Kershner v. Morgali

DRAPER, J.

This action for fraud in the exchange of real estate was tried to the court, sitting without a jury, and plaintiff recovered judgment. Defendants San Felippo moved for new trial. The judge who had tried the case died before the hearing, and the motion was heard by Honorable Edwin J. Owens, who granted a new trial as to the issue of damages only, upon the ground of the insufficiency of the

[885]

evidence to support the judgment. Plaintiff appeals from this order granting new trial.

Even though the judge passing upon a motion for new trial did not try the case, his power and discretion is as broad as though he had himself been the trial judge. This is true whether the case is tried with a jury

(Woods

v.

Walker,

57 Cal.App.2d 968 [136 P.2d 72]) or by the court without a jury

(Halperin

v.

Guzzardi,

95 Cal.App.2d 31 [212 P.2d 9]).

Here the evidence as to damages was in substantial conflict. Each side called but one expert on land values. The witness called by appellant valued the land conveyed by respondents to appellant at $20,000 (leaving a net, after incumbrances, of $5,650). Respondents’ expert testified that the value was $85,000. The trial court accepted the lower figure, and gave judgment accordingly. Neither expert’s testimony indicates high qualification to appraise this land. Further, the record shows that the witness called by appellant failed to provide any detailed appraisal of the equipment which was transferred to appellant with the land, had “just a very, very sketchy look” at the equipment, and had even that look two years after the transfer to appellant, and at a time when much of the equipment had been left standing in the open for a substantial time. This factor alone is sufficient to warrant the new trial upon the issue of damages, and we do not extend this opinion by detailing other weaknesses in the testimony of this expert.