ALBURGER v. GREENE

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

James R. ALBURGER, Plaintiff, Respondent, and Cross-Appellant, v. Christopher E. GREENE, Defendant, Appellant, and Cross-Respondent.

No. B012219.

Decided: September 30, 1986

O.R. Rouse, Palos Verdes Estates, for defendant, appellant, and cross-respondent. John Joseph Hall, Los Angeles, for plaintiff, respondent, and cross-appellant.

Defendant, Christopher E. Greene, appeals from an order denying in part a motion for a new trial made pursuant to Code of Civil Procedure section 914.1  Plaintiff, James R. Alburger, cross-appeals from the order granting the partial new trial.

In May 1972 Alburger filed an action for a dissolution of partnership and accounting.   The case was bifurcated and the partnership phase was tried in September of 1975.   After a 13–day trial, the court determined that a partnership existed between the parties.

Thereafter, in 1982 the damage issue was tried and, after a 26–day court trial, damages of over $4 million were awarded to Alburger.   The judgment was filed on February 17, 1983, and a timely notice of appeal followed.

While having the reporter's transcript prepared, Greene discovered that three days of reporter's notes were missing.   The missing notes included the testimony of Greene's witnesses during the partnership phase.   Thus, on November 30, 1984, Greene moved for a new trial pursuant to section 914.

Following a hearing on January 11, 1985, the judge granted the motion as to the partnership issue and denied the motion as to the damage issue.   Both parties appeal.

1. Alburger Appeal

 Alburger appeals from the grant of even the partial new trial under section 914.   He contends that the new trial should not have been granted at all because (1) Greene failed to establish that the lost notes constituted a substantial part of the transcript and (2) Greene failed to (a) make an effort to obtain a settled statement or (b) stipulate to an agreed statement of facts.   We disagree.

“The trial court has a wide discretion in passing on a motion for new trial under this section.   Its action must not be disturbed unless it is clearly shown that it abused its discretion.”  (Lilienthal v. Hastings Clothing Co. (1954) 123 Cal.App.2d 91, 92, 266 P.2d 56.)  “Whether the court has abused its discretion depends on the facts of the particular case.   The discretion is not unlimited, but is a legal discretion, the exercise of which is reviewable.   [Citation.]”  (Fickett v. Rauch (1947) 31 Cal.2d 110, 112, 187 P.2d 402.)

Our review of the record discloses that the trial court did not abuse its discretion in finding that the lost notes constituted a substantial part of the record.   The lost notes consisted of defendant's case-in-chief.   Greene contends these notes are necessary to examine not only the existence of the partnership but also the termination date of the partnership and other issues upon which Judge Early made findings.   We conclude that these questions could not be properly considered without the lost notes.  (Lilienthal v. Hastings Clothing Co., supra, 123 Cal.App.2d at p. 93, 266 P.2d 56.)

Moreover, the fact that Alburger conceded to stipulate that all defense witnesses testified that no partnership existed would not have obviated the need for the transcript.   Greene's alleged need went beyond the mere existence of the partnership.   Greene's need involved issues such as the termination date and other rulings.   Alburger's stipulation would not have reached these other issues.

Finally, Alburger's trial counsel states that he has notes of the testimony and can prepare a settled statement.   He contends that, because Greene refused to agree to a settled statement, the new trial was improperly granted.   Again, we disagree.

Greene's counsel on appeal was not his trial counsel.   Moreover, his trial counsel declared that he had no recollection of the testimony except generally and that he took no notes.

It is well settled that Greene “is not necessarily required to prepare a settled statement pursuant to rule 4(e) of the Rules on Appeal.   That remedy, as stated in the rule, is in addition to any remedy given by law.”  (Fickett v. Rauch, supra, 31 Cal.2d 110, 116, 187 P.2d 402.)   Greene was certainly within his rights to reject Alburger's offer.  (Ibid.)

Consequently, we find that the court did not abuse its discretion in granting the new trial.

