Obtaining the remedies provided by California's posttrial motions requires strict adherence to a complex set of procedures
By Christina J. Imre and Holly R. Paul
Christina J. Imre is a partner with Horvitz & Levy, specializing in civil appeals, writs, and trial consultations. She recently authored the posttrial motions chapter in California Civil Appellate Practice. Holly R. Paul is a certified appellate specialist and an associate with the firm.
When a substantial money judgment is entered against a party, the immediate reaction is to appeal. But between the entry of a judgment and the perfecting of an appeal lies the arcane area of law known as posttrial motions. Used properly, they can snatch victory from the jaws of defeat, obviating the need to appeal or, at minimum, transforming a party into a respondent instead of an appellant. A successful posttrial motion can save the cost of paying for the record on appeal and avoid the need to post an expensive bond staying enforcement of the judgment. In other situations, the appropriate posttrial motion may be a prerequisite to obtaining relief on appeal. However, such motions can be a jurisdictional minefield. Failure to timely file the proper document, or to raise a necessary ground, or to dot the "i" or cross the "t" can result in automatic denial of the motion, or, even if it is granted, render it a nullity in the appellate court. In California courts, two of the major posttrial motions are the motion for judgment notwithstanding the verdict (JNOV) and the motion for new trial. JNOV and new trial motions serve different, yet often complementary, functions. The motion for new trial permits the court to reexamine an issue of fact or law.1 The trial court has broad discretion to reweigh the evidence, reassess credibility, disbelieve witnesses, and act as a thirteenth juror.2 A motion for JNOV, while more limited in scope, can be an even more powerful tool. Since a JNOV challenges the legal sufficiency of the evidence at trial,3 prevailing on the motion results in a new and different judgment in the moving party's favor.4
For example, in a JNOV motion, a defendant that lost at trial may challenge the plaintiff's right to recover punitive damages when, as a matter of law, the plaintiff did not prove entitlement to such damages by clear and convincing evidence. In a concurrent new trial motion, the defendant might challenge the punitive award as excessive. Where there is a basis to file both motions, the new trial motion is usually an alternative to the JNOV, because a successful JNOV motion will result in an entirely new judgment, obviating the need for a new trial.
Code of Civil Procedure Section 629 authorizes the trial court, on its own motion or that of a party, to "render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." A JNOV motion challenges the legal sufficiency of the evidence presented at trial. The court must deny the motion if it finds substantial evidence to support the verdict.5 Thus, the trial court's power to grant a motion for JNOV is severely limited. Moreover, the trial court may not grant a JNOV unless there is an actual verdict. If the jury returns no verdict or an incomprehensible verdict, a JNOV is not appropriate.6
When the trial court rules on the JNOV, it must presume that all evidence supporting the verdict is true.7 A JNOV is proper if, after reviewing all conflicts in the evidence in favor of the party that prevailed at trial, the court determines that party is not entitled to judgment as a matter of law.8 Unlike its powers on a motion for new trial, the court cannot reweigh the evidence and cannot judge the credibility of witnesses.9 Not only must it disregard conflicting evidence, it also must draw all reasonable inferences in the winning party's favor.10
However, if the evidence supporting the verdict is inherently incredible, the trial court need not accept it as true.11 Likewise, if the verdict is supported only by inferences contrary to clear, uncontradicted evidence that cannot rationally be disbelieved, a JNOV is proper. Two examples illustrate this point.
In one example, a plaintiff sues a defendant for misappropriating a product idea. The plaintiff introduces evidence that the defendant gained knowledge of the idea from the plaintiff and that the defendant used the idea. This creates an inference that the defendant copied the product idea. However, the defendant dispels this inference by offering admittedly genuine correspondence and testimony of third-party witnesses showing that the defendant obtained the idea from another source. The defendant's evidence is uncontradicted, and the jury's verdict for the plaintiff is not supported by substantial evidence. Under such circumstances, a JNOV for the defendant is proper.12
In a contrasting example in a similar scenario, the defendant offers no evidence to corroborate the claim that the product was the defendant's idea. There are numerous similarities between the two ideas and the plaintiff demonstrates that the defendant had access to the plaintiff's idea. In this case, unlike the prior example, the jury's verdict for the plaintiff cannot be overturned by a JNOV because the defendant's evidence was not clear, positive, and uncontradicted. The inference that the defendant had misappropriated the plaintiff's idea was never dispelled.13
The fact that the court may have denied a directed verdict motion during trial is no bar to filing for a JNOV after the trial is over.14 In addition, the making of a directed verdict motion is not a prerequisite to JNOV relief.15 Code of Civil Procedure Section 629 says only that a JNOV should be granted where a directed verdict motion should have been granted had it been made. This rule stands in sharp contrast to the federal requirement. (In federal court, a motion for judgment as a matter of law must be made before submission of the case to the jury in order to renew the motion after judgment.16)
Because new trial and JNOV motions are often sought concurrently, the time limit for filing the JNOV motion is synchronized with the time for filing a notice of intent to move for a new trial. A JNOV motion must be made within the period for filing a new trial notice of intent under Code of Civil Procedure Section 659.17 Section 659 provides that the notice of intent must be served and filed either 1) before the entry of judgment, or 2) within 15 days of service of notice of entry of judgment, or, if no notice of entry is given, within 180 days of entry of the judgment, whichever is earlier. When one party has already moved for a new trial, the remaining parties have 15 days after service of the first notice of intent to file one of their own.
