B113559

 

 

 

 

IN THE COURT OF APPEAL OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 

MARVIN COBB,

 

Plaintiff and Appellant,

 

vs.

 

UNIVERSITY OF SOUTHERN CALIFORNIA, et al.,

 

Defendant and Respondent.

 

 

 

Appeal from Los Angeles County Superior Court

 

 

 

 

APPELLANT'S REPLY BRIEF

February 15, 1998

 

 

LAW OFFICES OF SAMUEL REECE

SAMUEL REECE, ESQ. - State Bar No. 127002

2308 Laurel Avenue

Manhattan Beach, California 90266

Telephone: (310) 203-8995

 

Attorney for Plaintiff and Appellant

Marvin Cobb

 

 

 

 

ARGUMENT.

 

I.

 

RESPONDENTíS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT WAS IMPROPERLY GRANTED BY THE TRIAL COURT.

 

Respondent contends that the trial court properly granted Respondentís motion for judgment notwithstanding the verdict, as the trial courtís decision was based on Cobbís own admissions. (Respondentís Brief at pp. 18-26.) Respondent is in error.

    1. PROCEDURE FOR BRINGING AND GRANTING RESPONDENTíS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
    2.  

      After all issues are finally decided by the trial court, a party may file and serve a notice of motion for new trial and a notice of motion for judgment notwithstanding the verdict within fifteen days of service of the notice of entry of judgment. Code of Civil Procedure Sections 629, 659.

      In Hauter v. Zogarts, (1975) 14 Cal.3d 104, 110, the California Supreme Court outlined the standard for deciding such motions if the motions are timely filed:

      "The trial judgeís power to grant a judgment notwithstanding the verdict is identical to his [or her] power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence. [Citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] ĎA motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied. [Citation.]"

       

      In the case at bar, the trial court denied Respondentís motion for a directed verdict at the end of the trial on the grounds that there was substantial evidence that supported Appellantís causes of action for breach of contract and for racial discrimination.

      The jury returned from its deliberations on June 6, 1994 with a unanimous (12-0) verdict on the Breach of Contract cause of action, awarding Appellant Cobb $2.1 Million. The verdict was a general verdict with special interrogatories. The jury hung 8-4 in Appellantís favor on the second cause of action for Race Discrimination. The trial court declared a mistrial as to the second cause of action for Race Discrimination and discharged the jury. The second cause of action for Race Discrimination remained to be retried.

      Before a final decision of all of the issues of the case was made by the trial court, Respondent filed a motion for judgment notwithstanding the verdict to reduce the damages by $1 Million. That motion for judgment notwithstanding the verdict was granted on July 15, 1994. This Court has taken judicial notice of its prior finding that this July 15, 1994 motion amounts to a motion for judgment notwithstanding the verdict.

      Respondent then filed a second motion for judgment notwithstanding the verdict for hearing on August 10, 1994. At the same time, Respondent filed a motion for new trial, also set for hearing on August 10, 1994. The August 10, 1994 motion for judgment notwithstanding the verdict was also filed and granted before a final decision was made as to all of the issues of the case.

      All of the issues of the case were not finally decided until the trial court granted summary judgment as to the Race Discrimination cause of action in April 1997.

       

       

       

       

    3. THE TRIAL COURTíS ORDERS GRANTING A JUDGMENT NOTWITHSTANDING VERDICT AND A NEW TRIAL WERE IMPROPER AND REVERSIBLE, AS RESPONDENTíS MOTIONS WERE NOT TIMELY FILED.
    4.  

       

      Respondent failed to file any timely motion for new trial or for judgment notwithstanding the verdict after the trial court had finally decided all issues in the case in April 1997.

      Having failed to comply with the threshold mandatory requirements imposed upon litigants for filing motions for new trial and for judgment notwithstanding the verdict, and having failed to object to its own verdict form during the trial, Respondent finds itself with no legal argument upon which to stand.

      Respondent fails to acknowledge the longstanding rule that its premature 1994 motions for new trial and for judgment on the pleadings are void, a nullity and ineffectual for any purpose. The missed deadlines are mandatory and jurisdictional. This case is not unique. Extensive case precedence exists regarding the mandatory filing deadlines. Numerous cases exist that deal with this exact situation, where a litigant filed a premature and therefore void and ineffectual motion for new trial or for judgment notwithstanding the verdict. In those cases, the litigant corrected the problem by filing a second motion after the trial court had finally decided all of the issues of the case. Numerous cases allude to the timely filing of the second motion for new trial or for judgment notwithstanding the verdict after the first motion was found to be premature and ineffectual for any purpose. (See: Tabor v. Superior Court, (1946) 28 Cal.2d 505, 509; The Yamato v. Bank of Southern California, (1915) 170 Cal. 350, 356; Peters v. Anderson, (1931) 113 Cal. App.158, 161; Nitich v. Fernandez, (1961) 197 Cal. App.2d 858, 861; (Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 463).

      In the case at bar, however, Respondent simply failed to file any timely motions for new trial and for judgment notwithstanding the verdict after all of the issues of the case had been finally decided in April, 1997. The Court of Appeal had informed respondent that its motions were premature and ineffectual. Cobb v. University of Southern California, (1996) 45 Cal. App.4th 1140, at 1146:

      "In sum, we hold that the grant of a new trial as to certain issues before there has been a final determination of all of the issues in a lawsuit is ineffectualÖ."

       

      Respondent, on Page 18 of its Reply To Opposition To Dismiss Appeal of the first appeal (Appellate Case No. B087275) admitted that the July 15, 1994 motion for judgment notwithstanding the verdict that had been filed in this case was premature and void:

      "Ö[I]f the July 15, 1994 ruling were a JNOV, it was premature and voidÖ."

       

      The Court did rule that the first July 15, 1994 motion was a JNOV motion. Cobb v. University of Southern California, (1995) 32 Cal. App.4th 798, at 803-804. The Court took Judicial Notice of that ruling in the instant appeal. (See: Appellantís Request For Taking Of Judicial Notice Of Record In Former Appeal In Same Case, Request No. 8, at Pages 2-3; Courtís Order Granting Request For Taking Of Judicial Notice.)

      Respondent well understood the consequence of a premature filing. Yet, when the case was finally decided as to all issues in April, 1997, Respondent let the filing deadline expire without timely filing the motions.

      In Horton v. Jones, (1972) 26 Cal. App.3d 952, at 955, the appellate court held that these motions may not be brought or granted until all of the issues of the case have been finally disposed of:

      "Ö[A] new trial may only be granted after all issues have been tried. It cannot be granted until after both phases of a bifurcated trial have been tried. [Citations.] Thus, under Code of Civil Procedure, section 629, a motion for judgment notwithstanding verdict cannot even properly be made, until all of the issues have been disposed of." [Emphasis by court.]

      Neither a motion for new trial nor a motion for judgment notwithstanding the verdict can be made until all of the issues in a bifurcated case have been determined and the jury has returned verdicts on both liability and damages. (Meyser v. American Building Maintenance, Inc., (1978) 85 Cal. App.3d 933, 937).

      Since the premature motion for judgment notwithstanding the verdict was void, there remains no judgment; and since the premature motion for new trial was also void and of no validity, there is no new trial order before the court. (Pastor v. Younis, (1965) 238 Cal. App.2d 259, 264, ["The judgment on the verdict being void, there remains no judgment on the verdict; the motions for new trial were premature, and of no validity."]).

      In Mercer v. Perez, (1968) 68 Cal.2d 104, at 118, the California Supreme Court held that a trial courtís order granting new trial is in excess of the trial courtís jurisdiction and void if such order is made upon a notice of motion that is filed prematurely, and that upon appeal, such an order is "reversible per se":

      "As the motion for a new trial finds both its source and its limitations in the statutes [citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [citations]. Applying this rule, it has uniformly been held that an order granting a new trial is in excess of jurisdiction and void if, for example, it is made Ö upon a notice of intention that is filed prematurely [citations] or too late [citation] Ö or if the court purports to grant the motion after expiration of the statutory time for ruling [citation]. When challenged on appeal, such an order is reversible per se."

      These rules requiring a timely filing have been longstanding, as can be seen from these earlier Supreme Court pronouncements:

       

      "Ö[G]iving notice of intention to move for a new trial before the case is decided is Ďpremature,í and without legal effect. That is sound law." (Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 459 [Emphasis by court.])

       

      " Ď Proceedings for a new trial taken prematurely are a nullity and ineffectual for any purposeí [Citation], and it is not within the power of the litigants to invest the court with jurisdiction to hear and determine the motion for a new trial by consent, waiver, agreement or acquiescence. [Citations.] " (Tabor v. Superior Court, (1946) 28 Cal.2d 505, 507.)

       

      "A premature motion for a new trial is ineffectual; and the order of the court in denying or granting it is void and may be ignored or set aside by the court. [Citations.] (Middleton v. Finney, (1931) 214 Cal. 523, 527.)

       

      "It is entirely clear that Ďthere remained something more for the court to do before judgment could be entered.í We therefore conclude from the cited authorities that the notice of intention to move for a new trial was prematurely filed and was ineffectual for any purpose [citations]Ö." (City of Los Angeles v. Cole, (1946) 28 Cal.2d 509, 514.)

       

      "The power of the legislature [in] specifying procedural steps for new trials is exclusive and unlimited. [Citations.] The wisdom of or necessity for certain requirements are matters for legislative and not judicial consideration and the judiciary, in its interpretation of legislative enactment may not usurp the legislative function by substituting its own ideas for those expressed by the legislature.

