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District Court of Appeal, Fourth District, California.

Ed Rolland GILL, Plaintiff and Appellant, v. Justin A. EPSTEIN et al., Defendants and Respondents.

Civ. 7315.

Decided: November 06, 1964

Lippold, Cross, McCartin & Hall, and Christopher Hall, Costa Mesa, for plaintiff and appellant. Walter W. Charamza, City Atty. of City of Newport Beach, for defendants and respondents.

Involved here are multiple appeals and cross-appeals. Defendants Epstein, Samuel Amburgey, John Burns and Allen L. Johnson, who are police officers of the City of Newport Beach, appeal from an order granting a new trial and cross-appeal from a judgment entered pursuant to a jury verdict in favor of plaintiff. Plaintiff likewise appeals from the order and cross-appeals from the judgement.

The motion for a new trial was filed by the defendants, and was granted by minute order dated September 13, 1962, which was subsequently modified nunc pro tunc on September 20, 1962 (entered September 25, 1962).

The defendants filed an appeal from the order of September 13th and its modification of September 20th, while plaintiff also filed a notice of appeal from the order granting the motion for a new trial. A cross-appeal was also filed by the plaintiff from the judgment, and defendants filed a cross-appeal from the judgment entered.

This is an action for damages for the unlawfully arrest and imprisonment of the plaintiff against the defendants, including the City of Newport Beach. A first amended complaint was filed November 17, 1961, for false arrest and imprisonment, for a first cause of action, and for unnecessary delay in taking plaintiff before a magistrate, for a second cause of action. A judgment of dismissal as to the City of Newport Beach was filed December 18, 1961, and entered December 19, 1961. An answer was filed by the remaining defendants; a pretrial statement was signed by the parties and filed, a conference held, and a pretrial conference order was executed. The pretrial joint statement set forth that the action had been dismissed as to the City of Newport Beach, which statement was incorporated in and made a part of the pretrial conference order. After a trial the jury returned a verdict in favor of plaintiff for $16,000 for compensatory damages, nothing for punitive damages, and by a special verdict, fixed compensatory damages for delay in taking plaintiff before a magistrate in the sum of $390.

In moving for a new trial the defendants asked that the judgment be vacated and that the defendants be granted a new trial on the following issues: Whether there was reasonable cause for the arrest of plaintiff; whether there was unreasonable or unnecessary delay in taking plaintiff before a magistrate; and general and special damages on all the grounds set forth in Code of Civil Procedure section 657, excluding accident or surprise and newly discovered evidence, and including insufficiency of the evidence. The plaintiff did not move for a new trial.

After a hearing the court made a minute order dated September 13, 1962, granting the motion for new trial upon both counts unless within a period of ten days the plaintiff should file his remission in respect to the first count of an amount of the judgment in excess of $7,610; otherwise, the motion would be denied. The plaintiff then wrote a letter to the court seeking clarification of the order with respect to the new trial and on September 20, 1962, the court made an additional minute order modifying the order of September 13th nunc pro tunc, in which he added a new sentence, ‘If said motion for new trial be granted as aforesaid, it is ordered that the new trial thereupon ordered be limited to the issues of damages only.’

As a guide to enable us to determine what the judge had in mind at the time the first order was made, we refer to his memorandum opinion. The first point refers to the urging by defendants in support of their motion that one of the jurors may have been biased against police officers, the trial judge summarizing that there was no ground of irregularity to support an attack upon the jury's verdict. He further stated that the ground for the motion that the damages were excessive, ‘appearing to have been given under the influence of passion or prejudice,’ is supported by the evidence, and that the court must grant a new trial if, and only if, the court concludes that the verdict is outrageously excessive, which the court so concluded. The opinion comments on the fact that the plaintiff was a 19-year-old married man, employed as a school janitor, that his unlawful arrest and excessive detention resulted in his being imprisoned for less than 48 hours, that after the complaint had been filed and he was arraigned he was imprisoned for an additional five days, and that there was no evidence that the defendants acted in bad faith in arresting and detaining plaintiff. He further said that the jury refused to make any formal award of punitive damages, on which issue it was property instructed, thereby impliedly finding that defendants were not guilty of oppression or malice. He stated that the arrest was not accompanied by conduct or circumstances that were particularly aggravating or outrageous, nor by any circumstances which would tend to have caused extreme humiliation or grievous mental distress to the plaintiff, that plaintiff did not lose his job, suffering only a modest loss of pay, that the publicity and notoriety was limited to his friends and members of his family and associates and that additional publicity resulted from plaintiff's filing a claim against the City of Newport Beach when he commenced the action, and that there was little, if any, permanent residue resulting from any mental distress that he suffered. The court concluded, therefore, that the evidence of damage fell short of that required to support the award of $16,000. These appeals and cross-appeals followed.

