Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City and County Super. Ct. No. CGC-06-450275
SIMONS, J.
Defendant Valery Dobrushin (Dobrushin) appeals an order granting a new trial in favor of plaintiff Linh Lai (Lai) in Lai’s breach of contract action involving the sale of a small business. Dobrushin contends the trial court erroneously granted the new trial motion. We disagree and affirm.
Lai also sued defendants Barry Jeneh and Jeneh’s business, J.B. Investment Company (hereafter collectively Jeneh), for breach of fiduciary duty. The jury found that Jeneh breached his fiduciary duty to Lai resulting in damages of $32,411. Jeneh and J.B. Investment Company are not parties to this appeal.
BACKGROUND
On August 1, 2005, Dobrushin, owner of Val’s Optical Boutique (Val’s), located in San Jose, and Jeneh, a licensed real estate broker, entered into a listing agreement for the sale of Val’s. The listing agreement specified it had a nine-month term, until May 2006.
On September 16, 2005, Lai (as buyer), a licensed optician, and Dobrushin (as seller) entered into a “Standard Business Opportunity Business Agreement” regarding Lai’s purchase of Val’s for $85,000. Val’s was located about 10 minutes away from Lai’s home. The contract, filled out by Jeneh, listed J.B. Investment Company as the listing agent and Jeneh as the agent for both Dobrushin and Lai. It specified: $2,500 in inventory was included in the sale price; within 25 days Dobrushin was to open escrow; an additional $49,000 cash deposit would be placed in escrow; Lai was to assume the existing lease; and the sale was conditioned on the lessor’s consent to the lease assignment. The contract also had clauses stating that time was of the essence, that conditions had to be waived in writing and contract modifications had to be in writing, dated and signed by both parties. An addendum to the contract executed by the parties on the same day specified that the sale was contingent on Dobrushin’s written approval of the following documents from Lai within 10 days: Lai’s resume, credit report, financial statement and “ABO license.” The addendum also made the sale contingent on Lai’s “approval of observation of the business for period of [five] days” and approval of the new lease. By January 2006, the sale of Val’s to Lai had not occurred.
Lai did not remember reading or signing the addendum, but acknowledged that it bore her signature. She said she first learned of the addendum after she filed this action.
The Complaint
On March 13, 2006, Lai filed her complaint against Dobrushin and Jeneh. The cause of action for breach of contract against Dobrushin alleged that he breached the contract by failing to: open escrow for the sale of Val’s, transfer the business to Lai, finalize the sale to Lai, and transfer ownership of the Val’s inventory. The complaint sought specific performance and/or damages. The breach of fiduciary duty cause of action against Jeneh alleged Jeneh made numerous false representations to Lai regarding the sale of Val’s. In particular, Jeneh did not act to ensure that escrow would be opened within 25 days of signing the contract and made false statements regarding delays in the purchase.
The complaint erroneously referred to Dobrushin as Val “Dudrushin.”
Lai’s Trial Testimony
Lai testified that upon executing the contract on September 16, 2005, she gave Jeneh a $1,000 check payable to J.B. Investment Company to satisfy the contract’s good faith deposit requirement. Jeneh copied the check and then gave it back to her and told her to bring it when escrow actually closed. Jeneh said she would have two weeks to get the landlord’s approval; and Jeneh also said he would arrange a meeting between Jeneh, Lai and the landlord, and Lai could bring her bank statements, credit report and resume to that meeting. Lai told Jeneh she had all the documents at home. Lai called Jeneh and reminded him she needed to get lease approval within two weeks of signing the contract, and asked him when they were going to meet with the landlord. Jeneh assured her she need not worry about the lease approval because Dobrushin had spoken with the landlord who “had no problem” regarding the lease. Jeneh told Lai she did not have to bring the documents in and could, instead, bring them at the close of escrow.
