Judge Alison Mackenzie, Case Number: 20STCV43678, Date: 2024-05-08 Tentative Ruling

Judge: Alison Mackenzie, Case: 20STCV43678, Date: 2024-05-08 Tentative Ruling

Case Number: 20STCV43678 Hearing Date: May 8, 2024 Dept: 55

RE: Defendant’s Motion for New Trial

Background

Plaintiff Rebecca Griley (“Plaintiff”) filed this case seeking declaratory relief and injunctive relief based on a property dispute with her next-door neighbor in Hermosa Beach, California. In 2022, Plaintiff dismissed Greg William Morgan from the case and substituted Jeanne Louis Flynn-Morgan as defendant (“Defendant”) in the lawsuit. The Court held a bench trial on Plaintiff’s claims and issued a final ruling in favor of Plaintiff. Plaintiff gave notice of the Court’s judgment in favor of Plaintiff on 3/7/24.

Defendant now moves for a new trial under Code of Civil Procedure § 657(1), (3), (6), and (7). Plaintiff opposes the motion.

Legal Standard

Code of Civil Procedure § 657 governs motions for new trial and, relevant here, provides that a new trial may be granted for: (1) “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial”; (3) “[a]ccident or surprise, which ordinary prudence could not have guarded against”; (6) “[i]nsufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law”; and (7) “[e]rror in law, occurring at the trial and excepted to by the party making the application.”

A new trial cannot be granted “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13) The court must determine that, “after examination of the entire cause,” it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” People v. Watson (1956) 46 Cal.2d 818, 836.

Evidentiary Ruling/Request for Judicial Notice

The Court sustains portions of Plaintiff’s objections numbers 4 and 5, specifically as to the following statements in Defendant’s declaration: “…but he appeared to me to be in a state of low blood sugar that resembled intoxication” and “I believe this was due to the health issue he was suffering from.” The Court overrules the remaining objections. The Court grants Defendant’s amended request for judicial notice of certain of the Hermosa Beach Municipal Code sections.

Analysis

Irregularity in the Proceedings (Code Civ. Proc., §657(1)) and Accident or Surprise (Code Civ. Proc., §657(3))

Defendant seeks a new trial under Code of Civil Procedure Sections 657(1) and (3) because she believes her former attorney had a medical problem at trial that affected his performance and that this was a surprise to Defendant. While it is correct that Defendant’s attorney told the Court at the start of the trial that he had overdosed on his insulin and was drinking a soda to “balance,” he also told the Court he was “okay” in response to the Court telling him to inform the Court if he needed to take breaks. Feinberg Decl., Ex. 1, 7:16-28.

Defendant claims her attorney was impaired and spoke “gibberish” during the trial but that is not reflected in the court transcript and the Court has no recollection of such an occurrence. The transcript reflects that defense counsel actively participated in the trial, including cross examination and closing argument. Notably, Defendant’s attorney turned down the Court’s offer to take a break prior to closing argument. Id., 78:19-24. Furthermore, Defendant’s prior counsel did not provide a declaration supporting Defendant’s assertion that he was impaired at trial. Under these circumstances, the Court does not find that any irregularity or surprise occurred or that even if it had occurred, it was so prejudicial that it deprived Defendant of a fair trial. See Christie v. City of El Centro (2006) 135 Cal. App. 4th 767, 780 (moving party must show the irregularity prevented a fair trial); In re Nash (1951) 102 Cal. App. 2d 220, 222 (an attorney’s reference to immaterial facts did not warrant a new trial based on surprise).

Insufficient Evidence (Code Civ. Proc., §657(6))

Defendant contends that there is not sufficient evidence to support the Court’s verdict in favor of Plaintiff on the claims for declaratory relief and an injunction. Specifically, Defendant contends that there was insufficient evidence that the wall encroached 6-12 inches onto Plaintiff’s property, that replacing the wall with a fence would achieve a 36-inch setback and that such a setback is necessary under the Hermosa Beach Municipal Code.

The Court disagrees. As reflected in the Court’s written ruling, the Court credited the testimony of Plaintiff and her contractor James Arriola regarding that the wall protrudes onto Plaintiff’s property approximately 6-12 inches through most of its length. The Court also credited Arriola’s testimony that if the existing wall was removed and a fence installed, Plaintiff will be in compliance with the setback ordinance. And Defendant did not offer testimony contrary to that of Plaintiff and Arriola with respect to the existing wall encroaching on Plaintiff’s property or that a fence would comply with the setback. While Defendant may disagree with the Court’s conclusions based on the evidence, that does not mean the evidence was insufficient to support the Court’s conclusions.

Error in Law (CCP §657(7))

Defendant argues that the Court erred by not finding that Defendant had an implied easement. Defendant did not plead this defense in her answer and she did not argue it in her trial brief. Defendant’s closing argument, trial brief, and cases cited in the trial brief all centered on the argument that the wall is a party wall. Given that Defendant repeatedly focused her defense on the party wall argument, the Court does not find that defense counsel’s offhand comment during closing argument that the wall is “[i]f anything, [ ] an easement by implication,” Feinberg Decl., Ex. 1, 81:12-13, demonstrates that she sought relief based on an implied easement. Nothing in the record supports such a conclusion. The Court made its ruling based on the evidence and Defendant’s articulated defenses at trial. This does not constitute legal error necessitating a new trial.

Conclusion

The motion for new trial is DENIED.