In contrast to a new trial motion (in which the party must make a motion), the trial court may grant a JNOV sua sponte any time before its power to rule on a new trial motion expires, so long as it gives five days' notice.18 A JNOV also differs from a motion for a new trial in that a JNOV motion consists of a single document. The entire motion, including the notice of motion and memorandum of points and authorities, is due at the same time as the notice of intent to move for a new trial.19 (In contrast, a party seeking a new trial may first file a notice of intent to move for a new trial, followed by points and authorities and supporting declarations.) Since a JNOV contemplates entry of a new and different judgment, a proposed judgment should be included with the motion or at latest be submitted at the time of hearing. Prompt compliance is important because the trial court has limited time in which to act.
Because JNOV and new trial motions are often made in the alternative, the court cannot rule on the JNOV motion before the time for filing a new trial motion has expired.20 But if the court fails to rule on the motion within 60 days of the service of notice of entry of judgment by the clerk or any party, or if no notice of entry is given within 60 days after filing of the first notice of intention to move for a new trial, a JNOV is deemed denied by operation of law.21 In cases in which a JNOV and a new trial are sought, both motions must be decided at the same time and before the court's power to grant the new trial motion expires.22 The formal judgment notwithstanding, the verdict should be signed and filed within this 60-day period.23 However, substantial compliance has been deemed sufficient.24 If a memorandum opinion is entered in the court minutes within the 60-day period, the JNOV is not void for lack of jurisdiction, even if the formal judgment is not actually signed until after the 60-day window has closed.25 What if a notice of appeal is filed before the JNOV motion can be filed or heard? This problem typically occurs when the court will not stay the execution of a money judgment and the plaintiff threatens to execute on that judgment before the posttrial motions can be decided. In that situation, the defendant will be compelled to file an appeal bond and notice of appeal. To do so is the only other way to stay enforcement of the judgment.26 There is a split of authority on whether filing a notice of appeal deprives the trial court of jurisdiction to rule on the JNOV motion.
In Weisenburg v. Molina,27 the Fourth District followed the general rule that a notice of appeal divests the trial court of the power to rule on anything except matters collateral to the judgment.28 Finding that a JNOV is not "collateral" because it contemplates an entirely new and different judgment, Weisenburg held the trial court loses jurisdiction to rule on a JNOV motion once a notice of appeal is filed.29 The First District, in Foggy v. Ralph F. Clark & Associates, Inc. disagreed, reasoning that since a new trial motion is deemed a collateral matter, so too should one for a JNOV.30 Foggy seems the better reasoned authority, since Weisenburg compels a party to choose between the statutory right to file for a JNOV and staying execution of the money judgment.
