THE OAKLAND RAIDERS v. Paul Tagliabue et al., Defendants and Respondents. (2005)

Court of Appeal, Second District, Division 2, California.

THE OAKLAND RAIDERS, Plaintiff, Cross-defendant and Appellant, v. NATIONAL FOOTBALL LEAGUE, Defendant, Cross-complainant and Appellant; Paul Tagliabue et al., Defendants and Respondents.

No. B163115.

Decided: February 23, 2005

Kaye Scholer, Larry R. Feldman, Robert M. Turner, Los Angeles;  Arnold & Porter, John J. Quinn, Los Angeles, Laurence J. Hutt, Los Angeles;  and Jeffrey E. Birren, Alameda, for Plaintiff, Cross-defendant and Appellant The Oakland Raiders. Covington & Burling, Gregg H. Levy;  Ruby & Schofield, Allen J. Ruby, San Jose;  Skadden, Arps, Slate, Meagher & Flom and Douglas B. Adler, Los Angeles, for Defendant, Cross-complainant and Appellant National Football League and for Defendants and Respondents Paul Tagliabue and Neil Austrian.

Defendant, cross-complainant and appellant the National Football League (NFL) appeals from an order granting a new trial following a six-week jury trial.   The jury returned a verdict in favor of the NFL on the Raiders' claims involving their move to Oakland, and the trial court granted a new trial on the ground of juror misconduct.   Plaintiff, cross-defendant and appellant the Oakland Raiders (Raiders) cross-appeal from a pretrial order granting summary adjudication in favor of individual defendants and respondents Paul Tagliabue (the NFL commissioner) and Neil Austrian (the NFL president) on the Raiders' cause of action for breach of fiduciary duty.   The Raiders also appeal from a statement of decision following a bench trial on the Raiders' declaratory relief cause of action.

We reverse the order granting a new trial and affirm the judgment in all other respects.   Because the order granting a new trial failed to comply with Code of Civil Procedure section 657 by omitting a statement of reasons, we have independently reviewed the grounds asserted in the motion.   We conclude that neither the conflicting evidence of juror misconduct nor any asserted instructional error justifies a new trial.   As to the cross-appeal, we conclude that the trial court correctly determined that, as a matter of law, there is no fiduciary relationship between NFL officials and the Raiders, and that substantial evidence supports the trial court's conclusion that the NFL was not estopped to rely on the NFL constitution's revenue sharing requirements.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts Leading to the Raiders' Move From Los Angeles.

The Raiders are a member club of the NFL, an unincorporated association governed by the NFL constitution and bylaws.   After the Raiders relocated to Los Angeles from Oakland in 1982, they played their home games at the Los Angeles Memorial Coliseum until 1995.   Unlike newer stadiums, the Coliseum did not permit any revenue to be derived from items such as luxury suites, club seats, naming rights or other sponsorships.

Throughout the end of 1994 and the first half of 1995, the Raiders negotiated with individuals representing Hollywood Park for the construction of a new, state-of-the-art stadium in Inglewood, reaching an agreement in principle in March 1995.   That agreement required the Raiders to secure from the NFL a contribution in the amount of $20 million and a commitment that at least two Super Bowls would be played in the stadium between 2000 and 2004.   The NFL offered to support construction of the Hollywood Park stadium, though not to the extent sought by the Raiders.   It agreed to schedule one Super Bowl during the requested time period, to provide the Raiders with a certain number of Super Bowl tickets and to invest some money into the project.   It further agreed to provide additional assistance on the condition that a second NFL team be permitted to play at the stadium for several years.

Ultimately, the NFL memorialized its commitment at a meeting in May 1995, where it adopted 1995 Resolution FC-7 which, among other things, awarded two Super Bowls to the Hollywood Park stadium conditioned on two NFL teams playing there, and created a committee to negotiate with both the Raiders and Hollywood Park concerning a second NFL team.¹  The Raiders voted in favor of Resolution FC-7, though they remained opposed to the notion of a second team playing at the Hollywood Park stadium.

The committee created by Resolution FC-7 developed terms for the provision of a second NFL team that were inconsistent with the Raiders' goals and that the Raiders perceived as favoring the second team.   As a result, the Raiders-who had simultaneously been negotiating with Oakland officials to relocate the team there-entered into an agreement with Oakland in June 1995 to move to the renovated Oakland Coliseum.   The agreement included an up-front $64 million payment to the Raiders, immediately enhanced revenue streams and assurances from Oakland officials that personal seat licenses and game tickets were already sold out.

