Filed 7/29/14 Gill v. Gill CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




SHAHGIR S. GILL,                                                                             C067746

                   Plaintiff, Cross-defendant and                                (Super. Ct. No. CV024661)
Respondent,

         v.

SATNAM SINGH GILL et al.,

                   Defendants, Cross-complainants and
Appellants,

KULWANT KANG et al.,

                   Defendants and Appellants.




         This appeal arises from a dispute between plaintiff Shahgir S. Gill (Shahgir) ( to
avoid confusion, we refer to those parties who share the same surname by their first
names), individually and doing business as S.G. Construction, (plaintiff) and defendants
Satnam Singh Gill (Satnam), Dinesh Sharma (Dinesh), Rakesh Sharma (Rakesh), and

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Kulwant Kang (collectively defendants) over their agreements to purchase and develop
residential real property in Manteca.
         When business relationships soured, the parties sued each other; the case went to
trial and the jury found for plaintiff. The trial court entered judgment consistent with the
verdict. Defendants filed a motion for new trial (Code Civ. Proc., § 657; unless
otherwise stated, section references that follow are to the Code of Civil Procedure), and
the court initially granted the motion. But, on further consideration, the court reversed
and vacated that order and entered a new order denying defendant’s motion for a new
trial.
         On appeal, defendants contend the trial court ruled correctly when it first granted
the motion for new trial. Defendants further contend the court lacked jurisdiction to
reconsider its order granting that motion and, in any event, it was error to grant the
motion for reconsideration and, thereafter, deny the motion for a new trial.
         As we will explain, the trial court properly exercised its inherent authority to
revisit and reverse its ruling on the motion for new trial. We also construe defendants’
appeal as a challenge to the order denying the motion for a new trial and hold that the
trial court did not err in entering that order. We affirm the judgment.

                                  FACTS AND PROCEEDINGS

         We dispense with a detailed recitation of the facts underlying the merits of the
lawsuit as those facts are unnecessary to our resolution of this appeal. Suffice it to say
that Shahgir and Satnam reached an agreement, the terms of which are in dispute,
whereby Satnam would purchase real property on which Shahgir would construct a
residential home for a certain dollar amount per square foot. Once the home was sold,
Satnam (and later, Satnam and Dinesh) would pay Shahgir one-third of the net profits
from the sale. Shahgir, Satnam, and Dinesh subsequently agreed to a similar arrangement
for the construction and sale of a second home on a neighboring lot.


                                                2
      Although construction was eventually completed on the first home (which was
sold to Rakesh and then re-sold), and on the second home (which was sold to Kang and
then re-sold), numerous issues arose between the parties regarding payment of
construction costs and monies owed as a result of the sale of the two homes.
      In September 2004, plaintiff filed a complaint alleging various causes of action
against Satnam and Dinesh (Complaint).
      In November 2005, plaintiff filed a first amended complaint alleging contract and
tort causes of action against Satnam and Dinesh. Plaintiff amended the pleading several
more times, eventually settling on a fourth amended complaint which included additional
causes of action and named Rakesh, Kang, and Jason and Julie Heitz as additional
defendants (Fourth Amended Complaint).
      Satnam and Dinesh cross-complained against plaintiff, alleging tort and contract
causes of action of their own (Amended Cross-Complaint).
      Jury trial commenced on October 26, 2010. Defendants moved for a mistrial
based on alleged improper voir dire. The court found no misconduct, but elected to
excuse the jury panel in an abundance of caution.
      Trial commenced with a new jury on October 29, 2010. Plaintiff rested after four
days of testimony, at which time defendants again moved for a mistrial or a directed
verdict. The court denied defendants’ motion. Following several more days of
testimony, defendants filed yet another motion for mistrial alleging juror misconduct and
misconduct by plaintiff’s counsel. The court denied that motion as well.
      During closing argument, plaintiff’s counsel made the following statements:
      “And as you think about that, before we talk about the law, before we talk about
the evidence, let me point out a few key facts to you, facts. You heard Satnam tell you
that he tried for a couple months to track Shahgir down to pay him that $109,000 that he
had in draw checks from Bismark, but Shahgir wouldn’t reveal himself. Shahgir
wouldn’t come get the money. You also heard Satnam tell you that he profited even

