Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for the County of Los Angeles No. VC043441, William J. Birney, Jr., Judge.
Carpenter & Zuckerman and John C. Carpenter for Plaintiff and Appellant.
Hosp, Gilbert, Bergsten & Phillips, Robert T. Bergsten and Warren L. Gilbert for Defendant and Respondent.
PERLUSS, P. J.
Daniel Bryan Berghoff appeals from the order granting Haydy Patricia Trevino’s motion for a new trial after the jury awarded Berghoff $113,078 in damages in his personal injury action against Trevino. Because, among its other errors, the trial court failed to specify its reasons for granting a new trial in violation of the express requirements of Code of Civil Procedure section 657, we reverse the order granting Trevino’s motion and reinstate the original judgment.
Statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2004 Berghoff was driving north on the Interstate 5 freeway when Trevino’s car swerved into Berghoff’s lane and struck his car. Trevino then apparently struck Berghoff a second time after she hit the center guardrail and ricocheted back.
In December 2004 Berghoff filed a personal injury action against Trevino and her employer. Following a six-day jury trial, on October 16, 2006 the jury returned a verdict in favor of Berghoff, finding Trevino negligent (by a vote of 11 to one) and fully responsible for Berghoff’s injuries (by a vote of 10 to two). The special verdict form directed the jury to segregate economic and noneconomic damages: The jury (again by a vote of 10 to two) awarded Berghoff $93,078 in economic damages and $20,000 in noneconomic damages. The court entered judgment on the special verdict in favor of Berghoff on October 17, 2006. Notice of entry of judgment was mailed to the parties the same day.
Arguing the evidence had established Trevino was on her lunch break when the accident occurred, Trevino’s employer, Avenue Mortgage, moved for nonsuit at the close of Berghoff’s case-in-chief. The motion was granted. Avenue Mortgage is not a party to this appeal.
On November 1, 2006 -- the last day permitted by statute (§ 659, subd. 2) -- Trevino filed a notice of intention to move for a new trial on the grounds of insufficiency of the evidence (§ 657, subd. 6) and excessive damages (§ 657, subd. 7). On that same day, notwithstanding section 661, which provides the date for oral argument on a motion for new trial, if any, shall be set following expiration of the time for the responding party to file his or her counter-affidavits, the court set the hearing for the new trial motion for November 22, 2006. Apparently that date was selected by the court because Judge William J. Birney, Jr., who had presided at the trial of the action, was unavailable at any other time after that date but prior to the expiration of the court’s jurisdiction to rule on the motion. (See § 660, 3d para. [“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”]; but see § 661 [authorizing any judge of the same court to hear a motion for new trial if the judge who presided at trial is absent from the county at the time noticed for the hearing].) The clerk mailed notice of the hearing date to counsel on November 1, 2006.
Section 659, subdivision 2, requires a party who intends to move for a new trial to file and serve a notice of intention to move for a new trial within 15 days of the date of mailing of notice of entry of judgment by the clerk.
Trevino also stated her intent to move for a new trial as to Avenue Mortgage.
In a subsequent filing Berghoff explained, “defendant has learned that the Honorable Judge Birney, the trial judge, will be on vacation, and thus unavailable, from Thanksgiving, November 23, 2006, through to a date well after December 18, 2006.”
Although the court had notified the parties of the early date scheduled for the hearing on the motion, Trevino did not file her memorandum in support of the motion and related supporting materials (including an affidavit from the sole juror who had voted against finding Trevino negligent) until November 13, 2006 -- nine days before the hearing -- once again waiting until the last day permitted by statute and court rule for those filings. (See § 659a; Cal. Rules of Court, former rule 236.5 (now rule 3.1600(a)).)
Section 659a requires the moving party to file and serve any affidavit to be used in support of a new trial motion within 10 days of filing the notice of intention to move for a new trial. Similarly, California Rules of Court, former rule 236.5 required the moving party to file and serve a memorandum in support of the motion within 10 days of filing the notice of intention to move for a new trial. Because of the three-day Veterans’ Day holiday weekend, Trevino’s filing time under these provisions was extended to November 13, 2006.
The juror affidavit filed by Trevino provided a breakdown of the damages award that was more specific than the special verdict form: $18,078 for past medical costs, $25,000 for future medical costs, $50,000 for past lost earnings and $20,000 for noneconomic damages. (The juror stated these numbers had been written on a white board during jury deliberations.) Trevino’s memorandum argued the jury’s awards of $50,000 for past lost earnings and $25,000 for future medical costs were excessive and unsupported by the evidence.