A cash box containing a small amount of cash, stamps and miscellaneous items was taken from an elementary school in Newport Beach where the plaintiff had been employed as a janitor since 1961. He was one of seven persons having a master key to the offices and storerooms. The loss was discovered on September 25, 1961, and was reported to the Newport Beach police on September 26th. On September 28th this school was discovered to be afire. The fire and police departments were summoned and it was determined that the fire was of incendiary origin. The door of the administration office had been forced open with a pry bar, the principal's locked desk drawer had been entered and a transistor radio removed. A pair of soiled men's shorts was found in a drinking fountain, a bare footprint was found in a flower bed, and obscene language had been written on the window panes. The officers were unable to locate any satisfactory fingerprints, nor were they able to determine the source of the rags around the later-discovered cash box, nor to identify the men's shorts. No positive identification was made as to the plaster cast of the bare footprint.

The officers talked to the plaintiff as one of the possible suspects, searched his car, his house and private garage, finding no physical evidence which would tie him to the theft in the course of their search. On request of the officers, the plaintiff voluntarily took a polygraph examination. He was accompanied by defendants Epstein and Amburgey to the El Toro Marine base where a Sergeant Tovar administered the examination. The sergeant had been a criminal investigator with the Marine Corps for the previous eight years, and an operator of the polygraph machine for the last four years. He examined the plaintiff on the polygraph on October 4th, later that same day making a second chart which he stated indicated deception on such relevant questions as, ‘Do you know who took the cash box? Did you take the cash box? Do you know where the cash box was hidden?’ Again that same day a third test was run, the subject of the inquiry being, ‘Do you know who started the fire at the school?’ Again on the same day the fourth chart was run, the inquiry now being, ‘Do you know who stole the transistor radio? Did you steal the transistor radio?’ The operator also interpreted these responses as showing deception. They also discussed with plaintiff whether he had ever stolen anything from the Texaco station where he had worked, and later he admitted that he had taken things from the station.

On that same day, October 4th, a Dr. Benton interviewed the plaintiff at the jail and in the course of this interview administered a drug, sodium amytal, to the plaintiff, but the plaintiff was under the impression that he was to be given sodium pentothal, a truth serum. Sodium amytal is not a truth serum but has a tendency to cause the patient to have hallucinations and dreams and has a lasting effect of four to five hours. Dr. Benton testified that after interviewing the plaintiff on that occasion he believed that the plaintiff could not be excluded from having done the acts, and thereafter, the plaintiff was interrogated for several more hours while in jail.

The next day police officers Amburgey and Epstein took the plaintiff back to the El Toro Marine base for another examination on the polygraph which was regarding the forced entry of the school, and according to Sgt. Tovar, the answers indicated deception.

On October 6th at 9:00 a. m. the officers took the plaintiff to the district attorney's office where he was interviewed and a criminal complaint against him for theft was obtained. The plaintiff was taken to the municipal court and arraigned at about 1:30 p. m., then returned to the jail. The preliminary hearing was scheduled for October 11th at 9:00 a. m., and at that hearing the case was dismissed. On his release, the plaintiff went to his mother's home.