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under his own definition of this contract, even under his own definition of net profit, after
all the costs were paid for, he told you he profited, he and Dinesh profited at least a [sic]
$120,000 from the sales of these homes. And he told you that he tried to track Shahgir
down to give Shahgir his one-third of that, but again, Shahgir wouldn’t come and get his
money. That’s the story.
       “Ladies and gentlemen, we’ve been here for two weeks, maybe a little bit more.
None of these defendants have told you or can tell you that they offered Shahgir any
money coming into this trial, that they came here because Shahgir is here. He’s been
here every day. They found him, but they can’t tell you that they offered to pay him any
money.”
       Defense counsel objected. After an unrecorded discussion with counsel at the
bench, the court overruled the objection. Closing arguments resumed, and the case was
given to the jury.
       On November 18, 2010, the jury returned its verdicts in favor of plaintiff and
against defendants on both the Fourth Amended Complaint and the Amended Cross-
Complaint. The next day, the court entered judgment consistent with the verdicts, and
served notice of entry of judgment on the parties.
       Defendants Satnam, Dinesh, and Rakesh filed a motion for new trial on
December 2, 2010 (defendant Kang filed a separate motion on December 3, 2010).
Defendants collectively filed points and authorities and declarations in support of the new
trial motions on December 13, 2010, and filed amended points and authorities and
declarations seven days later. The motion set forth 36 grounds for granting a new trial.
Eleven of those grounds urged improper argument by plaintiff’s counsel resulting in an
“irregularity in the proceedings” (§ 657, subd. (1)), including the following: “During the
closing arguments, plaintiff’s counsel said that ‘none of these defendants have told you or
can tell you that they offered Shahgir any money coming into this trial . . . .’ [Record
citation.] Rey Hassan [defense counsel] objected, there was a discussion at the bench and

                                              4
the court overruled. Bringing in pre-trial settlement discussions is impermissible. There
were discussions of settlement at pre-trial settlement conference, defendants made an
offer that was rejected by the counsel himself. . . . This issue was not raised during the
trial and it is contrary to what actually occurred. This is clearly prejudicial because now
the jury is told that the Defendants did not offer to settle the case and tried to get away
without paying any monies even though in closing argument plaintiff’s counsel Hassan
[sic] mentioned a figure that a jury could award against the defendants.”
       The motion for new trial was heard on January 3, 2011. Plaintiff’s counsel and
counsel for defendant Kang appeared and submitted the matter. The court noted and
discussed only one of the issues raised in defendants’ moving papers--the propriety of the
2005 dismissal of the Complaint with prejudice, and subsequent reinstatement of the
action--and took the matter under submission.
       On January 14, 2011, the court entered an order granting defendants’ motion for
new trial. As stated in the order, the court decided the matter as follows:
       “During closing argument, counsel for plaintiff said ‘none of these defendants
have told you or can tell you that they offered Shaligir [sic] any money coming into this
trial’ . . . . [¶] Ray [sic] Hassan objected, the matter was discussed at bench and the court
overruled the objection. [¶] This argument by plaintiffs [sic] counsel was an irregularity
in the proceedings under C.C.P. § 657(1) as improper argument to the jury that cannot be
cured by a judge’s admonition. The jury cannot be informed of settlement discussions,
offers of settlement or that no offer of settlement was made. Further, there was no
evidence on the topic of settlement, and the comment invited the jury to speculate as to
the unsupported inference that no offer of settlement were [sic] made. Also, according to
the defendants, the attorney misstated the facts, in that offers of settlement were made by
the defendants prior to trial. All in all, this argument by plaintiffs [sic] counsel created a
miscarriage of justice such that all defendants were prevented from having a fair trial.”
The order was served on all parties on January 18, 2011.