      As the motion for a new trial finds both its source and its limitations in the statutes [citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed. [Citations.] Applying this rule, it has uniformly been held that an order granting a new trial is in excess of jurisdiction if, for example, it is made Ö upon a notice of intention that is filed prematurely [citation]Ö." (Mercer v. Perez, (1968) 68 Cal.2d 104, 117-118.)

       

       

       

      In the case at bar, Respondent filed the notices and motions for new trial and judgment notwithstanding verdict prematurely, before all issues of the case were finally decided by the trial court. All issues in the case at bar were not finally decided by the trial court until April 1997. Yet, Respondent failed to file any motion for new trial or for judgment notwithstanding verdict after all issues were finally decided. To this day no motions for new trial or for judgment notwithstanding verdict have been filed, timely or late, after the trial court finally decided all issues in this case in April 1997.

      Since Respondentís original motions for judgment notwithstanding the verdict and for new trial were filed prematurely, the trial courtís orders granting the motions are reversible per se. (Mercer v. Perez, supra, 68 Cal.2d at 118.) The failure of Respondent to file any timely motions means that there are no valid motions or orders from the trial court that are subject to review.

      Respondent attempts to trivialize the mandatory statutes as mere "procedural rules" and its failure to comply as "a procedural hitch" (Resp. Brief, Page 8), "counselís ministerial error" (Resp. Brief, Page 32) and as "shortfalls" (Resp. Brief, Page 44). In fact, these rules are mandatory and jurisdictional. Respondentís failure to comply with the timely notice and motion rules means that there are no motions or orders for new trial or for judgment notwithstanding the verdict before this Court. There is thus, no action for the Court to take other than reinstating the verdict for Appellant for $2.1 Million.

       

       

       

       

       

       

       

    5. THE ISSUE OF THE TRIAL COURTíS LACK OF JURISDICTION TO GRANT NEW TRIAL OR JUDGMENT NOTWITHSTANDING THE VERDICT IS NEVER WAIVED.
    6.  

      On Page 38, footnote 15 of Respondentís Answering Brief, Respondent contends that Appellant Cobb failed to raise the issue of the trial courtís lack of jurisdiction before the trial court. However, it is a basic legal principle that the lack of jurisdiction is never waived, and may be asserted for the first time on appeal.

      As noted in Appellantís Opening Brief, the timely filing of these motions is jurisdictional, and the time cannot be waived or extended by the parties:

      "It is well settled that a timely filing of notice of intention to move for a new trial is jurisdictional, and the time cannot be extended or waived by the parties." (In Re Marriage of Beilock, (1978) 81 Cal. App.3d 713, 721).

       

      There also is no theory of estoppel available to rescue Respondent from its failure to timely file its motions for new trial and for judgment notwithstanding the verdict:

      "Defendants further argue that plaintiff should be estopped from raising the objection that the notice was prematurely filed, but as the objection has been held to be one going to the jurisdiction of the trial court, we do not believe that jurisdiction can be conferred by estoppel when neither consent, waiver, agreement nor acquiescence will suffice. [Citations.]" (Foon Chuck v. Chin Po Foon, (1947) 29 Cal.2d 552, at 554).

       

      And in Roberts v. Roberts, (1966) 241 Cal. App.2d 93, the appellate court ruled that failure to raise the issues of premature, late and void motions and orders for new trial and for judgment notwithstanding the verdict before the trial court does not deprive the appellant of the ability to raise the issue on appeal:

      "The record reflects that plaintiff did not assert the nullity of the order in the court below. Defendant adverts to this but does not challenge plaintiffís right to urge the point on appeal. While it is a settled rule of appellate review that points not raised in the trial court will not be considered on appeal [citations] and while, as a corollary to the above rule, a party must adhere on appeal to the theory upon which the case was tried below and cannot for the first time on appeal adopt a new and different theory [citations], nevertheless, an exception to the last rule exists and where the newly advanced theory presents, as it does here, only a question of law arising on agreed facts, a change of theory is permitted on appeal. [Citations.] We therefore proceed to a consideration of the question whether the formal order is void."

       

      Since Respondent has already taken the position, in its motion to dismiss the first appeal, that the July 15, 1994 motion for judgment notwithstanding the verdict was premature and therefore void, and since the Court has already taken Judicial Notice of that fact, the cases holding that the timely filing is mandatory and jurisdictional and cannot be waived, agreed to or acquiesced in by the parties defeat Respondentís position. (Code of Civil Procedure Section 434.)

    7. RESPONDENT SHOULD HAVE FILED A SECOND SET OF TIMELY MOTIONS FOR NEW TRIAL AND FOR JUDGMENT NOTWITHSTANDING VERDICT AFTER ALL ISSUES IN THE CASE WERE FINALLY DECIDED IN APRIL 1997.
    8.  

      The cases outline the course of action that Respondent should have taken, but failed to take, after its motions for judgment notwithstanding verdict and for new trial were deemed to be premature, void, a nullity and of no legal effect whatsoever.

      In The Yamato v. Bank of Southern California, (1915) 170 Cal. 351, 149 P. 826, in Tabor v. Superior Court, (1946) 28 Cal.2d 505, and in Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 462, the Supreme Court has consistently held that after the initial notice of motion is declared premature, void, a nullity and ineffectual for any purpose, the correct action to take is to file a second, timely notice of motion after all issues have been finally decided to seek a valid second order.

      In Root v. Daugherty, (1927) 201 Cal. 12, 15, the Supreme Court declined for want of jurisdiction to assist the appellant because the premature motion for new trial was ineffectual and a nullity and because appellant failed to follow up with a subsequent timely motion for new trial:

      "The proceedings on motion for new trial herein having been prematurely instituted were ineffectual and a nullity and no other proceedings for new trial having been subsequently and seasonably commenced Ö we are constrained, for want of jurisdiction of the causeÖ."

       

      Since the appellate court is only looking at premature 1994 motions for new trial and for judgment notwithstanding verdict that are void, a nullity and without legal effect for any purpose, it is respectfully submitted that the appellate court is looking at an unchallenged unanimous (12-0) jury verdict in Appellant Cobbís favor for $2.1 Million. There is nothing for the appellate court to do except to declare that the verdict in favor of Appellant Cobb should be reinstated.

      For, as stated in Ehrler v. Ehrler, (1981) 126 Cal. App.3d at 153:

      "As the notice of motion [for new trial] was void and of no effect there is nothing to review."

       

    9. BEAVERS v. ALLSTATE, HEAVY DUTY TRUCK LEASING, INC. v. SUPERIOR COURT AND AUTO EQUITY SALES, INC. v. SUPERIOR COURT DO NOT SUPPORT RESPONDENTíS POSITION.
    10.  

      Respondentís Answering Brief relies upon the case of Beavers v. Allstate Insurance Co., (1990) 225 Cal. App.3d 310, for the proposition that "where there is an order for a partial new trial after a final judgment, the case is thrown into flux deeming the entire matter unappealable until such time as the entire case once again is resolved through final judgment" (Resp. Brief, Page 42). But Beavers is of no help to Respondent because each of the moving parties in those cases filed timely new trial motions after a final judgment, whereas Respondent in the instant case did not.

      Respondent also relies upon Heavy Duty Truck Leasing v. Superior Court, (1970) 11 Cal. App.3d 116, 118-119, to argue that the appellate court "implied" that a new trial order can be made even though some causes of action have not been finally decided by the trial court. (Resp. Brief, Pages 19-20.) This argument is without merit.

      1. BEAVERS v. ALLSTATE:

      Beavers did not involve premature, void and ineffectual motions and orders for new trial and for judgment notwithstanding the verdict. In Beavers there was no question but that the motions for new trial and for judgment notwithstanding the verdict were timely filed after all of the issues and causes of action were decided by the trial court. (See Beavers, supra, 225 Cal. App.3d at 322). Beavers does not excuse the threshold failure of Respondent to timely file motions for new trial and for judgment notwithstanding the verdict after all issues of the instant case were finally decided in 1997.

      Respondent is begging the question. The rule that the trial court may grant a new trial or a judgment notwithstanding the verdict as to some issues or causes of action after a final decision as to all issues is nothing new. But Beavers requires an "aggrieved party" who timely files the motions after a final decision has been rendered as to all issues. (Id., at pg. 330.) This is not the situation in this case, where Respondent has failed to file any timely motions for new trial or for judgment notwithstanding the verdict after all issues were finally decided in 1997.

      Beavers cites Code of Civil Procedure Section 629 for the proposition that certain posttrial motions may be brought by "the aggrieved party". (Beavers, supra, 225 Cal. App.3d at 322, 323.) However, as noted in Tabor v. Superior Court, supra, 28 Cal.2d 505, 507, when there remains something to do before the judgment can be entered, there is no "aggrieved party" who can move for new trial or judgment notwithstanding the verdict. In the case at bar, there remained a decision on the Race Discrimination cause of action and on the issue of bifurcated punitive damages. When those issues were finally decided by the trial court in April 1997, there was an "aggrieved party", a "decision" and a "judgment". Yet Respondent failed to file anything at that point in time.

      Respondent also argues that the cases do not take into account the evolving legislation and judicial trends which grant trial judges judicial discretion to deal with discrete portions of cases. (Respondentís Answering Brief, at Page 39.) The Beavers case and Cobb v. University of Southern California, (1996) 45 Cal. App.4th 1140, take these matters into account.

