Meiner v. Ford Motor Co.

TAMURA, J., Concurring and Dissenting.

The majority has decided that the order can be sustained on the ground of insufficiency of the evidence to support the verdict but not on any of the other grounds stated in the motion. I agree with respect to the other grounds, but respectfully dissent as to the ground of insufficiency of the evidence. In my opinion the reasons given in support of that ground were inadequate and the order must therefore be reversed.

The reasons contained in the judge’s initial specification filed on May 27 which is set out below were, as the majority notes, manifestly inadequate.1 On May 31 he filed an amended specification. The controlling *145question is whether the reasons given in the amended specification for two of the grounds—insufficiency of the evidence and excessive damages— meet the standard of specificity mandated by section 657 of the Code of Civil Procedure as that section was construed in Mercer v. Perez, 68 Cal.2d 104 [65 Cal.Rptr. 315, 436 P.2d 315] and Scala v. Jerry Witt & Sons, Inc., 3 Cal.3d 359 [90 Cal.Rptr. 592, 475 P.2d 864]. It is my opinion that they did not and that the order may not be supported on any of the remaining grounds.2

I

The four new paragraphs added to section 657 of the Code of Civil Procedure in 1965 prescribed “substantially new procedures for granting a motion for new trial and for reviewing such an order on appeal.”3 (Scala *146v. Jerry Witt & Sons, supra, 3 Cal.3d 359, 363.) The pertinent portions of those paragraphs, with their 1967 clarifying amendments, provide that the court must specify the “reason or reasons for granting the new trial upon each ground stated”; that a new trial “shall not be granted” upon the ground of insufficiency of the evidence or excessive or inadequate damages, “unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the . . . jury clearly should have reached a different verdict. . . .”; that if the order granting the new trial does not specify the reasons, “the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk”; the court may not direct the attorney for a party to prepare the specification of reasons; and that: “on appeal from an order granting a new trial . . . upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.” (Italics supplied.)

In Mercer v. Perez, supra, 68 Cal.2d 104, the court concluded that the 1965 amendments requiring articulation of reasons were designed to serve a dual purpose: (1) To foster mature and careful reflection by the trial court before ruling on a motion for new trial, and (2) to make the right of appeal from the order more meaningful. In order to give effect to the new scope of appellate review contemplated by the amendments, the court declared: “. . . if the ground relied upon is ‘insufficiency of the evidence’ the judge must briefly recite the respects in which he finds the evidence to be legally inadequate; no other construction is consonant with the conclusive presumption on appeal that the order was made ‘only for the reasons specified.’ Phrasing the requirement in terms of the codification of the trial judge’s power in the second paragraph of the amendments . . . , such an order must briefly identify the portion of the record which convinces the judge ‘that the court or jury clearly should have reached a different verdict or decision.’ ” (Mercer, supra, p. 116; italics supplied.)

*147A number of appellate court decisions after Mercer, supra, upheld specifications of reasons couched merely in terms of the ultimate fact to be determined. In Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d 359, 366, the court disapproved those decisions stating that a “reason” which merely recites that “under the court’s view of the evidence ‘the defendant was not negligent’ or ‘the plaintiff was negligent’ is of little if any assistance to the appellant or to the reviewing court.” Such “reasons” were held to be nothing more than restatement of the ground itself and, hence, inadequate. The court observed that some courts of appeal paraphrased the Mercer requirement that the trial judge “briefly identify the deficiencies he finds in ‘the evidence’ or ‘the record’ or . . . ‘the proof’—rather than merely in ‘the issues’ or ‘the ultimate facts,’ ”... by subtly shifting the emphasis to “identification of deficiencies in ‘the prevailing party’s case’ ” rather than in the evidence or the record. (Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d 359, 367.) The court concluded that while a trial judge is “ ‘not necessarily required to cite page and line of the record, or discuss the testimony of particular witnesses,’ nor need he undertake ‘a discussion of the weight to be given, and the inferences to be drawn from each item of evidence supporting, or impeaching, the judgment,’ ... he must do more than in effect reiterate the ground of his ruling.” (Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d 359, 370.)

