SANCHEZ COREA v. Virgil McGowen, Defendant and Respondent.

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Court of Appeal, First District, Division 1, California.

Antonio R. SANCHEZ–COREA, et al., Plaintiffs, Cross-Defendants and Appellants, v. BANK OF AMERICA, NT & SA, Defendants, Cross-Complainants and Respondents, Virgil McGowen, Defendant and Respondent.

Civ. 49995.

Decided: September 14, 1983

Daniel M. Crawford, Carroll, Burdick & McDonough, San Francisco, for plaintiffs, cross-defendants and appellants. David B. Flinn, Leland, Parachini, Steinberg, Flinn, Matzger & Melnick, San Francisco, for defendants, cross-complainants and respondents.

This is an appeal from a new trial order granted upon the motion of defendant Bank of America after a jury trial resulted in a verdict of $2,100,015.50 in favor of plaintiffs, Antonio and Lucille Sanchez-Corea and Edward F. Towers, Trustee in Bankruptcy (hereinafter Sanchez-Coreas or appellants) and against respondent.   The resolution of this appeal requires that this court navigate its way through the labyrinthine maze we euphemistically call the new trial statute 1 in an attempt to apply its turgid clauses to a practical dispute involving two million dollars.

Statement of Facts

Cormac began in 1964 as a partnership between Antonio Sanchez-Coreas and John McGowan.   The company designed and installed electronic communication systems.   Cormac banked from its inception with Bank of America (hereinafter “BofA” or “Bank”).   Virgil McGowen was the bank officer who handled Cormac's account from 1965 until 1973.

Cash flow shortages at Cormac created overdrafts in Cormac's account.   Virgil McGowen covered these overdrafts with “loans” which were in fact funds embezzled from other accounts.   Sanchez-Corea was aware McGowen covered Cormac's overdrafts and eventually asked McGowen the amount of Cormac's total debt.   When McGowen would not produce the requested information, Cormac hired an accounting firm and an attorney to unravel Cormac's finances and to determine the actual amount of the company's debt to BofA.

In January of 1971, after a formal demand from Cormac for a total of the debt, McGowen informed Sanchez-Corea that Cormac owed the Bank $130,000.   Cormac's accountants estimated only a $41,300 debt to the Bank.

In 1971 BofA sued Cormac to recover funds which had been loaned to Cormac to expand its operation to San Jose.   John McGowan filed a cross-claim charging impropriety in the handling of Cormac's account.   That cross-complaint led the Bank to audit Cormac's account, whereby large scale improprieties by Virgil McGowen were discovered.   Virgil McGowen disappeared but was eventually apprehended and sentenced to prison for embezzling funds.

Before the audit was completed, the Bank made Cormac a final loan of $70,000.   The loan was secured with the company's accounts receivable.   When the audit was completed, the Bank determined Cormac owed it over $243,000 for funds McGowen had advanced to cover overdrafts.

In February 1971, before the audit began, the partnership between Sanchez-Corea and John McGowan was dissolved.   John McGowan received only a release from liability for his interest in the business.   In 1972, Cormac hired Jack Lapidos to be its financial advisor.   Cormac also began to move into the life safety systems field—such systems being integrated electronic warning systems used to shepherd people to safe exits in large buildings in cases of emergency.

In 1973, Lapidos prepared projections of Cormac's growth in the life safety system field.   Cormac presented those projections as part of a major lending proposal to BofA in April of 1973.   The Bank rejected the proposal and decided to deny Cormac further loans.

In the spring of 1974, Cormac attempted one last financing arrangement.   Sam Zell, of Equity Financing in Chicago, considered investing $150,000 in the company in return for a 20 percent stock interest.   The investment was contingent upon BofA reducing Cormac's debt to $180,000, payable over ten years and was contingent upon a $100,000 Small Business Administration loan.   The arrangement was never consummated.

