Making and opposing new-trial motions

The right to a new trial is purely statutory, and focusing on four key statutory areas is important to winning this post-trial motion

2016 January

While I can’t set forth all procedural law to be considered when filing or opposing a motion for new trial, I would like to address the few areas that I have seen as most important in winning: 1. Notice of intent common mistakes; 2. Applicable standard; 3. Necessary evidence and evidentiary standards; and 4. Timing issues.

The California Supreme Court explained, “[t]he right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Because new-trial motions are creatures of statute, “the procedural steps ... for making and determining such a motion are mandatory and must be strictly followed [citations].” (Linhart v. Nelson (1976) 18 Cal.3d 641, 644.)

Notice of intent – the basics and common mistakes

A Notice of Intention to Move for New Trial is not a Notice of Motion. In fact, a date of hearing is not placed on the Notice of Intention, and the trial court will normally inform you of the hearing date and the need to provide notice of the date after filing your Notice of Intention to Move for New Trial. A few things must be included in the Notice of Intention.

First and foremost, list all of the grounds set forth in section 657 of the Code of Civil Procedure. (Unless otherwise indicated, all further statutory citations are to that Code.) These are: (1.) Irregularity in the proceedings, court orders or abuse of discretion; (2.) Misconduct of the jury; (3.) Accident or surprise, which ordinary prudence could not have guarded against; (4.) Newly discovered evidence, which he could not have discovered and produced at the trial; (5.) Excessive or inadequate damages; (6.) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against the law; and (7.) Error in law, occurring at the trial and excepted to by the moving party.) You should absolutely be over inclusive in your designation of statutory grounds, otherwise you will waive those grounds as a basis for moving for new trial.

Second, you should state whether the motion is made upon affidavits or the minutes of the court, or both. It must be based upon affidavits if grounds are irregularity of proceedings, misconduct of the jury, accident or surprise, or newly-discovered evidence. It must be based upon minutes of the court if grounds are insufficiency of the evidence, verdict or decision against law, error in law, or excessive or inadequate damages. (§ 658.)

Third, although not required, I always include in the first line a bolded sentence stating, “Entry of Judgment was served on [date specified]. Jurisdiction to rule on the motion for new trial and the motion for judgment notwithstanding the verdict will expire on [date specified].” This allows the clerk and the Court to easily determine timing priorities for both setting the hearing date and issuing a ruling (after which the Court no longer has jurisdiction).

Finally, the Memorandum of Points and Authorities in support of the motion may be filed at the same time as the Notice of Intention (which I usually do if I am filing an alternative request for JNOV), but it must be filed within 10 days of the Notice of Intention.

Grounds for new trial

The most commonly used grounds for new trial under § 657 are specifically addressed below.

• Juror Misconduct (§ 657(2))

The requirement that a jury’s verdict ‘must be based upon the evidence developed at the trial’ goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury....

(Turner v. Louisiana (1965) 379 U.S. 466, 472-473, 85 S.Ct. 546, 549-550.)

When a party seeks a new trial based upon jury misconduct, a court must undertake a three-step inquiry. The court must first determine whether the affidavits supporting the motion are admissible. [Citation omitted.] If the evidence is admissible, the court must then consider whether the facts establish misconduct. [Citation omitted.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial.

(People v. Perez (1992) 4 Cal.App.4th 893, 906.)

It is well settled that a presumption of prejudice arises from any juror misconduct.... However, the presumption may be rebutted by proof that no prejudice actually resulted.

(Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416; see also, People v. Nesler (1997) 16 Cal.4th 561, 578-579.)

[I]t 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 there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.

(Hasson, supra, 32 Cal.3d at 417.)

Misconduct based upon bias and prejudice

An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘capable and willing to decide the case solely on the evidence before it.’

(People v. Hensley (2014) 59 Cal.4th 788, 824, quoting In re Hamilton (1999) 20 Cal.4th 273, 293-294.)