Subsequently, Jeneh told Lai that there would be a delay in the closing of escrow because Dobrushin and his wife were going through a divorce and the wife kept changing her mind about the date on which she wanted to sell Val’s. Jeneh continuously promised that Lai would be able to purchase Val’s, but it would take “a bit longer.” Lai told Jeneh she wanted to close the sale as soon as possible, but would be willing to wait a few months until Dobrushin’s issues were resolved. Lai agreed to Dobrushin’s opening of escrow more than 25 days from the date of contract, although there was no written modification of the contract to that effect. Jeneh told Lai she would have no problems assuming the lease and it could be done at the end of escrow. When she expressed concern about the lease approval contract condition Jeneh assured her there would be no problems with the contract, and so “long as both parties agreed, it would be okay.” Lai understood they had a verbal agreement which was “okay.” “Each time [Jeneh] stated clearly that . . . he was instructed by [Dobrushin] to tell [her] these things.”
On September 29, 2005, while Lai was out of work and waiting for the Val’s sale to close, she made a written offer to purchase a different optical business, Pacific Heights Optical (Pacific), located on Clay Street in San Francisco. The Pacific sale closed at the end of November, and Lai took possession of Pacific on December 1. Lai had enough money after purchasing Pacific to purchase Val’s.
Lai had looked at Pacific a few days before executing the contract for Val’s, but was no longer interested in it after executing the Val’s contract. When the Val’s sale was delayed, she renegotiated the purchase of Pacific.
Between late September and November 2005, Lai made numerous calls to Jeneh regarding the status of the Val’s sale. In November, Jeneh told Lai there were delays and he would get back to her when he heard from Dobrushin. In late November, Lai received a call from a Val’s employee regarding an “RDO certificate” in Lai’s name that had been sent to Val’s. Because Dobrushin had not yet cancelled his RDO certificate, the medical board had erroneously issued Lai’s certificate. When Lai went to Val’s to pick up her RDO certificate, its employee said Dobrushin had instructed her to tell Lai that it might take a couple of months, but as soon as Dobushin’s problems were solved he would sell Val’s to Lai. In mid-December, Jeneh told Lai that Dobrushin’s divorce would be finalized on January 10, 2006, at which time Dobrushin would open the escrow. Lai expected the sale would take place shortly thereafter.
According to Lai, a registered dispensing optician (RDO) license was necessary in order to own and operate an optical business.
In late December 2005, Lai wrote to Dobrushin requesting him to open escrow no later than January 15, 2006, or she would take legal action. On January 3, 2006, Jeneh called Lai and suggested he and she meet to discuss the Val’s sale. They met the next day. When she asked if they were going ahead to open the escrow, Jeneh said not until the lease approval was obtained. Jeneh asked her to bring him two months of financial statements, her bank statements and her resume. Lai faxed Jeneh the documents later that day. Lai never heard from Jeneh again.
On January 31, 2006, Lai wrote to Jeneh informing him that she would be seeking legal assistance to help her purchase Val’s and no longer wanted him to represent her in the sale. The letter stated that after Lai had faxed him the documents needed for lease approval on January 4, she had not heard from him. Lai’s letter also stated that Jeneh had prolonged the sale process, misled her about the process, and failed to return her calls.
In June or July 2006, due to her long commute, Lai found a job closer to her home and hired employees to run the Pacific business. In September she listed Pacific for sale.
Dobrushin’s Trial Testimony
Dobrushin testified that at the September 16, 2005 meeting between him, Lai and Jeneh, it was discussed that Lai’s bank statements for two months, credit report and ABO license needed to be provided to the landlord. Jeneh did not call the landlord to set up a meeting because Lai did not provide the documents. Dobrushin said he did not sell Val’s to Lai because she did not present the necessary documents and because he thought she was unqualified to own the business. In the middle of October 2005, Dobrushin realized the sale of Val’s to Lai was not going through because Lai had not provided the necessary documents. Dobrushin understood Lai was to deal only with Jeneh for purposes of the sale, and therefore Dobrushin did not, himself, ask Lai to provide the requisite documents. Dobrushin called Jeneh and said he did not want to sell Val’s to Lai because she appeared to be uninterested. In January 2006, Dobrushin was surprised to receive Lai’s letter because he thought the relationship with Lai ended in October 2005. He then forwarded Lai’s letter to Jeneh, although he understood that after October 2005, Jeneh was no longer his agent. Dobrushin said he divorced his wife in 2001 and she had no ownership interest in Val’s.
