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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: New Trial Motions

A Clever Rhetorical Device Closing Argument Avoided a “Golden Rule” Violation and Earned an $18M Verdict

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no. B306200) 2022 WL 610658 (nonpub. opn.), who deployed a clever rhetorical device that put the jury in the plaintiff’s shoes, yet avoided a “golden rule” violation. The result was an $18 million verdict for the client.

In Chen, the defendant drove her truck into the car driven by plaintiff and her mother. The collision crushed the plaintiff’s mother, causing internal injuries that resulted in an agonizing several moments before her death. The defendant first drove away, then apparently returned, and dragged the mother several feet away, while the plaintiff, immobilized by the accident, pleaded with the defendant to stop. The mother was later transported to the hospital where she died.

The plaintiff’s closing argument, as you can imagine, sought to hit some emotional notes, and this drew a “golden rule” objection from the defense counsel. In effect, the jury heard counsel reference memories of “your” mother being killed 16 different times, and to consider what that would be like. Wasn’t this a “golden rule” violation?

No, held the court. Why? Because although counsel said “you” and “your” 16 different times, due to counsel’s shrewd rhetorical device setting up a hypothetical involving the plaintiff, all the “yous” and “yours” technically referred to the plaintiff. Not to the jurors.

A very effective argument. For which the jury returned a verdict of $18 million.

Read More
You Have No Right to a Ruling on a New Trial Motion

The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely have the right to move for new trial. No question. But Nickelson says you don't have a right to a ruling on the motion.

In this domestic violence case, the appellant-brother's claim was dismissed after trial. He moved for new trial arguing his evidence should have been let in, including video and photographic evidence and medical reports.

Here is what the trial court did about the appellant's new trial motion: the judge told the appellant to just file an appeal instead. And then the judge took the new trial motion off calendar.

And the Court of Appeal held this was fine.

(In the rest of the post, I explain why I disagree.)

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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

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.

Read More
Challenge to Extraordinarily Large $25M Mesothelioma Verdict Rejected on Appeal Because Challenge Not Based on "Minutes of the Court"

When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And one way to demonstrate that might be to compare verdicts in similar cases.

That is what the defendant-appellant tried after it was hit with a $25 million noneconomic verdict in the mesothelioma case of Phipps v. Copeland Corp. (D2d7 May 18, 2021) 278 Cal.Rptr 3d 688 (2021 WL 1973560). The appellant compiled 15 comparable cases into a report, and submitted that with a declaration in support of its motion for a new trial. But the trial court excluded the report as irrelevant and denied the motion. On appeal, the appellant argued the trial court erred in this ruling because verdicts in other cases were relevant.

Held: The compilation of other cases was not based on "the minutes of the court" under Code of Civil Procedure section 658, and thus could not be considered as a basis to reduce damages on a motion for new trial. Affirmed.

This analysis seems harsh, but it is based on the statutes. Do not rely on declarations in a new trial motion. Support your motion based on the court minutes.

I find it noteworthy the court decided this case the way it did. The court apparently did as well, as it published the opinion. This signals a bigger uphill climb for defendants challenging large jury verdicts. This is an important reason to have appellate counsel present at trial.

Read More
Trial Court May Not Reconsider Final Judgments, and the New Evidence, Even Though Compelling, Must Be Truly "New"

After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look.

But in the case of a final judgment having been entered, the trial court might not even have jurisdiction to entertain a motion for reconsideration. That is what the Fourth District Court of Appeal concluded in Espinoza v. Ponce (D4d1 Aug. 18, 2021) 2021 WL 3645535 no. D078096 (nonpub. opn.).

The Fourth District Court of Appeal appears to join a number of districts holding trial courts lacks jurisdiction to consider final orders and judgments — reconsideration only applies to interim orders.

And even compelling "new" evidence will not be considered if it is not presented timely. There are worse things than the occasional loss of possibly meritorious cases due to procedural or attorney errors: "'Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice ....’ [Citations.]” (People v. DeLouize (2004) 32 Cal.4th 1223, 1232.)