Certain principles must be considered if bias and prejudice are the alleged basis of juror misconduct. In McDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, the court noted that when “there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment: ‘The test is an objective one, calling for inquiry as to whether the misconduct ‘is inherently likely to have influenced the juror.’ [citations omitted.] This analysis of prejudice ‘is different from, and indeed less tolerant than,’ normal harmless error analysis, because jury misconduct threatens the structural integrity of the trial.’” (Id. at pp. 265-266.)

The test is less tolerant than a harmless error analysis, because “if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict. [Citation omitted.] A biased adjudicator is one of the few ‘structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards.’” [Emphasis added.] (In Re Carpenter (1995) 9 Cal.4th 634, 654; People v. Hensley, supra, 59 Cal.4th at 824.)

A concealed racial bias toward a party is both juror misconduct and grounds for reversal. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) In affirming the granting of new trial upon the grounds of juror misconduct, the California Supreme Court stated that when a jury is tainted by racial bias “…the impropriety of a single juror may be sufficient to destroy the integrity of the verdict…” [Emphasis added.] (Weathers, supra, at 5 Cal.3d 111.) Racist statements are judicially described as “the most destructive misconduct.” (Tapia v. Barker (1984) 160 Cal.App.3d 761, 766.)

The trial court is required to objectively review the entire record and evidence of bias in order to determine if the extraneous evidence was inherently and substantially likely to have biased the jury or whether a substantial likelihood of actual bias to any juror nonetheless arose based upon the totality of the circumstances surrounding the misconduct. (In re Carpenter, supra, 9 Cal.4th at 653-654.) If either is found, prejudice has not been rebutted. In Enyart v. City of Los Angeles, (1999) 76 Cal.App.4th 499, the Court held, “where it is reasonably possible that in the absence of misconduct the jury would have arrived at a different verdict, the moving party is entitled to a new trial.” (Id. at p. 508.)

The presumption of prejudice is an evidentiary aid to the parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of the case, yet who are unable to establish by a preponderance of the evidence that actual prejudice occurred. The law thus recognizes the substantial barrier to proof of prejudice which Evidence Code section 1150 erects, and it seeks to lower that barrier somewhat.

(Hasson, supra, 32 Cal.3d at 416.)

Misconduct based on juror introduction of outside expertise and consideration of unsupported “facts”

“The term ‘actual bias’ may include a state of mind resulting from a juror’s actually being influenced by extraneous information about a party.” (In re Boyette (2013) 56 Cal.4th 866, 899.) “Actual bias” in this context does not mean that a juror must dislike the defendant or harbor a desire to treat him unfairly.” (Ibid.) “Juror misconduct involving the receipt of extraneous information about a party or the case that was not part of the evidence received at trial creates a presumption that the defendant was prejudiced by the evidence and may establish juror bias.” (Ibid.)

“A juror…should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (In re Malone (1996) 12 Cal.4th 935, 963; see McDonald, supra, 71 Cal.App.4th at 263.) “Jurors cannot, without violation of their oath, communicate to fellow jurors information from sources outside the evidence in the case.” (Smith v. Covell (1980) 100 Cal.App.3d 947, 952.)

A “juror’s disclosure of extraneous information to other jurors tends to demonstrate that the juror intended the forbidden information to influence the verdict and strengthens the likelihood of bias.” (Nesler, supra, 16 Cal.4th at 587.)

In Jones v. Sieve, (1988) 203 Cal.App.3d 359, a medical malpractice action, the trial court’s ruling granting a new trial was based upon a single juror affidavit demonstrating that a juror had described to the jury her own personal experiences with preeclampsia and another juror had referred to an outside text for definitions. The Jones’s Court explained, “it was the conduct of the jurors that was at issue, not the content of any statements made,” because statements of the jurors can show substantial bias, prejudice and prejudgment of issues. (Id. at pp. 366-367.)

As another example, in the auto accident case, Young v. Brunicardi, (1986) 187 Cal.App.3d 1344, the trial court’s denial of a new-trial motion was reversed. Appellants had submitted jurors’ declarations evidencing that a retired policeman sitting as a juror instructed other jurors that the defendant was not negligent if he was not cited for a violation of the Vehicle Code and that the jurors had speculated on why a police report had not been introduced into evidence. Factors to consider regarding whether the presumption was rebutted is the strength of the evidence of misconduct, the nature and seriousness of the misconduct, and the probability of actual prejudice. (Id. at p. 1348.)