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       On January 28, 2011, plaintiff filed a motion for reconsideration of the court’s
January 14, 2011 order pursuant to section 1008.
       On March 11, 2011, following oral argument, the court entered its “Order
Granting Motion for Reconsideration and Reversing Prior Order Granting Motion for
New Trial.” The order included the following language:
       “Having reviewed the basis of its previous Order granting Defendants a new trial
and determined on its own initiative pursuant to its inherent authority that
reconsideration of that prior Order is appropriate, and having reviewed and considered
the applicable law on the issue of the propriety and effect of Plaintiff’s counsel Mr.
Vignolo’s comment during closing argument to the effect that ‘none of these Defendants
have told you or can tell you that they offered Shahgir any money coming into this trial,’
the Court hereby orders as follows: [¶] . . . [¶] This Court’s January 14, 2011 Order
granting new trial is hereby reconsidered and reversed; [¶] . . . [¶] The Court’s Order
granting Defendants’ Motion for New Trial was not properly granted as the comment
made by Mr. Vignolo during closing argument was not error and did not offend the
prohibitions of California Evidence Code section 1152[;] [¶] . . . [¶] The Court’s Order
granting Defendants’ Motion for New Trial was not properly granted as there is no
evidence in the record to establish a reasonable probability that Defendants would have
received a more favorable result absent Mr. Vignolo’s comment; [¶] . . . [¶] A new and
different Order denying Defendants’ Motions for New Trial shall be entered . . . .”
(Italics added.)

                                        DISCUSSION

       Defendants challenge the trial court’s reconsideration of its January 14, 2011,
order granting the motion for new trial. They contend the motion for new trial was
properly granted. They further contend the trial court was without jurisdiction to reverse
or change its order granting the new trial motion and, in any event, it was error to grant


                                             6
the motion for reconsideration and, upon reconsideration, deny defendant’s motion for a
new trial.
        As a preliminary matter, we reject plaintiff’s claim that the propriety of the court’s
March 11, 2011, order reversing and vacating its January 14, 2011, order granting the
new trial motion is not properly before us due to defendants failure to specifically
challenge that “distinct portion of the March 11, 2011 order” in their notices of appeal.
“The notice of appeal must be liberally construed. The notice is sufficient if it identifies
the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).)
“[A]n appeal will not be dismissed because of a misdescription of the judgment or order
to which it relates, unless it appears that the respondent has been misled by such
misdescription.” (Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737,
739.)
        The court’s March 11, 2011, order is entitled “Order Granting Motion for
Reconsideration and Reversing Prior Order Granting Motion for New Trial.” As plaintiff
correctly points out, that order includes both an order reconsidering and reversing the
January 14, 2011 order, and an order denying defendants’ motion for new trial.
Defendants’ amended notice of appeal indicates defendants are appealing from, among
other things, the “Order Granting Motion for Reconsideration dated March 11, 2011,”
and from the judgment on the verdict entered November 19, 2010. It is clear from the
notice of appeal, as well as the appellate briefing, that defendants are challenging the trial
court’s reconsideration and reversal of its January 14, 2011, order granting the new trial
motion. That appeal would undoubtedly encompass a review of that portion of the
March 11, 2011, order vacating the January 14, 2011 order. Further, the court’s order
denying the motion for new trial is reviewable on defendants’ appeal from the underlying
judgment. (See §§ 904.1(a)(2) and 906; Walker v. Los Angeles County Metropolitan
Transp. Authority (2005) 35 Cal.4th 15, 18-19 [although order denying motion for new
trial is nonappealable, denial is reviewable on appeal from underlying judgment].)

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Finally, plaintiff makes no claim that he was misled by the notice of appeal or was
unaware of the fact that defendants sought to challenge the court’s reconsideration,
reversal, and vacation of its earlier order granting the motion for new trial. We therefore
construe the notice of appeal liberally in favor of its sufficiency as properly noticing
appeal from the trial court’s reconsideration, reversal, and vacation of its January 14,
2011, order granting the new trial motion, and from the underlying judgment, making
reviewable the order denying the motion for new trial as well.