In July 1995, the NFL adopted 1995 Resolution G-7, approving the Raiders' relocation to Oakland and reaffirming that “the League's member clubs collectively own and will control any League franchise opportunity in the greater Los Angeles area․”

B. Pleadings and Trial

In March 1999, the Raiders filed a complaint for damages against the NFL and myriad other defendants, alleging eleven causes of action:  Breach of contract (first, seventh and eighth causes of action);  breach of the implied covenant of good faith and fair dealing (second, sixth and tenth causes of action);  unjust enrichment (third cause of action);  tortious interference with prospective business advantage (fourth cause of action);  breach of fiduciary duty (fifth cause of action);  declaratory relief (ninth cause of action);  and civil conspiracy (eleventh cause of action).²  The NFL, in turn, answered and filed a cross-complaint for declaratory relief against the Raiders.

In August 2000, the trial court granted the NFL's motions for summary adjudication on the fourth, seventh, eighth and tenth causes of action, and denied its summary adjudication motions on the third, fifth and sixth causes of action.   The court also granted summary adjudication motions brought by individual defendants Mr. Tagliabue and Mr. Austrian on the fourth through seventh, tenth and eleventh causes of action.

The trial began on March 13, 2001 and lasted approximately six weeks.   The jury heard testimony and received documentary evidence on five causes of action.   The first through third causes of action involved the Raiders' claim that, by moving to Oakland, they left the NFL with an “opportunity” to put another team in Los Angeles and that the NFL's constitution and bylaws implicitly required that the Raiders be compensated for providing the NFL with that opportunity (sometimes referred to as the “Los Angeles opportunity”).   The fifth and sixth causes of action addressed the NFL's failure to offer the Raiders more support with the development of the Hollywood Park stadium.

The jury deliberated for 15 days, though it began deliberations anew on the fifth day after one juror was excused due to a scheduling conflict.   During the deliberations, the jurors asked several specific questions about the evidence and instructions.   On May 21, 2001, the jury returned a 9 to 3 verdict in favor of the NFL.

Following a subsequent bench trial, the trial court entered its statement of decision on the ninth cause of action on June 3, 2002.   It denied the Raiders' request for a declaration that they were not required to share certain stadium revenues, because the NFL constitution and bylaws obligated the Raiders to share and the NFL had not modified or waived the sharing requirement.

On July 26, 2002, the trial court entered judgment on all matters tried before the jury and the court.

C. Posttrial Motions

Also on July 26, 2002, the Raiders filed their motion for judgment notwithstanding the verdict and motion for new trial.   The Raiders premised their new trial motion on grounds of juror misconduct, erroneous jury instructions, erroneous admission of evidence and insufficiency of evidence.

With respect to juror misconduct, the Raiders asserted that one juror, Mr. Abiog, harbored a bias against the Raiders and concealed that bias during voir dire.   They further asserted that another juror, attorney Ms. Hillman, had an unconcealed, preexisting bias against the Raiders, infected the deliberations with her own view of the law, and engaged in private deliberations with another juror.   They also suggested that a third juror, Ms. Paulino, had difficulty understanding English.

To demonstrate this misconduct, the Raiders submitted five juror declarations, as well as declarations of counsel averring that counsel were unaware of any jury misconduct occurring during the trial or deliberations.   According to the juror declarations, Mr. Abiog stated several times during deliberations that he hated the Raiders and their owner, Al Davis, and that he would never award any money to the Raiders or find for them in this case.   One juror confronted Mr. Abiog, telling him that it was improper for him to make such a statement and that he had a duty to disclose in his juror questionnaire his hostility toward the Raiders.   Mr. Abiog responded that the questionnaire had only asked what his favorite team was and did not ask whether he disliked the Raiders.   Two other jurors, including the jury foreman, told Mr. Abiog that concealing his bias against the Raiders could cause a mistrial.

With respect to Ms. Hillman, the declarations stated that she “exercised an unofficial leadership position,” dominated the deliberations and instructed the jurors on the law.   One example of Ms. Hillman's dominance repeated throughout the declarations was that she “told the jury that if they voted one way on one of the claims, they had to vote the same way on another claim, because ‘that was the law.’ ”   Another example cited in three declarations was that Ms. Hillman told the jury that there could be no fiduciary relationship between the NFL and the Raiders as a matter of law.   Ms. Hillman also wrote out statements of the law and taped them to the jury room walls;  her statements were not quotations from the jury instructions “but were her own words of what she claimed the law was.”   Some jurors also observed Ms. Hillman having private conversations with another juror during deliberations.