In April of 1974 Cormac petitioned for Chapter 11 proceedings and by October of 1974 was out of business.   Cormac's assets were bought by a company called Astrophysics for $9,000 or $10,000, and Sanchez-Corea went to work for Astrophysics.   Shortly thereafter Astrophysics also went out of business.

Procedural Background

The Sanchez-Coreas, joined by the Trustee in Bankruptcy, filed their second amended complaint against BofA and against Virgil McGowen on December 17, 1975.   The complaint alleged breach of contract, fraud, bad faith, disparagement of credit, interference with prospective economic advantage and negligent and intentional infliction of emotional distress, and sought both general and punitive damages.   The Bank answered, denying the allegations and cross-complaining to recover $246,000 allegedly improperly credited to the Cormac account, as well as a separate $70,000 debt which derived from the final loan the Sanchez-Coreas had admittedly received.

The case proceeded to trial in San Francisco Superior Court on September 5, 1979.   The jury, after a three-week trial, found in favor of the Sanchez-Coreas on their complaint, and awarded $1 million general damages and $100,000 as damages for emotional distress against both defendants.   The jury additionally assessed $1 million punitive damages against the Bank and $15.50 punitive damages against Virgil McGowen.   The jury awarded the Bank $70,000 on its cross-complaint against the Sanchez-Coreas but found that the Sanchez-Coreas did not owe the disputed $246,000 debt.

On October 12, 1979, the Bank filed a motion for new trial with respect to the judgment against it on plaintiffs' complaint.   Virgil McGowen did not file a motion for new trial.   On November 27, 1979, 60 days following notice of entry of judgment, the trial court filed a minute order granting the Bank's motion for new trial.   The minute order was signed by the judge but stated neither grounds nor reasons.   On December 4, 1979, the court filed a further order which purported to grant the Bank's motion for new trial on the grounds that the evidence was insufficient to support lost profits damages of $1 million and on the grounds that the evidence was insufficient to show the outrageous or malicious conduct necessary for the infliction of emotional distress or the imposition of punitive damages.

On December 20, 1979, the Sanchez-Coreas appealed from the order granting the new trial.   The Bank has not filed a cross-appeal.

On appeal appellants urge this court to reverse the order granting a new trial for essentially two reasons.   First, appellants contend that the new trial order is fatally defective because the trial court failed to state its ground(s) within the 60-day jurisdictional period set forth in Code of Civil Procedure section 660.   Secondly, appellants contend that on the merits there is no legal or factual basis to uphold the trial court's determination that a new trial should be granted.

We turn first to the jurisdictional attack made by appellants.

Validity of the New Trial Order

The trial court in its minute order of November 27, 1979—the 60th day of the jurisdictional period—did indeed fail to specify either ground(s) or reasons upon which it granted the Bank's motion.   The text of the minute order in its entirety reads:  “Defendants' motion for new trial is granted.   Specifications to follow.”

Thereafter on December 4, 1979, 67 days following the clerk's mailing of the notice of judgment, the court filed a further order setting forth its sole ground for granting the motion—insufficient evidence to justify the verdict per Code of Civil Procedure section 657, subdivision 6—and its specification of reasons.

Appellants contend that the failure to set forth the ground for granting the motion in the minute order was fatally defective because it violated the explicit language of Code of Civil Procedure sections 657 and 660 which require that the motion be determined by an order setting forth the ground(s) within the 60 days jurisdictional time limit.   In addition to the statutory language of sections 657 and 660, appellants rely on Fry v. Young (1968) 267 Cal.App.2d 340, 73 Cal.Rptr. 67;  Siegal v. Superior Court (1968) 68 Cal.2d 97, 65 Cal.Rptr. 311, 436 P.2d 311;  and La Manna v. Stewart (1975) 13 Cal.3d 413, 118 Cal.Rptr. 761, 530 P.2d 1073 to support their contention that the fatal defect in the trial court's minute order cannot be cured nunc pro tunc by the further order filed on December 4th.