      Respondent references Beavers (Resp. Brief, Page 20) to argue that where the Legislature, in devising a procedure for partial resolution of issues, has failed to coordinate expressly the procedure with the one final judgment rule, the reviewing courts may do so through construction. This argument has no merit. In the case at bar, the Legislature has not failed to expressly coordinate the procedure for partial resolution of issues with the one final judgment rule. Had Respondent timely filed its motions, the trial court would have had jurisdiction to grant or deny the motions in full or in part. Respondentís failure to file timely motions after all issues were finally decided by the trial court in 1997 deprived the trial court of the power to follow procedures already put in place by the Legislature and by judicial interpretation.

      Numerous cases, including Cobb, supra, Yamato, supra, Horton, supra, and Tabor, supra, have already dealt with premature and void motions for new trial and for judgment notwithstanding the verdict, with the need to file a timely set of posttrial motions after all issues and causes of action have been finally decided by the trial court, and with the consequences of failing to file these motions timely.

       

       

      2. HEAVY DUTY TRUCK LEASING, INC. v. SUPERIOR COURT:

      Heavy Duty Truck Leasing, Inc. v. Superior Court, (1970) 11 Cal. App.3d 116, 118-119, has been offered by Respondent in support of Respondentís argument that since a trial court may order a partial judgment notwithstanding the verdict or partial new trial, motions for new trial and for judgment notwithstanding the verdict could be filed and decided in the instant case before all issues had been finally decided by the trial court in 1997. (Resp. Brief, Pages 19-20.) Respondentís contention has no merit. Heavy Duty does not permit a filing of a motion for new trial or for judgment notwithstanding the verdict before all issues have been finally decided by the trial court.

      Heavy Duty is distinguishable from the case at bar. Despite Respondentís contention to the contrary (Resp. Brief, Page 20), the Heavy Duty court did not imply that a new trial order could have been made despite undetermined causes of action. The Heavy Duty court declined to presume or to speculate as to whether the trial court could have or would have complied with "all of the requirements of section 657 on a specific motion for new trial. [Citation.]" (Heavy Duty, supra, 11 Cal. App.3d at 119.) This means that the Heavy Duty court did not even presume to rule on the question of whether the new trial order would have been timely as to the petitioner whose case was finally decided, or untimely as to the remaining defendants whose cases were not finally decided. This refusal on the part of the Heavy Duty court to speculate as to whether a new trial motion or order could comply with the specific requirements of a new trial motion (including timeliness) does not support Respondentís claim that a new trial is proper where a mistrial is declared. The Heavy Duty court instead corrected the problem by issuing a peremptory writ of mandate ordering the trial court to vacate the order of mistrial as to the petitioner, who had already had all issues finally decided in its favor. There was no basis upon which to grant any new trial for the remaining Heavy Duty defendants because they had not received a final decision as to all issues and causes of action.

      In the case at bar, a final decision as to all issues has been rendered as to the Appellant. Appellant is therefore an "aggrieved party". No issues remained that were undetermined after April 28, 1997. The mistrial in the case at bar was not based on insufficiency of the evidence, which the Heavy Duty court held is not a grounds for mistrial, but is instead a ground for a new trial. As in Heavy Duty, the Court should decline to substitute a mistrial order for a new trial order for a number of reasons. An order declaring a mistrial is not appealable, while an order granting a new trial is. The mistrial order in the case at bar was not specific enough to comply with the requirements of Code of Civil Procedure Section 657 for a new trial order as to grounds or reasons supporting any new trial order. In the case at bar, the trial court could not have complied with all of the requirements of Code of Civil Procedure Section 657 on a specific motion for new trial. All of the issues of the case had not been finally decided at the time that the trial court declared a mistrial on June 6, 1994. A new trial motion or order would have been premature at that point, and therefore void, a nullity and of no legal effect whatsoever. The trial court was without jurisdiction to grant these premature motions. This Court has already ruled that the new trial motion, heard by the trial court over a month after the mistrial was declared, was premature and "ineffectual". (Cobb v. University of Southern California, (1996) 45 Cal. App.4th 1140, 1146.)

      Heavy Duty is of no help to Respondent. Respondentís contention that "the [Heavy Duty] court implied that a new trial order could have been made although some causes of action remained undetermined due to jury deadlock" (Resp. Brief, Page 20) is without merit. No causes of action remained to be determined as to the Heavy Duty petitioner, and even that petitioner did not receive a new trial in exchange for an improperly declared mistrial. The appropriate remedy in Heavy Duty was to simply vacate the mistrial order as to the petitioner who had all issues and causes of action finally determined by the jury in his favor. And no new trial was ordered in Heavy Duty as to the remaining defendants who had not received a final decision as to all issues.

       

      3. AUTO EQUITY SALES, INC. v. SUPERIOR COURT:

      Respondent refers to Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 458-460, for the proposition that a notice of intention to move for a new trial will be premature only if filed before the verdict is rendered which decides the case. (Resp. Brief, Page 39.)

      As the complete Auto Equity quote appears in context:

      "For purposes of [Code of Civil Procedure] section 659 a Ďtrialí is complete when all the issues have been determined [Citation] as to the party aggrieved in question. [Citation.] In a jury tried case the trial is not complete until the jury renders a verdict [citation], but once it has rendered a verdict disposing of all issues in the case then there has been a Ďtrial and decisioní. In a case tried by a jury, a notice of intention to move for a new trial will be Ďprematureí only if filed before the verdict is rendered which decides the case." (Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 458-461.) [Emphasis added.]

       

      And where the jury brings in a verdict disposing of one or more of the issues but leaving certain others undecided, a notice of motion filed at that point but before judgment is premature and unavailing. Re Estate of McKenna, (1903) 138 Cal. 439, 440.

      In the case at bar, the jury did not render "a verdict disposing of all issues in the case". The juryís 1994 verdict disposed of one or more of the issues, but left other issues undecided. The new trial, judgment notwithstanding the verdict and judgment correction orders were therefore premature, void and ineffectual.

      Respondentís reliance upon Auto Equity is therefore misplaced. Auto Equity fully supports Appellantís position that the motions for new trial and for judgment notwithstanding the verdict were premature, and that the motions are therefore void and without legal any effect.

       

    11. RESPONDENTíS COMPLAINT ABOUT THE HARSH RESULT OF HAVING FAILED TO TIMELY FILE ITS MOTIONS FOR NEW TRIAL AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT IS WITHOUT MERIT.

 

Respondent decries the harsh result of the mandatory statutes. (Resp. Brief at Pages 8, 43-44.) However, the Supreme Court expressly addressed this argument in Tabor v. Superior Court, (1946) 28 Cal.2d 505, 508-509:

 

"Ö[I]t is plain in this case that the premature notice of intention to move for a new trial was Ďa nullity and ineffectual for any purposeí and that in the absence of the filing of a timely notice, respondent court was without power to entertain the motion Ö. Such definite interpretation of the statute governing new trials leaves no doubt as to the earliest possible time at which such proceedings may properly be instituted and precludes confusion on the part of litigants in safeguarding their statutory rights. [Citation.] There can be no doubt that the rule which is firmly established by the cited authorities may lead to harsh results in certain cases. On the other hand, the adoption of any other rule could lead to endless confusion in computing the expiration of the time within which the trial court has power to pass upon a motion for a new trial [citation] and in computing the time within which an appeal may be taken in cases where a motion is denied by operation of law [citation] Ė and particularly in those cases where findings are not filed for several months after the notice of intention is given and in those cases where a second notice of intention is filed, admittedly within the time provided by law, as was the fact in The Yamato v. Bank of Southern California, supra, 170 Cal. App. 350, 356. (See, also, Peters v. Anderson, supra, 113 Cal. App. 158, 161.)."

"All proceedings for a new trial having been abortive in this case, respondent court lacked jurisdiction to grant the motion, and its order purporting to grant a new trial was Ďvoid and of no force or effect Ö as completely as if never entered.í [Citation.]" [Emphasis added.])

 

 

 

II

 

 

RESPONDENTíS ARGUMENT THAT THE JUDGMENT NOTWITHSTANDING THE VERDICT WAS SUPPORTED BY APPELLANTíS OWN ADMISSIONS IS WITHOUT MERIT.

 

Respondent contends that Appellant Cobbís alleged admission that the parties modified the employment contract and that such a modification waived Appellantís right to damages for Respondentís breach of contract. (Resp. Brief, Page 13-15, 18-26.) This contention is without merit.

  1. PROCEDURE FOR DECIDING JNOV ON THE MERITS.

A motion for judgment notwithstanding the verdict:

"Ömay be granted, properly, when, disregarding the conflicting evidence, and in indulging in every legitimate inference in favor of the plaintiff, the result is a determination that there is no evidence of substantial nature to support the verdict. The trial court, on such motion, is not permitted to weigh the evidence, and on an appeal from the judgment entered on the granting of such a motion, the appellate court must read the record in the light, most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences to support the judgment." (Contini v. Western Title Insurance Company, (1974) 40 Cal. 3d 536, 549.) [Emphasis added.]

 

    1. ALLEGED ADMISSION NUMBER 1:

 

"We had a new agreement" [Resp. brief, page 22]

 

1. NO CONSIDERATION FOR ALLEGED MODIFICATION.

 

 

Respondent has not cited to the record concerning the terms or any consideration for this new agreement. Thus, Respondent has failed to demonstrate that there is no conflict in the evidence and that there is no substantial evidence that a contract existed between Appellant and Respondent that was breached by Respondent.

 

2. A MODIFICATION OF THE CONTRACT DOES NOT WAIVE ANY SUBSEQUENT BREACH.

 

Assuming, arguendo, that there was a modification of the agreement, a modification of the contract does not waive any subsequent breach of contract. (Woodard v. Glenwood Lumber Co., (1915) 171 Cal. 513, at 523).

