Filed 10/28/14 Ho v. Nguyen CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


CHRISTY HO et al.,

     Plaintiffs and Respondents,                                       G049469

         v.                                                            (Super. Ct. No. 30-2011-00524081)

KIM HUONG NGUYEN et al.,                                               OPINION

     Defendants and Appellants.



                   Appeal from an order of the Superior Court of Orange County, Richard
Luesebrink, Judge. (Retired judge of the Orange County Superior Court assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
                   David Tang for Defendants and Appellants.
                   Mark S. Rosen and Dina L. Nguyen for Plaintiffs and Respondents.


                                          *                  *                  *
              Defendants and appellants Kim Huong Nguyen, Kim Ann Nguyen and
Chuong Van Nguyen (defendants) appeal from an order granting a new trial, following a
court trial. Defendants contend the court erred in granting a new trial on the grounds of
irregularity in the proceedings. We disagree and affirm.
                               PROCEDURAL HISTORY
              Plaintiffs and respondents Christy Ho and Johnny Ho (plaintiffs) sued
defendants and others in a dispute arising out of the ownership and operation of a nail
salon. Their second amended complaint contained a cause of action for breach of
partnership agreement, and six other causes of action.
              On defendant’s motion, the trial was trifurcated. Phase I was to determine
whether an oral partnership existed and, if so, what its duration and terms were. Phase II
was to determine all other liability and compensatory damage issues. Phase III was to
determine punitive damages, if the prerequisite findings were made in Phase II.
              At the end of Phase I on August 9, 2013, the court found for defendants on
the breach of partnership agreement cause of action, “for reasons as set forth on the
record.” Plaintiffs requested a statement of decision and the court directed the prevailing
party to prepare one “after trial on all issues are resolved.” Plaintiffs’ counsel then gave
an opening statement for Phase II, and the trial was adjourned for the day.
              We are not certain exactly what happened next and why, because we have
only been provided limited excerpts from the reporter’s transcripts. According to the
minute orders provided, on August 12, the date set for the Phase II trial to resume,
plaintiffs’ counsel, Toby Tran, advised there had been a communication breakdown with
his clients, and they had retained new counsel, Dina Nguyen.
              Attorney Tran requested that he be relieved as counsel for plaintiffs.
Attorney Nguyen sought to specially appear on behalf of plaintiffs, for the limited
purpose of presenting an ex parte application to continue the trial of Phase II, and to set
aside the rulings and orders entered during the trial of Phase I.

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               After unreported discussion between the court and counsel, plaintiffs’ ex
parte application was denied, and the court found in favor of defendants on the six
remaining causes of action “[b]ased on its ruling on [Phase I] and discussion held . . . for
reasons previously stated.” The court directed counsel for defendants to prepare a notice
of ruling and a proposed judgment.
               The court also directed counsel for defendants to prepare a proposed
statement of decision. “The Court note[d] its last date is 8/30/13; therefore, the Proposed
Judgment and Statement of Decision are to be submitted to the court with ample time to
allow Plaintiffs to file their objections, if any.”
               On August 16, defendants’ counsel filed and served a notice of ruling as
directed. On August 25, defendants’ counsel also filed and served a proposed judgment
as directed. However, defendants’ counsel did not file a proposed statement of decision
as directed, at any time before August 30, 2013.
               On September 10, the proposed judgment was signed by a different judge
(not the trial judge), and the judgment was entered. On September 11, defendants’
counsel filed and served a notice of entry of judgment.
               On October 1, plaintiffs’ new counsel filed and served a motion to vacate
judgment and for new trial, on the grounds of irregularity in the proceedings, newly
discovered evidence and insufficiency of the evidence. Plaintiffs asserted two new
witnesses had come forward, the court erred by precluding plaintiffs from presenting
additional evidence in Phase II, the court erred by not preparing a statement of decision,
the evidence was insufficient to justify the decision, and there was irregularity in their
prior counsel’s failure to follow court rules.
               Defendants filed opposition arguing the motion was untimely, and
otherwise lacked merit. Plaintiffs filed a reply, which argued the motion was timely, and
had merit on both the procedural and evidentiary grounds.



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              The trial judge heard the motion on November 4. We have not been
provided with a reporter’s transcript of that hearing, but the minute order states, among
other things, “Court notes the Proposed Statement of Decision was lodged by Defendants
this date and issues the tentative ruling as follows: Motion for a New Trial is granted
since the Proposed Statement of Decision was untimely.”
              The court then ordered the parties to meet and confer in an effort to resolve
the matter. After counsel stated they had no settlement authority from their clients, the
court ruled, “Plaintiffs’ Motion for a New Trial is granted.”
              The court also took plaintiffs’ motion to vacate judgment under submission,
and the following day ruled, “Plaintiffs’ Motion to Vacate Judgment is granted . . . .”
This appeal followed.
             GENERAL PRINCIPLES AND STANDARD OF REVIEW
              There is a strong presumption in favor of new trial orders. (Lane v. Hughes
Aircraft Co. (2000) 22 Cal.4th 405, 412.) On appeal from a new trial order that complies
with the requirements of Code of Civil Procedure section 657 (all further statutory
references are to this code), the sole question is whether the judge abused his or her
discretion. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 628.)
              A trial judge’s discretion when ruling on a motion for new trial is very
broad. (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) This is particularly true
when that discretion is exercised in favor of a new trial, for this action does not finally
dispose of the matter. (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)
              We defer to the trial judge’s resolution of conflicts in the evidence and
reverse only if there is no reasonable basis for the decision or the decision is based on a
legal error. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181
Cal.App.4th 1108, 1122.) As long as a reasonable or even fairly debatable justification
under the law can be shown, an order granting a new trial will not be set aside.
(Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452.)

