*1 Dist., 28, 1977.] Jan. Second Div. Four. No. 49153. [Civ. O’KELLY, v. Plaintiff and
KIDDIE Respondent, al., WILLIG FREIGHT LINES et Defendants and Appellants.
Counsel Robinson, Mark P. Robinson and Steven L. Anderson for &
Horgan and Defendants Appellants. & Waters Lewis for Plaintiff
Lewis and Joseph Respondent. Opinion
KINGSLEY, P. J. Defendants from an order of the Acting trial appeal for a new set trial. For the reasons forth court it as below, and affirm modified. we modify is a case of first California This dealing power impression court, in tried under the doctrine of an action of a comparative Li Yellow Cab 13 Cal.3d v. Co. pronounced 532 P.2d .a limited new 1226], issue of grant Cal.Rptr, case was after the Li case tried became (This damages. apportionment effective.) automobile, her curb
Plaintiff near to on a parked briefly, right truck, street. her four-lane Defendants’ city pass parked attempting car, car, the left both struck rear fender causing property to' The evidence was injuries damage personal plaintiff. conflicting to the conduct of the and as to the extent of the both as parties personal On the issue of the evidence for was that injuries.1 negligence, to the curb and within the she limits for a parked parallel statutory accident, said, curb-side after defendant driver had parking It “I’m fault.” evidence for defendants was that the sorry. car was at an with the left rear fender 18 inches parked angle, extending curb, into the second lane from the or defendant driver to more forcing into the third lane but forced back into the second lane veer being other traffic on the street. The driver denied admission of making attributed to him fault by plaintiff.2 $8,073.72, returned a verdict for in the amount of
with a as follows: reading special
“We, action, in the above-entitled find as follows on the of fact submitted to us: particular questions
“Question No. Without into consideration the 1. taking questions reduction of due to the of the if what damages negligence plaintiff, any, did find to be the total amount of you plaintiff’s damages proximately from the accident in resulting question? $16,147.43
“Answer: “Question No. 2. Was there of the negligence part plaintiff which contributed as a cause of her proximate injury?
“Answer or ‘no.’ ‘yes’ Yes
“Answer: , ‘no,’ “If answer to No. 2 is then shall not answer your question you 3,No. since the amount of set forth in answer to Question your ' No. 1 is the amount of verdict. Question your brief, 1defendants’ devotes several to a discussion of the extent of unnecessarily, pages No issue as to the total is the record before us. damages. damage presented by them, 2The driver’s was: “A. I recall back and Miss testimony going telling O’Kelly there, car, and the few that were that I about her that I had been hitting people sorry off, cut and there was one man there said that he saw the car cut me off immediately too.” to answer No. are instructed “If answer ‘yes,’you question your No. 3. Question of the and of the No. 3. The combined
“Question negligence contributed to the whose defendants injury being negligence proximately 100%, combined is attributable to what such proportion attributable to such defendants? and what proportion “Answer: To 50%
To defendants 50%>” verdict, and for a Plaintiff moved notwithstanding judgment all was made on new trial. The latter motion statutory grounds. withdrawn; the verdict was The motion notwithstanding judgment a minute order for a new trial the motion reading granted as follows: part pertinent court
“In the matter heretofore taken under submission 25, 1975, the court announces its as follows: August rulings *5 “Motion for new trial is the of of granted upon insufficiency the evidence to for the reason that the evidence fails to justify and verdict of the that of the combined finding support special of the and of the defendants whose negligence plaintiff negligence contributed to of injuries, proportion proximately negli- attributable to is 50%.” gence
Thereafter
the trial court
and filed within the
time
signed
statutory
Proc.,
reasons,
limit
Civ.
its
of
as
(Code
657)
§
follows:
specification
new
“The
motion for
trial was
granted upon
of the evidence to
the verdict for the reason that the
and verdict of the
evidence fails
support
finding
juiy
special
of the
the combined
of the
defendants whose
negligence
contributed to
injuries,
proportion
negligence proximately
50%,
the evidence
attributable to
negligence
her car
and close to the
showed
plaintiff pulled up
stopped
parallel
defendant Wade and
curb,
was struck from behind
her car
forward,
feet
and that
after
moved ten to twelve
immediately
substance, ‘I’m
It was
the defendant Wade said in
accident
soriy.
”
fault.’
