Judge Who Did Not Preside at Trial Properly May Decide New Trial Motion

Timothy Kowal, Esq.
November 9, 2021

When a jury becomes unavailable before a verdict is returned, the result is a mistrial. Likewise, when a judge becomes unavailable before the statement of decision is entered, the result is a mistrial. Both common law and statute entitle either party after trial to ask the trial judge to decide the cause independently as the "thirteenth juror." So it stands to reason that, if the judge becomes unavailable before a new trial motion can be decided, the result should be the same: mistrial.

But that is not the way the cases have come out where the trial judge becomes unavailable before deciding a new trial motion. As illustration is the recent case of Hakenjos Hall Prof. Svcs, Inc. v. Korte/Schwartz, Inc. (D4d1 Jun. 17, 2021) 2021 WL 2461132 (nonpub. opn.). After a jury trial by experts over business damages, the trial judge retired, and the defendant moved for new trial. A new judge denied the motion, and the Court of Appeal held that substantial evidence supported the verdict.

I offer some reasons why this may give short shrift to the standard on a motion for new trial.

On a Motion for New Trial, the Judge Is the "Thirteenth Juror" — So Doesn't This Affect the Standard of Review?

After losing at trial, the appellant moved for a new trial. But the new trial judge denied the motion. The Court of Appeal held the judge did not abuse its discretion because substantial evidence supported the verdict.

But wait, argued the appellant. A defendant "is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial. (People v. Robarge, supra, 41 Cal.2d at p. 633.) How can the appellant's right to a decision by the judge be respected when the judge only reviews the record for substantial evidence?

The court rejected this argument, holding the appellant was not entitled to more than substantial evidence review. First, the court held a different judge may decide a motion for new trial, citing People v. Moreda (2004) 118 Cal.App.4th 507, 517-518, holding that “a judge who did not personally hear testimony at trial may nevertheless make an adequate independent assessment of the evidence in the record in order to determine whether the weight of the evidence supports the jury's verdict."

Second, the court stated that, even on the merits, "we have reviewed the record and conclude substantial evidence supports the jury's damages award." "[W]e conclude [the appellant] has not shown the court abused its discretion by denying Schwartz's motion for a new trial. “[A]s we have already explained, substantial evidence supported the jury's verdict. Thus, we conclude that both [the judgment notwithstanding the verdict and new trial] motions were properly denied.” (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514.)"

And again: because the court concluded there was "sufficiently substantial evidence to support the jury's verdict," the court stated "We therefore conclude the trial court did not abuse its discretion by denying Schwartz's motion for a new trial on damages."


But this is not quite the correct standard of review when it comes to denials of new trial motions. At the trial court, the familiar standard of review in ruling on a motion for new trial is that the trial judge sits as a “‘thirteenth juror'” and “‘independently assess[es] the evidence supporting the verdict. '” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) Thus, the trial court's role is not a role of "review" at all. The trial judge is not deciding whether the evidence is sufficient to support the judgment of the jurors, as in a motion for JNOV. No, the trial judge in ruling on a motion for new trial becomes a juror himself, and thus the judge — the thirteenth juror — must decide whether the evidence is sufficient to satisfy his own judgment.

On the other hand, it is true that the trial judge's role on a motion for new trial does "does not mean ... that the court should disregard the verdict or that it should decide what result it would have reached if the case had been tried without a jury, but instead that it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict. [Citations.]" (People v. Robarge, supra, 41 Cal.2d at p. 633.) In other words, the trial court "exercises a supervisory power over the verdict." (Id.)

But how can a trial judge exercise even this "supervisory power" to determine whether the evidence was "credible" when the trial judge was not present at trial? A new judge is powerless to enter a statement of decision. (Code Civ. Proc., § 635; Armstrong v. Picquelle (1984) 157 Cal.App.3d 122 at pp. 127-128 [allowing a new judge to enter judgment on a mere tentative decision would "wrest from the parties the right to have 'the judge who hears the evidence . . . decide the case' [citation], depriving them of their right to a full and fair trial."].) So how can a new judge "exercise[ ] supervisory power over the verdict"?

To sum up, a defendant's new trial motion may not be denied merely because the trial judge finds there is "substantial" evidence to support the judgment. Instead, the judge must be personally persuaded that the evidence is credible. If the judge is not personally persuaded concerning the credibility of the evidence, the new trial motion likely should be granted. The trial judge "should not permit a verdict to stand which he does not consider just even though there be some evidence to support it." (Parsell v. San Diego Consolidated G. & E. Co. (1941) 46 Cal.App.2d 212, 214.)

But it is not at all clear the new trial judge exercised this independent judgment. First, the new trial judge was at a disadvantage from the start, because that judge had not presided over the trial. Second, there is no discussion whether the trial judge gave any reasons for denying the new trial motion. Did the trial judge independently reweigh the evidence, and exercise independent judgment, as the judge is required to do on a new trial motion? If not, that alone was an abuse of discretion requiring reversal. (Failing to exercise discretion is an abuse of discretion.)

This trend in new trial motions is one that appears to break from precedent in related areas. This would be a good issue to raise in a petition for review to the California Supreme Court.

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