on the ground that the verdict was against law. The court stated that defendant's demands against the transferor could not be made the basis for an affirmative liability on the part of plaintiff, and the verdict in that respect was contrary to the instructions of the court. Consequently, the court concluded that it was a verdict against law and might be set aside on a motion for a new trial (130 Cal. App. 239, 243).
155.233 Supporting Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--Inconsistent Verdict
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities in support of a motion for new trial on the ground of verdict or decision against law (see 155.230).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE VERDICT IS AGAINST LAW IN THAT THE JURY HAS RENDERED VERDICTS THAT ARE BASED ON THE SAME SET OF FACTS, BUT THAT ARE FATALLY INCONSISTENT.

A. Inconsistent Verdicts. Verdicts are against law if the jury renders verdicts that are based on the same set of facts but that are fatally inconsistent, and a new trial may be granted ( Cavallaro v. Michelin Tire Corp. (1979) 96 Cal. App. 3d 95, 101, 157 Cal. Rptr. 602 ; Morris v. McCauley's Quality Transmission Service (1976) 60 Cal. App. 3d 964, 970-972, 132 Cal. Rptr. 37 ).

[Optional ] B. No Waiver of Defective Verdict. If the verdicts are held fatally inconsistent, the defect is not waived by the aggrieved party's failure to call it to the attention of the trial court prior to discharging the jury ( Morris v. McCauley's Quality Transmission Service (1976) 60 Cal. App. 3d 964, 972, 132 Cal. Rptr. 37 ).

[Optional ] C. Inconsistent Damage Awards. A new trial may be granted on the basis of inconsistent verdicts if the jury renders an award of punitive damages without awarding compensatory damages ( Haydel v. Morton (1935) 8 Cal. App. 2d 730, 736, 48 P.2d 709 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to particular cause of action or defense.]
[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 the verdict is against law [ Code Civ. Proc. 657(6)[Deering's] ] because the jury has rendered inconsistent verdicts. It does not provide a complete memorandum, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground that the verdict or decision is against law [see 155.230].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show that the verdicts are inconsistent and are therefore against law. It may be necessary for counsel to include further points and authorities that discuss the substantive law pertaining to the particular cause of action or defense in order to show how the verdicts are inconsistent. For example, in a personal injury action against three defendants, the wholesaler, retailer, and manufacturer of a product, in which the jury exonerates the manufacturer and retailer, but finds the wholesaler liable, counsel for wholesaler may find it necessary to discuss the substantive law of products liability to show that the verdicts rendered are inconsistent [see Cavallaro v. Michelin Tire Corp. (1979) 96 Cal. App. 3d 95, 101-103, 157 Cal. Rptr. 602 ]. To aid in preparing these substantive 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 notice of intention to move for a new trial on the ground of verdict or decision against law [ Code Civ. Proc. 657(6)[Deering's] ] and other related forms, 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 155.240 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Inconsistent Verdicts
In Cavallaro v. Michelin Tire Corp. (1979) 96 Cal. App. 3d 95, 157 Cal. Rptr. 602 , plaintiffs brought an action for wrongful death and personal injuries against an automobile manufacturer, the wholesaler of a tire, and the retailer of the tire. The jury returned verdicts exonerating the automobile manufacturer, but finding the wholesaler of the tire liable. No verdict was returned determining that the retailer had any liability. Defendant wholesaler moved for a new trial on several grounds, including the ground that the verdict was against law. Defendant claimed that the verdicts were inconsistent since the liability of the wholesaler and retailer had to be identical because both were tire suppliers to the car. The court denied the motion, and defendant wholesaler appealed the judgment. Plaintiffs cross appealed.

The court of appeal reversed the judgment, concluding that the verdicts were fatally inconsistent and defendant wholesaler's motion for new trial should have been granted (96 Cal. App. 3d 95, 99, 110). The court stated that inconsistent verdicts are against law and explained that the inconsistent verdict rule is based on the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. In this case, it appeared that the jury's verdict exonerating the retailer was based on a determination that the tire in question was not defectively manufactured; whereas, the verdict against the wholesaler was based on a determination that the tire was defectively manufactured (96 Cal. App. 3d 95, 101-103). After examining other issues raised on appeal, the court reversed the judgment (96 Cal. App. 3d 95, 103-110).

In Morris v. McCauley's Quality Transmission Service (1976) 60 Cal. App. 3d 964, 132 Cal. Rptr. 37 , a child brought an action, through her guardian ad litem, for personal injuries. The jury rendered verdicts for the guardian, but against the child. The trial court granted a new trial to the child on the ground that the verdicts were inconsistent and entered judgment for the guardian. Defendant appealed the order granting a new trial and the judgment for the guardian. The child appealed the portion of the order granting a new trial that failed to limit the new trial to the issue of damages, and also from an order granting certain costs to defendant.

The court of appeal affirmed the order for new trial, reversed the judgment for the guardian, and dismissed the child's appeal with regard to costs. The court agreed that the two verdicts were inconsistent. The verdict in favor of the guardian for the approximate amount of medical expenses incurred on behalf of the child necessarily implied that defendant was negligent, that the guardian was not negligent, and that the medical expenses were proximately caused and reasonably required by defendant's negligence. The verdict in favor of defendant against the child necessarily implied that defendant was not negligent, or that the child failed to establish any substantial damages proximately caused by defendant's negligence or both. The court explained that this inconsistency based on the same set of facts cannot be permitted to stand. It concluded that the verdicts were against law and therefore constituted proper grounds for a new trial (60 Cal. App. 3d 964, 970).
[b]--No Waiver of Defective Verdict
The factual and procedural background of Morris v. McCauley's Quality Transmission Service (1976) 60 Cal. App. 3d 964, 132 Cal. Rptr. 37 , is discussed in [a], above. Defendant contended that plaintiffs waived the right to complain about the inconsistent verdicts when they opposed the resubmission of the case to the jury before the jury was discharged so that corrective action could be taken. Defendant relied on Code Civ. Proc. 619[Deering's] , which gives the court power to require the jury to deliberate further when an informal or insufficient verdict has been returned, and on Brown v. Regan (1938) 10 Cal. 2d 519, 75 P.2d 1063 , which held that a party waives the error if that party fails to request the correction of the verdict when it is rendered.

The court of appeal held that the issue was not waived by plaintiffs. It stated that the waiver rule set out in Brown is not automatic and that there are many exceptions to it. Other cases, it explained, have held that if the verdicts are fatally inconsistent, the defect is not waived by a failure to call it to the attention of the trial court prior to discharging the jury. Although in this case, plaintiffs' counsel actively opposed sending the case back, rather than merely failing to draw attention to the problem, defendant's counsel was also opposed to resubmitting the matter. Accordingly, the court held that the issue was not waived (60 Cal. App. 3d 964, 972).
[c]--Inconsistent Damage Awards
Haydel v. Morton (1935) 8 Cal. App. 2d 730, 48 P.2d 709 , plaintiff brought an action based on three counts. The first count was based on alleged malicious prosecution. The second and third counts were based on alleged slander. The jury returned three verdicts in favor of plaintiff. On the second and third counts, the jury assessed compensatory damages of zero and punitive damages of $10,000. Defendant's motion for a new trial was granted on the second and third counts because of the invalidity of the verdicts.

The court of appeal affirmed the order granting a new trial on the second and third counts. The court stated that the jury did not inadvertently omit to assess compensatory damages, but expressly found and determined that plaintiff had not suffered any actual damage. The court said that when a jury expressly finds that plaintiff has not suffered any damages, an award of punitive damages without a verdict for compensatory damages cannot be upheld. Therefore, the court affirmed the order granting a new trial (8 Cal. App. 2d 730, 736-737).
[4]--Additional Authorities
[a]--Inconsistent Verdicts
In Manor Investment Co. v. F. W. Woolworth, Inc. (1984) 159 Cal. App. 3d 586, 206 Cal. Rptr. 37 , the court of appeal modified the trial court's determination, holding that a new trial was required on both inconsistent verdicts rendered by a jury. The plaintiff had alleged a cause of action against one defendant for wrongful interference with a contract and another cause of action against all defendants for conspiracy to wrongfully interfere with the same contract. The jury found that the first defendant was not liable for wrongful interference, but that all defendants were liable for conspiracy to wrongfully interfere. The trial court granted a new trial on only the conspiracy cause of action on the ground of excessive damages. The court of appeal, however, concluded that the verdicts were inconsistent and set aside both verdicts, because both were equally against the law (159 Cal. App. 3d 586, 596-597).

Campbell v. Zokelt (1969) 272 Cal. App. 2d 315, 77 Cal. Rptr. 561 , was an action in which plaintiff passenger sued the driver of her car and the driver of another car. Defendants also cross complained against each other for damages. The jury returned verdicts that found defendant driver of the other car negligent as to the plaintiff passenger, but not negligent as to the driver of plaintiff's car. The court of appeal affirmed the order granting plaintiff passenger and defendant driver of plaintiff's car a new trial. The court concluded that the verdicts were clearly inconsistent and could not stand, stating that a decision is against law when the findings are irreconcilable (272 Cal. App. 2d 315, 318-320).
[b]--No Waiver of Defective Verdict
The factual and procedural background of Campbell v. Zokelt (1969) 272 Cal. App. 2d 315, 77 Cal. Rptr. 561 , is discussed in [a], above. The court of appeal affirmed an order granting plaintiff a new trial on the basis of inconsistent verdicts. The court also held that plaintiff passenger and defendant driver of plaintiff's car did not waive their right to complain of the inconsistent verdicts when they failed to object to the form of the verdict before the discharging of the jury. The court concluded that Code Civ. Proc. 619[Deering's] provided that only informal or insufficient verdicts need be called to the attention of the court, and inconsistent verdicts were not covered by the statute (272 Cal. App. 2d 315, 320).
155.234 Supporting Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--Decision Against Law
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities in support of a motion for new trial on the ground of verdict or decision against law (see 155.230).]

THE MOTION FOR NEW TRIAL SHOULD BE GRANTED BECAUSE THE DECISION IS AGAINST LAW IN THAT _________________ [THE COURT FAILED TO FIND ON A MATERIAL ISSUE or THE STATEMENT OF DECISION IS IRRECONCILABLE or THE EVIDENCE IS INSUFFICIENT IN LAW AND WITHOUT CONFLICT ON ANY MATERIAL POINT].

A. Decision Against Law. A decision is against law only (1) when there is a failure to find on a material issue; (2) when the findings are irreconcilable; or (3) when the evidence is insufficient in law and without conflict on any material point (see Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 789, 342 P.2d 903 ; see also Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 383, 215 P.2d 487 ).

[Optional ] B. Failure to Resolve Specified Controverted Issue. The court's failure to resolve a specified controverted issue in its statement of decision may be a basis for granting a new trial on the ground of decision against law if that failure materially affects the substantial rights of the aggrieved party (see Code Civ. Proc. 632[Deering's], 634[Deering's], 657[Deering's] ; see also Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 383, 215 P.2d 487 ).

[Optional ] C. Inconsistent, Ambiguous, and Uncertain Statement of Decision. If the statement of decision is so inconsistent, ambiguous, and uncertain that it is incapable of being reconciled and it is impossible to tell how a specified controverted issue is determined, the decision may be against law and a new trial may be granted if the substantial rights of the aggrieved party are materially affected (see Code Civ. Proc. 632[Deering's], 634[Deering's], 657[Deering's] ; see also Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 383, 215 P.2d 487 ).

[Optional ] D. Evidence Insufficient as Matter of Law and Without Conflict on Any Material Point. A decision may be against law if the evidence in the case is insufficient as a matter of law and without conflict on any material point ( In re Marriage of Beilock (1978) 81 Cal. App. 3d 713, 728, 146 Cal. Rptr. 675 ).

[Optional ] E. Moving Party May Raise New Legal Theory. Section 657(6)[Deering's] of the Code of Civil Procedure empowers a trial court to consider new legal challenges not previously raised before the verdict or judgment when the court is ruling on a motion for new trial ( Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App. 4th 10, 15-16, 1 Cal. Rptr. 2d 805 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense.]
[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 the decision is against the law [ Code Civ. Proc. 657(6)[Deering's] ]. It does not provide a complete memorandum, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground that the verdict or decision is against law [see 155.230].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, depending on the facts of the case, counsel should include a discussion of either the nature of the court's failure to find on a material issue, the manner in which the statement of decision is irreconcilable, or the reasons that the evidence is insufficient in law and without conflict on any material point. It may be necessary for counsel to add further points and authorities that discuss the substantive law pertaining to the particular cause of action or defense. For example, in a case involving a marital settlement agreement in which a former wife moves for a new trial on the ground that her former husband's order quashing a writ is against law, counsel for the wife should discuss certain substantive principles of family law to establish that the order is against law and that the evidence is without conflict on any material point [see In re Marriage of Beilock (1978) 81 Cal. App. 3d 713, 728, 146 Cal. Rptr. 675 ]. To aid in preparing these substantive 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 notice of intention to move for a new trial on the ground of verdict or decision against law [ Code Civ. Proc. 657(6)[Deering's] ] and other related forms, 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 155.241 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Decision Against Law
The factual and procedural background of Kralyevich v. Magrini (1959) 172 Cal. App. 2d 784, 342 P.2d 903 , is discussed in 155.231[3][a]. The court of appeal reversed an order granting a new trial as to damages and remanded the cause to the trial court with instructions to vacate the judgment and order a new trial on all issues. The court noted that the plaintiff's motion for a new trial was based on insufficiency of the evidence and verdict against law. It stated that the latter ground is of very limited application, and that a decision can be said to be against law only: (1) when there is a failure to find on a material issue; (2) when the findings are irreconcilable; and (3) when the evidence is insufficient in law and without conflict on any material point (172 Cal. App. 2d 784, 789). Although the court determined that the order granting the motion was not based on a verdict or decision against law, it concluded that the issue of liability in the case was never properly determined. Therefore, it reversed the order granting a new trial on the issue of damages only and concluded that a new trial on all issues was necessary (172 Cal. App. 2d 784, 790-793).

In Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 215 P.2d 487 , plaintiffs brought an action for recovery of money paid on the purchase price of property on the theory of inducement through false and fraudulent representations. Defendant filed a cross complaint for the recovery of the balance of the purchase price. The trial court found generally in accord with the allegations of the complaint and against the allegations of the cross complaint and rendered judgment for plaintiffs. Defendant's motion for a new trial was granted, and plaintiffs appealed the order. On appeal, defendant asserted that the order was based on the ground that the decision was against law.

Even though the court of appeal reversed the order, it stated that the phrase ``against law'' refers to a situation furnishing a reason for a reexamination of an issue of fact. If the court fails to find on material issues made by the pleadings--issues as to which a finding would have the effect to countervail or destroy the effect of the other findings--and as to which evidence was introduced, the decision is against law. If the findings are so inconsistent, ambiguous and uncertain that they are incapable of being reconciled and it is impossible to tell how a material issue is determined, the decision is against law. A decision is also against law if the evidence is insufficient in law and without conflict in any material point (96 Cal. App. 2d 380, 383). In this case, the court concluded that the court did not fail to find on any issue of fact. The findings were consistent, unambiguous, and certain. Furthermore, the evidence was sufficient to support the findings. Therefore, the court held that the decision was not against law. Accordingly, it reversed the order (96 Cal. App. 2d 380, 385-386).

In 1981, the Legislature amended Code Civ. Proc. 632[Deering's] , eliminating findings of fact and conclusions of law and replacing them with a procedure for issuing a statement of decision. Cases such as this one, decided under the prior law, should be used with care.
[b]--Failure to Resolve Specified Controverted Issue
The factual and procedural background of Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 215 P.2d 487 , is discussed in [a], above. Even though the court of appeal reversed an order granting defendant a new trial, it stated that the phrase ``against law'' referred to a situation furnishing a reason for a reexamination of an issue of fact. If the court fails to find on material issues made by the pleadings--issues as to which a finding would have the effect to countervail or destroy the effect of other findings--and as to which evidence was introduced, the decision is against law. In such a case, the court said, a reexamination of the facts is necessary in order that the issues of fact may be determined (96 Cal. App. 2d 380, 383).

In 1981, the Legislature amended Code Civ. Proc. 632[Deering's] , eliminating findings of fact and conclusions of law and replacing them with a procedure for issuing a statement of decision. Now, a party must specify those controverted issues as to which that party is requesting the statement of decision [see Code Civ. Proc. 632[Deering's] ]. Even though this is so, it appears that the court may still fail to resolve a specified controverted issue in its statement of decision [see Code Civ. Proc. 632[Deering's], 634[Deering's] ]. However, the court's mere failure to resolve a specified controverted issue does not seem to be grounds for the granting of a new trial unless that failure materially affects the substantial rights of the moving party [see Code Civ. Proc. 657[Deering's] ]. This may mean that the failure must involve an issue which, if determined, would countervail or destroy the effect of the other determined issues [see Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 383, 215 P.2d 487 ]. In any event, cases such as this one, decided under the prior law, should be used with care.
[c]--Inconsistent, Ambiguous, and Uncertain Statement of Decision
The factual and procedural background of Renfer v. Skaggs (1950) 96 Cal. App. 2d 380, 215 P.2d 487 , is discussed in [a] and [b], above. Even though the court of appeal reversed an order granting defendant a new trial, it stated that if the findings are so inconsistent, ambiguous, and uncertain that they are incapable of being reconciled and it is impossible to tell how a material issue is determined, the decision is against law (96 Cal. App. 2d 380, 383). In this case, the court concluded that the findings were consistent, unambiguous, and certain and, after examining the findings more closely, the court held that the decision was not against law (96 Cal. App. 2d 380, 385-386).

In 1981, the Legislature amended Code Civ. Proc. 632[Deering's] , replacing findings of fact and conclusions of law with statements of decision. However, it appears that the resulting statement of decision may be inconsistent, ambiguous, and uncertain, even though a party may file proposals as to the contents of the statement, and the other party may object to these proposed contents [see Code Civ. Proc. 634[Deering's] ; Cal. Rules of Ct., Rule 232(b)[Deering's], (d)[Deering's], (f)[Deering's] ]. However, the inconsistent, ambiguous, or uncertain statement of decision will probably not afford a ground for the granting of a new trial unless the substantial rights of the aggrieved party are materially affected [see Code Civ. Proc. 657[Deering's] ]. In any event, cases such as this one, decided under the prior law, should be used with care.
[d]--Evidence Insufficient as Matter of Law and Without Conflict on Any Material Point
In re Marriage of Beilock (1978) 81 Cal. App. 3d 713, 146 Cal. Rptr. 675 , was an action in which a former wife obtained a writ of execution and levy on her former husband's property for arrearages of child and spousal support payments. Her former husband then obtained an order quashing the writ, claiming that he had no obligation to pay support payments since his wife was living with another man and holding herself out to be his wife [see former Civ. Code 4801.5[Deering's] (repealed and replaced by Fam. Code 4323[Deering's] operative January 1, 1994)], and that although the marital settlement agreement provided for the support of a child until she reached 21, his daughter had become emancipated at age 17. The former wife then moved for a new trial on the grounds of insufficiency of the evidence and decision against law. The motion was granted, and the husband appealed the order.

The court of appeal affirmed the order on the ground that the decision was against law. The court stated that a decision is against the law if the evidence is insufficient in law and without conflict on any material point (81 Cal. App. 3d 713, 728). In this case, the court noted that the husband's arrearages preceded the effective date of Civ. Code 4801.5[Deering's], providing for the termination of spousal support payments if a spouse is living with a person of the opposite sex and holding himself or herself as the spouse of the other person. Therefore, even if Civ. Code 4801.5[Deering's] could be applied, it could only justify termination of payments for two of the six years that the payments were due under the terms of the agreement (81 Cal. App. 3d 713, 729-730). Secondly, the court held that a child's emancipation did not automatically terminate the parent's obligation of support (81 Cal. App. 3d 713, 730). Finally, the court of appeal concluded that the trial judge may have decided to exercise his or her discretion to quash the writ on the basis of equitable considerations, but later decided to change his or her mind on the matter. Although the court of appeal could not say categorically that the original choice was against the law, it declined to disturb the order granting a new trial since there was no showing that there was an abuse of discretion in the choice of the trial judge to change his or her mind. In other words, the court stated, the judge was within the bounds of permissible action to conclude that the original decision he or she had made was against the law (81 Cal. App. 3d 713, 732-733). Accordingly, the court affirmed the order granting a new trial (81 Cal. App. 3d 713, 733).
[e]--Moving Party May Raise New Legal Theory
In Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App. 4th 10, 1 Cal. Rptr. 2d 805 , parents of a child brought an action against an owner of a day care home after the child died from injuries suffered when she fell down a set of stairs while at the day care facility. The day care owner's homeowner insurance carrier denied coverage of the parents' claim. The issue of coverage was tried by the trial court without a jury and the court entered judgment against the insurer. The insurer filed a motion for new trial. In its motion, the insurer relied for the first time on Insur. Code 676.1(c) (it is against public policy for a residential property insurance policy to provide liability coverage for losses arising out of operation of a family day care home). The trial court vacated its earlier judgment and the parents appealed.

