Opinion
H043208
02-07-2018
ALLISON BASS et al., Plaintiffs and Respondents, v. LINDA K. JONES et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super.Ct.No. 1-15-CV275547)
This action arises out of a dispute between family members (mother and daughter) concerning residential property located on Swallow Lane in Gilroy (the Property). Plaintiffs and respondents Allison Bass and Jason Bass (collectively, Plaintiffs or Bass) moved into the Property in 2010 after its purchase by defendants and appellants Linda K. Jones and Frank T. Jones (collectively, Defendants or Jones). Allison and Jason Bass are the daughter and son-in-law, respectively, of Linda Jones. Although not clearly disclosed in the record before us, Plaintiffs asserted in the lawsuit that they had a contract or an option to buy the Property from Defendants for the same price Defendants originally paid for it, i.e., $426,000. After a bench trial, the court granted Defendants' motion for summary disposition of the case (hereafter, the Dispositive Motion); the motion was termed at trial a nonsuit motion, and was described in the subsequent judgment as a motion for judgment. In the formal judgment entered in favor of Defendants, the court found that Plaintiffs had not established the existence of either a contract or an option to purchase the Property. The court found further that any contract was barred by the statute of frauds (Civ. Code, § 1624).
Plaintiffs filed a motion for new trial, which was granted on October 30, 2015, as memorialized in the clerk's minutes. Those clerk's minutes (Minute Order) did not state the ground or grounds upon which the new trial motion was granted as required by section 657 of the Code of Civil Procedure. And the court did not file and serve any further order specifying its reasons for granting new trial as required under section 657. But in a December 11, 2015 order (December 11 Order)—which was filed nearly one month after the statutory deadline for deciding a new trial motion (see § 660)—the court recited the parties' respective positions concerning the validity of the prior order granting new trial: Plaintiffs contended the order was valid, while Defendants asserted that the new trial order was invalid and the motion for new trial was, pursuant to section 660, deemed denied. The trial court, agreeing with Plaintiffs, concluded in the December 11 Order that the order granting new trial was valid.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Defendants filed a notice of appeal from the order granting new trial, specifically identifying the December 11 Order as the new trial order. Defendants contend that the order granting new trial is invalid because the Minute Order did not constitute a proper new trial order.
We conclude that the court filed a valid new trial order, but that it was defective because it failed to state the ground(s) or specify the reasons upon which it was based as required under section 657. Based upon our review of the defective new trial order—where it is the respondents (Plaintiffs) who bear the burden on appeal of establishing that the new trial motion was properly granted by the trial court (see Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 900 (Sanchez-Corea))—we conclude that the order cannot be upheld on any of the statutory grounds stated in Plaintiffs' motion. We will therefore reverse the order granting the motion for new trial.
I. FACTUAL BACKGROUND
Allison Bass (Allison), who is the daughter of Linda Jones (Linda), testified at trial that she and her husband have lived in the Property since November 2010. It had been purchased at that time by Defendants out of foreclosure for $426,000. Allison testified that at the time of the purchase, she had a number of conversations with her mother, Linda, in which it was agreed that after three or four years, Plaintiffs would purchase the Property from Defendants for $426,000. In October 2010, Plaintiffs gave Defendants $4,000; Allison testified that she understood the money would go toward Plaintiffs' ultimate purchase of the Property. As part of the parties' arrangement, Allison testified, she and her husband would live in the Property and pay to Defendants the full amount of the monthly mortgage payment, property taxes, insurance, and utilities. Plaintiffs signed a rental agreement concerning the Property in January 2011. Allison felt at the time they moved in that it was "our [her husband's and her] home" and they would ultimately purchase it from Defendants.
Allison testified that in the fall of 2014, she and her husband began preparations to purchase the Property by applying for a loan of $426,000. Allison met with Linda in October 2014, and they discussed the fact that Allison and her husband would be getting a loan of $426,000 to buy the Property; Linda expressed no disagreement with that figure at the time. Allison testified that around that time, Linda met with a realtor and learned that the Property was worth over $600,000; Linda did not tell Allison at the time that Plaintiffs would have to pay over $600,000 to buy the Property. Linda, however, after returning to Oregon after visiting Plaintiffs, called Allison and said she (Linda) planned to list the Property for sale for $620,000.
Linda—who was called by Plaintiffs' counsel to testify as an adverse witness under Evidence Code section 776—stated she and her husband Frank bought the Property as a second home in late 2010. She and Frank later filed a dissolution proceeding in Oregon in February 2011. Linda testified that the arrangement with Plaintiffs was that Plaintiffs would rent the Property at below the fair rental rate for approximately three years to give them time to put money aside. The rental rate was a total of the amounts Defendants would pay for the mortgage, insurance, and taxes for the Property. Linda testified that she wanted to rent the Property to Plaintiffs at below its fair rental value to give Plaintiffs—who had lost their prior home through foreclosure—time to get back on their feet. Linda testified that the arrangement was that at the end of three years, Plaintiffs would have the " 'first option' " or "first opportunity" to buy the Property, but there was no discussion in 2010 as to the purchase price. Linda believed the future price would be at the Property's then-fair market value, but she had no idea in 2010 what that would be. Linda specifically denied that she discussed or agreed with Plaintiffs to sell the Property to them for $426,000.
After Plaintiffs rested their case and before the defense presented evidence, Defendants made a Dispositive Motion, which the court granted.
II. PROCEDURAL BACKGROUND
Plaintiffs Bass initiated this action on a date not disclosed in the record. Although the essential pleadings (e.g., complaint, answer to complaint, trial briefs) are not included in the appellate record, we surmise from a review of the trial transcript and judgment that Plaintiffs' basic claim was that they had an oral agreement with Defendants under which they were entitled to purchase the Property.
The case proceeded to nonjury trial that commenced on August 18, 2015, and concluded the following day. After Plaintiffs presented their case, Defendants made a Dispositive Motion, one that Defendants termed a motion for nonsuit. After extensive argument, the court granted the motion.
A judgment in Defendants' favor was entered on September 10, 2015. It was reflected in the judgment that after Plaintiffs rested at trial, Defendants moved for judgment under section 631.8, subdivision (a). The court found that Plaintiffs had "failed to establish that a contract to purchase, or alternatively an option to purchase, the [Property] was formed." It concluded "there was no sufficient cause or consideration . . . [and] assuming arguendo that the essential elements of a contract could be established, the validity and enforcement of any such contract [was] barred by the [s]tatute of [f]rauds" because "the contract alleged by [P]laintiffs involve[d] the sale of real property ([Civ. Code,] § 1624(a)(3)), was not to be performed within one year ([Civ. Code,] § 1624(a)(1)), and [P]laintiffs [did] not establish[] that any valid exception or waiver applie[d]." Defense counsel thereafter served a notice of entry of the judgment on September 15, 2015.