Finally, the declarations stated that Ms. Paulino, an alternate juror who replaced an excused juror during deliberations, appeared to have trouble understanding English.   According to the jurors:  “She would say to us, ‘I don't understand,’ and, several times, that she wanted to re-read material.”

Independent of any juror misconduct, the Raiders asserted that a new trial was warranted because the jury received several erroneous and prejudicial jury instructions.

The NFL opposed the motion for new trial and submitted eight juror declarations in support of its opposition, including one declaration from an alternate juror who did not participate in the deliberations, one declaration from a juror who was excused before the jury reached a verdict, and a supplemental declaration from one of the five jurors who submitted declarations in support of the motion.   It also filed evidentiary objections to the Raiders' juror declarations.   According to Mr. Abiog's declaration, at some point well into the deliberations, Mr. Abiog joked that he “hated the Raiders” because he had lost a small bet on them in Las Vegas.   Mr. Abiog declared that he harbored no bias against the Raiders or Mr. Davis.   In four other declarations, the jurors stated they could not recall Mr. Abiog stating that he hated the Raiders or Al Davis;  nor could they recall any other jurors responding to such a statement.   The declarations further stated that Mr. Abiog did not give the jurors any reason to believe that he harbored a preexisting bias against the Raiders.   The juror who submitted the supplemental declaration stated that he could not tell whether Mr. Abiog had formed an unfavorable impression of the Raiders before or during trial.

Ms. Hillman submitted a declaration in which she denied dominating the deliberations;  stated that she told her fellow jurors to follow the instructions given by the court and did not tell the jury what the law was;  and explained that she wrote out the jury instructions verbatim, with the exception of an inadvertent error where she wrote “fiduciary duty” instead of “fiduciary relationship.”   She denied expressing legal opinions as to the validity of any claim or the effect of any evidence.   The other juror declarations stated that Ms. Hillman did not dominate the deliberations.   To the contrary, the jurors declared that Ms. Hillman repeatedly stated that the jury's decision must be based on the instructions given and that any questions about the instructions should be directed to the judge.   The declarations further stated that Ms. Hillman helped write out the jury instructions verbatim on butcher paper, and that many jurors also wrote on the paper by summarizing the evidence helpful to particular instructions.

The NFL's declarations also stated that Ms. Paulino fully participated in the deliberations;  on the occasions when she asked for help, she did so because she was unfamiliar with points that had been addressed in the deliberations prior to her arrival.

The NFL also responded to the claim that a new trial was warranted because of erroneous jury instructions, arguing that the evidence supported giving the challenged instructions, that the supporting evidence obviated the need to plead defenses relating to the instructions, and that the instructions correctly stated the law.

The Raiders filed their reply, together with six reply declarations, on September 5, 2002.   According to those declarations-including one from Ms. Paulino in well-written English-Mr.   Abiog's demeanor indicated that his comment about the Raiders was not a joke and Ms. Hillman repeatedly instructed the jury on her knowledge of the law.   The NFL moved to strike the declarations on the ground they were untimely filed and, alternatively, objected to the declarations' contents.

On September 11, 2002, the trial court heard argument on the motions for new trial and judgment notwithstanding the verdict, and took the matters under submission.   On September 23, 2002, the court issued a minute order granting the motion for new trial and denying the motion for judgment notwithstanding the verdict.   In ruling on the motion for new trial, the trial court stated only:  “The motion for new trial is granted.   The Court finds that the objectively ascertainable acts of Juror misconduct were prejudicial to the Oakland Raiders' right to a fair trial.”   With respect to the other grounds raised by the motion, the court further stated:  “While some of the objections in the motion for new trial premised on erroneous and/or prejudicial jury instructions raise serious questions concerning their use, and having given the Court some pause, having granted the motion for new trial on other grounds, we have not reached these issues.”   The minute order did not rule on any of the evidentiary objections.

The NFL appealed from the order granting a new trial and the Raiders appealed from the judgment.

DISCUSSION

A. The NFL's Appeal.

The NFL's appeal challenges solely the trial court's grant of a new trial.   Generally, we review an order granting a new trial for abuse of discretion.   (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412, 93 Cal.Rptr.2d 60, 993 P.2d 388;  Bell v. State of California (1998) 63 Cal.App.4th 919, 930-931, 74 Cal.Rptr.2d 541.)   Here, however, the NFL not only challenges the result of the trial court's order, but also contends that the order itself is deficient for failing to specify the reasons for granting a new trial.  (See Code Civ. Proc., § 657.) ³  According to the NFL, this deficiency requires us to apply a less deferential standard of review in evaluating the trial court's decision.