The court of appeal affirmed the trial court's order. On appeal, the parents contended that the insurer's tardy reliance on the Insurance Code section did not permit the trial court to grant a new trial or vacate its prior judgment, and, citing Slemons v. Paterson (1939) 14 Cal. 2d 612, 615, 96 P.2d 125 , that a mistake of law will not support an order granting a new trial or an order vacating a judgment. The Hoffman-Haag court distinguished Slemons, recognizing that Slemons correctly held that, on a motion for new trial based on newly discovered evidence (see Code Civ. Proc. 657(4)[Deering's] ), mistake of law claimed to have been the cause for having failed to see earlier the relevance of the evidence is inadequate to support the motion. That restriction, however, the court concluded, does not apply to all the grounds on which a new trial may be made or a judgment vacated (1 Cal. App. 4th 10, 14). Contrary to the parents' argument, legal challenges that may brought by way of Code Civ. Proc. 657(6)[Deering's] and Code Civ. Proc. 663(1)[Deering's] (motion to vacate), based on the ground that the decision is ``against the law'' are not limited to those raised before verdict or judgment (1 Cal. App. 4th 10, 15). The court noted that on appeal a party may change the legal theory he or she relied on at trial, so long as the new theory presents a question of law to be applied to undisputed facts in the record. The court held that in ruling on a new trial motion, Sections 657 and 663 give a trial court no less power to consider new legal theories. Since the insurer could have argued on appeal that the Insurance Code, as applied to stipulated facts, barred coverage; there was no sound reason that prevented the insurer from making the same argument in its motion for new trial (1 Cal. App. 4th 10, 16).
155.235-155.239 [Reserved]

155.240 Opposing Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--Evidence Is Not Without Conflict on All Material Points
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE THE _________________ [VERDICT or DECISION] IS NOT AGAINST LAW IN THAT THE EVIDENCE IS NOT WITHOUT CONFLICT ON ALL MATERIAL POINTS.

A. Evidence Must Be Without Conflict on All Material Points. A jury's verdict is against law only if it is unsupported by any substantial evidence; that is, if the entire evidence was such as would justify a directed verdict against the parties in whose favor the verdict is returned. To put it another way, a verdict or decision can be said to be against law only if the evidence is insufficient in law and without conflict on any material point ( Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 906, 215 Cal. Rptr. 679, 701 P.2d 826 ; McCown v. Spencer (1970) 8 Cal. App. 3d 216, 229, 87 Cal. Rptr. 213 ).

[Optional ] B. ``Against Law'' Does Not Allow Weighing of Evidence. The words ``against law'' in Section 657(6)[Deering's] of the Code of Civil Procedure do not import a situation in which the court weighs the evidence and merely finds a balance against the verdict ( Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 906, 215 Cal. Rptr. 679, 701 P.2d 826 ; McCown v. Spencer (1970) 8 Cal. App. 3d 216, 229, 87 Cal. Rptr. 213 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense.]

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 that the verdict or decision is against law [ Code Civ. Proc. 657(6)[Deering's] ] when the evidence is not without conflict on all material points. In an appropriate case, the points and authorities set out in this form may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.230, 155.231, and 155.234.

Optional Paragraph B is for use in opposing the erroneous contention that a verdict is against law based on a weighing of the evidence. The argument may be used when, of course, the party supporting the motion for new trial would not otherwise prevail on the Code Civ. Proc. 657(6)[Deering's] ground of insufficiency of the evidence [see, e.g., Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 56, 150 Cal. Rptr. 722 (order granting new trial not sustainable under either grounds of sufficiency of evidence or verdict against law)].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the evidence in the case in order to show that there may be a conflict on a material point. Counsel should add additional points and authorities that discuss the substantive law pertaining to the particular cause of action or defense. For example, in a wrongful death action in which plaintiff moves for a new trial on the ground that the verdict for defendant is against law, defense counsel may find it necessary to discuss the substantive law of negligence in order to argue that there are conflicts in the evidence regarding whether or not defendant is negligent as a matter of law [see Hilts v. County of Solano (1968) 265 Cal. App. 2d 161, 177-178, 71 Cal. Rptr. 275 ]. To aid in preparing these substantive points and authorities, counsel may consult the substantive chapters contained in this publication and in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).br> [c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Evidence Must Be Without Conflict on All Material Points
Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 215 Cal. Rptr. 679, 701 P.2d 826 , involved an action for damages in which plaintiffs were awarded a $2.1 million judgment against a defendant bank. The bank moved for a new trial and the trial court granted the motion. The plaintiffs appealed.

The Supreme Court reversed. The Court stated that the jury's verdict is ``against law'' only if it is unsupported by any substantial evidence, that is, if the entire evidence is such as would justify a directed verdict against the parties in whose favor the verdict was returned. The Court went on to say that the function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support the verdict (38 Cal. 3d 892, 906). Accordingly, the Court examined the record to determine whether the verdict for the plaintiffs was, as a matter of law, unsupported by substantial evidence. In applying the established rule of appellate review, the Court concluded that the judgment entered on the jury verdict was supported by substantial evidence (38 Cal. 3d 892, 907).

In McCown v. Spencer (1970) 8 Cal. App. 3d 216, 87 Cal. Rptr. 213 , plaintiff purchaser brought an action against the defendant sellers for damages caused by the sellers' alleged breach of an escrow agreement. A verdict was rendered for plaintiff and, on defendants' motions, the court granted judgment for defendants notwithstanding the verdict and, alternately, ordered a new trial. The court's order granting the motion specified that it was granted on three grounds: insufficiency of the evidence, accident or surprise, and verdict against law. Plaintiff appealed from the judgment and from the order granting a new trial.

The court of appeal reversed both the judgment for defendants notwithstanding the verdict and the order granting defendants a new trial. The court stated that a verdict or decision can be said to be against law only when the evidence is insufficient in law and without conflict on any material point. In this case, the court of appeal noted that the trial court entertained an erroneous concept of the application of estoppel in this case. If the court had been correct in deciding that only conduct before a certain date could create an estoppel, then the granting of a new trial because the verdict was against law would have been proper in that there was no evidence of such conduct before that date. However, since an estoppel could have been based on acts occurring after that date and evidence of those acts was received, the court concluded that the verdict was not against law (8 Cal. App. 3d 216, 228-230). After examining the granting of the motion on the other grounds, the court reversed the order granting defendants a new trial (8 Cal. App. 3d 216, 230).
[b]--``Against Law'' Does Not Allow Weighing of Evidence
The facts and procedural background of Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 215 Cal. Rptr. 679, 701 P.2d 826 , are discussed in [a], above. In Sanchez-Corea, in which the Supreme Court reversed an order granting a new trial, the Court stated that the ground that the verdict ``is against law'' is separate and distinct from the other grounds listed in Code Civ. Proc. 657[Deering's] and does not include any, or all, of those other separate and distinct grounds for new trial. The Court cited Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 56, 150 Cal. Rptr. 722 for the proposition that in contrast to the grounds of insufficient evidence and excessive or inadequate damages, the phrase ``against law'' does not import a situation in which the court weighs the evidence and finds a balance against the verdict, as it does in considering the ground of insufficiency of evidence. The Court then considered the record on that theory and concluded that the judgment entered on the jury verdict was supported by substantial evidence (38 Cal. 3d 892, 907).

The facts and procedural background of McCown v. Spencer (1970) 8 Cal. App. 3d 216, 87 Cal. Rptr. 213 , are discussed in [a], above. In McCown, which reversed the trial court's order granting defendants a new trial, the court of appeal stated that the words ``against law'' do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment (8 Cal. App. 3d 216, 228).
[4]--Additional Authorities
[a]--Evidence Must Be Without Conflict on All Material Points
Musgrove v. Ambrose Properties (1978) 87 Cal. App. 3d 44, 150 Cal. Rptr. 722 , was an action for personal injuries in which the court of appeal reversed a judgment for defendant notwithstanding the verdict and an order granting defendant a new trial on the grounds of insufficiency of the evidence and verdict against law. The court stated that the phrase ``against law'' does not import a situation in which the court weighs the evidence and finds a balance against the verdict; the granting of a new trial on that ground is authorized only when there is no substantial evidence to sustain the verdict. Since the evidence was sufficient to support a verdict for plaintiff, the court concluded that a new trial was improperly granted on the ground that the verdict was against law (87 Cal. App. 3d 44, 56).

S.F. Bay Area Rapid Transit Dist. v. McKeegan (1968) 265 Cal. App. 2d 263, 71 Cal. Rptr. 204 , was a condemnation action that apportioned an award between lessors and lessees. The court of appeal reversed an order granting a new trial to the lessors that was based on several grounds including verdict or decision against law. The court stated that the granting of a new trial on the ground that the verdict was against law is authorized when there is no substantial evidence to sustain the verdict. Since there was substantial evidence that supported the lessees' judgment, the court reversed the order (265 Cal. App. 2d 263, 272-273).

Hilts v. County of Solano (1968) 265 Cal. App. 2d 161, 71 Cal. Rptr. 275 , was an action for wrongful death against the driver and owner of a truck and a county. The court of appeal reversed an order granting a new trial to the defendant owner. The court stated that a verdict is against law when the evidence is insufficient in law so that a directed verdict would have been proper for plaintiff. In this case, the court stated that the plaintiffs were not entitled to a directed verdict because the evidence conflicted as to whether the truck driver or decedent entered the intersection first and as to whether the truck driver was negligent in view of his speed and the limited visibility conditions at the intersection. While the court conceded that the driver of the truck exceeded the prima facie speed limit, this fact did not establish that he was negligent as a matter of law. Therefore, the court concluded that the order could not be sustained on the ground that the verdict was against the law (265 Cal. App. 2d 161, 177-178).

Thompson v. Guyer-Hays (1962) 207 Cal. App. 2d 366, 24 Cal. Rptr. 461 , was an action for rescission of a contract for the sale of real property and for damages for fraudulent misrepresentation in which the court of appeal affirmed judgment for plaintiffs and reversed an order granting defendants' motion for a new trial on the ground that the decision was against law. The court of appeal stated that a decision is against law when the evidence is insufficient in law and without conflict on any material point; the words ``against law'' do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment. Since there was substantial evidence in this case to support the judgment, the court of appeal concluded that it was improper to grant the motion for new trial on the ground that the decision was against law (207 Cal. App. 2d 366, 375).
155.241 Opposing Motion for New Trial [Code Civ. Proc. 659]--Verdict or Decision Is Against the Law [Code Civ. Proc. 657(6)]--Verdict Not Contrary to Correct Jury Instruction
[1]--FORM


[Caption. See 155.60[1]. ]

THE MOTION FOR NEW TRIAL SHOULD NOT BE GRANTED BECAUSE THE VERDICT IS NOT AGAINST LAW IN THAT _________________ [IT IS NOT CONTRARY TO A CORRECT JURY INSTRUCTION and/or IT IS CONTRARY TO AN INCORRECT JURY INSTRUCTION].

[EITHER ]

A. Verdict Not Contrary to Correct Instruction. A verdict is against law when it is contrary to the instructions given to the jury, and that verdict is contrary to an instruction only when the evidence on a point covered by the instruction is without conflict and fails to show a set of facts that would warrant the verdict reached ( Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 958, 111 Cal. Rptr. 210 ; Hawkinson v. Oesdean (1943) 61 Cal. App. 2d 712, 716, 143 P.2d 967 ).

[Optional ] B. Special Verdict Form Need Not Repeat Detail of Instruction. When the jury is provided with correct instructions, a detailed repetition of those instructions in the special verdict form is not essential ( Neal v. Montgomery Elevator Co. (1992) 7 Cal. App. 4th 1194, 1199, 9 Cal. Rptr. 2d 497 ).

[AND/OR ]

C. Verdict Contrary to Incorrect Instruction. A new trial will not be granted on the ground that the verdict is against law if the jury instructions were incorrect and the verdict rendered in disregard of them was proper ( Tousley v. Pacific Electric Ry. Co. (1913) 166 Cal. 457, 462, 137 P. 31 ; Rystrom v. Sutter Butte Canal Co. (1925) 72 Cal. App. 518, 523, 238 P. 954 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense.]

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 that the verdict is against law [ Code Civ. Proc. 657(6)[Deering's] ] when either the verdict is not contrary to correct jury instructions or the verdict is contrary to incorrect jury instructions. In an appropriate case, the points and authorities set out in this form may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.232.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of the verdict rendered and the instruction given in order to show that the verdict is not against law. It may be necessary for counsel to add further points and authorities discussing the substantive law pertaining to the particular cause of action or defense. For example, in a personal injury action in which defendant moves for a new trial on the ground that plaintiff's verdict is against law, plaintiff may discuss the substantive law of negligence to show that the jury instructions were erroneous statements of the law on contributory negligence, but that the jury reached a verdict that was in disregard of the instructions [see Tousley v. Pacific Electric Ry. Co. (1913) 166 Cal. 457, 462-463, 137 P. 31 ]. To aid in preparing these substantive 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 notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Verdict Not Contrary to Correct Instruction
In Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal. App. 3d 948, 111 Cal. Rptr. 210 , plaintiff purchaser brought an action for breach of warranty and negligence against the manufacturer and seller of industrial electric motors. The jury rendered a verdict in favor of plaintiff on the breach of warranty cause of action. Defendant moved for a judgment notwithstanding the verdict and a new trial on the ground that the verdict was against law. The court denied the motion for judgment notwithstanding the verdict, but granted the motion for a new trial. Plaintiff appealed the order granting a new trial; defendant appealed from the order denying its motion for judgment notwithstanding the verdict.

The court of appeal reversed the order granting defendant's motion for a new trial, stating that a verdict is against law when it is contrary to the instructions given the jury. However, that a verdict is against law or that it is not supported by the evidence are separate grounds for a new trial. An order granting a new trial on the ground that the verdict is against law cannot be stated by merely showing that the verdict is unsupported by the evidence. It is possible to determine whether a verdict is contrary to an instruction only when the evidence on a point covered by the instruction is without conflict and fails to show a set of facts, which, under the instruction, would warrant the verdict reached. However, the court explained that if the evidence on that point is conflicting but sufficient to support a finding of fact under which the instruction warrants the verdict, it must be presumed that the jury would make such a finding and hence its verdict is not contrary to the instruction and not against the law. In this case, the court found that the evidence was in conflict and sufficient to support the verdict. Therefore, it was not contrary to the instructions given to the jury and was not against law (35 Cal. App. 3d 948, 958).

In Hawkinson v. Oesdean (1943) 61 Cal. App. 2d 712, 143 P.2d 967 , plaintiff brought an action for personal injuries against defendant. After the jury rendered a verdict in favor of defendant, plaintiff moved for a new trial on the ground that the verdict was against law. The court granted the motion, and defendant appealed the order. On appeal, plaintiff claimed that the verdict was against law because the evidence was insufficient to justify the verdict.

The court of appeal reversed the order, stating that a verdict is against law when it is contrary to the instructions given to the jury. The court observed that no conflict was claimed or appeared between the verdict and the instructions. It explained that a verdict is not against law merely because the evidence is insufficient to justify it. Insufficiency of the evidence and verdict against law are two separate grounds for a new trial, and an order granting a new trial on the ground that the verdict is against law cannot be sustained by merely showing that it is unsupported by the evidence. The court added that it is possible to determine whether a verdict is contrary to an instruction only when the evidence on a point covered by the instruction is without conflict and fails to show a set of facts that under the instructions, would warrant the verdict reached. When the evidence on that point is conflicting, but sufficient to support a finding of fact that under the instruction, warrants the verdict, it must be presumed that the jury did make such a finding, and hence its verdict is not contrary to the instruction and not against law. Furthermore, the court added that the evidence was legally sufficient to justify the verdict, and after examining other possible grounds for the granting of the motion, the court concluded that the order should be reversed (61 Cal. App. 2d 712, 717-720).
[b]--Special Verdict Form Need Not Repeat Detail of Instruction
In Neal v. Montgomery Elevator Co. (1992) 7 Cal. App. 4th 1194, 9 Cal. Rptr. 2d 497 , the plaintiff in a personal injury action moved for new trial on his cause of action for strict liability against the defendant manufacturer. The parties agreed to products liability jury instructions on burden of proof and defective design and on the special verdict form for negligence and products liability [see BAJI No. 16.11[Deering's] (7th ed. 1986)]. The trial court suggested that counsel could modify the form ``if it needs to be modified'' to conform with the leading case, but plaintiff's counsel declined to modify the form. The trial court subsequently granted the motion for new trial because the special verdict form had not been revised to comport with the applicable burden of proof. The defendant appealed from the order.

The court of appeal reversed and reinstated the original judgment. The court reviewed the law regarding the burden of proof applicable to products liability cases from Bernal v. Richard Wolf Medical Instruments Corp (1990) 221 Cal. App. 3d 1326, 1332, 272 Cal. Rptr. 2d 41 , and concluded that the instructions correctly laid out each issue on which the plaintiff and defendant had the burden of proof. The special verdict form given to the jury, however, did not repeat the burden of proof instructions. The court stated that although Bernal used the same special verdict form and judgment for defendant was reversed, the jury's special verdict in that case quite likely resulted from the jury following the trial court's instructions. Since the jury in the instant case was provided with correct instructions, the court saw no reason why the instructions had to be repeated in detail in the special verdict form (7 Cal. App. 4th 1194, 1199). Thus, the court held that the special verdict form was correct and reversed (7 Cal. App. 4th 1194, 1196).
[c]--Verdict Contrary to Incorrect Instruction
In Tousley v. Pacific Electric Ry. Co. (1913) 166 Cal. 457, 137 P. 31 , plaintiff brought an action for personal injuries against defendant. The jury rendered a verdict in favor of plaintiff, and defendant moved for a new trial. When its motion was denied, defendant appealed the judgment. Defendant claimed that the verdicts were against law since they were in violation of two instructions given to the jury on the question of contributory negligence.

The Supreme Court affirmed the judgment, stating that it was manifest from reading the instructions that they could, in no degree, have prejudiced defendant's case. The Court stated that while a jury should conform to the instructions of the court on matters of law, if it appears to the appellate tribunal that an instruction was erroneous, it will not disregard a verdict contrary to the erroneous instruction. The fact that the lower court erroneously instructed the jury to the contrary does not make the verdict against law (166 Cal. 457, 462-463). Accordingly, the Court affirmed the order denying the new trial (166 Cal. 457, 464).

In Rystrom v. Sutter Butte Canal Co. (1925) 72 Cal. App. 518, 238 P. 954 , plaintiff brought an action to recover damages for loss of crops due to the alleged failure of defendant to furnish water for irrigation purposes. The jury rendered a verdict for plaintiff, and defendant moved for a new trial. When its motion was denied, defendant appealed the judgment on the basis of alleged erroneous jury instructions.

The court of appeal affirmed the judgment and found that defendant had not been prejudiced by the erroneous instruction since the jury did not follow the erroneous rule laid down by the court. The court stated that while the jury should conform to the instructions of the court on matters of law, if it appears to the appellate tribunal that an instruction was erroneous, it will not disregard a verdict contrary to such an erroneous instruction. The court stated that former Cal. Const., art. VI, 4 1/2 [now see Cal. Const., art. VI, 13[Deering's] ] directs that no judgment should be set aside or new trial granted unless the court is of the opinion that the error complained of has resulted in a miscarriage of justice. The court concluded that the error in this case did not and could not have produced a miscarriage of justice. Accordingly, the court affirmed the judgment (72 Cal. App. 518, 524).
[4]--Additional Authorities
[a]--Verdict Contrary to Incorrect Instruction
O'Neill v. Thomas Day Co. (1907) 152 Cal. 357, 92 P. 856 , was a personal injury action in which the Supreme Court affirmed judgment for plaintiff finding that an order denying defendant's motion for a new trial was proper. The lower court gave an erroneous instruction to the jury that enumerated certain facts and told the jury that if it found those facts to exist, then plaintiff was guilty of contributory negligence. Although those facts indisputably did exist, the jury found that plaintiff was not contributorily negligent. The Supreme Court stated that while the jury should conform to the instructions of the court on matters of law, if it appears to the appellate tribunal that an instruction was erroneous, it will not disregard a verdict contrary to erroneous instruction (152 Cal. 357, 361). After examining other issues raised on appeal, the Court affirmed the judgment (152 Cal. 357, 362-364).

S.F. Bay Area Rapid Transit Dist. v. McKeegan (1968) 265 Cal. App. 2d 263, 71 Cal. Rptr. 204 , was a condemnation action that apportioned the award between a lessor and lessee. The court of appeal reversed an order granting a new trial to the lessors that was based, in part, on an erroneous instruction that was given to the jury. The court stated that a new trial cannot be justified on an erroneous instruction that favored rather than prejudiced the movant and that the jury properly refused to apply (265 Cal. App. 2d 263, 272).
155.242-155.249 [Reserved]

8 Error of Law
155.250 Supporting Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]--General Form
[1]--FORM


[Caption. See 155.50[1]. ]

A NEW TRIAL SHOULD BE GRANTED BECAUSE THERE WAS AN ERROR IN LAW, OCCURRING AT THE TRIAL AND EXCEPTED TO BY _________________ [PLAINTIFF or DEFENDANT], THAT MATERIALLY AFFECTED HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. New Trial on Ground of Error in Law Occurring at 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 of error in law occurring at the trial and excepted to by the party making the application, if substantial rights of the aggrieved party are materially affected thereby ( Code Civ. Proc. 657(7)[Deering's] ).

B. Error Must Be Prejudicial. A court is expressly enjoined by Article VI, Section 13, of the California Constitution from granting a new trial for an error in law unless the error is prejudicial; however, if the error could possibly have been prejudicial, the court must consider its probable effect and decide the motion accordingly, and if it concludes that the error is prejudicial, a new trial is properly granted ( Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 262, 143 P.2d 929 ).

[Add additional points and authorities, if appropriate, supporting the contention that there was an error in law (see, e.g., Forms 211-215).]

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 error in law occurring at trial [ Code Civ. Proc. 657(7)[Deering's] ]. It is a general form that should be in conjunction with forms containing points and authorities relating to specific issues or fact situations [see, e.g., 155.251 et seq.].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should include a discussion of the nature of the error of law, showing that the moving party excepted to the error at trial. Counsel should also show how the error materially affected the moving party's substantial rights.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of error in law [ Code Civ. Proc. 657(7)[Deering's] ] and other related forms, 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 155.270 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Error Must Be Prejudicial
In Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 143 P.2d 929 , plaintiffs brought an action for personal injuries against two defendants. The jury rendered a verdict for defendants, and the court granted plaintiffs' motion for a new trial on the basis of errors in law occurring in the jury instructions. One defendant appealed from the order granting a new trial.

