Hand Electronics, Inc. v. Snowline Joint Unified School Dist.

• Decision Date: 10 January 1994
• Docket Number: No. E010509,E010509
• Citation: 21 Cal.App.4th 862,26 Cal.Rptr.2d 446
• Court: California Court of Appeals Court of Appeals
• Parties: , 88 Ed. Law Rep. 145 HAND ELECTRONICS, INC., Plaintiff and Appellant, v. SNOWLINE JOINT UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Page 446

26 Cal.Rptr.2d 446

21 Cal.App.4th 862, 88 Ed. Law Rep. 145

HAND ELECTRONICS, INC., Plaintiff and Appellant, v. SNOWLINE JOINT UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

No. E010509.

Court of Appeal, Fourth District, Division 2, California.

Jan. 10, 1994.

[21 Cal.App.4th 864] Peter G. Virag, Encino, for plaintiff and appellant.

Furness, Middlebrook, Kaiser & Higgins, Greg C. Middlebrook and Moses W. Johnson, IV, San Bernardino, for defendants and respondents.

OPINION

DABNEY, Associate Justice.

Plaintiff Hand Electronics, Inc. (Hand) appeals from the trial court's order granting the motion of defendants Snowline Joint Unified School District and Robyn Lee Phillips (collectively referred to as Snowline) for a new trial. Snowline has filed a protective cross-appeal from the judgment. We affirm the order granting a new trial; therefore, Snowline's cross-appeal is moot.

FACTUAL AND PROCEDURAL BACKGROUND

On December 13, 1988, Hand was moving certain manufacturing equipment to Hesperia. The truck carrying Hand's equipment was struck by a school bus owned by the school district and driven by Phillips, the school district's employee. Phillips either failed to stop at a stop sign or proceeded prematurely into traffic and broadsided Hand's truck, which had the right-of-way.

In the collision, Hand's equipment was damaged. The equipment included two pantographs, used for manufacturing printed circuit boards. Because of the age of the pantographs and the unavailability of replacement parts, repair was not practical. Hand introduced evidence of the cost of replacing the pantographs with newer equipment which would serve the same purpose as the damaged equipment. Specifically, the evidence showed that the cost to replace the two pantographs was $18,600 each. However, on cross-examination, Hand's witness testified that the fair market value of the pantographs on the day of the accident was $500 to $1,000 each. Hand's president testified as to the damage which had occurred to other equipment on the truck. He testified that the replacement cost for a Blue M Oven was $2,500, and the replacement cost for a Chicago power tool drill press was $130 to $170.

Following trial, a jury returned a special verdict in favor of Hand, but fixed Hand's comparative fault at 10 percent. The net award of damages to Hand was $35,887.50.

After entry of judgment on the verdict, Snowline moved for new trial, or, in the alternative, for judgment notwithstanding the verdict or to vacate the verdict and enter a different judgment. Snowline moved for a new trial on the basis of all seven grounds listed in CODE OF CIVIL PROCEDURE SECTION 657¹. ²

Following a hearing on October 15, 1991, the court granted the motion for new trial. The court stated it was granting the motion because it had "botched the jury instructions." A minute order was prepared that day indicating that the motion was granted. However, the minute order did not specify grounds or reasons for the court's ruling.

Counsel for Snowline volunteered to prepare a notice of ruling, which was served on Hand on October 24, 1991. Counsel for Snowline also prepared an order for new trial which was signed by the court on November 1, 1991 and served on Hand on November 15, 1991. According to the orders, the new trial was granted on the grounds of: (1) insufficiency of the evidence; (2) excessive damages; and (3) erroneous jury instructions.

On July 7, 1993, on our own motion we issued an order appointing the superior court as referee to make a factual findings on the following issues:

"1. What constitutes the permanent minutes of the Superior Court of the County of San Bernardino?

"2. What was the date of entry of the order granting the defendants' motion for new trial in this matter?"

On October 28, 1993, the superior court filed a minute order in this court responding as follows:

"1. The permanent minutes of the Superior Court of San Bernardino County are the hand-prepared minutes by the Courtroom Clerk.

"2. The date of entry of the granting of Defendant's Motion for New Trial is 10-15-91."

