Maroney v. Iacobsohn

Filed 1/27/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

KEELY MARONEY, B249890

Plaintiff and Appellant (Los Angeles County
Super. Ct. No. EC052886)
v.

ASAF IACOBSOHN et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los Angeles County, William
D. Stewart, Judge. Affirmed.

Fonda & Fraser, LLP, Daniel K. Dik and Hollis O. Dyer for Plaintiff and
Appellant.

Shaver, Korff & Castronovo LLP, Tod M. Castronovo and Edie L. Brookes for
Defendants and Appellants.
_____________________
 INTRODUCTION
This appeal concerns the jurisdictional deadlines for noticing and ruling on a
motion for new trial under Code of Civil Procedure1 sections 659 and 660. Specifically,
we must decide whether service of notice of entry of judgment by the party moving for
new trial triggers the statutes‟ jurisdictional deadlines. We hold that it does not.
The appeal arises from a rear end automobile accident; however, the issues
presented are entirely procedural. The case was tried to a jury, which returned a verdict
in favor plaintiff Keely Maroney (Plaintiff), apportioning 40 percent of the fault to
Plaintiff and 60 percent to defendant Asaf Iacobsohn (Defendant).2 Following entry of
judgment, Defendant moved to recover costs based on Plaintiff‟s rejection of an offer to
compromise pursuant to section 998. Plaintiff responded with a motion to tax costs,
which included a file-stamped copy of the judgment as an exhibit. Twenty-two days
later, Plaintiff filed a notice of intention to move for new trial. The notice specified
inadequate damages, insufficiency of the evidence, and error in law as grounds for relief.
Defendant opposed the motion on the merits, but also argued Plaintiff‟s notice of
intention had been filed too late and the trial court‟s jurisdiction to rule on the new trial
motion had lapsed. In that regard, Defendant maintained the jurisdictional time period
began to run when Plaintiff served Defendant with the file-stamped copy of the judgment
as an exhibit to her motion to tax costs.
Eighty-two days after Plaintiff served her motion to tax costs, but only 60 days
after Plaintiff filed her notice of intention to move for new trial, the trial court held a
hearing on the new trial motion. The court expressed its agreement with Defendant that
its jurisdiction to rule on the motion had expired. Nevertheless, the court stated it would
make “a conditional order granting [the] motion for new trial,” conditioned on an

1
Subsequent statutory references are to the Code of Civil Procedure.
2
The judgment provides that defendants Pac West Corporation and M.Y. Iacobsohn
are jointly and severally liable with Asaf Iacobsohn for certain portions of Plaintiff‟s
damages award. For ease of reference, we will refer to all defendants as “Defendant.”

2
appellate court ruling its jurisdiction had not lapsed. The court filed a minute order the
same day “conditionally grant[ing]” Plaintiff‟s new trial motion.
Plaintiff purports to appeal from the order conditionally granting her new trial
motion. Defendant also appeals from the order and has filed a motion to dismiss
Plaintiff‟s appeal on the ground she lacks standing to challenge an order granting her
motion. Plaintiff contends she has appellate standing because the conditional grant
“effectively denied the motion for new trial” inasmuch as the trial court, “finding that it
had lost jurisdiction,” determined it could not order a new trial without appellate
authorization. (Underscore and italics omitted.) We must therefore decide whether the
trial court had jurisdiction to rule on the motion and, if so, what the legal effect of the
conditional order is.
We conclude the trial court had jurisdiction to rule, but its order conditionally
granting a new trial was a nullity with no legal effect. It is settled that the right to a new
trial is purely statutory and the power of the trial court to grant a new trial may be
exercised only by following the statutory procedure. As we shall explain, the trial court
had jurisdiction to rule on the new trial motion, because notice of entry of judgment was
never served “on the moving party” as required by section 660. However, because there
is no statutory authorization for the court to condition the grant of a new trial motion on
subsequent appellate review of the jurisdictional issue, the order appealed from is a legal
nullity that we can neither reverse nor affirm. Further, because the court did not file an
effective order ruling on the new trial motion before its jurisdiction expired, the motion
was denied by operation of law. Though we may review a denial by operation of law on
an appeal from the judgment, Plaintiff has not supplied an adequate record to establish
grounds for reversal. Accordingly, the judgment is affirmed and Defendant‟s appeal is
dismissed.