In McDonald, supra, juror misconduct was found based upon a juror’s statements during deliberations that crossing gates were unnecessary at a railway crossing because they would have been set off repeatedly due to the track sensors, based upon his previous experience in the industry. No evidence of sensors had been admitted at trial. He “should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a juror’s own claim to expertise or specialized knowledge of a matter at issue is misconduct.” (Id., 71 Cal.App.4th at p. 263.)

Interestingly, in a death penalty case, two jurors watched a movie about prison gangs, for the express purpose of acquiring information to use in reaching a penalty verdict. This was found, under the totality of the evidence, to raise a presumption that the jurors were unable to perform their duty not to prejudge the case and to render a decision based solely upon the evidence presented to the jury. (In re Boyette, supra, 54 Cal.4th at p. 904.) You should consider the applicability of this case when dealing with more unique instances of extrinsic evidence an argument requiring a “totality of the circumstances” be considered.

Other juror misconduct

In Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, a juror clapped her hands in agreement during closing argument, when correctly told they could reject the entire testimony of a witness if it determined that the witness had been willfully false in one material aspect thereof, pursuant to the jury instructions. While “[i]t is not misconduct for a juror to agree with a black-letter principle of law,” but “the clapping was tantamount to the formation of an opinion as to the credibility of a witness [prior to deliberation]. This was technical misconduct.” (Id. at pp. 1443, 1446.) This was not found to be prejudicial.

Note: The analysis of any juror misconduct addressed in the three preceding sections focuses on prejudice. “Prejudice exists if it is reasonably probable that a result more favorable to the complaining party would have been achieved in the absence of the misconduct.” (Hasson, supra, 32 Cal.3d at p. 415.) However, if the trial court (and appellate court) doesn’t want to find the misconduct prejudicial, then it will always emphasize, “This does not mean that every insignificant infraction of the rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside.” (Enyart, supra, 76 Cal.App.4th at p. 507.) “The jury system is fundamentally human, which is both a strength and a weakness. . . . Jurors are not automatons. They are imbued with human frailties as well as virtues. If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias. To demand theoretical perfection from every juror during the course of a trial is unrealistic.” (In re Carpenter, supra, 9 Cal.4th at pp. 654-655.)

• Irregularity in the proceedings, court order or abuse of discretion preventing fair trial and error in law

(§ 657(1) & (7))

Section 657(1) includes personal misconduct of the trial judge (Gay v. Torrance (1904) 145 Cal. 144, 149), evidentiary rulings (Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294), jury instructions (Soule v. General Motors (1994) Cal.App.4th 548, 580) or other orders if they prevented a party from having a fair trial. This also includes misconduct of opposing counsel. (Russell v. Dopp (1995) 36 Cal.App.4th 765, 775.)

Section 657(7) allows as grounds for new trial: “errors in law, occurring in trial and excepted to by the party making the application,” which was prejudicial (pursuant to case law). I have grouped these two sections together, because they can often overlap. Please note that if you are cited to one sub-section in your Notice of Intention to Move for New Trial, you should probably be safe and also include the other. This last sub-section requires that you have made an objection on the record, that it occurred at trial and that it caused prejudice, which does not necessarily encompass all errors of law by the court that deprived a party of a fair trial. Just be aware of the overlap and how your supporting evidence may qualify under these separate provisions.

• Insufficiency of the evidence and excessive or inadequate damages (§ 657(6))

 Section 657 states in relevant part: “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”

As to insufficiency of evidence, “the trial court may draw inferences opposed to those accepted by the jury and may thus resolve the conflicting inferences in favor of the moving party, for ‘It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.’” (Ballard v. Pacific Greyhound Lines (1946) 28 Cal.2d 357, 359, citation omitted.) “A decision is ‘against the law’ where the evidence is insufficient in law and without conflict on any material point,” so the Court need not weigh the evidence. (Marriage of Beilock (1978) 81 Cal.App.3d 713, 728.) It is not only the right, but the duty, of the trial judge to grant a new trial when the weight of the evidence is contrary to the finding of the jury. (Tice v. Kaiser Co. (1951) 102 Cal.App.2d 44, 46.)

