Judge: David A. Rosen, Case: EC068932, Date: 2023-05-18 Tentative Ruling

Case Number: EC068932    Hearing Date: May 18, 2023    Dept: E

May 17, 2023

EC 068932 Spinoglio, et al. v. Nicolas, et al. Tentative Ruling on Plaintiff’s Motions for New Trial and for partial Judgment Notwithstanding the Verdict

Governing Law & Procedure

I.                     Plaintiffs’ Motion for partial Judgment Notwithstanding the Verdict

The motion was timely and properly filed and served. CCP sections 629, 659.

Where, as here, Motions for both new trial and (partial) judgment notwithstanding the verdict (“JNOV”) are made, the Court must rule on both motions at the same time, CCP section 629, and within the same time as required for the new trial motion.

On this motion, the Court has limited discretion. The Court is not to weigh the evidence, nor weigh credibility. Ultimate deference is to be given to the jury’s verdict. Tun v. Wells Fargo Dealer Services (2016) 5 Cal. App. 5^th 309, 333; and the Court must deny the motion for judgment notwithstanding the verdict if any substantial evidence supports the jury’s verdict, and/or if reasonable inferences can be drawn from the evidence that support the verdict. Clemmer v. Hartford Insurance (1978) 22 Cal. 3^rd 865, 878; Bennett v. Rancho California Water District (2019) 35 Cal. App. 5^th 908, 928.

When evidence is conflicting and/or several inferences may be drawn from the evidence, the Court must deny the JNOV motion. Tun, supra, 5 Cal. App. 5^th at 333 – 334. A motion for JNOV may only be granted if the verdict is unsupportable as a matter of law. Hauter v. Zogarts (1975) 14 Cal. 3^rd 104, 111.

Plaintiffs seek a partial JNOV specifically on the first cause of action for nuisance (special verdict form question one) and on the 4^th cause of action for violation of CCR’s section 4.10 (special verdict question 19).

II.            Plaintiff’s Motion for New Trial as to the first and 4^th causes of action

This motion was also timely and properly filed and served. CCP 656, 657, 659.

At the hearing on these motions, the Court will permit oral argument which is not repetitive of the arguments made in the party’s respective papers. No testimony will be permitted. CCP section 661; Linhart v. Nelson (1976) 18 Cal. 3^rd 641, 644.

The Court has very broad discretion on a Motion for New Trial. Barrese v. Murray (2011) 198 Cal. App. 4^th 494, 503. The Court is to essentially engage in a de novo review of the evidence and inferences, and to reconsider the evidence, including credibility, as, essentially, “the 13^th juror.” Seffert v. Los Angeles Transit Lines (1961) 56 Cal 2^nd 498, 507; Maroney v. Iacobsohn (2015) 237 Cal. App. 4^th 473, 486; and Ryan v. Crown Castle NG (2016) 6 Cal. App. 5^th 775, 784, 786.

The motion must be based expressly upon one or more grounds listed in CCP 657. Kabran v. Sharp Memorial (2017) 2 Cal. 5^th 330, 336 – 337; Fomco v. Maggio (1961) 55 Cal. 2^nd 162, 166.  In compliance with section 657, Plaintiffs move for new trial on three express grounds: irregularity in the proceedings with respect to defendant or defendant’s attorneys (ground one in CCP section 657), insufficiency of the evidence to justify the verdict (ground 6 listed in 657), and that the verdict was against the law (also ground 6 in 657).

As to plaintiff’s/movant’s first stated grounds for a new trial; they must present evidence of misconduct by defendants or their attorneys which was prejudicial. To meet their burden of showing prejudice in this context, Plaintiffs must convince the Court that there is a reasonable probability that Plaintiffs would have obtained a more favorable verdict than they did absent the alleged misconduct. Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4^th 780, 800; Fernandez v. Jimenez (2019) 40 Cal. App. 5^th 482, 492, rehearing and review denied, 2020.

The Court may grant a new trial based upon the 2^nd grounds Plaintiffs have raised; insufficiency of evidence to justify the verdict, only if, after weighing the entire record and all reasonable inferences, the Court is convinced that the jury should have reached a different verdict; in other words, that the verdict was obviously and clearly wrong. California Judges Benchbook, Civil Proceedings after Trial, section 2.56.

Finally, the Court may grant a new trial on the grounds that the verdict was against the law only if the verdict was unsupported by any substantial evidence, in essence, that the totality of the evidence was such that a directed verdict should have been granted, here, to Plaintiffs. Sanchez – Korea v. Bank of America (1985) 38 Cal. 3^rd 892, 906 – 907; Fergus v. Songer (2007) 150 Cal. App. 4^th 552, 567 – 569.

