Appeal of Excessive Damages Rejected Because Not First Raised in New Trial Motion

Timothy Kowal, Esq.
July 13, 2021

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty good answer to that question, but it came too late, and so the court held it was waived.

The case was about "a restaurant deal that went bad." Although the restaurant was a success, the partnership was not, with the defendant allegedly intermingling business and personal expenses, and shutting off the plaintiff's access. After a bench trial, the court issued a tentative decision followed by a judgment rescinding the agreement and awarding restitution to the plaintiff based on the defendant's fraud and breaches of fiduciary duty.

Appellant Forfeited His Argument That the Damages Were Excessive by Failing to Raise It in a Timely Motion for New Trial:

The judgment appeared to reflect an excessive award in the plaintiff's favor because it included money that the plaintiff had admitted having already received. The award also overstated an amount the plaintiff had paid, and double-counted other amounts plaintiff had paid.

The problem with all these arguments is that the appellant was required to raise them in a motion for new trial to preserve them for appeal. “[A] failure to move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or a court without a jury.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122.)

(Note that the requirement that excessive damages be raised in a new trial motion does not apply where the error is legal rather than factual, e.g., an improper legal measure of damages, or erroneous evidentiary rulings, or improper jury instructions. It only applies where "the amount of damage requires resolution of conflicts in the evidence or depends on the credibility of witnesses." (Glendal Fed., supra, 66 Cal.App.3d at p. 122.) The point is to alleviate the appellate court's burden where the issues can better be resolved by the trial judge. Still, I would not chance it: I would raise any issue involving excessive or inadequate damages in a new trial motion so there is no question it is preserved for appeal.)

Here, the appellant did not file a motion for new trial. The appellant did file a motion to vacate or amend the judgment. But there were two problems with that motion. First, it was untimely, filed more than 15 days after service of the judgment. (Code Civ. Proc., § 659(a)(2).) Second, the appellant apparently withdrew the motion when, after filing it, the appellant filed a notice of appeal and then notified the trial court that it no longer had jurisdiction to consider the motion.

Appellant Forfeited All Arguments Based on the Tentative Statement of Decision by Failing to Object to It: 

The defendant-appellant's other argument on appeal was that the trial court had failed to make any finding that it had actually committed any fraud. The tentative decision had identified the other defendant as having perpetrated the fraudulent inducement. The decision apparently did not identify the appellant as having done anything fraudulent.

While this kind of "gotcha" argument against the trial court may work in some cases (see our case study involving reversal of a $15 million judgment), it requires strict compliance with procedural rules. Here, the trial court issued a tentative decision under California Rules of Court rule 3.1590. But a tentative decision is not a final statement of decision. To obtain a final statement of decision, a party must timely request one. And even when the court then issues a final statement of decision, the appellant must object to any deficiencies in it. If a party does not bring “omissions or ambiguities in the statement” of decision to the trial court's attention, “that party waives the right to claim on appeal that the statement was deficient in these regards, and hence the appellate court will imply findings to support the judgment.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134, citing Code of Civ. Proc., § 634.)

That is because under the doctrine of implied findings, the Court of Appeal will always infer that any necessary findings were "implied" by the trial court. The only way to overcome that presumption is to expressly request the finding be made in a timely request for a statement of decision under Code of Civil Procedure section 634. And even when the trial court fails to make such a finding, the appellant must object to the statement of decision, reminding the court again that the finding was requested.

Practically speaking, then, it is the rare case where a judgment is reversed because the trial court failed to make a required finding.

The Upshot: The moment a verdict or tentative decision is released is when an appellate strategy can take shape. But appellate issues may be waived beginning just days later, such as failing to cultivate the statement of decision, or failing to raise key issues in a new trial motion. This is a crucial time to consult appellate counsel.

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 His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.