Plaintiffs filed a motion for new trial. Defendants filed written opposition to the motion, and Plaintiffs submitted a reply. The motion for new trial was heard on October 30, 2015, and, as reflected in the clerk's Minute Order, the court granted the motion on that date. The Minute Order did not reflect the ground or grounds upon which the court granted the new trial motion. Nor did it reflect a specification of the court's reasons. No further order concerning the new trial motion was entered until December 11, 2015.
The Minute Order reflected the following: "Mtn: New Trial . . . by Plts Allison Bass and Jason Bass (Carlos Martinez)" occurred on October 30, 2015. It reflected further (by handwritten checking of four boxes and handwritten notation of the name of counsel) that "(x) MOTION/PETITION (x) ARGUED (x) GRANTED. ( ) DENIED ( ) OTHER [¶] . . . [¶] ( ) ORDER SIGNED ( ) SERVED ON COUNSEL IN COURT (x) Martinez TO PREPARE ORDER."
It was noted in the December 11 Order—which reflected that it was prepared by Plaintiffs' counsel—that the court had conducted a case management conference on December 4, 2015, in which the parties presented their respective positions concerning the validity of the court's order granting new trial. It was recited in the December 11 Order as follows: "Plaintiffs' position is that while the Court should have filed a written order setting forth the grounds and reasons for the Court granting the motion for new trial, the lack of a written statement of reasons did not render the Court's granting the motion for new trial ineffective or void. Defendants' position is that because the Court did not enter a written order within 60 days of notice of entry of judgment, the motion for new trial was deemed denied as a matter of law and the Court was now without jurisdiction to act." The court concluded that Defendants' position was "not correct" and the new trial order was effective; it specifically referred to, and attached as an exhibit, the Minute Order. The court concluded in the December 11 Order: "The Plaintiffs' motion for new trial having been granted, the parties are directed to appear on [January 12, 2016] . . . for a trial setting conference."
Defendants filed a notice of appeal from the order granting the motion for new trial.
III. DISCUSSION
A. Construction of Notice of Appeal
At the outset, we identify the proper scope of the notice of appeal. Defendants Jones stated in their notice that the appeal was being taken from the order granting new trial, specifying that the order was entered on December 11, 2015. Plaintiffs Bass dispute that the December 11 Order constituted an order denying new trial, and they assert that the only order of record granting new trial was the Minute Order.
Based upon these circumstances, Plaintiffs Bass filed a motion to dismiss this appeal, claiming that the December 11 Order was nonappealable. Defendants opposed the motion, and this court denied the motion to dismiss.
Plaintiffs may be correct that the December 11 Order was not an order granting new trial, since it was entered long after the 60-day period within which the court was required to rule on the new trial motion. (See § 660 ["the power of the court to rule on a motion for a new trial shall expire 60 days from and after . . . service on the moving party by any party of written notice of the entry of judgment"].) And, although Defendants did not refer to the Minute Order in their notice of appeal, it is clear that their challenge on appeal is to the court's order granting new trial, whenever that ruling was formally made. Were we to construe Defendants' notice of appeal narrowly as an appeal of only the December 11 Order, or foreclose consideration of the Minute Order, our review of the merits would be a narrow one that would not result in substantial justice. "The notice of appeal must be liberally construed . . . [and] is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.100(a)(2).) Thus, a notice of appeal will be liberally construed "so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." (Luz v. Lopes (1960) 55 Cal.2d 54, 59-60.) Here, since it is clear from the notice of appeal that Defendants are challenging the order granting new trial, and Plaintiffs could not have been misled or prejudiced by such notice, we will construe the notice as including both the Minute Order of October 30, 2015 and the December 11, 2015 Order.
B. Applicable Law
1. Motions for New Trial
"The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.]" (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633 (Oakland Raiders).) Under section 657, there are seven grounds upon which a new trial may be granted: (1) "[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial"; (2) "[m]isconduct of the jury"; (3) "[a]ccident or surprise, which ordinary prudence could not have guarded against"; (4) "[n]ewly discovered [material] evidence . . . which [movant] could not, with reasonable diligence, have discovered and produced at the trial"; (5) "[e]xcessive or inadequate damages"; (6) "[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law" and (7) "[e]rror in law, occurring at the trial and excepted to by [movant]." In all instances, the circumstances surrounding the ground asserted must have "materially affect[ed] the substantial rights of [the moving] party." (§ 657.)
If the court grants a new trial motion, it is required to "specify the ground or grounds upon which it is granted and [its] reason or reasons for granting the new trial upon each ground stated." (§ 657.) "[G]rounds" refers to the above-mentioned seven grounds stated in section 657 for the granting of a new trial. (Mercer v. Perez (1968) 68 Cal.2d 104, 111 (Mercer).) The court's identification of the reasons for granting new trial "should be specific enough to facilitate appellate review and avoid any need for the appellate court to rely on inference or speculation [citations]" (Oakland Raiders, supra, 41 Cal.4th at p. 634), and "must refer to evidence, not ultimate facts. [Citation.]" (Id. at pp. 635.) Two purposes for requiring that the court specify its reasons are " [1] to promote judicial deliberation before judicial action, and thereby 'discourage hasty or ill-considered orders for new trial' . . . [¶] . . . [and 2] to make the right to appeal from the order more meaningful." (Mercer, supra, at p. 113; see also Romero v. Riggs (1994) 24 Cal.App.4th 117, 124 [new trial order's specification of reasons should "adequately 'direct[] the appellate court's attention' to the aspects of the record which support the order"].)
Under section 660, the court must "determine[]" the new trial motion within a specified time, either by an order "entered in the permanent minutes of the court or . . . [one] signed by the judge and filed with the clerk." In either case, if the court grants the motion, the minute order or court order must specify the ground(s) of the decision and "may contain the specification of reasons." (§ 657, italics added.) If the minute order or order does not specify the reasons, the court must, within 10 days after the order's filing, prepare, sign and file an order prepared by the court itself identifying the reasons for granting the motion. (Ibid.; see Sanchez-Corea, supra, 38 Cal.3d at p. 899.) A new trial order must be made "60 days from and after the mailing of notice of entry of judgment by the clerk of the court . . . 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." (§ 660.) If the court fails to act within the specified period, the new trial motion is deemed denied. (Ibid.) The time limits specified in sections 657 and 660 are jurisdictional, and they cannot be evaded through stipulation or by nunc pro tunc order. (Sanchez-Corea, supra, at pp. 903, 904; Siegal v. Superior Court (1968) 68 Cal.2d 97, 101; Mercer, supra, 68 Cal.2d at p. 121.)