In analyzing the validity vel non of the new trial order, this court must first look to Code of Civil Procedure section 660 which sets the jurisdictional time limits.  Code of Civil Procedure section 660 states in relevant part that:  “[T]he power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court.”

Code of Civil Procedure section 660 additionally provides:  “If such motion is not determined within said period of 60 days, ․ the effect shall be a denial of the motion without further order of the court.”

 The time requirements of Code of Civil Procedure section 660 are not procedural rules;  they are firm jurisdictional deadlines.   As our California Supreme Court has stated:  “The time limits of section 660 are mandatory and jurisdictional, and an order made after the 60-day period purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void.”  (Siegal v. Superior Court, supra, 68 Cal.2d 97, 101, 65 Cal.Rptr. 311, 436 P.2d 311.)

 In deciding whether the motion in the instant case was “determined” within the 60-day period, we must look to Code of Civil Procedure section 657.  Section 657 provides in pertinent part:  “When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated.

“․

“The order passing upon and determining the motion must be made and entered as provided in Section 660 and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons.   If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk.”  (Emphasis added.)

Since the trial judge's minute order of November 27 specified no ground(s) for granting the motion, appellants argue that the essential ingredients of a “determination” within 60 days required by Code of Civil Procedure section 660 never existed, thereby ending our inquiry, rendering the order void, and releasing the jurisdictional guillotine upon respondent's new trial motion.   (Ibid.;  La Manna v. Stewart, supra, 13 Cal.3d 413, 118 Cal.Rptr. 761, 530 P.2d 1073;  Fry v. Young, supra, 267 Cal.App.2d 340, 73 Cal.Rptr. 672 .)

However, our task is not so simple.  Code of Civil Procedure section 657 concludes with a paragraph which contains the directive that:  “On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, ․” (italics added.)   Our Supreme Court in commenting upon the portion of the statute just quoted has said:  “Under this rule we have deemed ourselves bound to affirm a new trial order upon an error in law which was not only not the ground specified by the trial judge, but was apparently not even within his contemplation at the time of his ruling.  [Citation.]   It follows that a failure of the trial judge to specify any ground—and a fortiori any reason for a ground actually stated—cannot be held to render the order void from its inception.   The reviewing court remains under an express statutory duty to affirm such an order if the record will support any ground listed in the motion.”  (Treber v. Superior Court (1968) 68 Cal.2d 128, 133–134, 65 Cal.Rptr. 330, 436 P.2d 330 last italics added.)

The identical issue was raised in In re Marriage of Beilock 3 (1978) 81 Cal.App.3d 713, 146 Cal.Rptr. 675.   In that case, as here, the trial judge granted a new trial without stating ground(s) or reason(s).   After a thorough review of the legislative objective behind section 657, the Beilock court confronted the issue we are here presented in the following manner:  “[S]uppose the trial court either fails to state its grounds and reasons effectively, or, as in the case before us, says absolutely nothing at all.   Is that the end of it?”  (Id., at p. 726, 146 Cal.Rptr. 675.)

The court thought not, concluding that Treber mandated further inquiry, to wit:  “True, the trial judge is admonished to state his grounds and reasons, whatever they are, and this is not limited to the evidence and damages grounds.   But if the text of the order made does not fulfill the statutory requirements, then the reviewing court, according to other provisions of the statute, must affirm the order if it should have been granted on some other ground stated in the motion.”  (In re Marriage of Beilock, supra, 81 Cal.App.3d 713 at p. 727, 146 Cal.Rptr. 675.)

We agree with the Beilock court that the review of an order granting new trial is twofold.  “The content of the order is measured against certain statutory requirements.   If it passes muster, that is the end of the task of review.   However, if it does not, then the review must go a step further and test the record as to any other ground stated in the motion.”   (Ibid.)