Respondentís contention that "the trial court correctly found that the breach of contract claim was not supported by substantial evidence because Cobb had waived any right to claim breach of contract by agreeing to new terms." (Respondentís Answering Brief, page 21.) is without merit.

First, Respondent fails to cite to the record to demonstrate that the trial court granted the motion for judgment notwithstanding the verdict "because Cobb had waived any right to claim breach of contract by agreeing to new terms".

Secondly, if the trial court did grant judgment notwithstanding the verdict "because Cobb waived any right to claim breach of contract by agreeing to new terms", then the trial court committed reversible error.

Respondentís brief relies upon two alleged admissions as the support for its contention that judgment notwithstanding the verdict was properly granted:

    1. Cobb allegedly "admitted that he and USC had agreed to new terms by which he could receive promotion, thereby waiving any claim of breach of an earlier alleged Ďcontractí; and
    2. Cobb allegedly "admitted that he did not fulfill the terms of this new agreement to his supervisorís satisfaction." (Respondentís Answering Brief, page 18).

Respondentís contention fails for several reasons. First, Respondent is estopped from asserting waiver because the delay in promoting Appellant in 1988 was at Respondentís behest. (A.O.B. at Page 20.)

Secondly, the damages awarded to Appellant were damages that resulted from respondentís breaching conduct that continued subsequent to the February, 1989, date of the alleged new agreement. Appellantís Opening Brief referenced post-modification breaching conduct, including the harassment, retaliation and failure to investigate the November 12, 1990 Memorandum that attempted to destroy or kill appellant in a phony drug bust in order to undermine appellantís lawsuit (an obstruction of justice). (See: A.O.B. Page 25.) The $1.3 Million loss of future earning capacity is calculated beyond the February 1989 date of the new agreement.

Thirdly, Cobb did not admit that he did not substantially fulfill the terms of the new agreement to his supervisorís expectations. Cobb substantially performed. Cobb only testified that his supervisorís excuse for continuing to deny Cobb the promotion was that Cobb hadnít done the job. And Cobb disagreed with his supervisorís contention:

"Q. All right. And then he [McGee] didnít promote you at the end of the 6 or 12 months either, did he?"

"A. No, sir. Thatís correct."

"Because he contended that you hadnít done the job; isnít that right?"

"A. Thatís what he contended. Yes, sir."

"Q. And you disagree with that; right?"

"A. Yes Sir, I do."

(Resp. App. at 36A:2-18.)

Appellantís testimony regarding this disagreement, coupled with evidence of post- 1989 breaches of contract, created substantial evidence of Respondentís breach of contract. Given the dispute and the conflict regarding Appellantís satisfactory, substantial compliance of the terms of the employment contract, the granting of judgment notwithstanding the verdict was an abuse of discretion and reversible error.

 

    1. ALLEGED ADMISSION NUMBER 2:
    2. "Q. You agreed to change the terms of this agreementÖ?"

      "A. Yes, sir." (Resp. Brief, page 23.)

      The second alleged admission referred to by Respondent does not constitute a contractual modification because Respondent was already obligated to promote Appellant and Respondent gave no additional consideration.

      Assuming, arguendo, that there was a modification, Appellantís substantial compliance with the modified terms, Respondentís good faith, and whether Respondentís conduct prevented Appellant from performing were all questions of fact for the jury.

      Substantial evidence was presented at trial and in appellantís Opening Brief that Appellant Cobb had substantially performed his job duties. (See: A.O.B. at pages 18, 21, 22, 23, 24, 25, 26, 28.)

      As referenced in Respondentís Answering Brief, page 23, there was a conflict in the evidence as to whether Appellant substantially performed his job duties:

      "Q. Because he [supervisor McGee] contended you hadnít done the job; isnít that right?"

      "A. Thatís what he contended. Yes, sir."

      "Q. And you disagree with that; right?"

      "A. Yes, sir, I do. [Emphasis added.]"

      There was a dispute. Respondentís own attorney admitted that there may be a dispute in the evidence as to whether Appellant Cobb performed his job duties after the alleged modification. (Trial Transcript Vol. 40, page 5621, lines 16-17.) The trier of fact resolved that dispute in Appellantís favor.

      In view of the substantial evidence produced during three months of trial by Appellant in support of his Breach of Contract cause of action, and disregarding the conflicting evidence, Appellant was entitled to have any conflict resolved in his favor by the trial court in deciding the motion for judgment notwithstanding the verdict. (Quintal v. Laurel Grove Hospital, (1964) 62 Cal. 2d 154, 159.) Accordingly, the trial courtís order granting judgment notwithstanding the verdict on the merits was improper and should be reversed.

       

    3. RESPONDENTíS OWN ATTORNEY ADMITTED THAT A DISPUTE EXISTED AS TO WHETHER APPELLANT PERFORMED HIS DUTIES FOLLOWING AN ALLEGED MODIFICATION OF THE EMPLOYMENT CONTRACT.
    4.  

      Johnnie Cochran, Respondentís own attorney, admitted that a dispute existed over whether Appellant Cobb performed his duties following an alleged modification of the employment contract. In the Trial Transcript ("TR.TR.") Volume 40, page 5621 at lines 16-17, Respondent admits that "There may be a dispute as to whether he [Cobb] performed thereafter." This admission of a conflict in the evidence on this foundational point precludes the trial court from granting a motion for judgment notwithstanding the verdict on the merits:

      "A basic requirement for sustaining a judgment n.o.v. is that no substantial conflict in the evidence exists. [Citation.] The judgment ordered for defendants, notwithstanding the verdict for plaintiff, must be reversed since the evidence was in conflict on the points foundational to the trial courtís rulingsÖ." (McCown v. Spencer, (1970) 8 Cal. App.3d 216, 226).

       

      Assuming, arguendo, that a modification for adequate consideration existed, Respondentís admission that there was a dispute in the evidence on whether Appellant Cobb performed his duties thereafter establishes a "conflict on points foundational to the trial courtís rulings" (McCown, supra.) The trial courtís order for judgment for Respondent, notwithstanding the verdict for Appellant Cobb, should therefore be reversed.

      According to Respondentís December 1992 Separate Statement of Undisputed Facts (of which the Court has taken Judicial Notice), Respondent had agreed to promote Appellant in two years. Appellant accepted the employment contract in reliance upon Respondentís promise to promote Appellant in two years.

      Respondentís refusal to promote Appellant in two years, as promised, and Respondentís retaliatory conduct against Appellant, constituted a breach of contract. Appellant has presented ample evidence of Respondentís breach in Appellantís Opening Brief. (A.O.B., Pages 19, 20, 24-29.)

      Appellant did not agree to waive any breach by Respondent even though Respondent imposed new terms upon Appellant. Appellant was merely forced into a position where new terms were being heaped onto the contract. There is no evidence that Appellant agreed to waive any breach that had been committed by Respondent prior to the alleged modification.

    5. ASSUMING, ARGUENDO, A WAIVER OF THE BREACH BY AGREEING TO MODIFICATION OF THE CONTRACT, APPELLANT STILL MAY ASSERT A CLAIM FOR ANY SUBSEQUENT BREACH OF THE CONTRACT.
    6.  

      Assuming, arguendo, that Appellant waived Respondentís breach up to the point of the alleged modification, Appellant may still assert a cause of action for any breach of the continuing employment contract that occurred subsequent to such an alleged modification.

      "In the continuing obligation cases, a waiver of a breach up to a certain time does not necessarily preclude the promisee from asserting a subsequent breach. [Citations.]" (Bowman v. Santa Clara County, (1957) 153 Cal. App.2d 707, 713).

       

      Appellant Cobb presented evidence of Respondentís breach of the employment contract after the 1989 alleged modification. (A.O.B., Pages 25, 26, 27.) These subsequent acts of breach by Respondent that occurred in 1990 and 1991were not addressed at all by Respondentís Answering Brief.

      The bulk of the damages asserted by Appellant Cobb occurred and continued after the date of the alleged modification. Appellant Cobb properly alleged and proved an ongoing breach and damages subsequent to any alleged modification of the contract. Respondentís attorney admitted that there was a dispute as to whether Appellant performed his job duties thereafter, precluding any granting of a judgment notwithstanding the verdict. The trial court abused its discretion in granting Respondentís motions for new trial and for judgment notwithstanding the verdict. The orders should be reversed and the original unanimous jury verdict of $2.1 Million for Appellant should be reinstated and judgment ordered to be entered thereupon.

       

    7. RESPONDENT IS ESTOPPED TO CLAIM WAIVER WHERE DELAY WAS GRANTED AT RESPONDENTíS REQUEST IN ORDER TO ENABLE RESPONDENT TO PERFORM AN AGREEMENT WHICH RESPONDENT WAS UNABLE TO PERFORM AT THE TIME STIPULATED.
    8.  

      Where a party to a contract requests and receives a delay in performance in order to enable that party to perform an agreement which the party is unable to perform at the time stipulated, that requesting party is estopped from asserting a waiver:

      "Ö[T]he obligation Ö was a continuing covenant. Every dayís failure, without justification, Ö was a new breach of the contract, and the fact that plaintiff may have waived the breach up to a given time did not preclude him from asserting a subsequent breach. [Citations.] Furthermore, while the plaintiff is obliged to rescind promptly, the defendant cannot rely upon delays which have been the result of an indulgence extended to him by the plaintiff . ĎÖ. For while it is true that the right Ö must be exercised promptly and is lost by delay, it is equally true that it does not lie in the mouth of the delinquent party to object to a delay which has been granted at his instance in order to enable him to perform an agreement which he is unable to perform at the time stipulatedÖ.í " Woodard v. Glenwood Lumber Co., (1915) 171 Cal. 513, 523.