                                              I

                 Trial Court Properly Exercised its Inherent Authority to

                        Reconsider its Order Granting a New Trial

       Turning to the merits of defendants’ claims, we first address the issue of whether
the trial court’s reconsideration of its order granting the motion for new trial was proper.
We conclude it was.
       “ ‘One of the powers which has always been recognized as inherent in courts,
which are protected in their existence, their powers and jurisdiction by constitutional
provisions, has been the right to control [their] order of business and to so conduct the
same that the rights of all suitors before them may be safeguarded. This power has been
recognized as judicial in its nature, and as being a necessary appendage to a court
organized to enforce rights and redress wrongs.’ ” (Lorraine v. McComb (1934) 220 Cal.
753, 756.)
       In particular, a trial court has broad power, inherent in the California Constitution,
to rehear, reconsider and correct what it perceives to be an incorrect interim ruling.
(People v. Castello (1998) 65 Cal.App.4th 1242, 1246-1250.) The inability to correct
such an error is “ ‘a serious impediment to a fair and speedy disposition of causes.’ ”
(De La Beckwith v. Superior Court (1905) 146 Cal. 496, 500.) “A court could not
operate successfully under the requirement of infallibility in its interim rulings.

                                              8
Miscarriage of justice results where a court is unable to correct its own perceived legal
errors, . . . .” (People v. Castello, supra, 65 Cal.App.4th at p. 1249.)
       Defendants argue that plaintiff’s motion for reconsideration brought under section
1008 was, for a number of reasons, defective.
       “Section 1008 . . . states procedures for applications to reconsider any previous
interim court order. It ‘applies to all applications for interim orders’ (§ 1008, subd. (g))
and provides time limits and other requirements for such applications. It contains several
provisions relevant here. It generally requires that any motion for reconsideration be
based ‘upon new or different facts, circumstances, or law . . . .’ (§ 1008, subds. (a), (b).)
It also provides: ‘If a court at any time determines that there has been a change of law
that warrants it to reconsider a prior order it entered, it may do so on its own motion and
enter a different order.’ (§ 1008, subd. (c).) Finally, it provides: ‘This section specifies
the court’s jurisdiction with regard to applications for reconsideration of its orders and
renewals of previous motions, and applies to all applications to reconsider any order of a
judge or court, or for the renewal of a previous motion, whether the order deciding the
previous matter or motion is interim or final. No application to reconsider any order or
for the renewal of a previous motion may be considered by any judge or court unless
made according to this section.’ (§ 1008, subd. (e).)” (Le Francois v. Goel (2005)
35 Cal.4th 1094, 1098 (Le Francois).)
       Section 1008 and other reconsideration statutes “prohibit a party from making
renewed motions not based on new facts or law, but do not limit a court’s ability to
reconsider its previous interim orders on its own motion, as long as it gives the parties
notice that it may do so and a reasonable opportunity to litigate the question.”
(Le Francois, supra, 35 Cal.4th at pp. 1096-1097, 1107-1109.) Regardless of “whether
the ‘judge has an unprovoked flash of understanding in the middle of the night’ [citation]
or acts in response to a party’s suggestion,” if a trial court “believes one of its prior
interim orders was erroneous, it should be able to correct that error no matter how it came

                                               9
to acquire that belief.” (Id. at p. 1108; see also In re Marriage of Barthold (2008)
158 Cal.App.4th 1301, 1307-1308.) “[A] party’s filing of a motion for reconsideration in
violation of the reconsideration statutes does not erect a permanent, insurmountable
barrier to reconsideration by the trial court on its own motion.” (Barthold at p. 1309.)
       Defendants argue an order granting a motion for new trial is not the kind of
“interim” order contemplated by Le Francois. Our state’s highest court addressed that
very issue in People v. DeLouize (2004) 32 Cal. 4th 1223 (DeLouize), explaining as
follows: “An order granting a new trial is not final in the sense of being a final resolution
of the case or a final determination of the defendant’s guilt or innocence. On the
contrary, an order granting a new trial ‘does not finally dispose of the matter.’ (Jiminez
v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) In a criminal case, ‘[t]he granting of
a new trial places the parties in the same position as if no trial had been had.’ (Pen. Code,
§ 1180.) Thus, an order granting a new trial is an interim order in the sense that it
requires further proceedings before the case may be resolved and judgment may be
pronounced.” (DeLouize, supra, 32 Cal.4th at p. 1231.)
       Defendants maintain DeLouize “carves a narrow exception for reconsideration of
orders granting new criminal trials” and is therefore inapplicable. We disagree for two
reasons. First, while the DeLouize court ultimately concluded reconsideration of the new
trial order was proper given developments in the law regarding certain applicable jury
instructions which “constituted a material change in the law undercutting the legal ground
for defendant’s new trial motion, and thus the very purpose for having a new trial”
(DeLouize, supra, 32 Cal.4th at p. 1233), there is nothing in the opinion to suggest that
the court’s characterization of the new trial order as an “interim” order hinged on its
ultimate conclusion that reconsideration was proper.
       Second, the Supreme Court could very well have constrained its “interim” order
characterization to new trial orders in criminal cases only. It did not, and we see no
reason why the underlying reasoning should not apply in this civil context. Like