The combination of the trial court’s early setting of the hearing on Trevino’s motion and Trevino’s use of the maximum possible time for filing and service of her supporting papers left Berghoff with only nine days to file a reply memorandum and any counter-affidavits, one day less than the minimum time mandated by the Legislature in section 659 and former rule 236.5. Berghoff filed a written objection to Trevino’s new trial motion on the ground the November 22, 2006 hearing date impermissibly deprived him of the time to which he was entitled to file his opposition to Trevino’s motion. (Berghoff observed his papers were not due until Monday, November 27, 2006, because November 23, 2006, 10 calendar days from November 13, 2006, was Thanksgiving, a court holiday, and the following day, November 24, 2006, was also a court holiday. (See §§ 12a, 135.).)
Former rule 236.5 allows the party opposing a new trial motion 10 days following the filing of the moving party’s papers to file a reply memorandum. Section 659a grants the opposing party 10 days to file any counter-affidavits. Although section 659a authorizes the extension of this time period upon a showing of good cause, there is no statutory authorization for the court to shorten the opposing party’s time to file his or her papers.
At the November 22, 2006 hearing, after acknowledging it had not seen Berghoff’s objection to the timing of the hearing until earlier that morning, the court overruled the objection, stating, “The motion for new trial is timely filed, and you were not ambushed. . . . You’re not under the gun by timing to present what you have presented. You have presented anything you could present.”
With respect to Berghoff’s contention he had not yet determined whether there were jurors who might disagree with the breakdown presented in the juror affidavit submitted by Trevino, the court responded, “I am certainly not going to give you the opportunity or the sanction to go out and bother these jurors. I am very much opposed to that in any case, but lawyers do it with some regularity. I think it’s terrible, by and large, to harass the jurors with affidavits that the lawyers prepare or their investigators and then go get the juror to sign them.” The court then ruled Trevino’s motion would be granted unless Berghoff accepted a remittitur reducing the judgment by $25,000 for future medical costs. The trial court explained it did not “buy the evidence that there will be future [shoulder] surgery costing $25,000.” In reaching this result, the court stated it had not relied on the juror affidavit specifying the allocation of damages; rather, it found the evidence introduced at trial coincided with the juror affidavit.
The minute order entered by the court on November 22, 2006 stated, “Motion is called for hearing and is argued. [¶] . . . [¶] As to the issue of damages, [Trevino’s] Motion for New Trial will be granted unless [Berghoff] accepts a remittitur reducing judgment by the sum of $20,000. [¶] Matter is set for acceptance of remittitur or trial setting on 1-9-07.”
The notice of ruling filed by Trevino on December 4, 2006 reflected a remittitur of $25,000, the figure used by the court at the hearing, rather than $20,000, the number included in the court’s November 22, 2006 minute order. The trial court corrected this discrepancy by a nunc pro tunc order issued on January 3, 2007.
On January 9, 2007, in light of Berghoff’s failure to accept the remittitur, a minute order was filed vacating the judgment entered on October 17, 2006 and scheduling a trial setting conference for February 1, 2007 to set a new trial date. Neither the November 22, 2006 minute order nor the January 9, 2007 minute order nor any other court filing in this matter states the ground or grounds relied upon by the trial court to grant the motion for a new trial or contains a specification of the court’s reasons for granting the motion.
CONTENTONS
Berghoff contends the order granting Trevino’s motion for a new trial must be reversed because the trial court violated the strict statutory scheme for determining new trial motions and acted in excess of its jurisdiction when it scheduled the hearing on the motion to take place prior to the time Berghoff’s opposition papers were due; failed to state the ground or grounds for granting the motion in any written order; and failed to specify the reasons for granting the motion either in the order granting the motion itself or in a separate document, prepared and signed by the court and filed within 10 days of filing the original order.
DISCUSSION
1. Governing Law
“The authority of a trial court in this state to grant a new trial is established and circumscribed by statute.” (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633 (Oakland Raiders).) Section 657 identifies only seven grounds for a new trial motion: irregularity in the proceedings, jury misconduct, accident or surprise, newly discovered evidence, excessive or inadequate damages, insufficiency of the evidence and error in law. Sections 659 and 659a prescribe precise time limits for filing a notice of intention to move for new trial and supporting and opposition papers. Section 661 specifies when and how the hearing, if any, on the motion may be set.