The Court must rule upon both the Motion for New Trial and the Motion for partial JNOV within 75 days of the first notice from moving party/plaintiffs that they were seeking either or both orders. CCP section 660 (b), (c). The Court concludes that it must rule on these motions on or before May 31, 2023.

If the Court grants a new trial or, in theory, a partial JNOV, the Court must expressly specify, in writing, its reasons for granting either or both motions. CCP 657. However, upon the denial of a Motion for New Trial, or, it appears, denial of a Motion for JNOV, the Court need not specify specific reasons or grounds for the denial. Neal v. Farmers Ins. (1978) 21 Cal. 3^rd 910, 931.

The Evidence

The Court will discuss the evidence, evidentiary objections, and the reasonable inferences and implications thereof in this single section as moving parties raised the same evidence, made the same arguments, and made the same objections in both motions. Defendants responded accordingly.

The Court notes that the jury’s verdict was internally consistent and there were no irregularities in the special verdict form, the jury’s responses thereto, nor in the polling of the jury.

The Court overrules Plaintiffs’ objections to the declarations of Bryan Roth as superfluous since the differences between Defendants’ citations to the uncertified transcript of the trial and their subsequently provided citations to the certified transcripts are insignificant. The arguments made by Defendants in opposition to these motions were essentially the same in their original oppositions and in their amended oppositions. Plaintiffs’ Reply briefs were not negatively impacted by any difference in the citations to the record and the Court considered those Reply briefs fully.

The Court sustains Plaintiffs’ objections to the declaration of Mark Baute, primarily as irrelevant.

There was ample substantial evidence to support the jury’s verdict here. Based upon the totality of the evidence presented during the trial, the Court could not and would not have granted a directed verdict for Plaintiffs on any cause of action.  CA Evid. Code, section 411. This is true without regard to the credibility of the parties or their witnesses.

There was substantial evidence, some presented by Plaintiffs during their case in chief, and more presented by Defendants during their case in chief, supporting the jury’s finding that Defendants neither created a nuisance by the installation and subsequent adjustments to their backyard light, nor violated CC&R’s section 4.10. This evidence included the testimony of all parties, as well as Defendants’ electrician and Plaintiff’s lighting expert regarding the nature of Defendants’ backyard light, its installation and subsequent adjustments (including, inter alia, the installation and adjustment of a motion sensor, and refocusing the fixture) and its effect on Plaintiffs’ property, as well as the reasons for its installation by Defendants. Additional substantial evidence supporting the jury’s verdict was in the photographs of each parties’ properties at various times during which the light was in use.

Plaintiffs presume in their moving papers that there was no substantial conflict in the evidence surrounding Defendants’ use of the outdoor floodlight. This presumption is unfounded, or the lack of substantial conflict was in Defendants’ favor.  While the evidence showed that the floodlight during 2018 and part of 2019 did shine light on to Plaintiffs’ property, the evidence was that Plaintiffs’ complaints about this light were not reported to Defendants until September 2019. Defendants’ evidence was that they had no reason to believe the light was causing any effect on Plaintiffs’ enjoyment of their property based upon the appearance of the light and the use of the light, as shown in photographs that Defendants introduced, and Defendants were not put on notice of Plaintiffs’ complaints about the light, as Plaintiffs note in their moving papers, until 11 months after the light had been in frequent use. Plaintiffs are correct that there appears to be no dispute that Plaintiffs never consented to Defendants’ use of the backyard floodlight, but Plaintiffs present no law which would have required Defendants to obtain such consent.

While Plaintiffs testified and offered photographs as to the harm they claimed was caused them by Defendants’ use of the backyard light, Defendants presented evidence, testimonial and photographic, that no appreciable harm was caused to Plaintiffs by this light.

Plaintiffs now dispute whether Defendants had a legitimate purpose for the use of the backyard light. Plaintiffs offered no evidence at trial to counter Defendants’ testimony that they installed the light for three, not two, purposes; to discourage vandals from throwing pine cones into their pool, to deter wild animals from coming into the yard at night, and to illuminate Defendants’ swimming pool and deck area so that they would not be hazardous to people at night.

Thus, Plaintiffs’ Motion for partial Judgment Notwithstanding the Verdict is Denied.

As to the Motion for New Trial, the Court considers the same evidence and reasonable inferences raised thereby and must also consider the credibility of the parties and their witnesses.