On cross-examination, Dobrushin said he saw Jeneh give Lai a copy of the contract and addendum at the September 16, 2005 meeting. He said after Lai wrote the $1,000 check, she asked for it back and said she would deposit the entire deposit at the escrow opening. Within the next 25 days, Dobrushin called Jeneh about 10 times to find out the status of the sale and Jeneh said Lai kept asking for delays. In mid-October, Dobrushin decided he no longer wanted to sell Val’s to Lai because she had not presented the requisite documents and had not come to Val’s to check out the business further. Dobrushin told Jeneh not to contact him anymore regarding the sale of Val’s.
At his deposition, Dobrushin said he did not know whether Lai had been given the addendum at the time the contract was signed.
Jeneh’s Trial Testimony
Jeneh testified that although Dobrushin said he wanted to sell Val’s to buy a bigger store, Jeneh told Lai that Dobrushin wanted to sell Val’s in order to retire. Jeneh denied telling Lai that he would be her agent regarding the sale of Val’s. Jeneh said that Lai got copies of the contract and the addendum. He never called Lai and asked her to send the documents because she called him almost weekly. When he asked her to provide the documents mentioned in the addendum she said she needed more time. He responded that she might lose the business. By the end of October, Jeneh told Lai that Dobrushin decided he could not sell Val’s to her. In January 2006, Dobrushin called Jeneh after receiving Lai’s letter. Dobrushin told Jeneh he was no longer interested in selling Val’s to anyone. When Jeneh met with Lai on January 4, 2006, he tried to convince her to buy another business, but she only wanted to purchase Val’s. She provided him only with her resume and bank statements.
On cross-examination, Jeneh testified that sometime within the 25 days of the parties’ execution of the contract, Lai asked him to delay the Val’s sale. In mid-October 2005, Dobrushin told Jeneh he could not wait any longer to sell Val’s, and because Lai had not provided any of the requisite documents Dobrushin felt she was not a “real buyer.” At the end of October, Jeneh explained to Lai that Dobrushin had changed his mind and Val’s was no longer for sale. When he met with Lai in January 2006, Jeneh told her he was no longer Dobrushin’s agent. Jeneh denied telling Lai that Dobrushin was getting a divorce; he never mentioned Dobrushin’s wife to Lai.
Jury’s Special Verdict
In its unanimous breach of contract special verdict the jury found: the parties entered into a contract; Lai did not do all or substantially all of the significant acts the contract required her to do; and Lai was not excused from having to do all or substantially all of the significant acts the contract required her to do. In its unanimous breach of fiduciary duty special verdict the jury found: Jeneh owed a fiduciary duty to Lai and Jeneh breached that fiduciary duty, resulting in Lai’s suffering $32,411 in lost profits damages. However, it found that Jeneh did not engage in conduct toward Lai with malice, oppression or fraud. The trial court found Dobrushin to be the prevailing party on the breach of contract cause of action and entered judgment in his favor on that cause of action. The trial court found Lai to be the prevailing party on the breach of fiduciary duty cause of action and entered judgment in her favor on that cause of action.
New Trial Motion
Lai moved for a new trial of the breach of contract cause of action pursuant to Code of Civil Procedure section 657, subdivision (6), on the ground the evidence at trial established that Jeneh’s statements and conduct must be imputed to Dobrushin because Jeneh was Dobrushin’s agent for the sale of Val’s and was acting within the scope of his actual and ostensible authority. She argued that based on the trial court’s ruling that promissory estoppel applied in the case, Dobrushin could not rely on the contract provision requiring contract modifications to be in writing. Moreover, she could reasonably rely on Jeneh’s statements to submit her documents at the close of escrow to mean the contract and addendum had been modified to excuse her performance of the document submission requirement until after the opening of escrow. Thus, she argued she did not breach the contract by failing to submit her documents and the only possible conclusion is that Dobrushin breached the contract by not opening escrow and refusing to sell Val’s to her.