I
specifications
Defendants contend that
of reasons did not
requirement
meet the
of section 657 of the Code of Civil Procedure as
interpreted
(1968)
that section has been
in Mercer v. Perez
II all, Defendants contend if the order can be sustained at it being solely question must be treated as limited to a new trial apportionment parties damage. agree. between the of the total We
Although plaintiff's
judgment notwithstanding
motion for
the verdict
sought
apportionment
and for a new trial
both an undivided
larger finding
damage,
except
and a
the order is silent as to all matters
proportion
apportionment.
It is clear from the order
motion,
reasons,
new trial
and from the
that the trial
retrial,
concerning
court did not intend a total
nor a retrial
the total
damage.
light.
amount of
We read it in that
Although
dealing
we are cited to no California cases
*6
us,
none,
authority
matter before
and we have found
there is
out of this
granting
apportionment.
state for
a new trial limited to the issue of
(Caldwell
Piggly-Wiggly
(1966)
[145
v.
Madison Co.
Dunn, J., concurred. in in and dissent J. I concur (Bernard), part. JEFFERSON part with the us as one the issue before dealing poses majority opinion the doctrine of in an action tried under a trial court power Co. in Li v. Yellow Cab negligence, pronounced comparative a new trial limited 1226], 532 P.2d grant Cal.Rptr. Cal.3d to the issue of I with this statement disagree damages. apportionment because, in at bench in the case of the issue my opinion, presented trial limited to the sole issue of a new court did not grant purport order, it the trial court’s As I construe of damages. apportionment trial, for a new without that one granted that retried. It is the to be limitation on the issues majority’s opinion issue—not the trial trial on the one limits and directs specific order. court’s that with the limit majority’s opinion
But I do not my disagreement limited to new trial as being the trial court’s construes taken with the action majority I also this one issue. disagree be retried is redetermination which is to issue that the only deciding defendant, between leaving comparative reduction to remain before total verdict as jury’s that the trial court determines intact. majority opinion improperly reduction, before total damages, jury’s upheld defendant were both $16,147.43; and amounted extent. to some negligent
I reversing judgment practice agree principle “[t]he , . . . and should be in this court is well settled only part [order] has affected the committed found have been where the error followed *7 number of distinct of a one or more determination of but greater 130, 166 Cal. v. Cotton (1913) action.” or causes of severable issues (Gray however, to the is P. This 1145].) subject exception 139 principle, [134 order, such as an an are and liabilities if the interdependent, rights 585 trial, order new an must be treated as and a granting entirety partial or reversal modification Bird v. McGuire 216 (See (1963) improper. 386].) Cal.Rptr. Cal.App.2d [31
Defendants set forth two in contentions the trial court asserting erred, in motion for a new trial. basic granting plaintiff’s ground that the trial court’s order a new urged granting ground of the evidence is a sufficient insufficiency by unsupported specification of reasons as Code of Civil Procedure section 657. by required that, second contention made the defendants is if the trial court’s by court, order for new trial is sustained this the new trial should not by include issue as to the amount of total sustained by plaintiff, $16,147.43 determined without reference issue by jury whether there was that contributed her negligence by plaintiff injuries.
It is
view that neither of these contentions of
defendants has any
merit. I
that the
set
agree
reasons
forth
majority
specification
the trial
motion for new
trial on the
judge
granting plaintiff’s
of the
evidence
the verdict satisfies
insufficiency
the.
