Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. LC 071519. Leon S. Kaplan, Judge.
Michael Maguire & Associates, Mark R.Weiner & Associates, and Kathryn Albarian for Defendants and Appellants Eileen A. Moore and John Moore.
Streeter & Nangano, and John W. Streeter; Aspell & Lopez for Plaintiff and Respondent.
ROTHSCHILD, J.
Henry Barrios sued Eileen Moore to recover damages allegedly caused by a car accident. The jury returned a verdict in favor of Moore, but the trial court granted Barrios’ motion for new trial on the ground of insufficiency of the evidence. Moore appeals, and we affirm.
BACKGROUND
At all relevant times, Barrios was employed as a truck driver. On July 7, 2003, when Barrios was standing on the lift gate of a 27-foot trailer he had been hauling, a car driven by Moore collided with Barrios’ truck. Barrios sued Moore for negligence, alleging that he was injured in the collision. Barrios’ claim was tried to a jury, which found by special verdict that Moore’s negligence was not a substantial factor in causing harm to Barrios. The trial court entered judgment in favor of Moore.
Barrios’ complaint also named John Moore as a defendant, but Barrios voluntarily dismissed his claim against John Moore at the start of trial. Unless otherwise indicated, in this opinion we use “Moore” to refer to Eileen Moore alone.
Barrios timely filed a motion for new trial. His notice of motion listed all of the grounds permitted by statute and stated that the motion would be based on “some or all” of them. His memorandum of points and authorities in support of the motion, however, argued only that the verdict was not supported by sufficient evidence, because Moore “admitted” her negligence and it was “uncontroverted” that Barrios had sustained some injuries as a result of the collision.
The trial court granted Barrios’ motion. The relevant portion of the court’s minute order states: “The Motion is granted. Judgment entered on September 28, 2006 is vacated. [¶] The jury answered the special verdict for question Number 1 as follows: [¶] ‘Was Eileen Moore’s negligence a substantial factor in causing harm to Henry Barrios? NO’ [¶] Defendant concedes that she was negligent. The evidence is undisputed that some damages were sustained by the plaintiff. [¶] Therefore, the judgment is contrary to the evidence and the law.”
Eileen and John Moore timely appealed from the order granting Barrios’ motion for new trial.
STANDARD OF REVIEW
“In reviewing the order granting a new trial, we apply the following rule: ‘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.]” (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1506.) If, however, the trial court does not provide an adequate specification of its reasons for granting a new trial, then its order is subject to independent review and the burden of persuasion shifts to the respondent “‘to advance any grounds stated in the motion upon which the order should be affirmed, and a record and argument to support it[.]’” (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 640-641, quoting Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906.)
DISCUSSION
Moore argues that the trial court’s order granting Barrios’ motion for new trial is defective because the order does not adequately specify the court’s reasons for granting the motion. Moore further argues that because of the inadequate specification of reasons, the order cannot be affirmed on the ground of insufficiency of the evidence. We disagree.
“When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated.” (Code Civ. Proc., § 657.) An order granting a new trial “shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict . . . unless such ground is stated in the order granting the motion . . . .” (Ibid.)
Moore does not argue that the trial court’s order fails to state the ground on which the motion was granted. Nor could any such argument succeed, because the trial court’s order makes clear that the ground is insufficiency of the evidence. Rather, Moore argues only that the order inadequately specifies the trial court’s reasons for granting the motion, i.e., the order does not, according to Moore, adequately identify the evidence on which the trial court based its reasoning. But an inadequate specification of reasons, as opposed to grounds, does not preclude affirmance on the ground of insufficiency of the evidence. Moore cites two sources of authority for the contrary proposition, but neither supports her position. The first is Code of Civil Procedure section 657, which, as quoted ante, provides only that the failure to state insufficiency of the evidence as a ground for granting the motion precludes affirmance of the order on that ground. The second is Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, which involved an order that stated neither grounds nor reasons for granting a new trial. (Id. at p. 868 [“The October 15, 1991, minute order granting the motion for new trial did not state any grounds or reasons for the decision to grant a new trial. Under such circumstances, we are precluded under section 657 from affirming the order on the grounds of insufficiency of the evidence or excessive damages.”].) The opinion says nothing about whether an inadequate specification of reasons precludes affirmance on the ground of insufficiency of the evidence when the trial court’s order properly identifies insufficiency of the evidence as the ground for granting the motion.
Thus, assuming for the sake of argument that the trial court’s specification of reasons was inadequate, it does not follow that we cannot affirm the trial court’s order on the ground of insufficiency of the evidence. All that follows is that we review the order de novo, rather than for abuse of discretion, and that the burden of persuasion is shifted to Barrios to advance any grounds stated in the motion on the basis of which the order can be affirmed. (Oakland Raiders v. National Football League, supra, 41 Cal.4th at pp. 640-641.)
Barrios has carried his burden of persuading us that the trial court correctly granted the motion on the ground of insufficiency of the evidence. The jury found that Moore’s negligence was not a substantial factor in causing harm to Barrios. Moore admitted, however, that the accident was her fault. Moreover, the sole witness for the defense testified that the accident caused injury to Barrios—the witness testified on direct examination that the accident caused Barrios to sustain “some sprain and strain injury.” The record contains additional evidence of additional injuries, and Moore cites no evidence that the accident caused no injuries at all to Barrios, which in any event would contradict the testimony of Moore’s only witness. We therefore conclude, on independent review, that the trial court was correct when it ruled that the “jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)
Moore does quote her counsel’s closing argument to the jury, in which counsel stated that Barrios “was minorly injured, or perhaps not at all[.]” Closing argument is not evidence, however, and Moore cites no evidence to support the suggestion that Barrios was injured “perhaps not at all.”
We consequently need not determine whether the trial court’s specification of reasons was inadequate. Even if it was inadequate, we would not be prohibited from affirming the trial court’s order on the ground of insufficiency of the evidence, because the trial court specified that ground. And we do affirm the order on that ground, because Barrios has carried his burden of persuading us that the record supports it.
DISPOSITION
The order is affirmed. Respondent shall recover his costs of appeal.
We concur: MALLANO, Acting P. J., VOGEL, J.