The parties are entitled to the judgment of the jury in rendering a verdict, in the first instance; but upon a motion for new trial they are equally entitled to the independent judgment of the judge as to whether such verdict is supported by the evidence.

(Green v. Soule (1904) 145 Cal. 96, 103.)

In ruling on a motion for new trial based upon insufficiency of the evidence, “[t]he trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses.” (Holmes v. Southern Cal. Edison Co. (1947) 78 Cal.App.2d 43, 51, see also Wegner, Fairbank & Epstein, California Practice Guide/Civil Trials and Evidence, ¶ 18:171. (TRG 2011).) The judge’s role on a motion for a new trial includes the authority to consider the credibility of the witnesses and to draw inferences contrary to those drawn by the jury. (Valedez v. J.D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 512.) A new trial motion “is addressed to the judge’s sound discretion; [the judge] 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; on appeal, all presumptions are in favor of the order as against the verdict, and the reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of discretion is made to appear.” (Mercer v. Perez (1968) 68 Cal.2d 104, 112-113.)

In granting a new trial (even more than denying such a motion), the trial judge’s discretion is very broad and will be overturned rarely. (Romero v. Riggs (1994) 24 Cal.App.4th 117.) In Romero, the Court of Appeal affirmed a trial court’s order granting a new trial in favor of plaintiff in a medical malpractice case who had prevailed on negligence but lost on the issue of causation. Where the trial judge found overwhelming evidence that, had the defendant doctor complied with the standard of care the probabilities were that plaintiff would not have been injured, a new trial was proper to correct the jury’s error.

A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse. Hence given the latitude afforded a judge in new trial motions, orders granting new trials are ‘infrequently reversed.’

(Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.)

The California Supreme Court explained, “[t]he same statutory test applies in determining whether a new trial should be granted either on the ground of excessive or inadequate damages, or on the ground of insufficiency of the evidence.” (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 61.) “When a motion is made upon the ground of insufficient evidence, it ‘must be made on the minutes of the court.’ [fn. 4] The ‘minutes of the court’ include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken (Gov. Code, § 69844) and may also include depositions and exhibits admitted into evidence and the trial transcript.” (Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 839, fn. 4.)

The vast variety of and disparity between awards in other cases demonstrate that injuries can seldom be measured on the same scale. The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact. For a reviewing court to upset a jury’s factual determination on the basis of what other juries awarded to other plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of fact finding.

(Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 406, citing Bertero v. National General Corp. (1974) 13 Cal.3d 43, 65, fn. 12.)

A finding that the damages were excessive necessarily implies that that evidence did not justify the award. (Sinz v. Owens (1949) 33 Cal.2d 749, 760; Van Ostrum v. State of California (1957) 148 Cal.App.2d 1.) Reviewing a decision for excessive damages, the Supreme Court held:

While a reviewing court, in passing upon the question involved here, may consider amounts awarded in similar cases [citations omitted], in the final analysis the question in each case must be determined from its own peculiar facts and circumstances citation omitted] and it cannot be held as a matter of law that a verdict is excessive simply because the amount may be larger than is ordinarily allowed in such cases. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages.

(Daggett v. Atchison, Topeka & Santa Fe Railway Co. (1957) 48 Cal.2d 655, 666.)

If damages are not challenged as excessive by new trial motion before the trial court, then the issue is waived on appeal. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)

Required evidence and evidentiary standards

When it comes to evidence, remember first to get it! That means stop the jury, talk to them and get their contact information as soon as the verdict is rendered and the Court dismisses them. Have someone there to help you as need be. Whether you win or lose, do it. If you win and particularly if you win big, expect your opposition to file a motion for new trial and be prepared to get your juror affidavits both to obtain support for the verdict and to confirm the jurors’ testimony before approached by opposing counsel. If they refuse, at least make sure to let them know their right not to speak to either counsel or counsel’s investigators, whose calls they are likely to receive.