We conclude that the order failed to comply with section 657 because it did not adequately specify “the court's reason or reasons for granting the new trial upon each ground stated.” (§ 657.) We further find that this deficiency renders the order defective and requires us to independently review whether a new trial was warranted on the ground of juror misconduct or any other ground raised by the motion.⁴  (Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544, 550, 84 Cal.Rptr.2d 51.)   On the basis of that review, we must reverse the order granting a new trial, as neither juror misconduct nor instructional error materially affected the substantial rights of the Raiders.

1. The New Trial Order is Defective Because it Does Not Specify the Court's Reasons for Granting a New Trial.

 A trial court may grant a new trial only by following the applicable statutory procedures.  (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899, 215 Cal.Rptr. 679, 701 P.2d 826.)  Section 657 governs the manner of making and entering an order granting a new trial and provides in relevant 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 court's specification of reasons need not be contained within the order granting the new trial.  Section 657 further provides:  “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.”

 Here, the order granting a new trial specified “Juror misconduct” as the ground upon which it was based.   This specification was adequate, as it reasonably approximated the language of section 657, permitting a new trial on the ground of “[m]isconduct of the jury.”  (See Treber v. Superior Court (1968) 68 Cal.2d 128, 131, 65 Cal.Rptr. 330, 436 P.2d 330 [new trial order using statutory language adequately stated ground];  Mercer v. Perez (1968) 68 Cal.2d 104, 111, 65 Cal.Rptr. 315, 436 P.2d 315 [new trial order's specification of the ground on which it is based should use statutory language or a reasonable approximation thereof].)

 In the same sentence in which the trial court set forth the ground upon which its grant of the new trial was based, the court also set forth its “reason” for the grant:  “The Court finds that the objectively ascertainable acts of Juror misconduct were prejudicial to the Oakland Raiders' right to a fair trial.”   We conclude that this statement fails adequately to specify the trial court's reason for granting the new trial motion.

 “[S]ection 657 places on the trial courts a clear and unmistakable duty to furnish a timely specification of both their grounds and their reasons for granting a new trial․” (Treber v. Superior Court, supra, 68 Cal.2d at p. 136, 65 Cal.Rptr. 330, 436 P.2d 330.)   Requiring a specification of reasons serves the dual purpose of “encouraging careful deliberation by the trial court before ruling on a motion for new trial, and of making a record sufficiently precise to permit meaningful appellate review.”   (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 363, 90 Cal.Rptr. 592, 475 P.2d 864, citing Mercer v. Perez, supra, 68 Cal.2d at p. 113, 65 Cal.Rptr. 315, 436 P.2d 315.)   A specification of reasons satisfies these purposes “if the judge who grants a new trial furnishes a concise but clear statement of the reasons why he finds one or more of the grounds of the motion to be applicable to the case before him.”  (Mercer v. Perez, supra, at p. 115, 65 Cal.Rptr. 315, 436 P.2d 315;  see also Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 136, 94 Cal.Rptr. 702 [trial court granting a new trial should consider “ ‘whether his proposed specification of reasons will fairly serve the legislative purposes elucidated in Mercer ’ ”].)