Hand appeals from the order granting a new trial. Hand contends: (1) the trial court exceeded its jurisdiction by failing to comply with the requirements of sections 657 and 660; (2) the court's failure to timely specify reasons for its order establishes that the motion was not granted on the grounds of insufficiency of evidence or excessive damages; and (3) the jury instructions given were proper, and the court had no jurisdiction to grant a new trial on the ground of erroneous jury instructions.

Snowline has filed a protective cross-appeal, claiming that (1) replacement costs were not a proper measure of damages; (2) the trial court erred in permitting Hand's expert to testify, over Snowline's objection, to the replacement costs of the equipment; and (3) the trial court erred in permitting a highway patrol officer to testify as to the cause of the accident.

DISCUSSION

Hand's Appeal

Motion for New Trial. Sections 657 ³ and 660 ⁴ establish mandatory procedures which must be strictly adhered to in granting a motion for new trial. Hand argues that the trial court failed to comply with sections 657 and 660, and the order granting a new trial was therefore fatally defective.

Specifically, Hand argues that: (1) the October 15, 1991, minute order did not designate the grounds on which the order was based; (2) the specification of reasons, filed on November 1, 1991, 15 days after the trial court entered the order granting Snowline's motion for new trial, was untimely and therefore void; and (3) section 657 forbids the court from shifting to the prevailing party the duty to prepare the statement of grounds or specification of reasons, but the court here permitted counsel for Snowline to prepare the order which the court signed on November 1, 1991.

Untimely Specification of Reasons. Section 657 requires the statement of reasons to be filed within 10 days after the order determining the motion. The 10-day limitation is a statute of limitations, and is mandatory and jurisdictional. (La Manna v. Stewart (1975) 13 Cal.3d 413, 418, 118 Cal.Rptr. 761, 530 P.2d 1073.) A specification of reasons filed after the 10-day limit is in excess of jurisdiction and therefore void. (Smith v. Moffat (1977) 73 Cal.App.3d 86, 91, 140 Cal.Rptr. 566.)

Section 660 provides that a motion is determined when the court's order is either entered in the court's permanent minutes or is signed by the judge and filed with the clerk. Snowline argues that the October 15, 1991, minute order was never actually entered in the court's permanent minutes, and is therefore not controlling. However, the superior court's factual findings are contrary to this position. Acting as referee, the superior court found that the courtroom clerk's handwritten minutes are the permanent minutes of the court. The October 15, 1991, order was the order which determined the motion under section 660.

Thus, the court's November 1, 1991, specification of reasons for granting the motion for new trial was untimely and void. The October 15, 1991, minute order granting the motion for new trial did not state any grounds or reasons for the decision to grant a new trial. Under such circumstances, we are precluded under section 657 from affirming the order on the grounds of insufficiency of the evidence or excessive damages. (§ 657; Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198, 9 Cal.Rptr.2d 497.) ⁵

Jury Instruction on Replacement Costs. An order granting a new trial which does not specify grounds is defective, but not void under section 657. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 901, 215 Cal.Rptr. 679, 701 P.2d 826.) "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, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons." (§ 657.)

Thus, we examine whether any ground, other than insufficiency of the evidence or excessive damages, supports the trial court's order granting the motion for new trial. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 900, 215 Cal.Rptr. 679, 701 P.2d 826.) Snowline argues that the order granting a new trial should be affirmed on the ground of error in law because the trial court erred in instructing the jury on replacement costs, when the proper measure of damages was the fair market value of the equipment.

Before trial, Snowline submitted its proposed jury instructions, including BAJI No. 14.02, ⁶ BAJI No. 14.20, ⁷ and BAJI No. 14.22. ⁸ Those instructions were refused. Instead, the court instructed the jury using a modified version of BAJI No. 14.02 (1991 rev.) (7th ed. pocket pt.): "The total amount of plaintiff's economic damages is the amount that will reasonably compensate it for each of the following elements of claimed loss or harm, provided that you find that such loss or harm was suffered by it and was proximately caused by the act or omission upon which you base your finding of negligence of the defendant[s], if you so find.

"[The term economic damages means [objectively verifiable] monetary losses including...