Power to disagree: The authority of lower courts in new trial motions

When it comes to new trial motions, trial courts do not always realize how much power they have. Helping the court understand its broad power before it rules is important not only for prevailing on the motion, but also - as a recent decision demonstrates - for avoiding procedural headaches on appeal.

Code of Civil Procedure Section 657 authorizes a new trial when there is insufficient evidence to justify the verdict. When deciding a motion on this ground, the court acts as an independent trier of fact: It can disbelieve witnesses, reweigh the evidence, and draw reasonable inferences contrary to the jury's. Mercer v. Perez (1968) 68 Cal.2d 104, 112.

Courts are sometimes unaware of their power to reject the jury's credibility determinations. The confusion may arise from the rule that a court cannot grant a new trial merely because it disagrees with the jury's verdict. Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-216. But there is a difference between disagreeing with the verdict (which the court can't do) and disagreeing with the jury's assessment of a witness (which it can). And where discrediting a witness leaves insufficient evidence to support the verdict, the court must grant a new trial.

The 2nd District Court of Appeal, Division Eight's decision in Barrese v. Murray, 198 Cal.App.4th 494 (2011), shows just how much power a court has when it comes to assessing the evidence - and the complications that arise when the court mistakenly fails to exercise that power.

Barrese involved a wealthy businessman (Jacques Murray) who, after three divorces, decided that he would never remarry and instead would hire female companions. A companion (Katherine Barrese) who had served in this role on and off for 30 years eventually decided that Murray was becoming irritable and left him. She then sued, claiming that he'd promised to support her for life and to give her certain assets.

The jury rejected Barrese's claim for assets. But it found that Murray had made an enforceable promise to support her, and awarded approximately $5.6 million.

Murray moved for a new trial. He argued that Barrese was not credible and that there was insufficient evidence to support the verdict. The trial court agreed that Barrese had been thoroughly impeached. But it did not think it had the authority to throw out the jury's apparent finding that she was credible. Accordingly, it denied the new trial motion but invited direction from the appellate court.

Division Eight held that the trial court had construed its authority too narrowly. Quoting decisions extolling trial judges' role as a 13th juror, the court concluded that, "The cases make it clear that in ruling on the new trial motion the trial court can - and should - consider credibility independently of the jury's conclusions."

The appellate court wanted to give the trial court another shot at deciding Murray's new trial motion under the correct standard. But there was a procedural wrinkle as to whether it could do so - and its resolution of that wrinkle creates a split of authority among the state appellate courts.

The wrinkle is that under Code of Civil Procedure Section 660, the trial court's power to rule on a new trial motion "shall expire" 60 days after the earliest of three events: the clerk mailing, or a party serving, notice of entry of judgment or the filing of a notice of intent to move for a new trial. Read literally, Section 660 would prevent the trial court from ruling on Murray's new trial motion on remand because the 60-day period had long passed.

Several courts have held that Section 660 in fact requires this result: Emphasizing that the 60-day limit is jurisdictional, these decisions conclude that there cannot be a remand for reconsideration of a new trial ruling. See Lippold v. Hart (1969) 274 Cal.App.2d 24; Andersen v. Howland (1970) 3 Cal.App.3d 380.

Barrese disagreed. It was not the first decision to do so: Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1 found that these cases are inapplicable, and that the trial court can reconsider a new trial motion on remand, where there is an intervening change in the law.

But Barrese went further than Clemens. Whereas Clemens found a narrow exception to Section 660, Barrese did not "think that the matter is as tentative and subtle as that...." Rather, Barrese concluded that Section 660 does not apply at all when an appellate court finds error in a new trial ruling and wants to remand for a new ruling.

Barrese reasoned that applying Section 660's 60-day limit would not serve what it viewed as the statute's purpose: ensuring prompt disposition of new trial motions. Promptness is not an issue where there has already been a timely new trial ruling, followed by an appeal. Barrese also noted that the Supreme Court and several appellate courts have set aside new trial motion rulings and remanded with directions to rehear the motions. See Krouse v. Graham (1977) 19 Cal.3d 59, 83.

Having decided that Section 660 did not apply, Barrese remanded for a new ruling on Murray's new trial motion, with the instructions that the court was free to find Barrese's testimony not credible, and that it should grant a new trial if that left insufficient evidence that Murray promised to pay support.

Barrese expressly did not take a position on the motion's merits. How the trial court will rule remains to be seen. The same is true of how appellate courts will handle the new authority split on whether Section 660 prevents a remand in this situation. In the meantime, the lesson remains: When moving for a new trial on the ground that evidence was not credible, make sure that the trial court knows that it has the authority to agree with you, regardless of what the jury found.