 As Mercer further explained, “[n]o hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.”  (Mercer v. Perez, supra, 68 Cal.2d at p. 115, 65 Cal.Rptr. 315, 436 P.2d 315.)   But despite the absence of any rule governing the specification of reasons' content, courts have articulated one clear guideline, explaining that a reason must do more than simply restate the ground on which the order granting the new trial is based.  (Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d at pp. 366-367, 90 Cal.Rptr. 592, 475 P.2d 864;  Mercer v. Perez, supra, at p. 112, 65 Cal.Rptr. 315, 436 P.2d 315;  Van Zee v. Bayview Hardware Store (1968) 268 Cal.App.2d 351, 359, 74 Cal.Rptr. 21.)   While this guideline had been applied principally in cases involving the grant of a new trial on the ground of insufficiency of evidence (see, e.g., Scala v. Jerry Witt & Sons, Inc., supra, at pp. 363-364, 90 Cal.Rptr. 592, 475 P.2d 864), it applies with equal force to new trial orders based on any statutorily authorized ground. For example, in Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 107 Cal.Rptr. 45, 507 P.2d 653, the court reversed an order granting a new trial on the ground of excessive damages.   The order contained a specification of reasons stating “that the ‘verdict is excessive, that it is not sustained by the evidence’ ”;  the court found that these reasons did “not go beyond a statement of the ground for the court's decision.”  (Id. at pp. 61-62, 107 Cal.Rptr. 45, 507 P.2d 653;  accord, Treber v. Superior Court, supra, 68 Cal.2d at p. 131, 65 Cal.Rptr. 330, 436 P.2d 330 [holding that where new trial is granted on the ground of “errors in law,” § 657 requires the trial court “to briefly specify the errors that are the basis for his ruling”];  Thompson v. Friendly Hills Regional Medical Center, supra, 71 Cal.App.4th at pp. 549-550, 84 Cal.Rptr.2d 51 [holding that adequate specification of reasons is required where new trial is granted on the ground of juror misconduct];  see also Mercer v. Perez, supra, at p. 115, 65 Cal.Rptr. 315, 436 P.2d 315 [noting by way of example that “if the ground is ‘misconduct of the jury’ through their resorting to chance, the judge should specify this improper method of deliberation as the basis of his action”].)

 Evaluated under these principles, the trial court's specification of reasons for granting the motion is inadequate.   Deeming the “objectively ascertainable acts” of juror misconduct prejudicial does nothing more than restate the elements necessary to grant a new trial on the ground of juror misconduct.   Under Evidence Code section 1150, a verdict may be impeached by “proof of overt acts ․ objectively ascertainable,” i.e., those that are “ ‘open to sight, hearing, and the other senses and thus subject to corroboration.’ ”  (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 413, 185 Cal.Rptr. 654, 650 P.2d 1171;  Jones v. Sieve (1988) 203 Cal.App.3d 359, 366, 249 Cal.Rptr. 821.)   By the same token, the trial court may grant a motion for a new trial on the ground of juror misconduct only where that misconduct prejudiced the losing party's right to a fair trial. (§ 657;  Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 507, 90 Cal.Rptr.2d 502.)   Thus, specifying that the reasons for granting the new trial motion were prejudicial, objectively ascertainable acts of misconduct “borders on the tautological” and “simply reiterates the ground of the ruling itself.”  (Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d at p. 367, 90 Cal.Rptr. 592, 475 P.2d 864.)

 The specification of reasons likewise fails to satisfy either of the two purposes of the requirement.   On its face, the order does not indicate that it is the “product of a mature and careful reflection on the part of the judge.”  (Mercer v. Perez, supra, 68 Cal.2d at p. 113, 65 Cal.Rptr. 315, 436 P.2d 315.)   The mere fact that the order was issued 12 days after the hearing on the new trial motion is not indicative of the type of judicial deliberation sought to be promoted by the specification of reasons requirement.  (See ibid.)   To the contrary, the issuance of a one-sentence order after that period of time makes it appear as if the decision to grant a new trial was “hasty or ill-considered.”  (Ibid.)

 Nor is the specification of reasons sufficiently precise for the purpose of meaningful appellate review.  (Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d at p. 363, 90 Cal.Rptr. 592, 475 P.2d 864;  see also Johns v. City of Los Angeles (1978) 78 Cal.App.3d 983, 987, 144 Cal.Rptr. 629.)   As the Scala court explained, “the need ‘to make the right to appeal from the order more meaningful’ [citation] is perhaps the more useful yardstick to an appellate court for measuring the adequacy of the specification.”  (Scala v. Jerry Witt & Sons, Inc., supra, at p. 366, 90 Cal.Rptr. 592, 475 P.2d 864.)   The specification of reasons does not satisfy this purpose.   The order's references to “objectively ascertainable acts” could refer to any two or more of the several acts of misconduct raised by the new trial motion, including Mr. Abiog's remark about the Raiders and their owner as demonstrating a concealed bias;  Ms. Hillman's telling the jury they had to vote the same way on related claims;  Ms. Hillman's telling the jury that a fiduciary relationship between the parties could not exist as a matter of law;  Ms. Hillman's writing her own version of the jury instructions on butcher paper taped to the wall;  or Ms. Hillman's having private deliberations with another juror.   We cannot agree with the Raiders that the reference to “acts” necessarily means that the court found that the conduct of both Mr. Abiog and Ms. Hillman prejudiced them.   In particular, the declarations asserted that Ms. Hillman committed multiple acts of misconduct.   Without a more precise specification of reasons, we are left to speculate about the trial court's bases for granting a new trial.