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                                        DISCUSSION
               Defendants do not challenge the order granting plaintiffs’ motion to vacate
the judgment. Instead they concede the judgment was properly vacated because they did
not timely file the proposed statement of decision. Defendants do challenge the order
granting plaintiffs’ motion for a new trial, on five separate bases. Each will be addressed
in the order presented by defendants in their opening brief.
1. The New Trial Order Satisfied the Specificity Requirements of Section 657.
               Defendants first contend the new trial order did not satisfy the requirements
of section 657, because the new trial order failed to specify the grounds for the decision.
We are not persuaded.
               A court granting a new trial motion must specify the ground or grounds on
which the motion is granted, and the court’s reason or reasons for granting the motion on
each ground stated. (§ 657.) The statutory “grounds” for granting a new trial listed in
section 657, are distinguished from the “reasons” for granting a new trial on a particular
ground. (Oakland Raiders v. National Football League, supra, 41 Cal.4th at p. 634.)
               If the trial court fails to expressly specify the grounds for granting a new
trial but states the reasons, then the stated reasons ordinarily indicate the intended
grounds for the decision. (Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706,
710.) This is precisely the situation presented here.
               The November 4 new trial minute order did not specify the grounds. But
the new trial motion only specified three grounds: “1. Irregularity in the proceedings
. . . . [¶] . . . [¶] 4. Newly discovered evidence. . . . [¶] . . . [¶] [and] 6. Insufficiency of
the evidence . . . . ” (§ 657, subds. 1, 4 & 6.) Furthermore, the new trial minute order
states, in relevant parts: “Court . . . issues the tentative ruling . . . Motion for a New Trial
is granted since the Proposed Statement of Decision was untimely. [¶] . . . [¶] [and]
Motion for a New Trial is granted.” But the new trial minute order makes no mention of
either newly discovered or insufficient evidence.

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              Under these circumstances, we conclude the court’s stated reason indicates
the grounds for the decision was irregularity in the proceedings, and thus the new trial
order satisfied the specificity requirements of section 657.
2. Failure to Render a Statement of Decision is an “Irregularity” under Section 657.
              Defendants next contend there is no legal basis upon which the court could
order a new trial, because the court’s failure to prepare a statement of decision is not an
“‘irregularity in the proceedings’” within the meaning of section 657, subdivision 1. We
disagree.
              The phrase “‘irregularity in the proceedings’” has been broadly interpreted
to cover many forms of misconduct and error that would also be grounds for mistrial or
reversal on appeal, including errors regarding matters of procedure. (See, e.g., Montoya
v. Barragan (2013) 220 Cal.App.4th 1215, 1229-1230 [Judge erred by entering judgment
in a jury trial in which jury did not return a signed, written verdict as required by § 618].)
It is a “catchall” phrase, referring to any departure by the judge from the due and orderly
method of disposition of an action by which a party’s substantial rights have been
materially affected. (Id., at p. 1230; Lowe v. Massachusetts Mut. Life Ins. Co. (1976) 54
Cal.App.3d 718, 740.)
              While the parties have not cited and we have not found any case on point,
we believe the phrase is broad enough to encompass failure to render a statement of
decision. Failure to render a properly requested statement of decision after a nonjury trial
of factual questions is reversible error per se. (Miramar Hotel Corp. v. Frank B. Hall &
Co. (1985) 163 Cal.App.3d 1126, 1129; Espinoza v. Calva (2008) 169 Cal.App.4th 1393,
1397 (Espinoza).) Additionally, there is no question failure to render a statement of
decision under these circumstances is so prejudicial it could deprive the losing parties of
their right to meaningful appellate review. Likewise, absent an order granting a new trial
or other appropriate relief, failure to render a statement of decision could easily result in a
“miscarriage of justice.” (Cal. Const., art. VI, § 13.)

