Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. SC085437. Ernest M. Hiroshige, Judge.
Law Offices of Thomas J. Weiss and Thomas J. Weiss for Plaintiffs and Appellants.
Russ, August & Kabat, Jules L. Kabat and Robert E. Satterthwaite for Defendant and Appellant.
CHAVEZ, J.
1124 Marilyn Drive Development, LLC and Tony Neman (Neman, collectively plaintiffs) appeal from two orders of the trial court: an order granting a new trial, and an order exonerating the bond that Shahram Elyaszadeh (Elyaszadeh) posted to support and perfect an appeal from the $2.6 million judgment against him. Elyaszadeh cross-appeals from the underlying judgment.
We reverse the order granting a new trial. We vacate the court’s orders declaring Elyaszadeh’s other posttrial motions to be moot and authorizing exoneration of the bond. The matter is remanded for further proceedings.
CONTENTIONS
Plaintiffs contend that the trial court lacked the power to rule on Elyaszadeh’s motion for a new trial under Code of Civil Procedure section 660, because the motion was denied by operation of law 60 days after Elyaszadeh filed his notice of intent to move for a new trial. Plaintiffs further contend that the trial court erred in exonerating the bond because: (1) the motion for a new trial did not serve to vacate the underlying damages verdict; (2) Elyaszadeh’s appeal from the underlying judgment remains before this court, thus the bond given in connection with the appeal remains effective; and (3) the bond was improperly exonerated by ex parte application.
Elyaszadeh contends that neither the jury findings of liability nor the jury’s damages verdict are permissibly supported by law or fact. He also argues that the trial court’s granting of his motion for a new trial was proper. In the event that it is determined that the trial court exceeded its jurisdiction in granting the motion, Elyaszadeh argues that we should reverse the trial court’s dismissal of his motions to vacate the verdict and for judgment notwithstanding the verdict. Elyaszadeh further contends that the trial court erred in failing to issue a statement of decision addressing the issues adjudicated by the court.
FACTUAL BACKGROUND
1. The Loan
Neman was involved in the construction of a residence at 1124 Marilyn Drive in Beverly Hills. After defaulting on loans from prior secured lenders, Neman borrowed money from Elyaszadeh to cure the defaults. The loan agreement, dated October 17, 2002, was a printed promissory note secured by deed of trust which set forth Neman’s loan obligation for $1,660,000. In addition, the parties entered into a handwritten agreement of Neman’s interest rate obligation to Elyaszadeh if Neman defaulted to Elyaszadeh. Neman described this second document as a “memorandum of understanding” between the parties, because, in his view, the terms and conditions of the loan had been constantly changing during the months leading up to the signing of the document. The document was undated, but Neman testified that it was entered into in approximately July or August of 2002.
According to Neman’s testimony, the handwritten document contained the language “total pay for – for year; thereafter, 55,000 per month if loan goes over 12 months.” Neman testified that he did not agree to pay Elyaszadeh the $55,000 per month if the loan went over 12 months and that he did not see this language on the document until several years later, when the matter was in litigation.
This portion of the document was written in Farsi.
2. The Lawsuit and Verdict
When Elyaszadeh attempted to foreclose on the loan, plaintiffs sued him for contract and tort claims. On May 24, 2006, the matter went to trial. After the presentation of evidence and arguments of counsel, plaintiffs’ causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and fraud went to the jury. The jury was given a special verdict form. In sum, the jury found: (1) that Elyaszadeh, without Neman’s consent, added the words “Total payoff for first year thereafter $55,000 per month if loan goes over 12 months” to the handwritten memorandum of understanding; (2) that the total interest rate in the promissory note, described as the “total interest rate otherwise charged hereunder plus seven percent (7%),” was equal to 0 percent plus 7 percent, not 66 percent plus 7 percent; (3) that Elyaszadeh breached the loan agreement by charging excessive amounts in his recorded notice of sale and that plaintiffs suffered damages because of that breach of contract; (4) that Elyaszadeh had fraudulent intent when he altered the handwritten memorandum of understanding and that plaintiffs suffered economic damages as a result; and (5) that, under the clear and convincing evidence standard, Elyaszadeh acted with oppression, malice or fraud.