The Supreme Court affirmed the order, stating that the trial court, no less than the appellate court, is expressly enjoined by former Cal. Const, art VI, 4 1/2 [now see Cal. Const., art. VI, 13[Deering's] ], to deny a new trial for errors of law unless the errors were prejudicial. However, if the error could possibly have been prejudicial, the trial court must consider its probable effect and decide the motion accordingly. In this case, the trial court determined that the errors in the instructions prejudiced plaintiffs' case, and the Court could not say, in light of the record, that the trial court was in error. Accordingly, it affirmed the order (23 Cal. 2d 256, 262).
[4]--Additional Authorities
[a]--Error Must Be Prejudicial
Los Angeles City High School Dist. v. Kita (1959) 169 Cal. App. 2d 655, 338 P.2d 60 , was an action in eminent domain in which the court of appeal affirmed an order granting plaintiff's motion for a new trial on the ground of error in law. The court stated that if the error could possibly have been prejudicial, the trial court must consider its probable effect and decide the motion for a new trial accordingly (169 Cal. App. 2d 655, 664). In this case, the lower court determined that it abused its discretion in permitting the admission of certain evidence and that such error prejudiced plaintiff's cause. The court of appeal stated that it could not conclude that the trial judge incorrectly granted a new trial. Accordingly, it affirmed the order (169 Cal. App. 2d 655, 666).
155.251 Supporting Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]--Erroneous Admission or Exclusion of Evidence
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of error in law (see 155.250).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, OCCURRING AT TRIAL AND EXCEPTED TO BY THE PARTY MAKING THE APPLICATION, BECAUSE THE COURT ERRONEOUSLY_________________ [ADMITTED and/or EXCLUDED] EVIDENCE AT TRIAL, THUS MATERIALLY AFFECTING _________________ [PLAINTIFF'S or DEFENDANT'S] SUBSTANTIAL RIGHTS.

[EITHER ]

A. Erroneous Admission of Evidence. The trial court's erroneous ruling on the admission of certain evidence is an error in law for which a new trial may be granted if the evidence admitted is not sufficiently probative and results in prejudice to the aggrieved party (see Richard v. Scott (1978) 79 Cal. App. 3d 57, 63-64, 144 Cal. Rptr. 672 ; see also Holling v. Chandler (1966) 241 Cal. App. 2d 19, 23, 50 Cal. Rptr. 219 ).

[AND/OR ]

A. Erroneous Exclusion of Evidence. A new trial may be granted on the ground of error in law if the trial court erroneously excludes certain admissible evidence and that exclusion results in prejudice to the moving party (see Burroughs v. Ben's Auto Park, Inc. (1945) 27 Cal. 2d 449, 456, 164 P.2d 897 ).

B. Adverse Ruling on Evidence Deemed Excepted To. A court's ruling sustaining or overruling an objection to evidence is deemed excepted to without formal objection ( Code Civ. Proc. 647[Deering's] ).

C. Discretion of Trial Judge. If an error of law has occurred in the admission or rejection of evidence, the trial judge may consider all the circumstances surrounding the ruling, including the weight that may be accorded to the questioned evidence, the attitude of the interrogator, and any other fact tending to show the importance of the admission or rejection of the evidence ( De Victoria v. Erickson (1948) 83 Cal. App. 2d 206, 208-209, 188 P.2d 276 ).

[Add further points and authorities discussing the substantive law of evidence in order to show that the evidentiary ruling was erroneous.]
[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 occurring at trial and excepted to by the party making the application [ Code Civ. Proc. 657(7)[Deering's] ] when the court has erroneously excluded or admitted evidence. It does not provide a complete form, but it is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of error in law [see 155.250].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should show why the exclusion or admission of the evidence was erroneous and how it prevented the moving party from having a fair trial, materially affecting the substantial rights of the moving party. Counsel should also add further points and authorities relating to the rules of evidence in order to show that the ruling was erroneous. To aid in the preparation of these substantive points and authorities, counsel may consult the substantive chapters in this publication and in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender), as well as the provisions of the California Evidence Code.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of error in law [ Code Civ. Proc. 657(7)[Deering's] ] and other related forms, 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 155.270 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Erroneous Admission of Evidence
In Richard v. Scott (1978) 79 Cal. App. 3d 57, 144 Cal. Rptr. 672 , plaintiff brought an action for personal injuries sustained in an automobile collision with one defendant. The jury found that plaintiff sustained damages in the sum of $6,000, but apportioned 50 percent fault to each party and rendered a verdict in favor of plaintiff for $3,000. Plaintiff's motion for a new trial was granted on the ground that the court erred in admitting the opinion of defendants' accident reconstruction expert that plaintiff was traveling in excess of the posted speed limit. Defendants appealed the order granting a new trial.

The court of appeal affirmed the order, noting that an erroneous evidentiary ruling may be an error of law for which a new trial may be granted (79 Cal. App. 3d 57, 63 n.2). The court said that the admissibility of the expert's opinion involved a mixed question of fact and law. The factual aspect of the question was whether or not there was evidentiary support for the assumptions made by the expert in formulating his or her opinion. An opinion based on surmise, guess, or conjecture has little evidentiary value (79 Cal. App. 3d 57, 63). The court felt that the trial judge, having heard the evidence, was in a better position to determine whether the factual assumptions made by the expert were adequately supported by the evidence or whether they were based on conjecture. In this case, the record supported the trial judge's determination that many of the factual assumptions made by the expert in arriving at his or her opinion lacked sufficient evidentiary support. Therefore, the court of appeal found no abuse of discretion in granting the motion, and accordingly, it affirmed the order (79 Cal. App. 3d 57, 64).

Note that the holding in Richard was rejected by another court of appeal for categorically holding that the prevailing moving party in a motion for new trial is not required to demonstrate that prejudice resulted from the error for which a new trial was granted ( Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 859, 236 Cal. Rptr. 778 ). Although Richard cited Malkasian v. Irwin (1964) 61 Cal. 2d 738, 747-749, 40 Cal. Rptr. 78, 394 P.2d 822 (discussed in 155.134[3][b]) for that holding, the court in Mosesian held that the Richard decision was overbroad in its statement that a litigant need not show that any prejudice resulted from an error, and that the Richard court's statement of the rule indulges the discretion of the trial court beyond the degree contemplated by the Malkasian court, which noted that the trial court found that a miscarriage of justice had occurred. The court in Mosesian held that granting a new trial motion when the error alleged is harmless violates Cal. Const., art. VI, 13[Deering's] , which states that the standard for granting new trial motions is prejudicial error.

In Holling v. Chandler (1966) 241 Cal. App. 2d 19, 50 Cal. Rptr. 219 , plaintiff brought an action for personal injuries sustained in an automobile collision with defendant. After the jury returned a verdict for defendant, the trial court granted plaintiff's motion for a new trial on the ground of error in law. The trial court stated that it had erroneously admitted experimental evidence for the limited purpose of impeaching plaintiff's expert witness and that it also failed to instruct the jury on the limited purpose for which the evidence was admitted. Defendant appealed the order.

The court of appeal affirmed the order, stating that testimony relating to the results of experiments concerning a disputed material fact should be admitted only if the conditions under which the experiments were made are substantially identical to those out of which the disputed fact arose, should be of the character which will clarify rather than confuse the issue at hand, and should not be admitted if it predominantly involves a consideration of collateral issues. In this case, the conditions at the time of the accident and those at the time of the experiment presented many variables. The evidence served to distract the attention of the jury by submitting a variety of collateral issues to it (241 Cal. App. 2d 19, 24-25). Furthermore, the evidence was confusing and not dependable. Therefore, the court of appeal concluded that the lower court was justified in concluding that the evidence did not sufficiently establish the facts for which it was proffered, and that this error was compounded by the court's failure to give a limiting instruction. Accordingly, the court held that the order granting a new trial was not an abuse of discretion, and it affirmed the order (241 Cal. App. 2d 19, 25-26).
[b]--Erroneous Exclusion of Evidence
In Burroughs v. Ben's Auto Park, Inc. (1945) 27 Cal. 2d 449, 164 P.2d 897 , plaintiff was injured at night when he fell into an areaway adjacent to a parking lot where he had left his automobile. He sued the lessee and operator of the parking lot, the owner and lessor of the parking lot, and the owners of the adjoining property on which the areaway was situated. The jury returned a verdict in favor of the owner and lessor and against the other defendants. The owners of the adjoining property were granted a new trial on the grounds of insufficiency of the evidence and error in law occurring at trial. Plaintiff appealed the judgment in favor of the owner and lessor and from the order granting the other defendants a new trial.

The court of appeal affirmed the order, stating that in granting a new trial on the ground of error in law, the trial court apparently concluded that it had erroneously refused the adjoining landowners' offer to prove that a retaining wall of the property was built by their predecessors in interest. One of plaintiff's contentions was that the adjoining landowners were under a duty not to maintain a dangerous condition adjacent to a public parking lot. However, the court noted that the rejected evidence was admissible to show who was responsible for creating and maintaining the dangerous condition (27 Cal. 2d 449, 456). Therefore, the court concluded that the granting of the motion on this ground was proper. After examining the record, the court also determined that the motion was properly granted on the ground of insufficiency of the evidence. Hence, the court affirmed the order (27 Cal. 2d 449, 455-456).
[c]--Discretion of Trial Judge
In De Victoria v. Erickson (1948) 83 Cal. App. 2d 206, 188 P.2d 276 , plaintiff brought an action for personal injuries against defendants. During cross examination, defense counsel attempted to lay a foundation for the impeachment of plaintiff's witness by implying that he had a witness who saw that a car, other than defendants', caused the accident. Defense counsel then offered a written statement, signed by the new witness, but written by another person, as impeaching evidence. However, the written statement was excluded from the record because defendants did not show the persons present or the circumstances surrounding the signing of the statement. Plaintiff then moved to strike the evidence previously claimed to be grounds for impeachment. The court failed to rule on the motion. After a verdict was rendered for defendants, plaintiff's motion for a new trial was granted. Defendants appealed the order.

The court of appeal affirmed the order, stating that if an error of law has occurred in the admission of evidence over the objections and failure of the court on proper motion to eliminate the evidence from consideration, the trial judge may consider all the circumstances surrounding the ruling of the court, including the weight that may be accorded to the questioned evidence, the attitude of the interrogator, and any other fact tending to show the importance of the admission or rejection of the evidence. The reviewing court, confined to the record on appeal, and without opportunity to precisely weigh the effect of the ruling on the triers of fact, is warranted in assuming that the action of the trial court in granting a new trial is an indication of the importance that the trial court placed on the questioned ruling and its influence in causing a miscarriage of justice (83 Cal. App. 2d 206, 208-209). In this case, the court concluded that the order was properly granted, and, accordingly, it affirmed the order granting a new trial (83 Cal. App. 2d 206, 208-210).
[4]--Additional Authorities
[a]--Erroneous Admission of Evidence
Post v. Camino Del Properties, Inc. (1959) 173 Cal. App. 2d 446, 343 P.2d 294 , was an action for personal injuries in which the court of appeal reversed judgment for defendant notwithstanding the verdict and affirmed an order granting defendant a new trial on the grounds of errors in law and insufficiency of the evidence. The court agreed that the evidence of previous accidents had been erroneously admitted since the evidence was indefinite and did not show similarities in conditions between the previous accidents and the one in question. Furthermore, the court felt that the error had been compounded by the lower court's failure to give a limiting instruction (173 Cal. App. 2d 446, 453-454).

Savoia v. Moorehead (1948) 83 Cal. App. 2d 147, 188 P.2d 260 , was a personal injury action in which the court of appeal affirmed an order granting plaintiff a new trial on the ground of error in law. The lower court erroneously admitted evidence relating to the possibility of plaintiff's having received consideration for dismissing the action against some of the defendants. Since the admission of the evidence appeared to be prejudicial, and there was no manifest abuse of discretion in the trial court's action, the court of appeal affirmed the order (83 Cal. App. 2d 147, 151-152).
[b]--Erroneous Exclusion of Evidence
Stow v. Superior Court (1918) 178 Cal. 140, 172 P. 598 , was a breach of contract action in which the Supreme Court affirmed an order granting plaintiff a new trial on the ground of error in law occurring at trial. At trial, the judge sustained defendant's objection to the introduction of any evidence by plaintiff on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court then granted judgment for defendant on the pleadings. The Supreme Court stated that any erroneous ruling, by which a party is precluded from introducing evidence in support of his or her cause of action as set forth in the complaint for the defense, is an error of law occurring at trial (178 Cal. 140, 143).

Scott v. Gallot (1943) 59 Cal. App. 2d 421, 138 P.2d 685 , was an action for personal injuries in which the court of appeal affirmed an order granting plaintiff a new trial on the ground of error in law. During trial, the court ordered that certain evidence be stricken and instructed the jury that it should not consider the evidence. However, the court of appeal stated that the evidence was relevant under the affirmative issue of contributory negligence raised by the answer to the complaint and that the trial court was therefore justified in granting a new trial (59 Cal. App. 2d 421, 424-425).
155.252 Supporting Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]--Erroneous or Misleading Jury Instructions
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of error in law (see 155.250).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, OCCURRING AT TRIAL AND EXCEPTED TO BY THE PARTY MAKING THE APPLICATION, BECAUSE THERE WERE _________________ [ERRONEOUS and/or MISLEADING] JURY INSTRUCTIONS GIVEN AT TRIAL THAT MATERIALLY AFFECTED _________________ [PLAINTIFF'S or DEFENDANT'S] SUBSTANTIAL RIGHTS.

A. Erroneous or Misleading Jury Instruction Is Error in Law. An erroneous or misleading jury instruction is an error in law for which a new trial may be granted (see Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 170, 153 P.2d 338 ; Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587, 66 Cal. Rptr. 395 ).

B. Erroneous Instruction Deemed Excepted To. An erroneous instruction given by the court to the jury is considered excepted to as a matter of law (see Code Civ. Proc. 647[Deering's] ; Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 453, 5 P.2d 436 ).

C. Determination of Error May Require Examination of Evidence. An instruction should not be considered as merely an abstract statement of a principle of law, but must relate to and be measured by the circumstances of the case in which it is given; the question of whether or not there was any error frequently requires an examination of the evidence in the case ( Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 453, 5 P.2d 436 ).

D. Order Granting New Trial Affirmed If Challenged Instruction Erroneous in Any Degree. An order granting a new trial for error in instructions will be affirmed if the challenged instruction was erroneous in any degree or even if it is only fairly debatable that the instruction may have been misleading ( Shaw v. Pacific Greyhound Lines (1958) 50 Cal. 2d 153, 159, 323 P.2d 391 ).

[Optional ] E. Instructions Overemphasizing One Side of Case. Jury instructions that overly emphasize one side of a case and that result in substantial detriment to a party may be grounds for granting a new trial ( Smith v. Shankman (1962) 208 Cal. App. 2d 177, 187, 25 Cal. Rptr. 195 ).

[Optional ] F. Incorrect or Incomplete Statement of Law. A new trial may be granted on the ground of error in law occurring at trial when an instruction has been given that includes an incorrect or incomplete statement of law applicable to a material issue and the error was not cured by the charge as a whole or otherwise rendered harmless ( Brignoli v. Seaboard Transportation Co. (1947) 29 Cal. 2d 782, 790, 178 P.2d 445 ).

[Optional ] G. Instruction on Inapplicable Doctrine. A new trial may be granted on the ground of error in law if the court instructs the jury on a doctrine of law that is inapplicable to the evidence presented in the case (see Herman v. Shandor (1970) 8 Cal. App. 3d 476, 483, 87 Cal. Rptr. 443 ).

[Optional ] H. Failure to Give Certain Instructions. Each party is entitled to have his or her theory of the case submitted to the jury in accordance with the pleadings and proof, and it is incumbent on the trial court to instruct on all vital issues involved; the failure of the court to instruct on a vital issue may be grounds for the granting of a motion for new trial ( Christian v. Bolls (1970) 7 Cal. App. 3d 408, 415-416, 86 Cal. Rptr. 545 ).

[Optional ] I. Correct but Misleading Instructions. The test of error in giving a correct instruction of law is whether or not it is misleading; if the instruction, correct as an abstract proposition, may have misled the jury, a new trial may be granted ( Strandt v. Cannon (1938) 29 Cal. App. 2d 509, 513, 85 P.2d 160 ).

[Optional ] J. Conflicting and Misleading Instructions. If the court gives conflicting instructions that contain inconsistent ideas that may have confused the jury, a new trial may be granted on the ground of errors in law occurring at trial ( Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 262, 143 P.2d 929 ).

[Add further points and authorities, if appropriate, discussing the substantive law pertaining to the particular cause of action or defense in order to show that the jury instruction was erroneous.]
[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 error in law occurring at trial and excepted to by the party making the application [ Code Civ. Proc. 657(7)[Deering's] ] when the court has given erroneous jury instructions. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of the motion for new trial on the ground of error in law [see 155.250].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case Thus, counsel should discuss how the court's instructions were erroneous or misleading and how these instructions prevented the moving party from having a fair trial and materially affected the moving party's substantial rights. Counsel should also add further points and authorities discussing the substantive law pertaining to the particular cause of action or defense in order to show that the jury instruction was erroneous or misleading. For example, in a medical malpractice action in which plaintiff moves for a new trial on the ground that the court's jury instruction on plaintiff's burden of proof constituted an error in law, plaintiff should discuss the substantive law regarding the standard of proof in civil cases in order to show that the instruction was erroneous and misleading [see Bruck v. Adams (1968) 259 Cal. App. 2d 585, 587-588, 66 Cal. Rptr. 395 ].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of error in law [ Code Civ. Proc. 657(7)[Deering's] ] and other related forms, 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 155.270 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Erroneous or Misleading Jury Instruction Is Error in Law
In Mazzotta v. Los Angeles Ry. Corp. (1944) 25 Cal. 2d 165, 153 P.2d 338 , plaintiff bus passenger brought an action for personal injuries suffered as a result of a collision between an automobile driven by one defendant and a bus operated by a transit corporation, another defendant. After the jury returned a verdict for plaintiff, defendants moved for a new trial. Both motions were granted. The ruling in favor of defendant car driver was based on certain jury instructions that the court found to be erroneous. Plaintiff appealed the order granting a new trial to the automobile driver.

The Supreme Court affirmed the order, noting that the lower court's instruction included a formula and failed to contain all the elements essential to the cause of action. The Court stated that it has been held that such an instruction does not constitute prejudicial error when, considered in its entirety, it fully and fairly charges the jury with the law applicable to the case (25 Cal. 2d 165, 170). However, the Court concluded that the trial judge was in a position to determine far more accurately the effect of the particular instruction on the jury (25 Cal. 2d 165, 170-171). In view of the conflicting testimony concerning the accident, the Court stated that its conclusion that the defendant had been prejudiced by the instruction rested on sound grounds. Since there was no showing of any abuse of discretion, the Supreme Court affirmed the order (25 Cal. 2d 165, 171).

In Bruck v. Adams (1968) 259 Cal. App. 2d 585, 66 Cal. Rptr. 395 , plaintiff brought an action for medical malpractice against defendants. At the conclusion of trial, the court told the jury that plaintiff had the burden of proving his case by a preponderance of the evidence. Later, however, the court instructed the jury on the same subject and told it to use a reasonable certainty standard. After the jury returned a verdict in favor of defendants, plaintiff's motion for a new trial was granted. Defendants appealed the order.

The court of appeal affirmed the order, stating that Code Civ. Proc. 657(7)[Deering's] provides for the granting of a new trial on the ground of error in law occurring at trial. An erroneous or misleading jury instruction is such an error (259 Cal. App. 2d 585, 587). In this case, the court concluded that the second jury instruction was erroneous as a matter of law. In civil cases, the decision must be made according to a preponderance of evidence. However, the court explained that the burden of proof by ``reasonable certainty'' suggested a standard between preponderance of the evidence and beyond a reasonable doubt. Here, the effect of the instruction was to impose a standard of proof that plaintiff was not bound to meet (259 Cal. App. 2d 585, 587-588). Since the court of appeal found no abuse of discretion in the granting of the motion, it affirmed the order granting a new trial (259 Cal. App. 2d 585, 588-589).
[b]--Erroneous Instruction Deemed Excepted To
In Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 5 P.2d 436 , plaintiff brought an action for personal injuries suffered in an automobile collision with defendants. At the conclusion of trial, the court instructed the jury on the issue of contributory negligence. However, contributory negligence was neither raised by the pleadings nor presented by the evidence. After the jury returned verdicts in favor of all defendants, plaintiff's motion for a new trial was granted on the basis of erroneous jury instructions. Defendants appealed the order.

The court of appeal affirmed the order, stating that the giving of the instruction concerning contributory negligence was an error in law (118 Cal. App. 449, 456). The court added that it is a well-settled rule of law in California that an erroneous instruction given by the court to the jury is an error of law that is considered excepted to as a matter of law (118 Cal. App. 449, 453). In this case, the court noted that contributory negligence is an affirmative defense and should be affirmatively pleaded and proved. However, there was nothing in the record that indicated that contributory negligence was an issue in the case. The court concluded that the trial court did not abuse its discretion in granting plaintiff's motion, and accordingly it affirmed the order (118 Cal. App. 449, 456-457).