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Read More
Attorney Committed Misconduct by Arguing Facts Outside the Record, Appellate Court Holds

Closing argument at a jury trial are a minefield for potential misconduct. A couple of varieties of misconduct are on display in the published opinion of Jackson v. Park (D2d7 Jul. 27, 2021) 281 Cal.Rptr.3d 634, involving an injury during an auto accident. Defense counsel, capitalizing on an in limine order excluding evidence of blood alcohol content, boldly announced there was "no evidence" of drunk driving. Defense counsel also told the jury the plaintiff had failed to disclose plaintiff's doctor and other witnesses during discovery and the defendant had to "track her down." When the judge admonished counsel to stop because this was not in the record, counsel argued with the judge, in front of the jury, stating it was stated during deposition.

When the jury returned a verdict largely in favor of defendant (defense counsel urged that an award of $15,000 was about right, and the jury awarded $17,000), plaintiff moved for new trial. The judge, noting the evidence made the case a "close call," ruled the misconduct tipped the scales in favor of the defendant, and so granted the new trial.

Calling counsel's misconduct a form of "litigation subterfuge," the Second District Court of Appeal affirmed.

Important tips for closing argument:
• Do not argue exclusion of evidence proves the evidence does not exist
• Do not mischaracterize court rulings
• Do not argue facts not in the record (even if they are true!)
• Do not argue with the judge in front of the jury

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Read More
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.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Read More
Are Denials of New Trial Motions Appealable or Not?

Answer: Denials of new trial motions are not appealable.

But these things are never quite that simple, are they?
Here are a few buts:
1.Denials of new trial motions are reviewable on appeal.
2.Orders that only partially deny a new trial motion are appealable.
3.Orders denying statutory motions to vacate and set aside a judgment (e.g., Code Civ. Proc., §§ 473, 663) are appealable. In the article, I offer a strategic consideration in choosing between filing a motion for new trial or a motion to vacate and set aside the judgment.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

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

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 court held the appellant forfeited any challenge to defects in the statement of decision by failing to object in the trial court, and forfeited the arguments that the award was excessive because it was not raised in a motion for new trial.

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.

Read More
New Trial Motions Are a Procedural Minefield

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, an employment/disability case that resulted in a $1 million compensatory damages and $5 million punitive damages verdict.

This case prompts a reminder that new trial motions can give a result that appeals cannot: Review of the "weight of the evidence," which is fundamentally different from "substantial evidence" review on appeal.
But this case also raises questions about how trial courts are to treat inconsistent verdicts after a partial new trial. 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.

Read More
New Trial Motion Not Heard Within Statutory Period Deemed Denied

Beware when filing new trial motions: if you are relying on it to extend your time to appeal, be mindful that it is heard within the statutory 75-day period. In Choochagi […]