The jury awarded plaintiffs $1,171,853 on the breach of contract claim, $2,280,148 on the fraud claim, and punitive damages of $350,000. On September 18, 2006, judgment was entered on the jury verdict in the amount of $2,280,148 plus $350,000 in punitive damages, for a total award of $2,630,148.
3. The Posttrial Motions
On October 3, 2006, Elyaszadeh timely filed a notice of intent to move for new trial, for judgment notwithstanding the verdict, and to amend/set aside the verdict. In these posttrial motions, Elyaszadeh argued that the verdict and judgment contravened court rulings, law and evidence; that the verdict and judgment could not withstand the trial court’s independent weighing and scrutiny of the evidence; and that the court did not set forth its adjudication of issues in a statement of decision.
The initial hearing date on Elyaszadeh’s motions was November 6, 2006. All parties appeared in court on that date to argue the posttrial motions, but the judge did not take the bench for the hearing and, on the court’s own motion, the hearing was continued to November 16, 2006. On November 16, 2006, all parties again appeared in court to argue the posttrial motions, but the judge again did not take the bench and continued the hearing to December 5, 2006.
At the December 5, 2006 hearing, all parties again appeared in court to argue the posttrial motions. The trial court provided a tentative order denying Elyaszadeh’s new trial motion as to the jury’s finding of liability but granting the motion as to damages. During oral argument, plaintiffs contended that the 60-day period set forth in Code of Civil Procedure section 660 (section 660 or § 660), had run the preceding day, therefore Elyaszadeh’s new trial motion had been denied by operation of law. The trial court took the matter under submission and ordered additional briefing on the 60-day period set forth in section 660. The parties filed their briefs on December 11, 2006. On December 15, 2006, the trial court issued its ruling on the posttrial motions, granting the motion for new trial as to damages and declaring the other posttrial motions moot.
In support of its ruling, the trial court declared:
“The Court finds that there was insufficient evidence to justify the verdict as to damages and that excessive damages as to contract, tort and punitive damages were awarded by the jury. The Court has weighed the evidence and the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict as to said damages. . . . [¶] The court finds that the $2,280,148.00 Fraud damages, the $1,171,853.00 contract damages and the punitive damages contravene the Courts rulings, law and evidence.”
On the question of whether section 660 barred the court’s ruling on the new trial motion, the court stated: “The Court is convinced per the Defense papers and the citation to Davcon, Inc. v. Roberts & Morgan, 110 Cal.App.4th, 1355, 1362 (2003) that the 60 day period to determine a new trial motion can be tolled for good cause. Therefore the Court finds that the fact that due to the Court’s illness (a cold) and the Court’s congested calendar the Court was not able to rule on previous occasions on the Motion for New Trial and those reasons are good cause to . . . toll the 60 day time period to determine the Motion and therefore this ruling is timely as a matter of law.”
4. The Bond
On September 29, 2006, pursuant to Code of Civil Procedure section 917.1, Elyaszadeh caused International Fidelity Insurance Company (surety) to post a $3,945,222 bond. Elyaszadeh posted the bond in order to stay plaintiffs’ attempted enforcement of the monetary judgment pending the filing of Elyaszadeh’s posttrial motions. The bond also perfected Elyaszadeh’s cross-appeal of the underlying judgment against him, which was filed on January 25, 2007.
On February 9, 2007, Elyaszadeh filed an ex parte application to obtain an order authorizing exoneration of the bond. Elyaszadeh argued that because the trial court granted his motion for new trial as to damages, there was currently no outstanding monetary judgment against him. Consequently, he argued, there was no monetary judgment to be bonded, and the bond should be exonerated. Plaintiffs opposed the ex parte application on the grounds that the ex parte application was a procedurally improper means to obtain an order authorizing exoneration of the bond; that notwithstanding the court’s order for new trial as to damages, the judgment still stood as to liability; and that Elyaszadeh’s appeal of the underlying judgment was still being maintained, therefore the criteria for release of the bond had not been met.
