Opinion
G029098.
7-28-2003
MURRIETTA CAR WASH, INC., et al., Cross-Complainants and Appellants, v. NORTH COUNTY BANK, Cross-Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on June 27, 2003, be modified as follows:
1. On page 17, in the second full paragraph beginning "The trial court entered a minute order" delete the paragraph and replace it with the following:
The trial court initially entered a minute order stating: "[The] Banks motion[] for new trial [is] granted for reasons stated on the record." After being advised by the parties that it was required to specify the reasons for its order in writing, and reference to the courts oral statements on the record was insufficient, the trial court entered a second minute order stating: "For the reasons stated in moving partys points and authorities the motion is granted. [P] In particular, the Court finds that the jury should have reached a different verdict as to whether there was a change in the terms of the loan agreement between lender and borrowers sufficient to have created a new and different loan agreement. The facts established in the trial cannot support the jurys finding that the parties amended, rescinded, or otherwise terminated the original loan agreement and entered a new and different agreement. [P] Moreover, the Court finds that the amount awarded as damages is excessive because it (a) reflects a double recovery in light of the fact that valuation of the business property does already take into account the future income stream, while this award improperly includes an additional component for lost profit, and (b) the damages awarded do not appear to reflect any deduction for the amount of the outstanding loan."
2. On page 19, insert the following new paragraph before the second full paragraph beginning "We empathize":
In a petition for rehearing, the Bank cites us to Twedt v. Franklin (2003) 109 Cal.App.4th 413, a case decided after this opinion was filed, to support its argument that the trial courts oral comments at the hearing on the motion for new trial make up for any lack of specificity in the courts written specifications. We find Twedt v. Franklin inapplicable in this case for two reasons. First, in Twedt v. Franklin the transcript containing the courts reasoning was attached to and incorporated in the courts order granting the new trial motion (id. at p. 419), which is not the case here. While the Bank argues that we are exalting form over substance by requiring compliance with the statute and refusing to consider the trial courts verbal statements, the case on which it relies explicitly holds the trial court cannot avoid preparing a written statement of reasons by incorporating a transcript of its oral reasoning into the order granting a new trial, except under specific circumstances not applicable here. (Ibid.) More importantly, in Twedt v. Franklin the trial court specified the evidence and testimony it relied on in deciding to grant the new trial motion (id. at pp. 416-417), which the trial court here failed to do.
These modifications do not effect a change in the judgment. The petition for rehearing is DENIED.
I CONCUR: OLEARY, J.
BEDSWORTH, ACTING P. J.
I recommend that the petition for rehearing be GRANTED.