Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County Super. Ct. No. 05CC06800, Randell L. Wilkinson, Judge.
Haight Brown & Bonesteel LLP, Rita Gunasekaran and Kenneth G. Anderson for Defendant and Appellant.
Angelo & Di Monda, Christopher E. Angelo and Joseph Di Monda for Plaintiff and Appellant.
OPINION
O’LEARY, J.
Phuong Thanh Nguyen was making a left-hand turn in his car across three lanes of oncoming traffic when he collided with a motorcycle driven by Vu Nguyen Phan, who had the right-of-way. When the jury returned a verdict finding Nguyen was not negligent, the trial court granted Phan’s motion for judgment notwithstanding the verdict (JNOV) on liability and ordered a new trial limited to damages. Nguyen appeals from the order contending (among other things) JNOV was improper because there was substantial evidence supporting the defense verdict. We agree with Phan the order granting JNOV and a new trial on damages is not appealable, and we dismiss the appeal.
FACTS
Nguyen was driving his car on a busy six-lane street. He entered a left-turn pocket at a break in the median to make a left hand turn across the three lanes of oncoming traffic into a shopping center parking lot. Nguyen understood the oncoming traffic had the right-of-way. When the traffic in oncoming lane 1 (closest to the median) and lane 2 (the middle lane) stopped, Nguyen began his left turn blocking those two lanes. The vehicle in lane 2 blocked Nguyen’s view of lane 3. Nguyen waited, and when no vehicles drove past him in lane 3, he pulled into the lane. Phan, who was riding on his motorcycle in lane 3, collided with Nguyen’s car. Phan suffered catastrophic injuries in the accident.
Phan’s complaint against Nguyen contained a single cause of action for negligence. On July 7, 2006, the jury returned a defense verdict. On the special verdict form, the jury found Nguyen was negligent, and in accordance with the instructions on the form, the jury did not go on to answer the remaining questions concerning causation, damages, or contributory negligence.
Before a judgment for Nguyen was signed or entered, Phan filed a motion for JNOV on the grounds there was not sufficient evidence to support the defense verdict, the verdict was erroneous as a matter of law, and had a motion for directed verdict in Phan’s favor on liability (negligence per se) been made, it would have been granted. On the same day, Phan also filed a motion for new trial on the grounds there was insufficient evidence to support the verdict and the jury ignored and/or nullified the law.
The court agreed with Phan. The uncontroverted evidence was Phan had the right-of-way, Nguyen entered the lane without being able to see if anyone was there, and there was no evidence Phan was in any way negligent. Thus, as a matter of law, Nguyen was liable for the accident. Accordingly, the court stated it was granting the motion for JNOV and it would set a new trial date on damages. On August 16, 2006, the court issued a minute order stating, “[m]otion for [JNOV] is granted. Motion for new trial granted as to damages only. . . .” On September 14, 2006, the court signed and entered an order granting the motion for JNOV on liability and granting a new trial as to damages only. The court also signed a proposed statement of decision submitted by Phan setting forth its reasons for granting JNOV and ordering a new trial on damages.
On September 18, 2006, Nguyen filed a notice of appeal from the original August 16 minute order. On October 3, Nguyen filed a second notice of appeal stating he was appealing the August 16 and September 14 orders “and from all intermediate rulings and orders embraced within” those two orders.
Phan filed a motion to dismiss the appeal, contending the order granting JNOV and new trial on damages is not an appealable order. Nguyen opposed the motion arguing an order granting new trial is always an appealable order (Code Civ. Proc., § 904.1, subd. (a)(4)), and because the sole basis for ordering a new trial on damages was the granting of the JNOV on liability, the order granting JNOV (otherwise not appealable) was embraced within the appealable new trial order. Nguyen also requested imposition of monetary sanctions against Phan for filing a frivolous motion to dismiss. We ordered that the motion to dismiss and request for sanctions would be decided in conjunction with the decision on appeal.
Phan filed a request for judicial notice of pleadings from a related action in opposition to any further extensions of the briefing schedule in this case. We ordered that request would be decided in conjunction with the decision on appeal, but given that the briefing is completed, that request is DENIED as moot.
DISCUSSION
Nguyen appeals from the order granting partial JNOV on the issue of liability and ordering a new trial on damages. We agree with Phan the order is not appealable.