Note that a party may not later object to a jury instruction if he or she has requested that instruction or a similar one [see Davis v. Nelson (1963) 221 Cal. App. 2d 62, 65, 34 Cal. Rptr. 201 ].
[c]--Determination of Error May Require Examination of Evidence
The factual and procedural background of Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 5 P.2d 436 , is discussed in [b], above. In that case, the court noted that while an instruction gives the law of the case to the jury, its applicability, and often its correctness depends on the evidence in the case. An instruction should not be considered as merely an abstract statement of a principle of law; it must relate to and be measured by the circumstances of the case in which it was given. To determine the question of whether there was any error in giving an instruction frequently requires an examination of the evidence in the case (118 Cal. App. 449, 453).
[d]--Order Granting New Trial Affirmed If Challenged Instruction Erroneous in Any Degree
In Shaw v. Pacific Greyhound Lines (1958) 50 Cal. 2d 153, 323 P.2d 391 , plaintiff brought an action for personal injuries allegedly due to the negligence of a bus driver. At the conclusion of trial, the court instructed the jury that the mere happening of an accident does not support an inference of negligence. However, there was evidence in the case that may have warranted the application of the doctrine of res ipsa loquitur, and thus, the instruction contained an idea that might be understood to be inconsistent with this doctrine. When the jury returned a verdict for defendant, plaintiff's motion for a new trial was granted. Defendant appealed the order.

The Supreme Court affirmed the order, noting that if the challenged instruction was erroneous in any degree, or even if it is only fairly debatable that the instruction may have been misleading, the broad discretion of the trial court may not be disturbed (50 Cal. 2d 153, 159). The Court found that the lower court did not abuse its discretion in granting a new trial, even though it would have affirmed the judgment if the lower court had denied the motion (50 Cal. 2d 153, 158-159). The Court stated that the determination of a motion for a new trial rests so completely within the lower court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears (50 Cal. 2d 153, 159).
[e]--Instructions Overemphasizing One Side of Case
In Smith v. Shankman (1962) 208 Cal. App. 2d 177, 25 Cal. Rptr. 195 , plaintiffs brought an action to recover damages for wrongful death allegedly resulting from defendant's medical malpractice. At the conclusion of trial, the court gave jury instructions that repeatedly emphasized defendant's side of the case. After a verdict was returned for defendant, plaintiffs' motion for a new trial was denied. Plaintiffs appealed the judgment.

The court of appeal reversed the judgment on the basis of the cumulative effect of errors in the case (208 Cal. App. 2d 177, 187). The court concluded that the instructions overly emphasized the defense side of the case. The court stated that although none of the instructions, standing alone, would appear to be prejudicially erroneous, the overall effect of these instructions tended to clothe the doctor in a cloak of legal immunity in the eyes of the jury. At the very least, the court said, the defense aspects of the case were given undue prominence. This practice is not to be commended and undoubtedly resulted in substantial detriment to plaintiffs. The court concluded that these erroneous jury instructions compounded by other errors in the case, such as the bailiff's misconduct, compelled a reversal (208 Cal. App. 2d 177, 186-187).
[f]--Incorrect or Incomplete Statement of Law
In Brignoli v. Seaboard Transportation Co. (1947) 29 Cal. 2d 782, 178 P.2d 445 , plaintiffs brought an action to recover for trucking services rendered to defendants. Defendants admitted liability of $7,111 but cross complained against plaintiff for the loss of goods entrusted to plaintiffs. In answering the cross complaint, plaintiffs admitted that they had received the goods, but denied that they were acting as a common carrier, claiming that they were acting as private or contract carriers in the transaction. At the conclusion of trial, considerable emphasis was placed by the trial judge on the liability of different types of carriers; however, the judge did not adequately define these carriers. The jury returned a directed verdict in favor of plaintiffs on the complaint, and also found in favor of plaintiffs on the cross complaint. Defendants' motion for a new trial was granted, and plaintiffs appealed the order. Defendants cross appealed the judgment.

The Supreme Court affirmed the order, stating that a new trial may be granted on the ground of error in law occurring at trial when an instruction has been given that includes an incorrect or incomplete statement of the law applicable to a material issue, if the error was not cured by the charge as a whole or otherwise rendered harmless (29 Cal. 2d 782, 790). The Court added that when it appears that an erroneous instruction confused or misled the jury, a new trial is justified. In this case, the characteristics of the relationship of a common carrier and that of a contract or private carrier were of vital importance. The Court felt that the instruction concerning a contract carrier was incomplete and therefore erroneous (29 Cal. 2d 782, 791). Since the Court found no abuse of discretion in the trial court's granting of the motion, it affirmed the order (29 Cal. 2d 782, 792).
[g]--Instruction on Inapplicable Doctrine
In Herman v. Shandor (1970) 8 Cal. App. 3d 476, 87 Cal. Rptr. 443 , plaintiff brought an action for personal injuries against defendant. After the jury returned a verdict for plaintiff, defendant moved for a new trial and for judgment notwithstanding the verdict. The court granted both motions, stating that the plaintiff was guilty of contributory negligence, and that error in law was committed by the court in instructing the jury on the doctrine of last clear chance. Plaintiff appealed the orders.

The court of appeal affirmed the order granting a new trial and dismissed the appeal from the order granting judgment notwithstanding the verdict. After examining the facts of the case, the court concluded that the requirements of the last clear chance doctrine were not present in the case (8 Cal. App. 3d 476, 484-485). It stated that the instruction concerning last clear chance should not have been given (8 Cal. App. 3d 476, 486). Therefore, the court found that the lower court did not abuse its discretion in granting a new trial on that issue, and accordingly it affirmed the order (8 Cal. App. 3d 476, 486).
[h]--Failure to Give Certain Instructions
In Christian v. Bolls (1970) 7 Cal. App. 3d 408, 86 Cal. Rptr. 545 , plaintiff brought an action for personal injuries suffered in an automobile collision with defendant. During trial, plaintiff requested an instruction on the doctrine of last clear chance. The court refused to give an instruction of this doctrine, and also refused to give an instruction on joint or common venture. The jury returned a verdict in favor of defendant. Plaintiff moved for a new trial, which was granted. Defendant appealed from the order granting a new trial.

The court of appeal affirmed the order, stating that each party is entitled to have his or her theory of the case submitted to the jury in accordance with the pleadings and proof, and it is incumbent on the trial court to instruct on all vital issues (7 Cal. App. 3d 408, 415). It added that a reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented (7 Cal. App. 3d 408, 415-416). In this case, the court concluded that the elements of the doctrine of last clear chance were applicable and that the trial court should have instructed on this doctrine (7 Cal. App. 3d 408, 416). With regard to the other instructions, the court of appeal stated that it was well within the sound discretion of the lower court to determine whether or not these other instructions were necessary for the jury's complete understanding of the legal principles involved. However, the court could find no abuse of discretion on the part of the lower court in granting a motion for a new trial based on its own failure to give these additional refinements or explanatory instructions (7 Cal. App. 3d 408, 417-418). The court of appeal concluded that the ruling of the trial court with regard to the instructions on last clear chance and joint venture were sufficient grounds for the granting of the motion. Therefore, it affirmed the order granting a new trial (7 Cal. App. 3d 408, 418).
[i]--Correct but Misleading Instructions
In Strandt v. Cannon (1938) 29 Cal. App. 2d 509, 85 P.2d 160 , plaintiff passenger of a car with an unlicensed driver brought an action for personal injuries against defendant, the driver of the other car. At the conclusion of the trial, the court instructed the jury that the lack of a driver's license was prima facie evidence of a driver's incompetence and also instructed the jury on contributory negligence. When the jury returned a verdict in favor of defendant, plaintiff moved for a new trial. The court granted the motion since it felt that the two instructions, when given together to the jury, may have misled it into inferring that there was evidence of contributory negligence on the part of plaintiff. Defendant appealed the order.

The court of appeal affirmed the order, stating that the test of error in giving a correct instruction of law is whether or not it is misleading. If instructions, correct as abstract propositions, may have misled the jury, a new trial may be granted (29 Cal. App. 2d 509, 513). In this case, the court noted that there was no evidence of contributory negligence on the part of plaintiff passenger. The negligence of the driver of the car cannot be imputed to the guest without evidence that showed that the guest exercised some control over the driver or possessed the power to supervise the manner in which the automobile should be operated (29 Cal. App. 2d 509, 513-514). The court concluded that even though the instruction may have been correct as an abstract statement of law, it was inapplicable to the case (29 Cal. App. 2d 509, 514). Furthermore, the court disagreed that the lack of a driver's license was prima facie evidence of incompetence (29 Cal. App. 2d 509, 514-518). Since the court felt that one instruction was clearly erroneous and the other instruction was not applicable, it affirmed the lower court's granting of plaintiff's motion for a new trial (29 Cal. App. 2d 509, 518).
[j]--Conflicting and Misleading Instructions
In Brown v. George Pepperdine Foundation (1943) 23 Cal. 2d 256, 143 P.2d 929 , plaintiffs brought an action for personal injuries suffered from a fall down an elevator shaft. At the conclusion of trial, the court gave several instructions that erroneously stated the law as well as two instructions that contained inconsistent ideas. When the jury rendered a verdict for defendants, plaintiffs moved for a new trial. The court granted the motion on the basis of errors in law occurring in the instructions. Defendants appealed the order.

The Supreme Court affirmed the order, stating that the two instructions given to the jury contained inconsistent ideas and that the jury may have been confused by them (23 Cal. 2d 256, 261-262). Furthermore, the court, in attempting to correct its mistakes, told the jury to disregard certain instructions, then told the jury not to disregard a certain instruction that was then reread. The Court felt that the lower court's determination that its actions confused and misled the jury was not an abuse of discretion, and accordingly the Court affirmed the order (23 Cal. 2d 256, 262).
[4]--Additional Authorities
[a]--Order Granting New Trial Affirmed If Challenged Instruction Erroneous in Any Degree
The factual and procedural background of Christian v. Bolls (1970) 7 Cal. App. 3d 408, 86 Cal. Rptr. 545 , is discussed in [3][h], above. In affirming plaintiff's motion for a new trial on the basis of the trial court's error in failing to give certain jury instructions, the court of appeal stated that if the challenged instruction was erroneous in any degree or even if it is only fairly debatable that such an instruction may have been misleading, the broad discretion of the trial court may not be disturbed (7 Cal. App. 3d 408, 415).
[b]--Incorrect or Incomplete Statement of Law
Pease v. Beech Aircraft Corp. (1974) 38 Cal. App. 3d 450, 113 Cal. Rptr. 416 , was an action arising out of an airplane crash in which the court of appeal affirmed an order granting a new trial on the issue of punitive damages on the ground that there had been an error in instructing the jury. The lower court, when instructing the jury on fraud, omitted the element of actual and justifiable reliance. The court of appeal stated that the lower court decided correctly that the omission made it necessary to grant a new trial as to punitive damages, and accordingly it affirmed the order (38 Cal. App. 3d 450, 465, 474).

Scott v. Renz (1945) 67 Cal. App. 2d 428, 154 P.2d 738 , was a wrongful death action in which the court of appeal affirmed an order granting plaintiffs' motion for a new trial on the ground of errors in law occurring at trial. During trial, the court stated an incorrect principle of law when instructing the jury (67 Cal. App. 2d 428, 437). The court of appeal stated that the lower court was in a better position to determine whether or not the incorrect instruction was prejudicial, and that there appeared to have been no abuse of discretion in granting the order (67 Cal. App. 2d 428, 438).
[c]--Instruction on Inapplicable Doctrine
The factual and procedural background of Stoneburner v. Richfield Oil Co. (1931) 118 Cal. App. 449, 5 P.2d 436 , is discussed in [3][b], above. The court of appeal affirmed an order granting plaintiff's motion for a new trial based on erroneous jury instructions. The trial court had instructed the jury on contributory negligence when there was nothing in the record that indicated that it was an issue in the case. The court of appeal concluded that the instruction was sufficiently prejudicial and constituted an error in law (118 Cal. App. 449, 456).
[d]--Failure to Give Certain Instructions
Kimball v. Whetzel (1970) 10 Cal. App. 3d 836, 89 Cal. Rptr. 373 , was an action for personal injuries in which the court of appeal affirmed an order granting plaintiff's motion for a new trial on the ground of error in law. The trial court based its order on its failure to give an instruction indicating that a driver could give a signal either by hand or by use of a signal lamp or mechanical device. The jury was, in effect, instructed that plaintiff's failure to give a hand signal was negligence (10 Cal. App. 3d 836, 841). The court of appeal found that the instruction was sufficiently misleading so that the trial court could have found that the instruction was improper, and it therefore affirmed the order (10 Cal. App. 3d 836, 842).
155.253 Supporting Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]--Erroneous Denial of Jury Trial
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of error in law (see 155.250).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, OCCURRING AT TRIAL AND EXCEPTED TO BY THE PARTY MAKING THE APPLICATION, BECAUSE THE COURT ERRONEOUSLY DENIED _________________ [PLAINTIFF or DEFENDANT] A JURY TRIAL, THUS MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Erroneous Denial of Jury Trial Is Error in Law. The court's erroneous denial of a jury trial to a party in an action triable by jury is an error in law for which a new trial may be granted (see Hernandez v. Wilson (1961) 193 Cal. App. 2d 615, 619, 14 Cal. Rptr. 585 ; see also Johnson v. Superior Court (1932) 121 Cal. App. 288, 292, 8 P.2d 1047 ).

B. Denial of Jury Trial as Miscarriage of Justice. The court's denial of the right to a jury trial is a miscarriage of justice within the provisions of Article VI, Section 13, of the California Constitution , and a new trial may be granted thereon ( Hernandez v. Wilson (1961) 193 Cal. App. 2d 615, 619, 14 Cal. Rptr. 585 ).

[Optional ] C. Denial of Jury Trial Deemed Objected To. If the moving party has taken actions at trial that make his or her position known on the issue of the denial of the right to a jury, that party will have been deemed to have objected to the court's order denying a jury, and a new trial may be granted on the ground of error in law (see Code Civ. Proc. 647[Deering's] ; Medeiros v. Medeiros (1960) 177 Cal. App. 2d 69, 73, 1 Cal. Rptr. 696 ).

[Add further points and authorities supporting the contention that the denial of a jury trial was erroneous.]
[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 error in law occurring at trial and excepted to by the party making the application [ Code Civ. Proc. 657(7)[Deering's] ] when the court erroneously denied a jury trial to the aggrieved party. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of error in law [see 155.250].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss why the court's denial of a jury trial was erroneous, showing how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights. Counsel should also add further points and authorities supporting the contention that the denial of a jury trial was erroneous.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of error in law [ Code Civ. Proc. 657(7)[Deering's] ] and other related forms, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of when a jury trial is required, see Ch. 326A, Jury Verdicts in that publication.
[d]--Opposing Points and Authorities
The points and authorities set out in 155.270 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Erroneous Denial of Jury Trial Is Error in Law
In Hernandez v. Wilson (1961) 193 Cal. App. 2d 615, 14 Cal. Rptr. 585 , plaintiff waived the right to a jury trial in open court on the first day of trial. However, defendant desired a jury and the case proceeded to trial with a jury for three days. On the morning of the fourth day of trial, defendant's attorney stated that he was then waiving further trial by jury, but then plaintiff withdrew her previous waiver and demanded that the trial proceed and conclude as a jury trial. The court concluded that plaintiff had already waived her right to a jury, refused to permit further trial by jury, heard the conclusion of the case, and ordered judgment for defendant. Plaintiff moved for a new trial, and the court granted the motion on the ground that there was an error in law. Defendant appealed the order granting a new trial; plaintiff cross appealed from the judgment.

The court of appeal affirmed the order, stating that the judge's comments made at the granting of the motion indicated that he misapprehended his duty and power at the time the jury was dismissed. These remarks affirmatively showed that he did not deem a motion to be relieved of a waiver to be one requiring the exercise of discretion. With commendable frankness, he took proper action by granting the motion for new trial. Furthermore, the court noted that any doubt concerning the waiver of a jury trial should be resolved in favor of granting one. Accordingly, the court affirmed the order (193 Cal. App. 2d 615, 619).

In Johnson v. Superior Court (1932) 121 Cal. App. 288, 8 P.2d 1047 , the case came to trial with a jury present; however, defendant objected to a trial by jury, claiming that it had been waived by plaintiffs when they failed to request one at the time the action was first set for trial several months earlier. After argument, the court in effect sustained this objection and held that a jury trial had been waived. The trial proceeded before the court and without a jury. When judgment for defendant was ordered, plaintiffs moved for a new trial on several grounds including error in law. The trial court granted the motion, stating that the plaintiffs had not waived a jury trial and that the court committed error in denying plaintiffs a trial by jury.

The court of appeal affirmed the order even though the court failed to specify the statutory ground on which the order was based. The court stated that the order was based on the ground that the previous action of the court in denying a jury trial was erroneous as a matter of law. After argument, the lower court in effect sustained defendant's objection and held that a jury trial had been waived. This ruling, the court explained, was one made during trial and, if erroneous, was an error of law occurring at trial. Since the lower court concluded that its action was an error in law, and the order did not appear to have been in excess of its jurisdiction, the court of appeal affirmed the order granting plaintiffs a new trial (121 Cal. App. 288, 292-293).
[b]--Denial of Jury Trial as Miscarriage of Justice
The factual and procedural background of Hernandez v. Wilson (1961) 193 Cal. App. 2d 615, 14 Cal. Rptr. 585 , is discussed in [a], above. The court of appeal affirmed an order granting plaintiff a new trial on the ground that there had been an error in law when the court denied plaintiff a jury trial. The court stated that any doubt concerning the waiver of a jury trial should be resolved in favor of granting one. This is because the denial of the right to a trial by jury is a miscarriage of justice within the provisions of former Cal. Const, art VI, 4[Deering's] 1/2 [now see Cal. Const., art. VI, 13[Deering's] ]. In this case, the court of appeal stated that the lower court took proper action in granting plaintiff's motion for a new trial because an error of law was involved. Accordingly, the court affirmed the order (193 Cal. App. 2d 615, 618-619).
[c]--Denial of Jury Trial Deemed Objected To
In Medeiros v. Medeiros (1960) 177 Cal. App. 2d 69, 1 Cal. Rptr. 696 , plaintiff brought an action to quiet title to certain real and personal property. Prior to trial, plaintiff amended her complaint to allege that defendants were in possession of the property and were wrongfully withholding it. Thereafter, a memorandum to set the cause for trial was filed. Plaintiff requested a jury trial and filed a motion asking the court to determine and set forth the equitable and legal issues raised by the pleadings, so that she could know which issues were to be tried by the court and which by the jury. The court denied the demand for a jury trial and also denied the motion to determine the legal and equitable issues. The cause proceeded to trial without a jury and the court decided that plaintiff was to be denied relief. Plaintiff moved for a new trial, contending that the court erred in denying her a jury trial. The trial court granted the motion, and defendants appealed the order. Plaintiff cross appealed from the judgment.

The court of appeal affirmed the order, stating that plaintiff was entitled to a jury trial in this case because her action to quiet title was legal and not equitable. In this case, defendants contended that plaintiff failed to object or except to the order denying a jury trial and therefore the error could not constitute a ground for an order granting a new trial. However, the court of appeal stated that the argument was without merit. By the proceedings that plaintiff took, including timely demand, deposit of jury fees, and a motion for determination of the issue of her rights, she made fully known to the court her position on the issue of her right to a jury trial. Therefore, the order of denial is deemed to have been excepted to [see Code Civ. Proc. 647[Deering's] ]. The court thus concluded that the order granting plaintiff a new trial was proper (177 Cal. App. 2d 69, 73-74).
[4]--Additional Authorities
[a]--Erroneous Denial of Jury Trial Is Error in Law
City of Redondo Beach v. Kumnick (1963) 216 Cal. App. 2d 830, 31 Cal. Rptr. 367 , was an eminent domain action in which the court of appeal reversed an interlocutory judgment of condemnation and concluded that the lower court erred in denying defendant's motion for a new trial based on the court's denial of a jury trial to plaintiff. The court stated that plaintiff's failure to post jury fees could not constitute a waiver and that the trial court erred in proceeding to trial without a jury (216 Cal. App. 2d 830, 834). The court also noted that plaintiff's subsequent participation in the trial did not constitute a waiver or estop him from asserting his right on appeal (216 Cal. App. 2d 830, 835, 837).

The factual and procedural background of Medeiros v. Medeiros (1960) 177 Cal. App. 2d 69, 1 Cal. Rptr. 696 , is discussed in [3][c], above. The court affirmed an order granting plaintiff a new trial on the basis of the lower court's erroneous denial of a jury trial. The court concluded that plaintiff was entitled to a trial by jury and that the trial court did not err in granting plaintiff's motion for a new trial (177 Cal. App. 2d 69, 73).

Cowlin v. Pringle (1941) 46 Cal. App. 2d 472, 116 P.2d 109 , was a personal injury action in which the court of appeal reversed judgment for defendants and remanded the case for a new trial on the basis of the trial court's erroneous denial of a jury trial to plaintiff. The court found that plaintiff did not waive her right to a jury trial when she failed to deposit jury fees for the first day of trial since one defendant had already prepaid the fees and there was no reason why plaintiff should tender another fee for the same day of trial (46 Cal. App. 2d 472, 475). The court concluded that the denial of a jury trial resulted in a miscarriage of justice and that a reversal of the judgment was required (46 Cal. App. 2d 472, 476-477).
[b]--Denial of Jury Trial as Miscarriage of Justice
City of Redondo Beach v. Kumnick (1963) 216 Cal. App. 2d 830, 31 Cal. Rptr. 367 , is discussed in [a], above. The court of appeal stated that the denial of the right to trial by jury to one justly entitled thereto amounts to a miscarriage of justice and that a reversal of the judgment is required (216 Cal. App. 2d 830, 839).
155.254 Supporting Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]--Improper Granting of Nonsuit
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of error in law (see 155.250).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, OCCURRING AT TRIAL AND EXCEPTED TO BY THE PARTY MAKING THE APPLICATION, BECAUSE THE COURT IMPROPERLY GRANTED _________________ [PLAINTIFF'S or DEFENDANT'S] MOTION FOR A NONSUIT, THUS MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

A. Order Granting Nonsuit Deemed Excepted To. An order granting or denying a nonsuit is deemed excepted to without formal objection ( Code Civ. Proc. 647[Deering's] ).