Another major posttrial motion, that for a new trial, differs markedly from a JNOV, although the two have certain similar deadlines. Under a new trial motion, the court may review any type of error or irregularity occurring at trial as long as the error is prejudicial.31 Additionally, the court's discretion to grant a new trial is extremely broad. "So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside."32 It is a common misconception that a new trial motion is appropriate only after a court or jury trial, when in fact the motion is available in a wide variety of situations short of an actual jury trial. A new trial motion may be used to challenge judgments of dismissal after a demurrer is sustained without leave to amend, judgments of dismissal generally, judgments on the pleadings, decisions granting judgments on agreed statements of ultimate facts,33 and summary judgments.34 However, a new trial is not available for ordinary defaults and certain types of confessed judgments.35
The court's authority to grant a new trial is purely statutory.36 Unlike JNOVs, new trial motions may not be granted by the court on its own motion.37 Moreover, the trial court may only grant a new trial on one or more of the grounds enumerated in Code of Civil Procedure Section 657 or 657.1. The grounds are:
The Code of Civil Procedure contemplates three components to a new trial motion. One is the jurisdictional notice of intent to move for a new trial. The second is an optional (but highly advisable) memorandum of points and authorities. The third component, depending on which new trial grounds are raised, is the supporting declarations.55
As a general rule, the notice of intent is due within 15 days of service of notice of entry of judgment.56 The time for filing the notice of intent is jurisdictional and cannot be extended by stipulation or court order.57 A late-filed notice of intent is void and deprives the court of jurisdiction to grant the motion.58 Moreover, there is no extension of time for service by mail.59
Of the three components to the new trial motion, the jurisdictional notice of intent is the easiest to draft. It need only identify the moving party, state the statutory grounds (enumerated in Code of Civil Procedure Sections 657 and 657.1) on which the motion will be based, and specify the basis for the motion -- that is, whether the motion will be based on declarations, the minutes of the court, or both.60 Because the appellate court may uphold the grant of a new trial on any of the grounds listed in the notice of intent,61 it is usually wise to list all statutory grounds, even if they do not seem at first blush to apply. Each adverse party must be served with the notice of intent within the 15-day period.62 This, too, is a jurisdictional requirement. Failure to serve cannot be cured by the party's appearance at the hearing nor relieved by the trial court under Code of Civil Procedure Section 473.63 And failure to serve one of several adverse parties deprives the trial court of the power to grant a new trial to any party except to the extent the court can act without jeopardizing the unserved party's rights.64 The correct fee should be tendered with the notice of intent because otherwise the clerk may refuse to file it.65
The supporting memorandum of points and authorities is due 10 days after the notice of intent is filed.66 While optional, points and authorities are critical to the successful motion. Apart from the obvious need to persuade the judge to retry the case, the memorandum is the moving party's best opportunity to guide the court in preparing an adequate order and statement of reasons should the motion be granted, a task that cannot be delegated to counsel.67 Moreover, given the many jurisdictional rules and pitfalls, the memorandum is the ideal vehicle to remind the court of applicable deadlines and requirements that must be followed should a new trial be granted.
Declarations must be filed to support a new trial motion made on any of the first four grounds listed in Section 657. (Those four grounds are irregularity in proceedings, jury misconduct, accident or surprise, and newly discovered evidence).68 Two types of declarations are contemplated: juror declarations are needed to establish juror misconduct or irregularity in the proceedings,69 and attorney declarations must be filed when the ground is accident, surprise, or newly discovered evidence.70
Moreover, the attorney and party must file "no-knowledge" affidavits or declarations when the motion claims predeliberation misconduct by a juror. Such declarations are necessary to show the attorney and party were unaware of the misconduct until the trial was over.71 The requirement is designed to prevent a party from gambling on the trial outcome by holding the misconduct card in reserve to raise in a new trial motion.72 However, the rule does not require no-knowledge declarations for juror misconduct during deliberations.73
It is critical to review Evidence Code Section 1150 before drafting any juror declaration. To impeach the jury's verdict successfully, the declaration must demonstrate overt acts that are objectively verifiable -- that is, statements, conduct, and events open to sight and hearing and thus subject to corroboration.74 Declarations that attest to a juror's subjective reasoning process may not be used to impeach the verdict.75
Subjects that are proper for juror declarations include:
Timely filing of declarations is another jurisdictional requirement. The affidavits or declarations in support of the new trial motion are due within 10 days after the notice of intent is filed, but this time may be extended by the court for an additional 20 days.83 Counter-affidavits are due within 10 days of service of the moving party's affidavits, and this time is likewise subject to extension.84 Declarations are important because testimony at the hearing on a new trial motion is not allowed.85 However, taking live testimony at the hearing is not ground for reversal on appeal unless the other party objects.86
The trial court must rule on the new trial motion within 60 days of service of notice of entry of judgment, or, if no notice of entry has been given, within 60 days of the first notice of intent to move for a new trial.87 If the court does not rule within this time, the motion is deemed denied by operation of law.88 Nunc pro tunc orders are not permitted.89 Thus, if the court takes the motion under submission, it is important to contact the clerk on a regular basis to remind the court of the jurisdictional deadline by which to rule.