3
 FACTS AND PROCEDURAL HISTORY
The underlying automobile accident occurred after Plaintiff made a right turn on a
red light and “double parked” in a traffic lane where she waited for her passenger to use
an automated teller machine. Defendant testified that he did not see Plaintiff turn into his
lane, nor did he see her vehicle‟s warning lights until it was too late to avoid a collision.
Defendant admitted to some fault for the accident, and the case proceeded to trial
principally on the issue of Plaintiff‟s compensable damages.
Prior to trial, Defendant served Plaintiff with a section 998 offer to compromise
for $200,000, with each side to bear its own costs. Plaintiff did not accept the offer.
The jury returned a verdict for Plaintiff, finding her compensable damages totaled
$73,450 for past and future economic and noneconomic injuries. With respect to
comparative fault, the jury determined Plaintiff‟s negligence was a substantial factor in
causing her injuries, and apportioned 40 percent of the fault to Plaintiff and 60 percent to
Defendant, resulting in a judgment for Plaintiff in the amount of $44,070. On February
25, 2013, the trial court entered judgment on the jury‟s verdict. The clerk of the court did
not serve notice of entry of judgment on the parties.
On March 5, 2013, Defendant filed a memorandum of costs seeking $39,996.46
pursuant to section 998.
On March 21, 2013, Plaintiff filed a motion to tax costs. Plaintiff supported the
motion with the declaration of her counsel, which included a file-stamped copy of the
judgment attached as an exhibit. Plaintiff served the motion on Defendant the same day.
On April 12, 2013—22 days after serving a file-stamped copy of the judgment
with her motion to tax costs—Plaintiff filed a notice of intention to move for new trial.
The notice specified inadequate damages, insufficiency of the evidence to justify the
verdict, and error in law as grounds for the new trial motion. In her subsequent
memorandum of points and authorities, Plaintiff argued damages were inadequate
because the evidence showed she incurred medical expenses totaling $275,930 as a result
of the accident, the evidence was insufficient to find her comparatively negligent, and the
trial court erred by giving a comparative negligence jury instruction.

4
 On May 24, 2013, Defendant filed his opposition to Plaintiff‟s new trial motion.
The opposition focused on the merits of Plaintiff‟s asserted grounds for new trial, arguing
the credibility of Plaintiff‟s medical evidence had been severely impeached and the
evidence of Plaintiff double parking in a traffic lane supported the comparative fault
instruction and finding.
On June 7, 2013, the trial court held an initial hearing on the new trial motion.
The court announced its tentative ruling was to grant the motion on the ground of
insufficient evidence with respect to the jury‟s allocation of 40 percent comparative fault
to Plaintiff. However, with respect to the comparative fault instruction, the court clarified
that, in its view, the evidence of Plaintiff “double parking” was sufficient to submit the
question to the jury.
In the course of the hearing, the court inquired whether the parties gave notice of
entry of judgment. Plaintiff‟s counsel responded that he “believe[d]” his office gave
notice, prompting Defendant‟s counsel to suggest the court‟s jurisdiction to rule on the
motion might have expired. Neither party could confirm the date notice was given;
accordingly, the court adjourned the hearing to investigate the jurisdictional issue.
On June 11, 2013—82 days after Plaintiff served a file-stamped copy of the
judgment with her motion to tax costs, but only 60 days after she filed her notice of
intention to move for new trial—the court held the continued hearing on the new trial
motion. Relying principally on Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265
(Palmer), Defendant argued Plaintiff‟s service of a file-stamped copy of the judgment
with her motion to tax costs constituted written notice of entry of judgment sufficient to
trigger the 60-day jurisdictional period for ruling on her new trial motion.3 Because

3
In Palmer, our Supreme Court confirmed that “[t]he written notice of entry of
judgment served on the party who moves for a new trial need not, for the purposes of
[sections 659 and 660], be a separate document entitled „notice of entry of judgment.‟ ”
(Palmer, supra, 30 Cal.4th at p. 1277.) Rather, the court reaffirmed that “no particular
form of notice is required, and that in counties that do not maintain a judgment book a
file-stamped copy of the judgment suffices as „written notice‟ ” for the purpose of
commencing the jurisdictional time periods under these statutes. (Ibid.)

