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: New Trial Motions

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.)

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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

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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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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.

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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.

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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.

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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 […]

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