Although "California courts have consistently required strict compliance with section 657" (Oakland Raiders, supra, 41 Cal.4th at p. 634), where the court grants a new trial motion by a minute order or court order timely entered but fails to specify the grounds or reasons, the order is deemed defective but not void. (Id. at pp. 636, 641; Sanchez-Corea, supra, 38 Cal.3d at pp. 896, 900-901.) In such an instance, the appellate court may review the defective new trial order to determine whether it was properly granted on any statutory ground stated in the motion, other than on the grounds of insufficiency of the evidence or excessive or inadequate damages. (Sanchez-Corea, supra, at pp. 896, 900, 905; see also Oakland Raiders, supra, at p. 636.) And the burden shifts under these circumstances: Although it is ordinarily the appellant's burden to prove error, in the case of a defective new trial order, the respondent (movant) bears the burden " 'to advance any grounds upon which the order should be affirmed and a record to support it.' [Citation.]" (Sanchez-Corea, supra, at p. 900; see also id. at p. 906; Oakland Raiders, supra, at p. 641.)
2. Standard of Review
An order granting new trial is typically reviewed for abuse of discretion when the trial court states the grounds and provides a specification of reasons as required by statute; in such an instance, the appellate court gives deference to the trial court's resolution of evidentiary conflicts. (Oakland Raiders, supra, 41 Cal.4th at p. 636; but see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859 [although new trial order, in general, reviewed for abuse of discretion, because "any determination underlying any order is scrutinized under the test appropriate to such determination" de novo standard applied where new trial is ordered after grant of summary judgment].) "But when there is no statement of reasons, an appellate court's use of an abuse of discretion standard of review would subvert the purposes that . . . underly[] section 657's statement of reasons requirement." (Oakland Raiders, supra, at p. 636.) Thus, the Supreme Court has held that where the ground stated for ordering a new trial is juror misconduct and the evidence is conflicting, the new trial order is subject to independent review. (Id. at p. 640; see also Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1228 (Montoya) [if trial court's "statement of reasons is inadequate, [the appellate court] independently review[s] the trial court's order granting a new trial"].)
Therefore, in light of the absence of a statement of grounds or a specification of reasons by the trial court here, we will independently review the court's order granting Plaintiffs motion for new trial. (Oakland Raiders, supra, 41 Cal.4th at pp. 628, 640.)
3. Motions for Judgment in Court Trials
Section 631.8 provides a procedure in a nonjury trial for a defendant, after the plaintiff rests its case, to request entry of judgment in defendant's favor without the requirement of presenting defense evidence. " 'The purpose of Code of Civil Procedure section 631.8 is "to enable the court, when it finds at the completion of plaintiff's case that the evidence does not justify requiring the defense to produce evidence, to weigh evidence and make findings of fact." [Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain its burden of proof. [Citation.] In making the ruling, the trial court assesses witness credibility and resolves conflicts in the evidence.' " (Kinney v. Overton (2007) 153 Cal.App.4th 482, 487.)
"After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint." (§ 631.8, subd. (a).)
The procedure specified in section 631.8 must be distinguished from a motion for nonsuit in a jury case. The trial court has broader powers to grant a motion for judgment than it does to grant nonsuit. "When considering a motion for nonsuit, a trial court must deny the motion 'if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor.' [Citation.] In other words, to avoid a nonsuit, a plaintiff must introduce evidence sufficient to establish a prima facie case. [Citations.] If a plaintiff makes out a prima facie case, a motion for nonsuit must be denied. When considering a motion for judgment during a bench trial, a trial court is not so limited. Even if a plaintiff introduces evidence sufficient to establish a prima facie case, the trial court may still conclude the plaintiff has not carried his or her burden of proof and grant judgment in favor of the moving defendant. For example, on a motion for judgment, the trial court may disbelieve the plaintiff's evidence, draw adverse (rather than favorable) inferences therefrom, and credit contrary evidence introduced through cross-examination or otherwise." (Orange County Water District v. MAG Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239 (Orange County Water).)
After the enactment of section 631.8 in 1961, a motion for nonsuit was no longer appropriate in a court trial. (Commonwealth Memorial, Inc. v. Telophase Society of America (1976) 63 Cal.App.3d 867, 869, fn. 1 (Commonwealth Memorial).) But in instances in which a motion for nonsuit is mistakenly made in a nonjury trial, it is appropriate to review an order granting such a motion as one in which a motion for judgment under section 631.8 is granted and to affirm such order if the requirements of section 631.8 are otherwise satisfied. (See Commonwealth Memorial, supra, at p. 869, fn. 1; see also East-West Capital Corp. v. Khourie (1970) 10 Cal.App.3d 553, 556 (East-West Capital); Milton Meyer & Co. v. Curro (1966) 239 Cal.App.2d 480, 482; Estate of Pack (1965) 233 Cal.App.2d 74, 77-78 (Pack).)
C. Defendants' Procedural Objections to New Trial Order
Defendants argue on appeal that "the judgment entered by the trial court should remain as a valid judgment" because (1) the court, through the December 11 Order, purported to rule on the motion for new trial after the jurisdictional time limit for doing so. They challenge the validity of the October 31, 2015 Minute Order. Defendants refer to it as an "alleged minute order" and a "clerk's checklist," and they question the date it was entered, or whether it was entered at all. Defendants thus contend that, pursuant to section 660, the motion for new trial was "deemed denied as a matter of law."
Plaintiffs respond that the Minute Order constituted a proper order granting new trial under section 660. Because, they argue, it was an order "entered in the permanent minutes of the court" (§ 660), the new trial motion was "determined" within the meaning of the statute within 60 days of Defendants' service of a notice of entry of judgment.
The Minute Order on its face reflects that it was entered on October 30, 2015. Under Evidence Code § 664, there is a presumption of the regular performance of official duty. This presumption is applicable to official duties performed by the clerk of the court. (Fergus v. Songer (2007) 150 Cal.App.4th 552, 565 (Fergus); see also In re Lopez (1970) 2 Cal.3d 141, 146 [presumption that docket entry regularly entered " 'must ordinarily be deemed to speak the truth' "]; Wutchumna Water Co. v. Superior Court (1932) 215 Cal. 734, 737 [presumption that clerk's minute order for preliminary injunction correctly recorded court's judgment]; Smith v. Smith (1958) 157 Cal.App.2d 658, 662 [presumption of correctness of minutes].) There are three elements essential to the valid entry of an order into the permanent minutes of the court: "preparation of a written order, recordation of its date and substance in a permanent record, and delivery to the custodian of records." (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 671.) Here, a review of the record discloses that the Minute Order satisfied these three requirements. Defendants having made no showing to rebut the presumption of the regularity of the clerk's actions, the Minute Order was an order "entered in the permanent minutes of the court," thereby satisfying the requirements of section 660. (See Fergus, supra, at pp. 564-565.)