5
82 days had passed since Plaintiff served such notice, Defendant maintained the court‟s
jurisdiction to rule had lapsed.
After reviewing Palmer, the trial court stated it “agree[d] with [the] defense that
the court‟s power has expired.” Nevertheless, the court reasoned that what it “should do
is make a conditional order granting a motion for new trial in the event that a superior
[appellate] court should find that . . . the jurisdiction of time [sic] has not expired.” The
trial court clarified that the conditional nature of its ruling meant that, until an appellate
court found it had jurisdiction to rule, “there is no new trial.” Plaintiff‟s counsel did not
object to the condition, and acknowledged Plaintiff would bear the burden of challenging
the ruling on appeal. Later that day, the court filed a minute order “conditionally
grant[ing]” Plaintiff‟s new trial motion “on the grounds as fully set forth in the notes of
the Official Court Reporter . . . .”
On July 2, 2013, Plaintiff filed a notice of appeal on Judicial Council form
APP-002. With respect to the order appealed from, Plaintiff checked the box for “[a]n
order or judgment under Code of Civil Procedure section 904.1(a)(3)-(13)” and the box
for “Other,” after which she provided the following description: “Order on motion for
new trial, provisionally granting new trial on all issues, but finding that [the] Superior
Court had lost jurisdiction, Code of Civil Procedure section 659.”
On July 25, 2013, Defendant filed a notice of appeal from the “order granting
plaintiff‟s motion for new trial entered on June 11, 2013.”
On November 4, 2013, Defendant filed a motion to dismiss Plaintiff‟s appeal. The
motion argued the conditional order on Plaintiff‟s new trial motion could be interpreted
as either a grant or denial of a new trial, but regardless of the construction, Plaintiff‟s
appeal should be dismissed. That is, Defendant argued, if the order is construed as a
grant of new trial, then Plaintiff is not an aggrieved party with standing to appeal. (See
§ 902.) Conversely, if the order is deemed a denial of the new trial motion, then,
Defendant argued, appellate jurisdiction is lacking, because a denial is not an appealable
order. (See § 904.1, subd. (a).)

6
 In opposition to the motion, Plaintiff argued she had standing because the
conditional order “effectively denied the motion for new trial” inasmuch as the trial court
confirmed it would not order a new trial without subsequent appellate review of the
jurisdictional issue. (Underscore and italics omitted.) Plaintiff also argued her notice of
appeal could be liberally construed as an appeal from the underlying judgment.
We deferred ruling on the motion to dismiss pending briefing and oral argument
on the merits. For the reasons expressed in this opinion, we now deny Defendant‟s
motion to dismiss and will treat Plaintiff‟s appeal as an appeal from the judgment.
DISCUSSION
1. Service by a Party of Notice of Entry of Judgment Does Not Commence the
Time for Ruling on a New Trial Motion Unless the Moving Party Is Served
In this case, we must decide under the applicable statutes whether the trial court
had jurisdiction to rule on Plaintiff‟s new trial motion when the court entered its
conditional order. This question turns on whether the jurisdictional clock started to run
upon Plaintiff‟s service of the file-stamped copy of the judgment with her motion to tax
costs, or upon Plaintiff‟s filing of her notice of intention to move for new trial. If it is the
former, then Plaintiff‟s notice of intention to move for new trial—filed 22 days after
Plaintiff served the file-stamped copy of the judgment—was too late to confer
jurisdiction on the trial court. (See § 659, subd. (a)(2).) If it is the latter, and the notice
of intention was filed on time, then the court had jurisdiction to rule when it entered its
conditional order 60 days later.4 (See § 660.) “The issue as to what triggers the

4
Indeed, this issue implicates our own jurisdiction to entertain the appeal, for if the
jurisdictional clock started to run with Plaintiff‟s service of the file-stamped copy of the
judgment, then her notice of intention to move for new trial was untimely, as was her
notice of appeal. Ordinarily, if the superior court clerk has not served notice of entry of
judgment, a notice of appeal must be filed on or before the earliest of “(B) 60 days after
the party filing the notice of appeal serves or is served by a party with a document
entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment,
accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.”
(Cal. Rules of Court, rule 8.104(a)(1), italics added.) If, however, a party serves and files
a valid notice of intention to move for a new trial, then the time to appeal from the