These circumstances are no different than those in McLaughlin v. City Etc. of San Francisco (1968) 264 Cal.App.2d 310, 70 Cal.Rptr. 782.   There, the specification of reasons provided that the new trial granted on the ground of insufficient evidence to support an $8,000 verdict was “ ‘based upon the failure of the Plaintiff to prove by a preponderance of the evidence reasonable total damages, both general and special ․ [in excess of $5,117.50] ․’ ” (Id. at p. 315, 70 Cal.Rptr. 782, italics omitted.)   Though the appellate court could have speculated as to how the trial court reached its conclusion that there was insufficient proof of approximately $3,000 in damages, it declined to do so, explaining that the specification of reasons requirement “was designed to put an end to speculation of this nature, and we are not permitted to infer the trial court's reasons where we have not been told what they are.”  (Id. at p. 317, 70 Cal.Rptr. 782, citing Mercer v. Perez, supra, 68 Cal.2d at p. 117, 65 Cal.Rptr. 315, 436 P.2d 315.)

 In sum, the specification of reasons merely restates the ground on which the new trial order was based.   Moreover, it neither indicates it was the product of careful deliberation nor provides a basis for meaningful appellate review.  “The failure to supply an adequate specification of reasons renders the new trial order defective, but not void.”  (Thompson v. Friendly Hills Regional Medical Center, supra, 71 Cal.App.4th at p. 550, 84 Cal.Rptr.2d 51.)   Where a new trial order is defective, “[t]he 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, supra, 68 Cal.2d at p. 134, 65 Cal.Rptr. 330, 436 P.2d 330.)   But before we address the grounds raised by the motion, we turn first to the appropriate standard of review.

2. Because the New Trial Order Fails to Provide an Adequate Specification of Reasons, We Must Independently Review the Grounds Advanced in the New Trial Motion.

 As we acknowledged earlier, when a new trial order complies with the requirements of section 657, we review that order for an abuse of discretion.  (Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412, 93 Cal.Rptr.2d 60, 993 P.2d 388.)   At the other end of the spectrum, a defective new trial order-i.e., one that contains an inadequate specification of reasons-premised only on the ground of insufficient evidence or excessive or inadequate damages must be reversed as a matter of law. (§ 657;  Mercer v. Perez, supra, 68 Cal.2d at p. 119, 65 Cal.Rptr. 315, 436 P.2d 315.)   The situation here, involving a defective new trial order premised on jury misconduct, lies somewhere in the middle.   We conclude that independent review is an appropriate middle ground by which to determine whether there is any basis to affirm the new trial order in this case.

Our conclusion is based in large part on Thompson v. Friendly Hills Regional Medical Center, supra, 71 Cal.App.4th 544, 84 Cal.Rptr.2d 51, which also involved an appeal from a new trial order granted on the ground of jury misconduct that lacked an adequate specification of reasons.   There, the court stated:  “We independently review all the grounds advanced for the new trial motion and will sustain the order ‘if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons․' (Code Civ. Proc., § 657.)   That review includes searching the record, with the assistance of the party for whom the new trial was granted, ‘to find support for any other ground stated in the motion․’ (Mercer v. Perez, supra, 68 Cal.2d at p. 119, [65 Cal.Rptr. 315, 436 P.2d 315].)   While we give ‘considerable weight to the expressed opinion of the trial court’ (Malkasian v. Irwin (1964) 61 Cal.2d 738, 749 [40 Cal.Rptr. 78, 394 P.2d 822] ), we nonetheless exercise our own judgment, following our review of the record, to determine whether a new trial is legally required.”   (Thompson v. Friendly Hills Regional Medical Center, supra, at p. 550, 84 Cal.Rptr.2d 51, fn. omitted.)   In a footnote, the Thompson court distinguished the situation “where there is a specification of reasons for a new trial order based on jury misconduct,” explaining that such an order would be reviewed only for an abuse of discretion.  (Id. at p. 550, 84 Cal.Rptr.2d 51, fn. 6.)

