Mercer v. Perez

Decision Date23 January 1968
Docket NumberS.F. 22549
Citation68 Cal.2d 104,65 Cal.Rptr. 315
CourtCalifornia Supreme Court
Parties, 436 P.2d 315 Mae Marie MERCER et al., Plaintiffs and Appellants, v. Eleanor J. PEREZ et al., Defendants and Appellans.

Kane & Canelo, Merced, Robert C. Deabenderfer, Gustine, and Cyril Viadro, San Francisco, for plaintiffs and appellants.

Price & Martin, E. Dean Price and John S. Gilmore, Modesto, for defendants and appellants.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Robert G. Beloud, Upland, Leonard Sacks, Los Angeles, Irwin Gastin, Louis S. Katz, San Diego, Joseph L. Spray, Paul Braslow, Sherman Oaks, James R. Ross, Canoga Park, William P. Camusi, Los Angeles, Edgar R. Bardin, Beverly Hills, DeWitt F. Blase, Oxnard, and Edward L. Lascher, Ventura, as amici curiae on behalf of defendants and appellants.

MOSK, Justice.

This is a personal injury action arising out of a collision between plaintiffs' and defendants' automobiles. The complaint charged negligence, and the answer was a general denial. After four days of trial the jury returned a verdict for defendants, and judgment was entered accordingly. Plaintiffs moved for a judgment notwithstanding the verdict and, in the alternative, for a new trial. The motion for new trial was made on the sole ground of the insufficiency of the evidence to justify the verdict. After argument, the court denied the motion for judgment notwithstanding the verdict but granted the motion for new trial. As to the latter, however, the order recited only that 'The motion for a new trial is granted. The court is of the definite opinion, after analyzing the evidence in this case, that there has been a definite miscarriage of justice. The court is of the opinion that the jury trying this case should have rendered a verdict for the plaintiffs, and against the defendants.' Defendants appealed from this order, and plaintiffs cross-appealed from the judgment.

The issue presented by the appeal is whether the order granting a new trial complied with the 1965 amendments to Code of Civil Procedure section 657 (Stats.1965, ch. 1749, p. 3922), the first paragraph of which provides that 'When a new trial is granted, on all or part of the issues, 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.' 1 We are of the opinion that the order here challenged should be construed to adequately state the Ground on which it was granted, but that it wholly fails to specify the court's Reasons for doing so. The question of the proper disposition of the appeal is a difficult one; for the reasons hereinafter explained, we have concluded that the order should be reversed. On the cross-appeal, however, plaintiffs demonstrate prejudicial error in the instructions, and we therefore reverse the judgment.

The Specification of Grounds

Prior to 1919, Code of Civil Procedure section 657 merely listed the allowable grounds for the granting of a new trial; there was no requirement that the ground actually relied upon by the court be specified in its order. In 1919, a limited but clear and unambiguous change in that law was accomplished by the addition of a paragraph providing that 'When a new trial is granted upon the ground of the insufficiency of the evidence to sustain the verdict, The order shall so specify; otherwise, on appeal from such order, it will be presumed that the order was not based upon that ground.' (Italics added.) (Stats. 1919, ch. 100, p. 141.) In 1939 this paragraph was amended to provide that the specification must be made in writing and filed with the clerk within 10 days after granting the motion, and to declare the presumption 'conclusive.' (Stats.1939, ch. 713, p. 2234.) And as noted at the outset, the 1965 revision of the paragraph extended this requirement to All the grounds upon which a new trial may be granted.

Throughout the nearly 50 years that the requirement of specification of grounds has been on the books, however, the trial judges or their clerks have all too frequently failed to comply with its mandate by means of a simple recitation of the words of the statute. In a continuing effort to salvage such orders, the appellate courts have been compelled to infer from a wide variety of more or less ambiguous circumlocutions, aided by the general presumption of regularity, that the trial judge nevertheless 'intended' to base his grant of a new trial upon the ground of insufficiency of the evidence. In Aced v. Hobbs-Sesack Plumbing Co. (1961) 55 Cal.2d 573, at page 578, 12 Cal.Rptr. 257, at page 259, 360 P.2d 897, at page 899, we called a halt to this trend and disapproved of its more extreme instances, observing that 'Section 657 discloses an intent that the required written specification be made in some unmistakable way (citation), and This intent will obviously be frustrated if an order for a new trial is sustained upon the ground of insufficiency of the evidence Where the language of the order is vague or ambiguous. Whenever the order is in general terms, mentioning no ground, or specifies grounds not including insufficiency of the evidence, we must assume that it was not based on the ground.' (Italics added.) Although we conceded that some departure in terminology may be allowed 'if the intention of the court is clear,' we emphasized that 'It is preferable, of course, that the statutory language be used.'