In the present case, the judge gave the following reasons for ordering a new trial on the ground of insufficiency of the evidence: “After a careful review of the entire record, and after weighing all of the evidence, the Court is convinced, from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict. The plaintiff’s expert testimony, when weighed against the overwhelming expert testimony introduced by defendant, is completely lacking in probative force to establish the proposition of fact to which it is addressed; namely, that there was a temporary failure of the steering mechanism or that said steering mechanism or any other portion of the vehicle was defective. Further, upon weighing of the evidence, resolving conflicting evidence and disregarding that testimony of those whose credibility is doubted, the Court is convinced that the defendant’s evidence regarding the manner in which the accident happened is overwhelmingly more persuasive and probable than the evidence introduced by plaintiff.”

The reasons fall short of the standard of specificity required by Mercer, supra, and Scala, supra. The preliminary statement is merely a restatement of the ground and obviously was neither intended, to be nor constitutes a reason. The “reasons” which follow are to the effect that in the judge’s assessment of the evidence, plaintiff’s expert testimony was “completely lack*148ing in probative force” to prove a defect or failure in the steering system, and defendant’s evidence respecting the cause of the accident was “overwhelmingly more persuasive and probable” than that adduced by plaintiff. Those “reasons” merely tell us that the judge felt that plaintiff failed to prove that the steering system was defective or that the accident was caused by a defective vehicle. A similar specification of reasons was held to be inadequate in Van Zee v. Bayview Hardware Store, 268 Cal.App.2d 351 [74 Cal.Rptr. 21], a products liability case arising out of the explosion of an allegedly defective aerosol paint can. Following a jury verdict for plaintiff, the court granted a defense motion for a new trial. One of the two grounds was insufficiency of the evidence. The reason given by the trial judge was: “[t]he evidence is insufficient to support the verdict in that the evidence does not establish that the . . . aerosol paint can was defective at any time prior to the delivery of said can to the possession of the Plaintiff.” The Court of Appeal held that the “reason” was merely a statement that plaintiff failed to prove an ultimate fact in issue and as such was inadequate. That approach was commended by the Supreme Court in Scala, supra. Though phrased differently, the reasons in the present case are equally deficient in providing a basis for the appellate review contemplated by the 1965 amendments to section 657 of the Code of Civil Procedure.

The specification in the persent case, as in Van Zee, supra, does not comply with the Mercer requirement that the trial judge “briefly recite the respects in which he finds the evidence to be legally inadequate; . . .” (Italics supplied.) (Mercer v. Perez, supra, 68 Cal.2d 104, 116). In Scala the court stated that “perhaps the more useful yardstick to an appellate court for measuring the adequacy of the specification” is whether it serves the statutory objective of making the right to appeal from an order granting a new trial on the ground of insufficiency of the evidence meaningful. (Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.3d 359, 366.) So measured, in my opinion the present specification is inadequate. It “ ‘amounts to no more than an invitation to search the record. . . .’ ” (Mercer v. Perez, supra, 68 Cal.2d 104, 116-117, quoting from Greenwood v. Bogue, 53 Wn.2d 795 [337 P.2d 708, 709].) It is impossible to determine whether there is “any substantial basis in the record” for the trial judge’s reasons without examining “the entire body of the testimony and exhibits introduced at trial” (Mercer v. Perez, supra, p. 114), and speculating as to why the judge felt that plaintiff’s expert testimony was “completely lacking in probative force” and defendant’s evidence regarding the manner in which the accident occurred was “overwhelmingly more persuasive and probable” than plaintiff’s evidence. The “reasons” do not tell us whether the judge was dissatisfied with the expert’s qualifications, the extent of his investigation, the reasons he *149gave for his opinion, or his credibility as a witness.4 It certainly cannot be said that the evidence failed, as a matter of law, to support an implied finding of a defective steering system. Mr. Severy testified he measured the ball bearings with a micrometer and found 10 of them varied from the design size and had “flat spots.” His testimony was controverted only inferentially by defense witnesses’ testimony that the inspection devices and procedures used in production would have rejected ball bearings having such defects; there was no testimony by defense experts that they made actual measurements of the ball bearings in question and found Mr. Severy’s measurements to be erroneous. As to the accident, the judge stated that “disregarding [the] testimony of those whose credibility is doubted,” defendant’s evidence was “overwhelmingly more persuasive.” We are left to speculate whose testimony he disbelieved and why. Did he disbelieve both plaintiff and Mr. Zona who testified to an earlier locking of the steering wheel? In sum, as aptly stated in Van Zee v. Bayview Hardware Store, supra, 268 Cal.App.2d 351 362, we are left “in the position in which reviewing courts were before the amendments to section 657, as described in the Mercer case: ‘The appellate court could find itself considering alleged insufficiencies totally unrelated to those relied upon by the trial judge; and without further elucidation of the order, the principle that an abuse of discretion can not be found in cases in which the evidence is in conflict and a different verdict could have been reached [citation] “constitutes an iron curtain, cutting off any adequate review of whether or not there was any reason for the trial judge to set aside the verdict of the jury and grant a new trial.” (Italics added.) (Coppo v. Van Wieringen (1950) 36 Wn.2d 120 [217 P.2d 294, 297].)’ (68 Cal.2d at p. 114.)”