Overall, in exercising the Court’s independent judgment of the evidence in the context of this Motion for New Trial, the Court need not ignore the jury’s verdict as the Court’s view of the evidence is evidently the same as that of the jury. 

At several points during the trial, both Plaintiffs were severely impeached by their deposition testimony, by inconsistencies within their trial testimony, and, occasionally, by the testimony of their own witnesses.  This was devastating to Plaintiffs’ case in the eyes of the jury as well as to the Court.  The impact of CACI 107 and 5003, as supported by CA Evid. Code, sections 312, 411, and 780 cannot be overstated.  See also, BAJI 2.01, 2.20, 2.21, and 2.22.

Plaintiffs’ own evidence, including without limitation their initial communications to Defendants, and the video evidence plaintiff presented of Mr. Spinoglio’s conversation with Sheriff’s deputies when he called them to his backyard, showed clearly that Plaintiffs initially wanted to protect the view from their backyard and the back of their house to the valley and mountains, once Plaintiffs learned that Defendants were going to replant the slope between the parties’ properties. While Plaintiffs denied this in their direct testimony, the impeaching evidence was far too difficult to overcome. The very reasonable inference apparently drawn by the jury, and drawn by the Court, was that once Plaintiffs learned that they had no legal right to the view, they attempted to enumerate a multitude of other concerns that they had with Defendants’ property and conduct. These concerns thus appeared to be largely pretextual.  Moreover, the totality of the evidence showed that most if not all these concerns were de minimis. See, Special Jury Instruction No. 3 given in this case.

Plaintiffs were impeached with respect to their concerns about the fence Defendants installed by Plaintiffs’ own expert witness, by the many photographs of the fence in evidence, and by the fence that Plaintiffs had at their prior home.

Plaintiffs’ concerns about Defendant’s alleged trespasses appeared almost ludicrous in view of the nature of the trespasses alleged and the fact that Mr. Spinoglio was shown to have committed similar trespasses to Defendants’ land on several occasions.

Plaintiffs’ stated concerns about Defendants’ alleged lack of proper slope support and failure to prevent erosion also detracted from their credibility when those concerns simply did not hold up upon a careful review of all the evidence.

Plaintiffs’ testimony about the importance to them of the approximately 80-100 ft.² of land between their cinder block fence and the actual property line was devalued considerably by Plaintiffs’ admissions that they were unaware for years that this strip was their property and, upon becoming aware, had done nothing with that land and intended to do nothing with that land, ever. Thus, footsteps on occasion by Defendants’ workers onto a strip of dirt when they were installing a fence or trees, in part to assuage Plaintiffs’ concerns about erosion prevention, appeared de minimis.

Mrs. Spinoglio was impeached in her trial testimony with respect to her claimed inability to use her swimming pool and spa.

Plaintiffs were impeached with respect to whether they had or used blackout curtains in their daughter’s bedroom.

Plaintiffs, especially Mrs. Spinoglio, were impeached regarding their complaints about the nature of the trees that Defendants planted.

Each of these examples, and more, severely damaged, if not destroyed Plaintiffs’ credibility. The testimony and exhibits regarding Defendants’ backyard floodlight were not substantively persuasive to the jury, nor, for that matter, to the Court.  This evidence was even less persuasive when considered in the context of Plaintiffs’ diminished credibility.

Plaintiffs proved no irregularity in the proceedings, whether this argument was based upon alleged misconduct by Defendants or their lawyers, or both. Implications made by Defendants or their counsel, as cited by Plaintiffs in their moving papers, do not amount to any sort of misconduct and were not generally objected to when they occurred.  Thus, there was no irregularity in the proceedings and even if there were, there is absolutely no basis from which to conclude that Plaintiffs would have obtained a more favorable verdict absent this alleged misconduct.

Further, the verdict was neither obviously nor clearly wrong.  The jury’s verdict was supported by substantial evidence and reasonable inferences drawn therefrom. This is true whether one considers Plaintiffs’ severely diminished credibility or not, and whether there was some conflict in the evidence and inferences or not.  In short, neither the law nor the evidence supports the claim that the jury should have reached a different verdict as to Plaintiffs’ first or fourth causes of action.

In deciding against Plaintiffs on all issues on the Special Verdict form, the jury did not reach questions 10, 16, or 30 on the form; that is, whether, by clear and convincing evidence, Defendants acted with malice.  CACI 3941.  While the Court notes that there was no evidence of malice, oppression, or fraud on the part of Defendants, and few to no inferences raised thereof, the Court does not in any event reach the issues of alleged jury waiver on re-trial raised by Plaintiffs in their motions.

Plaintiffs’ Motion for New Trial is Denied.