“[T]he right to an appeal is entirely statutory; unless specified by statute no judgment or order is appealable.” (Garau v. Torrance Unified School Dist. (2006) 137 Cal.App.4th 192, 198.) “‘An order granting judgment notwithstanding the verdict is not a final judgment and is not an appealable order.’ [Citation.] It is not listed as an appealable order in Code of Civil Procedure section 904.1. [Citation.]” (Walton v. Magno (1994) 25 Cal.App.4th 1237, 1240 (Walton); see Jordan v. Talbot (1961) 55 Cal.2d 597, 602.)
Nguyen counters that although an order granting a JNOV is not appealable, an order granting a new trial, even if only a partial new trial on a specific issue is appealable. (Code Civ. Proc., § 904.1, subd. (a)(4); Spencer v. Nelson (1947) 30 Cal.2d 162, 164.) Furthermore, Nguyen argues, that because the new trial order on damages is properly before the appellate court, then the order granting partial JNOV, the granting of which was the sole reason for the new trial order, is reviewable as well. We disagree.
As noted in Cobb v. University of So. California (1996) 45 Cal.App.4th 1140, 1143, “An order granting a new trial is appealable, as provided by [Code of Civil Procedure] section 904.1, subdivision (a)(4), only because, and to the extent that, it contemplates a final judgment.” “An order granting partial [JNOV] has the effect of modifying the judgment on the verdict. If the trial court otherwise upholds the verdict, then the judgment, as modified by the partial [JNOV], is immediately appealable. Where, however, the trial court grants a new trial as to issues which are not affected by the [JNOV], then the new trial order must be held to have the effect of vacating and holding in abeyance the entire judgment, as modified by the order granting [JNOV], until one final judgment can be entered.” (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 330.)
Walton, supra, 25 Cal.App.4th 1237, is instructive. In that case, after the jury returned a defense verdict in a malicious prosecution action, the trial court granted plaintiffs JNOV on liability and ordered a new trial on damages. The appellate court dismissed defendant’s appeal from the order. “Here, plaintiffs properly and timely moved for [JNOV] after judgment in favor of defendant had been entered in conformity with the jury’s special verdict. The motion was granted, resulting in an interlocutory judgment of liability against defendant and a trial on the issue of damages. The appeal was brought from the trial court’s order granting the motion for [JNOV], a nonappealable order. Although a final judgment entered following the grant of a motion for [JNOV] is appealable, no final judgment has been entered in this case. Defendant is in effect appealing from an interlocutory judgment of liability while the issue of damages is yet to be tried. No appeal lies from such an interlocutory judgment. Accordingly, the appeal is premature. The actions between the parties have not yet been finalized. To permit an appeal at this juncture would result in at least two appeals, a practice which is to be discouraged.” (Id. at pp. 1240-1241, fn. omitted.)
Nguyen argues Walton is inapposite because in that case no motion for new trial was made by the plaintiff and, therefore, “there was no order granting a new trial[.]” Nonsense. We look at the practical effect of the order from which Nguyen appeals. (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 753 [court order granting new trial in effect was order granting JNOV and treated as such on appeal]; see also Kinoshita v. Horio (1986) 186 Cal.App.3d 959.) Although Phan filed a new trial motion as an alternative to JNOV, the trial court did not grant a full new trial. It granted a partial JNOV on liability and ordered a trial on damages, an issue the jury never decided. This case is functionally no different than Walton. Here, when the court granted partial JNOV, it granted an interlocutory judgment of liability to Phan, and until there has been a trial on damages there will be no final judgment. The appeal is premature.
Nguyen’s reliance on Ferraro v. Pacific Fin. Corp. (1970) 8 Cal.App.3d 339, is misplaced. In that case, the trial court directed the jury to return a verdict for plaintiff on compensatory damages, but left it to the jury decide whether exemplary damages should be awarded. After the jury awarded compensatory and punitive damages, defendants moved for a new trial, but the motion was granted only as to the amount of punitive damages. Defendants did not appeal that new trial order, but appealed from the final judgment entered after a second jury returned a new punitive damage award. By having failed to appeal the limited new trial order, defendants were held to have foregone the opportunity to challenge the directed verdict on compensatory damages. Ferraro is distinguishable because when defendants were unsuccessful in obtaining a complete new trial, there was a completed decision on all issues—liability and damages had been decided. Here, when the court granted JNOV on liability it bifurcated liability from damages and until damages are decided, there is not a completed decision.