       

      Respondent is estopped to claim delay or waiver of the Respondentís breach of contract because it does not lie in the mouth of Respondent, as the delinquent party, to object to a delay which has been granted at Respondentís instance in order to enable Respondent to perform an agreement which Respondent was unable to perform at the time stipulated.

      And where the obligation under a contract is continuing, the fact that one party waives the breaches of the covenant up to a given time does not preclude him from asserting a subsequent breach. 14 Cal. Jur.3d CONTRACTS, Section 293, at Page 621; (Woodard v. Glenwood Lumber Co., supra, 171 Cal. 513, 523).

      Appellant furnished ample evidence to warrant reversal of the motions for new trial and for judgment notwithstanding the verdict on the merits. Appellantís Opening Brief exhaustively cited to the record to demonstrate to the Court that there was evidence of a contract and a breach thereof and damages suffered by Appellant.

       

    9. B.A.J.I. 10.88 WAS OFFERED BY RESPONDENT AT TRIAL AS JURY INSTRUCTION 28 AND PERMITTED APPELLANT COBB TO CLAIM ALL DAMAGES CAUSED BY THE BREACH.
    10.  

      Respondentís argument that Jury Instruction 28 does not permit the jury to award damages caused by Respondentís breach of the contract (Resp. Brief, Page 26, footnote 9) is without merit.

      According to the B.A.J.I. 10.88 (1990 NEW) jury instruction requested by Respondent and given at the trial, the jury was instructed that if it found that a modification of the contract occurred, the jury could still award all "damages caused by the breach". (See: A.O.B., Page 16.) The initial breach by refusing to promote Appellant Cobb in two years as promised entitled Appellant to recover all damages caused by the breach. Appellant was also entitled to recover for each subsequent breach of the contract. The jury properly awarded Appellantís damages, deciding that Appellant Cobb had been injured and damaged in numerous ways, in addition to being denied promotions to which he was entitled.

       

    11. JUDGMENT NOTWITHSTANDING THE VERDICT WAS IMPROPERLY GRANTED ON THE MERITS AND SHOULD BE REVERSED.
    12.  

      As was noted above, "[a] basic requirement for sustaining a judgment n.o.v. is that no substantial conflict in the evidence exists." (McCown v. Spencer, supra, 8 Cal. App.3d at 226.

      The trial court improperly granted judgment notwithstanding the verdict on the merits.

      As Appellantís Opening Brief demonstrated, Appellant Cobb amply demonstrated that a contract existed between Appellant and Respondent (TR.TR. Vol. 10, page 1551, line 2 to page 1552 line 2; Vol. 10, page 1574, line 7-12) wherein Respondent promised to promote Appellant in two years (TR.TR. Vol. 4, page 660, lines 1 to page 663 line 24; Vol. 10, page 1618, line 1-9.) and wherein Respondent asked Appellant for additional time in order to comply with the terms of the contract. (Resp. App. At 36 A:2-18). In February 1989 Respondent imposed additional conditions upon Appellant. Up until Appellant demanded the promised promotion in 1988, Respondent was very, very pleased with Appellantís performance (TR.TR. Vol. 10, page 1612, line 11-16; Vol. 10, page 1615, line 18 to page 1617, line 23). Respondentís breach of promise to promote Appellant Cobb in two years was substantial and was not remedied by unilateral modifications without consideration (TR.TR. Vol. 10, pg. 1618, line 17 to pg. 1620, line 5; TR. TR. Vol. 11, pg. 1758, line 22 to pg. 1759, line 11). Appellantís raises were stopped when Appellant filed his grievance and his lawsuit against Respondent in 1990 (TR. TR. Vol. 5, pg. 703, lines 18-22).

      Respondentís unreasonable and inadequate investigation of the November 12, 1990 phony drug bust memo against appellant Cobb constituted a breach of contract (Appellantís Opening Brief, page 25).

      Appellant Cobb suffered retaliation when Respondent demoted and transferred Appellant out of the Athletic Department because Appellant had filed a grievance against his supervisor, Michael McGee, for race discrimination (TR. TR. Vol. 7, pg. 1075, line 9 to pg. 1076, line 26).

      Respondent breached the contract by stripping Appellant of his job duties in 1991 (TR. TR. Vol. 11. Page 1765, line 15 to page 1771, line 15; TR. TR. Vol. 7, pg. 1080, line 20 to pg. 1083, line 5).

      Respondent breached the contract by fostering a hostile environment subsequent to the date of the alleged new contract. (Appellantís Opening Brief, page 27.)

      Respondentís failure in 1991 to stop Appellantís supervisor from harassing Appellant, even after a grievance was filed, is a separate incident of breach of contract occurring subsequent to the alleged new agreement in 1989. (Appellantís Opening Brief, pages 27, 28, 29.)

      Respondent breached the contract by removing documents from Appellantís personnel file after Appellant filed the race discrimination complaint. (TR. TR. Vol. 2, page 209, line 6-16; TR. TR. Vol. 2, page 211, line 20-27, TR. TR. Vol. 11, page 1777, line 3-18); (Government Code Section 12946).

      There were thus, numerous examples of contract breaches before the trial court that established a conflict in the evidence. It was therefore improper for the trial court to grant a judgment notwithstanding the verdict on the breach of contract claim.

    13. RESPONDENTíS CLAIM THAT IT COULD FIND NO CASES INVOLVING MULTI-COUNT CLAIMS WHERE THE REVIEWING COURTS HAVE INVOKED THE MANDATORY JURISDICTIONAL DEADLINES AND CONSEQUENCES IS WITHOUT MERIT.

 

Respondent contends that "ÖRespondent has found no cases involving a multi-count claim where one cause was tried, damages awarded, judgment entered, and a second cause remained to be determined. " (Resp. Brief, Page 39.)

Re Estate of McKenna, (1903) 138 Cal. 439, cited in Appellantís Opening Brief (AOB Page 12), holds that where the jury brings in a verdict disposing of one or more of the issues but leaving certain others undecided, a notice of motion for new trial filed at that point but before all of the issues have been decided is a nullity and is ineffectual.

The Yamato v. Bank of Southern California, (1915) 170 Cal. 351, 356, is another case directly on point. The Yamato appellant served its notice of intention to move for new trial prior to the entry of judgment. That first notice was held to be premature and a nullity. Judgment was entered. After judgment was entered, the Yamato appellant filed a second notice of intention to move for new trial. That second notice was held to be timely. In the case at bar, Respondent could have cured the problem by filing timely second notices of its motions. But it failed to do so.

Horton v. Jones, (1972) 26 Cal. App.3d 952, 955, is on point because it involved the premature and therefore void entry of a judgment notwithstanding the verdict before all issues had been finally decided by the trial court.

And Cobb v. University of Southern California, (1996) 45 Cal. App.4th 1140, 1146, is exactly such a case "involving a multi-count claim where one cause was tried, damages awarded, judgment entered, and a second cause remained to be determined". The published opinion in Cobb exhaustively analyzed the issue of prematurely filed new trial motions and placed Respondent on notice that its prematurely filed motions were ineffectual.

Respondentís contention that it could find no case law on this point is without merit.

 

III.

 

THE TRIAL COURTíS ORDER CORRECTING THE VERDICT FORM WAS AN IMPROPER EXERCISE OF ITS POWER.

 

Respondent contends that the trial court properly corrected a legally erroneous special verdict. (Resp. Brief at pages 27-32.) Respondent is in error.

 

    1. CODE OF CIVIL PROCEDURE SECTION 663 ONLY APPLIES TO A COURT TRIAL OR A JURY TRIAL BY SPECIAL VERDICT, BUT THIS WAS A JURY TRIAL BY GENERAL VERDICT WITH SPECIAL FINDINGS.
    2.  

      Code of Civil Procedure Section 663 only applies to a judgment or decree based upon a court trial or to jury trial by special verdict (where the court makes the decision). The 663 motion can only be brought by an "aggrieved party".

      In the instant case, there was no "judgment or decree based upon a decision by the court, or the special verdict of a jury". The trial was by jury trial and the verdict was by general verdict with special interrogatories. There was no "aggrieved party", as all of the issues had not been finally decided by the trial court at the time the 663 motion was heard.

      The juryís decision was not made by an "incorrect or erroneous legal basis". The decision was consistent with, and was supported by, the facts.

      The parties can, and did, agree to submit damages that they deemed appropriate according to the circumstances of the case at bar.

       

    3. CODE OF CIVIL PROCEDURE SECTION 663 IS NOT APPLICABLE TO INTERLOCUTORY JUDGMENTS.
    4.  

      Respondent contends that the judgment entered by the trial court was an interlocutory judgment (Resp. Brief, Pages 7, 10 and 40) that was properly vacated pursuant to Code of Civil Procedure Section 663. This contention is without merit.