When the trial court grants a motion for a new trial, it must draft an order and a specification of reasons.90 The order must state the statutory grounds on which it is based,91 and it should quote or paraphrase the statutory language as closely as possible.92 The order may be a minute order or a formal written order signed by the judge and filed with the clerk.93
The specification or statement of reasons may be part of the order or it may be a separate document. If the specification of reasons is prepared separately, it must be signed and filed within 10 days of filing the new trial order.94 This 10-day time period may extend beyond the 60-day window,95 but it too is jurisdictional.96 If the specification of reasons is not filed within that 10-day time period, the order granting a new trial is void.97
Counsel cannot prepare the order and specification of reasons. The trial judge must personally draft the documents.98 Noncompliance with this requirement has been used to overturn grants of a new trial.99 Moreover, the court cannot incorporate sections of the moving papers by reference.100 However, the court may "borrow" from the points and authorities by quoting, paraphrasing, or summarizing the identical position asserted in the moving papers: "the critical factor involved is whose mental processes are being used, not whose language is being employed. [T]he specification of reasons must be the product of the judge's mental processes and not that of the attorney for the moving party."101
The reasons for granting a new trial must be framed in terms of specific evidence in the case. Ultimate facts and general conclusions are insufficient.102 A statement such as "defendant's negligence was not the proximate cause of plaintiff's injuries" will not pass muster.103 If the new trial is granted on the ground of insufficiency of the evidence, the specification of reasons must identify the particular deficiencies in the evidence.104 On appeal from a new trial order based on insufficiency of the evidence or inadequate or excessive damages, the appellate court will presume the order was made only for the reasons set forth in the statement.105 With regard to excessive or inadequate damages, it is not enough to say the jury's damages award is too low or too high; the court must state how it arrived at the different figure.106 While a specification of reasons is not required for denial of a new trial motion, it does apply to conditional orders denying a new trial upon acceptance of remittitur or additur.107
JNOV and new trial motions are complex and intricate endeavors laden with jurisdictional, sometimes draconian, pitfalls. Even when the hazards are successfully avoided, the trial court may still deny the motion. Given the potential rewards, however, it can be an exercise well worth the effort.
1 Code Civ. Proc. §656; Carney v. Simmonds, 49 Cal. 2d 84,
2 Tice v. Kaiser Co., 102 Cal. App. 2d 44, 46 (1951); Valdez v. J. D. Diffenbaudgh Co., 51 Cal. App. 3d 494, 512 (1975); Norden v. Hartman, 111 Cal. App. 2d 751, 758 (1952).
3 Clemmer v. Hartford Ins. Co., 22 Cal. 3d 865, 877-78 (1978); Moore v. San Francisco, 5 Cal. App. 3d 728, 733-34 (1970).
4 See Code Civ. Proc. §629.
5 Foggy v. Ralph F. Clark & Assocs., Inc., 192 Cal. App. 3d 1204, 1213 (1987).
6 Mish v. Bruckus, 97 Cal. App. 2d 770, 776 (1950).
7 Foggy, 192 Cal. App. 3d at 1213.
8 Rollenhagen v. City of Orange, 116 Cal. App. 3d 414, 417 (1981), overruled on other grounds by Brown v. Kelly Broad Co., 48 Cal. 3d 711, 738 (1989).
9 Clemmer, 22 Cal. 3d at 877.
10 Hauter v. Zogarts, 14 Cal. 3d 104, 110 (1975); Castro v. State, 114 Cal. App. 3d 503, 507 (1981).
11 Hale v. Farmers Ins. Exch., 42 Cal. App. 3d 681, 690 (1974), disapproved on other grounds by Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 822 (1979).
12 Teich v. General Mills Inc., 170 Cal. App. 2d 791 (1959).
13 Donahue v. Ziv Television Programs, Inc., 245 Cal. App. 2d 593 (1966).
14 Teich, 170 Cal. App. 2d at 794.
15 Rollenhagen, 116 Cal. App. 3d at 417.
16 Fed. R. Civ. P. 50.
17 Code Civ. Proc. §629.
21 Code Civ. Proc. §§629, 660.
24 Catania v. Halcyon Steamship Co., 44 Cal. App. 3d 348, 351-52 (1975); Espinoza v. Rossini, 247 Cal. App. 2d 40, 45 (1966).