On February 16, 2007, the trial court issued an order granting Elyaszadeh’s application for authorization to release the bond. The court stated: “On December 15, 2006, this court vacated a previous monetary judgment against [Elyaszadeh] and ordered a new trial as to damages. By that date, there was no existing judgment by this court ordering [Elyaszadeh] to pay money that necessitated the posting of a bond. CCP § 917.1 only requires that an undertaking be posted in order to perfect appeal for the ‘payment of money,’ and that the effect of such an undertaking is to secure payment by ‘the party ordered to pay.’ (CCP § 917.1, subds. (a), (b).) Here, there is no basis for finding that the bond remains necessary when no existing judgment requires [Elyaszadeh] to pay any sum.”
Despite the trial court’s ruling, the surety informed Elyaszadeh that it would not release the collateral and cancel the bond until another order was issued including the following specific language: “It is ordered that the Undertaking on Appeal, Bond No. 430532, issued by International Fidelity Insurance Company, as surety for defendant Shahram Elyaszadeh is hereby exonerated and that the surety is hereby released and discharged from any obligation therein.” Elyaszadeh submitted the surety’s required language in a revised proposed order to the trial court. Plaintiffs opposed the trial court’s issuance of the revised order, arguing that plaintiffs’ appeal of the February 16, 2007 order authorizing release of the bond divested the trial court of jurisdiction to make the revised order. Citing Code of Civil Procedure section 916, subdivision (a) (“the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein”) the trial court ruled that, because an appeal of the order had been perfected, it could no longer modify the order.
On January 5, 2007, plaintiffs appealed the trial court’s December 15, 2006 order granting Elyaszadeh a new trial as to damages. On January 25, 2007, Elyaszadeh filed a cross-appeal of the underlying judgment. On February 16, 2007, plaintiffs appealed the trial court’s order of the same date granting Elyaszadeh’s application for exoneration of the bond. On June 14, 2007, this court ordered the appeals consolidated.
DISCUSSION
I. The Motion for New Trial
A. Standard of Review
Plaintiffs present a question of law: whether the 60-day time limit set forth in section 660 renders the trial court’s new trial order, which was made after the expiration of that 60-day period, invalid. As a question of statutory construction, this issue is subject to de novo review by this court. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.)
Elyaszadeh argues that we should apply the abuse of discretion standard in reviewing the trial court’s decision to grant a new trial, with particularly heightened deference to the trial court. (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1800.) However, we are not reviewing the rationale for the trial court’s order granting a new trial, only the question of whether it is a valid order under the governing statutes. Therefore, we decline to apply the abuse of discretion standard.
B. Section 660’s 60-Day Limitation on the Trial Court’s Power
Section 660 provides, in pertinent part:
“Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 644.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within such period as thus extended, the effect shall be a denial of the motion without further order of the court.”
Elyaszadeh’s notice of intention to move for a new trial was filed on October 3, 2006. Under Code of Civil Procedure section 12a, the final deadline of December 2, 2006, a Saturday, was extended to and included December 4, 2006, a Monday. Thus, at the latest, the 60-day period described under section 660 expired Monday, December 4, 2006. The computation of the 60-day period is undisputed. The trial court signed the order granting a new trial on damages on December 15, 2006, and the order was entered as a minute order on December 18, 2006.
Section 660’s 60-day time limit on the trial court’s power to rule on a new trial motion is “mandatory and jurisdictional.” (Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 517-518, citing Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56, 64 & Siegal v. Superior Court (1968) 68 Cal.2d 97, 101; Jones v. Sieve (1988) 203 Cal.App.3d 359, 369.) “The period may not be enlarged under the rubric of mistake, inadvertence, surprise, excusable neglect under [Code of Civil Procedure] section 473 or by means of a nunc pro tunc order. [Citation]. ‘[A]n order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court’s jurisdiction and void.’ [Citation].” (Dodge, supra, at p. 518.)