Nguyen also relies on Cobb v. University of So. California (1995) 32 Cal.App.4th 798 (Cobb I) and Cobb v. University of So. California (1996) 45 Cal.App.4th 1140 (Cobb II), in support of its position the order granting JNOV and new trial on damages is appealable. In those cases, the court considered an appeal from orders granting JNOV and new trial. In plaintiff’s action for breach of contract and discrimination, the jury deadlocked on the discrimination claim, but returned a verdict in plaintiff’s favor on the breach of contract cause of action awarding economic damages and noneconomic damages. (Cobb I, supra, 32 Cal.App.4th at pp. 800-801.) The trial court set a retrial on the discrimination cause of action. As to the breach of contract cause of action, the trial court granted defendant a partial JNOV on the noneconomic damages claim and granted a new trial on the liability and economic damages aspects. Plaintiff appealed from the orders granting JNOV and partial new trial, and defendant moved to dismiss the appeal. (Ibid.)
In Cobb I, the court dismissed plaintiff’s appeal from the order granting partial JNOV on noneconomic damages because an order granting JNOV is not an appealable order. “Any issue concerning the order granting partial [JNOV] can be reviewed by the filing of a petition for extraordinary relief [citation] or once a final judgment is entered. [Citations.]” (Cobb I, supra, 32 Cal.App.4th at p. 804.) However, because an order granting a partial new trial is appealable, the court did not dismiss the appeal of the order granting new trial. (Id. at pp. 802-803.)
In Cobb II (when the appellate court had the full appellate record before it), the court concluded the new trial order was not appealable after all. (Cobb II, supra, 45 Cal.App.4th at p. 1146.) Noting the appealability of a new trial motion is premised upon there being a final judgment—or final adjudication of all issues concerning the aggrieved party—the court concluded there had yet to be a final determination of all the issues and hence the appeal violated the one final judgment rule. (Id. at p. 1145.) Nguyen argues that in Cobb II, the remaining issue that rendered the partial new trial order unappealable was the retrial on the discrimination cause of action, on which the first jury had hung. He asserts that had there been only the one breach of contract cause of action, on which the original jury had rendered a full verdict, the partial JNOV would not have rendered the appeal on the new trial order premature.
Nguyen quotes the following language from Cobb II in support of his position: “This situation is to be distinguished from the grant of a partial new trial after determination of all issues in a matter. If a new trial is ordered as to some issues but not as to others (for example, to retry the issue of damages but not of liability), the order granting the new trial is appealable by any party aggrieved by the order, including the moving party who sought a new trial as to all issues. [Citations.]” (Cobb II, supra, 45 Cal.App.4th at p. 1144.) Nguyen argues this language from Cobb II confirms that when, as here, the original defense verdict necessarily resolved all the issues, the order granting JNOV on liability and new trial on damages only on the same cause of action is immediately appealable. But, that specific language from Cobb II was not considering the effect of a JNOV on whether there was a final determination of all issues. Here, although the jury’s verdict was a determination the issues in Nguyen’s favor, when the trial court granted JNOV in Phan’s favor there was no longer a final determination in Nguyen’s favor—there was only an interlocutory judgment on liability. Cobb II, went on to specifically state, “when a trial court grants a JNOV and a new trial motion as to the same cause of action, the latter order is reviewable only after entry of a final judgment in the action.” (Id. at p. 1146.)
We are aware that in Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, on similar procedural facts (following a defense verdict in a products liability case, the trial court granted plaintiffs’ partial JNOV on liability and comparative fault and ordered limited new trial on damages, and ordered a completed new trial in the alternative), the court reviewed both the new trial order and the order granting JNOV. But, the court did not discuss the issue of the appealability of the orders. “As is well established, a case is authority only for a proposition actually considered and decided therein. [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 656.)
In short, the order granted partial JNOV on liability and new trial on damages is not appealable. In their briefs, neither party has requested us to treat the appeal as a writ. At oral argument, in passing, Phan’s counsel suggested we should treat the appeal as a writ because the matter has been fully briefed, but he offered no unique circumstances or no compelling reason for us to do so. (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745-746.) Accordingly, we decline to exercise our discretion to treat the improper appeal as a writ and order the appeal dismissed.
In view of our conclusion, Nguyen’s motion for sanctions against Phan for filing a frivolous motion to dismiss is obviously without merit and DENIED.
In view of the dismissal of Nguyen’s appeal, we need not consider the issues raised in Phan’s protective cross-appeal.
DISPOSTION
The appeal is dismissed. Phan is awarded his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.