Wednesday, November 6, 2013

Navigating the Post-Trial Minefield

Montoya v. Barragan, No. B237495 (D2d1 Oct. 29, 2013)

The court of appeal affirms an order granting a new trial in a case where the judge entered judgment based on jury polling without a written verdict. In doing so it also makes some commentary on the sufficiency of the court’s statement of reasons in granting a new trial on the insufficiency of the evidence.

Post-trial procedure in California is a disaster. (Or as Justice Kaus once called it, a “minefield.”) There are at least six different statutory post-trial motions, which provide overlapping remedies, each of which has its own idiosyncratic procedural requirements: (1) the motion for new trial, Code of Civil Procedure § 657; (2) the motion for JNOV, § 629; (3) the motion to vacate and enter a new judgment § 663; (4) the motion for relief from judgment, § 473(b); (5) the motion to set aside a void judgment, § 473(d); and (6) the motion to correct clerical error, also § 473(d). And then there are various additional “inherent power” motions, such as the motion to vacate an inadvertently entered judgment and the motion to set aside a judgment due to extrinsic fraud.

The most notorious of these motions, however, is the motion for new trial. It permits the court to grant a whole or partial new trial, or in the case of an issue decided by the court, to modify or otherwise alter the judgment or reopen a bench trial as “alternative relief,” § 662, or in certain circumstances to issue an additur or remittitur, § 662.5. A new trial can be granted on any of seven grounds listed in § 657. To the horror of practitioners elsewhere, these grounds include “misconduct” in the jury’s deliberations, which must be supported by affidavits from the jurors about their deliberations, § 657(2)—and “insufficiency of the evidence,” which lets the trial judge simply disagree with the jury’s verdict, § 657(6). 

Further, the various procedural requirements surrounding motions for new trial are so complicated, contradictory and harsh if not followed, that the California Supreme Court has repeatedly described them as unfair, albeit while noting that it is within the sole prerogative of the legislature to fix them. See Oakland Raiders v. Nat’’l Football League, 41 Cal. 4th 624, 635 (2007); Sanchez-Corea v. Bank of Am., 38 Cal. 3d 892, 905 n.5 (1985). Perhaps the most crazy of these procedures is § 657’s requirement that the trial court give a statement of grounds and reasons. While it might sound harmless or even laudatory to require the trial court to explain why a new trial is being granted, the way it works in practice can lead to some pretty awful results.

Under § 657, upon granting a motion, the judge is required to enter a written order stating the grounds—the listed statutory grounds under § 657—for granting the motion. Then, within ten days, the judge is required to issue a written statement of reasons explaining the evidentiary basis for granting the motion. The judge cannot state reasons on the record or adopt an order prepared by a party—he or she must draft and sign the statement. If the judge fails to do so, for five of the seven § 657 grounds, the standard of review on appeal gets flipped from a deferential one to an independent review that puts the burden on the party who moved in the trial court. But for two of the grounds—insufficiency of the evidence, § 657(6), and inadequate or excessive damages, § 657(5)—the new trial order can only be affirmed for the reasons stated in the statement of reasons. The upshot of this is that if the trial court granted the motion on one of these grounds but failed to state reasons (or stated them untimely or in the wrong form), the order is reversed and underlying judgment that the moving party objected to gets reinstated, with no recourse to the moving party unless one of the other statutory grounds would have supported the order. All due to a trial court’s procedural mistake that may well have been entirely out of the hands of the moving party. It makes no difference even if the moving party specifically informs the court of the requirement and requests that the court to write an order. 

If that does not sound fair, that’s because it’s not. Indeed, an esteemed out-of-state appellate lawyer from my firm once filed a petition for review labeling this procedure “Dickensian Justice.”

Which brings us to this case. This is a wrongful death case against two physicians—a treating physician who allegedly made plaintiff sick, and an ER doc who failed to make her better. As to each doctor, the special verdict asked about negligence and causation. After a bunch of jury questions indicating that they were confused, the jury hung and the court declared a mistrial. But before it dismissed the jurors, the court polled the jury. Polling revealed that the jury was hung on the treating doc’s negligence, but had found that she was the cause of the patient’s death. It found the converse as to the ER doc—he was negligent but not the cause of death. Although the court recognized that Code of Civil Procedure § 618 precluded entry of a judgment on an unwritten verdict, the court nonetheless entered a defense judgment in favor of the ER doc.

Plaintiff then moved for new trial on the grounds that there was insufficient evidence to find that the ER doc was not the cause of death and on irregularity of the proceedings for entering a judgment without a written verdict. In a written statement of decision containing several factual errors, the court, acting in its role as Juror No. 13, granted the motion, finding that the jury should have come to a different result on causation. The ER doc appealed, arguing that (1) the statement of decision was insufficient under Code of Civil Procedure § 657; (2) there was no evidence of causation; and (3) there was no irregularity in the proceedings so entry of the judgment on the orally polled verdict was permissible.

With respect to the sufficiency of the statement of reasons, the court reviewed the law on what goes into a sufficient statement, explaining that when the issue is the sufficiency of the evidence, the trial court is required to explain the reasons it found the evidence inadequate. Its explanation can be brief, but it cannot be conclusory. “There was no causation” won’t cut it. But “plaintiff did not prove causation because I find that his epidemiologic expert was not credible,” is probably enough.

The opinion goes on to explain the effect of a deficient statement of reasons along the lines discussed above. But it makes a mistake in doing so. Citing the Oakland Raiders case, it suggests that the inadequacy of a statement of reasons results in a plenary review of the record. But it misses the fact that, unlike this case, Oakland Raiders did not involve an order granting a new trial for inadequacy of the evidence. 41 Cal. 4th at 634. As earlier cases discussed in Oakland Raiders make (almost) clear, an insufficient statement of reasons automatically precludes an appellate court from affirming an order granting a motion for new trial for insufficiency of the evidence or excessive or inadequate damages. See La Manna v. Stewart, 13 Cal. 3d 413, 425 (1975). Although, if the moving party also raised other grounds in its motion, the order could still be affirmed on one of these other grounds based on the court’s independent review. See Sanchez-Corea, 38 Cal. 3d at 905. 

In any event, the court finds that the statement of reasons was sufficient. Although it contained several factual errors about dates and such, these did not render the order fatally insufficient. The order clearly stated that, after weighing the conflicting testimony of experts, the trial judge was convinced that the jury should have found that, under the relevant standard, the ER doc was a cause of the patient’s death. But then, somewhat inexplicably, the court declines to review the order granting a new trial for insufficiency of the evidence under the deferential abuse of discretion standard. 

Instead, the court turns to the fact that the trial court entered a judgment without the jury rendering a written verdict, as required under § 618. The court holds that the jury polling like that the trial court conducted can supplement a written verdict but it cannot stand in lieu of one. That meant that there was an “irregularity in the proceedings” subject to § 657(1), such that a new trial was properly granted on that ground.


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