7
commencement of time within which to rule on a motion for new trial involves a pure
question of statutory interpretation, which we review de novo.” (People ex rel. Dept. of
Transportation v. Cherry Highland Properties (1999) 76 Cal.App.4th 257, 260 (Cherry
Highland).)
The resolution of this issue is controlled by the express language of sections 659
and 660. In relevant part, section 659 requires the party intending to move for a new trial
to file a notice of intention within the earlier of “15 days of the date of . . . service upon
him or her by any party of written notice of entry of judgment, or . . . 180 days after the
entry of judgment.” (Italics added.) Similarly, section 660 provides in pertinent part:
“[T]he power of the court to rule on a motion for a new trial shall expire 60 days from
and after service on the moving party by any party of written notice of the entry of the
judgment, . . . or if such notice has not theretofore been given, then 60 days after filing of
the first notice of intention to move for a new trial.”5 (Italics added.)

judgment is extended until the earliest of “(A) 30 days after the superior court clerk or a
party serves an order denying the motion or a notice of entry of that order; [¶] (B) 30 days
after denial of the motion by operation of law; or [¶] (C) 180 days after entry of
judgment.” (Cal. Rules of Court, rule 8.108(b)(1).) Thus, if Plaintiff‟s service of the file-
stamped copy of the judgment started the 15-day time limit within which to file a notice
of intention to move for new trial (§ 659, subd. (a)(2)), then her notice of intention—filed
22 days later—was untimely, and her notice of appeal—filed 103 days after service of the
file-stamped copy of the judgment—was also too late. In that case, we would have no
jurisdiction to consider this appeal. (See Van Beurden Ins. Services, Inc. v. Customized
Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (Van Beurden) [“The time
for appealing a judgment is jurisdictional; once the deadline expires, the appellate court
has no power to entertain the appeal.”].) However, as we explain in this opinion,
Plaintiff‟s notice of intention to move for new trial was filed on time, and the new trial
motion was denied by operation of law on June 11, 2013. Accordingly, Plaintiff‟s notice
of appeal—filed 21 days later—was timely under rule 8.108(b)(1)(B).
5
The jurisdictional deadlines under sections 659 and 660 also may be triggered by
the clerk of the court mailing notice of entry of judgment pursuant to section 664.5.
Because it is undisputed that the clerk did not mail notice to the parties in this case, we
have omitted this language from the quoted text.

8
 Here, even if we assume that attaching a file-stamped copy of the judgment to a
motion to tax costs constitutes notice of entry of judgment under sections 659 and 660,
we still must conclude that Plaintiff‟s service of the document on Defendant did not
trigger the statutes‟ jurisdictional deadlines. This is because both statutes require service
on the moving party, and Plaintiff—the moving party here—did not (and could not) serve
notice of entry of judgment on herself. (See Cherry Highland, supra, 76 Cal.App.4th at
p. 263 [likewise holding service of notice of entry of judgment by party moving for new
trial does not trigger section 660‟s jurisdictional time period], overruled on other grounds
by Palmer, supra, 30 Cal.4th at p. 1278, fn. 5.) Accordingly, Plaintiff timely filed her
notice of intention to move for new trial under section 659, and that act commenced the
60-day jurisdictional period for the court to rule on her motion under section 660.
Notwithstanding the statutes‟ express language, Defendant contends Plaintiff
waived the requirement of “service on the moving party” by attaching a file-stamped
copy of the judgment to her motion to tax costs. For support, Defendant relies on
Gardner v. Stare (1901) 135 Cal. 118 (Gardner). In Gardner, the Supreme Court held
the moving party‟s application to stay execution of the judgment, which admitted the
party‟s knowledge of the judgment, constituted “a waiver of [the party‟s] right to a notice
of the decision” under a former version of section 659. (Gardner, at pp. 119-120.) When
Gardner was decided, former section 659 read in pertinent part: “The party intending to
move for a new trial must, within ten days after . . . notice of the decision of the court . . .
file with the clerk and serve upon the adverse party a notice of his intention . . . .”
(Former § 659, added by Stats. 1872 and amended by Stats. 1873-1874 ch. 383, § 85.)
Because the moving party filed her notice of intention 12 days after serving her
application to stay execution of the judgment, Gardner held the trial court “had no
jurisdiction to hear her motion for a new trial.” (Gardner, at p. 120.)
Gardner does not control the jurisdictional issue in this case. To begin, Gardner
was decided pursuant to a former version of section 659, under which the jurisdictional
clock started upon “notice of the decision.” (Gardner, supra, 135 Cal. at p. 119.) In
contrast, the current iteration of section 659 expressly mandates that a party‟s time to file