                                             10
DeLouize, the order granting defendants’ motion for new trial here did not finally dispose
of the matter. Rather, it returned the parties to their pre-trial stance requiring further
proceedings to bring the dispute to a close. (Jiminez v. Sears, Roebuck & Co., supra,
4 Cal.3d at p. 387; Alhambra Consol. Mines, Inc. v. Alhambra Shumway Mines, Inc.
(1966) 239 Cal.App.2d 590, 600.) Thus, the trial court’s exercise of its inherent power to
correct what it perceived to be an erroneous ruling avoided inconvenience and expense to
the parties, and conserved precious judicial resources, associated with the relitigation of
the same facts and issues.
       Moreover, as a result of the order granting a new trial, the trial court continued in
its role as the custodian of justice over the parties and proceedings in the case.
Acknowledging the court’s right to control the business before it such that the rights of
all parties involved “may be safeguarded” (Lorraine, supra, 220 Cal. at p. 756), we are
reticent to deny it the exercise of its inherent power to revisit a prior interim order it
believes to be erroneous. (Le Francois, supra, 35 Cal.4th at p. 1108.)
       Defendants argue the trial court’s lack of jurisdiction to reconsider a prior order
granting a new trial is firmly rooted in case law, citing cases including Odd Fellows’ Sav.
Bank v. Deuprey (1884) 66 Cal. 168 and Bloomquist v. Haley (1928) 204 Cal. 258.
Those cases do not, however, speak to the court’s inherent constitutional authority to
revisit and correct its interim rulings, among which is an order granting a motion for new
trial. (DeLouize, supra, 32 Cal.4th at pp. 1231-1232.)
       Finally on this point, while the issues are not precisely the same, we find
instructive the following:
       “ . . . [W]e distinguish, but do not disapprove, the early cases, beginning with
Morite of California v. Superior Court [(1993) 19 Cal.App.4th 485], that held that
sections 437c and 1008 limit the court’s power (or jurisdiction) to reconsider motions by
the parties. We agree with the later line of cases, beginning with Darling, Hall & Rae v.
Kritt [(1999) 75 Cal.App.4th 1148] (and, in dicta, People v. Castello [(1998)

                                              11
65 Cal.App.4th 1242]), that interpreted the statutes as limiting the parties’ power to file
repetitive motions but not the court’s authority to reconsider interim rulings on its own
motion. . . . We hold that sections 437c and 1008 limit the parties’ to file repetitive
motions but do not limit the court’s ability, on its own motion, to reconsider its prior
interim orders so it may correct its own errors.” (Le Francois, supra, 35 Cal.4th at
p. 1107.)
       We conclude the trial court properly exercised its inherent authority, derived from
the constitution, to reconsider the prior interim ruling and correct its own perceived
judicial error thus facilitating a fair and speedy disposition of the parties’ dispute.

                                               II

                  The Order Denying Defendant’s Motion for New Trial

       Our decision that the trial court acted within its inherent authority in reconsidering
its earlier order granting defendant’s motion for new trial requires us to turn to the court’s
order denying the new trial motion. We note that our decision approving the trial court’s
revisitation of the new trial motion effectively moots the trial court’s first order granting
defendants a new trial, an order that the trial court later reversed and, effectively, vacated.
       Somewhat awkwardly, defendants spend a good deal of time in their briefing
arguing that the first order that granted a new trial was correct. Except in a paragraph or
two at the end of their brief, they do not argue directly that the court’s order denying a
new trial was an abuse of the trial court’s discretion.
       Even so, we will read defendants’ briefing to argue that the new trial motion was
ultimately denied in error for the reasons that defendants set forth in their initial motion.
In other words, we take the defendants’ position to be that the trial court erred in denying
the new trial motion for the same reasons that it was correct to grant the motion in its
initial ruling. We give defendants considerable leeway here because, given our earlier
ruling that the trial court could reconsider its first order, defendants normally would be