Despite the extensive authority declaring the 60-day time limit to be mandatory and jurisdictional, Elyaszadeh argues that we should uphold the order granting the new trial. First, he argues that it is “unassailable” that his post trial motions were timely. However, section 660 makes no exceptions for motions that are timely filed. The statute speaks only to the court’s power to rule on the motion, and that power expired on December 4, 2006. Elyaszadeh argues that he repeatedly appeared in court only to face repeated last minute court ordered continuances. He claims that in the face of these continuances, he could not then “march into chambers and make the judge take the bench.” However, such action was not necessary. Elyaszadeh could have filed an ex parte application seeking to move the hearing date to an earlier date. In the face of the repeated continuances, it was up to Elyaszadeh to appropriately draw the court’s attention to the 60-day time limit on its powers to rule on the new trial motion in order to preserve his rights. (See Dodge v. Superior Court, supra, 77 Cal.App.4th at p. 524 [“even if the judge was ill . . . counsel might have attempted to appear ex parte . . . to advise the judge it was his last day to rule”].)
At oral argument, Elyaszadeh’s counsel indicated that he believed that there was an additional hearing date scheduled between November 16, 2006, and December 5, 2006. We reviewed the superior court file to determine the exact events leading up to the December 5, 2006 hearing. The court’s minute order of November 6, 2006, continued the matter to November 16, 2006. The court’s minute order of November 16, 2006, continued the matter to December 5, 2006. On our own motion, we take judicial notice of these minute orders. (Evid. Code, § 452, subd. (d).) The two-week time period between November 16, 2006, and the December 4, 2006 deadline for the trial court to rule on the motion provided ample time for Elyaszadeh to draw the time limit to the court’s attention and seek an earlier hearing date.
C. The 60-Day Period Was Not Tolled
Elyaszadeh argues that the trial court correctly determined that its illness and inability to rule constituted good cause sufficient to toll or suspend the 60-day period. In support of this argument, Elyaszadeh cites three cases. The first, also cited by the court in support of its decision to rule on the motion beyond the 60-day period, is Davcon, Inc. v. Roberts & Morgan, supra, 110 Cal.App.4th 1355 (Davcon). Davcon involved a motion for judgment notwithstanding the verdict (JNOV) and motion for new trial. The appellant argued that the trial court lacked the power to rule on the JNOV and new trial motions because the hearing was more than 60 days from the date the motions were filed. The respondent argued that because a peremptory challenge was filed the day before the hearing on the motions, the 60-day period was tolled. The Court of Appeal disagreed, finding that because a disqualification request takes effect instantaneously and irrevocably, there was “no period of suspension to toll the period to act on a judgment notwithstanding the verdict or new trial motion.” (Id. at p. 1360.)
The time limit set forth in section 660 also applies to JNOV motions, which are governed by Code of Civil Procedure section 629. Section 629 provides that the court may rule on a JNOV motion “before the expiration of its power to rule on a motion for a new trial.”
Elyaszadeh urges us to find that implicit in the Davcon decision is “the logical inference” that if the delay is not caused by the moving party, the 60 days should be tolled. We find no support for this inference in the Davcon decision. Elyaszadeh points out that the dissent in Davcon argued that “the 60-day period must be suspended or tolled, where to do otherwise ‘would lead to absurdity.’ [Citation.]” (Davcon, supra, 110 Cal.App.4th at p. 1371, citing Collins v. Nelson (1940) 41 Cal.App.2d 107, 112.) However, the dissent’s position that the 60-day period should have been tolled was based on its view that the plaintiff’s peremptory challenge, filed one day before the judge was scheduled to rule on the posttrial motions, was an abuse of the peremptory challenge procedure, with the “practical, if not intended, effect of delaying the hearing” on defendant’s posttrial motions. (Davcon, at p. 1370.) Such is not the situation before us, where Neman had no part in causing the delays which resulted in the trial court losing its power to rule on the motion for new trial.