      Assuming, arguendo, that the Code of Civil Procedure Section 663 motion sought to vacate an interlocutory judgment for Appellant or to enter an interlocutory judgment on behalf of Respondent (Resp. Brief, Pages 7, 10, 40), Code of Civil Procedure Section 663 is not applicable to interlocutory judgments. As the court stated in Remington v. Davis, (1951) 108 Cal. App.2d 251, 253:

      "Sections 663 and 663a are not expressly made applicable to interlocutory judgments, and there is nothing in the language used which indicates that they were so intended. Section 663 provides for a motion to set aside a judgment and enter a different judgment based upon the facts already found, where improper conclusions of law had been drawn from these facts. Such a situation involves questions of law only, and strongly indicates that the judgment, which may be thus changed, is one final in nature and not one that leaves issues still to be determined. Section 663a provides that an order made under section 663 may be reviewed on appeal Ďin the same manner as a special order made after a final judgment.í This refers to a final judgment, strongly indicates that the situation is to be treated as though a final judgment had been entered, and is a further indication that the judgment referred to in section 663 was intended to be a final judgment. Section 577 defines a Ďjudgmentí as the final determination of the rights of the parties. It appears more reasonable that the appeal provision was inserted in section 663a for the purpose of removing any doubt or confusion as the appealability of such an order, rather than for the purpose of allowing an appeal from an order refusing to change an interlocutory judgment."

    5. NO TIMELY FILING OF THE 663 MOTION DEPRIVES THE TRIAL COURT OF JURISDICTION TO GRANT THE PREMATURE MOTION.
    6.  

      Respondent failed to file a timely Code of Civil Procedure Section 663 motion. Pursuant to Code of Civil Procedure Section 663a, the motion was required to be filed either (1) "before the entry of judgment; or (2) "within 15 days of the date of mailing of notice of Öservice upon him by any party of written notice of entry of judgment, or within 180 days after entry of judgment, whichever is earliest." (Code of Civil Procedure Section 663a(1), (2) ).

      According to WHITKIN, "Attack On Judgment In Trial Court", (3) Before Entry of Judgment, (aa) [Section 56], Page 560 (4th Ed. 1997):

      "The phrase Ďbefore entry of judgmentí is obscure, misleading, and a dangerous trap for the uninformed attorney. It would seem to permit the motion to be filed at any time before such entry, e.g., whenever the aggrieved party becomes aware of his loss of the suit. But the cases have pointed out that a new trial is a reexamination of an issue Ďafter a trial and decision.í (C.C.P. 656), and there must be a decision before the notice of motion to attack it may be given by a Ďparty aggrievedí [citations.]

      The Ďdecisioní has been defined as the rendition of judgment. [Citation.]" [Emphasis by author.]

       

      Since the Code of Civil Procedure Section 663 motion was filed prematurely, the order granting the motion is void, a nullity and of no legal effect whatsoever. . The trial court had no jurisdiction to grant the Respondentís 663 motion on July 15, 1994. Whether the motion is ultimately defined as a motion to correct the verdict or as a motion for judgment notwithstanding the verdict, it was not filed timely in 1997 after all issues in the case were finally decided. Respondent failed to timely file the motion, and the 663 order was improper and should be reversed.

       

    7. AN INTERLOCUTORY JUDGMENT IS NOT A FINAL JUDGMENT AND A MOTION FOR NEW TRIAL MADE AFTER AN INTERLOCUTORY JUDGMENT IS OF NO AVAIL.
    8.  

      Since there can only be one final judgment in an action, an interlocutory judgment is not ordinarily a final judgment and, unless it is, a notice of motion for new trial made after the interlocutory judgment is a nullity and of no avail. (Middleton v. Finney, (1931) 214 Cal. 523); (Gollard v. Bayless, 174 Cal. App.2d 827); (Olson v. County of Sacramento, 274 Cal. App.2d 316).

      In Middleton v. Finney, (1931) 214 Cal. 523, 528, the court held that where a judgment is interlocutory, and is not made subject to appeal and motion for new trial by express statute, a motion for new trial is premature and void:

      "We further hold that where a judgment is interlocutory, and is not made subject to appeal and motion for new trial by express statutory provision, a motion for new trial is premature and void, and may be set aside by the trial court. In the case at bar, the orders granting a new trial and for judgment notwithstanding the verdict were premature and of no legal effect whatsoever. These orders therefore could not constitute an interlocutory judgment."

       

      These orders were already put to the test regarding whether they were subject to an appeal and to a motion for new trial by express statute. Respondent persuaded the appellate court to dismiss Appellantís first appeal of this case on the precise grounds that the judgment was not subject to appeal and motion for new trial by express statute. The new trial motion was held to be premature and therefore ineffectual, and the appeal was dismissed.

      Respondent is bound by its argument, made in support of its successful motion to dismiss the prior appeal, that the interlocutory judgment was not subject to appeal by express statute.

       

       

    9. THERE WAS NO "MISTAKEN VERDICT" OR "ERROR".

 

Respondentís contentions that its counsel Carl Douglas made a "simple error in preparing the verdict form that resulted in a $1 Million windfall to Cobb (Respondentís Answering Brief, page 27) and that Appellant "Cobb is thereby asking this Court to impose a $1 Million penalty for counselís ministerial error" (Resp. Brief, Page 32) are without merit.

Respondent approved the general verdict form. (TR. TR. VOL. 37, PG. 5506, L. 9-14; TR. TR. VOL. 39 PG. 5581, L. 13-14.) The trial court asked the attorneys to re-check the verdict form. (TR. TR. VOL. 37, PG. 5503, L. 5-26; TR. TR. VOL. 37 PG. 5504, L. 18-21; TR. TR. VOL. 37, PG. 5506, L. 9-19; TR. TR. VOL. 37 PG. 5506, L. 9-19; TR. TR. VOL. 37, PG. 5508, L. 7-25.) When the jury returned with its verdict, the trial judge sent the jury back to the jury room to re-write its verdict, thereby again alerting Respondent to double-check its General Verdict Form. Respondentís attorney Carl Douglas asked that the jury be polled as to damages to make sure that the verdict was proper. The jury unanimously confirmed that the verdict was the verdict of each juror. (TR. TR. VOL. 38, PG. 5570, L. 10 to PG. 5574 L. 7.) And Respondent, satisfied that the damages awarded were entirely proper, allowed the jury to be dismissed without objection.

There was no mistake. Respondent has not referenced the record to show evidence of a mistake. Respondentís attorneys, Johnnie Cochran and Carl Douglas, authored the verdict form. They are experienced tort trial lawyers who frequently litigate multi-million dollar tort actions. Respondentís attorneys agreed at every opportunity during trial that non-economic damages were appropriate in this case. And non-economic damages are not just emotional distress. There is no evidence of mistakes or error.

If there was any error, it was invited error upon which Respondent cannot rely. And since Respondent made no objection during the trial, Respondent should not be heard to complain for the first time on appeal. A party cannot submit a matter for determination by the lower court and then contend on appeal that the matter was beyond the scope of the issues. (Estate of Armstrong, (1966) 241 Cal. App.2d 1,7.) He cannot challenge defective findings that he proposed. (Krause v. Willow Park Public Golf Course, (1977) 77 Cal. App.3d 354, 374.)

Respondent has not presented any evidence to overcome the presumption "that there was assent to the submission of the questions presented. [Citation.]" (Napa Valley Packing Co. v. San Francisco Relief & Red Cross Funds (1911) 16 Cal. App. 461, 469). The trial courtís order correcting the verdict was improper, and should be reversed.

 

III

 

RESPONDENT CANNOT CHALLENGE THE AWARD OF DAMAGES AS EXCESSIVE BECAUSE RESPONDENT FAILED TO TIMELY MOVE FOR A NEW TRIAL AFTER ALL ISSUES WERE FINALLY DECIDED IN 1997.

Respondent attempts to challenge the juryís unanimous award of $2.1 Million to Appellant Cobb as "excessive". (See: Resp. Brief at Pages 32-33.) However, an objection that excessive damages were awarded can only be raised by a motion for new trial. (Sholar v. Barker (1962) 211 Cal. App. 2d 31, 32-33; Carter v. Agricultural Insurance Co., (1968) 266 Cal. App.2d 805, 806.) A motion for new trial has been held to be a prerequisite where the error claimed is excessive damages. (Shmidt v. Macco Construction Co., (1953) 119 Cal. App.2d 717, 721.) Since Respondent failed to file a timely motion for new trial, Respondent is foreclosed from contending that the award of damages to Appellant Cobb is excessive.

As the California Supreme Court held in Schroeder v. Auto Driveaway Company, (1974) 11 Cal.3d 908, 918-919:

"Defendants contend that the award of compensatory and punitive damages is excessive. They failed, however, to raise the issue before the superior court by a motion for new trial. In Bate v. Jolin, (1929) 206 Cal. 504, 508, 274 P. 971, 973, we established that ĎThe point that damages are excessive cannot be raised for the first time on appeal, but must be presented to the lower court on a motion for new trial. [Citations.] Consequently Defendants, having failed to move for a new trial, cannot now contend that the award of damages is excessive.í "

 

In the case at bar, Respondent failed to timely move for judgment notwithstanding the verdict or for new trial. The premature 1994 motions for new trial and for judgment notwithstanding the verdict have already been shown to be premature and therefore void and of no legal effect.

The Court should follow the reasoning of the California Supreme Court in Schroeder, supra, and decline to apply general principles of "inherent power" to this case, since "because of the failure of defendants here to [timely] move for a new trial [or for judgment notwithstanding the verdict], the issue of adequacy of damages was never presented for decision by the trial judge". (Schroeder v. Auto Driveaway Company, supra, 11 Cal.3d 908, 918-919).

 

IV.

 

THE NONECONOMIC DAMAGES WERE NOT LEGALLY ERRONEOUS

 

Respondentís contention that the noneconomic damages were legally erroneous (Resp. Brief, Pg. 29) is without merit.

Respondent agreed in the case at bar that noneconomic damages were an appropriate element of Appellantís damages. There is no evidence that has been produced by Respondent to refute this fact.