The specification in the instant case simply expresses the fact the judge disbelieved plaintiff’s expert as to the claimed defect in the steering system and doubted the veracity of plaintiff’s version of the accident.

In passing upon a motion for a new trial, a judge admittedly has the authority to disbelieve a witness, reweigh the evidence and draw reasonable inferences therefrom contrary to those drawn by the jury. (Klinger v. Henderson, 276 Cal.App.2d 774, 111 [81 Cal.Rptr. 305]; Ridge v. Calabrese Supply Co., 263 Cal.App.2d 546, 552 [69 Cal.Rptr. 844]; see Mercer v. Perez, supra, 68 Cal.2d 104, 112). The judge may disbelieve a witness even though his testimony is uncontradicted “if there is any rational ground for doing so.” (Blank v. Coffin, 20 Cal.2d 457, 461 [126 P.2d 868].) But in my opinion, if a judge determines that a new trial should be ordered for *150insufficiency of the evidence because he disbelieved a witness, he ought to state briefly those matters of record which, as expressed in section 780 of the Evidence Code, had “any tendency in reason to . . . disprove the truthfulness” of the witness. (As to matters going to a witness’ credibility, see Evid. Code, § 780; Witkin, Evidence (2d ed. 1966) pp. 1027-1033.) Only then may a reviewing court determine whether “there is any substantial basis in the record” for the judge’s reasons.

My colleagues, if I interpret the majority opinion correctly, are of the view that a simple statement to the effect that the evidence was insufficient to support the verdict because, in the judge’s view, the testimony of the witnesses for the party against whom the verdict was rendered was entitled to greater credibility than that of the witnesses for the other party, ought to be a sufficient reason.5 It is suggested that the judge may have evaluated credibility on the basis of the witnesses’ demeanor and since such considerations would not be reflected by the record, further explanation by the judge could not make appellate review more meaningful. The majority appears to concede, however, that if disbelief was based on demeanor considerations, the trial judge should at least say that much.

In the present case, the specification does not state that the judge doubted the credibility of plaintiff and his witnesses because of their demeanor on the stand. In the absence of such statement, it must be presumed that disbelief was not based upon such ground. It must be “conclusively presumed” on appeal that the order was made “only for the reasons specified.” (Code Civ. Proc., § 657, 4th para.)