You should also remember that evidentiary standards are a bit upside down when it comes to juror affidavits. The basic premise of Evidence Code section 1150, subd. (a) forbids evidence “concerning the mental processes by which [the verdict] was determined.” (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) In other words, the jurors cannot express in their affidavits why they voted in the matter that they did or if they personally believed or didn’t believe specific evidence. On the other hand, evidence is admissible as to what they stated and their behavior, including the timing and results of voting, disputes between jurors, jurors bringing evidence into the juror room, etc.

The California Supreme Court has held:

[J]urors may testify to ‘overt acts’ − that is, such statements, conduct, conditions, or events as are ‘open to sight, hearing, and the other senses and thus subject to corroboration’−but may not testify to ‘the subjective reasoning processes of the individual juror....’ [Citation omitted.] Among the overt acts that are admissible and to which jurors are competent to testify are statements. Section 1150, subdivision (a), expressly allows proof of ‘statements made ... either within or without the jury room....’

(In re Stankewitz (1985) 40 Cal.3d 391, 398; see also, In re Hamilton (1999) 20 Cal.4th 273, 295, and People v. Hutchinson (1969) 71 Cal.2d 342, 349-350.)

“Consistent with Stankewitz, several courts have held evidence of a jury discussion on an improper topic to be admissible as an ‘overt act,’ provided the evidence is not directed at the subjective reasoning processes of the individual juror.” (Perez, supra, 4 Cal.App.4th at p. 907.)

In Tapia v. Barker, (1984) 160 Cal.App.3d 761, 765, the juror affidavit noted, “I can’t remember the names of the people who said these things, but I do remember that it was said that he shouldn’t be awarded very much money because a Mexican wouldn’t know how to handle it, that these people shouldn’t be allowed to come up here and make big claims and then take the money back to Mexico, and that Mexican men are lazy and unfaithful.” This evidence was found to be properly introduced evidence of juror misconduct and an insidious discussion of race.

Where the juror affidavit contains both admissible statements (e.g., those things that the juror heard) and inadmissible statements (such as subjective reasoning), the admissible portions will be considered by the Court. (Lankster v. Alpha Betz Co., (1993) 15 Cal.App.4th 678, 681 fn. 1.)

In addition to juror affidavits, don’t forget counsel’s declaration when necessary. If moving for mistrial on the basis of juror misconduct, a “no knowledge” declaration must be filed by counsel and the moving party (stating that he/she was ignorant of the jury misconduct prior to deliberation). (Weathers v. Kaiser Found. Hospitals (1971) 5 Cal.3d 98, 103.) This is only required if the misconduct is alleged to have occurred before the jury adjourned to deliberate. (Krouse v. Graham (1977) 19 Cal.3d 59, 82.)

When reference is made to any reported proceeding of the trial, then a certified copy of the proceeding should be provided. (§ 660: “On the hearing of such motion, reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of such report or if there be no such report or certified transcript, to such proceedings occurring at the trial as are within the recollection of the judge.”)

Additional technicalities

The motion for a new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court. (§ 661.)

As noted above, the court’s jurisdiction to rule upon the Motion expires 60 days from the mailing of notice of entry of judgment by the clerk or a party. (§ 660.) If not determined within that period, it is denied by operation of law. (§ 660.) However, “determined” the motion does not mean the court merely stated its ruling at a hearing. It requires that either: (1.) The minute order is entered in the minutes with the ruling; or (2.) The formal order is signed by the judge and filed with the court. (§ 660.) The judge is required to prepare the statement of reasons including the grounds for granting the new trial. (§ 657.) It must be prepared by the court and not by counsel and may not merely state it is incorporating reasons set forth in moving papers. (Estate of Sheldon (1977) 75 Cal.App.3d 364, 370; Devine v. Murrieta (1975) 49 Cal.App.3d 855, 860.) For purposes of appeal, I strongly suggest that you do whatever it takes to get the court to comply with this requirement (e.g., expediting and providing transcript of argument for the court to attach and incorporate in brief order, see Twedt v. Franklin (2003) 109 Cal.App.4th 413, 419). Otherwise, the burden of persuasion on appeal is shifted to the party who won a new trial. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 641.)