New Trial Motions Are a Procedural Minefield

Timothy Kowal, Esq.
April 23, 2021

Facing an adverse judgment, considering a motion for new trial is a must. But beware: win or lose, the order on a motion for new trial can result in thorny procedural issues, both in the trial court and on appeal.

A case in point. Contrares-Velazquez v. Family Health Centers of San Diego, Inc. (D4d1 Apr. 7, 2021) no. D075577, a disability discrimination case concerning repetitive stress pain, involved a retrial after a partial new trial motion (which had been affirmed on prior appeal). This time around, the jury awarded the previously unsuccessful plaintiff almost $1 million in compensatories and $5 million in punitives. But the trial court partially granted a JNOV motion and reduced the punitives award to under $2 million, ruling due process limited punitives to double the compensatory award. Defendant appealed, seeking further reduction, and plaintiff cross-appealed, seeking reinstatement of the original award.

One more wrinkle: Way back at the new trial motion after the first trial, the court only granted a new trial on three of the seven claims that defendant had successfully defensed. The new trial order on those three claims, defendant pointed out, did not throw out the jury's verdict that plaintiff was not able to perform with reasonable accommodation. This would factor largely in the balance of the proceedings.

Why new trial motions are important:

To back up just a moment to the first appeal, Velazquez had filed a successful new trial motion after the jury found her evidence wanting. The trial judge disagreed, finding the "weight of the evidence" supported a judgment for plaintiff. A finding that was affirmed on the first appeal under the "substantial evidence" standard of review.

Why mention this? Because the only way this favorable result for plaintiff was possible was through a new trial motion. Had plaintiff simply appealed, the verdict would have been affirmed under the deferential "substantial evidence" standard. Actually, worse than that: when a plaintiff loses a claim for failing to meet its burden of persuasion, the matter is at an end, and the finding is beyond appellate review: “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (Sonic Mfg. Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.))

But on a motion for new trial, the trial judge was not so confined. Instead, the judge was required to consider the "weight of the evidence." That means even a party who failed its burden of proof – who would have no shot on appeal – can get a different result via a new trial motion.

Only through a new trial motion was this result possible. An appeal alone would have been futile.

On retrial, court is not bound by findings in first trial (but this commentator is not so sure):

Fast-forward to the current appeal. After plaintiff achieved an order of partial new trial on three of her claims – after the jury skunked her at the first trial on all seven of them – plaintiff found her groove at the retrial and prevailed. Contrary to the first jury, the jury on retrial found that plaintiff could have performed her duties had defendant afforded reasonable accommodations.

To which defendant was prepared with an interesting argument. The first jury, defendant reminded the court, had returned a special verdict that plaintiff could not perform, regardless of reasonable accommodations. That is, plaintiff was hyper-sensitive and there was nothing to be done for her. That verdict, defendant went on, was not ordered to be retried as part of the new trial order. Thus, it was still binding on the trial court under the doctrine of issue preclusion. (As explained below, while this author believes defendant's argument has merit, defendant perhaps was misguided to cast it as a preclusion argument.)

As ability-to-perform was an essential element of plaintiff's three claims on retrial, defendant went on, those claims must fail.

Driving the point home further, defendant also noted the prior findings should survive because they were never vacated or reversed. Plaintiff did not even challenge the finding in the first appeal. So she should not be permitted to raise it now.

But the Court of Appeal rejected defendant's argument, and did not even express any misgivings in doing so. The court held that the first jury's special verdicts, though never vacated by the partial new trial order, were not "final." No finality, no preclusive effect.

A Comment: 

The court's observation on this point is, of course, true. And perhaps the outcome is correct (or perhaps not). Yet there is another itch to defendant's argument that the court does not quite scratch.

Again, the court is right about preclusivity. That doctrine applies to judgments. And a new trial order – even a partial one – vacates the entire judgment:

“When [the] court grant[ed] [the] partial new trial, ‘the new trial order ha[d] the effect of vacating the entire judgment and holding in abeyance the portions which [were] not subject to a new trial until one final judgment [could] be entered.’ ” (Newstart Real Estate Investment LLC v. Huang (2019) 37 Cal.App.5th 159, 163–164, quoting Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 329 (Beavers).) Thus, “there was no final judgment; it was vacated by operation of law” when the trial court granted the partial new trial. (Newstart, at p. 164; see Ferraro v. Pacific Finance Corp. (1970) 8 Cal.App.3d 339.)

The reason the entire judgment is vacated, even though the new trial is only partial, is to avoid possible violation of the "one final judgment" rule. (Beavers, supra, 225 Cal.App.3d at p. 329; Love v. Wolf (1967) 249 Cal.App.2d 822, 840.) (Though I would note that, given the countless exceptions to the rule, this is rather in the vein of defending the chastity of a prostitute, or the sincerity of a politician.)

So the judgment was vacated. Got it. But what about the special verdicts that were "held in abeyance"? Those verdicts favored defendant. They stood after the partial new trial order, as though decided in a first phase of a bifurcated trial. Then the second jury on the partial new trial returned verdicts on the same issues, but this time against defendant. Faced with two sets of verdicts on identical issues, the trial court credited the latter verdicts, for no apparent reason except one set was more recent. Defendant appealed. It is settled that “[t]he appellate court is not permitted to choose between inconsistent answers.” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) Yet that seems to be what the court did here.

(Perhaps the court could have resolved the issue by ruling, nunc pro tunc, that the prior partial new trial order was now ordered in its entirety? But then that would give rise to defendant's right to appeal those other portions of the order, and that appeal had already been taken and decided. So this option seems fraught.)

According to the court, defendant's arguments on appeal were a little different than that. Defendant argued that the first verdicts were "final" because plaintiff did not challenge them in the first appeal. But the court rejected this, explaining that plaintiff's appeal after the partial new trial order would have been only a "protective cross-appeal," which is "only operative if the order granting the new trial is reversed." (Quoting Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 798-799.) So plaintiff did not have a direct right of appeal of that partial new trial order.

But here again, I am not so sure. Not two weeks after the Velazquez opinion, the Second District Court of Appeal decided Instant Infosystems, Inc. v. Open Text, Inc. (D2d5 Apr. 20, 2021) no. B297123 (not published) (discussed here), also involving a partial new trial order. The Second District there rejected respondent's argument that the order there denying new trial was therefore not appealable. Although denials of new trial motions are not appealable, the order there only partially denied new trial, and partially granted it: “[I]t is well established that a party seeking a new trial on all issues is an ‘aggrieved party’ when only a partial new trial is granted, and may appeal therefrom.” (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.)

So it would seem that defendant Family Health had a point: the partial denial of plaintiff's new trial motion was appealable, and that by declining to appeal it, she could not continue to challenge them.

But the Fourth District did not think so: we reject Family Health's claim that a party can always seek immediate review of any portion of a judgment unaffected by a partial new trial order."

This suggests the authorities may be split on this issue. Or if not split exactly, then rather unclear.

It takes a gambling sort to go it alone on a new trial motion.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.