25 Catania, 44 Cal. App. 3d at 351-52.
26 See Code Civ. Proc. §917.1.
27 Weisenburg v. Molina, 58 Cal. App. 3d 478, 485 (1976).
28 See Code Civ. Proc. §916.
29 Weisenburg, 58 Cal. App. 3d at 485-86.
30 Foggy, 192 Cal. App. 3d at 1213.
31 Cal. Const. art. IV, §13; Code Civ. Proc. §475.
32 Jiminez v. Sears, Roebuck & Co., 4 Cal. 3d 379, 387 (1971).
33 Carney, 49 Cal. 2d at 88.
34 Scott v. Farrar, 139 Cal. App. 3d 462, 467 (1983).
35 Carney, 49 Cal. 2d at 90.
36 Fomco, Inc. v. Joe Maggio, Inc., 55 Cal. 2d 162, 166 (1961); Code Civ. Proc. §657.
37 Ehrler v. Ehrler, 126 Cal. App. 3d 147, 151 (1981).
38 Code Civ. Proc. §657(1). See also Townsend v. Gonzalez, 150 Cal. App. 2d 241, 249-50 (1957) (evidentiary rulings); Gay v. Torrance, 145 Cal. 144, 148-49 (1904) (judicial misconduct); Russell v. Dopp, 36 Cal. App. 4th 765, 775 (1995) (counsel misconduct); Weathers v. Kaiser Found. Hosps., 5 Cal. 3d 98, 102 (1971) (juror competency).
39 Code Civ. Proc. §657(2). See also Smith v. Covell, 100 Cal. App. 3d 947, 952 (1980) (receiving or communicating information from sources outside the evidence in the case).
40 Code Civ. Proc. §657(3). See also Hata v. Los Angeles County Harbor/UCLA Medical Ctr., 31 Cal. App. 4th 1791, 1806 (1995).
41 In re Marriage of Liu, 197 Cal. App. 3d 143, 155 (1987).
42 Garcia v. County of Los Angeles, 177 Cal. App. 3d 633, 637 (1986).
43 Code Civ. Proc. §657(4). Liu, 197 Cal. App. 3d at 153.
44 Code Civ. Proc. §657.
45 Code Civ. Proc. §662.5.
46 When ascertaining the amount of damages "requires resolution of conflicts in the evidence or depends on the credibility of witnesses, the award may not be challenged for inadequacy or excessiveness for the first time on appeal." Glendale Fed. Sav. & Loan Ass'n v. Marina View Heights Dev. Co., 66 Cal. App. 3d 101, 122 (1977). See also Baker v. Pratt, 176 Cal. App. 3d 370, 382 (1986).
47 Glendale Fed. Sav. & Loan Ass'n, 66 Cal. App. 3d at 122.
48 Code Civ. Proc. §657(6). See also Norden, 111 Cal. App. 2d at 758.
49 Valdez, 51 Cal. App. 3d at 512.
50 Collins v. Lucky Mkts., Inc., 274 Cal. App. 2d 645, 652 (1969), disapproved on other grounds by Scala v. Jerry Wilt & Sons, Inc., 3 Cal. 3d 359, 370 n.6 (1970).
51 Hoffman-Haag v. Transamerica Ins. Co., 1 Cal. App. 4th 10, 15 (1991).
52 McCown v. Spencer, 8 Cal. App. 3d 216, 229 (1970). 53 Cal. Const. art. VI, §13; Code Civ. Proc. §657(7).
54 Code Civ. Proc. §§657.1, 914.
55 Code Civ. Proc. §§657, 658, 659.
56 Code Civ. Proc. §659 provides the notice of intent must be served and filed either 1) before entry of judgment or 2) within 15 days of notice of entry of judgment or, if no notice of entry has been given, within 180 days of entry of the judgment, whichever is earlier. The remaining parties have 15 days from service of that notice of intent to file and serve their own notice of intent.
57 Code Civ. Proc. §659.
58 Douglas v. Janis, 43 Cal. App. 3d 931, 936 (1974).
59 Code Civ. Proc. §659.
61 Foggy, 192 Cal. App. 3d at 1217.
62 Code Civ. Proc. §659.
63 Spruce v. Wellman, 98 Cal. App. 2d 158, 160 (1950).
64 Carruthers Bldg. Co. v. Johnson, 174 Cal. 24 (1916); see Spruce, 98 Cal. App. 2d at 161.
65 Kientz v. Harris, 117 Cal. App. 2d 787, 790 (1953); see Foley v. Foley, 147 Cal. App. 2d 76, 78 (1956).
66 Cal. R. Ct. 203.
67 Code Civ. Proc. §657.
68 Code Civ. Proc. §658.
71 Weathers, 5 Cal. 3d at 103.
72 Wiley v. Southern Pac. Transp. Co., 220 Cal. App. 3d 177, 186 (1990).
73 Krouse v. Graham, 19 Cal. 3d 59, 82 (1977).
74 Evid. Code §1150; see also People v. Hutchinson, 71 Cal. 2d 342, 350 (1969); Lankster v. Alpha Beta Co., 15 Cal. App. 4th 678, 681 n.1 (1993).