Defendants assert further that the court failed to comply with section 657 and 660 in that it did not provide an order stating the ground(s) or specifying the reasons for granting the motion. They are correct, and Plaintiffs do not dispute this point. But as we have discussed above, where the court has "determined" a motion for new trial within the statutory time provided in section 660, its failure to state the ground(s) or reasons for granting the motion does not render it void, but merely defective. (Oakland Raiders, supra, 41 Cal.4th at p. 636; see also Sanchez-Corea, supra, 38 Cal.3d at pp. 896, 900-901.) Defendants' suggestion to the contrary that the order granting new trial was void (e.g., arguing that the order "was defective jurisdictionally") is without merit. Accordingly, we will review the defective new trial order here to assess whether it was properly granted on any statutory ground stated in Plaintiffs' motion, other than on the grounds of insufficiency of the evidence or excessive or inadequate damages. (Oakland Raiders, supra, at p. 636; Sanchez-Corea, supra, at pp. 896, 900, 905.)
D. No Basis for Granting New Trial Motion
In reviewing the new trial order, we address preliminarily three contentions by Plaintiffs that have a potential influence on that review: (1) the court failed to provide a statement of decision despite Plaintiffs' request; (2) the court failed to provide findings as required by statute; and (3) the court erred in granting judgment under section 631.8 because it did not permit Plaintiffs to present additional evidence. After addressing those preliminary arguments, we will then outline the substance of Plaintiffs' motion for new trial filed below. Lastly, we will review the new trial order to determine whether it was properly granted, bearing in mind that it is the respondents (Plaintiffs) who bear the burden of advancing the grounds upon which the order should be affirmed and supplying a record to support that position. (Sanchez-Corea, supra, 38 Cal.3d at p. 900.)
1. Statement of Decision
Plaintiffs argue that the trial court, in granting the motion for judgment, failed to provide a statement of decision, despite Plaintiffs' having requested one at trial. They assert that "[w]ithout a statement of decision there can be no implied findings." Plaintiffs make this contention without citation of legal authority as required under California Rules of Court, rule 8.204(a)(1)(B). (See Dabney v. Dabney (2001) 104 Cal.App.4th 379, 384 (Dabney) [appellate court "need not consider an argument for which no authority is furnished"]; People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 (20th Century Ins.) [failure to cite legal authority for position "amounts to an abandonment of the issue"].) We nonetheless address Plaintiffs' contention that the trial court erred in failing to issue a statement of decision.
Section 631.8 provides in part that if the court grants a motion for judgment, it "shall make a statement of decision as provided in Sections 632 and 634." Under section 632, "[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 request must be made . . . [, if] the trial is concluded within one calendar day or in less than eight hours over more than one day. . . [,] prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision." (Italics added.) The failure to submit a timely request for a statement of decision constitutes a waiver of the party's right to such a statement. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶16:144, p. 16-34.) If a statement of decision is waived, on appeal, there is a "presumption that the trial court made whatever findings were necessary to support the judgment." (Id. at ¶16:146, p. 16-34, original italics; see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 61 (Fladeboe) [absent request for statement of decision, appellate court will "infer the trial court . . . made every factual finding necessary to support its decision"].)
The judgment below contains the following recitals: "the trial having concluded in less than eight hours over more than one day"; and "[a] statement of decision not having been requested prior to submission of the matter for decision." While we presume these recitals in the judgment to be correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), we note that Plaintiffs assert in their respondents' brief that they "even requested a statement of decision." Although left unstated, it is apparently their position that they made a timely request. Since the statute addressing motions for judgment in court trials, section 631.8, incorporates the requirement under section 632 that a party make a timely request for statement of decision, we address whether the record evidences such a timely request by Plaintiffs here.
First, the judgment reflects that the trial was concluded in less than eight hours over more than one day, thereby triggering the requirement under section 632 that the request for statement of decision "be made prior to submission of the matter for decision." Plaintiffs do not contest the accuracy of this recital in the judgment, and our review of the record bears out that the trial was, in fact, concluded in less than eight hours over more than one day.
Second, as noted, the judgment reflected that a statement of decision had "not . . . been requested prior to submission of the matter for decision." Plaintiffs do not specifically dispute this recital; instead, they state in their appellate brief that they "even requested a statement of decision. It is the last line of the trial transcript." And, although they had the opportunity to do so in their new trial motion, Plaintiffs did not challenge the recital in the judgment below; instead, they stated simply in their reply memorandum in support of new trial that "Plaintiffs even requested a statement of decision." To the extent that Plaintiffs' implicit argument on appeal is that they made a timely request for a statement of decision—i.e., one made prior to submission of the case for decision—this conclusory contention is abandoned. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [conclusory presentation in brief without argument or application of pertinent law to circumstances of case was inadequate and contentions deemed abandoned].)
Plaintiffs' implicit argument is nonetheless without merit. The record reflects that while Plaintiffs requested a statement of decision—their counsel, as the last words in the trial transcript, stating, "Plaintiffs will request a statement of decision"—they did not make the request before submission of the case. The sequence of events was as follows: (1) Plaintiffs rested their case; (2) Defendants made their Dispositive Motion, including argument in support of it; (3) Plaintiffs' counsel argued in opposition to the motion; (4) the court announced that it was granting Defendants' motion, stating its reasons for doing so; (5) Plaintiffs' counsel raised a further question about the ruling, concerning allegations Plaintiffs had apparently made concerning rights asserted under a stipulated judgment; (6) the court responded briefly, rejecting Plaintiffs' position; (7) Defendants' counsel inquired whether he should prepare an order; (8) the court responded to defense counsel in the affirmative; and (9) Plaintiffs' counsel requested a statement of decision. Thus, when Plaintiffs made their request, the case had already been submitted and decided by the court. Further, Defendants' generic request for a statement of decision was substantively noncompliant with section 632 in that it failed to "specify those controverted issues as to which the party is requesting a statement of decision." (See In re Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1394 ["A party is not entitled to a statement of decision based on a 'general inquisition' that 'unfairly burdens the trial judge in that he must not only speculate which questions embrace ultimate as distinguished from evidentiary facts, but also search his recollection of the record without the assistance of a suggestion from counsel.' "].) Defendants therefore failed to make a timely and sufficient request for statement of decision "prior to submission of the matter for decision." (§ 632; see Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1840.) A request for statement of decision was therefore waived, and the trial court did not err in failing to issue one.
2. Rendering of Findings
Plaintiffs contend that the court erred by failing to make findings. They contend that a court has an " 'obligation' " to do so when it grants a motion for judgment under section 631.8. In support of its position, Plaintiffs cite three pre-1981 cases. (See QSW Corp. v. Malick (1967) 257 Cal.App.2d 277; Estate of Pack, supra, 233 Cal.App.2d 74; San Jose Abstract and Title Ins. Co., v. Elliott (1952) 108 Cal.App.2d 793, superseded by statute as stated in In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1137.)