Next, Elyaszadeh cites Collins v. Nelson, supra, 41 Cal.App.2d 107 (Collins). This 70-year-old case involved a situation similar to that present in Davcon. In Collins, the plaintiff filed a motion to disqualify the trial judge under former Code of Civil Procedure section 170 on January 13, 1937, which was the day set for hearing on the defendant’s motion for new trial. The motion was pending from that day until it was disposed of on September 1, 1938. The Court of Appeal held that the power of the trial court was suspended during that time, and had to be excluded when counting the 60-day period for ruling on the new trial motion. (Collins, supra, at p. 112.) The court explained, “[t]o hold otherwise would lead to an absurdity, because a party resisting a motion for new trial could defeat it merely by resorting to the proceedings named in [former] section 170 of the Code of Civil Procedure in the determination of which motion to disqualify the trial judge more than 60 days might reasonably be expected to elapse, especially if an appeal were taken, as in the instant case.” (Collins, at pp. 112-113.) However, as explained in Davcon, former section 170 was repealed in 1984. The former statute provided a different procedure for disqualification of a trial judge, which allowed both counsel and the challenged judge time to present their views. “As Collins held, the time spent in deciding whether the judge was disqualified had to be excluded from the time to decide a new trial motion in order to prevent abuse.” (Davcon, supra, 110 Cal.App.4th at p. 1360.) Under the current peremptory challenge procedure, there is no further period in which disqualification remains pending. Therefore in Davcon, unlike Collins, there was no tolling of the time during which the trial court had the power to decide the motion for new trial. (Davcon, at p. 1361.)
Thus, the difference between the outcomes of Davcon and Collins lies in the procedure used to determine the effect of a peremptory challenge and the question of whether that procedure served to toll the running of the 60-day period set forth in section 660. Here, the hearing was continued on the court’s motion because of illness and a congested calendar – not a peremptory challenge. Neither Davcon nor Collins presents authority for the tolling of the 60-day period under the circumstances before us.
Finally, Elyaszadeh cites Ward v. Levin (1984) 161 Cal.App.3d 1026, 1035 (Ward), for the proposition that a timely acting party cannot be prejudiced by “causes beyond his control” and where a matter is “postponed by the court.” In Ward, the trial court dismissed plaintiff’s civil action for failing to bring it to trial within five years after it was filed, as required under former Code of Civil Procedure section 583, subdivision (b). The complaint was filed on February 7, 1977. On November 16, 1981, the case was referred to arbitration. On June 17, 1982, plaintiff filed a request for a trial de novo, which was finally set for trial on January 5, 1983. On December 20, 1982, defendants brought their first motion to dismiss for failure to prosecute under former Code of Civil Procedure section 583, which was denied. (Ward, supra, at pp. 1030-1031.) By consent of the parties, the trial was continued to April 14, 1983, at which time the trial was trailed on the court’s own motion until a courtroom became available. On May 2, 1983, defendants filed a second motion to dismiss under section 583, subdivision (b), which was granted. (Ibid.) Under these circumstances, the Court of Appeal held that the defendants’ conduct in requesting continuance of the trial estopped defendants from seeking dismissal under the five-year provision in former section 583 before April 14, 1983. (Ward, at p. 1034.) However, because on April 14, 1983, the trial was trailed on the court’s own motion to a date when a courtroom became available, the Court of Appeal invoked the principle that “the five-year dismissal provision of section 583 is inapplicable where it would be impossible, impracticable or futile due to causes beyond a party’s control to bring an action to trial within the five-year period. [Citation.]” (Id. at pp. 1034-1035.) Elyaszadeh has provided no authority that this principle, applicable to the five-year limitation set forth in former section 583 of the Code of Civil Procedure, is properly applied under section 660. In fact, Dodge v. Superior Court, supra, 77 Cal.App.4th at page 524, suggests the opposite: “[W]e do not believe that equitable relief is available. . . . [f]airness has little to do with it. With jurisdictional deadlines, the rule, like the song, is what a difference a day makes.”