B. Improper Granting of Nonsuit Is Error in Law. The improper granting of a nonsuit is an error in law for which a new trial may be granted ( Castillo v. Warren (1941) 44 Cal. App. 2d 903, 907, 113 P.2d 232 ).

[Optional ] C. Court's Dismissal of Action After Erroneously Compelling Election. The action of a trial court in dismissing a cause of action after erroneously compelling a party to elect between two causes of action is, in effect, the improper granting of a nonsuit for which a new trial may be granted on the ground of error in law ( Horstman v. Krumgold (1942) 55 Cal. App. 2d 296, 298-299, 130 P.2d 721 ).

[Add further points and authorities discussing substantive merits of case to show reasons why granting of nonsuit was improper.]
[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 error in law occurring at trial and excepted to by the party making the application [ Code Civ. Proc. 657(7)[Deering's] ] when the court has erroneously granted a nonsuit. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of error in law [see 155.250].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the reasons why the court's granting of a nonsuit was erroneous, showing how it deprived the moving party of a fair trial and materially affected the moving party's substantial rights. Counsel should also add further points and authorities pertaining to the substantive merits of the case in order to show that the nonsuit was erroneously granted. For example, in a wrongful death action in which plaintiff moves for a new trial after the court has granted defendant's motion for a nonsuit based on plaintiff's failure to show his or her capacity to sue, plaintiff's counsel should discuss the substantive merits of the case in order to show that the nonsuit was erroneously granted [see Castillo v. Warren (1941) 44 Cal. App. 2d 903, 909, 113 P.2d 232 ].
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of error in law [ Code Civ. Proc. 657(7)[Deering's] ] and other related forms, 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 155.270 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Improper Granting of Nonsuit Is Error in Law
In Castillo v. Warren (1941) 44 Cal. App. 2d 903, 113 P.2d 232 , plaintiff administrator brought an action for wrongful death against a hospital and a doctor. After the close of plaintiff's case, the trial court granted defendants' motion for a nonsuit, and judgment was entered for defendants. Subsequently, the trial court granted plaintiff's motion for a new trial and defendants appealed the order.

The court of appeal affirmed the order, stating that the improper granting of a nonsuit is an error in law for which a new trial may be granted (44 Cal. App. 2d 903, 907). The court noted that it was apparent from the record that the trial court granted the nonsuit on the sole ground that plaintiff had not shown a legal capacity to sue, and that on motion for new trial, the lower court believed that it had erroneously determined that question, as a matter of law (44 Cal. App. 2d 903, 906). The court of appeal concluded that a defect in plaintiff's petition for letters of administration did not deprive him of the capacity to bring a suit on behalf of the estate that the represented (44 Cal. App. 2d 903, 908-909). Hence, the lower court's conclusion that it had improperly granted a nonsuit was proper. Accordingly, the court affirmed the order granting a new trial (44 Cal. App. 2d 903, 909).
[b]--Court's Dismissal of Action After Erroneously Compelling Election
In Horstman v. Krumgold (1942) 55 Cal. App. 2d 296, 130 P.2d 721 , plaintiff passenger brought an action against defendant driver in which the first cause of action was based on the theory that plaintiff was a passenger for compensation and the second cause of action was based on the theory that she was a guest. Defendant presented a motion to the court to compel plaintiff to make an election between the first and second causes of action. The motion was granted, and plaintiff decided to proceed under the first cause of action. The court then granted defendant's motion to dismiss the second cause of action. When all the evidence had been presented, the court, on defendant's motion, directed the jury to return a verdict for defendant. Thereafter, the court granted plaintiff's motion for a new trial as to the second cause of action.

The court of appeal affirmed the order, stating that the trial court committed errors in law when it compelled plaintiff to elect between two causes of action and when it dismissed the second cause of action (55 Cal. App. 2d 296, 298). A litigant who has stated the facts in different counts so as to meet any possible developments in the evidence may not be required to elect between the various causes of action presented either before the trial or at the close of the case (55 Cal. App. 2d 296, 297). The court noted that an action of a court in improperly granting or refusing a nonsuit is also an error in law, whether made on the opening statement of counsel or after the close of the evidence (55 Cal. App. 2d 296, 298-299). In this case, the court concluded that the lower court's action in dismissing the second cause was, in effect, the granting of a nonsuit, and was reviewable on a motion for a new trial (55 Cal. App. 2d 296, 299). Since the court felt that the lower court did not abuse its discretion in granting a new trial, it affirmed the order (55 Cal. App. 2d 296, 300).
[4]--Additional Authorities
[a]--Improper Granting of Nonsuit Is Error in Law
Carton Corporation v. Superior Court (1926) 76 Cal. App. 434, 244 P. 932 , was an action involving a petition for a writ of mandate directing the court to hear and determine a motion for new trial. At the conclusion of plaintiff's case, defendant's motion for a nonsuit was granted. Plaintiff served and filed a notice of intention to move for a new trial, but it was stricken from the files on defendant's motion. Even though the court of appeal denied the writ, it stated that a motion for new trial could properly be entertained in this case (76 Cal. App. 434, 437). It added that the action of the court in improperly granting or denying a motion for nonsuit, whether made on the opening statement or after the close of evidence, is an error of law occurring at trial for which a new trial may be granted (76 Cal. App. 434, 436).
155.255 Supporting Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]--Improper Denial of Motion for Directed Verdict
[1]--FORM


[The following should be combined with a general form of memorandum of points and authorities supporting a motion for new trial on the ground of error in law (see 155.250).]

A NEW TRIAL SHOULD BE GRANTED ON THE GROUND OF ERROR IN LAW, OCCURRING AT TRIAL AND EXCEPTED TO BY THE PARTY MAKINGTHE APPLICATION, BECAUSE THE COURT IMPROPERLY DENIED _________________ [PLAINTIFF'S or DEFENDANT'S] MOTION FOR A DIRECTED VERDICT, THUS MATERIALLY AFFECTING HIS/HER/ITS SUBSTANTIAL RIGHTS.

Improper Denial of Motion for Directed Verdict Is Error in Law. The improper denial of a motion for a directed verdict constitutes an error in law occurring at trial that justifies the granting of a new trial by the trial court ( Steele v. Werner (1938) 28 Cal. App. 2d 554, 556, 83 P.2d 1115 ).

[Add further points and authorities discussing substantive law pertaining to particular cause of action or defense in order to show why directed verdict should have been granted.]
[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 error in law occurring at trial and excepted to by the party making the application [ Code Civ. Proc. 657(7)[Deering's] ] when the court has improperly denied a motion for a directed verdict. It does not provide a complete form, but is designed to be combined with a general form of points and authorities in support of a motion for new trial on the ground of error in law [see 155.250].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Thus, counsel should discuss the standards for granting a motion for a directed verdict and show that the motion was improperly denied, thus depriving the moving party of a fair trial and materially affecting the moving party's substantial rights. Counsel should also add further points and authorities discussing the substantive law pertaining to the particular cause of action or defense in order to show that the motion for a directed verdict should have been granted.

Note that a motion for judgment notwithstanding the verdict may also be appropriate in this case, and counsel may desire to make a combined motion for new trial and for judgment notwithstanding the verdict. For a memorandum in support of a motion for judgment notwithstanding the verdict, see 155.10 et seq.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move for a new trial on the ground of error in law [ Code Civ. Proc. 657(7)[Deering's] ] and other related forms, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of motions for directed verdict, see Ch. 326A, Jury Verdicts in that publication.
[d]--Opposing Points and Authorities
The points and authorities set out in 155.270 may be used in an appropriate case to oppose a motion for a new trial supported by this memorandum.
[3]--Discussion of Authorities
[a]--Improper Denial of Motion for Directed Verdict Is Error in Law
In Steele v. Werner (1938) 28 Cal. App. 2d 554, 83 P.2d 1115 , plaintiff brought an action to recover damages for the alleged alienation of affection of her husband. During trial, defendant moved for a directed verdict when plaintiff rested her case and again when all the evidence, including defendant's, had been received. Both motions were denied. Defendant moved for a new trial on several grounds, including errors in law occurring at trial. The motion was granted, and plaintiff appealed the order.

The court of appeal affirmed the order, stating that it is well settled that the improper denial of a motion for a directed verdict constitutes an error in law occurring at trial that justifies the trial court in granting a new trial. The motion for a directed verdict may be granted when, disregarding conflicting evidence and giving to the evidence adduced on behalf of the plaintiff all of the value to which it is legally entitled, and indulging in every legitimate inference that 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 plaintiff if such a verdict were received (28 Cal. App. 2d 554, 556). In this case, the court concluded that the record clearly demonstrated that plaintiff's husband's affections were never alienated to the extent of giving rise to an action for damages. The court felt that the motions for a directed verdict were improperly denied, and that the trial court was therefore justified in granting a new trial (28 Cal. App. 2d 554, 560-561).
155.256-155.269 [Reserved]

155.270 Opposing Motion for New Trial [Code Civ. Proc. 659]--Error of Law [Code Civ. Proc. 657(7)]
[1]--FORM


[Caption. See 155.60[1]. ]

A NEW TRIAL SHOULD NOT BE GRANTED, BECAUSE THERE WAS NO ERROR IN LAW OCCURING AT TRIAL THAT MATERIALLY AFFECTED _________________ [PLAINTIFF'S or DEFENDANT'S] SUBSTANTIAL RIGHTS.

[EITHER ]

A. No Error in Law Occurring at Trial. When no error in law has been committed, there is no basis for the court's exercise of discretion, and a new trial is properly denied ( Stoddard v. Rheem (1961) 192 Cal. App. 2d 49, 53, 13 Cal. Rptr. 496 ).

[AND/OR ]

B. Error Must Be Prejudicial. The trial court is expressly enjoined by Article VI, Section 13, of the California Constitution from granting a new trial for error in law unless such error is prejudicial; if it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion ( Sparks v. Redinger (1955) 44 Cal. 2d 121, 125, 279 P.2d 971 ; Bristow v. Ferguson (1981) 121 Cal. App. 3d 823, 826, 175 Cal. Rptr. 571 ).

[Optional ] C. Admission of Irrelevant Evidence. Admission of irrelevant evidence is not a ground for granting a new trial in the absence of a showing that the movant for a new trial was prejudiced by the evidence ( Townsend v. Gonzalez (1957) 150 Cal. App. 2d 241, 249-250, 309 P.2d 878 ).

[Optional ] D. Exclusion of Evidence. The court is not required to grant a new trial for alleged error in excluding certain evidence when it is extremely unlikely that a different result would have accrued from the admission of the evidence ( Dankert v. Lamb Finance Co. (1956) 146 Cal. App. 2d 499, 503, 304 P.2d 199 ).

[Optional ] E. Erroneous or Misleading Jury Instructions. A new trial will not be granted on the basis of erroneous or misleading jury instructions if the errors were not prejudicial and could not have affected the result of the trial ( Sparks v. Redinger (1955) 44 Cal. 2d 121, 123, 279 P.2d 971 ; Bristow v. Ferguson (1981) 121 Cal. App. 3d 823, 829, 175 Cal. Rptr. 571 ).

[Optional ] F. Failure to Object to Erroneous Admission of Evidence. Failure to make a timely objection or motion to strike inadmissible evidence constitutes a waiver of the right to later complain of its erroneous admission into evidence ( Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 865, 236 Cal. Rptr. 778 ).

[Optional ] G. Denial of Jury Trial After Waiver. After a party has waived the right to a jury trial, the trial court may reject the request for a new jury trial, and may consider such factors as delay in rescheduling the trial for jury, lack of funds, timeliness of the request, prejudice to the litigants, prejudice to the court or its calendar, the reason for the demand, and whether the other parties to the action desire a jury trial ( Day v. Rosenthal (1985) 170 Cal. App. 3d 1125, 1176, 217 Cal. Rptr. 89 ).

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 error in law occurring at trial and excepted to by the party making the application [see Code Civ. Proc. 657(7)[Deering's] ]. In an appropriate case, it may be submitted in opposition to a motion for new trial supported by the points and authorities set out in 155.250 et seq.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. For example, counsel should show that there was no error in law occurring at trial or that if error did occur, the error was not prejudicial to the moving party.
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--No Error in Law Occurring at Trial
In Stoddard v. Rheem (1961) 192 Cal. App. 2d 49, 13 Cal. Rptr. 496 , plaintiffs brought an action for wrongful death allegedly caused by the negligence of defendants in the operation of a gas-producing well. At the conclusion of trial, the court gave a certain jury instruction separately after it had given all other instructions. After the jury returned a verdict in favor of plaintiffs, defendants moved for a new trial, claiming that the manner of giving the instruction overly impressed it on the minds of the jury. The court granted the motion on the ground of error in law. Plaintiffs appealed the order; defendants appealed the judgment.

The court of appeal reversed the order, noting that the instruction was correct and proper and should have been given. The court stated that it was concerned with a pure question of law and found that there was no legal error. It added that when no error has been committed, there is no basis for the exercise of discretion. The inquiry as to whether or not instructions are erroneous presents purely a question of law, and if it appears that the trial court granted a new trial based on an erroneous concept of legal principles applicable to the cause, its order will be reversed (192 Cal. App. 2d 49, 53). Since the court concluded that the instructions did not constitute an error in law, it reversed the order granting a new trial (192 Cal. App. 2d 49, 53-54).
[b]--Error Must Be Prejudicial
In Sparks v. Redinger (1955) 44 Cal. 2d 121, 279 P.2d 971 , plaintiffs brought an action for personal injuries suffered in an automobile-tractor collision with defendants. At the conclusion of trial, the court failed to give a proposed instruction on last clear chance. When the jury returned a verdict for defendants, plaintiffs moved for a new trial. The court granted the motion on the sole ground that it erred in failing to give plaintiffs' proposed instruction. Defendants appealed the order.

The Supreme Court reversed the order, stating that the trial court is expressly enjoined by former Cal. Const, art VI, 4 1/2 [now see Cal. Const., art. VI, 13[Deering's] ], from granting a new trial for error of law unless such error is prejudicial. If it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion. Here, the Court stated that the record affirmatively showed that the proposed last clear chance instruction did not constitute prejudicial error, and the trial court erred in so holding. Accordingly, the Court held that the order granting plaintiffs a new trial had to be reversed (44 Cal. 2d 121, 123).

In Bristow v. Ferguson (1981) 121 Cal. App. 3d 823, 175 Cal. Rptr. 571 , plaintiff brought an action for fraud and conspiracy in his removal from a general partnership. At the conclusion of trial, the court instructed the jury on the required elements of conspiracy. After the jury rendered a verdict for defendants, plaintiff's motion for a new trial was granted on the basis of an erroneous or misleading instruction. Defendants appealed the order.

The court of appeal reversed the order, stating that the trial court is expressly enjoined by former Cal. Const, art VI, 4 1/2 [now see Cal. Const., art. VI, 13[Deering's] ], from granting a new trial for error in law unless such error is prejudicial. If it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion (121 Cal. App. 3d 823, 826). In this case, the court of appeal concluded that the instruction was misleading and should not have been given; however, the parties potentially prejudiced by the instruction won the case. Since the error could not have affected the result of trial, the court reversed the order granting a new trial and directed the trial court to reinstate the judgment for defendants (121 Cal. App. 3d 823, 829).
[c]--Admission of Irrelevant Evidence
In Townsend v. Gonzalez (1957) 150 Cal. App. 2d 241, 309 P.2d 878 , plaintiff brought an action for the balance due under a contract for the sale of beans. After the jury returned a verdict for plaintiff, defendants moved for a new trial on several grounds including errors in law occurring at trial. Defendants claimed that the court erred in admitting certain irrelevant evidence. The court granted the motion, and plaintiff appealed the order.

The court of appeal reversed the order, stating that the admission of irrelevant evidence is not a ground for a new trial in the absence of a showing that the movant was prejudiced by the evidence (150 Cal. App. 2d 241, 249-250). In this case, the court examined the facts established by the evidence and the testimony to which objection was made, and it concluded that the proof was clear that defendants received beans for which no payment was made (150 Cal. App. 2d 241, 249-252). The court felt that it was inconceivable that the exclusion of the testimony would have resulted in a different judgment. Thus, the court reversed the order granting a new trial (150 Cal. App. 2d 241, 252).
[d]--Exclusion of Evidence
In Dankert v. Lamb Finance Co. (1956) 146 Cal. App. 2d 499, 304 P.2d 199 , plaintiff brought an action on a promissory note against a finance company and its vice-president. Defendant vice-president defended on the theory that she signed only as an officer of the corporation and not in her individual capacity as a comaker and that she was therefore not personally liable. However, the court excluded certain evidence that it was the business custom of the finance company to require the signatures of two officers on all company obligations. When the court found in favor of plaintiff, defendants moved for a new trial on the grounds of newly discovered evidence and error in law. The court denied the motion, and defendants appealed the judgment.

The court of appeal affirmed the order, stating that the trial court is vested with considerable discretion in determining the relevancy of evidence and weighing that relevance against undue prolongation of the trial and the consideration of extraneous issues. In this case, admission of the proffered evidence would not have been error; however, the court was at liberty to rule that the inference that it raised was not worth the time expended. The court added that even if error were conceded, it was extremely unlikely that a different result would have accrued from the admission of the evidence. Several persons present at the execution of the note testified that defendant expressly stated her intent to be personally obligated on the instrument. Accordingly, the court concluded that the denial of the motion for new trial was proper, and it affirmed the judgment (146 Cal. App. 2d 499, 503-504).
[e]--Erroneous or Misleading Jury Instructions
The factual and procedural background of Sparks v. Redinger (1955) 44 Cal. 2d 121, 279 P.2d 971 , is discussed in [b], above. The Supreme Court, reversing an order granting plaintiffs' motion for a new trial, stated that the lower court's alleged error in failing to give last clear chance instructions to the jury could not have been prejudicial (44 Cal. 2d 121, 123). When a jury finds that defendant driver is not guilty of any negligence contributing to the accident, there is no place for the jury's application of last clear chance principles (p. 124). Since the failure to give the proposed last clear chance instruction did not constitute prejudicial error, the Court reversed the orders granting plaintiff a new trial (44 Cal. 2d 121, 123, 126).

The factual and procedural background of Bristow v. Ferguson (1981) 121 Cal. App. 3d 823, 175 Cal. Rptr. 571 , is discussed in [b], above. The court of appeal reversed an order granting plaintiff's motion for a new trial even though it concluded that the instruction was misleading and should not have been given. The court stated that when an instructional error could not have misled the jury because it was inconsistent with the verdict, the trial judge's finding of prejudice cannot stand. Here, the court explained, the parties that were potentially prejudiced by the instruction won the case. Since the error clearly could not have affected the result of trial, the court reversed the order granting a new trial (121 Cal. App. 3d 823, 829).
[f]--Failure to Object to Erroneous Admission of Evidence
In Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 236 Cal. Rptr. 778 , an action for damages resulting from crop losses allegedly caused by a chemical spray, defendants called an expert witness, who referred to opinions of several other experts with whom he had consulted. Plaintiff objected with regard to one outside expert's opinion on the ground of hearsay, and defendant countered that the evidence was not offered for its truth, but rather to show how the witness arrived at his opinion. Plaintiff conceded that the substance of the conversation was admissible, but objected on the ground that the witness's answer on direct examination was not responsive. The trial court overruled the objection contingent on any future motion to strike. During testimony regarding further outside experts, the trial court admonished the jury to remember that the substance of the conversations were not being offered for their truth. Toward the end of the testimony, plaintiff unsuccessfully moved for a mistrial, asserting that the witness's reliance on numerous other opinions cast doubt on his expertise. Plaintiff successfully objected to the introduction of hearsay opinions, but only with respect to two of six outside experts. After jury verdict for defendants, plaintiff moved for a new trial, which the trial court granted on the ground that it erred in introducing out-of-court expert opinions into evidence. Defendants appealed.