However, there is an important legislative limitation to this additional review for “other grounds” upon which the order might be affirmed.  Code of Civil Procedure section 657 specifically states that “the order shall not be affirmed upon the ground of the insufficiency of the evidence ․ or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion․”

Thus an appellate court is mandated by section 657 to enlarge its review of a defective order for “other grounds stated in the motion” but precluded in that additional review from affirming on two specific grounds, i.e., insufficiency of the evidence or excessiveness of the damages.4  (See Treber v. Superior Court, supra, 68 Cal.2d 128, 133, 65 Cal.Rptr. 330, 436 P.2d 330;  Estate of Sheldon (1977) 75 Cal.App.3d 364, 142 Cal.Rptr. 119.)

The Treber court reconciled the strict jurisdictional requirement of section 660 with the additional review for other grounds set forth in section 657.  “[T]he first paragraph of the 1965 amendments to section 657 places on the trial courts a clear and unmistakeable duty to furnish a timely specification of both their grounds and their reasons for granting a new trial, and we expect that such duty will be faithfully discharged.   But in the event of inadequate specification in either respect [i.e., grounds or reasons] the fourth paragraph of the amendments nevertheless requires that the new trial order be affirmed on appeal if it should have been granted on any ground stated in the motion, except insufficiency of the evidence or excessive or inadequate damages.”  (68 Cal.2d at p. 136–137, 65 Cal.Rptr. 330, 436 P.2d 330.)

To summarize the procedural analyses above:

(1) The order determining the motion for new trial must be filed within 60 days of mailing of notice of judgment.  (Code Civ.Proc., § 660.)

(2) The order is defective if it does not contain the ground(s) upon which the new trial is granted.  (Fry v. Young, supra, 267 Cal.App.2d 340, 73 Cal.Rptr. 62.)

(3) While such an order (not containing grounds) is defective, it is not void.  (Treber v. Supreme Court, supra, 68 Cal.2d 128, 65 Cal.Rptr. 330, 436 P.2d 330.)

(4) The reviewing court remains under an express duty to affirm such an order if the record will support any ground listed in the motion with the exception of excessive damages and insufficiency of the evidence.  (Code Civ.Proc., § 657.)

 Applying the procedural analysis above to the procedural facts in the instant case reveals the following:

(1) The trial judge filed the minute order determining the motion for new trial on November 27, 1979 which was the sixtieth day.

(2) The minute order which granted a new trial without specifying any ground(s) was defective but not void.  (Ibid.;  In re Marriage of Beilock, supra, 81 Cal.App.3d 713, 146 Cal.Rptr. 675.)

(3) The trial court's further order of December 4, 1979, in which it set forth its sole ground of insufficiency of the evidence and its specification of reasons cannot cure the defective minute order or modify it nunc pro tunc.  (Siegal v. Superior Court, supra, 68 Cal.2d 97, 65 Cal.Rptr. 311, 436 P.2d 311.)   Accordingly, this appellate court cannot consider the ground of insufficiency of the evidence in determining whether to sustain the trial court's order.  (Code Civ.Proc., § 657.)

(4) This appellate court, however, must review the record and affirm the defective minute order if the record will support any other ground listed in the motion for new trial except for insufficiency of the evidence or excessive damages.  (Code Civ.Proc., § 657;  Treber v. Superior Court, supra, 68 Cal.2d 128, 136, 65 Cal.Rptr. 330, 436 P.2d 330.)

(5) The motion for new trial filed by respondent on October 12, 1979 designated the following four other grounds:

(a) irregularity in the proceedings of the jury which prevented the defendant from having a fair trial (Code Civ.Proc., § 657);

(b) misconduct of the jury;

(c) the verdict is against the law;

(d) an error in law was made to which the defendant excepted during the trial.

We proceed first to review whether the record reflects that the verdict was against the law.