I am mindful, of course, as the majority points out, that in judging the credibility of a witness the trier of fact may consider “[h]is demeanor while testifying and the manner in which he testifies” (Evid. Code, § 780, subd. (a); Davis v. Judson, 159 Cal. 121, 128 [113 P. 147]; Kilstrom v. Bronnenberg, 110 Cal.App.2d 62, 64-65 [242 P.2d 65]; La Jolla Casa de Manana v. Hopkins, 98 Cal.App.2d 339, 345-346 [219 P.2d 871]; see Witkin, Evidence (2d ed. 1966) pp. 1031-1032), and that such criteria for evaluating credibility are not normally reflected by the record. (Riddle v. Fiano, 194 Cal.App.2d 684, 693-694 [15 Cal.Rptr. 248]). Nevertheless, though not a matter of record, the demeanor of a witness while testifying and the manner in which he testifies are always assumed to be in evidence. *151(3A, Wigmore, Evid. (1970 ed.) § 946, p. 783.) It is therefore entirely proper for the judge to consider such matters in assessing the credibility of witnesses when passing on a motion for new trial on the ground of insufficiency of the evidence. However, Mercer, supra, requires the trial judge to briefly identify in his reasons the portions of the record or the evidence deemed to be insufficient. Since demeanor of a witness while testifying or manner of testifying is evidence in the case, if the judge’s reason for granting a new trial for insufficiency of the evidence is his disbelief of a witness for the party in whose favor the verdict was returned, he should so state and briefly indicate what it was about the witness’ demeanor while testifying or his manner of testifying that cast doubt on his veracity. (See Comment, 9 Santa Clara Law. 119, 130-131.) Although the accuracy of the judge’s observations concerning the witness’ demeanor could not be reviewed against the record, the reason would at least disclose whether disbelief was based upon a rational ground. (See Blank v. Coffin, supra, 20 Cal.2d 457, 461.) Appellate review would thereby be made more meaningful and, more importantly, the other statutory objective—careful and mature deliberation before ruling on a motion for new trial—would be served by discouraging orders for new trial merely on subjective feelings, hunches, or intuition. I do not share the majority’s view that such reasons would be impossible to articulate. If a judge is of the view that a witness’ demeanor while testifying or his manner of testifying rendered his testimony untrustworthy, he ought to be able to express briefly why he came to that conclusion, especially if disbelief is based on a rational ground which, of course, should be the only ground.

To hold that a reason which in effect merely states that the evidence was insufficient because witnesses for the party against whom the verdict was rendered were entitled to greater credibility than those for the other side would reduce the requirement of stating reasons to a mere legal formality and would frustrate the dual salutory purposes of the 1965 amendments to section 657 of the Code of Civil Procedure. The following passage from the opinion of the Washington Supreme Court in Knecht v. Marzano, 65 Wn.2d 290 [396 P.2d 782, 784-785] (quoted in Mercer v. Perez, supra, 68 Cal.2d 104, 114, fn. 3) is particularly apposite: “Although ‘manifest abuse of discretion’ is a formidable and inferentially an effective appellate standard or mechanism for testing the exercise of trial judge discretion in some areas, its use or function seems debatable, to say the least, in the absence of a requirement that produces objectively assessable criteria, reasons or facts respecting the granting of a new trial, rather than ones assessable only subjectively in terms of describing or revealing nothing more than the feelings or hunches of the trial judge to the effect that ‘substantial justice has not *152been done.’ Stated somewhat differently, discretion equated only with the feelings and hunches of the trial judge is not amenable to objective evaluation and appellate review, for the end result would be nonreviewable trial judge discretion—in essence, no appeal whatsoever.”

For the foregoing reasons, it is my opinion that the reasons given for the order granting new trial on the ground of insufficiency of the evidence in the present case were inadequate and that the order cannot be sustained on that ground. In fairness to the trial judge it should be noted that under certain appellate court decisions in force at the time he made his order, the reasons might have been adequate and that those decisions were disapproved only after the pendency of this appeal in Scala, supra. However, in Scala v. Jerry Witt & Sons, Inc., supra, 3 Cal.2d 359, 371, the court rejected a request that that decision be made “purely prospective” by saying: “Today’s decision is no new departure in the law, but simply reiterates the Mercer construction of the statutory intent and the manner of translating that intent into action.”