Because controlling authority directs that the 60-day time limit is mandatory and jurisdictional (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., supra, 15 Cal.4th at p. 64; Siegal v. Superior Court, supra, 68 Cal.2d at p. 101), and because Elyaszadeh has provided no pertinent authority to the contrary, we find that the trial court’s order granting Elyaszadeh a new trial on damages exceeded the trial court’s power. The trial court’s power to grant the motion for new trial expired on December 4, 2006, at which time the law imposed “a denial of the motion without further order of the court.” (§ 660.) We therefore find that Elyaszadeh’s new trial motion was denied by operation of law on December 4, 2006. The judgment entered on September 18, 2006, is therefore reinstated.
Because we reverse the trial court’s order on the grounds that the trial court lacked the power to grant the motion at the time of its ruling, we do not address the merits of the trial court’s decision. Therefore, we will not discuss the parties’ competing arguments as to whether the trial court’s decision was supportable under the circumstances before it. (See Dodge v. Superior Court, supra, 77 Cal.App.4th at p. 524 [equitable relief not available].)
II. The Bond Order
The second issue raised by plaintiffs is the propriety of the trial court’s order authorizing exoneration of the bond posted by Elyaszadeh. Plaintiffs argue that their appeal of the new trial order stayed its vacating effect, citing Spencer v. Nelson (1947) 30 Cal.2d 162, 164. Plaintiffs further argue that even if the new trial order were not void, the exoneration would be erroneous because the judgment entered September 18, 2006, still stands as a judgment of liability and fraud. Finally, plaintiffs argue that Elyaszadeh’s ex parte application to authorize release of the bond was procedurally improper. In response, Elyaszadeh argues that because the court’s new trial order as to damages had the effect of vacating the entire judgment, the trial court properly authorized exoneration of the bond.
We find that we need not address these arguments because our reversal of the trial court’s order granting a new trial on damages requires us to vacate the order authorizing exoneration of the bond. In authorizing exoneration of the bond, the trial court referred to its December 15, 2006 order vacating the monetary judgment against Elyaszadeh and ordering a new trial as to damages. As the basis for its decision to allow release of the bond, the trial court stated: “[T]here is no basis for finding that the bond remains necessary when no existing judgment requires [Elyaszadeh] to pay any sum.”
Because we reverse the trial court’s December 15, 2006 order vacating the monetary judgment and ordering a new trial as to damages, the prior judgment against Elyaszadeh is reinstated. (Davcon, supra, 110 Cal.App.4th at pp. 1366-1367.) Because the monetary judgment is valid, the rationale for allowing exoneration of the bond no longer exists, and the order authorizing exoneration of the bond must be vacated.
III. Elyaszadeh’s JNOV Motion and Motion to Set Aside the Verdict
Elyaszadeh argues that, in the event that we reverse the trial court’s order granting a partial new trial, we should reverse the trial court’s dismissal of Elyaszadeh’s motions to vacate the verdict and for judgment notwithstanding the verdict. The trial court stated that it found these motions to be moot in light of its ruling on Elyaszadeh’s motion for new trial. However, Elyaszadeh argues that the relief sought in each of these motions was substantively the same. Because the trial judge found that “there was insufficient evidence to justify the verdict as to damages and that excessive damages as to contract, tort and punitive damages were awarded by the jury,” Elyaszadeh argues that in order to effect equity and justice these two motions must be reconsidered and granted.
Plaintiffs argue that because the trial court specifically upheld the jury’s finding of liability, the JNOV motion was effectively denied. Plaintiffs point to Davcon, which addressed the issue of “whether the judgment on remand can be repeatedly attacked by new motions for judgment notwithstanding the verdict and new trial until the procedural issues are eliminated.” (Davcon, supra, 110 Cal.App.4th at p. 1367.) The Davcon court determined that such repeated motions were improper, and that when an order granting a new trial is reversed, the successful party is entitled to have judgment entered on the jury’s verdict without further proceedings. (Id. at p. 1368.)
In his reply brief, Elyaszadeh clarifies that he is not seeking to bring new posttrial motions, but simply to have his previous motions reinstated. In reversing the trial court’s order granting a partial new trial, we also reverse the trial court’s order declaring Elyaszadeh’s other posttrial motions to be moot. We do not express an opinion as to whether the trial court should grant or deny those motions, but leave that decision to the trial court. (See Code Civ. Proc., §§ 629, 660.)
