Girch v. Cal-Union Stores, Inc.

• Decision Date: 26 December 1968
• Docket Number: CAL-UNION
• Court: California Court of Appeals Court of Appeals
• Parties: Agnes M. GIRCH, Plaintiff and Respondent, v.STORES, INC., a corporation, Defendant and Appellant. Civ. 32485.

Page 125

74 Cal.Rptr. 125

268 Cal.App.2d 541

Agnes M. GIRCH, Plaintiff and Respondent, v. CAL-UNION STORES, INC., a corporation, Defendant and Appellant.

Civ. 32485.

Court of Appeal, Second District, Division 1, California.

Dec. 26, 1968.

Harold J. Kendis and Anthony F. Telleria, Los Angeles, for appellant.

Samuel Maidman, Palm Springs, for respondent.

LILLIE, Associate Justice.

Plaintiff sued for damages for personal injuries sustained in defendant's store caused by negligence of an employee in the operation of a hand dolly. Judgment based on a jury verdict was entered for plaintiff against defendant in the sum of $800. Thereafter on March 3, 1967, plaintiff filed notice of intention to move for new trial. On March 22, 1967, the following minute order was entered: 'Motion for new trial is granted, unless Defendant pays the sum of $1750.00 to plaintiff, within 30 days. Each side is to bear own costs.' Defendant appeals from the order.

In a brief argument without citation of points and authorities, appellant claims that since the order specifies no reason for granting the motion for new trial it must be assumed that it was granted on the last four grounds set up in the notice ¹ and that none of them is here sufficient to support the order.

Out of the seven grounds set up in section 657, Code of Civil Procedure, ² plaintiff's notice of intention to move for new trial specified but four. Through what she now claims to have been an 'inadvertence,' she did not include 'insufficiency of the evidence to justify the verdict' (§ 657, subd. 6, Code Civ.Proc.) but did specify as her first ground 'inadequacy of damages awarded by the jury' which was not then (March 1967) allowed as a statutory ground for new trial. ³ Briefly stated, we are faced with a notice of intention to move for a new trial which does not expressly include in the grounds stated 'insufficiency of the evidence to justify the verdict,' and an order granting the motion which fails to expressly specify the ground therefor but does contain an additur.

Dealing first with the order, the issue is whether it may be treated as one granting the motion upon the ground of insufficiency of the evidence. 'Appellate review is not limited to the ground stated in the lower court's order (citations) with the exception of the ground of insufficiency of the evidence. If the order does not specify that it is granted on this ground, it must be conclusively presumed on appeal that the order was not based thereon. (Code Civ.Proc., § 657.)' (Yarrow v. State of California, 53 Cal.2d 427, 434, 2 Cal.Rptr. 137, 140, 348 P.2d 687, 690; Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 578, 12 Cal.Rptr. 257, 360 P.2d 897; Malloy v. Fong, 37 Cal.2d 356, 376, 232 P.2d 241; Bray v. Rosen, 167 Cal.App.2d 680, 685, 335 P.2d 137; Verzola v. Russi, 135 Cal.App.2d 330, 331, 287 P.2d 166.) However, it was early settled that the order need not follow the express language of section 657, subdivision 6, Code of Civil Procedure, and 'whenever the order granting a new trial uses such language as can reasonably be construed as meaning that the evidence was insufficient to support the verdict, then the mandate of that section has been satisfied.' (People ex rel. D. of P. Wks. v. McCullough, 100 Cal.App.2d 101, 104, 223 P.2d 37, 39; see Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 578, 12 Cal.Rptr. 257, 360 P.2d 897.) While reversing the order in which the trial court merely 'granted' the motion, the court in Bray v. Rosen, 167 Cal.App.2d 680, 335 P.2d 137, said, 'no particular words or language is required if the nature of the order itself is such that it can reasonably be construed as including insufficiency of the evidence.' (P. 685, 335 P.2d p. 140.) Thus, an order granted on all grounds stated in the notice has been affirmed, the theory being that the grounds including insufficiency of the evidence were incorporated by reference (Lewis v. Southern California Edison Co., 116 Cal.App. 44, 45--50, 2 P.2d 419; Beckley v. Harris, 84 Cal.App. 557, 559, 258 P. 428; see Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 578, 12 Cal.Rptr. 257, 360 P.2d 897); and where the sole ground for new trial was insufficiency of the evidence an order simply granting the motion was adequate to specify insufficiency of the evidence. (Ice-Kist Packing Co. v. J. F. Sloan Co., 157 Cal.App.2d 695, 697--699, 321 P.2d 840; Van Ostrum v. State of California, 148 Cal.App.2d 1, 4, 306 P.2d 44.) But apposite are those cases which hold that an order granting a new trial with respect to issues of excessiveness or inadequacy of damages alone constitutes a proper specification of the ground of insufficiency of evidence as to those issues (Frantz v. McLaughlin, 64 Cal.2d 622, 624--625, 51 Cal.Rptr. 282, 414 P.2d 410; Sinz v. Owens, 33 Cal.2d 749, 751, 760--761, 205 P.2d 3, 8 A.L.R.2d 757; Kralyevich v. Magrini, 172 Cal.App.2d 784, 787, 342 P.2d 903; People ex rel. D. of P. Wks. v. McCullough, 100 Cal.App.2d 101, 104--105, 223 P.2d 37; Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 389--390, 121 P.2d 829; Secreto v. Carlander, 35 Cal.App.2d 361, 364--365, 95 P.2d 476; see Aced v. Hobbs-Sesack Plumbing Co., 55 Cal.2d 573, 578, 12 Cal.Rptr. 257, 360 P.2d 897), on the theory that such an order necessarily includes a specification that the evidence is not sufficient to support the judgment. In Frantz v. McLaughlin, 64 Cal.2d 622, 51 Cal.Rptr, 282, 414 P.2d 410, the court looked to the record and held that the order granting a new trial on the issue of damages may properly be treated as an order based on insufficiency of the evidence and said at pages 624--625, 51 Cal.Rptr. at page 284, 414 P.2d at page 412: 'Also, here as in Kralyevich (p. 790 of 172 Cal.App.2d 342 P.2d 903), the only point urged by the moving party in points and authorities offered in support of the motion was the inadequacy of the damages. Under such circumstances we are persuaded (1) that the record establishes that the new trial was granted because the court believed the award to be too low, and (2) that the order granting the new trial 'solely on the issue of damages alone' necessarily included a specification of insufficiency of the evidence.'

