Garcia v. Lucido

SHOEMAKER, J. Plaintiffs Delores and Placida Garcia brought this action to recover for personal injuries sustained in an automobile collision allegedly caused by the negligence of defendant Antonio Lucido. Defendant Lucido answered, denying negligence on his part and alleging contributory negligence on the part of the driver Delores Garcia. After a trial by jury, verdict and judgment were for Placida Garcia against Lucido, and for Lucido against Delores Garcia. Plaintiff Delores Garcia then moved for and was granted a new trial on the ground of the insufficiency of the evidence to justify the verdict.

Lucido appeals from the said order, and Delores Garcia cross-appeals from the judgment for defendant Lucido.

Appellant contends that respondent’s notice of intention to move for a new trial was fatally defective because it failed to state whether such motion would be made upon affidavits or the minutes of the court, as required by Code of Civil Procedure, section 659. He argues that the right to [305]move for a new trial is statutory and must be pursued in the manner set out by the statute, and that where the mandatory provisions of section 659 are not complied with, the trial court is without jurisdiction to grant such a motion, but must either deny the motion or dismiss the proceedings.

Respondent, in reply, contends that section 659 is only a directory and not a mandatory provision, and that substantial compliance with its requirements is sufficient to vest the trial court with jurisdiction. She further alleges that the courts favor a liberal interpretation of technical provisions of this nature, and points out that appellant could not possibly have been misled by this formal defect, since Code of Civil Procedure, section 658, provides that a motion for a new trial based on insufficiency of the evidence must be made on the minutes of the court.

The precise point now in contention was before this court in Smith v. Ibos (1937), 22 Cal.App.2d 551 [71 P.2d 847] (cited with approval in Telefilm, Inc. v. Superior Court (1949), 33 Cal.2d 289, 294 [201 P.2d 811]; Sitkei v. Frimel (1948), 85 Cal.App.2d 335, 337 [192 P.2d 820]), where we reversed an order granting a new trial on the ground that respondent had failed to comply with section 659, in that he did not designate whether the motion would be made upon affidavits or the minutes, or both. We held the requirements of this section to be mandatory and stated that compliance therewith was necessary to confer jurisdiction on the court. The respondent in the Ibos case had also attempted to argue that appellant suffered no detriment due to the fact that Code of Civil Procedure, section 658, required a motion on the ground of insufficiency of the evidence to be based only on the minutes, and it could thus be assumed that appellant was effectively advised despite the formal defect in the notice. We pointed out, however, that such a construction of Code of Civil Procedure, section 659, would involve omitting a portion of the statute and also alluded to the fact that the legislature had simultaneously amended both sections 658 and 659 of the Code of Civil Procedure, but had not seen fit to eliminate the questioned requirement of section 659.