Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Excessive Damages

So You Filed a Motion for New Trial to Reduce the Amount of the Judgment — But What If You Win?

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what happens when the judge, in ruling on a new trial motions, decides the jury's award was way too high and a remittitur (reduction of the award) is appropriate? How may the judge reduce the jury's award consistent with the plaintiff's right to a jury trial?

That is the situation that arose in Duncan v. Kihagi (D1d1 Aug. 9, 2021) no. A153521 (nonpub. opn.). Following trial in a slumlord lawsuit, the tenant received a verdict of $3.5 million (after a statutory trebling of damages). On the landlord's new trial motion, the judge agreed the verdict should be reduced to $2.7 million. The Court of Appeal explained the procedure for reducing jury verdicts, and even though the judge failed to follow that procedure completely, the court affirmed anyway.

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$3.5MM Emotional Distress Verdict Reduced on Appeal as Influenced by Improper Closing Argument

Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in Briley v. City of West Covina (D2d4 Jul. 1, 2021) no. B295666, 2021 WL 2708945, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors."[C]ounsel's attack on the integrity of opposing counsel during his rebuttal argument further suggests that the jury's noneconomic damages award rested on improper factors."

The result was a $1.5 million award was reduced to $100,000. (It probably would have been reduced even without counsel's improper argument.)

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Appellate Court Cites Unpublished Opinion to Support Reasonableness of Pain-and-Suffering Award

Here is another recent opinion in which the Court of Appeal thumbs its nose at the California Rule of Court that prohibits the citing of unpublished opinions for any reason. (Ironically, the Court of Appeal does its nose-thumbing in an unpublished opinion.)

In the hit-and-run personal injury case of Shui v. B.R. & Sons (D2d2 Feb. 25, 2021) No. B299251 (unpublished), the Second District also provides a good illustration for personal-injury plaintiffs how to get key evidence into the record, and how to make a judgment more appeal-proof through the use of jury instructions.

This is another installment in a series of posts about ways appellate courts have cited unpublished cases, despite Rule of Court 8.1115. These cases might inspire ideas of how, with a little ingenuity, you too might bring up unpublished cases. But there is one thing you can bank on: if ever we find an example of someone being sanctioned for violating 8.1115, the perpetrator will not be an appellate justice. So follow these judges' examples, if at all, with extreme caution.

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