Discussion

 On a challenge that a verdict is “against the law,” the appellate court's task on review is “not to defer to the trial court's balancing of the relative weight of the evidence;”  but to decide whether any substantial evidence supports the findings of the jury in the case.  (Berge v. International Harvester Co. (1983) 142 Cal.App.3d 152, 161, 190 Cal.Rptr. 815;  Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 150 Cal.Rptr. 722;  S.F. Bay Area Rapid Transit Dist. v. McKeegan (1968) 265 Cal.App.2d 263, 71 Cal.Rptr. 204.)

“Where the evidence relates to the amount of damages, the proper test is ․ that a damage award is not supported by substantial evidence if it is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice.”  (Don v. Cruz (1982) 131 Cal.App.3d 695, 707, 182 Cal.Rptr. 581;  Zhadan v. Downtown L.A. Motors (1976) 66 Cal.App.3d 481, 495, 136 Cal.Rptr. 132;  Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64, 118 Cal.Rptr. 184, 529 P.2d 608;  Cunningham v. Simpson (1969) 1 Cal.3d 301, 308, 81 Cal.Rptr. 855, 461 P.2d 39;  Rosenberg v. J.C. Penney Co. (1939) 30 Cal.App.2d 609, 628, 86 P.2d 696.)5

The California Supreme Court in Bertero v. National General Corp., supra, 13 Cal.3d 43, 118 Cal.Rptr. 184, 529 P.2d 608, presented an accurate summary of the standard for determining whether damages are “against the law.”

“The measure of damages suffered is a factual question and as such is a subject particularly within the province of the trier of fact.   For a reviewing court to upset a jury's factual determination on the basis of what other juries awarded to other plaintiffs for other injuries in other cases based upon different evidence would constitute a serious invasion into the realm of fact-finding.  [Citations.]   Thus, we adhere to the previously announced and historically honored standard of reversing as excessive only those judgments which the entire record, when viewed most favorably to the judgment, indicates were rendered as the result of passion and prejudice on the part of the jurors.”  (Bertero v. National General Corp., supra, 13 Cal.3d 43 at p. 65, fn. 12, 118 Cal.Rptr. 184, 529 P.2d 608.)

Applying the legal standards set forth above we turn first to the compensatory award of $1 million.   Appellants assert that the award is supported by substantial evidence of lost future profits and by evidence of the value of the business in 1974.   Respondent claims that the award is against the law because it is excessive, unsupported by any substantial evidence and reflective of passion and prejudice on the part of the jury.   For the reasons stated below we agree with respondent.

 Lost future profits to an established business may be recovered only if they can be ascertained with reasonable certainty.  (Berge v. International Harvester Co., supra, 142 Cal.App.3d 152, 161, 190 Cal.Rptr. 815.)   Lost profits may be proved with historical data such as past business volume or with evidence of profits made by similar businesses operating under similar conditions.  (Id., at p. 162, 190 Cal.Rptr. 815.)

 The historical information appellant offered established that an ordinance passed by the City of San Francisco in 1973 required life safety systems in all new buildings over seven stories high.   A subsequent ordinance required the systems in all older buildings over seven stories.   Appellants estimated that between 20 and 30 new buildings and 450 old buildings would require life safety systems.

The evidence established that Cormac entered the life safety system field in 1972.   Cormac's financial advisor, Lapidos, projected that Cormac's net income in life safety systems would equal $1 million by 1979.   The million dollar net income figure represented 10 percent of $10 million in life safety system contracts Lapidos estimated that Cormac would win.   But these projections by Cormac's own financial advisor were purely speculative in light of Cormac's history and are not supported by any additional substantial evidence.

On the other hand, the evidence was uncontradicted that in its 10-year existence Cormac never earned a profit.6  Cormac lost money in 1972, 1973 and 1974 and never paid income taxes.   In 1974, Cormac's last year in business, its accounts receivable totalled only $170,000, while its indebtedness to creditors was over $500,000.   When Cormac went out of business in late 1974, its assets were sold for less than $10,000 to a company called Astrophysics.   Astrophysics also went out of business in less than two years.