As noted by Plaintiffs, the court in Estate of Pack, supra, 233 Cal.App.2d at page 77, held that under section 631.8, if the court grants a motion for judgment, it has "the further obligation of making findings of fact as provided in Code of Civil Procedure sections 632 and 634." Section 632 at one time required that "findings of fact and conclusions of law . . . be made unless waived (Stats. 1933, ch. 744, § 105, p. 1876)." (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1137.) Thus, previously, the failure to make findings, if not waived, constituted reversible error. (See Carpenter v. Pacific Mut. Life Ins. Co. of Cal. (1937) 10 Cal.2d 307, 326.) In 1968—three years after Estate of Pack was decided—section 632 was amended to "abolish[] the mandatory requirement for findings of fact and conclusions of law." (R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 53 (R. E. Folcka); see Stats. 1968, ch. 716, p. 1417, § 1.) And in 1981—long after the cases relied on by Plaintiffs were decided—the court abolished the system of findings and conclusions altogether, substituting the process of the court issuing, upon a party's request, a statement of decision. (R. E. Folcka, supra, at pp. 54-55; see Stats. 1981, ch. 900, p. 3425, § 1.) Thus, in 1981, the Legislature replaced the findings and conclusions system with "a two-step process: first, a party must request a statement of decision as to specific issues to obtain an explanation of the trial court's tentative decision (§ 632); second, if the court issues such a statement, a party claiming deficiencies therein must bring such defects to the trial court's attention to avoid implied findings on appeal favorable to the judgment (§ 634)." (In re Marriage of Arceneaux, supra, at p. 1134.)
The present version of section 632 provides in part: "In superior courts, upon trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required." Plaintiffs' contention that the court erred by failing to fulfill its " 'obligation' " to make written findings is therefore without merit.
3. Opportunity to Present Additional Evidence
Plaintiffs argue that the court erred by failing to give them an opportunity to address evidence raised by Defendants and relied on by the court in granting the Dispositive Motion. They argue that, under section 631.8 governing motions for judgment, the court was required to permit Plaintiffs to reopen their case to present additional evidence. The relevant language from the statute reads: "The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party . . . . The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party." (§ 631.8, italics added.)
The italicized language of section 631.8 above has been construed as not affording the opposing party the right in all instances to reopen its case to present additional evidence. (People v. Mobil Oil Corp. (1983) 143 Cal.App.3d 261, 271 (Mobil Oil).) Rather, "the plaintiff shall have had an opportunity to present additional evidence to rebut and to rehabilitate if, but only if, the court exercises its discretionary power to consider defensive matter in the body of evidence which the court weighs in ruling on the motion." (Ibid.) Furthermore, a party opposing a motion for judgment who fails to assert his or her right to present additional evidence waives the right to do so. (Id. at pp. 272-274; cf. Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 382 [although generally, court abuses discretion by denying plaintiff's request to reopen and present additional evidence in response to motion for nonsuit, "error is waived . . . if the plaintiff fails to specify what additional evidence would be presented or how the additional evidence would cure the defects in the case"]; John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 162 [rule that plaintiff should ordinarily be given opportunity to reopen after motion for nonsuit is inapplicable where plaintiff does not request leave to do so].)
Here, even if the court did consider defensive material in granting the motion for judgment, the record shows that Plaintiffs did not—either at trial or at any time before entry of the written judgment more than three weeks later—request leave to reopen their case "to present additional evidence to rebut and rehabilitate." (Mobil Oil, supra, 143 Cal.App.3d at p. 271.) We do not read the statute to require the court, in disposing of a motion for judgment under section 631.8, to grant the plaintiff leave, absent a specific request by the plaintiff, to reopen and present additional evidence. Because Plaintiffs failed to request leave to reopen to present additional evidence, the court did not err. (Mobil Oil, supra, at pp. 272-274.)
4. Plaintiffs' New Trial Motion
Plaintiffs sought an order granting new trial pursuant to four of the statutory grounds provided under section 657, namely, irregularity in the proceedings/abuse of discretion (§ 657, subd. (1)); accident or surprise (id., subd. (3)); insufficiency of the evidence/decision against the law (id., subd. (6)); and error in law (id., subd. (7)). In summary, Plaintiffs argued below as follows:
Irregularity in the proceedings/abuse of discretion: It was irregular for defendants to have relied upon Linda Jones's testimony in their Dispositive Motion, as it was impermissible to rely on such testimony in a nonsuit motion. The court abused its discretion in granting nonsuit (1) by considering Defendants' arguments in which they relied on conflicting evidence, (2) on grounds not asserted by Defendants, and (3) on the second cause of action for which no motion was made. The court's ruling on the second cause of action was also an irregularity in the proceedings.
Accident or surprise: Defendants made impermissible arguments in support of their nonsuit motion, and the court improperly relied on those arguments in granting nonsuit. It was also accident or surprise because the court ruled from the bench—announcing, " 'we're adjourned' and proceed[ing] to leave the bench"—and Plaintiffs were not given the "opportunity to address the errors by the Court in granting nonsuit, including a request to reopen the evidence to address the Court's identified deficiencies."
Insufficiency of the evidence/decision against law: "[T]here was an insufficiency of the evidence to justify the decision on the issues stated by the Court in its ruling". The court's decision was also "against the law" because the only permissible considerations the trial court could have made in ruling on the nonsuit motion "were to interpret the evidence most favorably to [P]laintiffs' case and most strongly against the [D]efendant[s] and resolving [sic] all presumptions, inferences and doubts in favor of the [P]laintiffs." The decision was against the law because "[g]iven minimum of Plaintiffs' evidence . . . there could not have been sufficient evidence to support Defendants' motion for nonsuit."
Error in law: The court's granting of nonsuit constituted an error in law because the court was required "to interpret the evidence most favorably to [P]laintiffs' case and most strongly against the [D]efendant[s] and resolving [sic] all presumptions, inferences and doubts in favor of the [P]laintiffs." Additionally, there was an error in law because "[g]iven minimum of Plaintiffs' evidence . . . there could not have been sufficient evidence to support Defendants' motion for nonsuit." (Sic.)
5. Review of New Trial Order
As discussed above, since the order granting new trial was defective in that it failed to state the ground(s) or specify the reasons for the order as required by section 657, we may not address on appeal one of the grounds raised in Plaintiffs' new trial motion, namely, insufficiency of the evidence. (Oakland Raiders, supra, 41 Cal.4th at p. 636.) Plaintiffs acknowledge this restriction upon our review. Accordingly, we will address below the propriety of the order based upon the remaining grounds stated in the motion. In doing so, we observe that Plaintiffs bear the burden " 'to advance any grounds upon which the order should be affirmed and a record to support it. [Citation.]" (Sanchez-Corea, supra, at p. 900.) Additionally, although our review would ordinarily be under an abuse of discretion standard, since the court here failed to state the ground(s) or specify the reasons as required by statute, because that application of that typical standard "would subvert the purposes that . . . underly[] section 657's statement of reasons requirement" (Oakland Raiders, supra, 41 Cal.4th at p. 636), we will independently review the new trial order. (Id. at p. 640.)
a. Irregularity in Proceedings/Abuse of Discretion
Plaintiffs argued below that the trial court erred in weighing the evidence in connection Defendants' Dispositive Motion because the court may not weigh evidence or consider credibility in deciding a motion for nonsuit. They also asserted that it was improper for Defendants to have argued in support of a nonsuit motion evidence presented at trial beyond Plaintiffs' own evidence. They contended that these actions constituted "[i]rregularity in the proceedings" under section 657, subdivision (1). Citing the same subdivision of section 657, Plaintiffs also argued below that the court's failure to accept Plaintiffs' evidence as true and to disregard conflicting evidence, as required in consideration of nonsuit motions, constituted an "abuse of discretion." And Plaintiffs asserted that it was an abuse of discretion for the court to have granted nonsuit "on grounds not argued by the moving party," namely, lack of consideration. Finally, Plaintiffs asserted that it was an abuse of discretion and an irregularity in the proceedings for the court to have granted nonsuit on "the second cause of action for specific performance" when Defendants' motion was not directed to that claim.
