Scala v. Jerry Witt & Sons, Inc.

• Decision Date: 29 October 1970
• Citation: 475 P.2d 864,3 Cal.3d 359,90 Cal.Rptr. 592
• Court: California Supreme Court
• Parties: , 475 P.2d 864 John SCALA, Jr., Plaintiff and Appellant, v. JERRY WITT & SONS, INC., Defendant and Respondent. L.A. 29748.

Page 592

90 Cal.Rptr. 592

3 Cal.3d 359, 475 P.2d 864

John SCALA, Jr., Plaintiff and Appellant, v. JERRY WITT & SONS, INC., Defendant and Respondent.

L.A. 29748.

Supreme Court of California,

In Bank.

Oct. 29, 1970.

Magana, Olney, Levy & Cathcart, John A Marin, William B. Murrish and Richard Devirian, Los Angeles, for plaintiff and appellant.

Dryden, Harrington & Swartz, Ellis J. Horvitz, Vernon Foster, John T. Butchko and William D. Keller, Los Angeles, for defendant and respondent.

MOSK, Justice.

This is an action for damages for personal injuries arising out of an accident on a construction site. The complaint alleged that plaintiff was employed to install lathing on the premises in question; that defendant Jerry Witt & Sons was a subcontractor performing labor on the same premises; and that defendant negligently allowed an obstruction to be placed in the area where plaintiff was required to work, causing plaintiff to injure himself.

The jury returned a verdict for plaintiff, and judgment was entered accordingly. Defendant then moved for a new trial on all the statutory grounds. (Code Civ.Proc. § 657.) The motion was granted on the sole ground of insufficiency of the evidence; with respect to the court's reasons for granting the motion on this ground, the order recited only that 'there is no sufficient evidence to show that the defendant was negligent and the evidence does show that the plaintiff failed to use ordinary care for his own safety and that that failure was a proximate cause of his injuries.'

Plaintiff appeals from the order granting a new trial, contending the court's specification of reasons is inadequate to comply with the mandate of Code of Civil Procedure section 657 as we construed it in Mercer v. Perez (1968) 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315. We conclude that the point is well taken and hence the order must be reversed.

Code of Civil Procedure section 657 was amended in 1965 by the addition of four paragraphs of text prescribing substantially new procedures for granting a motion for new trial and for reviewing such an order on appeal. The first paragraph of the amendments 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.' The fourth paragraph declares in part that on appeal from an order granting a new trial on the ground of insufficiency of the evidence, '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.'

In Mercer v. Perez (1968) supra, 68 Cal.2d 104, 65 Cal.Rptr. 315, 436 P.2d 315, we reviewed in considerable detail the history and intent of these amendments, and our analysis need not be repeated here. We explained that the requirement of a specification of reasons served the two-fold purpose of encouraging careful deliberation by the trial court before ruling on a motion for new trial, and of making a record sufficiently precise to permit meaningful appellate review. (Id. at pp. 112--115, 65 Cal.Rptr. 315, 436 P.2d 315.) Applying these principles to the ground before us, we concluded (at pp. 115--116, 65 Cal.Rptr. at p. 322, 436 P.2d at p. 322): 'to give full effect to the new scope of review provided in the fourth paragraph of the 1965 amendments, * * * we hold that if the ground relied upon is 'insufficiency of the evidence' the judge Must briefly recite the respects in which he finds the evidence to be legally inadequate; no other construction is consonant with the conclusive presumption on appeal that the order was made 'only for the reasons specified.' Phrasing the requirement in terms of the codification of the trial judge's power in the second paragraph of the amendments * * *, such an order Must briefly identify the portion of the record which convinces the judge 'that the court or jury clearly should have reached a different verdict or decision. '' (Italics added; fn. omitted.)

In the case at bar the specification of reasons merely recited that under the court's view of the evidence (1) the defendant was not negligent and (2) the plaintiff was guilty of contributory negligence proximately causing his injuries. A number of Court of Appeal decisions since Mercer have either held or stated that similar specifications of reasons are sufficient to comply with the requirements of section 657. ¹ The germinal impetus of this line of cases was a dictum in Kincaid, ² which Funderburk promptly elevated into 'a rule that a specification of reasons couched in terms of ultimate fact is adequate.' (Funderburk v. General Tel. Co. (1968) supra, 262 Cal.App.2d 869, 875, 69 Cal.Rptr. 275, 279.) Most of the ensuing decisions so holding (Ante, fn. 1) have simply invoked the 'ultimate fact rule' of Funderburk and affirmed new trial orders however meager their specification of reasons.