Section 660 limits the power of the court to rule on a motion for a new trial to a 60-day period commencing with the filing of the notice of entry of judgment. “After the court is presented with a motion for a new trial, its power to rule on the motion expires at the end of the 60-day period provided by section 660. . . . If no determination is made within the 60-day period, the motion is deemed to have been denied.” (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899.)
If the trial court grants a new trial motion, “additional requirements are imposed by statute. In pertinent part, section 657 provides that whenever the motion is granted ‘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 . . . .’ The section goes on, however, to distinguish between grounds and reasons. While the order passing upon and determining the motion ‘must state the ground or grounds relied upon by the court,’ the order ‘may contain the specification of reasons.’ (Italics added.) If the order stating the grounds does not also specify the reasons for the new trial, then ‘the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk.’ Thus, under section 657, the grounds for the new trial must be stated in the order. The reasons may also be stated in the order, but the trial court has the option of filing a statement of the reasons at a later time.” (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 899.) Although the court may include wording from the moving party’s memorandum of points and authorities in specifying its reasoning, “‘. . . the specification of reasons must be the product of the judge’s own mental processes and not that of the attorney for the moving party.’” (Eltolad Music, Inc. v. April Music, Inc. (1983) 139 Cal.App.3d 697, 707; Mercer v. Perez (1968) 68 Cal.2d 104, 113 [objective of “promot[ing] judicial deliberation before judicial action, and thereby ‘discourag[ing] hasty or ill-considered orders for new trial’” furthered by requirement judge prepare specification of reasons]; see § 657 [“court shall not direct the attorney for a party to prepare either or both said order [granting a motion for a new trial] and said specification of reasons”].)
“California courts have consistently required strict compliance with section 657. . . . Substantial compliance with the statute is not sufficient.” (Oakland Raiders, supra, 41 Cal.4th at p. 634; Linhart v. Nelson (1976) 18 Cal.3d 641, 644 [“‘[a]s the motion for a new trial finds both its source and its limitations in the statutes [citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed’”]; Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198 [“motion for new trial is a creature of statute; accordingly, if the trial court grants such relief without conforming to the statutory procedures, the order will be void as in excess of jurisdiction”].)
2. The Trial Court’s Failure To Specify the Reasons for Granting Trevino’s New Trial Motion Requires Reversal of the Order and Reinstatement of the Original Judgment
There is no question the trial court violated a number of the procedural requirements for granting a motion for new trial. Trevino concedes as much, but argues each of the trial court’s mistakes may be excused. First, she insists any error in setting an early hearing date, which deprived Berghoff of the full statutory time for filing his opposition papers, was harmless (see § 475 [general requirement that prejudice be established before judgment may be reversed for procedural error]) and, in any event, was waived by Berghoff’s appearance at the hearing and argument on the merits of her motion. Second, because a remittitur may be ordered only in the case of excessive damages (see § 662.5, subd. (b)), Trevino contends the court’s failure to specify the ground for granting the motion may be cured by inferring the ground from the remittitur order. (See San Francisco Bay Area Rapid Transit District v. Fremont Meadows, Inc. (1971) 20 Cal.App.3d 797, 802 [“minute order . . . did not contain the words ‘inadequate damages,’ but it did state the ground by virtue of its additur conditions for the only basis on which additur power may be exercised is inadequate damages”].) Finally, citing Oakland Raiders, supra, 41 Cal.4th 624, Trevino asserts the failure to specify the reasons for granting the motion simply requires us to engage in an independent or de novo review of the order, rather than applying a deferential, abuse of discretion standard of review.
We have serious doubts about Trevino’s responses to Berghoff’s first two challenges to the new trial order. The analysis she proposes, based in large part on language quoted from decisions that are clearly distinguishable from the case at bar, appears fundamentally at odds with the Supreme Court’s repeated instruction that the procedural steps required by the Legislature for making and determining new trial motions “must be strictly followed.” (Linhart v. Nelson, supra, 18 Cal.3d at p. 644; see Oakland Raiders, supra, 41 Cal.4th at p. 634; Mercer v. Perez, supra, 68 Cal.2d at p. 118.) Nonetheless, we need not decide either of these issues because the trial court’s failure to state its reasons for granting the motion requires reversal of the order for a new trial and reinstatement of the original judgment.