Thus, the moving papers, hereinafter more fully discussed, and the additur modifying the judgment contained in the order leave no doubt that the motion was in fact granted because the trial judge, after reviewing the evidence and exercising his independent judgment thereon (Mullin v. Kaiser Foundation Hospitals, 206 Cal.App.2d 23, 29, 23 Cal.Rptr. 410; Harper v. Superior Air Parts, Inc., 124 Cal.App.2d 91, 92, 268 P.2d 115) was not satisfied that plaintiff had been adequately compensated for the extent of damage suffered by her and granted the motion on the ground of inadequacy of damages which under the foregoing authorities necessarily includes a specification of insufficiency of the evidence. The additur is now proper, and in Jehl v. Southern Pac. Co., 66 Cal.2d 821, 59 Cal.Rptr. 276, 427 P.2d 988, the Supreme Court held that upon a motion for new trial grounded on insufficiency of the evidence because the damages are inadequate, the court should first determine whether such damages are clearly inadequate and if so whether the case would be a proper one for granting a motion for new trial limited to damages. If both conditions exist the court in its discretion may issue an order granting the motion for new trial unless the defendant consents to an additur as determined by the court. (P. 830, 59 Cal.Rptr. 276, 427 P.2d 988.)

'The general rule is that a trial court has no power to grant a motion for a new trial on a ground that is neither statutory nor specified in the notice of such motion, or, in effect, of its own motion. (Cooper v. Superior Court, supra, 12 Cal.App.2d 336, 55 P.2d 299.)' (McFarland v. Kelly, 220 Cal.App.2d 585, 587, 33 Cal.Rptr. 754, 756; Malkasian v. Irwin, 61 Cal.2d 738, 741, 40 Cal.Rptr. 78, 394 P.2d 822; Fomco, Inc. v. Joe Maggio, Inc., 55 Cal.2d 162, 166, 10 Cal.Rptr. 462, 358 P.2d 918; Diamond v. Superior Court, 189 Cal. 732, 736, 210 P. 36.) Under the law in existence in March 1967, 'inadequacy of damages awarded by the jury,' specified in plaintiff's notice of intention to move for a new trial was not a ground for a new trial allowed by section 657, Code of Civil Procedure, and could be reached only on 'insufficiency of the evidence to sustain the verdict' (Bray v. Rosen, 167 Cal.App.2d 680, 685, 335 P.2d 137, 140.) which was not here expressly alleged in the notice. While 'inadequacy of damages awarded by the jury' specified in the notice implies that the evidence was insufficient on this ground, the moving papers put all on notice that in fact the main ground of the motion was that the evidence was insufficient to support the award of damages. 'In the instant case, one of the grounds for new trial set forth in the notice of intention to move for new trial was that the damages awarded were inadequate, which denomination would indicate that the evidence was insufficient on this ground. In addition thereto, plaintiff submitted therewith a document entitled 'Memorandum in Support of Motion for New Trial,' which plaintiff claims with considerable merit, constituted but one pleading, which, when construed together, evidenced plaintiff's intention to move for a new trial on the ground of insufficiency of the evidence.

'A notice of intention to move for new trial requires that the grounds for the motion be set forth to apprise the court and opposing counsel of the basis of the motion. In this particular case, rather than using the shotgun procedure of listing all possible grounds upon which a new trial may be made, counsel determined in his memorandum, and by that memorandum spelled out the ground of insufficiency of the evidence and limited the presentation of three specific grounds, * * *. These three specific grounds were stated and argued to the trial court...