“Close” counts in horseshoes and hand grenades, but not when it comes to identifying “new” evidence in a new trial motion

For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Code Civ. proc., § 657, subd. 4.) Suppose the evidence is available just a few days before trial, but expert analysis can’t be completed until afterward?

That’s easy, you day. It’s trial, for crying out loud! You get your expert on it right away!

Let’s see if your answer is the same under the facts of Shiffer v. CBS Corp., case no. A139388 (1st Dist., Sept. 8, 2015), an asbestos exposure case, in which the new trial motion was filed after the defendant prevailed on its summary judgment motion rather than after a trial. In opposition to the summary judgment motion, the plaintiff’s proffered evidence of his “bystander” exposure to asbestos during the installation of piping insulation at a power plant, but it was considered inadequate.

When plaintiff moved for a new trial, he proffered a new declaration from one of his experts, dated two weeks after the summary judgment hearing, that asserted a new theory of “re-entrainment” exposure (asbestos fibers re-entering the air upon being disturbed). The expert based his analysis on two documents plaintiff had received in discovery about a month prior to the summary judgment hearing and the deposition testimony of one of defendant’s experts, who was deposed about the documents four days before the hearing. The expert had signed his original declaration in opposition to summary judgment between the time plaintiff received the documents and the deposition of defendant’s expert, which plaintiff’s expert apparently did not attend.

That’s a tight timeline, to be sure, if the opinion could only be proffered after the deposition of the defense expert, but all of the information necessary for the revised opinion was in plaintiff’s hands prior to the hearing, and that is enough for the court to find that there is no new evidence here. The court cited a case holding that “depositions conducted on [the] eve of summary judgment do not generate new facts.”

The court states there was “no justification for the delay,” but does not detail any argument by which plaintiff tried to justify it. One presumes that plaintiff argued that the documents received a month before the hearing did not allow for the supplemental opinion without the testimony of the defense expert, given just days before the hearing. But even if the plaintiffs could establish this, it seems like the court would have found the plaintiff had enough lead time, for the court also notes that the transcript of the deposition taken just days before the hearing was only 37 pages long.

Lesson learned: Don’t put off discovery to the last minute, especially when opposing a summary judgment motion. Had these depositions been conducted just a week or two earlier, plaintiff’s expert likely would have been able to formulate his conclusions prior to the hearing. If you do get jammed on discovery, at least get the rough transcripts to your experts. And, finally, why not have your expert attend the deposition of his counterpart? Yes, it will cost a few dollars, but they would have been dollars well spent in this case.

The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects.

One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in that notice.

With those two conditions satisfied, where did the appellant look for a lack of jurisdiction? At the respondent’s interim filing of her supporting memorandum and affidavits, that’s where. Unlike most motions, the initial filing in a motion for new trial is not a notice of motion and a supporting memorandum (plus affidavits, if any). Instead, all the moving party has to file is a notice of intention to move for a new trial, specifying the statutory grounds on which the motion will be made and whether the motion will be made upon affidavits, or the minutes of the court, or both. (Code Civ. Proc., § 659, subd. (a).) The supporting memorandum and affidavits are not due until later, and it was the untimeliness of that filing that the appellant attacked in Kabran.

Unfortunately, appellant Sharp came armed mostly with authorities holding that an untimely filing of the notice of intention precludes jurisdiction to grant a new trial. Sharp claimed that two of the cases supported applying the same rule to the deadline for filing the motion, memorandum, and affidavits, but the Court of Appeal rejects that characterization of the cases. It finds that the first “did not involve any issue concerning the filing of the supporting motion and affidavits.” (Emphasis added.) It concludes that the other case, Erikson v. Weiner (1996) 48 Cal.App.4th 1663, is on point but but runs counter to a long string of cases by which “[i]t has long been held that the time limits for filing affidavits and counteraffidavits for new trial motions, though ‘strict’ [citations], are not jurisdictional.” (Emphasis in original.) The court offers a more detailed criticism of Erikson, but I’ll leave that to your reading of Kabran.

Egregious attorney misconduct at trial leads to reversal on appeal

When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict, and it even survived a mid-trial motion for mistrial and a new trial motion, but it was a short-lived victory, as the Court of Appeal reverses.

Here’s how the Court of Appeal summed it up:

Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders [i.e., orders precluding certain evidence at trial]. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.
***
While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave CalTrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

The court even gives a tally of the misconduct: eight improper statements during opening argument, ten references during cross reference of plaintiff to the off-limits subject of his prior termination from a school district, another 13 forbidden references to the termination — 12 of them after sustained objections! — during cross-examination of plaintiff’s wife, and five improper statements during closing arguments. Counsel also sprinkled Nazi references liberally because the plaintiff’s motorcycle bore a logo for Set Free ministries — a religious organization that ordained plaintiff after a year of bible study — that included a Nazi-style helmet.

The court also summarizes the misconduct by type and, noting that appellant claimed there was even more misconduct, writes: “But we see no reason to go further. Suffice it to say we found enough to establish attorney misconduct at least five pages ago.”

Of course, the misconduct alone is not enough for reversal. Before the court can reverse, it must find that the misconduct was prejudicial. That’s not hard for the court to do in this case. See the case for more dateline the nature of the misconduct and why it was prejudicial, and the trial court abused its discretion in denying a motion for new trial.

The court’s characterization of the trial judge as “patient” has to be the understatement of the year. The trial judge denied a mid-trial motion for mistrial, and even after the attorney continued in her misconduct after that, the trial judge refused to grant a new trial motion after the defense verdict.

