Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 147906 of Merced County. Hugh M. Flanagan, Judge.
Thayer, Harvey, Gregerson, Hedberg & Jackson, Stacey A. Jackson; Curtis & Arata and Colleen F. Van Egmond for Defendants and Appellants.
Canelo, Wilson, Wallace & Padron and Rickey D. Wallace for Plaintiff and Respondent.
OPINION
CORNELL, J.
After the jury returned a verdict in favor of defendants M.G. Santos, Inc., Thomas Monroe Grace, and Toscano RV (hereafter collectively Santos), plaintiff Erika De La Cruz, by and through her guardian ad litem Arsenio De La Cruz (hereafter De La Cruz), moved for a new trial. Santos appeals from the order granting De La Cruz a new trial.
The State of California was named as a defendant by De La Cruz. The jury returned a verdict in favor of the State. De La Cruz’s motion also sought a new trial as to the State. The State and De La Cruz settled the dispute before the trial court ruled on the motion. Accordingly, the State is not a party to this appeal.
Santos claims there were numerous procedural irregularities requiring reversal of the new trial order. If the procedural arguments fail, Santos contends there is not substantial evidence to support the order. We disagree and affirm the order
FACTUAL AND PROCEDURAL SUMMARY
The underlying action was one for negligence arising out of the operation of a motor vehicle by Thomas Monroe Grace, an employee of Toscano RV and M.G. Santos, Inc. Grace was operating his vehicle on Highway 152 in Los Banos. The highway has four lanes, two in each direction. A vehicle in the lane next to the one in which Grace was driving stopped to allow four teenage girls, including 13-year-old Erika, to cross the highway. Grace, who apparently was driving below the speed limit, did not stop and his vehicle struck Erika, fracturing her leg and pelvis. Although the verdict is not included in the record, we accept the parties’ representation that the jury reached a defense verdict.
The record begins with De La Cruz’s notice of intention to move for a new trial, which was filed on December 14, 2006. The grounds stated in the notice were (1) insufficiency of the evidence; (2) “Jury clearly should have reached different verdict”; (3) irregularity in the proceedings; (4) misconduct of the jury; and (5) a verdict against the law. According to the attached memorandum of points and authorities, the verdict was “inconsistent” because it found Grace was negligent, but concluded his negligence was not a substantial factor in causing De La Cruz’s damages. Attached to the memorandum were declarations from three jurors in the matter. Each juror stated that he or she and the majority of the jurors felt Grace was negligent, but that he was responsible for only 50 percent of De La Cruz’s damages. Because Grace was not more than 50 percent responsible for De La Cruz’s damages, the jury concluded his negligence was not a substantial factor in causing De La Cruz’s damages.
Santos filed an opposition to the motion, asserting various theories for upholding the verdict. Oral argument was held on January 17, 2007. After each side argued their respective points, the trial court made the following statements:
“But frankly, I remember being surprised at the verdict based on the facts as they came in, based on the way the findings came in. I mean, negligence is negligence, and that has to be of some import to the resolution rather than not.
“But they all did agree and there’s no question about that. And, then, you don’t even very often get that. There’s very rare that -- in a civil trial that they all vote. As a matter of fact, the one that [trial counsel] and I [were] involved in in 2001, for a larger point, I think there was -- my memory, going way back in the dark ages, there were two ladies that sat in Seats 6 and 7 or 7 and 6 in the very corner, and they weren’t budging, period. So it was on everything, even what time of the day it was.”
“[S]o it’s tough. But I have to say, and I think before you research in the cases and all that, that equity insofar as that’s used -- I know this isn’t an equity issue, it’s not a probate matter or one of those things, but ‘fairness’ is a better word. And for whatever reason, we should just hear it on a new trial as to the issue between Mr. Grace and the damages and the percentages. Because, clearly, whatever concept the jurors used collectively doesn’t match up with their findings of negligence and zero. [¶] So that’s where I am.”
After counsel argued that a trial limited to the issues of damages and comparative fault would be a poor choice, the trial court continued:
“No, and I don’t disagree with that. I’m just saying that we have to get back to where they consider it, in view of the new trial, as opposed to just saying the damages, now go in and divvy it up. We can’t call those jurors back, and we can’t have a trial just on that part. [¶] It would have to be a new trial. [¶] And I didn’t mean to imply otherwise.”
“I’m just saying I thought the trial went fine, but I was surprised at how it ended, frankly. And that doesn’t mean that it’s right or wrong, certainly. And it doesn’t mean I’m right or wrong, but there was a major inconsistency that fairness tells me we should resolve. And if it means going through another six or eight days, we’ll just have to do that.”
On February 9, 2007, an order for new trial was filed. In this order, the trial court granted De La Cruz’s motion for a new trial on all issues. In pertinent part, this order stated:
“The decision for a new trial was made after weighing the evidence on the ground that it is insufficient to justify the verdict ([Code of Civil Procedure] Section 657) that Mr. Grace was negligent but that his conduct was not a substantial factor in causing Erika De La Cruz to be injured. The jury should have reached a different verdict since Mr. Grace was negligently operating the truck which impacted Ms. De La Cruz, and this conduct was a substantial factor contributing to her injuries and there was no other cause for her injuries presented at trial.”
DISCUSSION
Code of Civil Procedure section 657 provides that a party may move for a new trial “for any of the following causes, materially affecting the substantial rights of such party.” Seven grounds are listed that would justify the granting of a new trial. The sixth ground is “Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.”
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
When granting a motion for new trial, the trial court is required to specify the ground or grounds on which the decision is based, and the reasons those grounds justify a new trial. (§ 657.) If the trial court grants a motion for new trial based on insufficiency of the evidence, it must be convinced from the entire record, including reasonable inferences drawn therefrom, that the “jury clearly should have reached a different verdict.” (Ibid.)
The power of the trial court to rule on a motion for a new trial expires if a ruling is not made in a timely manner. A ruling is timely if it is made (1) within 60 days after mailing of the notice of entry of judgment by the clerk or 60 days after service of written notice of entry of judgment, whichever is earlier, or (2) if no notice of entry of judgment is served on the moving party, then within 60 days after filing of the first notice of intention to move for a new trial. (§ 660.) “A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk.” (Ibid.)
Santos makes numerous procedural arguments asserting the order must be reversed because the trial court ruled on the motion at the January 17, 2007, hearing. We reject each of these arguments because the premise is wrong. While it is fairly clear the trial court concluded at the January 17 hearing that the motion should be granted, this conclusion did not constitute an order of the court. Section 660 requires (1) the order be entered into the minutes, or (2) a written order be filed. Until one of these two procedures is met, there is no order within the meaning of section 660.
The record here does not contain any minutes from the trial court, so we must assume the minutes do not reflect an order granting the motion. Therefore, the order filed on February 9, 2007, is the only order that complies with section 660, and it is the only relevant order. The discussion by the trial court at the hearing on January 17, 2007, was not “a ruling from the bench” as claimed by Santos as there are no minutes that so indicate. Thus, all arguments based on that assertion fail, including that the order of February 9, 2007, was more than 10 days after the hearing of January 17, 2007.
Santos also may be contending that the trial court lost jurisdiction because it failed to make a ruling in a timely manner. From this record, all we can determine is that De La Cruz first gave notice of the intent to move for a new trial on December 14, 2006. The trial court’s order was filed on February 9, 2007, 57 days after the filing of De La Cruz’s notice of intent to move for a new trial and within the 60 days required by section 660. The trial court was not deprived of jurisdiction.
Santos also contends the order was insufficient to meet statutory requirements of a specification of the grounds and the supporting reasons. We disagree. The February 9, 2007, order sufficiently stated that the motion was granted because of insufficiency of the evidence to support the jury’s conclusion that Grace’s negligence was not a substantial factor in causing De La Cruz’s damages. This order complies with the requirements of section 657 because it states the grounds for granting the new trial motion (insufficient evidence) and specifies the reason the evidence was insufficient (no evidence to support the jury’s conclusion that Grace was not a substantial factor in causing De La Cruz’s damages).
Twedt v. Franklin (2003) 109 Cal.App.4th 413, the case on which Grace primarily relies, does not suggest a different conclusion. The issue in Twedt was the adequacy of the trial court’s order; specifically, the attachment of a transcript of the hearing on the motion to the order as a statement of reasons for the order. As explained above, the order in this case is adequate without a transcript.
This brings us to the only substantive argument made by Santos. Although phrased differently, Santos appears to be arguing the evidence does not support the order. Santos’s theory is that the jury concluded that Grace’s negligence was “trivial” when compared to Erika’s negligence, and therefore he was not a substantial factor in causing her injuries.
Since we conclude above there were no procedural irregularities in the granting of the motion, we will review the trial court’s order for an abuse of discretion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.)
It seems to us that Santos is confusing causation with damages. The substantial factor test refers to causation, not injuries. In this case it was undisputed that the truck Grace was driving struck Erika and, as a result of the collision, Erika suffered serious injuries. The cause of the injuries was the collision between Erika and the truck. The issue at trial was not causation -- it was whether Grace was negligent and, if so, whether Erika’s negligence, if any, contributed to her injuries.
Santos’s argument fails to distinguish between these two concepts. If Grace’s conduct did not contribute to the accident, the jury should have found he was not negligent. In this case, once the jury found Grace negligent, the only cause of Erika’s injuries they could have found was the collision. The record indicates there is no other possible cause for Erika’s injuries other than the truck being driven by Grace striking her. It is clear the jury erred in concluding otherwise.
Once the jury concluded that Grace was negligent, the undisputed evidence at trial established that he was a substantial factor in causing De La Cruz’s damages. Grace’s negligence occurred, according to the jury, in failing to stop his vehicle when he saw Erika crossing the highway, and the vehicle in the lane next to his stopped to permit the girls to cross. Grace’s negligence clearly was a substantial factor in causing De La Cruz’s damages. If Grace had stopped, Erika would not have been injured by his vehicle, no matter how negligent Erika was in crossing the highway. The previously used “but for” test demonstrates this concept. Erika would not have been injured but for Grace’s negligence in failing to stop his vehicle as she crossed the road.
This is not to say that Erika was, or should be, absolved from responsibility for her injuries. That issue, however, is properly resolved by the jury in proportioning fault between Grace and Erika, not in deciding the question of causation.
The trial court’s conclusion here that there was not substantial evidence to support the jury’s finding that Grace’s negligence was not a substantial factor in causing De La Cruz’s damages is supported by substantial evidence. The trial court did not abuse its discretion in granting the new trial motion.
DISPOSITION
The order granting De La Cruz’s motion for a new trial is affirmed. De La Cruz is awarded costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J. LEVY, J.