In addition to the absence of any historical earning record to support Lapidos' 10 percent profit projection, the estimate of future profit suffers from another defect.   The estimate was clearly contingent upon Cormac receiving the additional financing necessary to compete in the life safety system field.   Our review of the record discloses no substantial evidence upon the basis of which the jury could rationally conclude that such financing would have been forthcoming, from BofA or any other responsible lending institution.   Indeed, BofA had refused to lend Cormac any more money in 1973, while the SBA had turned them down in 1974.   Considering Cormac's track record of earnings and lack of net assets there is no basis to conclude that sufficient financing would have been advanced by any independent lending institution regardless of McGowen's improprieties as Cormac's banker.

In support of the $1 million estimate of lost profits, Cormac points to the earning records of three “similar businesses operating under similar conditions.”   The “similar businesses” were large national corporations competing in the life safety system market in San Francisco.   Appellants were unable to break out the profit from the life safety division of any of these corporations.   Thus the evidence of the national corporations' profits in the life safety systems field is entirely speculative and cannot form the basis of an award of lost profits for Cormac.

A review of the record does not reveal either a reliable historical earning record by Cormac or similar businesses' profit figures to form the legal basis for an award of $1 million compensatory damages for lost future profits.

Nor is there any substantial evidence to support appellants' contention that the value of the business itself in 1974 was $1 million.   For that proposition appellants rely principally if not exclusively upon the offer of an outside investor, Zell, to buy 20 percent of Cormac's stock for $150,000.   However, that offer, which was never consummated, was contingent on the company's obtaining substantial SBA financing which might have increased the company's profits, but which never materialized.   While the evidence of the Zell offer was properly admitted and considered by the jury, it was of negligible weight, and certainly it cannot in itself comprise substantial evidence for the jury to conclude that the value of the business was $1 million.

Viewing the record most favorably to the jury verdict and mindful of the very limited standard of appellate review, we nevertheless discern no substantial evidence supportive of the compensatory award either on the basis of lost future profits or the value of the business.   Therefore, we conclude that the jury's $1 million compensatory damages award was “against the law” and must be set aside.

 We next consider whether the $1 million punitive damage award must also be redetermined.   An award of punitive damages must bear some reasonable relationship to actual damages.  (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928, 148 Cal.Rptr. 389, 582 P.2d 980;  Kuffel v. Seaside Oil Co. (1970) 11 Cal.App.3d 354, 367, 90 Cal.Rptr. 209;  Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.App.3d 740, 751, 168 Cal.Rptr. 237.)   The jury was so instructed pursuant to BAJI instruction No. 14.71 which is based on Civil Code section 3294.   Since we have held that the award of general damages was against the law and must be set aside, it is no longer possible to determine whether the punitive award bears a reasonable relationship to actual damages;  accordingly we apply the rule that where a judgment of general damages is reversed, exemplary damages must be redetermined as well.  (Kuffel v. Seaside Oil Co., supra, 11 Cal.App.3d at p. 367, 90 Cal.Rptr. 209;  see also Foster v. Keating (1953) 120 Cal.App.2d 435, 261 P.2d 529.)

 Having concluded that the new trial order should be affirmed because the jury verdict is against the law, we must further determine whether the trial court abused its discretion in not limiting its order to damages only.7  We are satisfied after a review of the record that all of the issues of damages and liability in the complaint, including the award for emotional distress, are inextricably connected.   We hold that there was no abuse of discretion, and that the new trial order was permissibly extended to all issues in the complaint.

 The order granting a new trial shall not apply to the verdict on the cross-complaint.   The new trial motion did not request a new trial on the cross-complaint and the jury verdict on the cross-complaint is supported by substantial evidence.