 

 

  1. NONECONOMIC DAMAGES ARE DEFINED AS MORE THAN JUST EMOTIONAL DISTRESS.

 

Noneconomic damages, as awarded by the jury in the case at bar, are not limited to emotional distress. The B.A.J.I. Instruction given to the jury on the definition of noneconomic damages was broad in scope. Respondentís Brief has not addressed the other components of the B.A.J.I. definition of noneconomic damages and has thereby failed to oppose such other elements.

 

B. EMOTIONAL DISTRESS DAMAGES CAN BE RECOVERED IN A BREACH OF CONTRACT ACTION WHERE THE PARTIES AGREE OR THE DAMAGES ARE OTHERWISE APPROPRIATE.

 

Nor are emotional distress damages precluded from the juryís consideration where, as here, the parties agreed that such damages were appropriate and should be included in the jury instructions and the verdict form:

"Whenever the terms of a contract relate to matters which concern directly the comfort, happiness, or personal welfare of one of the parties, or the subject matter of which is such as directly to affect or move the affection, self-esteem, or tender feelings of that party, he may recover damages for physical suffering or illness proximately caused by its breach." (Chelini v. Nieri, (1948) 32 Cal.2d 480, 482).

 

As stated in CEB, WRONGFUL EMPLOYMENT TERMINATION PRACTICE (2d. Ed.) Vol. 1, Chapter 8 "Contract Actions" at Section 8.32 ("Damages Available In Employment Contract Actions"):

"Recovery of damages for emotional distress, however, has not necessarily been precluded in contract actions. See CC [section] 3300; Rogoff v. Grabowski, (1988) 200 CA3d 624, 246 CR 185. Although not an employment contract case, Rogoff recognized that Ď[a]lthough, ordinarily, damages are not recoverable for mental suffering resulting from breach of contract [citation], courts have allowed the recovery of emotional distress damages under a contract theory where emotional distress is a foreseeable and contemplated result of the breach.í 200 CA 3d at 633."

 

A verdict will be given a construction that will uphold it rather than defeat it. (Cucamonga County Water District v. Southwest Water Co.), (1971) 22 Cal. App.3d 245, 255. In construing this verdict in a manner that will uphold it, the reasonable inference is that the jury determined that emotional distress was a foreseeable and contemplated result of Respondentís breach through harassment, retaliation, humiliation, stripping of duties and demotion to janitor, and through Respondentís refusal to properly investigate the November 12, 1990 Memorandum offering to use a USC operative within the Los Angeles Sheriffís Department to destroy Appellant with a phony drug bust. Another reasonable inference is that the parties agreed that this particular contract gave rise to an award of noneconomic damages that could include emotional distress as well as other elements of noneconomic damages.

In order for Respondent to assert this contention, Respondent would have had to object in the trial court. But Respondent did not object in any way to the inclusion of noneconomic damages in this breach of contract case because Respondent agreed all along that such damages were appropriate.

 

 

 

 

 

 

 

 

 

V

A DIFFERENT JUDGE HEARING MOTIONS FOR NEW TRIAL AND FOR JUDGMENT NOTWITHSTANDING VERDICT DOES NOT RELIEVE THE RESPONDENT OF THE STATUTORY DUTY TO TIMELY FILE THE MOTIONS IN 1997.

 

Respondent contends that no meaningful purpose would be served by requiring Respondent to bring the same motions for new trial and for judgment notwithstanding the verdict three years after the fact. (Resp. Brief, Pages 37, 39 and 43.) This argument by Respondent has no merit.

The controlling case and statutory authorities mandate that the motions for new trial and for judgment notwithstanding the verdict cannot be properly filed until after a final decision has been reached by the trial court as to all issues in the case. Code of Civil Procedure Section 661 provides that in the case of an inability of the trial judge to hear the new trial motion, the motion shall be heard and determined by any other judge of the same court. It is not unusual for a retrial to take more than a year or two. The mistrial statute gives litigants unlimited time within which to retry a case. (Code of Civil Procedure Section 616.)

In the case at bar, Appellant Cobb lodged the entire trial transcript with the new judge, the Honorable Sherman W. Smith, in support of Appellantís opposition to Respondentís April 28, 1997 motion for summary judgment. (See Respondentís Appendix ("RA") Vol. III at 0548 to 0600 for Appellantís references to the Trial Transcript in support of Appellantís own Separate Statement of Undisputed Material Facts.) Respondent also referred the trial court to extensive portions of the trial transcript in support of its 1997 motion for summary judgment. [RA Vols. II, III, IV]. Respondent admits that Judge Smith considered the motion and Appellantís opposition to the motion for summary judgment "on their merits". (Resp. Brief, Page 46.) This being the case, Judge Smithís perusal of the entire trial transcript in 1997 in fact made him more up to date on the evidence than was Judge Drake in 1997.

Respondentís argument that Judge Smith "would have been forced to review the entire record to reach a decision [on the new trial and judgment notwithstanding verdict motions]" (Resp. Brief, Page 37.) is therefore without any merit. Because of Respondentís own act of filing its April 28, 1997 motion for summary judgment, Judge Smith was already forced to review the entire record to decide the summary judgment motion. In 1997 Judge Smith would have been far more familiar with the trial transcript for the required motions for new trial and for judgment notwithstanding the verdict that were required to be filed only 15 days after the 1997 notice of ruling. Even if Judge Smith had not digested the lodged trial transcript and the Respondentís 1997 motion for summary judgment, he could have properly evaluated the motions under Code of Civil Procedure Section 661.

Furthermore, the fact that another judge would be assigned to hear the subject motion did not relieve Respondent of the duty to timely file the motions.

Judge Drakeís void orders for new trial and for judgment notwithstanding the verdict could be set aside after all issues were finally decided by the trial court in April, 1997 Ė even by a judge other than Judge Drake. (Myers v. Washington, (1963) 211 Cal. App.2d 767, 771; Code of Civil Procedure Section 661).

 

 

 

 

 

 

 

VI

 

THE TRIAL COURT ERRED IN GRANTING A NEW TRIAL DUE TO JURY MISCONDUCT.

 

Respondent contends that the trial courtís order granting a new trial on the merits was proper due to juror misconduct. (Resp. Brief, Pages 33-34.) This argument has no merit.

Respondent refers to sworn declarations that related alleged oral statements that emanated from certain jurors. (Resp. Brief, Page 34.) These declarations were appropriately objected to by Appellant on the grounds of hearsay. The declarations did not contend that they were of the respective declarantís own personal and firsthand knowledge, nor did the declarations state that if called upon as a witness, the declarant could and would competently testify to the contents of the respective declaration.

Respondent does not address the case of Jones v. City of Los Angeles, (1978) 78 Cal. App.3d 983, 990-994, which rejected a prior effort by Respondentís attorneys, Johnnie Cochran and Carl Douglas, to nullify the jury based upon alleged white racism. In the instant case, these two tried to nullify the jury verdict based upon alleged black racism.

Jones required the Respondent to prove by a preponderance of the evidence that the controverted statements were made and that the jurors who allegedly made them had in fact committed perjury on voir dire.

Jones also held that the trial court does not have the right to accept the untested affidavits of jurors who sought to overturn the verdict, as opposed to those affidavits to the contrary, as the judge would have if all of the affiants had testified in open court, without articulating some cogent reason for doing so. The Jones court was justifiably concerned that oral statements made during juror deliberations could be misunderstood, misreported and otherwise taken out of context.

In the case at bar, three affidavits alleged that Marlene Stoor, a white juror, made statements that were tantamount to jury instructions and that others made racist comments during jury deliberations. Three affidavits presented by Appellant denied those allegations. There was not a "preponderance of the evidence." And the trial court did not have the unfettered right to accept Respondentís affidavits over Appellantís affidavits. No cogent reason was articulated for doing so.

There was insufficient evidence to support the trial courtís granting of a new trial for alleged juror bias, and the failure to timely move for a new trial renders ineffectual any new trial order based upon alleged juror misconduct. The order granting new trial should be reversed.

 

VII

RESPONDENT DID NOT ADDRESS THE TRIAL COURTíS

FAILURE TO PROVIDE A SPECIFICATION OF REASONS

FOR GRANTING RESPONDENTíS MOTION FOR NEW TRIAL.

 

Respondent failed to address the contention that the new trial order should be reversed because the trial court did not specify its reasons for granting a new trial, as required by Code of Civil Procedure Section 657 and by Scala v. Jerry Witt & Sons, Inc., (1970) 3 Cal.3d 359, 363. (See: A.O.B., Page 34-35.)

Respondentís failure to address this contention is a concession of the issue. The new trial order should therefore be reversed.

 

 

 

 

 

VIII

 

IT WOULD BE IMPROPER FOR THIS COURT TO "CORRECT THE VERDICT", AS RESPONDENT REQUESTS.

 

Respondent contends that if this Court finds the judgment notwithstanding the verdict and the new trial orders procedurally infirm, then it should use its inherent power under Code of Civil Procedure Section 43 to overturn the verdict and/or order a new trial. (See: Resp. Brief at Pages 43-44.)

Respondent contends that Code of Civil Procedure Section 43 grants appellate courts authority to order a new trial and to decide all questions of law prior to remand. (Resp. Brief, Page 44.)

Respondent also contends that "[i]n practice, courts have vacated or reversed a trial courtís order denying a new trial based on the appellate courtís own review of the asserted grounds for new trial." (Resp. Brief, Page 44.)

This analysis begs the question. In the case at bar, the Respondent failed to file a timely motion for new trial before the trial court.