                                              12
required to show why an order denying them a new trial was error, not why the first order
granting them a new trial was not. In any event, our broad reading of the briefing
requires a discussion of defendants’ points in support of its original motion for a new
trial. We conclude the trial court did not err in ultimately denying the motion.
       An aggrieved party may move the trial court to vacate a judgment and grant a new
trial for the following reasons materially affecting the substantial rights of the parties: “1.
Irregularity in the proceedings of the court, jury or adverse party, or any order of the
court or abuse of discretion by which either party was prevented from having a fair trial.
[¶] 2. Misconduct of the jury . . . [¶] 3. Accident or surprise, which ordinary prudence
could not have guarded against. [¶] 4. Newly discovered evidence, material for the
party making the application, which he could not, with reasonable diligence, have
discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6.
Insufficiency of the evidence to justify the verdict or other decision, or the verdict or
other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to
by the party making the application.” (§ 657.)
       We are mindful of the fact that “[a] trial court has broad discretion in ruling on a
motion for a new trial, and there is a strong presumption that it properly exercised that
discretion. ‘ “The determination of a motion for a new trial rests so completely within
the court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.” ’ [Citation.]” (People v. Davis (1995)
10 Cal.4th 463, 524, quoting People v. Williams (1988) 45 Cal.3d 1268, 1318.)
       “ ‘Misconduct of counsel as a ground for new trial presents a matter primarily
committed to the trial court. [Citation.] The judge who presides over the trial, who hears
the testimony and the arguments, and whose own experience gives him a fine sense of the
general atmosphere of trial proceedings, is in a far better position than appellate judges to
evaluate the effect of disputed argument.’ (Henninger v. Southern Pacific Co. (1967)
250 Cal.App.2d 872, 881.)

                                              13
       “However, article VI, section 13 of the California Constitution provides: ‘No
judgment shall be set aside, or new trial granted, in any cause, on the ground of
misdirection of the jury, or of the improper admission or rejection of evidence, or for any
error as to any matter of pleading, or for any error as to any matter of procedure, unless,
after an examination of the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage of justice.’ (Italics
added.)
       “ ‘ “[T]he trial court is bound by the rule of California Constitution, article VI,
section 13, that prejudicial error is the basis for a new trial, and there is no discretion to
grant a new trial for harmless error. [Citation.] . . . The grant of a new trial for harmless
error violates the constitutional provision and wastes judicial time and resources to no
purpose. [¶] Accordingly, the order granting a new trial is valid only if prejudicial error
occurred at the trial.” [Citation.]’ (Garcia v. County of Los Angeles (1986) 177 Cal.
App.3d 633, 641.)” (Garcia v. Rehrig Internat., Inc. (2002) 99 Cal.App.4th 869, 874-
875, italics added.)
       We conclude no error occurred here, prejudicial or otherwise. During the trial,
Satnam testified regarding two checks totaling approximately $109,000. The following
questions were asked and answers given:
“[Plaintiff’s Counsel]: And you never gave either check to Shahgir, right?
“[Satnam Gill]: He never came forward to take his money. We requested over and over.
“[Counsel]: So you never gave either check to Shahgir?
“[Satnam]: But he never came, sir, to take the money when we request us to go meet him
and he never showed up at that point.
“[Counsel]: Okay.
“[Satnam]: We were getting money after him. This is your money, this is your money,
we need to pay you. You did the work for us. And he never showed up.