"An 'irregularity in the proceedings' [under § 657, subd. (1)] is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party 'cannot fully present by exceptions taken during the progress of the trial, and which must therefore appear by affidavits.' [Citations.]" (Montoya, supra, 220 Cal.App.4th at pp. 1229-1230.) Examples of irregularities include failure to give a party notice of trial (Gordon v. Gordon (1956) 145 Cal.App.2d 231, 233-235); prejudicial misconduct of counsel (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1410-1412); irregularities affecting the jury, such as the court's entry of judgment after polling the jury, where jury the failed to return a signed verdict (Montoya, supra, at p. 1230); collusion between defendant and plaintiff (Price v. Giles (1987) 196 Cal.App.3d 1469, 1472-1473); and overt misconduct by the court "preventing a party from having a fair trial" (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1509).
Plaintiffs did not—either in their new trial motion or on appeal—cite any legal authority supporting the granting of new trial for irregularity in the proceedings or for abuse of discretion under circumstances similar to those found here. Indeed, the only legal authority they cited below or on appeal (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally)) was a case involving nonsuit, where the Supreme Court reiterated the basic principle—inapplicable to motions for judgment in court trials—that the trial court in ruling on a nonsuit motion must accept plaintiff's evidence as true, must disregard conflicting evidence, and may not weigh the evidence or consider the credibility of witnesses. (Ibid.) Nally did not address the propriety of granting a new trial motion under section 657, subdivision (1) based upon "irregularity in the proceedings" or "abuse of discretion" that prevented Plaintiffs from obtaining a fair trial. Plaintiffs thus have failed to present legal authority in support of their position. (See Dabney, supra, 104 Cal.App.4th at p. 384 [appellate court "need not consider an argument for which no authority is furnished"].)
Disregarding Plaintiffs' failure to support their legal position with legal authority as required, their contention that they raised sufficient grounds for granting the new trial motion under section 657, subdivision (1) is without merit for both procedural and substantive reasons. We address these issues in turn.
Section 658 provides that the moving party must base its motion for new trial "upon affidavits," if the motion is brought on the grounds specified in the "first, second, third, or fourth subdivision[] of Section 657." (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 336 (Kabran).) The procedural requirements for new trial motions, such as the requirement of affidavits, " 'are mandatory and must be strictly followed [citations].' [Citation.]" (Linhart v. Nelson (1976) 18 Cal.3d 641, 644 (Linhart), quoting Mercer, supra, 68 Cal.2d at p. 118; see also Bakurjian v. Pugh (1935) 4 Cal.App.2d 450, 452 [court could not consider new trial motion based upon ground of irregularity of proceedings where movant did not file affidavit as required under § 658].) The record before us does not disclose that any affidavits (or declarations) were filed by Plaintiffs in support of their motion for new trial. Plaintiffs having failed to comply with the requirements of section 658 by failing to submit affidavits or declarations, their new trial motion could not be granted on the basis of irregularity in the proceedings or abuse of discretion. (Linhart, supra, at p. 644.)
Plaintiffs seemingly acknowledged below in their moving papers the authority of section 658, stating in their notice of intention to move for new trial: "As required by § 658, the motion made on the first, second, third and fourth subdivisions of Section 657, will be supported by declaration or affidavit, where necessary, and otherwise by a trial transcript." To the extent that Plaintiffs' statement suggests that a movant seeking new trial on the grounds of subdivisions 1, 2, 3, or 4 of section 657 may substitute a trial transcript in lieu of an affidavit (or declaration), we disagree. The submission of an affidavit (or declaration) is mandatory. (Linhart, supra, 18 Cal.3d at p. 644; see Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1192 [new trial motion made on first four grounds of section 657 require affidavits or declarations; remaining three grounds under statute required to be based on " ' "minutes of court" include[ing] . . . the trial transcript' "].)
Even were we to ignore this procedural impediment, the new trial motion brought under subdivision (1) of section 657 was substantively without merit. The main thrust of Plaintiffs' argument under this subdivision—as well as under other subdivisions of section 657 cited in their motion—was that the court considered and decided the Dispositive Motion in a manner that conflicted with the standards of deciding a motion for nonsuit, i.e., the court improperly decided the matter by (1) weighing evidence, (2) considering credibility, (3) disregarding conflicting evidence, (4) failing to accept Plaintiffs' evidence as true, and (5) failing to construe Plaintiffs' evidence most favorably to them. But as we have noted, notwithstanding the incorrect nomenclature, an order following a motion for "nonsuit" in a court trial may be considered on review as a motion for judgment under section 631.8, provided that the requirements of that statute are satisfied. (Commonwealth Memorial, supra, 63 Cal.App.3d at p. 869, fn. 1; East-West Capital, supra, 10 Cal.App.3d at p. 556; Estate of Pack, supra, 233 Cal.App.2d at pp. 77-78.) As such, the court in considering a motion for judgment may determine that the plaintiff has not met its burden, even if it has presented a prima facie case; the court may disbelieve the evidence presented by the plaintiff, draw adverse inferences from it, and credit other, contrary evidence introduced. (Orange County Water, supra, 12 Cal.App.5th at p. 239.)
Here, Defendants argued at trial that their Dispositive Motion should be granted because "no contract was formed, we don't have any ascension [sic] as to terms of agreement, we don't have any consideration." Defense counsel argued further that there was no writing to support Plaintiffs' claim that they had entered into a contract to buy the Property for $426,000. He argued that Linda Jones denied entering into any such agreement, "and therefore we don't have the formation of a contract." Defense counsel also asserted that Defendants would not have received any benefit from the alleged contract, and that because there was no writing, any contract was barred by the statute of frauds. Lastly, defense counsel asserted that specific performance was improper because Plaintiffs could not establish that any alleged contract was, as to the party against whom specific performance was asserted, was fair, just and reasonable.