While defendants made the original motion for new trial, they appeal from the order because the amended order granted a trial limited to the issue of damages only, and thus placed them in the position of being aggrieved parties. (See Spencer v. Nelson, 30 Cal.2d 162, 164, 180 P.2d 886.) The motion for new trial was granted on the issues of whether there was reasonable cause for the arrest of plaintiff; whether there was unreasonable or unnecessary delay in taking plaintiff before a magistrate; and general and special damages, while the numc pro tunc order limited retrial to the issues or issue of damages only. This would therefore include punitive damages and in effect the court has found that liability is fixed and that the only issue left is the amount of the damages. This is far different from the original order which granted a new trial limited to the issues above mentioned because the jury had expressly found that there were no punitive damages. We thus conclude that the nunc pro tunc order was a complete change and not a clerical change as is otherwise permissible. (Estate of Careaga, 61 Cal.2d 471,1 39 Cal.Rptr. 215, 393 P.2d 415; Drinkhouse v. Van Ness, 202 Cal. 359, 369, 260 P. 869; Hunydee v. Superior Court, 198 Cal.App.2d 430, 17 Cal.Rptr. 856; Hurt v. Basalt Rock Co., 84 Cal.App.2d 81, 84, 190 P.2d 240.)

In Hyams v. Simoncelli, 41 Cal.App.2d 126, 130, 106 P.2d 68, 70, the court said:

‘It is doubtless true that under the rule set forth in the Gloria case, supra [Gloria v. A. Colonia Portuguesa, 128 Cal.App. 640, 18 P.2d 87], and the cases cited therein, where the trial court has once ruled on the motion for a new trial, it cannot change its ruling because of an alteration in the view of the court as to the law even within the period prescribed by law for passing on the motion, at least in the absence of application under section 473 of the Code of Civil Procedure.’

While it may be argued that the original order with regard to remission was an admission by the court that liability was fixed, it certainly was not cleared up by the nunc pro tunc order which in effect foreclosed the defendants from defending themselves on the issue of liability for punitive damages when the jury had expressly found in their favor.

Determining that the nunc pro tunc order was void, we now look to the question, ‘Did the trial court abuse its discretion in granting defendants' motion for a new trial?’

As is said in Van Ostrum v. State of California, 148 Cal.App.2d 1, at page 4, 306 P.2d 44, at page 46: ‘* * * a specification of insufficiency of the evidence is not necessary to a review of the evidence where the new trial is granted on the ground of excessive damages.’

In Strosk v. Howard Terminal Co., 129 Cal.App.2d 797, 802, 277 P.2d 828, 831, the court, quoting from Doolin v. Omnibus Cable Co., 125 Cal. 141, 144–145, 57 P. 774, said:

“Whatever may be the rule which should govern the trial judge, it is certain that when his action in granting a new trial on the ground of excessive damages, or requiring a reduction of the amount as the condition of denying one, comes to be reviewed on appeal, his order will not be reversed unless it plainly appears that he abused his discretion; and the cases teach that, when there is material conflict of evidence regarding the extent of damage, the imputation of such abuse is repelled, the same as if the ground of the order were insufficiency of the evidence to justify the verdict.”

In Goodman v. Atchison, T. & S. F. Ry. Co., 94 Cal.App.2d 745, 746, 211 P.2d 310, the court stated that it was a matter for determination of the trial court whether the plaintiff had suffered damages in the amount of $8,500 as a result of false arrest and detention in jail for two days, and it cannot be said that in determining that such an award is excessive, the trial judge abused his discretion.

In Bazzoli v. Nance's Sanitarium, Inc., 109 Cal.App.2d 232, 243, 240 P.2d 672, 679, the court stated, quoting from Holmes v. Southern Calif. Edison Co., 78 Cal.App.2d 43, 51, 177 P.2d 32:

“The powers and duties of a trial judge in ruling on a motion for new trial and of an appellate court on an appeal from a judgment are very different when the question of an excessive award of damages arises. The trial judge sits as a thirteenth juror with the power to weigh the evidence and judge the credibility of the witnesses. If he believes the damages awarded by the jury to be excessive and the question is presented, it becomes his duty to reduce them.”

‘* * * the only means of discovering the existence of passion or prejudice as influencing the verdict is by comparing the amount of the verdict with the evidence before the court.’ (City of Los Angeles v. Frew, 139 Cal.App.2d 859, 872, 294 P.2d 1073, 1082.)