II

The majority has determined that there is no substantial basis in the record to support the order granting a new trial for excessive damages for the reason specified by the trial judge. I agree. The record reveals that, according to plaintiff’s physician, plaintiff was unable to perform work of even a limited nature until a week or two before trial. Hs failure to seek employment for that limited period did not justify a determination that the verdict was excessive.

Ill

The question remains whether the order may be affirmed on any of the remaining grounds upon which the motion was made and granted.

While an order granting a new trial must 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,” (except insufficiency of the evidence or excessive or inadequate damages) (Code Civ. Proc., § 657; Treber v. Superior Court, 68 Cal.2d 128, 133-134 [65 Cal.Rptr. 330, 436 P.2d 330]; S. F. Bay Area Rapid Transit Dist. v. McKeegan, 265 Cal.App.2d 263, 270-271 [71 Cal.Rptr. 204]; Tagney v. Hoy, 260 Cal.App.2d 372, 374-375 [67 Cal.Rptr. 261]) the burden is on the moving party to provide a record and argument supportive of the ground or grounds upon which the order should be affirmed. (People ex rel. Dept. Pub. Wks. v. Hunt, 2 Cal.App.3d 158, 162 [82 Cal.Rptr. 546]; Gaskill v. Pacific Hosp. of Long *153Beach, 272 Cal.App.2d 128, 130-132 [77 Cal.Rptr. 373]; Tagney v. Hoy, supra, 260 Cal.App.2d 372, 376-377.) Defendants in the instant case defend the order only on the two grounds heretofore discussed. I, therefore, limit my discussion of the remaining grounds to the following brief comments:

Two of the grounds upon which the motion was made and granted were irregularity in the proceedings of the jury and misconduct of the jury. The reason given by the trial judge in support of those grounds was “The jury was guilty of prejudicial irregularity in performing an improper experiment upon one of the exhibits out of the presence of the Court and during the course of their deliberations, thereby preventing the said defendant from having a fair trial.”

Although the affidavits which were apparently filed in support of those grounds are appended to plaintiff’s brief, they are not a part of the record on appeal nor has there been an augmentation to include them. The burden was on defendants, the movants, to provide a record and argument to show that the new trial order should be affirmed on the grounds stated. (People ex rel. Dept. Pub. Wks. v. Hunt, supra, 2 Cal.App.3d 158, 162.) Having failed to do so, it must be concluded that the record does not support those grounds.

However, even if the affidavits appended to plaintiff’s brief were deemed a part of the record, they do not support the grounds of misconduct of the jury or irregularity in its proceedings.

Defendants apparently submitted three affidavits, two by their attorneys and one by their attorneys’ secretary. They were to the effect that after the verdict was returned, affiants had a conversation with Mr. Kuser, one of the jurors, who told them that while the jury was deliberating he (Mr. Kuser), at the instance of several women jurors, removed the ball bearings from the exhibit introduced by Ford and by remanipulating them in the race, rendered the exhibit inoperable.

Plaintiff moved to strike the affidavits on the ground they constituted an attempt by a juror to impeach a jury verdict and on the further ground they constituted an attempt to impeach a jury verdict by hearsay evidence. Plaintiff’s motion was denied whereupon plaintiff submitted affidavits from the jury foreman and Mr. Kuser. The foreman stated that after the jury had voted on the issue whether there had been a lock-up of the steering mechanism, he saw Mr. Kuser manipulating the ball bearings in the exhibit in *154question. The foreman stated that the experiment had no effect on the jury verdict because they had already voted on the question of liability. Mr. Kuser’s declaration corroborated the foreman’s statement.