9
a notice of intention is not shortened unless there has been “service upon him or her by
any party of written notice of entry of judgment.”6 The moving party in Gardner plainly
had “notice of the decision” and could knowingly waive the right to such notice from the
other party by her affirmative act. Here, by contrast, Plaintiff was never served with
notice of entry of judgment, and she had little reason to believe that attaching a copy of
the judgment to her motion to tax costs might waive the express condition of “service”
mandated by section 659.
Furthermore, due to the jurisdictional implications of the new trial statutes, recent
Supreme Court authority emphasizes the need for strict adherence to statutory language,
notwithstanding the sort of practical concerns over notice and expediency at play in
Gardner. In Van Beurden, the Supreme Court considered what was required to
commence section 660‟s jurisdictional time period under the provision pertaining to “the
mailing of notice of entry of judgment by the clerk of the court pursuant to Section
664.5.”7 (§ 660; Van Beurden, supra, 15 Cal.4th at pp. 56-58.) There was no dispute in
the case that the clerk of the court mailed a file-stamped copy of the judgment to the
moving party more than 60 days before the trial court ruled on the new trial motion. (Van

6
To be clear, under section 659, the 180-day deadline to serve a notice of intention
to move for new trial begins to run upon entry of judgment. This period is shortened to
15 days if the clerk of the court mails notice of entry of judgment pursuant to section
664.5 or any party serves written notice of entry of judgment upon the moving party.
(§ 659, subd. (a)(2).)
7
As in this case (see fn. 4, ante), in Van Beurden, the question of whether the trial
court had jurisdiction to rule on the new trial motion, or whether the motion was denied
by operation of law, implicated the appellate court‟s jurisdiction to entertain the appeal
under California Rules of Court, rules 8.104 and 8.108. (See Van Beurden, supra,
15 Cal.4th at pp. 54-56.) The Court of Appeal in Van Beurden, drawing inferences from
the record, concluded the clerk‟s mailing of a file-stamped copy of the judgment to the
moving party was sufficient to trigger section 660‟s jurisdictional deadline, and the
appeal, taken more than 60 days after the new trial motion was denied by operation of
law, was untimely. (Van Beurden, at p. 55.) As we explain above, the Supreme Court in
Van Beurden concluded inferences, speculation and guesswork are improper where
jurisdictional matters are concerned, and reversed the Court of Appeal‟s order dismissing
the appeal. (See id. at pp. 66-67.)

10
Beurden, at pp. 57-58.) However, because section 660 expressly requires notice
“ „pursuant to section 664.5,‟ ” the Van Beurden court explained that “the clerk‟s mailing
of the file-stamped copy of the judgment commenced the 60-day time limit for ruling on
the new trial motion only if it constituted a formal „notice of entry‟ of judgment mailed
by the clerk „[u]pon order of the court.‟ ”8 (Van Beurden, at pp. 57-58, quoting § 664.5.)
The question presented in Van Beurden, which had divided the Courts of Appeal,
was “what constitutes evidence sufficient to establish that the clerk of the court mailed a
„notice of entry‟ of judgment „[u]pon order of the court‟ ” in the absence of a written
order. (Van Beurden, supra, 15 Cal.4th at p. 61.) Some courts had held a court order
could be inferred from circumstances appearing in the record (see, e.g., Pacific City Bank
v. Los Caballeros Racquet & Sports Club, Ltd. (1983) 148 Cal.App.3d 223, 227; Younesi
v. Lane (1991) 228 Cal.App.3d 967, 974), while others had required an express written
indication of the trial court‟s intention to have the clerk serve notice on the parties (see,
e.g., In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 950-951; S M Trading, Inc. v.
Kono (1988) 198 Cal.App.3d 749, 756). In view of the jurisdictional implications of the
clerk‟s mailing, and to “avoid uncertainty” in matters affecting jurisdiction, the Supreme
Court sided with those courts requiring an express written indication of a court order,
holding: “[W]hen the clerk of the court mails a file-stamped copy of the judgment, it will
shorten the time for ruling on the motion for a new trial only when the order itself
indicates that the court directed the clerk to mail ‘notice of entry’ of judgment.” (Van
Beurden, at p. 64, italics added.)
Applying the rule to the facts of the case, the Van Beurden court concluded the
trial court had jurisdiction when it ruled on the new trial motion. While there was no
dispute that the moving party received notice of the judgment from the clerk‟s mailing, it
could not be ascertained, without “speculation,” whether the clerk mailed the judgment
“ „upon order of the court,‟ ” as required by the express language of sections 664.5 and