Though earlier decisions did not articulate the appropriate standard of review as clearly as the Thompson court did, it is apparent that courts repeatedly have exercised their independent judgment to review defective new trial orders.  (E.g., Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 905, 215 Cal.Rptr. 679, 701 P.2d 826 [“If an order granting a new trial does not effectively state the ground or the reasons, ․ an order granting the motion will be affirmed if any such other ground legally requires a new trial”];  Treber v. Superior Court, supra, 68 Cal.2d at p. 136, 65 Cal.Rptr. 330, 436 P.2d 330 [“the scope of review in such circumstances [where there is an inadequate specification of reasons] will encompass the entire record”].)   As Thompson held and earlier decisions implied, independent review is essential to comply with the requirement of section 657 that a new trial order should be affirmed on any ground raised by the motion, “whether or not specified in the order or specification of reasons․” (§ 657.)   In addition to allowing the appellate court to address each ground raised by the new trial motion, independent review permits the appellate court to conduct a meaningful assessment of each ground in the absence of any guidance from the trial court as to its reasoning.

We do not agree with the NFL that a standard of review even less deferential than independent review is warranted under these circumstances.   The NFL suggests that the trial court's failure to provide an adequate specification of reasons compels the Raiders, as the party moving for a new trial, to demonstrate on appeal that a new trial is required as a matter of law.   To formulate this standard, the NFL relies on authority providing “ ‘[w]here no grounds or reasons are specified in the order the burden is on the movant to advance any grounds upon which the order should be affirmed, and a record and argument to support it.’ ”  (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at pp. 900, 906, 215 Cal.Rptr. 679, 701 P.2d 826.)   But this authority must be taken literally-that is, courts decline to review a ground not reached by the trial court where the moving party fails to offer any type of record on appeal that would permit the appellate court to affirm the order on that ground.

To illustrate, in Gaskill v. Pacific Hosp. of Long Beach (1969) 272 Cal.App.2d 128, 77 Cal.Rptr. 373, the trial court granted a new trial motion on several grounds, but provided no specification of reasons.   The appellant challenged the order for its failure to meet the requirements of section 657, providing only a clerk's transcript and no other record of the proceedings.  (Gaskill, supra, at p. 129, 77 Cal.Rptr. 373.)   Reversing the order, the court explained the respondent's burden when a defective new trial order is challenged:  “We hold that when the court states a ground or grounds for ordering a new trial but states no reason or a wholly insufficient reason for adopting the ground, the order must fail of validity unless the record on appeal shows the existence of some valid ground for a new trial which is stated in the motion.   We also hold that in the present case a proper application of amended section 657 places the burden upon the respondents to furnish a reporter's transcript and that without a transcript we are forced to the conclusion that no valid ground for the order existed.”  (Gaskill, supra, at p. 133, 77 Cal.Rptr. 373;  see also Tagney v. Hoy (1968) 260 Cal.App.2d 372, 376-377, 67 Cal.Rptr. 261 [same].)   We decline to transmute a respondent's evidentiary burden into a burden of proof on appeal.   The Raiders have provided an ample record and argument that will enable us to address the new trial grounds raised by the motion.

On the other hand, we do not agree with the Raiders that a standard more deferential than independent review should be applied to evaluate a defective new trial order.   Applying an abuse of discretion standard of review to both new trial orders containing and lacking an adequate specification of reasons suggests that there should be no consequence for a trial court's failure to provide a specification of reasons and would effectively render that requirement meaningless.   Though we acknowledge that comments in both Treber v. Superior Court, supra, 68 Cal.2d 128, 65 Cal.Rptr. 330, 436 P.2d 330 and Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 26 Cal.Rptr.2d 446 suggest that an abuse of discretion standard of review applies even when the order fails to provide a specification of reasons, we are not persuaded by this authority.⁵

 In Treber v. Superior Court, supra, the court had no occasion to apply the abuse of discretion standard, as it denied a petition for writ of mandate to compel the trial court to vacate its new trial order and issued an alternative writ to construe the specification of reasons requirement in section 657.  (68 Cal.2d at pp. 130-131, 65 Cal.Rptr. 330, 436 P.2d 330.)   Declaring that a specification of reasons need not include an explanation of why the trial court found an error prejudicial, the court observed that the factual question of prejudice must be reviewed for an abuse of discretion and that, therefore, “whether the particular explanation offered by the trial court supports the finding of prejudice” would not be determinative of the prejudice issue.  (Id. at pp. 131-132, 65 Cal.Rptr. 330, 436 P.2d 330.)   The court thus discussed the abuse of discretion standard of review in the context of a hypothetical order containing a statement of reasons.   We are not bound by dicta in a higher court opinion.  (E.g., County of San Bernardino v. Superior Court (1994) 30 Cal.App.4th 378, 388, 35 Cal.Rptr.2d 760.)