75 See Evid. Code §1150; Lankster, 15 Cal. App. 4th at 681 n.1.
76 Chronakis v. Windsor, 14 Cal. App. 4th 1058, 1066 (1993).
77 Moore v. Preventive Medicine Medical Group, Inc., 178 Cal. App. 3d 728, 740 (1986).
78 People v. Lessard, 58 Cal. 2d 447, 453-54 (1962).
79 People v. Karis, 46 Cal. 3d 612, 642-43 (1988); Lessard, 58 Cal. 2d at 453-54.
80 Evid. Code §1150(a).
81 For example, declarations showing jurors "confused the concepts of comparative negligence and preponderance of the evidence" reflect merely deliberative error, not reversible misconduct. Ford v. Bennacka, 226 Cal. App. 3d 330, 332, 334 (1990).
82 A declaration that says jury "specifically found" that the plaintiff suffered no lost profits and concluding that the jury intended the damage award to compensate the plaintiff for pain and suffering is improper impeachment of the verdict because it simply relates the jurors' mental processes, none of which is objectively verifiable. Cove, Inc. v. Mora, 172 Cal. App. 3d 97, 99, 103 (1985).
83 Code Civ. Proc. §659(a).
85 Linhart v. Nelson, 18 Cal. 3d 641, 644 (1976).
86 Bardessono v. Michels, 3 Cal. 3d 780, 794 (1971).
87 Code Civ. Proc. §660.
89 Seigal v. Superior Court, 68 Cal. 2d 97, 101 (1968).
90 Code Civ. Proc. §657.
92 Mercer v. Perez, 68 Cal. 2d 104, 111 (1968) ("We reiterate our advice that the statutory language, or a reasonable approximation thereof, be used in all cases.").
93 Code Civ. Proc. §660.
94 Code Civ. Proc. §657.
95 Fortenberry v. Weber, 18 Cal. App. 3d 213, 221 (1971); Resort Video, Ltd. v. Laxer Video, Inc., 35 Cal. App. 4th 1679, 1694 (1995).
96 Hand Elecs. Inc. v. Snowline Joint Unified Sch. Dist., 21 Cal. App. 4th 862, 867 (1994).
97 La Manna v. Stewart, Inc., 13 Cal. 3d 413, 418 (1975); Mercer, 68 Cal. 2d at 121.
98 Code Civ. Proc. §657.
99 Tramell v. McDonnell Douglas Corp., 163 Cal. App. 3d 157, 170 (1984) (holding new trial order inadequate because it adopted counsel's suggestion for the specification verbatim); Oberstein v. Bisset, 55 Cal. App. 3d 184, 187 (1976) (adoption of specification drafted by attorney violates Code Civ. Proc. §657); Devine v. Murrieta, 49 Cal. App. 3d 855, 860 (1975) (new trial order inadequate because it incorporated the entire argument set forth in the plaintiff's memorandum of points and authorities).
100 Devine, 49 Cal. App. 3d at 860.
101 Eltolad Music, Inc. v. April Music, Inc., 139 Cal. App. 3d 697, 707 (1983).
102 Clemmer, 22 Cal. 3d at 888.
103 See, e.g., Stevens v. Parke, Davis & Co., 9 Cal. 3d 51, 62 (1973); Scala, 3 Cal. 3d at 369-70.
104 Mercer, 68 Cal. 2d at 116.
105 Code Civ. Proc. §657 provides that the new trial order shall be affirmed if it should have been granted on any ground stated in the motion, whether or not specified in the order or specification of reasons except that (a) the order shall not be affirmed on the ground of the insufficiency of the evidence to justify the verdict or upon the ground of inadequate or excessive damages, unless such ground is stated in the order and (b) on appeal from an order granting a new trial [for insufficiency of the evidence] or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or 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.
106 Big Boy v. County of San Diego, 154 Cal. App. 3d 397, 404 (1984).
107 Neal v. Farmers Ins. Exch., 21 Cal. 3d 910, 931 (1987).