8
As pertinent to the issue addressed in Van Beurden, section 664.5, subdivision (d)
provides: “Upon order of the court in any action or special proceeding, the clerk shall
mail notice of entry of any judgment or ruling, whether or not appealable.”

11
660. (Van Beurden, supra, 15 Cal.4th at pp. 65-66.) Because parties and courts cannot
be required to speculate about jurisdictional time limits, the Van Beurden court concluded
the trial court‟s ruling, and the subsequent appeal from the judgment (see fn. 7, ante),
“must be deemed timely.” (Id. at pp. 64, 67.)
As indicated, a critical linchpin of the Van Beurden decision is the Supreme
Court‟s admonition that “in a matter involving jurisdictional restrictions” there should be
no need for “ „guesswork.‟ ” (Van Beurden, supra, 15 Cal.4th at p. 62.) Van Beurden
thus reflects the modern view that jurisdictional statutes must be strictly construed
according to their express language to ensure that parties and courts are not required to
speculate about jurisdictional time limits. (Id. at p. 64; see also S M Trading v. Kono,
supra, 198 Cal.App.3d at p. 756 [“We consider the greatest evil to be the uncertainty as
to the time limit for filing a notice of appeal created under the present state of the law.”].)
And, as Van Beurden also demonstrates, this modern view eschews jurisdictional
forfeitures, even where, as a practical matter, the party moving for new trial indisputably
had notice of entry of judgment. Thus, notwithstanding the practical considerations that
compelled the high court in Gardner to find a waiver under former section 659 more than
a century ago, under the Supreme Court‟s more recent jurisprudence, it is clear that strict
adherence to statutory language must dictate the resolution of jurisdictional issues in
order to achieve certainty in these vital matters.9

9
For the same reasons, Defendant‟s reliance on Isleton Canning Co. v. Superior
Court of San Francisco (1930) 104 Cal.App. 687 is misplaced. Similar to Gardner,
Iselton was decided under a former version of section 659 that required only “ „written
notice of the entry of the judgment‟ ”—not service on the moving party. (Iselton, at
p. 688.) In holding the moving party‟s service of written notice on the defendant was
sufficient to start the clock under former section 659, the Iselton court observed, “As the
law does not require the performance of idle acts no good reason appears for construing
the statute as requiring each party to serve on the other party a formal written notice in
order to cut out delays in litigation.” (Id. at p. 689.) As we have explained, under
modern Supreme Court jurisprudence, the Iselton court‟s concern for expediency must
yield to the requirements of clarity and certainty in jurisdictional matters. (See Van
Beurden, supra, 15 Cal.4th at p. 62.)

