Opinion
D072429
03-29-2018
DEANNA GRADY, as Personal Representative of the Estate of Helen Griner, Plaintiff and Respondent, v. ROBERT MOSES, Defendant and Appellant.
Kirk & Myers and Jeffrey Cabot Myers for Defendant and Appellant. Oden & Greene and Douglas A. Oden, Law Offices of Tanisha N. Bostick and Tanisha N. Bostick, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00026687-CU-PO-CTL) APPEAL from an order of the Superior Court of San Diego County, Randa Trapp, Judge. Reversed. Kirk & Myers and Jeffrey Cabot Myers for Defendant and Appellant. Oden & Greene and Douglas A. Oden, Law Offices of Tanisha N. Bostick and Tanisha N. Bostick, for Plaintiff and Respondent.
Defendant and appellant Robert Moses appeals from an order granting a new trial in favor of plaintiff Helen Griner, after a jury in Griner's personal injury action had reached a verdict finding him negligent but that his negligence was not a substantial factor in causing Griner harm. Griner moved for new trial on grounds there was insufficient evidence to justify the verdict (Code Civ. Proc., § 657). In granting the motion, the trial court ruled: "The evidence presented at trial does not support a finding that defendant's negligence did not contribute to plaintiff's harm." On appeal, Moses contends the new trial order must be reversed because the court did not give specific reasons on which it found insufficient evidence to sustain the verdict. He further contends there are no other grounds to grant a new trial: the jury's finding as to causation is not inconsistent with its finding that he owed or breached a duty, and the record does not suggest Griner was entitled to a directed verdict in her favor. We agree that the court's specification of reasons, couched in ultimate facts, was insufficient to meet section 657's requirements. We further conclude we may not affirm the order on grounds the verdict is "against law." Accordingly, we reverse the order.
Undesignated statutory references are to the Code of Civil Procedure. Griner's counsel notified us shortly before oral argument in this matter that Griner passed away in November 2017. Counsel has since substituted Deanna Grady, the personal representative of Griner's estate, as the respondent in this matter.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Griner and her daughters became tenants at a home owned by Moses. Griner lived in an upstairs unit with one of her daughters, and Griner's other daughter lived downstairs. The property had two sets of exterior stairs, one lower cement set, and an upper wooden set leading to the second floor. Griner suffered from preexisting medical conditions including cirrhosis of the liver, hepatitis, pulmonary disease, and emphysema. She also had a history of falling down, but was able to climb the stairs in her home without problems and could do some household cleaning. Since 2006, Griner's live-in daughter served as a county-paid health care worker for Griner. In 2011, Griner suffered injuries when she fell backwards on the stairs, which at the time did not have handrailing. She sued Moses for those injuries, leading Moses to install handrailing to both sets of steps.
In September 2013, Griner fell on the upper stairs, claiming a piece broke off when she stepped on it causing her to slip and lose her balance. According to Griner, she tried to grab onto an existing "guardrail" but it was too thick and she could not grip it, and tumbled backwards to the bottom landing, hitting her head on the cement. She claimed she was knocked unconscious for a time, then told her daughter to call an ambulance because her back was "killing" her. When she arrived at the hospital, doctors found her vertebrae were fractured. She claimed that after the fall, she could not do the chores she used to do because of her back.
Griner sued Moses for negligence, and the matter proceeded to a jury trial. In a special verdict, the jury found that Moses owned, leased, occupied and/or controlled the property, and was negligent in its use and maintenance. However, it found Moses's negligence was not a substantial factor in causing Griner harm. The court entered judgment in Moses's favor.
Griner moved for a new trial, citing in her notice of motion section 657(6), which authorizes a new trial to be granted on grounds of "[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law." Her sole argument was that the evidence was insufficient to justify the jury's verdict. Specifically, Griner argued there was "no evidence presented at trial with the probative force to establish . . . that 1) [her] fall was not the result of [Moses's] negligence, or 2) [her] injuries were not the result of her fall." Griner referred to her testimony that she lost her balance and fell backwards after stepping on the deteriorating step and tumbled down the stairs after grasping for a nonexistent handrail; she maintained that while Moses offered evidence tending to prove she had suffered other falls and injuries, he failed to offer evidence that the fall at issue was not the result of his negligence. She argued the jury relied solely on conjecture—based on Moses's expert's testimony that Griner may have fallen or landed in a different manner and evidence of Griner's preexisting injuries and falls—to speculate about possible alternatives to the cause of her fall and resulting injuries.