                                               14
“[Counsel]: So, sir, your testimony is that you brought these two checks to Shahgir and
said we want you to take this money, but he wouldn’t show up to come get it; is that your
testimony?
“[Satnam]: I already said, sir, we wanted to see what he spend and sit down with us what
he exactly spend the money and take the money if we owe him more we will sign our
own personal check to him, but he never showed up. [¶] . . . [¶]
“[Counsel]: You held onto them until [January of 2005]?
“[Satnam]: We waited for him. I don’t want no dispute with nobody. We waited over
six month [sic] holding this money in my hand. He never showed up.”
       Satnam was later asked to confirm that it was his testimony that he was “trying to
hunt Shahgir down to pay him the [$]109,000,” to which he responded, “Yes, sir. Three
times. A[t] least three times we took the money with us, me and Mr. Dinesh Sharma. He
never showed up.”
       Satnam was also asked about money he and Dinesh made in the approximate
amount of “[$]100,000 on one property and [$]20,000 on another.” The following
questions were asked and answers given:
“[Plaintiff’s Counsel]: Once the $120,000 enters your bank accounts, did you stop and
say to yourself, you know what, whatever happened between Shahgir Gill and I, all the
stuff we’ve already covered/different prices. This and that. He did this. We did that, all
of the conflict that is intensified in a family, did you stop and think [to] yourself with Mr.
Dinesh, ‘Let’s give him some money’? Did you have that thought?
“[Satnam Gill]: We had thought for so long until he filed the lawsuit against us. We
were still waiting for him to come forward that way we can clean up everything. It’s a
family matter, but it didn’t went that way.
“[Counsel]: Did you try to give him -- if it was one-third he’d be entitled to $40,000.
Did you try to pay him $40,000?
“[Satnam]: If he would have come forward, yes.

                                              15
“[Counsel]: Did you try to?
“[Satnam]: I would.
“[Counsel]: Not would you. Did you? If you did, that’s fine?
“[Satnam]: No, I did not.
“[Counsel]: Why not?
“[Satnam]: Because he never came forward.
“[Counsel]: Don’t you think you had a duty to go find him and pay the $40,000?
“[Satnam]: We tried.
“[Counsel]: You tried to find him to pay the $40,000?
“[Satnam]: We tried to have him sit down, but he never came.”
       In closing argument, plaintiff’s counsel made specific reference to the claim that
Satnam tried to “track Shahgir down to pay him that $109,000 . . . , but Shahgir wouldn’t
reveal himself. Shahgir wouldn’t come get the money,” and that Satnam “tried to track
Shahgir down to give Shahgir his one-third of that [$120,000], but again, Shahgir
wouldn’t come and get his money.” Counsel followed-up those statements by arguing,
“. . . we’ve been here for two weeks, maybe a little bit more. None of these defendants
have told you or can tell you that they offered Shahgir any money coming into this trial,
that they came here because Shahgir is here. He’s been here every day. They found him,
but they can’t tell you that they offered to pay him any money.”
       Defendants characterize counsel’s statements in closing argument as an
impermissible reference to pre-trial settlement discussions. The record suggests
otherwise. Plaintiff’s counsel specifically referenced the amounts of $109,000 and one-
third of $120,000. Not only did Satnam testify about those particular amounts, he also
conceded Shahgir was owed the $109,000 and one-third of the $120,000 and repeatedly
claimed he and the other defendants attempted on numerous occasions to pay Shahgir
those amounts.



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       “[I]n summing up the case counsel are given wide latitude; . . . they are at liberty
to discuss the case in all its bearings, provided they do not attempt to bring in matters
outside the case made. And where facts alluded to are in evidence counsel has the right
in argument to refer to them. [Citation.]” (Shriver v. Silva (1944) 65 Cal.App.2d 753,
763-764 [court rejected appellants’ complaint of prejudicial misconduct by plaintiff’s
counsel in referring to subject matter in closing argument where appellants’ counsel
“injected” the subject into the case during trial]; see also Aydlott v. Key System Transit
Co. (1930) 104 Cal.App. 621, 628 [where facts that personal injury accident prevented
plaintiff from pursuing occupation as stenographer and instead compelled her to abandon
her home and move to a house over a garage were in evidence at trial, plaintiff’s counsel
“had a right” to refer to those facts in closing argument].) Read in context, and in light of
Satnam’s testimony, counsel’s argument was an appropriate attempt to challenge facts
placed in evidence by defendants’ testimony that numerous attempts to pay Shahgir were
thwarted by Shahgir’s refusal to come forward to receive payment.
       It is significant to our finding of no error that defense counsel’s objection to the
challenged argument was, after an unrecorded discussion at the bench, overruled. It
seems to us that the trial judge’s consideration of the issue of potential attorney
misconduct and his decision to overrule defendants’ objection the very moment of the
challenged statements and while the testimony, arguments, and courtroom dynamics were
fresh in mind, lends credence to the ruling in a way that later consideration of the issue on
a cold record does not.
       The absence of error is further demonstrated by the affidavit filed in support of
defendants’ motion. “Application for new trial on the ground of misconduct of counsel
unquestionably comes within the provisions of subdivision 1 of section 657 of the Code
of Civil Procedure, and section 658 of the code requires that such application be made
upon affidavits,” except where “the alleged misconduct fully appears from a reading of
the reporter’s transcript.” (Green v. County of Merced (1944) 62 Cal.App.2d 570, 571-