support
657,
of Code of Civil Procedure section
as
requirements
interpreted by
Mercer v. Perez (1968)
The Mercer view toas requirements adequacy of reasons in a motion for new trial on the granting of the evidence was reaffirmed the California Supreme Sons, Court in Scala v. Witt & Inc. Cal.3d Jerry 592, 475 P.2d Cal.Rptr. 864]. bench,
Defendants contend case at
reasons set forth support
586 held to the of reasons to similar trial specification inadequate 8 Cal.3d v. Los Flood Control Dist. 689 (1973) in Miller County Angeles I 1,505 the P.2d that agree majority 193]. Cal.Rptr. [106 the case at forth the trial court in bench is of reasons set by specification declared the of reasons inade- from specification clearly distinguishable case, As with the Miller in Miller. contrasted specification quate the motion for new order the trial reasons judge’s granting supporting of reasons like the deemed in the instant case is more trial specification an a new trial found in sufficient support granting adequate 127 Meiner v. Ford Motor Co. (1971) Cal.Rptr. 702] Cal.App.3d [94 Meadows, Fremont Area Dist. v. in San Francisco Transit Bay Rapid Inc. Cal.Rptr. Cal.App.3d 898]. Dist., action, Transit a condemnation
In San Francisco Area Bay Rapid court, trial inadequate granting that the set forth in its reasons verdict juiy’s specification damages, use of the factor which and best highest upon ignored property —a that the had considered the valuation were in accord —and experts juiy factors; to the of other and that the factor of size exclusion comparable a consideration one sale. too given great jury The Meiner a' strict case involved action injury liability personal a from head-on collision. Plaintiff’s resulting highway expert testimony in Meiner was effect that the had been caused a defect accident that caused the car become wheel locked. This steering plaintiff’s introduced contradicted testimony by expert testimony defendants, seller, and the defendants’ manufacturer and eyewitness which that the from indicated accident resulted testimony, plaintiff’s fast. favor of turn too making right-hand Following defendants’ motion for a new trial was granted plaintiff, verdict. The trial the evidence judge’s that he set forth was convinced reasons in the failed either to establish existence of a defect expert steering mechanism or that the defect to which he testified was the cause of wheel; of the of the testimony lock-up steering temporary and, that, with defense was entitled to credence greater experts respect itself, of the the accident defense witnesses was over- testimony more than version. whelmingly persuasive probable reasons for trial court’s In the instant case the motion for new indicated *9 disbelieved and other evidence defendants as testimony by presented occurred, and, instead, how the accident believed the evidence There were two versions how the by accident presented plaintiff. occurred —one which was by presented plaintiff, diametrically to the one defendants. The version was opposed presented by plaintiff’s that her was automobile to the curb of a street parked parallel right city Code; and within distance of the curb the Vehicle by required defendant driver rear-ended vehicle without simply plaintiff’s any other than Defendants’ version was that justification negligence. curb —but at an in which the left parked parallel angle —not rear fender of vehicle extended 18 inches or more into the plaintiff’s curb, lane from the
second which forced the defendant driver to veer and, into the third lane forced back into second lane other being by street, traffic on defendant driver was unable to prevent striking addition, car. In offered evidence after the accident, defendant driver had “I’m said: It was fault.” The sorry. my driver, however, defendant denied the admission of fault making attributed to him plaintiff. case,
In the instant did not state although judge specifically that he disbelieved the evidence defendants that presented by but, instead, vehicle was not to the curb at an parked parallel angle which the left fender rear extended some 18 inches more into the or lane, the second reasons can be as an specification interpreted only to this assertion effect. In forth in the of reasons that setting “the evidence showed her car plaintiff pulled up stopped parallel curb, and close to car her was struck from behind defendant forward, Wade and moved ten to feet after twelve immediately substance, the accident the defendant Wade said in ‘I’m It was sorry. ” fault,’ that he added), (italics unequivocally stating judge defendants as to how the accident disbelieved evidence presented by and that he believed the evidence occurred presented how the accident occurred. regarding
It would indeed be unreasonable and to hold that a trial unrealistic must use words that he certain certain disbelieved magic stating but, instead, other evidence believed the contra- specific testimony bench, and other evidence. In the case at dictory testimony of reasons for the trial court’s is, therefore, for new of the evidence and is in of Code of clearly adequate conformity requirements Civil Procedure section as Scala. Mercer and interpreted by bench, at I next to the of whether the trial In the case turn question a new trial can be construed reasonably granting plaintiff judge’s *10 eliminate, trial, with on new the issue to the amount of to a respect the of reduction any regard question plaintiff’s damages —without of because of issue negligence. comparative order of law It is a well-settled [granting principle “[t]he terms the court not reasons is measured its by any may give by trial] an not be deemed to be limited An order will for it. by [Citations.]... [¶] to limit is the intention unless or reasoning judicial opinion in the mere statement of reasons in order. expressed [Citation.] to limit. such intention sufficient show is not [Citations.]” 427, 437-438 53 Cal.2d v. State Cal.Rptr. (Yarrow [2 California of 603, 191 137, accord, v. Ward (1961) P.2d Johns 687]; Cal.App.2d 839].) 607-608 Cal.Rptr. to Code of the 1965 amendment before was decided Yarrow
Although of reasons” to 657, a section Civil Procedure “specification required a for new trial or in the motion in the order set either forth granting valid, document, is still its rationale compelling. persuasive separate for new trial that the matter of motion The record reflects plaintiff’s 25, 1975, and the trial on under submission August was taken judge 26, 26, court’s minute order 1975. The ruled August August upon 1975, for trial that the new is asserts granted upon “[m]otion for the reason the evidence .,There the trial order of in this minute is no judge absolutely language issues. Plaintiff’s a new trial to construed as that can be limiting specific limited trial on issues. did not new a new trial motion for request of the Hence, cannot be looked support trial order. court’s construction majority’s 1975, and filed written the trial executed On September there the motion for new of reasons for granting of reasons which written in the supports is nothing court limited his view that majority’s excluded the issue of the issues which motion for new suffered total amount of determination damages by plaintiff. it is as to stated that issue In of the footnote majority’s opinion, “[n]o is us.” This statement the record before the total damage presented the fact that brief made defendants’ in the unnecessarily response of the several to a discussion of the devoted majority, pages opinion view, however, It is extent that an plaintiff’s damages. analysis record that the demonstrates total amount assessed an issue that is much plaintiff’s injuries very presented before us.