The court of appeal reversed, holding, inter alia, that failure to make a timely objection or motion to strike inadmissible evidence constitutes a waiver of the right subsequently to complain of its erroneous admission. Procedurally, plaintiff should have moved to strike the witness's testimony instead of moving for mistrial. When there is no motion to strike an expert's answers to questions, a reviewing court cannot reach the claim of error. Plaintiff's initial accession to the admissibility of hearsay testimony, and later failure to object on the ground of hearsay until the motion for new trial, constituted a waiver of any objection to the hearsay. Due to plaintiff's waiver, there was no error at all, and absent any error, the motion for new trial could not be granted (191 Cal. App. 3d 851, 865). However, even assuming that the introduction of hearsay was erroneous, the error was harmless in light of the substantial evidence supporting the judgment, and the admonitions to the jury (191 Cal. App. 3d 851, 867). Harmless error does not justify the granting of a motion for new trial (191 Cal. App. 3d 851, 866).
[g]--Denial of Jury Trial After Waiver
In Day v. Rosenthal (1985) 170 Cal. App. 3d 1125, 217 Cal. Rptr. 89 , the court of appeal affirmed a judgment for plaintiff for damages for attorney malpractice. Prior to trial, both parties waived their right to a jury trial. Defendant subsequently moved for a jury trial and the trial court rejected the motion. On appeal, the court held that the rejection was within the trial court's discretion and that the court, in determining the motion, could properly consider such factors as delay in rescheduling the trial for jury, lack of funds, timeliness of the request, prejudice to the litigants, prejudice to the court or its calendar, the reason for the demand, and whether the other parties to the action desire a jury trial (170 Cal. App. 3d 1125, 1176).
[4]--Additional Authorities
[a]--Error Must Be Prejudicial
Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 145 Cal. Rptr. 584 , was an action for damages for defendant buyer's failure to purchase real property. The court of appeal granted plaintiff's motion for a new trial on several grounds, including errors in law occurring at trial. The court stated that the trial court is bound by the rule of Cal. Const., art. VI, 13[Deering's] , that prejudicial error is the basis for a new trial, and that there is no discretion to grant a new trial for harmless error (80 Cal. App. 3d 259, 265-266). Since the court determined that no prejudicial error occurred at trial, it reversed the order (80 Cal. App. 3d 259, 266-268).
[b]--Admission of Irrelevant Evidence
Keller v. Cleaver (1937) 20 Cal. App. 2d 364, 67 P.2d 131 , was an action involving support of a minor in which the court of appeal reversed an order granting plaintiff's motion for a new trial, made on several grounds, including error in law. Plaintiff claimed the court erred in sustaining and overruling objections to questions asked of witnesses and in denying motions to strike out portions of the answers to certain questions. However, the court of appeal concluded that most of the rulings were obviously correct, all related to matters that were largely immaterial, and no possible error could have affected the result under all the evidence shown by the record (20 Cal. App. 2d 364, 371-372).
[c]--Exclusion of Evidence
Bush v. Lane (1956) 139 Cal. App. 2d 376, 293 P.2d 465 , was a conversion action in which the court of appeal affirmed judgment for defendants, finding that an order denying plaintiffs' motion for a new trial based on the lower court's exclusion of certain evidence was proper. The court of appeal stated that the evidence could in no way have affected the final outcome of the trial, and hence the trial court could not have erred in excluding it (139 Cal. App. 2d 376, 378-379).
[d]--Erroneous or Misleading Jury Instructions
In Caldwell v. Paramount Unified Sch. Dist. (1995) 41 Cal. App. 4th 189, 48 Cal. Rptr. 2d 448 , plaintiff sued a school district for race and age discrimination. A jury returned a special verdict in favor of the district, and plaintiff moved for a new trial on the ground that the court had improperly instructed the jury on the plaintiff's burden of proof of age and race discrimination. The trial court granted the motion for new trial, and the court of appeal reversed, holding that the granting of a new trial was an abuse of discretion. The court stated that the instruction, which dealt with shifting burdens of proof, was an accurate statement of the law. More importantly, however, the jury did not address the question with which the challenged instruction dealt. On the special jury form, the jury determined that the defendant did not discriminate against the plaintiff. The form then instructed the jury to skip the question of whether plaintiff had made his prima facie showing, to that the challenged question never came into play in the deliberative process. Since the extraneous instruction could not have misled or confused the jury, the trial court abused its discretion in ordering a new trial (41 Cal. App. 4th 189, 206). The court thus vacated the order granting a new trial.
155.271-155.289 [Reserved]

9 Final Judgment on All Causes
155.290 Opposing Motion for New Trial [Code Civ. Proc. 659]--Action Has Not Reached Final Judgment on All Causes
[1]--FORM


[Caption. See 155.60[1]. ]

A NEW TRIAL SHOULD NOT BE GRANTED AS TO SOME ISSUES BECAUSE, AS YET, THERE IS NO FINAL DETERMINATION OF ALL ISSUES IN THE ACTION.

Order Granting New Trial as to Certain Issues Before Final Determination of All Issues Is Premature and Ineffectual. The grant of a new trial as to certain issues in an action, before there has been a final determination of all the issues in the action, is premature and ineffectual ( Cobb v. University of So. California (1996) 45 Cal. App. 4th 1140, 1143-1144, 1146, 53 Cal. Rptr. 2d 71 ).

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 that not all the issues in the action have yet come to a final determination, and any order granting a new trial would therefore be ineffectual.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. For example, if the action has two causes of action, and one has been determined by the court but another must still be submitted to a jury for verdict, Counsel should discuss this procedural status, showing clearly that no final determination of all causes has yet been reached. While Code Civ. Proc. 659[Deering's] permits a party to file a notice of intention to move for a new trial before the entry of judgment, the statute clearly contemplates that a final determination of all the causes of action has been rendered, and a final judgment may timely be entered [ Cobb v. University of So. California (1996) 45 Cal. App. 4th 1140, 1143, 1146, 53 Cal. Rptr. 2d 71 ].
[c]--Related Pleading and Practice Forms
For a notice of intention to move for a new trial as well as an order denying the motion, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender).
[3]--Discussion of Authorities
[a]--Order Granting New Trial as to Certain Issues Before Final Determination of All Issues Is Premature and Ineffectual
In Cobb v. University of So. California (1996) 45 Cal. App. 4th 1140, 53 Cal. Rptr. 2d 71 , plaintiff filed suit against defendant university alleging two causes of action, one for racial discrimination and one for breach of contract. After trial, the jury deadlocked on the discrimination claim, but reached a verdict for plaintiff on the breach of contract cause of action. The trial court ordered a mistrial on the discrimination claim, and set that matter for retrial. Later, the trial court granted motions by defendant for judgment notwithstanding the verdict and for a new trial on the breach of contract claim. Plaintiff appealed these orders granting these motions.

With regard to the appeal of the order for new trial, the court of appeal concluded that the order granting a new trial was not appealable, and dismissed the appeal (45 Cal. App. 4th 1140, 1143-1145, 1146). One basis for this decision was that the order granting a new trial was ineffectual in that it was improperly made before a final determination of all the causes in the suit; therefore no appeal would lie from the order (45 Cal. App. 4th 1140, 1146). The court reasoned that an order granting a new trial is appealable only because it contemplates a final judgment. noted that an order granting a new trial is generally appealable because the order contemplates a final judgment. While Code Civ. Proc. 659[Deering's] permits a party to file a notice of intention to move for a new trial before the entry of judgment, the statute clearly contemplates that a final determination of all the causes of action has been rendered, and a final judgment may timely be entered. However, where some issues are to be tried by a jury and others by the court, the trial proceedings are premature when instituted after a verdict has been rendered but before determination of all issues in the case. Similarly, in this situation, due to the hung jury on the discrimination claim, there could be no final determination of plaintiff's action until retrial of that claim (45 Cal. App. 4th 1140, 1143-1144). Any order purporting to grant a new trial as to certain issues, before there has been a final determination of all the issues in the lawsuit, is improperly premature and ineffectual (45 Cal. App. 4th 1140, 1144, 1146).
155.291-155.299 [Reserved]

10 Appeal From Order Granting New Trial
155.300 Supporting Appeal From Order Granting New Trial [Code Civ. Proc. 659]--Trial Court Failed to Specify Grounds or Reasons for Order [Code Civ. Proc. 657]
[1]--FORM


[The following may be used in appellate brief supporting relief from order for new trial.]

THE TRIAL COURT'S ORDER GRANTING _________________ [identify party, e.g., PLAINTIFF]'S MOTION FOR A NEW TRIAL IS DEFECTIVE BECAUSE _________________ [THE ORDER FAILS TO STATE THE GROUNDS FOR THE NEW TRIAL and/or THE ORDER FAILS TO CONTAIN A SPECIFICATION OF REASONS FOR GRANTING THE MOTION AND THE COURT FAILED TO FILE A SPECIFICATION OF REASONS WITHIN 10 DAYS AFTER THE FILING OF THE ORDER].

[EITHER ]

A. Specification of Grounds. When a new trial is granted, on all or part of the issues, the court must specify the ground or grounds on which it is granted. Judicial failure to specify grounds renders the order defective ( Code Civ. Proc. 657[Deering's] ; Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 899-900, 215 Cal. Rptr. 679, 701 P.2d 826 ).

[AND/OR ]

B. Specification of Reasons. When a new trial is granted, on all or part of the issues, the court must specify the court's reason or reasons for granting the new trial on each ground stated. If an order granting a motion for a new trial does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign, and file such specification of reasons in writing with the clerk. Any judicial attempt to file a written specification of reasons beyond the 10-day period is an act in excess of jurisdiction and is therefore a nullity ( Code Civ. Proc. 657[Deering's] ; La Manna v. Stewart (1975) 13 Cal. 3d 413, 418, 118 Cal. Rptr. 761, 530 P.2d 1073 ).

[Optional ] C. Oral Pronouncement of Reasons Inadequate. A judge's oral statement of reasons cannot amount to compliance with section 657[Deering's] of the Code of Civil Procedure , no matter how thoroughly the specification may have been prepared ( Code Civ. Proc. 657[Deering's] ; La Manna v. Stewart (1975) 13 Cal. 3d 413, 423, 118 Cal. Rptr. 761, 530 P.2d 1073 ).

[Optional ] D. Reference to Transcription of Oral Statement of Reasons Inadequate. A judge's incorporation by reference, in an order granting a new trial, of a transcript of an oral statement of reasons made by the judge at a earlier time does not amount to compliance with section 657[Deering's] of the Code of Civil Procedure ( Code Civ. Proc. 657[Deering's] ; Steinhart v. South Coast Area Transit (1986) 183 Cal. App. 3d 770, 774, 228 Cal. Rptr. 283 ).
[2]--Comments
[a]--Use of Form
These points and authorities may be submitted as part of an appellant's opening brief, in support of an appeal from a trial court's order granting a motion for a new trial on the ground that the trial court failed to provide a statement of grounds or reasons [ Code Civ. Proc. 657[Deering's] ].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. For example, counsel should show that the trial judge failed to include a statement of grounds in the order granting the motion for a new trial, or that the trial judge failed to file a statement of reasons within 10 days of such order.
[c]--Related Pleading and Practice Forms
For discussion and forms relating generally to motion proceedings for new trial, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For discussion and forms relating to appeals, see Ch. 40, Appeal: An Overview et seq., in that publication.
[3]--Discussion of Authorities
[a]--Specification of Grounds
In Sanchez-Corea v. Bank of America (1985) 38 Cal. 3d 892, 215 Cal. Rptr. 679, 701 P.2d 826 , the trial court entered a judgment in favor of plaintiffs. Defendant timely moved for a new trial, asserting six grounds for its motion. Exactly 60 days after notice of entry of judgment was mailed, the trial court granted defendant's motion for a new trial. The minute order entered by the clerk stated ``Defendants [sic] motion for new trial is granted. Specifications to follow.'' No grounds for the new trial order were specified at that time. One week later, the trial court filed an Order Granting New trial vacating the judgment and granting defendant's motion. This second order explained that the sole ground for granting the motion was insufficiency of the evidence. Plaintiffs appealed, contending that the first order was defective for failure to state the ground on which the motion was made and that the second order was invalid because it was made after expiration of the 60-day period in which the court had jurisdiction to rule on the motion.

The Supreme Court reversed. The Court found that the absence of specification of grounds in the first order made it defective but not void under Code Civ. Proc. 657[Deering's] (38 Cal. 3d 892, 900). As to the second order, which was not filed until 67 days after notice of entry of judgment, the Court found that, to the extent it purported to rule on the motion and state insufficient evidence as the ground therefor, it was defective as in excess of the 60-day jurisdictional period (38 Cal. 3d 892, 903). Addressing the issue of appellate review, the Court noted that Code Civ. Proc. 657[Deering's] requires an appellate court to affirm a new trial order if it should have been granted on any ground stated in the motion. However, an appellate court cannot affirm on grounds of sufficiency of the evidence or of inadequate or excessive damages unless such ground is stated in the new trial order. Limited to considering the first order (the second order having being deemed an act in excess of jurisdiction), the Court indicated that, since the order stated no grounds, the Court could not affirm the order on grounds of insufficiency of the evidence or excessive damages (38 Cal. 3d 892, 905). The Court evaluated the other four grounds asserted by defendant, finding that these grounds did not warrant affirming the trial court's order granting a new trial (38 Cal. 3d 892, 906-910).
[b]--Specification of Reasons
In La Manna v. Stewart (1975) 13 Cal. 3d 413, 118 Cal. Rptr. 761, 530 P.2d 1073 , plaintiff's motion for a new trial was granted by the trial court. In granting the motion, the court gave an oral statement of its reasons. The written minute order stated only that ``Motion is granted. Verdict is vacated on all the issues. The court shall file its specifications and mail a copy [to] each counsel.'' The court did not timely file such a specification of reasons. Nearly two months after the first minute order was filed, the court filed a ``nunc pro tunc minute order'' purporting to amend the first minute order by adding thereto a verbatim description of the oral statement of reasons given on the prior date. Defendant appealed from the order granting plaintiff a new trial.

The Supreme Court reversed. Code Civ. Proc. 657[Deering's] requires a court granting a motion for a new trial to set forth a specification of reasons, either in the order itself, or in a writing that is to be prepared, signed, and filed with the clerk within 10 days after filing the order. The Court noted that the first minute order contained no specification of the court's reasons for granting a new trial and that the only written specification of reasons in the case was filed not 10, but 57 days after the order granting a new trial. The Court concluded that since the trial court exceeded the 10-day period of Code Civ. Proc. 657[Deering's] in declaring its reasons, the late specification of reasons was a nullity (13 Cal. 3d 413, 418).
[c]--Oral Pronouncement of Reasons Inadequate
The facts and procedural background of La Manna v. Stewart (1975) 13 Cal. 3d 413, 118 Cal. Rptr. 761, 530 P.2d 1073 , are discussed in [b], above. The Supreme Court, reversing an order granting a plaintiff's motion for a new trial, rejected plaintiff's assertion that an oral statement of reasons given by a judge in open court substantially complies with the requirements of Code Civ. Proc. 657[Deering's] . The Court observed that an oral recital, no matter how thoroughly it may have been prepared, cannot amount to compliance in any degree ``substantial'' or otherwise, with a statutory directive that such a statement be in writing (13 Cal. 3d 413, 422).
[d]--Reference to Transcription of Oral Statement of Reasons Inadequate
In Steinhart v. South Coast Area Transit (1986) 183 Cal. App. 3d 770, 228 Cal. Rptr. 283 , plaintiff moved for a new trial after a defense verdict. At the hearing, the trial court orally granted plaintiff's motion. The court filed a minute order which referred to the trial court's oral statement, but contained no grounds or reasons for the granting of the motion. Several weeks later, the court filed a second order. This order stated a ground for granting the motion, and purported to incorporate by reference a transcript of the oral statements made at the earlier hearing.

The court of appeal reversed, concluding that both orders were fatally defective (183 Cal. App. 3d 770, 772). The court noted that under Code Civ. Proc. 657[Deering's] , a court granting a motion for a new trial must either specify the reason or reasons for granting the new trial in its order or file a separate specification of reasons within 10 days after filing the order (183 Cal. App. 3d 770, 773). The court of appeal remarked that the trial court's reference, in its first order, to the trial court's oral statement was insufficient to comply with Code Civ. Proc. 657[Deering's] , since Code Civ. Proc. 657[Deering's] requires a written statement of reasons (183 Cal. App. 3d 770, 773-774). Similarly, the trial court's reference, in the second order, to the transcript of the earlier hearing would be insufficient to turn an oral statement of reasons into a written one (183 Cal. App. 3d 770, 774).
[4]--Additional Authorities
[a]--Specification of Reasons
In Stewart v. Truck Ins. Exchange (1993) 17 Cal. App. 4th 468, 21 Cal. Rptr. 2d 338 , the trial judge granted a motion for new trial as to a portion of the compensatory damages, and a motion for new trial as to punitive damages. However, the trial court stated reason only with regard to the compensatory damages, and gave no reason for granting the motion as to punitive damages. The court of appeal reversed as to the new trial order on punitive damages, holding that the trial court failed to comply with Code Civ. Proc. 657[Deering's] with respect to that order. The court rejected the argument that no separate reasons were required because the trial court had given reasons for granting the new trial on compensatory damages. Rather, the two motions were separate motions made by separate parties, and compliance with 657 was not excused. The award of punitive damages was not so interwoven with a compensatory award as to make it unfair to have a retrial limited to compensatory damages. The jury never considered the issue of punitive damages, and its decision with regard to compensatory damages was not affected or impacted by the punitive damages issue (17 Cal. App. 4th 468, 484-485).
155.301 Supporting Appeal From Order Granting New Trial [Code Civ. Proc. 659]--Order Based on Harmless Error
[1]--FORM


[The following may be used in appellate brief supporting relief from order for new trial.]

THE TRIAL COURT'S ORDER GRANTING _________________ [identify party, e.g., PLAINTIFF]'S MOTION FOR A NEW TRIAL SHOULD BE OVERTURNED BECAUSE THE ERROR ON WHICH IT IS BASED DID NOT PREJUDICE _________________ [identify party asserting error, e.g., PLAINTIFF].

Prejudice Is Required. A trial court has no discretion to grant a new trial for harmless error and, therefore, a new trial order is valid only if prejudicial error occurred at the trial ( Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d 259, 266, 145 Cal. Rptr. 584 ).
[2]--Comments
[a]--Use of Form
These points and authorities may be submitted as part of an appellant's opening brief, in support of an appeal from a trial court's order granting a motion for a new trial on the ground that no prejudicial error occurred at the first trial.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. For example, counsel should set forth the specific grounds on which the trial judge based the new trial order and demonstrate how the error or errors relied on by the judge did not affect the outcome of the trial.
[c]--Grounds for Affirming Order
On appeal from an order granting a new trial, the appellate court ordinarily must affirm the order if it should have been granted on any ground stated in the motion, whether or not specified in the trial court's order or specification of reasons [see Code Civ. Proc. 657[Deering's] ]. Therefore, in an appropriate case, counsel should address the other grounds for new trial that were raising by the opposing party in the motion but not specified in the order under review. An order cannot, however, be affirmed on the ground of insufficiency of evidence or excessive damages unless the ground is stated in the order. In addition, on appeal from an order based on insufficiency of the evidence or excessive damages, it is conclusively presumed that the order with regard to that ground was made only for the reasons specified in the order or specification of reasons and the order can be reversed with regard to that ground only if there is no substantial basis in the record for those reasons [ Code Civ. Proc. 657[Deering's] ].
[d]--Related Pleading and Practice Forms
For discussion and forms relating generally to motion proceedings for new trial, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For discussion and forms relating to appeals, see Ch. 40, Appeal: An Overview et seq., in that publication.
[3]--Discussion of Authorities
[a]--Prejudice Is Required
Osborne v. Cal-Am Financial Corp. (1978) 80 Cal. App. 3d. 259, 145 Cal. Rptr. 584 , was an action brought by a seller for breach of a real estate contract. The jury returned a verdict for defendant, who had terminated the contract. The trial court granted plaintiff's motion for new trial on the ground that the court had admonished plaintiff and his counsel in front of the jury and had refused to allow plaintiff to call an expert witness on rebuttal to establish damages. In its memorandum opinion granting the new trial, the court indicated it was convinced beyond any reasonable doubt that plaintiff's case had no merit, that plaintiff's own conduct produced the court's admonitions, and that there was no excuse for not calling the expert witness during plaintiff's case in chief. Nevertheless, the court granted a new trial, stating that to ensure justice for all it must be afforded to ``the worst.'' Defendant appealed.

The court of appeal reversed, holding that no prejudicial error occurred at the trial. The court held that, while all presumptions favor the order granting a new trial and such orders are rarely reversed, the trial court is bound by the rule of Cal. Const., art. VI, 13[Deering's] , which dictates that prejudicial error is the basis for a new trial and that there is no discretion to grant a new trial for harmless error (80 Cal. App. 3d. 259, 265-266). The trial court's apparent belief that a new trial was required as a matter of form to foster the appearance of justice, even in the absence of prejudicial conduct, was an unsound basis for the order (80 Cal. App. 3d. 259, 266). The court went on to address plaintiff's contention that specific errors in law occurred at the trial, noting that Code Civ. Proc. 657[Deering's] requires the appellate court to review all grounds raised by plaintiff in the motion for new trial, not only those specified by the court in its resulting order (80 Cal. App. 3d. 259, 265). However, after reviewing the record, the court held that the trial court was correct in concluding, as a matter of law, that defendant's recision was timely and in instructing the jury to that effect (80 Cal. App. 3d. 259, 267-268).
[4]--Additional Authorities
[a]--Prejudice Is Required
Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d 851, 236 Cal. Rptr. 778 , was a products liability case in which the jury returned a verdict for defendants. Plaintiff moved for a new trial on the ground that prejudicial hearsay statements from outside experts were admitted into evidence through the testimony of an expert witness for the defense. The trial court granted the motion, finding that it had erred in admitting the hearsay opinions, that the entire controversy revolved around an issue over which the experts had battled, and that it could not say that the jury was not prejudiced by the hearsay. Defendant appealed. The court of appeal reversed, holding that plaintiff had waived any objection to the hearsay evidence by failing to make a timely objection on the correct ground (191 Cal. App. 3d 851, 865). The court went on to hold that, even if the introduction of hearsay was erroneous, the error was not prejudicial. Mere error, the court held, is not enough to sustain a trial court's granting of a new trial motion. There has to be some finding by the trial court of prejudice or injustice to the party asserting the error. The error need not be substantial but must somehow work an injustice (191 Cal. App. 3d 851, 866). In so holding, the court expressly followed Osborne and rejected the decision in Richard v. Scott (1978) 79 Cal. App. 3d 57, 144 Cal. Rptr. 672 , in which the court held that the party prevailing on a motion for new trial was not required to demonstrate that prejudice resulted from the error for which a new trial was granted (191 Cal. App. 3d 851, 859).