A parallel line of Court of Appeal decisions has held, however, that a specification of reasons phrased in terms of 'ultimate fact' is Not adequate to comply with section 657. First, in McLaughlin v. City etc. of San Francisco (1968) 264 Cal.App.2d 310, 70 Cal.Rptr. 782, the court entered a conditional order granting a new trial on the issue of damages; the ground was insufficiency of the evidence to justify an allegedly excessive verdict, and the reason was 'the failure of the Plaintiff to prove by a preponderance of the evidence reasonable total damages, both general and special,' in excess of a given figure. Reversing the order of new trial, the Court of Appeal pointed out that such a specification of reasons in effect 'merely reiterated the ground itself.' (Id. at p. 316, 70 Cal.Rptr. 782.) The court then turned to the record on appeal and explained that because of the inadequacy of the specification of reasons 'we simply cannot identify the respects in which the trial court found plaintiff's evidence to be insufficient.' (Ibid.) Noting several possibilities, the court continued (at p. 317, 70 Cal.Rptr. at p. 786): 'In these areas, we could speculate as to where the trial court thought the deficiencies lay, and its reason for granting the new trial might be identified by inference. But the 1965 amendment of section 657 was designed to put an end to speculation of this nature, and we are not permitted to infer the trial court's reasons where we have not been hold what they are. (Mercer v. Perez, Supra, 68 Cal.2d 104 at p. 117, 65 Cal.Rptr. 315, 436 P.2d 315.)' Quoting from Mercer, the court concluded (264 Cal.App.2d at pp. 317--318, 70 Cal.Rptr. at p. 786): 'On the present appeal, plaintiff cannot 'address himself' to any asserted deficiencies in his proof, and we cannot 'determine if there is a substantial basis for finding such a deficiency,' because the order refers to none. The Mercer decision, and others which have followed and applied it as discussed herein, Establish only minimum standards which need be met in order to state an adequate specification of reasons under the amended version of section 657. Guided, however, by the Legislature's demonstrated purpose in amending the statute, we conclude that even the minimum standards were not met here.' (Italics added.)

Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 71 Cal.Rptr. 275, was a wrongful death action predicated in part on the alleged negligence of a truck driver and his employer; the jury rendered verdicts for these defendants, but a new trial was granted with respect to the defendant employer. The Court of Appeal characterized the order as granting a new trial in essence because the defendant employee was negligent and the plaintiffs' decedent was not negligent. Among several grounds on which the order was reversed, the appellate court held (at p. 177, 71 Cal.Rptr. at p. 287) that the specification of reasons was insufficient 'in that it does not attempt or purport to recite the respects in which the evidence is legally inadequate, as is required by Code of Civil Procedure section 657,' citing Mercer.

In Van Zee v. Bayview Hardware Store (1968) 268 Cal.App.2d 351, 74 Cal.Rptr. 21, the plaintiff sued for injuries caused by the explosion of an allegedly defective aerosol paint can; after judgment in his favor, a new trial was granted on the dual grounds of misconduct of the jury and insufficiency of the evidence. The Court of Appeal held both grounds untenable and reversed the order. The specification of reasons on the second ground stated only that 'the evidence is insufficient to support the verdict in that the evidence does not establish that the Zynolyte aerosol paint can was defective at any time prior to the delivery of said can to the possession of the Plaintiff.' The appellate court declared (at p. 359, 74 Cal.Rptr. at p. 26) that the specification was 'inadequate' and 'does not satisfy the purposes of section 657 of the Code of Civil Procedure. It is true that it states the failure to prove the main ultimate fact in the case. The burden of proving that the can was defective rested upon plaintiff. (Citations.) But the Reason given is hardly more definite than is the stated Ground.' The court further noted (ibid.) that our explanation of section 657 in Mercer 'has not been followed literally in certain cases of the Courts of Appeal' (citing Matlock, Kincaid, and Funderburk), and endeavored to reconcile the latter with the Mercer requirements. Contrary to the Funderburk 'rule,' however, the Van Zee court concluded (at p. 360, 74 Cal.Rptr. at p. 27) that 'where the ground is insufficiency of the evidence, the purposes of the statute frequently can be satisfied only if the reviewing court and the parties to the action are given more than a statement which declares that they have failed to prove...