In opposition, Moses referred to evidence that plaintiff had prior falls at the same property and at other locations, sometimes due to dizziness, and that she was on disability since 2005 due to back pain. He pointed out she testified she used a walker and cane, that her right foot dragged when she walked, and that she had serious medical conditions at the time of the incident. He suggested Griner testified inconsistently about whether she could climb the stairs at her house without assistance and also whether she had pain in her back before her 2013 fall, and that the testimony of Griner's live-in daughter was not credible. Moses argued that Griner did not counter his theory that her medical conditions were the reason for or contributed to her 2013 fall.
The court heard oral argument on the matter, then granted Griner a new trial in an order stating: "The evidence presented at trial does not support a finding that defendant's negligence did not contribute to plaintiff's harm."
Moses filed this appeal.
DISCUSSION
Moses contends we must reverse the new trial order because it does not contain the required specification of reasons, and the court did not file any such specification within 10 days of issuing its order. He compares the court's one-sentence order to that found deficient in Mercer v. Perez (1968) 68 Cal.2d 104, a personal injury case in which the court's order granting a new trial stated, "The court is of the definite opinion, after analyzing the evidence in this case, that there has been a definite miscarriage of justice. The court is of the opinion that the jury trying this case should have rendered a verdict for the plaintiffs, and against the defendants." (Id. at p. 108.) According to Moses, the court's order in this case must be reversed because "[t]here is absolutely no indication which part of the record the court found insufficient, thereby making it impossible for [him] to know which portions of proof were inadequate and required justification."
Grady responds that the court's statement—"[t]he evidence presented at trial does not support a finding that defendant's negligence did not contribute to plaintiff's harm"—though "concise," satisfies section 657's requirements because it "clearly specifies the issue as that of causation." Relying on Funderburk v. General Tel. Co. (1968) 262 Cal.App.2d 869, she maintains that an order granting a new trial on insufficiency of the evidence may be "couched in terms of ultimate fact" if the motion is "directed to the issue of liability." She also argues, citing Kincaid v. Sears, Roebuck & Co. (1968) 259 Cal.App.2d 733, that in a simple negligence action, an order stating that a "defendant was not negligent may satisfy a brief recitation of the respects in which the court finds the evidence to be legally inadequate."
I. Legal Principles and Standard of Review
"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.) Section 657 identifies seven grounds for a new trial motion, including, as relevant here, insufficiency of the evidence or a verdict that is "against law." (Ibid.)
If the court grants a new trial motion, "additional requirements are imposed by statute. . . . [S]ection 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.' . . . 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 (1985) 38 Cal.3d 892, 899.) Further, the court must prepare the statement of grounds or specification of reasons (§ 657; Mercer v. Perez, supra, 68 Cal.2d at p. 113), which " 'must be the product of the judge's 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.)
" '[N]o hard and fast rule can be laid down as to the content of . . . a specification [of reasons], and it will necessarily vary according to the facts and circumstances of each case.' " (Stevens v. Parke Davis & Co. (1973) 9 Cal.3d 51, 60 (Stevens), quoting Mercer v. Perez, supra, 68 Cal.2d at p. 115.) The court " 'is not necessarily required to cite page and line of the record, or discuss the testimony of particular witnesses,' nor need he [or she] undertake 'a discussion of the weight to be given, and the inferences to be drawn from each item of evidence supporting, or impeaching, the judgment.' " (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 370 (Scala).) But the order " 'must briefly identify the portion of the record which convinces the judge "that the court or jury clearly should have reached a different verdict or decision." ' " (Stevens, at p. 60; Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 696-697; Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 404; Smith v. Moffat (1977) 73 Cal.App.3d 86, 92.) This can be done by "briefly identif[ying] the deficiencies [the court] finds in 'the evidence' or 'the record' or [citation] 'the proof'—rather than merely in 'the issues' or 'the ultimate facts.' " (Scala, at p. 367.) Such a requirement serves the twofold purpose of the specification: "to encourage careful deliberation by the trial court before ruling on the new trial motion and to make a sufficiently precise record to permit meaningful appellate review." (Stevens, at pp. 60-61.)