Defendants trial, out motion for a new point of “excessive or was not relied inadequate damages” specifically Code of Civil Procedure section 657 lists seven items as upon. grounds *11 which a new trial Subdivision 5 of section 657 is may granted. upon one which the sets forth excessive or as for inadequate grounds damages a new trial. Subdivision 6 of 657 the section sets forth item of of the evidence to the verdict . . It . .” is to be “[insufficiency justify noted, however, for a new motion trial set forth of the evidence” as one of the reasons for a new “insufficiency seeking motion, But in the trial. the authorities points supporting plaintiffs that the evidence insufficient the total argued justify damages the issues, found without the by jury, regard comparative negligence and, hence, that the total were assessed damages inadequate.
Furthermore, trial, in addition to a motion for a new making plaintiff made also a for motion the verdict. In this judgment notwithstanding motion, latter to have the court a in favor plaintiff sought grant judgment of with an additur to the total amount of found the damages At the on the for new motions for jury. argument judgment verdict, withdrew the motion for notwithstanding after since the judgment notwithstanding realizing rendered in been favor of the relief judgment plaintiff, sought could not be obtained of a procedure judgment notwithstanding the verdict.
Defendants assert that now cannot of inade- complain of $16,147.43, the total of assessment made quacy damages because motion for a new trial set forth did not jury, as a of his motion. “inadequate damages” specific ground 1967, Prior to Code Civil section Procedure 657 did not contain an item of as a for a motion damages ground inadequate specific granting for new trial. 657 Section 1967 to add amended “inadequate as an additional and a new trial. damages” ground separate seeking 590 result this to section 657 is that the amendment
Defendants argue of section 657 the Code of Civil Procedure an interpretation require for a not be asserted as basis the effect that may “inadequate damages” in a for a set forth new trial. new trial unless party’s specifically as of Code of Civil contention This appropriate interpretation Com 657 Committee section is Procedure groundless. Legislative amendment, “First, Senate, this 1967 states: regarding ment — that an award amended section explicitly recognizes inadequate a new trial as an excessive award is for granting just damages this basis availability recognized. damages presently trial, of the evidence to ‘insufficiency verdict,’ v. Air is well settled in California. Superior Harper 91, McIntire, Inc., P.2d v. Parts, 268 115 (1954); 124 Reilley Cal.App.2d nor (neither 85 P.2d passion prejudice Cal.App.2d Thus, the revisions of Section continue be shown). need power evidence, when, he after a new trial weighing grant record, reasonable inferences from the entire is convinced including therefrom, that the award of inadequate.” *12 therefore, motion set forth “insuffi- clear, since
It is that as of the reasons the verdict” one of the evidence to justify ciency motion, of of was in the the question inadequacy damages specified the motion on the And since the trial court raised. granted ground verdict,” the it is of the evidence to of specious “insufficiency justify to that the issue of “inade- of defendants claim on reasoning part of had waived omission this been by plaintiff’s quate damages” in It in that her motion. should mentioned passing offer to a defen- refused defendants’ written judgment against accept $25,000, of Civil in the of made to Code dants sum Procedure pursuant $8,073.72 than 998, that of was less section and since judgment offer, items of were recover this defendants to seeking against plaintiff witnesses, of as such as amounts for services costs expert paid in of section subdivision (c). Code Civil Procedure provided the trial conclusion that court’s order also .6 The majority’s precluded whether at all ti new trial on the issue of negligent appears on of the trial court’s of reasons” be based the construction “specification of tended a as items evidence that to show substantial pointing specific of defendant driver and minimal of on amount part negligence The thus on the concludes amount majority negligence plaintiff. part of retrial, a retrial a total nor that court did not intend the trial grant the issue of if nor retrial concerning plaintiff’s