2. Greene's Appeal

 Greene appeals the grant of the partial new trial.   He contends that the trial court was without power to grant a new trial solely on the partnership issue.   Rather, the court must order a new trial on both phases of the bifurcated trial.   We reluctantly agree.

This issue was determined in Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 125 Cal.Rptr. 408.   In Hennigan, notes of a one-day trial were lost and the defendant moved for a new trial.   The trial court ordered a new trial only on the damages issue finding liability to be clear.   The movant appealed and the Court of Appeal reversed holding that a new trial must be “granted on all issues.”  (Id., at p. 9, 125 Cal.Rptr. 408.)

In so holding the court engaged in a thorough statutory review.   It first looked at the statute and found the words to be clear and unambiguous.   “Section 914 does not require interpretation;  it is without ambiguity.   It provides power to the court to vacate the entire judgment and to order a new trial of the entire action or proceeding;  it does not provide for a partial new trial on limited issues.”  (Id., at p. 7, 125 Cal.Rptr. 408.)

The court also considered the rule of statutory construction that “․ ‘the Legislature, in enacting a statute, has in mind existing related laws [citations], including, ․ the acts of previous Legislatures.’ ”  (Id., at pp. 7–8, 125 Cal.Rptr. 408, quoting People ex rel. Thain v. City of Palo Alto (1969) 273 Cal.App.2d 400, 406, 78 Cal.Rptr. 240.)

The Hennigan court then compared section 914 to the general new trial statute.  (§ 657.)   It noted that section 657 contained an explicit authorization to vacate a verdict in whole or in part and that similar language was lacking in section 914.   This omission it found indicated a different legislative intent.  (Hennigan v. United Pacific Ins. Co., supra, 53 Cal.App.3d at p. 8, 125 Cal.Rptr. 408.)   Thus, it concluded a new trial pursuant to section 914 must be granted on all issues.  (Ibid.)

Notwithstanding this clear interpretation, Alburger points to Fickett v. Rauch, supra, 31 Cal.2d 110, 187 P.2d 402, as allowing a different result.   In Fickett the defendant moved for the new trial only on the liability phase of a bifurcated case and the court granted the new trial motion solely on the liability phase.   However, neither of the parties questioned, nor did the court consider whether it had the power to grant the partial new trial.   Thus, we find Fickett to be not controlling of this issue as it never discussed this issue.

Alburger also contends that to require a complete new trial would be palpably absurd in a bifurcated trial.   Here, unlike the one-day trial in Hennigan, this result would require an additional 26–day trial on the accounting issue which already has a complete transcript.   While we agree in principle and realize that additional judicial time will be necessary, we should follow the intent of the Legislature and not rewrite statutes but favor the Legislature with its responsibility.  (Hennigan v. United Pacific Ins. Co., supra, 53 Cal.App.3d at p. 7, 125 Cal.Rptr. 408.)

Section 914 empowers the court to “set aside and vacate the judgment ․ from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.”   Consistent with Hennigan, we read this to mean that the court must vacate the entire judgment and order a new trial of the entire action.  (Hennigan v. United Pacific Ins. Co., supra, 53 Cal.App.3d at p. 7, 125 Cal.Rptr. 408.)   Judgments in bifurcated trials can only be entered after both phases have been tried.   No judgment can be entered on the liability phase when it is determined for the plaintiff.  (Jach v. Edson (1967) 255 Cal.App.2d 96, 99, 62 Cal.Rptr. 925.)   Thus, when the court vacates the judgment, it does so both as to the damage and liability phase.

Consequently, we reluctantly reverse the order granting the partial new trial and remand the case with directions that a new trial be granted on all issues.   Both parties shall bear their own costs.

FOOTNOTES

1.   Code of Civil Procedure section 914 states:“When the right to a phonographic report has not been waived and when it shall be impossible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule, because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.”Unless stated otherwise, all statutory references are to the Code of Civil Procedure.

DEVICH, Associate Justice.

L. THAXTON HANSON, Acting P.J., and RUIZ,* J., concur.