Judge: Upinder S. Kalra, Case: 20STCV10451, Date: 2023-05-19 Tentative Ruling

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Case Number: 20STCV10451    Hearing Date: May 19, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:    May 19, 2023                         

CASE NAME:           Ernes Rey Calhoon v. M. Jajjar, et al.

CASE NO.:                20STCV10451

MOTION FOR NEW TRIAL

MOVING PARTY: Plaintiff Ernie Calhoon

RESPONDING PARTY(S): Defendant Monzer Najjar

REQUESTED RELIEF:

1.     An order granting a new trial.

TENTATIVE RULING:

1.     Motion for New Trial is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On March 16, 2020, Plaintiff Ernest Calhoon (“Plaintiff”) filed a complaint against Defendants M. Najjar, S. Anderson, and B. Anderson (“Defendants”). The complaint alleged a cause of action for quantum meruit. The complaint alleges that promises were made for payment, but these promises were not kept.

On May 2, 2022, Plaintiff dismissed Anderson Defendants.

On October 19, 2022, Plaintiff filed the First Amended Complaint, which alleged three causes of action: (1) Breach of Contract, (2) Fraud, and (3) Quantum Meruit.

On November 17, 2022, Defendant filed a Demurrer and Motion to Strike, which was SUSTAINED, without leave to amend.

On March 30, 2023, Plaintiff filed a Notice of Intent to Move for New Trial, pursuant to CCP §§ 659 and 663.

On April 10, 2023, Plaintiff filed a Motion for New Trial. Defendant’s Opposition was filed on April 17, 2023.

LEGAL STANDARD:

A verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: 

(1) Irregularity 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; 

(2) Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by are sort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors; 

(3) Accident or surprise, which ordinary prudence could not have guarded against; 

(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; 

(5) Excessive or inadequate damages; 

(6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law; 

(7) Error in law, occurring at the trial and excepted to by the party making the application. 

(See CCP § 657.) 

When ruling on an application for a new trial, the court sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) The court, therefore, has broad discretion to order new trials, limited only by the obligation to state its reasons for granting a new trial and the existence of substantial evidence in the record to support those reasons. (Id.)  In assessing the need for a new trial, the court must rely on its view of the overall record, taking into account such factors, among others, as the nature and seriousness of the alleged misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211.) 

OBJECTIONS:

Defendants objections 1-12 are sustained on argumentative grounds. The so-called facts are not facts but are arguments in the guise of facts.

ANALYSIS:

            Plaintiff moves for a new trial on various grounds.

Plaintiff argues that a new trial is necessary based on (1) irregularity in the proceedings of the court, (2) accident or surprise, (3) newly discovered evidence, and (4) error in law. Plaintiff argues that the Court committed error when it denied Plaintiff leave to amend, which Plaintiff states that court “was required to permit leave to amend pursuant to Code of Civil Procedure § 430.41(e).” (Motion 5: 5-7.) Plaintiff then argues that the breach of contract cause of action can be amended to allege specific terms of the contract and, as for the fraud cause of action, the Court should allow for “some leniency in requiring the strict “specificity” pleading requirements” since the issue here involves potentially privileged communications. (Motion 6: 10-17.)[1]

Defendant argues that none of Plaintiff’s purported reasons for a new trial have been met. First, there were no irregularities in the proceedings. The FAC contained the same defects as the original complaint, despite allow Plaintiff to amend the original complaint. Second, there were no surprises. While Plaintiff contends that the Court rejected its filings, the opposition was filed on the day of the hearing. Moreover, the Court allowed Plaintiff to orally present his opposition at the hearing. Third, there is no newly discovered evidence. The alleged new evidence – the 2017 retainer agreement – is not new evidence and has been in Plaintiff’s possession for years. Lastly, the Court sustaining the demurer was not an abuse of discretion as Plaintiff failed to amend the complaint and was informed that the Court would allow one amendment.  

The Court finds that none of Plaintiff’s four reasons for new trial have been sufficiently established. First, Plaintiff has failed to demonstrate an irregularity in the proceedings. “An “irregularity in the proceedings” is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party “cannot fully present by exceptions taken during the progress of the trial, and which must therefore appear by affidavits.” (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229–1230.) Here, there was no violation of the right of the party. The demurrer was sustained, and the Court provided Plaintiff an opportunity to amend the complaint. After Plaintiff amended the original complaint, the FAC still contained the same deficiencies. Plaintiff also did not file an opposition until the date of the hearing, where the Court still allowed for oral argument. Thus, there was no irregularity.

Second, there was no surprise. Under Wade v. De Bernardi “Surprise’ as a ground for a new trial denotes some condition or a situation in which a party to an action is unexpectedly placed to his detriment. The condition or situation must have been such that ordinary prudence on the part of the person claiming surprise could not have guarded against and prevented it. Such party must not have been negligent in the circumstances.” (Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 971.) The original hearing date for the Demurrer was February 2023, but Plaintiff filed an ex parte application to continue the hearing date. Thus, Plaintiff cannot claim surprise at the March 14, 2023, when Plaintiff sought an extension.

Third, Plaintiff has not provided any newly discovered evidence. “The moving party must provide a “ ‘ “satisfactory explanation for the failure to produce that evidence at an earlier time.” (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) The only “new” evidence is the 2017 retainer agreement, which was in Plaintiff’s possession. Thus, this is not new evidence. Moreover, Plaintiff did not provide a satisfactory explanation as to why this alleged new evidence was not produced earlier.

Lastly, there was no error of law. Here, Plaintiff was given ample opportunity to provide a response to the demurrer. “Under this ground, a trial court may grant a new trial if “its original ruling, as a matter of law, was erroneous.” (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 17–18 [126 Cal.Rptr.3d 193, 204] Thus, Plaintiff has failed to establish how the Court’s granting of Defendant’s demurrer was an error in law, such that the original ruling was erroneous.

Therefore, because Plaintiff has failed to establish any of the above reasons as to why a new trial should be permitted, the Motion for New Trial is DENIED.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

Motion for New Trial is DENIED.  

Responding party is to give notice.

IT IS SO ORDERED.

Dated:             May 19, 2023              _______­­­­­­­­­­___________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court