Our admonition, it seems, has not been universally heeded. In Frantz v. McLaughlin (1966) 64 Cal.2d 622, 51 Cal.Rptr. 282, 414 P.2d 410, we were once again required to construe an order granting a new trial so as to save it on the only ground the record would support. The new trial had been granted 'solely on the issue of damages alone'; relying on earlier decisions noted but not disapproved in Aced, 55 Cal.2d at p. 579, 12 Cal.Rptr. at p. 260, 360 P.2d at p. 900, we held that such an order 'necessarily included a specification of insufficiency of the evidence.' And in Malkasian v. Irwin (1964) 61 Cal.2d 738, 40 Cal.Rptr. 78, 394 P.2d 822, we were foreclosed from upholding a new trial order on the obvious ground of insufficiency of the evidence even though the judge had orally expressed a clear intent to base it on that ground. To sustain the order in the interest of justice we were compelled to resort to a different ground listed in the motion for new trial, an admittedly minor error in allowing counsel to argue certain facts not contained in the record.

Similarly, in the case at bar we find on the face of the written order neither a specification in the statutory language nor a clear and unmistakable expression of the court's intent, within the meaning of Aced, as to the ground on which the motion was granted. The statement that 'after analyzing the evidence' the court was 'of the definite opinion' that there had been 'a miscarriage of justice' is of no assistance to us in this connection, for it is no more than a recital of compliance with the mandate of article VI, section 13, of the California Constitution. 2 Because of that constitutional command, Every order granting a new trial presupposes a finding that there has been 'a miscarriage of justice,' and the mere recital of that determination does not somehow insulate the order against reversal in appropriate cases. The court's further statement that the jury 'should have rendered a verdict for the plaintiffs' suggests, it is true, a finding of insufficiency of the evidence pursuant to the second paragraph of the 1965 amendments to section 657 (ante, fn. 1); but it could arguably refer as well to any of several other grounds listed in the statute, such as misconduct of the jury.

To resolve this ambiguity we are compelled to refer to plaintiffs' notice of motion for new trial. The motion, we have seen, was predicated solely upon the alleged insufficiency of the evidence. Applying the settled rule that a new trial 'can be granted only on a ground specified in the motion' (Malkasian v. Irwin (1964) supra, 61 Cal.2d 738, 745, 40 Cal.Rptr. 78, 82, 394 P.2d 822, 826, and cases cited), we conclude that the present order must be deemed to have been based on a finding of such insufficiency. A similar process of reasoning was employed in Ice-Kist Packing Co. v. J. F. Sloan Co. (1958) 157 Cal.App.2d 695, 697--699, 321 P.2d 840, a decision also noted but not disapproved in Aced, 55 Cal.2d at p. 579, 12 Cal.Rptr. 257, 360 P.2d 897.

In so holding, however, we are not to be construed as giving our approval to this or any other failure to comply unambiguously with the statutory mandate that 'the court shall specify the ground' on which the motion is granted. Rather, we reiterate our Aced advice that the statutory language, or a reasonable approximation thereof, be used in all cases. Accuracy in this regard is particularly desirable now that the amended statute requires specification not only of the ground of insufficiency of the evidence but also of each of the other grounds that may have been the basis of the order.

The Specification of Reasons

A still more important change in the statute is the addition of a requirement that the court must specify not only the grounds upon which the new trial was granted but also its 'reason or reasons' for doing so. The case at bar is the first in which we have been called upon to apply this language.

To begin with, it is apparent that in the context of this statute the words 'ground' and 'reason' have different meanings. The first paragraph of the amendments requires the court to specify its 'reason or reasons' for granting the new trial 'upon each ground stated.' The third paragraph further emphasizes this distinction: the order 'must state the ground' and 'may contain the specification of reasons'; if it does not do the latter, the court must file a separate, written specification of reasons within 10 days;...

To continue reading

Request your trial
288 cases
  • Clemmer v. Hartford Ins. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • January 24, 1977
    ...(Scala v. Jerry Witt & Sons, Inc., supra (1970) 3 Cal.3d 359, 363-364, 90 Cal.Rptr. 592, 475 P.2d 864.) In Mercer v. Perez (1968) 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, the court concluded the 1965 amendment to Code of Civil Procedure section 657, requiring articulation of reasons w......
  • Delos v. Farmers Group, Inc.
    • United States
    • California Court of Appeals Court of Appeals
    • May 30, 1979
    ...upon the motion for a new trial after the expiration of the statutory time limits (Code Civ.Proc., § 660; Mercer v. Perez (1968) 68 Cal.2d 104, 118-124, 65 Cal.Rptr. 315, 436 P.2d 315; Lippold v. Hart (1969) 274 Cal.App.2d 24, 27, 78 Cal.Rptr. 833) and this case does not fall within any jud......
  • Meiner v. Ford Motor Co.
    • United States
    • California Court of Appeals Court of Appeals
    • April 26, 1971
    ...new trial met the standard of specificity required by section 657 of the Code of Civil Procedure as construed in Mercer v. Perez, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, and Scala v. Jerry Witt & Sons, Inc., 3 Cal.3d 359, 90 Cal.Rptr. 592, 475 P.2d No attempt will be made to summariz......
  • People v. Rome
    • United States
    • California Court of Appeals Court of Appeals
    • July 13, 1984
    ...787.) The particular objectives the legislation seeks to achieve are of prime importance in this inquiry. (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 65 Cal.Rptr. 315, 436 P.2d 315; see also Landrum v. Superior Court (1981) 30 Cal.3d 1, 12, 177 Cal.Rptr. 325, 634 P.2d 352.) The purpose of t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT