Fry v. Young

• Citation: 73 Cal.Rptr. 62,267 Cal.App.2d 340
• Court: California Court of Appeals
• Decision Date: 12 November 1968
• Parties: Melvin FRY, Plaintiff, Appellant and Cross-Respondent, v. John Eldon YOUNG, by Ida Alma Young, his general guardian, Maude Hurt, and Theodore R. Olds, Defendants, Respondents and Cross-Appellants. Civ. 11462.

Page 62

73 Cal.Rptr. 62

267 Cal.App.2d 340

Melvin FRY, Plaintiff, Appellant and Cross-Respondent, v. John Eldon YOUNG, by Ida Alma Young, his general guardian, Maude Hurt, and Theodore R. Olds, Defendants, Respondents and Cross-Appellants.

Civ. 11462.

Court of Appeal, Third District, California.

Nov. 12, 1968.

Rehearing Denied Dec. 10, 1968.

Hearing Denied Jan. 8, 1969.

Changaris, Trezza & Ithurburn, Yuba City, Harold Wilsey, Jr., Colusa, for Melvin Fry.

Price, Burness & Price Chico, for Young & Hurt.

Rich, Fuidge, Dawson, Marsh & Morris, Marysville, John L. Feeney, Willows, for Olds.

REGAN, Associate Justice.

In an unpublished opinion, this court affirmed the order of the trial court granting all defendants a new trial. Shortly thereafter, the code provisions (Code Civ.Proc. §§ 657, 660) governing the timeliness and contents of new trial orders were reviewed by the State Supreme Court in a trilogy of cases--Siegal v. Superior Court, 68 A.C. 95, 65 Cal.Rptr. 311, 436 P.2d 311; Mercer v. Perez, 68 A.C. 102, 65 Cal.Rptr. 315, 436 P.2d 315, and Treber v. Superior Court, 68 A.C. 126, 65 Cal.Rptr. 330, 436 P.2d 330. By direction of the Supreme Court, the appeal is here again for reconsideration in light of those three cases.

Plaintiff sued for personal injuries suffered when an automobile owned by defendant Hurt and driven by defendant Young rear-ended a pickup trick which defendant Olds was alleged to have negligently parked on a rural road. At the time of the accident, plaintiff was standing in the highway conversing with Olds, who was seated on the driver's side of the pickup.

The chronology of the litigation is significant:

On October 13, 1965, judgment was entered for plaintiff on a jury verdict against all defendants. The clerk's written notice of entry of the judgment was served by October 15, 1965. Relying individually or jointly on all statutory grounds (Code Civ.Proc. § 657), all defendants made timely motions for a new trial; Young and Hurt also moved for judgment notwithstanding the verdict. At a hearing on November 1, 1965, according to the clerk's minutes, the trial judge denied the latter motion but granted a new trial 'on all issues for the reason that the Court erroneously instructed the Jury.' There was no recital in those minutes of the instructions which the court deemed erroneous. On December 2, 1965, plaintiff filed notice of appeal from that new trial order.

On December 7, 1965--after plaintiff had taken his appeal, but Within 60 days after service of notice of entry of judgment (Code Civ.Proc. § 660)--the trial court made a written order directing the clerk to enter Nunc pro tunc as of November 1, 1965, an order granting a new trial 'upon the ground of insufficiency of the evidence to justify the verdict, in addition to * * * the ground of error in law.' The Nunc pro tunc aspect of this additional ground for relief was predicated upon clerical error having occurred at the November 1 hearing in that, at that prior hearing, 'the court did, in open court, state its views that there was sufficient ground to justify granting the motion for new trial on the basis of insufficiency of the evidence as well as errors in law' but that the clerk had 'omitted from the minute order * * * the specification that said motion was, among other grounds, granted upon the ground of insufficiency of the evidence to justify the verdict.'

After directing the Nunc pro tunc inclusion of insufficiency of the evidence as an omitted ground, the December 7 order next gave detailed reasons why the trial court deemed the evidence to be insufficient. The same order also specified the particular instructions which the court thought to have been erroneous.

Plaintiff did not file a new notice of appeal after the court's December 7 order. It was unnecessary that he do so to have both orders reviewed. (See Halpern v. Superior Court, 190 Cal. 384, 388, 212 P. 916.) After December 7, all defendants cross-appealed from the judgment, and defendants Young and Hurt cross-appealed from the order denying their motion for judgment notwithstanding the verdict.

The efficacy of the trial court's orders of November 1 and December 7 is governed by sections 657 and 660 of the Code of Civil Procedure. Section 657 authorizes the trial court to grant a new trial upon grounds which include insufficiency of the evidence to justify the verdict (ground 6) and error in law (ground 7). By amendment in 1965 (Stats.1965, ch. 1749) it is provided that when a new trial is granted 'the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.' It is also provided: 'If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk.' Under section 660, with an exception not here material, the power of the court to pass on a motion for a new trial expires 60 days after service on the moving party of notice of entry of judgment.

In Siegal v. Superior Court, supra, 68 A.C. 95, 65 Cal.Rptr. 311, 436 P.2d 311, a Nunc pro tunc order purporting to grant a new trial After the 60-day period prescribed by section 660 had expired was held void and in excess of the trial court's jurisdiction even though that belated order recited an inadvertent failure to enter of record any portion of a new trial order which had been actually made within the 60 days. In Mercer v. Perez, supra, 68 A.C. 102, 65 Cal.Rptr. 315, 436 P.2d 315, after emphasizing the difference between the statement of 'grounds' and the specification of 'reasons' required by section 657, the Supreme Court held that alleged insufficiency of the evidence could not be reviewed on appeal, and that affirmance of an order which could be construed as granting a new trial on that ground alone was barred, where the trial court had filed no written reasons whatever to show why it deemed the evidence inadequate.

In addition to the other amendments to section 657 in 1965 it was provided: 'On 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; provided, that the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict * * * unless such ground is stated in the order granting the motion * * *.' The amendment also provides that, where the order was based on insufficiency of the evidence, on appeal, 'it shall be conclusively presumed that said order as to such ground was made only for the reasons specified * * *.' In Treber v. Superior Court, supra, 68 A.C. 126, 65 Cal.Rptr. 330, 436 P.2d 330, section 657 was said to require affirmance on any meritorious ground listed in the motion for a new trial (other than alleged insufficiency of the evidence or excessive or inadequate damages), even though an order granting it solely for 'errors in law' had not been followed by any written specification of those errors.

Under the 1965 amendment, both Mercer (68 A.C. at p. 119, 65 Cal.Rptr. 315, 436 P.2d 315) and Treber (68 A.C. at pp. 132--133, 65 Cal.Rptr. 330, 436 P.2d 330) bar Nunc pro tunc specifications of Reasons made more than 10 days after the motion is granted. In the instant case, to rectify a clerical oversight, insufficiency of the evidence was added as a Ground by a Nunc pro tunc order which was itself made Within the 60-day period during which section 660 empowers the trial court to pass on a motion for a new trial. None of the Siegal-Mercer-Treber trilogy of cases involved that circumstance. Siegal is the only one of the three that involves a Nunc pro tunc correction, and there the corrective order was made After the court's 60-day power had ended.

The Siegal (68 A.C. at pp. 100--101, 65 Cal.Rptr. 311, 436 P.2d 311) and Mercer (68 A.C. at p. 119, 65 Cal.Rptr. 315, 436 P.2d 315) opinions cite many precedents for the concept that, under the 1939 amendment of section 657, ¹ even where the trial court's purpose was to correct clerical error it lost jurisdiction to make a Nunc pro tunc specification of insufficiency of the evidence as a Ground unless it did so in writing within 10 days after the motion for new trial was granted. None of those cited precedents, however, involved Nunc pro tunc corrections made Within the 60-day period. ² All of those precedents were decided before section 657 was amended in 1965. And Siegal, Mercer, and Treber themselves give no discussion to the fact that, in the 1965 amendment, the Legislature deleted the previous requirement that the order specifying insufficiency of the evidence as a ground 'be filed * * * within ten days after the motion is granted' and substituted the present statutory requirement that the order stating 'the ground or grounds' (of whatever nature) 'must be made and entered As provided in Section 660.' (Italics ours.) Thus, under the 1965 amendment, the 10-day limitation is no longer stated as being applicable to the recital of Grounds but instead is stated only as a limitation on the specification or Reasons, which must be filed within 10 days after the filing of the order containing the grounds.

Decisions under the 1939 amendment had consistently taken the position that its express 10-days limitation abrogated the power the trial court Would otherwise have to use a Nunc pro tunc order to specify insufficiency of the evidence where there had been a clerical failure to list that ground. (See, e.g., Malkasian v. Irwin 61 Cal.2d 738, 744--745, 40 Cal.Rptr. 78, 394 P.2d 822; Roth v. Marston, 110 Cal.App.2d 249, 242 P.2d 375, and cases cited.) Inasmuch as the 1965 amendment deleted that 10-day limitation, it is possible to view the 1965 change as reinstating the trial court's pre-1939 authority to make Nunc pro...