negligence, any, the total amount of and I am covering plaintiff’s injuries damages. find unable to such intention be extracted from the trial court’s any reasons, from order or its either or in combination. singly What does here is to majority speculate regarding judge’s intention derived from same he used in the order and in the language I reasons. cannot deduce from the used language that he concluded that the evidence judge justified finding minimal on the used negligence part plaintiff. language trial court is that “the evidence showed plaintiff pulled up stopped curb, her car and close to the her car was struck from behind parallel defendant Wade moved ten to twelve feet forward, after the accident the substance, defendant Wade said in immediately ” ‘I’m It was fault.’ (Italics added.) reasonable sorry. only construction to be to this is that considered given language the credible evidence show no at all negligence part plaintiff. states,
The trial court’s order “Motion new trial for pertinent part: of. the evidence to granted upon reason that . . .” There no . contained in the language rest of the trial court’s states or leads to an reasonably inference that the new trial should not include the issue of whether all, or at the issue of total negligent damages —without reduction due regard any any alleged Furthermore, the trial court’s order part plaintiff. trial does not words or granting plaintiff’s specify, *13 effect, that the new trial be shall limited certain issues. The specified motion did for trial not ask that a trial limited new be plaintiff’s the one issue of the between and negligence comparative plaintiff Thus, defendant. the trial court’s order that for new trial is “[m]otion of the evidence to granted upon insufficiency verdict” inis with motion for a new trial on all conformity plaintiff’s issues.
The of the trial court’s order majority’s rewriting plaintiff new trial is to the set forth the California contrary principle Supreme addition, Court in Yarrow. this In of the trial court’s appellate rewriting new In constitutes an of the trial injustice plaintiff. light court’s view that not verdicts or plaintiff negligent, jury’s special and were defendant each 50 findings percent negligent to a been reached on all points inexorably compromise having 592 as the as well issues of total
issues—the issue comparative damages that of case not unlike The instant is cause. negligence proximate M. S. Parma v. Partenreederei Galindo Cal.App.3d Cal.Rptr. 638]. in which case was maritime
The Galindo case injury personal for a new trial A motion applied. plaintiff’s comparative negligence of the evidence as insufficiency plaintiff’s specified The did not for a new trial but jury specify inadequacy damages. an amount deemed insufficient awarded to by plaintiff. motion, with a of reasons court empha granted plaintiff’s court Galindo defendant’s of the award. The rejected sizing inadequacy failure to damages argument specify inadequacy the evidence to trial court from using precluded The Galindo relief from a award. jury’s inadequate provide plaintiff “that because of this doctrine doctrine of court out points compara [the in this case are tive issues liability damages negligence] 301.) at (Galindo, interwoven.” inextricably supra, Cal.App.3d p. (Italics added.) herein, observation,
The Galindo court’s perti- quoted particularly nent and relevant to the situation in the case at bench. presented at relies decisions from in the case bench also two upon majority the new at trial in the case Wisconsin as its view justification should be limited to one issue of bench apportionment compara- reduction, and a tive from accordingly, gross $8,073.72 $16,147.43 in excess but less to some amount damages $16,147.43 in the than two amounts contained verdicts. juiy’s —the bench, excluded had the court’s order In case at specifically found from a new trial the issues total all, $16,147.43, at issue of whether negligent Firkus, of Caldwell and relied the Wisconsin cases majority, upon by But since the situation would have and relevance. this is not meaning new with the trial court’s order motion for a respect granting plaintiff’s *14 trial, are case. Caldwell and Firkus the instant inapplicable simply sustain, above, modification, I would
For reasons set forth without motion for the trial court’s order a new trial. granting plaintiff's denied for a Court was Respondent’s Supreme petition hearing March 1977.