Wagner v. Singleton

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Opinion

STEPHENS, Acting P. J.

This is an appeal from an order granting new trial.

Following a jury trial, a judgment in favor of defendant-appellant was entered on September 30, 1980, and notice of such entry mailed October 1st. On October 10, within the statutory period allowed, plaintiffs-respondents served a notice of intention to move for a new trial. The only ground specified in the notice was “insufficiency of evidence to justify the verdict.” However, on October 24, 1980, respondents served and filed a memorandum of points and authorities in support of their motion which alleged an additional ground for the motion, that of “irregularity in the proceedings of the adversary party preventing the aggrieved party from having a fair trial and materially affecting his substantial rights.”

In the order granting the new trial, the trial court specified “prejudicial misconduct of counsel” as the ground upon which the motion for new trial was granted.

Appellant contends that a trial court has no power to rule on a ground not specified in the notice of intention to move for a new trial. We agree and shall reverse the order granting a new trial.

The grounds upon which a motion for a new trial can be granted are set forth in section 657 of the Code of Civil Procedure. It provides in part: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

“1. Irregularity in the proceedings of the court, jury or adverse party

“6. Insufficiency of the evidence to justify the verdict or other decision . .. . ”

The time period for making a motion for new trial under section 657 is regulated by Code of Civil Procedure section 659. That section states

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