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AValon RF, Inc. v. Wifi Wireless, Inc.

California Court of Appeals, Fourth District, First Division
Feb 24, 2011
No. D056052 (Cal. Ct. App. Feb. 24, 2011)

Opinion


AVALON RF, INC., Plaintiff and Appellant, v. WIFI WIRELESS, INC., Defendant and Respondent. D056052 California Court of Appeal, Fourth District, First Division February 24, 2011

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. GIC 868507, Richard S. Whitney, Judge.

McCONNELL, P. J.

AValon RF, Inc. (AValon) appeals an order granting WiFi Wireless, Inc.'s (WiFi) motion for a new trial, entered after a jury found in favor of AValon on its complaint for breach of contract, trade libel and related counts, and awarded it $3.2 million in damages. The court determined AValon's attorney willfully elicited irrelevant and inflammatory testimony from a witness that was intended to bias the jury against WiFi, and the court's curative instruction was insufficient to rectify the problem. The gist of the questioning and testimony was that WiFi took financial advantage of the witness when he emerged from a coma. The court cited subdivisions 1 and 3 of Code of Civil Procedure section 657, which, respectively, allow a new trial when there is an irregularity in the proceedings, or an accident or surprise that ordinary prudence could not have guarded against.

"On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion...." (Code Civ. Proc., § 657.) Generally, an abuse of discretion standard of review applies to the court's ruling on a new trial motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859-860.) " ' " '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. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. [Citations.]' [Citation.]" ' [Citation.] ' " 'This court makes all presumptions in favor of the order..., and... reverse[s] only if manifest abuse of discretion is shown' " " (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159.)

We cannot say there was any abuse of discretion. In its reply brief, AValon concedes its opening brief relies on overruled and inapplicable opinions, and the brief is "insufficient to discuss the legal issues posed by the current case." AValon also concedes in its reply brief that the record is inadequate because it does not even include a transcription of the relevant witness questioning by its attorney. AValon states that it intended to move to augment the record, but its "new appellate counsel has been unable to obtain a transcript of the alleged misconduct, despite diligent requests to obtain it. Likewise, counsel has been unable to review the entire superior court file, because several volumes have been missing for some time."

The appellant's appendix contains an excerpt of the attorney questioning and witness testimony, attached to AValon's motion for a new trial, but even if that were sufficient evidence of the misconduct the record is inadequate. Without a full transcript of trial proceedings we cannot possibly determine what effect the misconduct may have had on the jury. For instance, we cannot tell whether the evidence in AValon's favor was so strong that misconduct likely did not influence the jury's verdict. As the court noted in its order, "While the Court gave a timely and exhaustive curative instruction, in the Court's opinion, the instruction had minimal impact based upon the jury's award and finding of punitive conduct against defendant." Without any record of trial proceedings, there is no ground on which to challenge the court's finding.

After the completion of appellate briefing, and mere weeks before oral argument was scheduled, AValon moved to augment the record with the portion of the reporter's transcript pertaining to its attorney's improper questioning. We denied the motion, and in any event, even with augmentation the record would remain inadequate to determine the prejudice issue.

DISPOSITION

The order is affirmed. WiFi is entitled to costs on appeal.

WE CONCUR: NARES, J., McINTYRE, J.


Summaries of

AValon RF, Inc. v. Wifi Wireless, Inc.

California Court of Appeals, Fourth District, First Division
Feb 24, 2011
No. D056052 (Cal. Ct. App. Feb. 24, 2011)
Case details for

AValon RF, Inc. v. Wifi Wireless, Inc.

Case Details

Full title:AVALON RF, INC., Plaintiff and Appellant, v. WIFI WIRELESS, INC.…

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 24, 2011

Citations

No. D056052 (Cal. Ct. App. Feb. 24, 2011)