"California courts have consistently required strict compliance with section 657 . . . . Substantial compliance with the statute is not sufficient." (Oakland Raiders v. National Football League, supra, 41 Cal.4th at p. 634; Linhart v. Nelson (1976) 18 Cal.3d 641, 644.) Where a statement of reasons is inadequate, we independently review the trial court's order granting a new trial. (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1228.)
We note that in setting out this standard of review, the court in Montoya v. Barragan cited Oakland Raiders v National Football League, supra, 41 Cal.4th 624, in which the California Supreme Court addressed whether, in the context of a motion for new trial on the ground of jury misconduct, the consequence of an inadequate specification of reasons was to shift the standard of review from abuse of discretion to de novo. But the court in Oakland Raiders emphasized that the question it addressed was narrowly limited to that context. (Id. 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"].) Though we cannot say the issue presented here is governed by Oakland Raiders, we nevertheless hold that review of a statement of decision's compliance with section 657 presents a question of law subject to de novo review. --------
II. The New Trial Order Does Not Adequately State Reasons
The court's new trial order in this case, notwithstanding its failure to use statutory language, makes reasonably clear that the ground on which it was granting a new trial was insufficiency of the evidence. (Accord, Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 709-710 [ground for new trial is adequately specified if the intention of the court is clear, even if the order lacks statutory language].) However, in ruling that the evidence did not support a finding that Moses's negligence did not contribute to Griner's harm, the court did not cite, much less "briefly identify" (Mercer v. Perez, supra, 68 Cal.2d at p. 116), any portion of the record, evidence or testimony. Nor does the court's order "direct[] [our] attention to some aspect of the record" that "convince[d] the trial judge the jury clearly should have reached a different decision." (Bigboy v. County of San Diego, supra, 154 Cal.App.3d at p. 405.)
The trial court's order here is like the orders granting a new trial on grounds of insufficient evidence in Mercer v. Perez, supra, 68 Cal.2d at p. 108 and Scala, supra, 3 Cal.3d 359 or the order granting a new trial on the ground of excessive damages found deficient in Stevens, supra, 9 Cal.3d 51. In Stevens, the trial court's specification of reasons stated: " '[T]he Court finds that the verdict is excessive, that it is not sustained by the evidence, and that it is based upon prejudice and passion on the part of the jury.' " (Stevens, at p. 59, fn. 9.) Stevens held the statement was inadequate because "[i]t does not indicate the respects in which the evidence dictated a less sizable verdict, and fails even to hint at any portion of the record that would tend to support the judge's ruling." (Id. at p. 62.) In Scala, the California Supreme Court held inadequate an order granting a new trial on grounds "that the evidence showed that plaintiff 'failed to use ordinary care for his own safety,' proximately causing his injuries." (Scala, 3 Cal.3d at p. 369.) The high court observed there were multiple factual issues that might have been the reason for the trial court's conclusion that the plaintiff was guilty of contributory negligence, but the court's specification, phrased in ultimate facts, was "lacking a simple but informative explanation" of the true basis for its ruling. (Ibid.) The court stated: "It follows that a specification of reasons phrased, as here, in term of such 'ultimate facts' as defendant's freedom from negligence and plaintiff's guilt of contributory negligence frustrates rather than promotes the legislative purpose of facilitating meaningful appellate review of the order granting a new trial, and hence is inadequate to comply with the mandate of . . . section 657." (Id. at pp. 369-370.) The high court reversed the order. (Id. at p. 371.)
Here, the trial court made no direct reference to any portion of the record to support its ruling that no evidence supported the jury's finding as to causation. (Compare, Romero v. Riggs (1994) 24 Cal.App.4th 117, 123-124 [upholding as a sufficient statement of reasons the trial court's order stating, "The medical evidence was overwhelming that the early onset and the severity of the effect upon the plaintiff and his early deterioration of eyesight was a direct and proximate result of the negligent failure of the defendant doctor to diagnose and treat the plaintiff's condition"; the order was sufficient because it "more than adequately 'directs the appellate court's attention' to the aspects of the record which support the order; here the 'overwhelming' medical evidence of six experts"].) It did not provide any "appraisal of the evidence" (Scala, supra, 3 Cal.3d at p. 369) bearing on the causation issue. To the contrary, the trial court's order in this case merely cites Moses's failure to negate causation, phrased in ultimate facts. (Accord, Van Zee v. Bayview Hardware Store (1968) 268 Cal.App.2d 351, 358, 360 [specification of reasons stating: " '[T]he evidence is insufficient to support the verdict in that the evidence does not establish that the Zynolyte aerosol paint can was defective at any time prior to the delivery of said can to the possession of the Plaintiff' " held deficient because it merely stated the failure to prove the ultimate fact in the case]; Miller v. Los Angeles County Flood Control Dist., supra, 8 Cal.3d at p. 698 [statement that "the District completely and adequately discharged any obligation it had in the maintenance of the basin and dam as demonstrated by the overwhelming preponderance of the evidence" deficient because it merely said that plaintiffs had failed to prove the ultimate fact they were required to establish].) As in Mercer v. Perez, the present specification "amounts to no more than an invitation to search the record" (Mercer v. Perez, supra, 68 Cal.2d at pp. 116-117); that is, it is impossible to determine whether there is any "substantial basis in the record" for the trial court's reasons without examining "the entire body of the testimony and exhibits introduced at the trial" (id. at p. 114) or speculating as to why the court considered Moses's evidence was lacking on the causation element.
Contrary to Grady's argument, a ruling referring only to ultimate facts does not comply with section 657. Our high court has made clear " 'a specification which merely recites that under the court's view of the evidence "the defendant was not negligent" or "the plaintiff was negligent" is of little if any assistance to the appellant or to the reviewing court.' " (Stevens, supra, 9 Cal.3d at p. 61, quoting Scala, supra, 3 Cal.3d at p. 366.) In Scala, the court disapproved the two authorities on which Grady relies—Funderburk v. General Tel. Co., supra, 259 Cal.App.2d 869 and Kincaid v. Sears, Roebuck & Co., supra, 259 Cal.App.2d 733, characterizing Kincaid as dictum that was "elevated" by Funderburk into a rule providing a specification of reasons couched in terms of ultimate facts is adequate. (Scala, 3 Cal.3d at p. 364.) Scala rejected the line of cases following Funderburk, explaining that the better rule was that courts should refer to the evidence, record or proof rather than merely the issues or the ultimate facts, which serves the legislative intent underlying section 657. (Scala, at pp. 366, 367.) That is, the specification of reasons must point to deficiencies in proof so as to permit the reviewing court to review in a meaningful way the order granting the new trial. (Scala, at p. 366; see also Aronowicz v. Nalley's, Inc. (1972) 30 Cal.App.3d 27, 39.)
Grady asks that if we decide the trial court's order failed to meet section 657's requirements, we remand the matter to the trial court with instructions to further state the ground and reason for granting a new trial. She also argues that section 657's 10-day time limit for the court's filing of its specification of reasons is unconstitutional as violating her right under the California Constitution to due process of law. Grady maintains it is not fair to deny her a new trial due to the court's failure to articulate its reasons for its order within 10 days of its filing. Though she acknowledges the court in Mercer v. Perez reached this holding, she argues that to follow Mercer and reverse the order "is an absurdity" because she has no power to compel the court to act in a timely manner and is prohibited from preparing the order herself. But Grady does not deny her counsel received the court's order or state she was unaware of section 657's requirements. We perceive no unfairness in placing a burden on her to raise any inadequacies with the court if she was not certain its order complied with the statutory new trial requirements. "While section 657 places upon the judge the sole duty of composing his [or her] order, in practice, equal responsibility rests upon the party who is granted a new trial to assure himself [or herself] that the order complies with the statutory procedure." (Gaskill v. Pacific Hospital of Long Beach (1969) 272 Cal.App.2d 128, 133.) Contrary to Grady's argument, Gaskill is neither dictum nor inapposite on the question; in Gaskill, the court made clear its conclusions applied even where, as here, the court granting a new trial gave "a wholly insufficient reason" for adopting its order. (Ibid.)
And, as Grady acknowledges, her request for a remand is directly contrary to Mercer v. Perez, supra, 68 Cal.4th 104. The Mercer court expressly rejected the plaintiff's request for precisely such a remand, explaining that to remand the matter to the trial court with instructions to prepare the necessary specification of reasons would misread the statute's mandatory requirements; a specification of reasons filed beyond the statutory 10-day limitation would be "in excess of jurisdiction." (Id. at p. 121; see also Oakland Raiders v. National Football League, supra, 41 Cal.4th at p. 635 ["the appellate court cannot remand the case to permit the trial court to correct an insufficient statement of reasons"]; La Manna v. Stewart (1975) 13 Cal.3d 413, 418 [" 'the prescribed 10-day period is a statute of limitations on the authority of the court to act, and . . . after the expiration of the period the court has no power to add a specification of reasons by a nunc pro tunc order or otherwise' "]; Fergus v. Songer (2007) 150 Cal.App.4th 552, 563 [specification of reasons filed after the 10-day limit is in excess of jurisdiction and void].) We are bound to adhere to the California Supreme Court's decisions on this question. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d. 450, 455.)
III. The Verdict is Not Against Law
"[S]ection 657 requires an appellate court to affirm a new trial order if it should have been granted on any ground stated in the motion." (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 905.) Because the new trial notice of motion referred to section 657(6), which encompasses the ground of a verdict that is "against law," we assess whether that ground has merit. We must affirm the trial court's order granting the motion "if . . . such other ground legally requires a new trial." (Ibid.; Fergus v. Songer, supra, 150 Cal.App.4th at p. 567.)
"In contrast to the grounds of insufficient evidence and excessive or inadequate damages, 'the phrase "against law" does not import a situation in which the court weighs the evidence and finds a balance against the verdict, as it does in considering the ground of insufficiency of the evidence.' [Citation.] Because the 'against law' ground is distinct from the ground of insufficiency of the evidence, a new trial order must be affirmed as against law even though that ground is not stated in the order or supported by a specification of reasons." (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.)
A verdict is against law "only if it [is] '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.] '[T]he function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.' [Citations.] Accordingly, we examine the record to determine whether the verdict for [Moses] was, as a matter of law, unsupported by substantial evidence. In our examination we apply the well-established rule of appellate review by considering the evidence in the light most favorable to the prevailing party . . . and indulging in all legitimate and reasonable inferences indulged in to uphold the jury verdict if possible." (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at pp. 906-907; Fergus v. Songer, supra, 150 Cal.App.4th at p. 567.)
Having reviewed the record, we cannot say the verdict in Moses's favor on the element of causation is unsupported by substantial evidence. The jury heard evidence that neither of Griner's daughters actually saw Griner fall. Griner herself testified that doctors had warned her she was a fall risk and that she suffered from a foot drag. She admitted falling in various places—her shower, a department store and a pet store—before the incident. On the day of the incident, her caregiver daughter did not assist her up the stairs even though before the incident Griner sometimes had required such assistance so she would not fall. Griner also testified she never notified Moses of any complaints about the wooden stairs or notified him of the absence of a handrail. Moses challenged Griner's credibility by confronting her with medical records showing that she had been told she had compression fractures in her back in 2011, and complained of back pain at that time. Though Griner testified at trial that she had pain only in her lower spine before the incident, Moses impeached her with her 2016 deposition in which she denied having pain in her back before the September 2013 fall. Moses presented an expert who described Griner as "an individual who has one foot in a puddle of oil and the other on a bar of soap" who was "very, very fragile because of her multiple, multiple medical problems that preexisted this accident."
Such evidence would permit the jury to conclude without speculation that Griner's fall was caused by factors—the lack of assistance, her dropped foot, or her tendency to fall—other than Moses's failure to maintain the staircases.
Based on the foregoing, we are required to reverse the order. (Scala, supra, 3 Cal.3d at p. 371.) "Since 'it shall be conclusively presumed that said [new trial] order as to such ground was made only for the reasons specified' [citation], and the ground of insufficiency of the evidence is unsupported by a proper specification of reasons, we conclude that the order granting a new trial must be reversed. Consequently the judgment in favor of [Moses] and against [Griner] will be automatically reinstated." (Miller v. Los Angeles County Flood Control Dist., supra, 8 Cal.3d at p. 699; see also La Manna v. Stewart, supra, 13 Cal.3d at p. 425 ["the order cannot be sustained on this ground and must therefore be reversed"]; Bigboy v. County of San Diego, supra, 154 Cal.App.3d at p. 408 ["[t]he statement of reasons . . . are insufficient . . . [and] therefore the jury verdict must be reinstated"].)
DISPOSITION
The order is reversed. Moses shall recover his costs on appeal.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.