New Trial

It is misconduct for counsel to argue to the jury that there is no evidence on an issue when he knows that such evidence exists but was excluded at his request.  Here counsel exacerbated that misconduct by telling the jury that the court's admonition to ignore the arresting officer's statement about defendnat's intoxication showed the testimony was nothing but a… Read More

A new trial motion based on excessive damages must be made on the "minutes of the court."  Unlike a new trial motion for juror misconduct, the excessive damage new trial motion may not be based on, and the trial court may not consider, evidence not admitted before the jury during the trial--such as in this case, the defendant's chart of… Read More

When an appellate court’s reversal is accompanied by directions requiring specific proceedings on remand, those directions are binding on the trial court and must be followed.  Here, the disposition language of the prior appellate decision directed a new trial of damages, which the trial court properly held.  The opinion also contained advice on how the trial court should frame special… Read More

Under the deferential abuse of discretion standard used to review trial court orders granting a new trial, this decision affirms a new trial order based on juror misconduct.  It finds there was substantial evidence to support the trial court's implied finding that the defendant had not forfeited its right to complain of bias by failing to act promptly (before verdict)… Read More

Under CCP 170.6, a party may peremptorily challenge a judge who presided at a prior trial of the action if the judgment is reversed and the case is remanded for a new trial.  However, as Peracchi v. Superior Court (2003) 30 Cal.4th 1245 held, a new trial is “a reexamination of an issue of fact in the same court after… Read More

So long as the notice of intention to move for a new trial is timely filed, the trial court may, in its discretion, consider late-filed affidavits supporting the motion. Read More