Judge: Douglas W. Stern, Case: BC699605, Date: 2022-09-13 Tentative Ruling

Case Number: BC699605    Hearing Date: September 13, 2022    Dept: 52

Tentative Ruling:

Plaintiff Kevin Moda’s Motion for New Trial

Plaintiff Kevin Moda moves for a new trial after the court issued terminating sanctions against him.

This court must hear the motion because Judge Tamzarian is unavailable.  “The motion for a new trial shall be heard and determined by the judge who presided at the trial; provided, however, that in case of the inability of such judge or if at the time noticed for hearing thereon he is absent from the county where the trial was had, the same shall be heard and determined by any other judge of the same court.”  (CCP § 661.)  A different judge must hear the motion “when the trial judge is unable to act.”  (Kelly v. Sparling Water Co. (1959) 52 Cal.2d 628, 633.)

Judge Tamzarian has been assigned to the Second District Court of Appeal, Division Five under the California Constitution, article VI, section 6(e).  He is sitting pro tempore in that court until October 10, 2022.  He is not able to act on Superior Court cases while doing so.

Plaintiff does not show grounds for granting a new trial.  “The right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in” Code of Civil Procedure section 657.  (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.)  Under article VI, section 13 of the California Constitution, the court generally cannot grant a new trial unless, “after an examination of the entire cause,” the court finds there was a “miscarriage of justice.”  Even if the court determines the moving party has shown one or more of the seven statutory grounds for new trial, the court cannot grant a new trial without a finding of prejudice.  (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)

The court has fully reviewed all papers and evidence in support of and in opposition to plaintiff’s motion for new trial.  The court finds no grounds for granting a new trial under Code of Civil Procedure section 657 and finds no miscarriage of justice.

Plaintiff Kevin Moda’s motion for new trial is denied.