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              Therefore, we hold failure to render a properly requested statement of
decision is an “irregularity” within the meaning of section 657, subdivision 1.
3. The New Trial Order was Neither Lacking in Specification nor Ill Considered.
              Defendants also contend the court’s succinct reason for granting a new trial
was ill considered and without sufficient specification of reasons. This contention is, in
many ways, a rehash of the arguments we have already rejected.
              Defendants start with the premise the trial court must state the reasons for
granting a new trial on a particular ground, with sufficient specificity to facilitate
appellate review and to avoid any need to rely on inference or speculation. Of course this
is true. (Oakland Raiders v. National Football League, supra, 41 Cal.4th at p. 634.) But,
as we said above, the new trial order here is sufficiently specific. We need not resort to
inference or speculation to figure out why the court granted a new trial. We know the
new trial was granted because the proposed statement of decision was untimely.
              Defendants then correctly note one of the functions of the specificity
requirement is to promote judicial deliberation and thereby discourage hasty or ill-
considered new trial orders. However, a concise, but clear, statement of why the judge
finds one or more of the grounds for the motion is all that is required. (Mercer v. Perez
(1968) 68 Cal.2d 104, 115.) And this is exactly what we have here—a concise, but clear,
statement of the reason for granting a new trial, together with nothing in the record which
suggests the decision to grant a new trial was either hasty or ill considered.
4. The Court Did Not Exceed Its Jurisdiction by Granting a New Trial.
              Defendants claim the court exceeded its jurisdiction, because the statement
of reasons is insufficient and there are no other valid grounds upon which a new trial
could be granted. We have already dismissed the insufficiency claim. As for the claim
there are no other valid grounds, because defendants cite very little authority and provide
even less reasoned legal argument, we deem this claim waived. (Evans v. CenterStone
Development Co. (2005) 134 Cal.App.4th 151, 165.)

                                               7
              But this claim fails for another reason too. A new trial order must be
affirmed if the court should have granted a new trial on any ground stated in the motion,
whether or not specified in the order or specification of reasons, except on the ground of
the insufficiency of the evidence to justify the verdict or excessive or inadequate damages
can be affirmed on those grounds only for the specified reasons. (Bell v. Bayerische
Motoren Werke Aktiengesellschaft, supra, 181 Cal.App.4th at pp. 1121, 1126.)
              The absence of a statement of reasons for granting a new trial, as required
by section 657, calls for an independent review of the new trial order. (Oakland Raiders
v. National Football League, supra, 41 Cal.4th at p. 640.) The party seeking to uphold
such a defective order has the burden of persuasion. (Id. at pp. 640-641; Bell v.
Bayerische Motoren Werke Aktiengesellschaft, supra, 181 Cal.App.4th at p. 1127.)
              Our independent review leads us to conclude the new trial order must be
affirmed on irregularity grounds, for the additional reason that it appears the court erred
by precluding plaintiffs from presenting evidence in Phase II. This ground was stated
and argued in plaintiffs’ moving papers in the trial court, and in their plaintiffs’ brief in
this court. It was mentioned in passing but never discussed in defendants’ opening and
reply briefs in this court. As a result, defendants have effectively conceded the issue.
              For all of these reasons, we reject defendants’ claim the court exceeded its
jurisdiction by granting a new trial.
5. A New Trial is a Proper Remedy in This Case.
              Finally, defendants argue a new trial is not needed, and the proper remedy
is to reverse and remand with instructions to enter a statement of decision. Defendants
cite three cases in support of this argument: Wallis v. PHL Associates, Inc. (2013) 220
Cal.4th 814, 827 (Wallis); Espinoza, supra, 169 Cal.App.4th 1393; Karlsen v. Superior
Court (2006) 139 Cal.App.4th 1526 (Karlsen). All of them note the normal remedy is to
reverse and remand for preparation of a statement of decision.



                                               8
              However, none of them holds that is the only proper remedy, and only
Karlsen actually applied that remedy. (Karlsen, supra, 139 Cal.App.4th at pp. 1530-
1531.) Espinoza found additional reasons why the judgment should be reversed, and
therefore a remand solely to prepare a statement of decision would have been an idle act.
(Espinoza, supra, 169 Cal.App.4th at p. 1398.) Wallis found the only appropriate remedy
was a remand for a new trial because the judge who heard the case was no longer
available due to his disqualification.
              In this case, as noted above, there are additional reasons why the new trial
order should be affirmed, and thus a remand solely to prepare a statement of decision
would be an idle act. Besides, the judge who heard this case has retired and only sits
from time-to-time by assignment. So he may no longer even be available with the result
that the only appropriate remedy might be a new trial.
              More importantly, none of the cases cited by defendants arose in the
context of a challenge to an order granting a new trial. They say nothing about the
propriety of granting a new trial on the grounds of irregularity in the proceedings, after
the trial judge failed to render a statement of decision and refused to allow the parties to
present additional evidence in the second phase of a trifurcated trial. And they do not
even consider the trial judges broad discretion in this context.
              In sum, the court here decided a new trial is the proper remedy in this case.
There is a reasonable basis for that decision, and it was not based on any legal error. It
follows the court did not abuse its discretion by ordering a new trial, and there is no basis
upon which to set that order aside. Trial judges are in the best position to determine
whether errors or irregularities in the proceedings before them were prejudicial, and thus
warrant a new trial. Their statutory power to order a new trial when prejudicial errors or
irregularities have occurred promotes judicial efficiency by obviating the need for
appellate reversal or collateral attack. (People v. Ault (2004) 33 Cal.4th 1250, 1271.)



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                                   DISPOSITION
            The order is affirmed. Plaintiffs are entitled to costs on appeal




                                                THOMPSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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