A motion for a new trial may be granted on the ground that the verdict is excessive, even if it does not appear to the trial court that the verdict was given under the influence of passion or prejudice (Koyer v. McComber, 12 Cal.2d 175, 182–183, 82 P.2d 941, 945), and, as further stated in Koyer, where the court quotes from Dreyer v. Cyriacks, 112 Cal.App. 279, 283–284, 297 P. 35:

“* * * the verdict must stand unless it is so grossly disproportionate to any reasonable limit of compensation warranted by the facts as to shock the sense of justice, and raise at once a strong presumption that it is based on prejudice, passion, or corruption, rather than sober judgment. [Citations.] * * * Furthermore, where a trial court grants a new trial upon the ground that the verdict is excessive, the declaration of the court that it is excessive does not necessarily mean that the trial court was of the opinion that the verdict was the result of passion or prejudice. It is susceptible of the interpretation that the trial court was not satisfied that the finding of the jury as to the extent of damage suffered by the plaintiff was supported by the evidence adduced upon that phase of the case. [Citation.]”

Under the well-established rules of law the trial court was vested with not only the power, but also the duty, to grant a new trial on all of the issues, part of the issues, or damages alone. Having failed to limit retrial to the issue of damages in his first order and having made an entirely new order in his nunc pro tunc order, not opening the question of liability on exemplary damages, but adding the question of the amount for punitive damages, the new trial should be based on the issues set forth in the first and second causes of action, except the issue of liability for punitive damages. Thus, in the original order the trial judge exercised his discretion and we may not further review it unless it is shown that he abused that discretion. There is in the record not the least suggestion of any such abuse.

In Neff v. Ernst, 48 Cal.2d 628, 634, 311 P.2d 849, the court said: ‘If the motion for new trial be granted the judgment is vacated and the appeal therefrom becomes ineffective.’

In County of Los Angeles v. Bitter, 103 Cal.App.2d 385, 386–387, 229 P.2d 466, 467, the court stated:

‘The rulings below, of which complaint is here made, occurred in advance of, or at, the trial below and so were in every instance interlocutory in character and hence not appealable. As the rulings were interlocutory before the judgment was entered they are of like character now that the judgment has been vacated. As the judgment itself was vacated and thus became nonexistent the attempt to appeal therefrom was entirely ineffectual. [Citation.] If, in the instant case, a new trial had not been ordered and the defendant had appealed from the judgment as originally entered, we would then be under a duty, if we reversed the judgment, to point out the errors in the court's rulings to the extent they had been assigned and were of a character that could have effected the verdict or findings upon which the judgment was entered. We have no such comparable situation here.’

In Malkasian v. Irwin, 61 Cal.2d 738,2 40 Cal.Rptr. 78, 84, 394 P.2d 822, 828, the court quoting from Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 323 P.2d 391, stated:

“The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears, and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. * * *”

The proper rule, supported by many cases, is stated in 4 California Jurisprudence 2d, Appeal and Error, section 598, at pages 476–477, as follows:

‘The granting or denial of a new trial is a matter resting so largely in the discretion of a trial court that it will not be disturbed except upon a manifest and unmistakable abuse. This is especially so when the discretion is used in awarding a new trial, for this action does not finally dispose of the matter, and it is only in rare instances and on very strong grounds that the reviewing court will set aside such an order. * * *

‘* * * But so long as a reasonable or even fairly debatable justification under the law is shown for the action taken, that action will not be set aside, even if, as a question of first impression, the appellate court might feel inclined to take a different view.’

The purported appeals from the judgment are dismissed. The order entered September 13, 1962, granting a new trial on the issues of liability and compensatory damages is affirmed. The nunc pro tunc order entered September 25, 1962, is annulled.



FN1. Advance Report Citation: 61 A.C. 516, 519..  FN1. Advance Report Citation: 61 A.C. 516, 519.

FN2. Advance Report Citation: 61 A.C. 801, 810..  FN2. Advance Report Citation: 61 A.C. 801, 810.

RALPH M. BROWN, Justice.* FN* Assigned by Chairman of Judicial Council.

GRIFFIN, P. J, and COUGHLIN, J., concur.

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