Garcia v. County of Los Angeles (1986) 177 Cal. App. 3d 633, 223 Cal. Rptr. 100 , was an action for battery and false imprisonment. The trial court involuntarily rested defendant's case after its last witness, who was not under subpoena, failed to appear. Defendant did not request a continuance or make an objection when the court had indicated its intention to proceed with the trial. After the jury returned a verdict for plaintiff, the trial court granted defendant's motion for new trial on the ground that there had been an irregularity in the proceedings (see Code Civ. Proc. 657(1)[Deering's] ) and plaintiff appealed. The court of appeal reversed on the ground that there was no irregularity on which the trial court could base its order (177 Cal. App. 3d 633, 639-640). The court followed Osborne to hold that a new trial cannot be granted for harmless error (177 Cal. App. 3d 633, 641). The court found that there would have been no good cause for the trial court to grant a continuance, given that the absent witness was neither under subpoena nor out of subpoena range, and that the testimony of the absent witness, if admitted, would have been cumulative (177 Cal. App. 3d 633, 640). Even if there was an irregularity in the proceedings, the court held, defendant caused it and so can have no relief (177 Cal. App. 3d 633, 641). The court concluded that any error committed that provided the basis for the trial court's order granting a new trial was harmless and not prejudicial (177 Cal. App. 3d 633, 641).
155.302-155.309 [Reserved]

155.310 Opposing Appeal From Order Granting New Trial [Code Civ. Proc. 659]--Reasonable Finder of Fact Could Find in Favor of Moving Party on Trial Court's Theory
[1]--FORM


[The following may be used in appellate brief opposing relief from order for new trial.]

THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN GRANTING THE ORDER FOR NEW TRIAL, AND ITS RULING MUST BE SUSTAINED ON APPEAL BECAUSE _________________ [identify opposing party, e.g., DEFENDANT] HAS NOT DEMONSTRATED THAT NO REASONABLE FINDER OF FACT COULD FIND FOR _________________ [identify moving party, e.g., PLAINTIFF] ON THE TRIAL COURT'S THEORY.

A. Statutory Rule of Review on Appeal From Order Granting New Trial. On appeal from an order granting a new trial, the appellate court generally is required to affirm the order if it should have been granted on any ground stated in the motion, whether or not specified in order or in the trial court's specification of reasons for the order ( Code Civ. Proc. 657[Deering's] ). [The appellate court may, however, affirm an order granting a new trial either on the ground of the insufficiency of evidence to justify the verdict or other decision, or on the ground of excessive or inadequate damages, only if that ground is stated in the order ( Code Civ. Proc. 657[Deering's] ).] [In the case of an order granting a new trial on the ground of the insufficiency of the evidence to justify the verdict or other decision, or on the ground of excessive or inadequate damages, it is conclusively presumed on an appeal from that order that it was made, as to either of these grounds, only for those reasons specified in the order or in the trial court's specification of reasons. The appellate court may reverse an such an order, as to either of these grounds, only if there is no substantial basis in the record for any of the reasons thus specified ( Code Civ. Proc. 657[Deering's] ).]

B. Abuse of Discretion Standard of Review Applicable on Appeal From Order Granting New Trial. A trial court's order granting a new trial under Code of Civil Procedure Section 657[Deering's] must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the moving party on the theory upon which the trial court based its order ( Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 409, 93 Cal. Rptr. 2d 60, 993 P.2d 388 ; see also Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal. 3d 379, 387, 93 Cal. Rptr. 769, 482 P.2d 681 ).
[2]--Comments
[a]--Use of Form
This form of points and authorities may be submitted as part of a respondent's opposing brief opposing the reversal of a trial court order granting a motion for a new trial. The ground for the opposition is, under the applicable standard of appellate review, the order must be upheld on appeal unless the appellant demonstrates that no reasonable finder of fact could find in favor of the respondent on the theory adopted by the trial court as the basis for granting a new trial.
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. For example, counsel should set forth the theory on which the trial judge based its order, and argue how the appellant has failed to show, or how he or she cannot show, that no reasonable finder of fact could find in respondent's favor on that theory.
[c]--Related Pleading and Practice Forms
For discussion and forms relating generally to motion proceedings for new trial, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For discussion and forms relating to appeals, see Ch. 40, Appeal: An Overview et seq., in that publication.
[3]--Discussion of Authorities
[a]--Abuse of Discretion Standard of Review Applicable on Appeal From Order Granting New Trial
In Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 93 Cal. Rptr. 2d 60, 993 P.2d 388 , one plaintiff sued his employer for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, failure to promote due to race discrimination, and retaliation in violation of the Fair Employment and Housing Act (FEHA) [ Gov. Code 12900[Deering's] et seq. ]. A second plaintiff sued the same employer on similar causes of action, claiming demotion and constructive discharge for refusing to write a poor job evaluation of the first plaintiff. After trial, the jury returned verdicts for both plaintiffs, finding defendant employer breached its contracts with plaintiffs in that it terminated them without good cause, that it discriminated against the first plaintiff, that it retaliated against both plaintiffs for reporting the discrimination, and that it constructively discharged the second plaintiff. The jury also found that defendant was subject to punitive damages, awarding the first plaintiff approximately $46 million, and the second plaintiff $43 million, these awards including $40 million each in punitive damages (22 Cal. 4th 405, 409-410).

On defendant's motion, the trial court granted a judgment notwithstanding the verdict (JNOV) under Code Civ. Proc. 629[Deering's] , concluding, among other things, that the record contained no substantial evidence to support the jury's findings as to termination of the first plaintiff or constructive discharge of the second, nor as to any discrimination or retaliation by the defendant. The court specified it was granting JNOV as to the damages for future wage loss because both plaintiffs rejected unconditional offers of reinstatement, and as to the punitive damages because there was no clear and convincing evidence of malice. Alternatively, the court granted a new trial under Code Civ. Proc. 657[Deering's] , concluding that the record contained insufficient evidence of either discrimination or retaliation, as well as insufficient evidence to support the damage award. With respect to punitive damages, the court specifically found that passion and prejudice had motivated the jury, that the damages did not bear a reasonable relationship to Hughes's actions or plaintiffs' injuries, and that they were grossly disproportionate to the amount of actual damages (22 Cal. 4th 405, 410-411).

Plaintiffs' appeal followed. The court of appeal reversed the JNOV, finding sufficient evidence in the record to support the jury's verdict as to liability and compensatory damages, but found the punitive damages excessive, reducing the first plaintiff's punitive damage award to $5 million, and the second plaintiff's punitive damage award to $2.8 million. The court of appeal also stated that it ``need not consider the trial court's grant of a new trial on the bases of insufficiency of evidence and excessive compensatory damages, as we already analyzed the record with respect to the judgment notwithstanding the verdicts'' (22 Cal. 4th 405, 411).

Defendant petitioned for review. It did not contest the court of appeal's reversal of the JNOV, but argued that the court of appeal had improperly reversed the order granting a new trial, in that it had applied the same standard in reviewing the new trial order as that which it had applied in reviewing the JNOV order. The Supreme Court granted review, initially remanding the case to the court of appeal to reconsider its decision in light of the ``highly deferential'' standard of review articulated in Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal. 3d 706, 710-711, 106 Cal. Rptr. 28, 505 P.2d 220 and Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 932-933, 148 Cal. Rptr. 389, 582 P.2d 980 . After the court of appeal reached the same decision as before, the Supreme Court granted review a second time and reversed the court of appeal's decision, remanding with instructions to affirm the trial court's order granting a new trial (22 Cal. 4th 405, 411, 416).

The Supreme Court stated that the standards for reviewing an order granting a new trial are well settled. After authorizing trial courts to grant a new trial on the grounds of excessive damages or insufficiency of the evidence, Code Civ. Proc. 657[Deering's] provides as follows: ``on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence ... or upon the ground of excessive or inadequate damages, ... such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons'' (22 Cal. 4th 405, 411-412). Thus, an order granting a new trial under Code Civ. Proc. 657[Deering's] ``must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court's] theory,'' and an ``abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached ... '' (quoting Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal. 3d 706, 710, 711, 106 Cal. Rptr. 28, 505 P.2d 220 ). In other words, when reviewing an order granting a new trial, the ``presumption of correctness normally accorded on appeal to the jury's verdict is replaced by a presumption in favor of the [new trial] order'' (quoting Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 932, 148 Cal. Rptr. 389, 582 P.2d 980 ) (22 Cal. 4th 405, 412).

The Court explained that this degree of deference was because the trial court, in ruling on a motion for new trial, sits as an independent trier of fact, and its factual determinations, as reflected in its order granting a new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury's factual determinations. Because the trial court is in the best position to assess the reliability of a jury's verdict, the Legislature has granted them broad discretion to order new trials, the only relevant limitations on which are the requirement that trial courts state their reasons for granting a new trial, and the requirement that there must be some evidence in the record to support those reasons (22 Cal. 4th 405, 412).

In this case, the trial court granted a new trial on the basis of insufficient evidence and stated reasons in support. Specifically, the court found that plaintiffs had not established racial discrimination or retaliatory bias. These findings by the trial court undermined the essential assertions that form the basis of the jury's liability verdict, and therefore provided a sufficient basis for ordering a new trial as to liability (22 Cal. 4th 405, 412).

The Court rejected plaintiffs' argument that the trial court's specification of reasons were too summary and did not establish the requisite degree of deliberation. The specification of reasons, the Court observed, was not a mere a mere statement of ultimate facts, such as that Hughes did not discriminate or retaliate, but included findings that the first plaintiff's promotion history was comparable to that of whites, that the second defendant had not significantly supported the first plaintiff's discrimination complaints, and that defendant had a good faith business reason for its management assignments. Moreover, at the beginning of the order, where the trial court was addressing both the grant of a new trial and the JNOV, it found that defendant did not instruct or force the second defendant to fabricate a poor job evaluation of the first plaintiff, that defendant tried to find job opportunities for the second defendant, and that defendant's managers did not refuse to meet with the second plaintiff after he complained of discrimination (22 Cal. 4th 405, 412-413).

The Court noted that the trial court's specification of reasons also clearly incorporated by reference a number of prior findings made with respect to the JNOV, including findings that defendant's failure to promote the first plaintiff was due to his performance and not his race, and that the first plaintiff's statistical evidence was flawed because it did not indicate the qualifications of employees who were passed over for promotion. The Court concluded that such cross-reference to findings located in a different part of the order was adequate to satisfy Code Civ. Proc. 657[Deering's] . A court need not unnecessarily burden a new trial order by reiterating what it has already said at length with respect to another issue before it, so long as it makes clear to a reviewing court the basis for its decision (22 Cal. 4th 405, 413).

The Court noted that the trial court's order ``described in detail'' why the evidence was insufficient as to compensatory damages, giving several specific findings which undermined the evidentiary foundation of the compensatory damage award and therefore provided sufficient basis for ordering a new trial as to compensatory damages. With respect to punitive damages, the trial court noted that the award was ``excessive'' and disproportionate to Hughes's conduct and to the extent of plaintiffs' injury and compensatory damages (22 Cal. 4th 405, 413-414). The Court concluded that the record supported these findings, and emphasized again that, so long as the evidence in the record is in conflict and can support a verdict in favor of either party, a properly constructed new trial order is not subject to reversal on appeal. In this case, although the jury verdicts were in plaintiffs' favor, the evidence could have supported a jury verdict in defendant's favor on all causes of action (22 Cal. 4th 405, 414).

The Court similarly rejected plaintiffs' argument that the new trial order was invalid because it borrowed extensively from briefs filed by defendant. This argument is based on language in Code Civ. Proc. 657[Deering's] that the court ``shall not direct the attorney for a party to prepare either or both [the new trial] order and ... specification of reasons.'' The Court, giving this language a reasonable and practical construction, and bearing in mind its purposes, to promote judicial deliberation before judicial action and to make appellate review more manageable, concluded that, while Code Civ. Proc. 657[Deering's] bars a trial court from imposing on counsel preparation of new trial orders, does not also bar the trial court from adopting material in a party's brief. The Court noted that if a trial court could not rely on reasons advanced in such briefs, their utility would be undermined and they would serve little purpose. In the Court's view, the critical factor is the reasoning process, not whose language is being employed. Thus, a trial court satisfies Code Civ. Proc. 657[Deering's] if its new trial order indicates, as in this case, that it deliberated over the issues (22 Cal. 4th 405, 415).

The Court concluded by reaffirming the deferential standards of review articulated in Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 932-933, 148 Cal. Rptr. 389, 582 P.2d 980 and Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal. 3d 706, 710-711, 106 Cal. Rptr. 28, 505 P.2d 220 , and holding that the court of appeal erred in failing to apply these standards properly (22 Cal. 4th 405, 416).

Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal. 3d 379, 93 Cal. Rptr. 769, 482 P.2d 681 , was a products liability action in which the jury returned a verdict for defendants. The trial court gave jury instructions concerning strict liability but refused to give plaintiff's proposed instructions on negligence and res ipsa loquitur. The trial court subsequently granted plaintiff's motion for new trial on the ground that, under the pleadings and evidence, plaintiff was entitled to have the issues of negligence and res ipsa loquitur go to the jury. Defendant appealed.

The Supreme Court affirmed the order for new trial, holding that plaintiff was entitled to a new trial because, given the evidence introduced at trial, the jury could properly have found for plaintiff had the res ipsa loquitur instruction been given (4 Cal. 3d 379, 386-387, 388). In its discussion of the standard for review of the trial court's order, the Court held that the determination of a motion for new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion appears, particularly when the discretion has been exercised in favor of awarding a new trial. An order granting a new trial will not be set aside as long as a reasonable or even fairly debatable justification under the law is shown for the order (4 Cal. 3d 379, 387).
155.311-155.319 [Reserved]

C Motions to Set Aside and Vacate a Judgment and Enter Another and Different Judgment
155.320 Supporting Motion to Set Aside and Vacate Judgment and Enter Another Judgment [Code Civ. Proc. 663, 663a]--Incorrect or Erroneous Legal Bases for Court Decision [Code Civ. Proc. 663(1)]
[1]--FORM


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)SUPPORT OF MOTION TO
)SET ASIDE AND VACATE
)JUDGMENT AND ENTER
)ANOTHER AND DIFFERENT
)JUDGMENT
_________________________ [name],)[Telephone Appearance]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)

THE _________________ [JUDGMENT or DECREE] SHOULD BE SET ASIDE AND VACATED AND ANOTHER AND DIFFERENT JUDGMENT ENTERED BECAUSE THERE ARE INCORRECT OR ERRONEOUS LEGAL BASES FOR THE DECISION THAT ARE NOT CONSISTENT WITH OR NOT SUPPORTED BY THE FACTS, AND THAT MATERIALLY AFFECT THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT], THUS ENTITLING HIM/HER/IT TO A DIFFERENT JUDGMENT.

A. Motion to Set Aside and Vacate and Enter Another and Different Judgment. On motion of the party aggrieved, a judgment or decree, when based on a decision by the court, may be set aside and vacated by the same court, and another and different judgment entered when there is an incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts, if substantial rights of the party are materially affected thereby, thus entitling the party to a different judgment, and in such case when the judgment is set aside, the statement of decision must be amended and corrected ( Code Civ. Proc. 663(1)[Deering's] ).

B. Incorrect Legal Conclusion or Erroneous Judgment on Facts. The motion to set aside and vacate a judgment and enter another and different judgment may be made if the court draws an incorrect legal conclusion or renders an erroneous judgment on the facts found by it to exist ( Alameda v. Carleson (1971) 5 Cal. 3d 730, 738, 97 Cal. Rptr. 385, 488 P.2d 953 (decided before 1981 amendment of Code Civ. Proc. 663[Deering's] )).

[Optional ] C. Legal Conclusion Contrary to Express Statutory Provision. The motion to set aside and vacate a judgment and enter another and different judgment may be granted if the court comes to a legal conclusion that is contrary to an express statutory provision (see Gibson v. Hammang (1904) 145 Cal. 454, 456, 78 P. 953 (decided before 1981 amendment of Code Civ. Proc. 663[Deering's] )).

[Optional ] D. Legal Conclusions Inconsistent With Uncontroverted Facts. The motion to set aside and vacate a judgment and enter another and different judgment may be granted if the court's legal conclusions are inconsistent with the uncontroverted facts of the case (see Swanson v. Wheeler (1952) 112 Cal. App. 2d 43, 44-45, 245 P.2d 699 (decided before 1981 amendment of Code Civ. Proc. 663[Deering's] )).

[Optional ] E. Court Wrongly Considers Element as Part of Settled Legal Doctrine. The motion to set aside and vacate a judgment and enter another and different judgment may be granted when the court considers a specific element to be part of a settled legal doctrine when, in fact, it is not (see Crook v. Leinenweaver (1950) 100 Cal. App. 2d 790, 792-794, 224 P.2d 891 (decided before 1981 amendment of Code Civ. Proc. 663[Deering's] )).

[Optional ] F. Moving Party May Raise New Legal Theory. Section 663(1)[Deering's] of the Code of Civil Procedure empowers a trial court to consider new legal challenges not previously raised before the verdict or judgment when the court is ruling on a motion to vacate ( Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App. 4th 10, 15-16, 1 Cal. Rptr. 2d 805 ).

[Add further points and authorities 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 to set aside and vacate a judgment and to enter another and different judgment [ Code Civ. Proc. 663[Deering's], 663a[Deering's] ]. It is to be used when there is a statement of decision by the court that contains legal bases that are not consistent with or not supported by the facts [see Code Civ. Proc. 663(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 show how the court's legal bases for the decision are not consistent with or not supported by the facts found by the court. Counsel should also add further points and authorities that set out the substantive law pertaining to the particular cause of action or defense to show why the motion should be granted. For example, in an action involving a disputed boundary line in which the court has incorrectly concluded that a dispute is a necessary element of the agreed boundary line doctrine, counsel should discuss the elements of the doctrine to show how the court's legal conclusions were erroneous [see Crook v. Leinenweaver (1950) 100 Cal. App. 2d 790, 794, 224 P.2d 891 ].

Counsel should cite relevant case authority supporting these substantive points of law. In preparing the memorandum, counsel may refer to the substantive chapters contained in this publication and in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).
[c]--Statement of Decision
Note that the language of Code Civ. Proc. 663[Deering's] was amended in 1981 to conform to the concurrent revision of Code Civ. Proc. 632[Deering's] . Code Civ. Proc. 632[Deering's] , as amended, has replaced findings of fact and conclusions of law with a statement of decision explaining the factual and legal basis for the court's decision on each of the principal controverted issues at trial, to be issued by the court when properly requested by any party appearing at trial.

Accordingly, Code Civ. Proc. 663[Deering's] now refers to a judgment based on a decision by the court, rather than one based on findings of fact. This judgment may be vacated and a different judgment entered under Code Civ. Proc. 663(1)[Deering's] when the legal basis for the decision is inconsistent with, or not supported by, the facts, and in such case, the statement of decision must be amended.

It appears that the changes in terminology only minimally affect the import of the statute. Therefore, case law interpreting the old version of Code Civ. Proc. 663[Deering's] , which referred to ``findings of fact'' and ``conclusions of law,'' are probably still persuasive, if not controlling, authority in interpreting the amended version of Code Civ. Proc. 663[Deering's] . Care should be used, however, in relying on case law decided under the prior law.
[d]--Related Pleading and Practice Forms
For a form of notice of intention to move to set aside and vacate a judgment and to enter another and different judgment, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of the statement of decision generally, see Ch. 529, Statement of Decision in that publication.
[e]--Opposing Points and Authorities
The points and authorities set out in 155.330 et seq. may be used in an appropriate situation to oppose a motion that is supported by this memorandum.
[3]--Discussion of Authorities
[a]--Incorrect Legal Conclusion or Erroneous Judgment on Facts
Alameda v. Carleson (1971) 5 Cal. 3d 730, 97 Cal. Rptr. 385, 488 P.2d 953 , was a consolidated action involving the question of whether or not a state welfare program conformed to certain provisions of the Social Security Act [ 42 U.S.C. 602(a) ]. In one action, plaintiff counties brought an action for declaratory and injunctive relief against defendant Carleson, Director of the Department of Social Welfare. Since the effect of a judgment in the counties' favor would be to terminate welfare granted to certain recipients, California Welfare Rights Organization (hereafter referred to as CWRO) sought to intervene as parties in the action. The trial court denied intervention. Subsequently, the court entered its judgment declaring certain of Carleson's regulations invalid. CWRO filed a motion to vacate the judgment and renewed its application to intervene, but both motions were denied. CWRO then appealed the entire proceeding.

The Supreme Court stated that one who is legally aggrieved by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to Code Civ. Proc. 663[Deering's] (5 Cal. 3d 730, 736). The Court said that CWRO was legally aggrieved by the judgment because its rights or interests were injuriously affected by it (5 Cal. 3d 730, 737). The Court also stated that Code Civ. Proc. 663[Deering's] furnished sufficient statutory basis for CRWO's motion in the instant case. The section in part provides that a judgment may on motion be vacated for incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact. The Court stated that it interpreted the language to mean that the motion may be made whenever the trial judge draws an incorrect legal conclusion or renders an erroneous judgment on the facts found by it to exist. In this case, the Court noted that CWRO contended that the trial court incorrectly concluded on the basis of the findings of fact, which included applicable provisions of the Social Security Act, that existing regulations promulgated and interpreted by Carleson were incorrect. If the court's conclusion was indeed incorrect, the Court stated that the error could have been reviewed by a motion to vacate under Code Civ. Proc. 663[Deering's] . The Court concluded, therefore, that CWRO became a party of record in the action, that it had standing to appeal from the judgment, and that the Supreme Court had jurisdiction to determine the substantive issues on appeal (5 Cal. 3d 730, 738).
[b]--Legal Conclusion Contrary to Express Statutory Provision
In Gibson v. Hammang (1904) 145 Cal. 454, 78 P. 953 , plaintiffs brought an action to annul the deed to certain lands. The trial court decided in favor of plaintiffs, but it stated that plaintiffs were not entitled to reimbursement for costs. Plaintiffs moved to vacate the part of the judgment that disallowed costs and to enter judgment for costs under Code Civ. Proc. 663[Deering's] .