Because we reverse the order granting the new trial, we also do not address Berghoff’s argument the trial court acted in excess of its jurisdiction in correcting nunc pro tunc its November 22, 2006 minute order after the 60-day period for ruling on the new trial motion had elapsed.
Initially, although the court explained the reasons for granting the motion at the November 22, 2006 hearing, an oral pronouncement alone is not enough. (LaManna v. Stewart (1975) 13 Cal.3d 413, 423 [“an oral recital, no matter how thoroughly it may have been prepared, cannot amount to compliance in any degree, ‘substantial’ or otherwise, with a statutory directive that such a statement be in writing”]; see Steinhart v. South Coast Area Transit (1986) 183 Cal.App.3d 770, 774 [court cannot avoid preparing written statement of reasons by incorporating a transcript of oral reasoning when granting new trial; “mere statement of reasons on the record is not the same as a judge preparing and signing the specifications in writing as required by section 657”].)
Secondly, even were we to infer from the written, conditional order directing a remittitur that the ground for granting the motion was excessive damages, the reasons supporting that ground are nowhere specified in, or reasonably inferable from, any court-prepared document. (See Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 366-367 [specification of reasons must do more than simply restate the ground on which the order granting the new trial motion is based]; Mercer v. Perez, supra, 68 Cal.2d at p. 112 [same].) Indeed, in her notice of intention to move for a new trial, Trevino asserted damages awarded for both past lost earnings and future medical expenses were excessive. Nothing in any written order or specification of reasons by the court permits us to determine which of those components of the total award -- and in what measure -- the court concluded was excessive or unsupported by the evidence. (See § 657, 12th para., subd. (b) [“on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons”]; LaManna v. Stewart, supra, 13 Cal.3d at p. 425 [when no reasons are specified by trial court, appellate court has no reason upon which to affirm award].)
Finally, Trevino fundamentally misstates the holding and analysis of Oakland Raiders, supra, 41 Cal.4th 624, when she argues, notwithstanding the trial court’s failure to specify the reasons for its order, we may independently review the record to determine whether the new trial motion was properly granted. To be sure, in Oakland Raiders the Court held independent review of the record was appropriate in the case before it, even though the trial court had failed to adequately specify the reasons for granting a new trial; but that holding was expressly limited to the narrow circumstance in which the new trial motion has been granted on the ground of juror misconduct. (Oakland Raiders, at pp. 635-636 [“we address a single, narrow issue: the standard of review -- whether abuse of discretion or independent review -- when, as here, a trial court grants a new trial on the ground of jury misconduct and properly specifies the ground for granting the motion but does not provide a statement of the reasons for granting the new trial on that ground”].) When the ground for granting the new trial motion is insufficiency of the evidence or excessive damages, however, the Oakland Raiders Court explained a different rule applies: “Section 657 provides for the situation in which an order granting a new trial is not supported by a statement of reasons. . . . [W]hen as here an order granting a new trial states the ground as jury misconduct, but the court fails to specify the reasons for that conclusion, the order is not void. [Citations.] The order may still be sustained if a new trial should have been granted upon any ground set out in section 657 except the grounds of insufficiency of the evidence or inadequate or excessive damages.” (Id. at p. 636, italics added.)
The deficient trial court order granting Berghoff’s motion for a new trial falls squarely within the category of orders not covered by the Oakland Raiders holding. As to those orders -- that is, orders granting a new trial on the ground of insufficiency of the evidence or inadequate or excessive damages -- the Supreme Court has unequivocally held the trial court’s failure to state its reasons requires reversal and reinstatement of the judgment: “Inasmuch as no reasons whatever were timely specified in the case at bar, the order cannot be sustained on this ground and must therefore be reversed. Accordingly, the judgment will be automatically reinstated.” (LaManna v. Stewart, supra, 13 Cal.3d at p. 425; see Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at pp. 904-905.)
DISPOSITION
The order granting Trevino’s motion for a new trial is reversed, and the original judgment is reinstated. Berghoff is to recover his costs on appeal.
We concur: WOODS, J. JACKSON, J.
Former rule 236.5 of the California Rules of Court was renumbered, effective January 1, 2007. The operative language of former rule 236.5 was not changed. References to rules are to the pre-2007 version of the California Rules of Court.