The court in Hand Electronics, Inc. v. Snowline Joint Unified School Dist., supra, affirmed a defective new trial order-one that failed to specify grounds-on the ground of erroneous jury instructions.  (21 Cal.App.4th at pp. 867-868, 26 Cal.Rptr.2d 446.)   In doing so, the court recited the abuse of discretion standard of review.  (Id. at p. 871, 26 Cal.Rptr.2d 446.)   However, the cases cited as authority for applying that standard all involved new trial orders containing adequate specifications of reasons.⁶  (Ibid.;   compare Thompson v. Friendly Hills Regional Medical Center, supra, 71 Cal.App.4th at p. 550, fn. 6, 84 Cal.Rptr.2d 51 [applying independent standard of review to defective new trial order and expressly differentiating a case involving a new trial order containing an adequate specification of reasons].)   Indeed, Hand Electronics illustrates the difficulty of applying an abuse of discretion standard to an order lacking a specification of reasons.   There, following a detailed examination of the jury instruction at issue, the court stated:  “Here, we find that the challenged instruction was ambiguous and likely misled the jury into awarding improper damages based on the replacement cost of the equipment.   We find no abuse of discretion in the trial court's order granting a new trial on the basis of error in law.”  (21 Cal.App.4th at p. 871, 26 Cal.Rptr.2d 446.)   In essence, the Hand Electronics court appears to have conducted an independent review of the challenged instruction and thereafter found that there was no abuse of discretion because the trial court's conclusion mirrored its own.

Consistent with the reasoning of Thompson v. Friendly Hills Regional Medical Center, supra, 71 Cal.App.4th 544, 84 Cal.Rptr.2d 51, we conclude that independent review is the appropriate standard of review for a new trial order containing an inadequate specification of reasons.⁷

3. The New Trial Order Cannot be Affirmed on the Ground of Juror Misconduct. **

DISPOSITION

The order granting a new trial is reversed.   The trial court is directed to enter judgment in accordance with the jury verdict.   In all other respects, the judgment is affirmed.   The NFL is awarded its costs on appeal.

FOOTNOTES

1.   The NFL makes its decisions by way of resolutions voted on by the membership.

2.   The parties subsequently stipulated to dismiss all NFL teams and their holding companies named as defendants.   They also stipulated to dismiss the eleventh cause of action for civil conspiracy.

3.   Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.

4.   Though the Raiders asserted that a new trial was required on the ground of insufficiency of the evidence, we cannot review that ground because it was not stated in the order granting the new trial and, therefore, we cannot affirm the order on that basis.  (See § 657 [“the order [‘granting a new trial’] shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, ․ unless such ground is stated in the order granting the motion”].)

5.   The Raiders also rely on Malkasian v. Irwin, supra, 61 Cal.2d 738, 747-749, 40 Cal.Rptr. 78, 394 P.2d 822, where the court affirmed a new trial order that failed to specify grounds so as not to disturb the trial court's exercise of discretion.   But the Malkasian decision construed the prior version of section 657, which did not contain the specification of reasons requirement.  (See Malkasian at p. 744, 40 Cal.Rptr. 78, 394 P.2d 822;  see also Cal. Stats.1939, ch. 713, p. 2234.)   Therefore, Malkasian is of little assistance.

6.   See Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 604, 136 Cal.Rptr. 787;  Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 345, 126 Cal.Rptr. 731;  Christian v. Bolls (1970) 7 Cal.App.3d 408, 415, 86 Cal.Rptr. 545.

7.   We are mindful of the Supreme Court's recent decision in People v. Ault (2004) 33 Cal.4th 1250, 1271-1272, 17 Cal.Rptr.3d 302, 95 P.3d 523, which held that an order granting a new trial on the ground of prejudicial juror misconduct must be reviewed for an abuse of discretion, disapproving several cases that had held the question of prejudice should be independently reviewed.   In Ault, however, there was no question about the sufficiency of the trial court's order granting the new trial, and thus the Supreme Court had no occasion to address the appropriate standard of review where an order lacks an adequate specification of reasons.  (See id. at p. 1270, 17 Cal.Rptr.3d 302, 95 P.3d 523 [trial court “rendered detailed factual findings leading to its determination that misconduct had occurred, and carefully analyzed the issue of prejudice”].)

FOOTNOTE.   See footnote *, ante.

DOI TODD, J.

We concur:  BOREN, P.J., and NOTT, J.