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…
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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…
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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,…
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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…
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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,…
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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…
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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,…
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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…