The court of appeal remanded the case with directions to set aside that part of the judgment relating to costs, to correct the conclusions of law to conform to its opinion, and to amend the judgment by awarding costs to plaintiffs. The court noted that a statute expressly stated that the reimbursement of costs was not discretionary, but mandatory in actions for the recovery of real property. The court stated that the pleadings, findings, and judgment showed that the action involved the title to the land, and although plaintiffs recovered part of the land only, they were entitled to their costs as a matter of right (145 Cal. 454, 456-457).
[c]--Legal Conclusions Inconsistent With Uncontroverted Facts
In Swanson v. Wheeler (1952) 112 Cal. App. 2d 43, 245 P.2d 699 , plaintiff brought an action to money due under an express oral agreement which became due on mutual cancellation of the agreement. The trial court found that there was an oral agreement between the parties; plaintiff was given the right to withdraw from the enterprise and if he did so, his down payment of $5,000 would be refunded; plaintiff withdrew; the agreement was terminated by mutual agreement; and defendant promised to refund plaintiff's money but did not do so. However, the court then determined that plaintiff was not entitled to $5,000 from defendant. Plaintiff moved under Code Civ. Proc. 663[Deering's] to set aside and vacate the judgment and to enter another and different judgment that awarded him $5,000 plus interest. The motion was denied. Plaintiff appealed the judgment and order denying the motion to vacate.

The court of appeal reversed the judgment with directions to vacate the judgment and the conclusions and to make new conclusions of law that were consistent with its opinions, and to enter judgment in favor of plaintiff for $5,000 plus interest. The court noted that the findings were all in favor of plaintiff and the conclusions and judgment were in favor of defendant for specific performance of the agreement. However, the factual findings clearly showed that plaintiff was entitled to judgment. The court added that although it is the policy to give findings a liberal construction in support of the judgment, even liberality has its limits, and the court may not, through purported construction, ignore clear and positive factual findings or supply those that are missing. The court stated that it could not understand why the previous motion was denied when it was clear that the judgment could not stand. Accordingly, the court remanded the case with directions (112 Cal. App. 2d 43, 45-46).
[d]--Court Wrongly Considers Element as Part of Settled Legal Doctrine
In Crook v. Leinenweaver (1950) 100 Cal. App. 2d 790, 224 P.2d 891 , plaintiffs brought an action to establish a boundary line and compel the removal of certain structures. The trial court made findings favorable to defendants, but concluded that the facts required a judgment in favor of plaintiffs. Defendants moved to vacate the judgment under Code Civ. Proc. 663[Deering's], 663a[Deering's] . The court denied the motion, and defendants appealed the order.

The court of appeal reversed the order with directions to vacate the judgment and enter a judgment in favor of defendants (100 Cal. App. 2d 790, 795). The lower court stated in its decision that there was no dispute between the parties such as to bring this case within the doctrine of an agreed boundary line (100 Cal. App. 2d 790, 793-794). However, defendants contended that the essential elements of an agreed boundary line appeared from the facts of the case (100 Cal. App. 2d 790, 792). The court stated that the doctrine of an agreed boundary line is well settled and that an actual dispute or argument is not necessary in such cases (100 Cal. App. 2d 790, 792). The court stated that the lower court's conclusion was clearly erroneous because the matter of a dispute or argument was a false quantity. The conclusions drawn by the trial court were inconsistent with the facts found and not supported by those facts (100 Cal. App. 2d 790, 794). It appeared to the court that the facts dictated a judgment for defendants, and accordingly the court reversed the order (100 Cal. App. 2d 790, 794-795).
[e]--Moving Party May Raise New Legal Theory
The facts and procedural background of Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal. App. 4th 10, 1 Cal. Rptr. 2d 805 , are discussed in 155.234[3][e]. In Hoffman-Haag, the court of appeal considered the plaintiffs' contention that reliance by the defendant's insurer on an Insurance Code section for the first time on the insurer's motion for new trial and to vacate judgment is not permitted. The court held that legal challenges that may be brought by way of Code Civ. Proc. 663(1)[Deering's] are not limited to those raised before verdict or judgment (1 Cal. App. 4th 10, 15).
155.321 Supporting Motion to Set Aside and Vacate Judgment and Enter Another Judgment [Code Civ. Proc. 663, 663a]--Judgment Inconsistent With Special Verdict of Jury [Code Civ. Proc. 663(2)]
[1]--FORM


[Caption. See 155.320.]

THE _________________ [JUDGMENT or DECREE] SHOULD BE SET ASIDE AND VACATED AND ANOTHER AND DIFFERENT JUDGMENT ENTERED BECAUSE THE _________________ [JUDGMENT or DECREE] IS NOT CONSISTENT WITH OR NOT SUPPORTED BY THE SPECIAL VERDICT, THUS MATERIALLY AFFECTING THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] AND ENTITLING HIM/HER/IT TO A DIFFERENT JUDGMENT.

A. Motion to Set Aside and Vacate and Enter Another and Different Judgment. On motion of the party aggrieved, a judgment or decree, when based on the special verdict of the jury, may be set aside and vacated by the same court, and another and different judgment entered when the judgment or decree is not consistent with or not supported by the special verdict, if substantial rights of the party are materially affected thereby, thus entitling the party to a different judgment ( Code Civ. Proc. 663[Deering's] ).

B. Motion Properly Granted If Judgment Not Consistent With or Supported by Special Verdict. A motion to set aside and vacate a judgment and to enter another and different judgment is properly granted when the judgment is not consistent with or not supported by the special verdict (see Code Civ. Proc. 663[Deering's] ).

[Add further points and authorities, if appropriate, showing how court's judgment is incorrectly drawn from jury's factual conclusions.]

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 to set aside and vacate a judgment and to enter another and different judgment [ Code Civ. Proc. 663[Deering's], 663a[Deering's] ] when there is a special verdict of the jury. A special verdict is one in which the jury finds the facts only, leaving judgment to the court. It must present conclusions of fact as established by the evidence rather than the evidence used to prove these facts. The conclusions of fact drawn by the jury must be presented in such a manner that nothing remains for the court to do but draw conclusions of law from them [ Code Civ. Proc. 624[Deering's] ]. This form is to be used if the court's judgment is not consistent with or not supported by the special verdict [see Code Civ. Proc. 663(2)[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 show how the court's legal conclusions are incorrectly drawn from the jury's factual conclusions.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move to set aside and vacate a judgment and to enter another and different judgment, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of special verdicts generally, see Ch. 326A, Jury Verdicts in that publication.
[d]--Opposing Points and Authorities
The points and authorities set out in 155.331 and 155.332 may be used in an appropriate situation to oppose a motion that is supported by this memorandum.
155.322-155.329 [Reserved]

155.330 Opposing Motion to Set Aside and Vacate Judgment and Enter Another Judgment [Code Civ. Proc. 663, 663a]--Legal Bases Consistent With Facts Found by Court
[1]--FORM


SUPERIOR COURT OF CALIFORNIA,
COUNTY OF __________________________________


)NO. _______________
)MEMORANDUM OF POINTS
)AND AUTHORITIES IN
)OPPOSITION TO MOTION
)TO SET ASIDE AND
)VACATE JUDGMENT AND
)ENTER ANOTHER AND
)DIFFERENT JUDGMENT
_________________________ [name],)[Telephone Appearance]
Plaintiff, )Date: _______________
vs. )Time: _______________
_________________________ [name],)Location: _____________
Defendant. )[Judge: _______________
)]
)Date Action Filed: ____
)[Trial Date: __________
)]
)

THE _________________ [JUDGMENT or DECREE] SHOULD NOT BE SET ASIDE AND VACATED AND ANOTHER AND DIFFERENT JUDGMENT ENTERED BECAUSE THE LEGAL BASES FOR THE DECISION ARE CONSISTENT WITH AND SUPPORTED BY THE FACTS FOUND BY THE COURT, THUS THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] ARE NOT MATERIALLY AFFECTED AND HE/SHE/ IT IS NOT ENTITLED TO A DIFFERENT JUDGMENT.

A. Judgment Consistent With Facts. If the judgment rendered in an action is the correct legal conclusion to be drawn from the facts found by the court, a motion to set aside and vacate a judgment and enter another and different judgment is properly denied (see Dahlberg v. Girsch (1910) 157 Cal. 324, 326-327, 107 P. 616 ; Brown v. Jones (1935) 11 Cal. App. 2d 30, 31, 52 P.2d 962 (both decided before 1981 amendment of Code Civ. Proc. 663[Deering's] )).

B. Motion Improper to Challenge Factual Bases for Decision. A motion to set aside and vacate a judgment and enter another and different judgment is a remedy to correct a court's incorrect or erroneous legal bases for the decision; it is not available to challenge the court's factual bases for the decision (see Code Civ. Proc. 663[Deering's] ; see also Jones v. Clover (1937) 24 Cal. App. 2d 210, 211-212, 74 P.2d 517 (decided before 1981 amendment of Code Civ. Proc. 663[Deering's] )).

[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 to set aside and vacate a judgment and to enter another and different judgment [ Code Civ. Proc. 663[Deering's], 663a[Deering's] ] when there is a statement of decision by the court [see Code Civ. Proc. 663(1)[Deering's] ]. It may be submitted in opposition to a motion supported by the points and authorities set out in 155.320.
[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 how the legal bases for the decision are consistent with or supported by the facts found by the court. Counsel should also add further points and authorities that set out the substantive law pertaining to the particular cause of action or defense to show why the motion should be denied. For example, in an action in which the moving party contends that the court's legal conclusions are contrary to an express statutory provision, counsel should set out the substantive law to demonstrate that the action does not come under the terms of the statute [see Gibson v. Hammang (1904) 145 Cal. 454, 456, 78 P. 953 ].

Counsel should cite relevant case authority supporting these substantive points of law. In preparing the memorandum, counsel may refer to the substantive chapters contained in this publication and in CALIFORNIA FORMS OF PLEADING AND PRACTICE (Matthew Bender).
[c]--Statement of Decision
Note that the language of Code Civ. Proc. 663[Deering's] was amended in 1981 to conform to the concurrent revision of Code Civ. Proc. 632[Deering's] . Code Civ. Proc. 632[Deering's] , as amended, has replaced findings of fact and conclusions of law with a statement of decision explaining the factual and legal basis for the court's decision on each of the principal controverted issues at trial, to be issued by the court when properly requested by any party appearing at trial.

Accordingly, Code Civ. Proc. 663[Deering's] now refers to a judgment based on a decision by the court, rather than one based on findings of fact. This judgment may be vacated and a different judgment entered under Code Civ. Proc. 663(1)[Deering's] when the legal basis for the decision is inconsistent with, or not supported by, the facts, and in such case, the statement of decision must be amended.

It appears that the changes in terminology only minimally affect the import of the statute. Therefore, case law interpreting the old version of Code Civ. Proc. 663[Deering's] , which referred to ``findings of fact'' and ``conclusions of law,'' are probably still persuasive, if not controlling, authority in interpreting the amended version of Code Civ. Proc. 663[Deering's] . Care should be used, however, in relying on case law decided under the prior law.
[d]--Related Pleading and Practice Forms
For a form of notice of intention to move to set aside and vacate a judgment and to enter another and different judgment, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of the statement of decision generally, see Ch. 529, Statement of Decision in that publication.
[3]--Discussion of Authorities
[a]--Judgment Consistent With Facts
In Dahlberg v. Girsch (1910) 157 Cal. 324, 107 P. 616 , plaintiff brought an action to recover money alleged to be due for services performed and materials furnished in the construction of a building for defendant. Plaintiff was awarded $3,492.81 by the court. Defendant then moved under Code Civ. Proc. 663[Deering's] to vacate the judgment and enter a different judgment because of incorrect or erroneous conclusions of law not supported by the findings of fact. The court granted the order and judgment was given for plaintiff in the sum of $939.78. Plaintiff appealed the order and the judgment based on the order.

The Supreme Court reversed the order and the judgment, stating that so far as the original conclusions of law and judgment were against defendant, they were in accord with and compelled by the findings of fact. Even though the lower court found that plaintiff had willfully failed to complete the building's foundation to contract specifications, defendant could not urge that this willful failure barred a recovery on the contract because of the terms of the contract (157 Cal. 324, 332). Under the terms of the contract, defendant completed the work, then charged the expense of completion to plaintiff. The trial court deducted the reasonable cost of defendant's labor from the contract price, leaving the sum of $3,492 that was originally awarded to plaintiff (157 Cal. 324, 329-330). The Supreme Court held that this conclusion was not erroneous, and therefore it reversed the order vacating the original judgment (157 Cal. 324, 332-333).

In Brown v. Jones (1935) 11 Cal. App. 2d 30, 52 P.2d 962 , plaintiffs brought an action to quiet title to certain real property. Defendant cross complained, seeking to have his title quieted. The trial court found in favor of defendant, but ordered defendant to pay plaintiffs the amount of taxes on the property that plaintiffs had previously expended. Plaintiffs attempted to obtain an order based on Code Civ. Proc. 663[Deering's] in order to set aside certain conclusions of law and enter another and different judgment. The motion was granted, and defendant appealed.

The court of appeal reversed the order, stating that the judgment and the conclusions of law were consistent with and supported by the findings of fact, and were not incorrect or erroneous. The court noted that plaintiffs, in moving for the order, desired to amend the judgment in order to provide that, unless the amount of taxes were paid within a certain time, plaintiffs would have judgment entered in their favor. However, the court of appeal stated that if the order appealed from had any effect, it would bring about a modification of the judgment, and that result may not be brought about under the circumstances disclosed by the record (11 Cal. App. 2d 30, 31).
[b]--Motion Improper to Challenge Factual Bases for Decision
In Jones v. Clover (1937) 24 Cal. App. 2d 210, 74 P.2d 517 , plaintiff brought an action to recover on certain promissory notes. After trial, the court entered its judgment for plaintiff. Defendant moved for a new trial and to set aside and vacate the judgment and enter another and different judgment. The court set aside and vacated the judgment and entered a new judgment in favor of plaintiff, awarding him a smaller amount of damages. The court made new findings and conclusions of law. Plaintiff then moved for a new trial. When the motion was denied by operation of law, plaintiff appealed the judgment.

The court of appeal reversed the judgment and remanded the case with instruction to the lower court to reenter the original judgment entered by the court. It stated that the lower court was not authorized to alter its findings under Code Civ. Proc. 663[Deering's] and 663a[Deering's] . Under those sections, the court may only correct erroneous conclusions of law. The court emphasized that the limits set by the sections cannot be transgressed (24 Cal. App. 2d 210, 211). The statutes do not authorize an attack on the findings (24 Cal. App. 2d 210, 211-212). The court added that Code Civ. Proc. 663[Deering's] authorizes the substitution of the judgment that should have been given as a matter of law on the findings of fact in a case in which the judgment already given is an incorrect conclusion from such findings. In ruling on the motion, the court cannot change any finding of fact. The sole remedy in the trial court of a party who is aggrieved by any finding of fact is a motion for a new trial (24 Cal. App. 2d 210, 211-213). Hence, the court held that the lower court's order was ineffectual for any purpose, because the court was limited to a substitution of judgment that should have been given as a matter of law on the findings of fact. Accordingly, the court reversed the judgment on which the appeal was taken (24 Cal. App. 2d 210, 212).
155.331 Opposing Motion to Set Aside and Vacate Judgment and Enter Another Judgment [Code Civ. Proc. 663, 663a]--Judgment Consistent With Special Verdict
[1]--FORM


[Caption. See 155.330.]

THE_________________ [JUDGMENT or DECREE] SHOULD NOT BE SET ASIDE AND VACATED AND ANOTHER AND DIFFERENT JUDGMENT ENTERED, BECAUSE THE _________________ [JUDGMENT or DECREE] IS CONSISTENT WITH AND SUPPORTED BY THE SPECIAL VERDICT, THUS THE SUBSTANTIAL RIGHTS OF _________________ [PLAINTIFF or DEFENDANT] ARE NOT MATERIALLY AFFECTED AND HE/SHE/IT IS NOT ENTITLED TO A DIFFERENT JUDGMENT.

Judgment Consistent With Special Verdict. A motion to set aside and vacate a judgment and enter another and different judgment will not be granted if the judgment or decree is consistent with the special verdict of the jury (see Code Civ. Proc. 663[Deering's] ).

[Add further points and authorities, if appropriate, showing how the court's judgment is correctly drawn from the jury's factual conclusions.]

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 to set aside and vacate a judgment and enter another and different judgment [ Code Civ. Proc. 663[Deering's], 663a[Deering's] ] when there is a special verdict of the jury. A special verdict is one in which the jury finds the facts only, leaving judgment to the court [see Code Civ. Proc. 624[Deering's] ]. The ground of opposition set out is that the court's judgment is consistent with the jury's special verdict [see Code Civ. Proc. 663(2)[Deering's] ]. This form may in an appropriate case be submitted in opposition to a motion supported by the points and authorities set out in 155.321.
[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 how the court's legal conclusions are correctly drawn from the jury's factual conclusions.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move to set aside and vacate a judgment and to enter another and different judgment, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of special verdicts generally, see Ch. 326A, Jury Verdicts in that publication.
155.332 Opposing Motion to Set Aside and Vacate Judgment and Enter Another Judgment [Code Civ. Proc. 663, 663a]--Motion Not Applicable to Interlocutory Judgment
[1]--FORM


[Caption. See 155.330.]

THE MOTION TO SET ASIDE AND VACATE THE _________________ [JUDGMENT or DECREE] AND ENTER ANOTHER AND DIFFERENT JUDGMENT SHOULD NOT BE GRANTED, BECAUSE THE JUDGMENT INVOLVED IS INTERLOCUTORY.

Motion Improper to Set Aside Interlocutory Judgment. A motion to set aside and vacate a judgment and enter another and different judgment is not applicable to an interlocutory judgment, and if made to vacate an interlocutory judgment, it is properly denied (see Remington v. Davis (1951) 108 Cal. App. 2d 251, 253, 238 P.2d 662 ).

[Add further points and authorities, as appropriate, supporting contention that judgment is interlocutory.]

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 to set aside and vacate a judgment and enter another and different judgment [ Code Civ. Proc. 663[Deering's], 663a[Deering's] ]. It is to be used when the judgment rendered is interlocutory and not final. This memorandum may be submitted in opposition to a motion to set aside and vacate a judgment supported by the points and authorities set out in 155.320 and 155.321.

As a general rule, if no issue is left for future consideration except the fact of compliance or noncompliance with the terms of a decree, the decree is final; whereas, if anything further in the nature of a judicial action on the part of the court is essential to the final determination of the rights of the parties, the decree is deemed interlocutory [ Woodman v. Ackerman (1967) 249 Cal. App. 2d 644, 650, 57 Cal. Rptr. 687 ].
[b]--Argument
Counsel should add argument linking the points in this form with the facts of his or her case. Counsel should also add further points and authorities showing that the judgment is interlocutory.
[c]--Related Pleading and Practice Forms
For a form of notice of intention to move to set aside and vacate a judgment and to enter another and different judgment, see CALIFORNIA FORMS OF PLEADING AND PRACTICE, Ch. 371, Motions After Trial (Matthew Bender). For a discussion of interlocutory judgments and a listing of those types of actions in which a statutory provision for an interlocutory judgment exists, see Ch. 318, Judgments in that publication.
[3]--Discussion of Authorities
[a]--Motion Improper to Set Aside Interlocutory Judgment
In Remington v. Davis (1951) 108 Cal. App. 2d 251, 238 P.2d 662 , plaintiff brought an action to recover certain properties alleged to have been obtained by fraud. After trial, the court made findings of fact and conclusions of law and entered an interlocutory judgment decreeing that certain instruments be canceled and that certain properties be transferred to plaintiff. The judgment further decreed that jurisdiction be retained for the purpose of taking an accounting, ascertaining the credits allowable to defendants, and rendering a final judgment for the amount found due to plaintiff. Defendants moved to vacate and set aside this judgment and to enter another and different judgment that decreed that plaintiff's cause of action was barred by certain statutes of limitation and that quieted title in defendants to certain properties that defendants claimed. The motion was denied, and defendants appealed the order. Plaintiff moved to dismiss the appeal on the grounds that the order was not appealable, and that the appeal was frivolous and taken solely for delay.

The court of appeal, granting plaintiff's motion and dismissing defendants' appeal, stated that Code Civ. Proc. 663[Deering's] and 663a[Deering's] are not expressly made applicable to interlocutory judgments, and that there is nothing in the language of the statute to indicate that they were so intended. Code Civ. Proc. 663[Deering's] , the court stated, provides for a motion to set aside a judgment and enter a different judgment based on the facts already found if there are improper conclusions of law that have been drawn from those facts. This situation involves questions of law only and strongly indicates that the judgment that must be changed is one that is final in nature and not one that leaves issues still to be determined. Furthermore, the court concluded that Code Civ. Proc. 663a[Deering's] refers to a final judgment and was a further indication that the judgment referred to in Code Civ. Proc. 663[Deering's] was a final judgment. Therefore, the court held that the interlocutory judgment was not appealable under Code Civ. Proc. 663a[Deering's] , and accordingly the court granted plaintiff's motion and dismissed defendants' appeal (108 Cal. App. 2d