The reversal on appeal is not the only adverse consequence of the misconduct. The Court of Appeal also orders the clerk to send a copy of the opinion to the State Bar, “notifying it the reversal of the judgment is based solely on attorney misconduct.”

Appellate Surprises

Some points about appellate practice — even well-settled points — can come as surprises to those not well versed in it. Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008) consolidates several of them in a single case. I’m only going to spend a line or two on each one, without much elaboration. The point of the post is to disclose just a few traps trial attorneys can fall into, not to give detailed exposition on each point.

My original post about the case concerned what some might consider a procedural oddity: a new trial motion where no trial ever occurred. A new trial motion is validly made after a grant of summary judgment.

Here are the remaining points I think worth bringing out of the case:

The Protective Cross Appeal. Congratulations, you’ve won your new trial motion! Your adversary appeals the grant of a new trial. And if you think you’re going to be disappointed if they prevail on appeal, you’re going to be absolutely horrified if you forgot to file a protective cross-appeal from the underlying judgment.

Forfeiture of Evidentiary Objections. California decisions generally hold that objections to evidence offered in summary judgment are not preserved for appeal unless the objecting party secures a ruling from the trial court. But with the recent development of a split of authority, the Supreme Court has agreed to review the issue.

Affirmance of New Trial Orders on Alternative Grounds. Read that new trial statute (Code Civ. Proc., § 657) closely. Section 657 provides, in part, that (emphasis added) “[o]n appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons,” followed by exceptions to this rule.

Order or Judgment? It can make a big difference!

More wrangling over what triggers a deadline to appeal.

Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal.  In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post.

Though the original opinion refers to an August 7, 2006 “notice of entry of the order” denying the appellant’s new trial motion, the modified opinion refers to a document of the same date titled “Ruling on Submitted Matter,” apparently the same document.  The generic reference has some significance in the context of the new argument that the court quickly disposes of.

Appellant claimed that the “Ruling on Submitted Matter” was not a notice of entry of order within the meaning of rule 8.108(b)(1)(A), California Rules of Court (extending the time to appeal to 30 days after notice of entry of order denying new trial) because it was not titled “Notice of Entry of Order” and was not file-stamped with the date of entry.

The court notes, however, that the words “Notice of Entry of Order” appear at page 6 of the document.  That’s enough.  But is that necessary?  Rule 8.108(b)(1)(A) triggers the deadline for appealing from the service of “an order denying the motion or a notice of entry of that order.”  It’s hard to say exactly what this document was comprised of, but I’m guessing that the “Ruling on Submitted Matter” was not the order itself, but a document with the order attached. If it were simply the order itself, it seems the court could have found it sufficient to trigger the appeal deadline regardless of the presence of the words “notice of entry.”

As for the missing file stamp, the court notes that while a file-stamp must appear on any copy of the judgment served in lieu of a notice of entry of judgment (rule 8.104(a)(1)), there is no such requirement under rule 8.108 for notice of entry or a copy of the order denying a new trial.

New Trial Motions after Summary Judgment

Can you move for a new trial when your case was disposed of by summary judgment?  This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial?

But the answer is “yes.”

A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008).  After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment.

Not that it ultimately did her any good.  The court of appeal holds that the trial court abused its discretion in granting the new trial motion and affirms on plaintiff’s protective cross-appeal from the grant of summary judgment.

There are lots of post-trial and appellate tidbits in this case.  Nothing new, just well-established principles for which the case provides a reminder.  I’ll probably be putting up separate posts on them (or consolidate them into a new post) in the next few days.

Jury Foreman’s Blog a Likely Issue on Appeal

A local trial court has just denied a new trial motion based on juror misconduct, where the misconduct was the jury foreman’s blogging about the gang member’s 19-day murder trial while it was going on, including posting a photo of the murder weapon, commenting on the evidence and witnesses, praising his own performance as jury foreman, and criticizing the work ethic of courtroom staff. From today’s Ventura County Star:

After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial.

The blog, or Web log, also criticized the judge’s staff and complained that the 19-day trial was taking too long.

Ventura County Superior Court Judge Edward Brodie told the jury member, identified only as Juror No. 7, that he had failed to follow the judge’s daily instructions to refrain from discussing the case with anyone during the trial.

Attorneys said this apparently marks the first time a jury member in Ventura County has been accused of misconduct for producing a blog, an increasingly popular type of journal on the Internet.

“. . . an increasingly popular type of journal on the Internet.”  Ya think?

The jury foreman testified at his contempt proceedings that “he didn’t believe his blog constituted ‘discussing the case’ in defiance of the judge’s instructions.”  Really?  According to the defendant’s lawyer, the blog included a chat room where readers asked questions and the juror answered them.

The article includes some sparring between counsel over the merits of raising the blog as an issue on appeal.  The trial judge’s ruling, obviously, means that he did not think that the misconduct prejudiced the fairness of the trial.

According to the article, the blog is titled “The Misanthrope,” but none of the blogs I found that included “misanthrope” in the title had posts about the trial.  It’s possible the judge ordered the juror to take down the posts, but I couldn’t even find cached pages in Google.

Raiders Lose on Independent Review of Order Granting New Trial

Congratulations!  The court has granted your motion for a new trial!

Now, just pray the trial judge doesn’t screw it up.

Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657.  In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts the burden of persuasion from the party appealing the order granting the new trial to the party defending the appeal . . .
Read More »