All undesignated section references are to the Code of Civil Procedure.
Dobrushin opposed the new trial motion on the ground that in finding Lai’s performance under the contract was not excused, the jury must have found Jeneh and Dobrushin more credible than Lai on that issue, and therefore Jeneh did not make any misrepresentations to Lai regarding the contract. In addition, Dobrushin argued that the evidence supported various factual inferences of Jeneh’s breach of his fiduciary duty to Lai which would not render Dobrushin vicariously liable. In particular, Dobrushin argued the jury could have found Jeneh breached his fiduciary duty by failing to communicate with Lai and/or dividing his loyalty between her and Dobrushin. Finally, Dobrushin argued that Lai’s promissory estoppel argument was misplaced since there were no agency or promissory estoppel findings by the jury.
In reply, Lai argued the trial court should find her more credible than Jeneh, and conclude the jury failed to apply the principles of agency to bind Dobrushin to Jeneh’s statements excusing her from the document delivery requirement.
The trial court’s written order granting Lai’s motion for new trial stated: “[Lai] argues that the evidence clearly showed that . . . Jeneh was a dual agent serving [Lai] and [Dobrushin]. The jury confirmed that by finding that Jeneh breached his fiduciary duty to [Lai] and awarding her $32,411 in damages. [Lai’s] argument to the jury was that Jeneh misled [Lai] by telling her that she didn’t need to provide her financial statements and other documents, as required by the purchase contract, until escrow was opened, all the while knowing that [Dobrushin] did not want to sell the business to [Lai]. [Dobrushin’s] unwillingness to sell, for whatever reason, [Lai] argues, was communicated to Jeneh who then stalled [Lai] in her efforts to conclude the sale. [¶] The actions of Jeneh were, by law, the actions of [Dobrushin] when Jeneh continually frustrated [Lai’s] efforts to complete the sale. The jury inexplicably failed to follow the law of agency and allowed [Dobrushin] to escape responsibility for directing his agent to frustrate the sale. [Lai’s] argument is well founded. The jury’s verdict in favor of [Dobrushin] is not supported by sufficient evidence. ([] § 657.) The jury, after finding that Jeneh breached his fiduciary duty by making misrepresentations to [Lai] about when the sale would close, should also have concluded that [Dobrushin], as the seller, was ultimately responsible for directing, Jeneh, his agent, to deceive [Lai] as to when the sale would be completed. This court concludes that the jury clearly should have reached a different verdict as to the breach of contract claim against [Dobrushin], and thus, [Lai] is granted a new trial against [Dobrushin].”
The trial court also summarily denied Lai’s alternative motion for judgment notwithstanding the verdict on the ground that “any damages recoverable by [Lai] on a breach of contract claim against Dobrushin would require a factual determination and this could be accomplished in a new trial.”
Dobrushin thereafter filed this timely appeal.
DISCUSSION
I. The New Trial Order Complied with Section 657
Dobrushin contends the trial court erred in granting the new trial motion based on the insufficiency of the evidence because it failed to comply with the procedural requirements of section 657. In particular, Dobrushin argues the trial court’s order failed to cite to or weigh the evidence at trial, failed to discuss the credibility of any witness, consisted only of statements of ultimate facts, and merely incorporated Lai’s arguments at trial without reflecting the trial court’s own mental processes.
Section 657, subdivision 7, provides, in part: “When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court’s reason or reasons for granting the new trial upon each ground stated. [¶] . . . [¶] . . . (b) on appeal from an order granting a new trial upon the ground of insufficiency of the evidence to justify the verdict or other decision, . . . 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, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any such reasons.”