12
 Consistent with Van Beurden and the express language of sections 659 and 660,
we hold that, absent notice mailed by the court clerk pursuant to section 664.5, a party
must serve notice of entry of judgment on the moving party to shorten the 180-day
deadline under section 659 and to start the 60-day jurisdictional clock under section 660.
Because Plaintiff was not served with notice of entry of judgment, her notice of intention
was filed on time, and the trial court had jurisdiction to rule on the new trial motion when
it purported to enter its conditional order 60 days later. We turn now to the legal effect of
the conditional order.
2. The Trial Court Was Not Authorized to Enter an Order Conditioning a New
Trial on Appellate Review of the Court’s Jurisdiction; The Order Is a
Nullity with No Legal Effect
Though we have concluded the trial court had jurisdiction to rule on Plaintiff‟s
new trial motion, this does not mean the court was authorized to enter a conditional order
purporting to grant, but effectively denying the motion until a subsequent ruling by an
appellate court. It has long been settled that “[t]he right to a new trial is purely
statutory,” and a motion for new trial can be granted only as provided in the applicable
statutes. (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) “Because new
trial motions are creatures of statute, „ “the procedural steps . . . for making and
determining such a motion are mandatory and must be strictly followed [citations].” ‟ ”
(Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193;
Mercer v. Perez (1968) 68 Cal.2d 104, 118.) When a trial court purports to issue a new
trial ruling without statutory authorization, the resulting order is “an act in excess of
jurisdiction and is therefore a nullity.” (La Manna v. Stewart (1975) 13 Cal.3d 413, 418.)
In this case, the trial court entered an order purporting to grant Plaintiff‟s motion
for new trial on the condition that Plaintiff would file an appeal from the order and secure
a favorable appellate ruling on the trial court‟s jurisdiction. Nothing in the new trial
statutes authorizes the court to enter such an order. On the contrary, the only conditional
order authorized by the statutes is an order granting a new trial on grounds of inadequate
or excessive damages unless the opposing party accepts an addition or reduction to the

13
damages amount. (See § 662.5, subd. (a).) The conditional order in this case was in
excess of the trial court‟s jurisdiction and, therefore, a nullity. (See, e.g., La Manna v.
Stewart, supra, 13 Cal.3d at p. 418.)
Because the trial court failed to enter a valid order within the time allowed by
section 660, Plaintiff‟s motion for new trial was denied by operation of law. Though the
trial court erred in concluding it lacked jurisdiction to rule on the motion, there is nothing
we can do now to reinstate or revive the motion in the court below. (Free v. Furr (1956)
140 Cal.App.2d 378, 385-386 (Free) [where trial court erred in holding it lacked
jurisdiction to rule on a new trial motion due to the filing of an appeal, plaintiff‟s only
remedy was to apply to the appellate court for a writ of mandate ordering the trial judge
to proceed with hearing the motion within the time allowed by section 660].)
Further, while the denial by operation of law can be reviewed on an appeal from
the judgment (Free, supra, 140 Cal.App.2d at p. 386), here, Plaintiff has not supplied an
adequate record to establish grounds for reversal. The record consists almost exclusively
of the moving and opposition papers on Plaintiff‟s new trial motion, and hearing
transcripts on the same. Apart from excerpts of trial testimony attached to the parties‟
briefs, we have no record of the evidence presented at trial. The trial record that we do
have, however, shows there was conflicting evidence on the extent of Plaintiff‟s injuries
and whether her own conduct constituted negligence sufficient to support the jury‟s
comparative fault determinations. In considering Plaintiff‟s new trial motion, the trial
court had the power to reweigh this evidence in its exclusive role as the thirteenth juror.
However, as an appellate court reviewing the judgment, we are bound by the jury‟s
findings so long as they are supported by substantial evidence. (See Holmes v. Southern
Cal. Edison Co. (1947) 78 Cal.App.2d 43, 51-52 [“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. . . . An appellate court has no such powers.
It cannot weigh the evidence and pass on the credibility of the witnesses as a juror

14
does. . . . [I]f there is substantial evidence in the record supporting the damages awarded
by the jury . . . , we are powerless to reduce them or to hold the award excessive.”].)
The record supplied by Plaintiff fails to establish grounds for reversing the
judgment. Accordingly, we must affirm. (See Free, supra, 140 Cal.App.2d at p. 386.)
DISPOSITION
The judgment is affirmed and the appeal by Defendants Asaf Iacobsohn,
M.Y. Iacobsohn and Pac West Corporation from the purported order conditionally
granting a new trial is dismissed. Defendants are entitled to costs on appeal.

CERTIFIED FOR PUBLICATION

KITCHING, Acting P. J.

We concur:

ALDRICH, J.

KUSSMAN, J.*

*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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