Plaintiff’s contention that defendant’s affidavits were inadmissible' to impeach the jury verdict and should have been stricken must be sustained. It has been repeatedly held that a jury vedict may not be impeached by hearsay affidavits. (People v. Yeager, 194 Cal. 452, 485 [229 P. 40]; Van Zee v. Bay view Hardware Store, supra, 268 Cal.App.2d 351, 354; People v. Schmitt, 155 Cal.App.2d 87, 117 [317 P.2d 673]; Marinucci v. Bryant, 151 Cal.App.2d 298, 306 [311 P.2d 622].) The recent case of People v. Hutchinson, 71 Cal.2d 342, 349-350 [78 Cal.Rptr. 196, 455 P.2d 132], holding that section 1150 of the Evidence Code authorizes use of juror’s affidavits to show objective facts occurring in a jury room which improperly influenced a jury did not modify that rule. (See People v. Spelio, 6 Cal.App. 3d 685, 689 [86 Cal.Rptr. 113].) Section 1150 of the Evidence Code provides in part: “(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Italics supplied.)

The reason given by the judge for granting a new trial on the ground of errors in law occurring at the trial was: “The Court is satisfied that a number of rulings relating to the admissibility of evidence were clearly erroneous.” The reason is patently inadequate. Moreover, neither the motion for the new trial nor defendants’ brief on appeal indicate what errors of law, if any, occurred at trial. In these circumstances it is not incumbent upon this court to make an independent search of the entire record for possible errors of law.

The final ground upon which the new trial was granted was that the verdict was against the law. “When a general verdict only is returned it can be said to be ‘against [the] law’ only when it is unsupported by any substantial evidence, i.e., when the entire evidence is such as would justify a directed verdict against the party in whose favor the verdict is returned. ‘[T]he words “against [the] law” do not import a situation in which the court weighs conflicting evidence and merely finds a balance against the judgment.’ ” (Tagney v. Hoy, supra, 260 Cal.App.2d 372, 376; Bray v. Rosen, 167 Cal.App.2d 680, 683-684 [335 P.2d 137]; see Gaskill v. Pa*155cific Hosp. of Long Beach, supra, 272 Cal.App.2d 128, 130; Thompson v. Guyer-Hays, 207 Cal.App.2d 366, 375 [24 Cal.Rptr. 461].) The evidence reviewed in the majority opinion clearly reveals that the verdict was not “against the law” in the foregoing sense.

I would reverse the order granting the new trial.

Appellant’s petition for a hearing by the Supreme Court was denied June 23, 1971. Peters, J., Mosk, J., and Sullivan, J., were of the opinion that the petition should be granted.

Thfe May 27 specification of reasons read:

“(a) Insufficiency of the evidence to iustify the verdict. After a careful review of the entire record, and after weighing all of the evidence, the Court is convinced, *145from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict.
“(b) Irregularity of the proceedings of the jury, by which the defendant was prevented from having a fair trial. The jury was guilty of prejudicial irregularity in performing an improper experiment upon one of the exhibits, thereby preventing the said defendant from having a fair trial.
“(c) Misconduct of the jury, as hereinabove set forth.
“(d) Errors in law occurring at the trial, and excepted to by the party making the application. The court is satisfied that a number of rulings relating to the admissibility of evidence were clearly erroneous.
“(e) Excessive damages. After weighing the evidence, the Court is convinced, from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict.
“(f) For the reasons hereinabove set forth, the Court is convinced that the verdict is against the law.”

New trial was granted on all statutory grounds except “accident or surprise” and “newly discovered evidence.”

The final four paragraphs of section 657, Code,of Civil Procedure, provide:

“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.
“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.
“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 specifications 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. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons.
“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, except that (a) the order shall not be *146affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.”

For an excellent statement of reasons for granting a new trial for insufficiency of the evidence in a cáse involving expert testimony, see Klinger v. Henderson, 276 Cal.App.2d 774, 776-777 [81 Cal.Rptr. 305].)

In Van Zee v. Bayview Hardware Store, supra, 268 Cal.App.2d 351, 360, the court observed that the judge may have found the expert’s testimony to be “unconvincing,” but it would have taken only a sentence or two to so state and that if the judge had said so “we would have no difficulty ... in sustaining this as one reason for the order. . . .” I do not take this to mean that the court intended to hold that a mere statement that the testimony was unconvincing, without more, would have been sufficient.