Treber v. Superior Court of City and County of San Francisco, S.F. 22540

CourtUnited States State Supreme Court (California)
Citation65 Cal.Rptr. 330,436 P.2d 330,68 Cal.2d 128
Decision Date23 January 1968
Docket NumberS.F. 22540
Parties, 436 P.2d 330 William TREBER, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The RECORDER PRINTING & PUBLISHING COMPANY, Real Party in Interest.

Lewis & Stein and Marvin E. Lewis, San Francisco, for petitioner.

No appearance for respondent.

Richard A. Boyd, John E. Whiting and Cyril Viadro, San Francisco, for real party in interest.

MOSK, Justice.

This is a proceeding for writ of mandate to compel respondent court to set aside and vacate its order granting a new trial. The case is a companion to Mercer v. Perez, Cal., 65 Cal.Rptr. 315, 436 P.2d 315 also filed this day. As will appear, we have concluded that petitioner is not entitled to relief by way of extraordinary writ.

Petitioner is the plaintiff in a damage action filed in respondent court against the real party in interest. On January 18, 1967, the jury in that action returned a verdict in favor of petitioner; counsel for petitioner fails to so advise us, but we presume judgment was entered in due course. On March 21, respondent court denied a motion for judgment notwithstanding the verdict but granted a motion for new trial. As to the latter the order recited simply, 'Motion for new trial granted--errors in law.' On April 7 petitioner filed a notice of motion to vacate the new trial order on the ground that it was void for failure of the court to specify its 'reason or reasons' in compliance with Code of Civil Procedure section 657, as amended in 1965. 1 The motion was denied on May 10, and two days later petitioner filed an application for writ of mandate in the Court of Appeal, seeking to compel respondent court to vacate its new trial order on the just-mentioned ground. The application was denied without opinion on May 17, and a petition for hearing was presented to this court. In view of the importance to the bench and bar of a speedy and authoritative construction of these new statutory provisions, we issued an alternative writ and set the matter for hearing at the same time as Mercer.

Using the statutory language, the new trial order here entered adequately states the ground, 'errors in law,' upon which it was granted. But the order wholly fails to comply with the further requirement of section 657 that the court shall specify its 'reason or reasons for granting the new trial upon each ground stated.' In Mercer we explain that the dual statutory intent underlying this requirement is to encourage careful deliberation by the trial courts before ordering new trials and to promote a more meaningful appellate review of such orders; to effectuate these purposes, we there hold (ante, 65 Cal.Rptr. p. 315, 436 P.2d p. 315) that if the ground of the order is insufficiency of the evidence, the judge must briefly recite the respects in which he finds the evidence to be legally inadequate. Upon the same considerations, we now hold that if the ground is 'errors in law' the statute requires the judge to briefly specify the errors that are the basis for his ruling. For example, if the error is improper admission or exclusion of evidence, the judge should so state and should identify the evidence in question; if the error is the giving of incorrect instructions, the judge should again so state and should point out the instructions on which he reversed himself.

Petitioner urges that the requirement of 'reasons' be extended to demand of the trial judge an explanation why he was of the opinion that a given error of law was prejudicial. (Cal.Const., art. VI, § 13.) It would be unreasonable, however, to construe section 657 as compelling the judge to set forth his 'examination of the entire cause, including the evidence,' on the face of the new trial order itself. Moreover, even if such an explanation were furnished it would not be binding on the reviewing court. On an appeal from an order granting a new trial, that court has the power to determine as a question of law whether any challenged ruling below was erroneous; but once such an error is shown, the reviewing court may not substitute its judgment for that of the trial court on the essentially factual question of prejudice. At this point the issue is not whether the reviewing court would find the error to be prejudicial as an original matter, nor even whether the particular explanation offered by the trial court supports the finding of prejudice; the sole issue is whether the order granting a new trial, viewed in the light of the whole record, constituted a manifest abuse of discretion. (Brandelius v. City & County of S.F. (1957) 47 Cal.2d 729, 744--745, 306 P.2d 432, and cases cited; accord, Amar v. Union Oil Co. (1958) 166 Cal.App.2d 424, 427, 333 P.2d 449; De Victoria v. Erickson (1948) 83 Cal.App.2d 206, 208--209, 188 P.2d 276; Pettigrew v. O'Donnell (1939) 32 Cal.App.2d 502, 503, 90 P.2d 93.) In appropriate circumstances such an abuse of discretion has been demonstrated (e.g., Sparks v. Redinger (1955) 44 Cal.2d 121, 123, 279 P.2d 971), but the presumption remains in favor of the trial court's judgment on this issue. Petitioner is mistaken in believing that the 1965 amendments to section 657 change in any way the foregoing well-settled rules.