Read More

Tags

Podcast (117)
Videos (100)
Appealability and Appealable Orders (37)
Legal Writing (29)
Anti-SLAPP (27)
Abuse of Discretion (24)
Mischief (24)
Splits of Authority (23)
Unpublished Opinions (22)
Statements of Decision (21)
Notices of Appeal (20)
Waiver and Forfeiture (20)
Stays on Appeal (20)
California Supreme Court (20)
Judgment Enforcement (18)
Oral Argument (18)
Timely and Untimely Appeals (18)
Arbitration (18)
Attorney Fees (17)
Record on Appeal (17)
Trial Strategy (15)
Dismissals (14)
Sanctions (14)
Briefing (14)
Evidentiary Objections (14)
Writ Petitions (13)
Dissents (13)
Appellate Sanctions (13)
Summary Judgments and Summary Adjudications (13)
Civility (12)
Dismissed Appeals (12)
Preliminary Injunctions (12)
Timeliness (12)
Collateral Orders (12)
Jurisdiction (12)
Exclusion of Evidence (12)
Experts (11)
Family Law (11)
New Trial Motions (11)
Mootness (11)
CCP 998 Offers (11)
Trial Procedure (10)
Federal Courts (10)
Motions for Reconsideration (10)
Posttrial Motions (10)
Admission of Improper Evidence (9)
Implied Findings (9)
Settlements (8)
Standards of Review (8)
Appealability (8)
Disqualification (7)
Default Judgments (7)
Stipulated Judgments (7)
Appellate Bonds (7)
Ninth Circuit (7)
Pretrial Procedure (7)
Probate Appeals (7)
Respondent Arguments (7)
Mediation (6)
Petitions for Review (6)
Appellate Briefing (6)
Depublished Opinions (6)
Ethical Duty of Candor (6)
Substantial Evidence (6)
Appellate Practice (6)
Discovery (6)
Litigation Tips (6)
Trial Irregularities and Structural Errors (6)
Motions to Vacate and Set Aside Judgments (5)
Notices of Entry (5)
Federal Appeals (5)
Legal Ethics and Professional Responsibility (5)
Summary Judgments (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Excessive Damages (5)
Standing (5)
Appealable Orders (4)
Right to Jury Trial (4)
Motions to Vacate (4)
Expert Opinions (4)
Tentative Rulings (4)
Appeals Treated as Writs (4)
Frivolous Motions (4)
Trust and Probate (4)
Demurrers (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Jury Waivers (3)
Prejudicial Error (3)
Landlord Tenant (3)
Frivolous Appeals (3)
Stays (3)
Law and Motion (3)
Recovery of Costs (3)
Pretrial Issues (3)
Amicus Briefs (3)
Summary Judgment (3)
Legal Tech (3)
Personal Jurisdiction (3)
Juror Peremptory Challenges (3)
Motions to Dismiss (3)
Jury Instructions (3)
Stare Decisis (2)
Contempt (2)
Judicial Admissions (2)
Waiver (2)
Class Actions (2)
Appeals Dismissed (2)
Medical Rights (2)
Pleadings (2)
Judicial Bias (2)
ADA and Unruh Accessibility Actions (2)
Record Designation (2)
Premature Appeals (2)
Harmless Error (2)
Podcasts (2)
Stipulated Reversals (2)
Alter Ego (2)
PAGA Actions (2)
Comments (2)
Legal Practice (2)
Remote Arguments (2)
Post Reversal Issues (2)
Finality and Final Orders (2)
Standards of Evidence (2)
Invited Error (2)
Untimeliness (2)
Constitutional Law (2)
Trial by Reference and Pro Tem Judges (2)
Attorney Client Privilege (2)
Civil Theft (2)
Forfeiture and Waiver (2)
Motions to Quash (1)
Preclusion (1)
Waived and Forfeiture (1)
Exhaustion of Remedies (1)
Notice of Appeal (1)
Punitive Damages (1)
Support Awards (1)
Free Exercise (1)
Attorney Fees - CCP 1021.5 (1)
DismissalsAppealability and Appealable Orders (1)
Record (1)
Tentative Opinions and Focus Letters (1)
Court Reporters (1)
Attorney Feese (1)
Clear and Convincing (1)
Covid (1)
Settled Statements (1)
Attorney Misconduct (1)
Judicial Estoppel (1)
New Arguments (1)
Administrative Law (1)
Clerks Service of File Stamped Judgment (1)
Family Court (1)
Third Parties and Nonparties (1)
Mistrials (1)
Typeface (1)
Bankruptcy (1)
Judicial Misconduct (1)
New Trial (1)
Premises Liability (1)
Writs of Mandamus (CCP 1085) (1)
Closing Argument (1)
Law of the Case (1)
Out-of-State Litigant (1)
Moot Appeals (1)
Post-Appellate Issues (1)
Split Decisions (1)
Typography (1)
Benefits Obtained Trespass Damages (1)
Employment Law (1)
Judicial Notice (1)
Referral Fees (1)
Inconsistent Verdicts (1)
Post Reversal (1)
Split of Authority (1)
U.S. Supreme Court (1)
Judicial Philosophy (1)
PAGA Attorney Fees (1)
Trade Restraints (1)
Designating the Record (1)
Incorrect Decisions (1)
Motions for Judgment on the Pleadings (1)
Ninth CircuitAbuse of Discretion (1)
Anecdotes (1)
Common Interest Doctrine (1)
Per Se Errors (1)
Treble Damages (1)
Dicta (1)
Inherent Authority (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Product Liability (1)
Consenting to Judgments (1)
Restraining Orders (1)
Trespass (1)
Civil Code 3334 (1)
Nonsuit (1)
Forfeiture (1)
Issue Selection on Appeal (1)
Precedent (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Property Rights (1)
Summary Reversal (1)
Constitutional Litigation (1)
Local Rules (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Landlore Tenant (0)
Appellate (0)
No categories Legal Writing (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
crossmenuchevron-down