Requiring the trial court to specify its reasons promotes judicial deliberation before judicial action, and provides parties on appeal with more meaningful review by narrowing the scope of review to the reasons specified in the new trial order. (Mercer v. Perez (1968) 68 Cal.2d 104, 112-114 (Mercer).) “[I]t will be sufficient if the judge who grants a new trial furnishes a concise but clear statement of the reasons why he finds one or more of the grounds of the motion to be applicable to the case before him. No hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.” (Id. at p. 115.) “[I]f the ground relied upon is ‘insufficiency of the evidence’ the judge must briefly recite the respects in which he finds the evidence to be legally inadequate; no other construction is consonant with the conclusive presumption on appeal that the order was made ‘only for the reasons specified.’ ” (Id. at p. 116.) “[S]uch an 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.’ ” (Ibid., fn. omitted.)
After Mercer, the Supreme Court in Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359 (Scala) revisited the requirement that reasons be specified. It rejected as an insufficient ultimate statement of reasons an order granting a motion for new trial that merely stated, “ ‘[T]here is no sufficient evidence to show that the defendant was negligent and the evidence does show that the plaintiff failed to use ordinary care for his own safety and that that failure was a proximate cause of his injuries.’ ” (Id. at p. 363; see also id. at pp. 369-370.) Scala reiterated Mercer’s direction that “the judge ‘must briefly recite the respects in which he finds the evidence to be legally inadequate,’ ” and “ ‘must briefly identify the portion of the record which convinces the judge “that the court or jury should clearly have reached a different verdict or decision.” ’ ” (Scala, at pp. 363-364.) However, it also recognized the demands on busy trial courts: “ ‘[T]he trial judge is not necessarily required to cite page and line of the record, or discuss the testimony of particular witnesses,’ nor need he 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.’ [Citation.] On the other hand, he must do more than in effect reiterate the ground of his ruling.” (Id. at p. 370.)
Thereafter, in Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 415 (Lane) the Supreme Court stated that although section 657 prohibits a trial court from requiring counsel to prepare new trial orders, “it does not prohibit a court from adopting material in a party’s brief . . . . The ‘critical factor . . . is whose mental processes are being used, not whose language is being employed.’ [Citation.]” (Fn. omitted.)
We conclude the trial court’s specification of reasons is not merely a statement of ultimate facts or Lai’s mental processes. Although phrased in terms of its agreement with Lai’s closing argument, the trial court’s order, in essence, included the following factual findings: (1) Jeneh was a dual agent for Dobrushin and Lai; (2) Dobrushin told Jeneh he did not want to sell Val’s to Lai; (3) although Jeneh knew Dobrushin did not want to sell Val’s to Lai, Jeneh stalled Lai’s efforts to complete the sale by telling her she did not have to provide the documents required by the contract until after escrow was opened; (4) Jeneh’s stalling tactics deceived Lai as to when the sale would be completed; and, (5) Dobrushin directed Jeneh to misrepresent to Lai when the Val’s sale would be completed. Although not a model of clarity, the thrust of the trial court’s new trial order is that Dobrushin’s direction to Jeneh to misrepresent to Lai when the sale would be completed resulted in Lai’s delay in providing the documents required by the contract. Dobrushin’s conduct excused Lai’s performance of that contract condition and supported a determination that Dobrushin breached the sales contract.
These findings and conclusion were a reasonable interpretation of the evidence and are supported by the appellate record. In particular, the record belies Dobrushin’s contention that there is no evidence to support the finding that Dobrushin directed Jeneh to misrepresent to Lai when the Val’s sale would be completed. Lai testified that, in response to her repeated concerns regarding delaying the close of escrow and lease approval, Jeneh assured her there would be no problems with the contract and “Each time [Jeneh] stated clearly that . . . he was instructed by [Dobrushin] to tell [her] these things.”
We therefore reject Dobrushin’s claim that the trial court’s new trial order failed to comply with the procedural requirements of section 657.