Plaintiffs' counsel argued at some length in opposition to the Dispositive Motion. The argument contained a general theme that the witnesses called by Plaintiffs (other than Linda Jones, called as an adverse witness) testified credibly that a contract was created under which Plaintiffs agreed to buy and Defendants agreed to sell the Property for $426,000. Plaintiffs' counsel argued that Defendants' position lacked support because (1) Frank Jones did not even appear in court to testify, and (2) Linda's testimony was not credible (e.g., "[s]he couldn't even keep her story straight," and "she concealed everything else in this case").
The court, in ruling on the Dispositive Motion, noted that it had "considered the writings and the arguments of counsel." On the record, it concluded that the motion should be granted, finding "a [want of] consideration. And secondly, even if an oral agreement is established, because it involves real property and couldn't be enforced within the year that it violates the statute of frauds." (See Civ. Code, § 1624, subds. (a)(1) [contract "that by its terms is not to be performed within a year from the making thereof"], and (a)(3) [contract "for the sale of real property"].) After Plaintiffs' counsel asked for clarification as to whether the court had ruled on both an oral contract and a written contract—a stipulated judgment apparently signed by Linda and Frank Jones in their dissolution proceeding—the court stated that the stipulated judgment did not involve Plaintiffs and it did not "create[] an obligation between the [P]laintiff[s] and the [D]efendant[s]."
The reporter's transcript reflects: "[T]he court finds a wanton [sic] consideration."
It is apparent that in ruling on Defendants' Dispositive Motion, the trial court considered and weighed all testimony presented, including the testimony of Linda Jones, who was called by Plaintiffs as an adverse witness. This is evidenced by the fact that (1) defense counsel alluded to Linda's testimony that conflicted with Plaintiffs' assertion of an existing contract to buy the Property; (2) Plaintiffs' counsel himself emphasized the conflicting nature of the evidence and the relative credibility of the witnesses; and (3) the court indicated on the record that in deciding the motion, it had considered the writings and arguments of counsel. "Because the judgment is presumed correct, and because Plaintiffs bore the burden of affirmatively proving error, the doctrine of implied findings instructs us to infer the trial court made every implied factual finding necessary to support the conclusion" that Plaintiffs could not prevail on their claims. (Fladeboe, supra, 150 Cal.App.4th at pp. 61-62.) And given the record before us, we conclude the trial court performed its proper function in ruling on a motion for judgment under section 631.8. Therefore, as to the main ground asserted by Plaintiffs under section 657, subdivision (1)— i.e., that the court improperly relied on the conflicting testimony of Linda Jones and upon defense arguments emphasizing the evidence opposing Plaintiffs' claims—we find no basis for granting new a trial due to irregularity in the proceedings or abuse of discretion by the court.
Additionally, we find no basis for granting new trial on the basis that it was an abuse of discretion for the trial court to have granted the Dispositive Motion on a ground not argued by Defendants, namely, lack of consideration. Plaintiffs' position was that Defendants "never argued" the issue of consideration. We reject this contention for two reasons. First, Plaintiffs' position was unsupported below and on appeal by any legal authority, and we therefore may treat it as abandoned. (20th Century Ins., supra, 86 Cal.App.4th at p. 284.) Second, even assuming the merits of Plaintiffs' unsupported assertion that the court may not grant a motion for judgment for a reason not specifically argued by the defendant, from our review of the record, we conclude that defense counsel did, in fact, argue the point in the Dispositive Motion. He asserted "that no contract was formed, we don't have any ascension [sic] as to terms of the agreement, we don't have any consideration." He later—after arguing that the evidence was conflicting as to whether there was an agreement on the terms of the alleged contract—stated in that context that "[a]nother element of formation [of a] contract is consideration." Defense counsel argued there was no consideration based upon "[P]laintiffs hav[ing] admitted that the [D]efendants, according to what [Plaintiffs] believe the agreement was, weren't going to receive any benefit from this arrangement. In fact, what the Court heard is that it was going to be a loss."
Lastly, we address Plaintiffs' claim that the new trial motion was properly granted on the basis that it was an abuse of discretion and an irregularity in the proceedings for the court to have granted the Dispositive Motion on the second cause of action for specific performance regarding a written agreement (referred to as a "stipulated judgment"), when Defendants' motion was not directed to that claim. We disagree for three reasons.
First, Plaintiffs' position was unsupported below and on appeal by any legal authority. We therefore may treat it as abandoned. (20th Century Ins., supra, 86 Cal.App.4th at p. 284.)
Second, although Plaintiffs on appeal refer to "second cause of action for specific performance" and to a "Stipulation and Judgment for Separation (Plaintiffs' Exhibit 1)," the record does not include either Plaintiffs' complaint in which such cause of action might have been pleaded, nor the trial exhibit to which Plaintiffs allude. It is therefore not possible for us to address Plaintiffs' contention on this inadequate appellate record. (Cf. Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [party challenging a ruling by the trial court has the burden of showing reversible error by an adequate record]; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [appellant's failure to present an adequate record will result in the issue being resolved against appellant].)
Third, assuming the merits of Plaintiffs' unsupported assertion that the court may not grant a motion for judgment on a cause of action where the defendant does not specifically refer to it in its motion, we note that the record shows that Defendants' counsel did refer to a written separation agreement—which we understand to be the "Stipulation and Judgment for Separation (Plaintiffs' Exhibit 1)" identified by Plaintiffs—in their argument in support of the Dispositive Motion. Defense counsel argued that although Plaintiffs contended that "the separation agreement" memorialized the terms of their alleged agreement with Defendants, the separation agreement "[did not] reflect those terms whatsoever, so therefore there is no writing for this supposed agreement." Since we surmise from Plaintiffs' contentions (notwithstanding the inadequate record) that the second cause of action to which they allude is one in which they sought specific performance of the written agreement described as the "Stipulation and Judgment for Separation," we conclude that it could have been reasonably inferred by the trial court that defense counsel's argument concerning "the separation agreement" embraced that cause of action.
We conclude that Plaintiffs have failed to meet their burden of showing that their motion for new trial was properly granted upon the statutory ground of "[i]rregularity in the proceedings of the court . . . or any order of the court or abuse of discretion by which [Plaintiffs were] prevented from having a fair trial." (§ 657, subd. (1); see Sanchez-Corea, supra, 38 Cal.3d at p. 900.)
b. Accident or Surprise
Defendants asserted below that there was "[a]ccident or surprise, which ordinary prudence could not have guarded against" (§ 657, subd. (3)) that resulted from defense counsel's impermissible arguments in support of their Dispositive Motion upon which the court improperly relied. They argued further that it was accident or surprise for the court to have ruled without giving Plaintiffs the "opportunity to address the errors by the Court in granting nonsuit, including a request to reopen the evidence to address the Court's identified deficiencies."
Under section 657, subdivision (3), a new trial may be granted when "[a]ccident or surprise, which ordinary prudence could not have guarded against" has a material effect upon the substantial rights of the moving party. " 'The terms "accident" and "surprise," although not strictly synonymous, have, as used in legal practice, 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 injury, without any default or negligence of his own [citation], which ordinary prudence could not have guarded against. [Citation.]' [Citations.]" (Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432.) There is therefore " 'no such ground for granting a new trial as mistake or inadvertence, as distinguished from accident or surprise . . . . [Citations.]" (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155.)