Here, there are no "asserted grounds for new trial" for the appellate court to review because Respondent failed to file any motion for new trial after all of the issues of the case were finally decided in 1997. And Respondentís reference to Clemens v. Regents of University of California, (1971) 20 Cal. App.3d 356, 362, is distinguishable because Clemens involved the timely filing of a motion for new trial, as opposed to a void filing and no timely re-filing, and because the analysis in Clemens was based upon an earlier Clemens case that expressly distinguished its holding from cases where the untimely filing of the motion for new trial resulted in a loss of any jurisdiction to hear the motion.

The case of Clemens v. Regents of the University of California, (1971) 20 Cal. App. 3d 356, 362, is distinguishable on its facts. In Clemens, the jurisdiction of the trial court over the motion for new trial was not lost by premature and untimely filing, as it was lost in this instant case.

Respondentís reliance upon Clemens is misplaced. There are actually two Clemens opinions, but Respondent only referenced the second. The first Clemens opinion, which held that the trial court retains power in some circumstances to act with respect to a motion for a new trial after an appeal, specifically distinguished its holding from cases where the filing of the motion for new trial is not within the statutory period, resulting in loss of jurisdiction of the trial court to hear the motion for new trial. ( Clemens v. Regents of the University of California, (1970) 8 Cal. App.3d 1, at 21. [Hereinafter "Clemens I".])

The new trial order in Clemens I was timely filed. The new trial order in the case at bar was not timely filed. By failing to timely file any motions for new trial or for judgment notwithstanding the verdict, Respondent deprived itself of the protection of Clemens I.

The Clemens I court initially relied upon the case of Jehl v. Southern Pacific Company, (1967) 66 Cal.2d 821, for the proposition that a trial court may have power to act on a motion for new trial after an appeal. But the Clemens I court distinguished its holding and the holding in Jehl from cases where the trial court failed to act on a motion for new trial within the statutory period and where a trial court had no jurisdiction to grant an order for new trial:

"Jehl v. Southern Pacific Company, supra, which holds that the trial court has power to act on a motion for new trial after an appeal, is distinguished from Mercer [v. Perez, 68 Cal.2d 104, 65 Cal. Rptr. 315], Siegal [v. Superior Court, 68 Cal.2d 97, 65 Cal. Rptr. 311], Lippold [v. Hart, 274 Cal. App.2d ___, ___, 78 Cal. Rptr. 833], and Andersen [v. Howland, 3 Cal. App.3d 380, 385, 83 Cal. Rptr. 308] by the fact that in Jehl, the governing law changed from the time of hearing on the motion for new trial to the determination of the appeal. That fact also distinguishes the case at bench from those decisions. The case at bench is further distinguished from Mercer and Siegal by the fact that here the trial court acted on the motion for a new trial within the statutory period, thus ripening its exercise of jurisdiction." (Clemens, supra, 8 Cal. App.3d 1, 20-21. [Emphasis added.]

 

In the follow-up case to Clemens I, the appellate court in Clemens v. Regents of the University of California, (1971) 20 Cal. App.3d 356, 359, hereinafter Clemens II"] reviewed the Clemens I trial courtís decision on the issues that had been remanded to the trial court. Clemens II received its marching orders from Clemens I. But the difference between Clemens and the case at bar is that both Clemens I and Clemens II were at all times based upon a timely filed motion for new trial that gave the court its fundamental jurisdiction to decide a motion for new trial. In the case at bar, Respondentís failure to file a timely new trial motion and a motion for judgment notwithstanding the verdict deprives the trial court of jurisdiction to make any orders and leaves no such order for new trial or for judgment notwithstanding the verdict before the appellate court.

 

IX

 

RESPONDENTíS EFFORT TO OBTAIN SUMMARY JUDGMENT AFTER THE JURY WAS DISCHARGED VIOLATES CODE OF CIVIL PROCEDURE SECTION 630(f).

 

The language of Code of Civil Procedure Section 630(f) prohibits the trial court from granting judgment to a party on a cause of action that the jury was unable to decide if the moving party fails to move for such judgment within ten (10) days of the juryís discharge without reaching a verdict.

According to Code of Civil Procedure Section 630(f):

"When the jury for any reason has been discharged without having rendered a verdict, the court on its own motion or upon the motion of a party, notice of which was given within 10 days after discharge of the jury, may order judgment to be entered in favor of a party whenever a motion for directed verdict should have been granted had a previous motion been made. Except as otherwise provided in Section 12a Ö, the power of the court to act under the provisions of this section shall expire 30 days after the day upon which the jury was discharged, and if judgment has not been ordered within that time the effect shall be the denial of any motion for judgment without further order of the court." [Emphasis added.]

 

In the case at bar, the jury was discharged on June 6, 1994. Respondent failed to bring a motion for judgment within 10 days thereafter. The power of the trial court to grant any motion for judgment after the discharge of the jury expired 30 days after June 6, 1994 Ė or on July 6, 1994. The trial court did not order judgment to be entered for Respondent within 30 days after the jury was discharged. The effect of the Respondentís failure to move for judgment, and the effect of the trial court to order judgment for Respondent on the trial courtís own motion, within 30 days after June 6, 1994 was the automatic denial "of any motion for judgment" (the word "any" includes a motion for summary judgment) without any further order or action of the trial court.

Respondentís reliance upon Gandelman v. Mercantile Insurance Company of America, (1950) 90 F. Supp. 472 and Cuenca v. Safeway San Francisco Employees Federal Credit Union (1986) 180 Cal. App.3d 985 is misplaced. (See Resp. Brief at Pages 44-45.) Gandelman was decided before the 1967 and 1986 amendments to Code of Civil Procedure Section 630. In Cuenca the jury was not discharged without having reached a verdict.

The trial courtís effort to decide the remaining cause of action by way of Respondentís motion for summary judgment violated Code of Civil Procedure Section 630(f) and should be reversed.

 

X

 

SHOULD THE APPELLATE COURTS REINSTATE AND AFFIRM THE ORIGINAL JURY VERDICT IN FAVOR OF APPELLANT AND ENTER JUDGMENT THEREUPON, APPELLANT WOULD SIMULTANEOUSLY ABANDON APPELLANTíS APPEAL AS TO THE ISSUE OF THE TRIAL COURTíS GRANTING OF SUMMARY JUDGMENT ON THE RACE DISCRIMINATION CAUSE OF ACTION.

 

In the event that this Court reinstates and affirms the original jury verdict of $2.1 Million in favor of Appellant and orders judgment entered thereupon, Appellant Cobb would simultaneously abandon the issue of whether the trial courtís granting of Respondentís motion for summary judgment was an abuse of discretion.

 

XI

 

RESPONDENTíS REFERENCE TO DOCUMENTS AND CIRCUMSTANCES OUTSIDE OF THE RECORD AND THE EVIDENCE SHOULD BE DISREGARDED ON APPEAL.

 

Respondent has referred to economist Darryl Zenglerís report, and alludes to a total loss of earnings of $181,000.00, which was not a part of the evidence. (RA, Pages 0013-0034.) Respondent kept the Zengler report out of evidence, and Zenglerís testimony about the $1,302,958.00 as the present value of Appellantís loss of future earning capacity is the only evidence to be considered.

Respondent has alleged that Appellant Cobb remained in his position of employment throughout these proceedings (Resp. Brief pg.18). Respondent also refers to the award as a gift (Resp. Brief, Pg. 3). Respondent also discusses disqualification of the judge who initially tried the case (Resp. Br. Pg. 6.).

Respondent has attempted to pass off information and arguments that are not part of the evidence. This reference to information and evidence outside of the record is not permitted, and is hereby objected to by Appellant. California Rules of Court, Rule 5.1(i)1.

Respondent contends that the verdict in the case at bar was by special verdict (Resp. Brief, Page 31). However, Respondent does not cite to the record. The verdict was a general verdict with special interrogatories.

Respondent contends that the jurors didnít understand the polling process when they confirmed that each of them had voted in favor of the verdict. (Resp. Brief, Page 34 fn. 12.) This contention is without merit. Respondent doesnít refer to the record where the jurors were polled at the end of the trial on June 6, 1994 and each signified their vote in support of the unanimous verdict for Appellant Cobb.

Respondent misrepresented the juror vote as 9-3 (Resp. Brief, Page 34), as opposed to a unanimous 12-0, hoping to demonstrate that a disqualification of jurors for bias could have resulted in a different verdict. (Clemens v. Regents of the University of California, (1971) 20 Cal. App.3d 356, 366-367).

Respondentís allegation that Appellant Cobb remained a USC employee throughout these legal proceedings (Resp. Brief, Page 1) goes outside of the trial record and is objected to. Respondent cannot reference facts or arguments outside of the trial record. Respondentís effort to update the Court since the trial is improper as it imparts information that cannot be found in the evidence:

"It is reprehensible to state in a brief, as proven facts Ö incidents not brought out in evidence. In arriving at a decision, the appellate court cannot consider statements of facts in briefs not sustained by the record. [Citation], and such statements will be disregarded. 4 Cal. Jur.3d APPELLATE REVIEW, Section 355, "Limitation To Matters Of Record", at pages 455-456; (Matuz v. Gerardin Corp., (1989) 207 Cal. App.2d 203, 206-207).

XII

 

CONCLUSION

 

For the foregoing reasons, the orders of the trial court granting judgment notwithstanding verdict, new trial and correcting the verdict should be reversed and the original verdict in favor of Appellant Cobb for $2.1 Million reinstated with an order to enter judgment according to that verdict.

DATED: February 24, 1998. Law Office of Samuel Reece

 

By______________________

SAMUEL REECE

Attorney for Appellant

MARVIN COBB