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572.) “Although it is well settled that the granting or denial of a motion for a new trial is
discretionary with the trial court and its determination will not be disturbed even though
this court might be inclined to rule differently if passing on the motion de novo
[citations], the power is not absolute. . . . ‘This rule has no application where the
affidavit or other evidence upon which the order is made furnishes no basis for the
exercise of such discretion.’ ” (Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 433-434;
see also Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 975.) Such is the case here.
       In support of their claim of “irregularity in the proceedings” resulting from the
closing argument by plaintiff’s counsel, defendants offered the declaration of Dinesh
Sharma which attests as follows: “During the pre-trial conference there were settlement
negotiations. Defendants offered monies to settle the case. Plaintiff’s counsel rejected
the offer and made a counter offer which [was] not accepted. During Plaintiff’s closing
argument, attorney for the plaintiff, said that the defendants never offered any settlement
money.”
       While the Dinesh declaration attests to pre-trial settlement negotiations between
the parties, it fails to explain how, if at all, those negotiations are related to the specific
statements by plaintiff’s counsel regarding payment of the $109,000 or one-third of the
$120,000. Further, while the declaration opines that plaintiff’s counsel “said that the
defendants never offered any settlement money,” plaintiff’s counsel said nothing about
payment or lack of payment of “settlement money” and, as previously discussed, the
record makes plain that counsel was referring to Satnam’s claims of unsuccessful
attempts to pay Shahgir the money owed him because Shahgir refused to come forward
and receive payment. Thus, the only declaration offered by defendants in support of their
claim of attorney misconduct resulting in “irregularity in the proceedings” provides no
support for an order granting a new trial under the circumstances we have before us.
       Having dispelled the claim of attorney misconduct, and thus the claim of error, we
reject defendants’ contention that the trial court correctly determined in its first order that

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counsel’s argument “created a miscarriage of justice such that all defendants were
prevented from having a fair trial.” In the absence of error, the order granting
defendants’ motion for new trial on this particular ground of “irregularity in the
proceedings” was invalid. (Garcia v. Rehrig Internat., Inc., supra, 99 Cal.App.4th at
pp. 874-875.) And, for the same reasons, the court’s order denying the motion for a new
trial was correct.
       Finally, defendants argue that the trial court’s March 11, 2011, order only
“recanted” one of the three reasons the trial court originally granted the motion for new
trial, that is, that “(1) [the statement] purported to inform the jury either of offers of
settlement or that ‘no offer of settlement was made’, (2) [the statement] invited the jury to
‘speculate as to the unsupported inference’ that no offer of settlement was made, and (3)
[the statement] ‘misstated the facts’ in that Defendants declared in support of their
motion that in fact offers of settlement were made prior to trial.”
       This argument need not detain us long. In the first place, the three points to which
defendants refer are essentially the effect of the same alleged misconduct of counsel, an
allegation which we have here dismissed. In the second, the trial court in its March 11,
2011, ruling reversed and, in legal effect, vacated its first order, making that order and all
of its rulings a legal nullity.




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                                   DISPOSITION

     The judgment is affirmed.



                                                 HULL   , J.



We concur:



     BLEASE             , Acting P. J.



     MAURO              , J.




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