New Trial Blues

Estes v. Eaton Corp., No. A152847 (D1d2 Jun. 29, 2020)

Following a defense verdict in an asbestos case, Plaintiff moved for new trial and, in the alternative, judgment notwithstanding the verdict. The trial court granted a new trial but denied JNOV. Both sides appeal. 

The trial court’s new trial order somewhat generically explained that it was drawing inferences and resolving conflicts in evidence contrary to jury’s decision. Without a doubt, that is a permissible grounds for new trial in California, based on insufficiency of the evidence under Code of Civil Procedure § 657(6). It’s often referred to as the court’s power to act as a “thirteenth juror.”

But, in granting a new trial based on insufficiency of the evidence, § 657 requires the trial court to both identify that as the grounds for its decision and to state its reasons for doing so in a written order drafted by the court, not the parties. Case law interpreting that provision requires the court to explain, with at least some specificity, why it is overturning the verdict and what evidence supports that decision. Just saying that the court thought that, contrary to the jury, the losing party had the better of the evidence isn’t enough. The point of the rule is to ensure that the trial court, in exercising the extremely broad discretion afforded to it, makes a record to support that reasoning on appeal. If the cited evidence would permit a reasonable juror to find in favor of the court's theory, the new trial ruling is affirmed. But the absence of an adequate explanation requires a reversal.

I have, on several occasions, wrote at some length about how California’s complicated new trial procedures create all kinds of traps for litigants, who can get burned when trial court judges, through no fault of the litigants, fail to follow the procedures. But this case seems to be a good example of the procedures actually serving their purposes. The trial court basically just said it thought Defendant’s evidence was insufficient to rebut Plaintiff’s. That might be a statement of a grounds but it is not a statement of reasons. The Court of Appeal is thus left with no basis to understand how the trial court exercised its discretion to disagree with the jury. So it reverses for that reason.*

JNOV, on the other hand, is a different animal. As an initial matter, the Court notes that Plaintiffs’ summary of the evidence is inadequate to meet the requirement that, in an opening brief challenging the sufficiency of the evidence, the appellant needs to give a fair summary of all the evidence, not just “an argumentative and one-sided presentation of the evidence favoring the plaintiff’s position.” It is not sufficient to expect the respondent to round out the summary in its own brief. So the Court was in its rights to consider the JNOV appeal forfeited.

But even reaching the merits, Plaintiffs’ cross-appeal fails. As the Court explains, when a party who bears the burden of proof appeals based on inadequacy of the evidence to sustain the verdict—the issue presented by a JNOV here—it faces an “extremely high burden.” That is because the jury is always free to disregard the burden-bearing party’s evidence as incredible. So in those circumstances, the appellant needs to show that the evidence in its favor was so overwhelming that it compelled a result in its favor as a matter of law. And, unlike in an appeal of a new trial motion, all inferences are drawn in favor of the verdict and any reasons supporting it are presumed to exist. 

Suffice it to say, the Court of Appeal finds that there was enough dispute in the evidence that there was no basis to overturn the denial of the JNOV.

Reversed in part.

*It might seem reasonable to think that the Court of Appeal could just reverse to make the trial court give a better statement of reasons that might actually support a new trial. The problem with that, however, is that § 904.1(a)(4) makes the grant of a new trial motion an appealable order. So the trial court’s effort on remand to correct its omission would immediately engender another appeal, leading to two more years of litigation. That being the case, it seems fair to give a trial court a single bite at the apple when it intends to exercise its somewhat extraordinary 13th juror power.