Conclusion

The trial court's order granting a new trial as to all issues in the complaint is sustained.   The jury verdict on the cross-complaint is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   In Bunton v. Arizona Pacific Tanklines (1983) 141 Cal.App.3d 210, 190 Cal.Rptr. 295 (conc. opn.), Newsom, J. referred to the “cosmic incomprehensibility” of the new trial statute, Code of Civil Procedure Section 660.

2.   Fry v. Young, supra, 267 Cal.App.2d 340, 73 Cal.Rptr. 67 held that the order granting a motion for new trial must contain the ground(s) under the 1965 legislative amendment to Code of Civil Procedure section 657.   Fry made clear that the extension of the 60 day jurisdictional time limit of ten days for the court to file its “reasons” did not apply to the requirement that the trial court recite its “grounds” in the order.

FN3. Beilock stated that the two legislative objectives behind section 657 were:  1) to facilitate a meaningful appellate review of orders granting new trials primarily where the ground is either that the evidence is insufficient to justify the verdict or that the damages are excessive or inadequate;  2) assuming the given order is defective with reference to the first objective to prevent injustice by extending the scope of appellate review to any ground listed in the motion and not relied upon by the trial court..  FN3. Beilock stated that the two legislative objectives behind section 657 were:  1) to facilitate a meaningful appellate review of orders granting new trials primarily where the ground is either that the evidence is insufficient to justify the verdict or that the damages are excessive or inadequate;  2) assuming the given order is defective with reference to the first objective to prevent injustice by extending the scope of appellate review to any ground listed in the motion and not relied upon by the trial court.

4.   The Treber court addressed itself to the different legislative purposes behind their scope of review of matters of law and essentially factual evaluation involved in sufficiency of the evidence and excessive damage grounds.   The Treber court found no conflict in these provisions:  “different legislative purposes are served by each, and both must be given the fullest effect possible.”  (Treber v. Superior Court, supra, 68 Cal.2d 128 at p. 137, 65 Cal.Rptr. 330, 436 P.2d 330.)

5.   In Don v. Cruz, supra, 131 Cal.App.3d 695, 182 Cal.Rptr. 581, the court held that evidence of plaintiff's injuries showed only some degree of discomfort without substantial evidence of disability, so that an award of $100,000 was not supported by substantial evidence and was “against the law.”   In Zhadan v. Downtown L.A. Motors, supra, 66 Cal.App.3d 481, 136 Cal.Rptr. 132, although the award of compensatory damages did not appear to be supported by the evidence, the award was upheld because it was not in any respect indicative of passion or prejudice on the part of the jury.   The court in Bertero v. National General Corp., supra, 13 Cal.3d 43, 64, 118 Cal.Rptr. 184, 529 P.2d 608 found the award of compensatory damages not to be excessive considering the plaintiff's testimony and the defendant's failure to attempt in any way to rebut that testimony.   An award of $25,000 was motivated by passion or prejudice in Cunningham v. Simpson, supra, 1 Cal.3d 301, 81 Cal.Rptr. 855, 461 P.2d 39 where the court found the defendant's actions in the slander suit to have been activated by malice, but to have fallen short of the aggravated nature of activity necessary to justify the high award.   And in Rosenberg v. J.C. Penney Co., supra, 30 Cal.App.2d 609, 86 P.2d 696, libel published on a sign in defendant's store window for one day did not justify the $10,000 general damage award or the $15,000 exemplary damage award;  and the court ordered each award reduced to $5,000.

6.   Significantly, when Sanchez-Corea's ex-partner John McGowan left the partnership in 1971, he received nothing but a hold harmless agreement for his half interest in the business.

7.   Respondent's motion for a new trial requested a complete new trial rather than a partial one.   The trial judge's minute order granting the new trial did not limit the relief to particular issues, but instead granted the motion in its entirety.

WEINSTEIN, Associate Justice Pro Tem.* FN* Assigned by the Chairperson of the Judicial Council.

RACANELLI, P.J., and NEWSOM, J., concur.

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