As was the case with their motion under subdivision (1) of section 657, Plaintiffs failed to cite any authority below in support of granting a new trial on the basis of accident or surprise. In any event, Plaintiffs; claim that the new trial motion was properly granted on the basis of accident or surprise fails for both procedural and substantive reasons.
In the lone case cited on appeal by Plaintiffs (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1806 (Hata)), the court—after noting that " 'surprise' " under subdivision (3) of section 657 " 'denotes some condition or a situation in which a party to an action is unexpectedly placed to his detriment . . . [and] must have been such that ordinary prudence on the part of the person claiming surprise could not have guarded against and prevented" (ibid.)—concluded that the trial court had abused its discretion by granting the new trial motion on that basis. Hata does not offer support for Plaintiffs' position.
Procedurally, Plaintiffs' motion under subdivision (3) of section 657 was not accompanied by an affidavit (or declaration). This was required under section 658. (Kabran, supra, 2 Cal.5th at p. 336; Linhart, supra, 18 Cal.3d at p. 644.)
Moreover, substantively, for the reasons stated in connection with the motion brought under subdivision (1) of section 657, we disagree that defense counsel made impermissible arguments, and that the trial court improperly relied upon them, in connection with the Dispositive Motion. An order following a motion improperly designated as one for "nonsuit" in a court trial may be considered on appeal as a motion for judgment under section 631.8, if the requirements of that statute are satisfied. (East-West Capital, supra, 10 Cal.App.3d at p. 556; Estate of Pack, supra, 233 Cal.App.2d at pp. 77-78.) In this instance, they were; the trial court, in keeping with its obligations in deciding a motion for judgment, considered all of the testimony presented, including the testimony of Linda Jones contradicting Plaintiffs' evidence, and weighed the evidence in deciding the Dispositive Motion. (Orange County Water, supra, 12 Cal.App.5th at p. 239.)
Additionally, Plaintiffs contended that the court's alleged failure to give them the "opportunity to address the errors by the Court . . . , including a request to reopen the evidence" constituted accident or surprise justifying the granting of the new trial motion. This argument is without merit for the reasons we have discussed above (see pt. III.D.3., ante).
c. Decision Against Law
A ground for new trial separate from insufficiency of the evidence under section 657, subdivision (6) is "the verdict or other decision is against law." In the context of a jury trial, "[t]he jury's verdict was 'against law' only if it was 'unsupported by any substantial evidence, i.e., [if] the entire evidence [was] such as would justify a directed verdict against the part[ies] in whose favor the verdict [was] returned.' [Citations.]" (Sanchez-Corea, supra, 38 Cal.3d at p. 906; see also Schmeltzer v. Gregory (1968) 266 Cal.App.2d 420, 423. [" ' " 'against law' refers to a situation furnishing a reason 'for a reexamination of an issue of fact' " ' "].) One example of a decision that is "against law" is where there are inconsistent jury verdicts. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.) A decision is also "against law" 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." (Renfer v. Skaggs (1950) 96 Cal.App.2d 380, 383.) Indeed, a new trial motion on the basis that the verdict or decision was "against law" " 'is available mainly in [those] two situations.' " (Collins v. Sutter Memorial Hosp. (2011) 196 Cal.App.4th 1, 17 (Collins).)
Plaintiffs argued below that the trial court's granting of the Dispositive Motion was against law because in addressing the motion, it was required "to interpret the evidence most favorably to [P]laintiffs' case and most strongly against the [D]efendant[s] and resolv[e] all presumptions, inferences and doubts in favor of the [P]laintiffs." This is the same argument made by Plaintiffs in asserting that there was an irregularity in the proceedings and an abuse of discretion that required a new trial, i.e., that the court was limited to Plaintiffs' evidence and was precluded from considering Defendants' contrary evidence or arguments in deciding the Dispositive Motion. As we have discussed, (see pt. III.D.5.a., ante), this contention lacks merit because the trial court could and did properly consider Defendants' motion, improperly designated as one for nonsuit, as a motion for judgment under section 631.8. (See East-West Capital, supra, 10 Cal.App.3d at p. 556.)
Plaintiffs also argued below that the trial court's decision on the Dispositive Motion was against law because "[g]iven minimum of [P]laintiffs' evidence . . . there could not have been sufficient evidence to support Defendants' motion for nonsuit." (Sic.) This was the same assertion made by Plaintiffs in support of their new trial motion on the basis of "insufficiency of the evidence to justify the decision" under section 657, subdivision (6). We cannot consider this contention because where, as here, the new trial order is defective, we are precluded from considering whether it was properly granted on the basis of insufficiency of the evidence. (Oakland Raiders, supra, 41 Cal.4th at p. 636.)
d. Error in Law
A new trial may be granted under section 657, subdivision (7) for an "[e]rror in law, occurring at the trial and excepted to by the party making the application." It is a ground that is "confusingly similar" to the " 'against law' " ground under subdivision (6). (Collins, supra, 196 Cal.App.4th at p. 17.) It is proper for the trial court to grant new trial on the basis that there was an "error in law" if " 'its original ruling, as a matter of law, was erroneous.' [Citations.]" (Id. at pp. 17-18.)
Plaintiffs argued below that there was an error in law because the court, "in granting nonsuit," failed "to interpret the evidence most favorably to [P]laintiffs' case and most strongly against the [D]efendant[s] and resolv[e] all presumptions, inferences and doubts in favor of the [P]laintiffs." Plaintiffs made this same argument in asserting that a new trial was required because (1) there was an irregularity in the proceedings and an abuse of discretion, and (2) the decision was against law. This contention lacks merit (see pt. III.D.5.a., c., ante) because the trial court could and did properly consider Defendants' Dispositive Motion, erroneously designated as one for nonsuit, as a motion for judgment under section 631.8. (See East-West Capital, supra, 10 Cal.App.3d at p. 556.)
Plaintiffs also claimed below that there was an error in law because "[g]iven minimum of [P]laintiffs' evidence . . . there could not have been sufficient evidence to support Defendants' motion for nonsuit." (Sic.) This assertion was also made by Plaintiffs in contending that a new trial was required based upon "insufficiency of the evidence to justify the decision" under section 657, subdivision (6). As was the case with the claim that the decision was "against law" (see pt. III.D.5.c., ante), we cannot consider this contention because the new trial order is defective, and we are precluded from considering whether it was properly granted on the basis of insufficiency of the evidence. (Oakland Raiders, supra, 41 Cal.4th at p. 636.)
DISPOSITION
The order granting new trial is reversed. The matter is remanded to the trial court with directions to reinstate the original judgment entered in favor of Defendants Linda K. Jones and Frank T. Jones on September 10, 2015.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.