Elyaszadeh appears to acknowledge, as he must, that JNOV motions are subject to the same time constraints as motions for new trial. Therefore, the trial court no longer has the power to rule on Elyaszadeh’s JNOV motion. However, Elyaszadeh argues that his motion to set aside the verdict is “simply not subject to any time period.” We need not reach this issue as it is not before us, but, as set forth above, we vacate the order declaring the motion to be moot. Further, because Elyaszadeh’s motion to set aside the verdict may still be viable, we do not address Elyaszadeh’s substantive appeal of the judgment at this time.
IV. The Trial Court’s Failure to Issue a Statement of Decision
Code of Civil Procedure section 632 (section 632 or § 632), directs that “upon the trial of a question of fact by the court . . . [t]he court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” The statement of decision is required to be in writing unless the parties agree otherwise; however, if the court trial is concluded in one calendar day or in less than eight hours over more than one day, the statement of decision may be made orally on the record. (§ 632.) When a party makes a timely request for a statement of decision upon the trial of a question of fact by the court, the court’s failure to prepare such a statement is reversible error. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 282.)
Elyaszadeh claims that the trial court made decisions involving the weighing of evidence. Among other things, Elyaszadeh claims that during trial, based upon plaintiffs’ evidence or offers of proof, the court determined that: (1) the printed loan documents are not integrated; (2) the loan has a 12-month term, 12-month maturity date, and so was due in October 2003; (3) the loan was not amended orally or by hand to alter the 12-month term and 12-month maturity date, and so was due in October 2003; (4) plaintiffs cannot seek or recover purported lost sale or interference with sale damages; and (5) plaintiffs’ claimed carrying cost damages may only be calculated, at whatever interest rate, on the $1,000,000 principal amount of the loan and not on the $1,660,000 total amount of principal and interest. Elyaszadeh claims that, despite repeated requests by Elyaszadeh, the trial court issued no statement of decision on the issues adjudicated by the court.
No party has raised any question as to whether Elyaszadeh’s requests for a statement of decision conformed with section 632 as to timeliness and content. We therefore assume that Elyaszadeh’s requests met the requirements of the statute.
We find that Elyaszadeh has failed to show that the trial court issued any ruling on a question of fact which required the court to issue a written statement of decision under section 632. Elyaszadeh has failed to point to any specific court trial of any factual issue which involved more than one calendar day or eight hours of the court’s time. Further, Elyaszadeh has provided no citations to the transcript to support his assertions that the trial court made such factual findings. Elyaszadeh’s citations to the text of his posttrial motions, which make the same arguments as presented in this appeal, are insufficient. Therefore, on the record before us, we decline to find that the trial court’s failure to issue a statement of decision constitutes reversible error.
Elyaszadeh has provided some citations to the trial transcript. However, these citations do not support his argument that the trial court must issue a statement of decision. First, Elyaszadeh cites to extensive discussion of the trial court’s decision to exclude testimony regarding a separate oral agreement under the parol evidence rule. This ruling did not involve a question of fact but constituted an evidentiary decision, not subject to section 632. Elyaszadeh also cites to the trial court’s statement confirming its ruling that the principal amount of the loan was $1,000,000. Because there is no indication that a court trial of this fact lasted more than one court day or eight hours, the court’s oral ruling is sufficient.
However, Elyaszadeh’s request for a statement of decision was included in his posttrial motions, which were declared moot by the trial court when it granted the motion for new trial. Because the trial court’s order declaring these motions to be moot has been vacated, the trial court should reconsider on remand whether it made any decision on a question of fact warranting a written or oral statement of decision under section 632.
DISPOSITION
The order granting a new trial is reversed, and the judgment reinstated. The orders declaring Elyaszadeh’s other posttrial motions to be moot, and authorizing exoneration of the bond, are vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion. Each party shall bear its own costs of appeal.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.