Here, as in Mercer, our most difficult problem is the proper disposition of the case. Petitioner contends that the failure to specify reasons in compliance with section 657 renders the order void and in excess of jurisdiction, and hence that mandate will lie to compel respondent court to vacate it. It is true that in a number of cases procedural errors in making and determining a motion for new trial have been held jurisdictional and reached by way of extraordinary writ. (See, e.g., Tabor v. Superior Court (1946) 28 Cal.2d 505, 170 P.2d 667 (prohibition; premature notice of motion); Bank of America, etc., Assn. v. Superior Court (1931) 115 Cal.App. 454, 1 P.2d 1081 (prohibition; tardy notice of motion); Lee v. Superior Court (1961) 196 Cal.App.2d 161, 16 Cal.Rptr. 268 (prohibition; failure to serve an adverse party); Whitley v. Superior Court (1941) 18 Cal.2d 75, 113 P.2d 449, overruled on other grounds in Dempsey v. Market Street Ry. Co. (1943) 23 Cal.2d 110, 117, 142 P.2d 929 (certiorari; failure to specify insufficiency of evidence as ground of order); Siegal v. Superior Court, Cal., 65 Cal.Rptr. 311, 436 P.2d 311, (mandamus; motion granted more than 60 days after notice of entry of judgment); Kahn v. Smith (1943) 23 Cal.2d 12, 142 P.2d 13 (same).)

No such jurisdictional defect appears in the order now before us: although the court did not specify the reasons for the ruling, it was timely made upon a proper motion served on the adverse parties. As we explain in Mercer, such an order is not in excess of jurisdiction.

This conclusion is rendered unassailable by the circumstance that in the present case the ground on which the motion was granted was 'errors in law.' In adjudicating an appeal from a new trial order predicated on that or any ground other than insufficiency of the evidence or excessive or inadequate damages, the reviewing court is governed by the fourth paragraph of the 1965 amendments to section 657: codifying the common-law rule in this respect (see Kauffman v. Maier (1892) 94 Cal. 269, 275--277, 29 P. 481, 18 L.R.A. 124, followed in many cases), the statute declares that on such an appeal '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' (italics added). 2 This court observed in Kauffman that 'A contrary rule might work great injustice,' explaining (at pp. 276--277 of 94 Cal., at p. 481--482 of 29 P.) that 'A party has the right to move for a new trial upon any or all of the grounds permitted by the statute, and if the record on which his motion is based discloses more than one ground for which a new trial should be granted, the court cannot, by stating in its order that the motion is granted upon one ground only, and denied upon the others, deprive the other party of the right to a review by this court of the entire record. * * * If there be any grounds upon which its action can be upheld, the order will be sustained, Irrespective of the particular ground given by that court, whether in an opinion or by a statement in the order itself.' (Italics added.)

Under this rule we have deemed ourselves bound to affirm a new trial order upon an error in law which was not only not the ground specified by the trial judge, but was apparently not even within his contemplation at the time of his ruling. (Malkasian v. Irwin (1964) 61 Cal.2d 738, 745--749, 40 Cal.Rptr. 78, 394 P.2d 822.) It follows that a failure of the trial judge to specify Any ground--and A fortiori any reason for a ground actually stated--cannot be held to render the order void from its inception. The reviewing court remains under an express statutory duty to affirm such an order if the record will support any ground listed in the motion.

This does not mean, however, that relief by way of mandate is ipso facto rendered unavailable. Although petitioner is not entitled to a writ compelling respondent court to vacate its order and reinstate the judgment, mandate does not reach void orders only. We now turn to the question whether petitioner is entitled to compel the court at least to specify its reasons for granting a new trial on the stated ground of errors in law. Such specification, under the amended section 657, is 'an act which the law specially enjoins, as a duty resulting from an office' (Code Civ.Proc. § 1085), and hence would appear to be within the scope of the remedy.

But it has been judicially established that the applicant for a writ of mandate must also show that the respondent has a Present duty to perform the act he seeks to compel. (See County of Sacramento v. Hickman (1967) 66 A.C. 875, 879, 59...

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