II. The New Trial Order Is Subject to Review for Abuse of Discretion
Next, Dobrushin contends we must review the order granting a new trial pursuant to a de novo standard of review, rather than the ordinary abuse of discretion standard, because the trial court treated the new trial motion as a dispositive motion such as a motion for judgment notwithstanding the verdict, directed verdict or nonsuit. We disagree.
“An appellate court has the power to look at the substance of a new trial ruling, and where the effect of the ruling is closer to a directed verdict or a [verdict not withstanding the judgment], the ruling may be deemed to have been based on a conclusion of law so that de novo review is appropriate. [Citations.] . . . The distinction is that one kind of ruling—such as nonsuit, directed verdict or [verdict not withstanding the judgment]—disposes of the litigation. In granting the motion the court essentially rules the plaintiff never can prevail, even if the matter were to be retried. [Citation.] It follows, in part, that a court should make such rulings only when, disregarding conflicting evidence, giving to the plaintiff’s evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence, the result is a determination there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. [Citation.] On the other hand, a grant of a new trial on the grounds of insufficiency of evidence ‘does not entail a victory for one side or the other. It simply means the reenactment of a process which may eventually yield a winner.’ [Citation.] The motion is granted ‘not because the judge has concluded that the [defendant] must lose, but only because the evidence in the trial that actually took place did not justify the verdict. Evidence might exist to justify the verdict, but for some reason did not get admitted; perhaps because the [defendant’s] attorney neglected to call a crucial witness or ask the right questions. There is still the real possibility that the plaintiff has a meritorious case.’ [Citation.]” (Dell’Oca v. The Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 548.)
Dobrushin argues the new trial order is dispositive because pursuant to it the jury’s verdict against Jeneh requires a verdict against him. Dobrushin asserts that because Jeneh did not appeal, the judgment against Jeneh is final and a new trial will yield the same result—a verdict for Lai. Dobrushin argues the trial court “apparently ruled that [his] liability is established as a matter of law and that the only issue to be retried is damages.” Dobrushin’s argument is speculative. We interpret the trial court’s new trial order as making a factual finding that Dobrushin directed Jeneh to misrepresent to Lai when the Val’s sale would be completed, and we have concluded that Lai’s testimony supports that finding. Therefore, we are not persuaded by the argument that the trial court found Dobrushin liable solely as a matter of law based on agency principles. Thus, at the hearing on the new trial motion in response to Dobrushin’s assertion that a new trial would reach the same result, the trial court properly responded, “I have no idea what another trial would do.” We conclude the new trial order is reviewable under the abuse of discretion standard.
We have determined that evidence was presented to support the trial court’s conclusion that Dobrushin was liable for breach of contract based on its factual finding that Dobrushin directed Jeneh to misrepresent to Lai when the Val’s sale would be concluded. Therefore, we need not address Dobrushin’s arguments that the trial court erred in ruling as a matter of law that Dobrushin was liable for Jeneh’s acts solely under principles of agency.
Pursuant to that abuse of discretion standard, “an order granting a new trial under section 657 ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ [Citation.] Moreover, ‘[a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached . . . .’ [Citation.] In other words, ‘the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new trial] order.’ [Citation.] [¶] The reason for this deference ‘is that the trial court, in ruling on [a new trial] motion, sits . . . as an independent trier of fact.’ [Citation.] Therefore, the trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations. [¶] The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jury’s verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons. [Citation.]” (Lane, supra, 22 Cal.4th at p. 412.)
In this case, the trial court could properly conclude that Dobrushin’s direction to Jeneh to misrepresent to Lai when the Val’s sale would be completed constituted a breach of the parties’ contract and excused Lai’s failure to provide the requisite documents within the time limits specified in the contract. Since substantial evidence supports the trial court’s stated reasons for granting a new trial, no abuse of discretion is shown.
DISPOSITION
The order is affirmed.
We concur. JONES, P.J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 657 provides in part: “The verdict may be vacated . . ., in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] 6. Insufficiency of the evidence to justify the verdict . . . .”