White v. Super.
Filed 8/8/12 White v. Super. Ct. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JENNIFER MARIE WHITE,
Petitioner,
v.
SUPERIOR COURT OF THE STATE
OF CALIFORNIA
FOR THE COUNTY
OF LOS ANGELES,
Respondent;
B241749
(Super. Ct.
No. MC019871)
DINA A. BARKUS,
Real Party in
Interest.
ORIGINAL
PROCEEDING in mandate. Randolph
A. Rogers, Judge. Petition granted.
Tharpe &
Howell, Stephen J. Beaton, Eric B. Kunkel, and Laura J. Becker for Petitioner.
No appearance for
Respondent.
Law Offices of
Olaf Landsgaard and Olaf Arthur Landsgaard for Real Party in Interest.
________________________
Petitioner
Jennifer Marie White seeks a writ of mandate directing the trial court to
vacate its April 2, 2012
order granting real party Dina A. Barkus’s renewed
trial court had no authority or jurisdiction to grant a new trial. We agree and grant the petition.
Barkus
sued White for the wrongful death of
her son. After a week-long trial and
deliberating for two days, the jury found for White. On April
7, 2011, Barkus moved for judgment notwithstanding the verdict
(JNOV) and a new trial. On April 28, 2011, the trial court (Judge
Randolph Rogers) granted JNOV and a
new trial on damages.
On
June 1, 2011, White filed a
petition for writ of mandate challenging the granting of JNOV and a new
trial. On December 14, 2011, we issued a 23-page, nonpublished
opinion detailing how the trial court erred in granting JNOV and a new
trial. (White v. Superior Court (B233360).)
We ordered the trial court to vacate the April 28, 2011 order granting JNOV and a new trial, and to reinstate the jury’s verdict. The remittitur issued on February 16, 2012, making the case final.
On
February 27, 2012, Barkus filed a “renewed motion for new trial,” arguing,
among other things, that her original April 2011 motion for new trial was
actually never heard, and that the trial court could still act on the motion
within the 60-day statutory period of section 660 because White’s appeal
from the new trial order essentially tolled this period. White opposed the motion.
At
a hearing on March 29, 2012,
the trial court vacated the order granting JNOV and a new trial, and reinstated
the jury verdict. Nonetheless, on April 2, 2012, the court issued an
order granting the renewed motion for new trial. Ignoring the fact that it had granted
Barkus’s previous motion for a new trial on damages on April 28, 2011, and that
we had reversed the order, the trial court concluded it had jurisdiction to
grant the renewed motion because (1) the original new trial motion was filed on
April 7, 2011; (2) White filed a notice of appeal on June 1, 2011, tolling
the court’s jurisdiction until the appeal was dismissed on March 28, 2012 (case
No. B233560); and (3) the 60-day statutory period for granting a new trial did
not expire until April 2, 2012.
White
filed this writ petition challenging the order granting a second new
trial. We issued an order giving the
parties notice of our intention to grant a peremptory writ in the first
instance and giving the trial court the opportunity to vacate its order. (See Palma
v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-183 (
Cal.4th 1233, 1239.) The court elected
not to do so, and Barkus file an opposition to the petition. We now grant the petition.
We
conclude, for several independent reasons, that the trial court had no
authority to grant Barkus’s renewed motion for new trial, and that it exceeded
its jurisdiction in doing so. First, the
order materially varies from the directions we gave in our December 2011
written opinion in case No. B233360. “When
an appellate court’s reversal is accompanied by directions requiring specific
proceedings on remand, those directions are binding on the trial court and must
be followed. Any material variance from
the directions is unauthorized and void.”
(Butler
Cal.App.4th 979, 982.) A failure to
follow appellate directions can be challenged by an immediate petition for writ
of prohibition or writ of mandate. (
Our
opinion ordered the trial court to vacate its order granting JNOV and a new
trial, and to reinstate the jury verdict.
While the opinion did not expressly state that judgment was to be
entered for White, it did not need to.
The entire opinion, as a whole, established an intention that is
contrary to a retrial. (See
Cal.App.3d 31, 36-37 [there is no retrial after an unqualified reversal if the
appellate opinion as a whole establishes a contrary intention].) Therefore, anything other than a judgment for
White exceeded the directions given in our opinion.
Second,
the trial court had no authority to hear and grant a second motion for new
trial because the court had already exhausted its jurisdiction to do so. “It has long been the rule that
trial], regularly made, exhausts the court’s jurisdiction, and cannot be
set aside or modified by the trial court except to correct clerical error or to
give relief from inadvertence under [section] 473.’ [Citation.]”
(Wenzoski v. Central Banking
System, Inc. (1987) 43 Cal.3d 539, 542.)
There
is no dispute that Barkus filed her motion for new trial on April 7, 2011, and that the trial
court granted it as to damages on April
28, 2011. We held in case
No. B233360 that the new trial motion was erroneously granted, and ordered
that the ruling be vacated. The trial
court clearly exhausted its jurisdiction in April 2011 once it granted a new
trial on damages, and therefore had no jurisdiction to grant Barkus’s renewed
motion for new trial in April 2012.
Barkus’s argument that the trial court never actually ruled on her new
trial motion until April 2, 2012, is wholly without merit and belies the record
in this case.
Third,
if an appellate court reverses JNOV, the prevailing party is entitled to entry
of judgment in conformity with the verdict.
(Ferran v. Mulcrevy (1935) 9
Cal.App.2d 129, 131.) This rule applies
even though a judgment was not previously entered on the jury’s verdict. (Davcon,
Inc. v. Roberts & Morgan (2003)
110 Cal.App.4th 1355, 1367-1368.) We
reversed the order granting JNOV and new trial.
Therefore, White was entitled to entry of judgment in conformity with
the verdict.
Finally,
the ruling in our opinion on the motion for new trial in case No. B233360 is
law of the case, and the trial court had no authority to deviate from it. Under this doctrine, any principle or rule of
law stated in an appellate opinion that is necessary to the court’s decision
must be followed in all subsequent proceedings in the action, whether in the trial
court or on a later appeal. (
Cal.4th 482, 491.) The doctrine is
applicable to writ proceedings where a written opinion has issued after
issuance of an alternative writ of mandate.
(Kowis v. Howard (1992) 3
Cal.4th 888, 894.)
We
reviewed and decided the issue of whether Barkus’s motion for new trial was
properly granted in case No. B233360. We
determined: (1) that on April 7, 2011, Barkus filed her motion for new trial;
(2) the trial court granted a new trial as to damages on April 28, 2011; (3)
the order granting a new trial was defective because it did not specify the
grounds upon which it was granted or any reason for granting a new trial; and
(4) the new trial on damages was rendered moot by our ruling reversing the
JNOV.
In
addition, we addressed the trial court’s attempt, on November 1, 2011, while
the writ petition was pending, to correct its error by issuing a nunc pro tunc
order granting a JNOV and a new trial.
We held the court had no authority to do so because, among other
reasons, its jurisdiction to grant a new trial had expired long ago pursuant to
sections 657 and 660.
These
rulings became law of the case, preventing the trial court from finding it
never actually granted Barkus’s April 7, 2011 new trial motion or that it had
jurisdiction to grant a new trial.
We
have followed the procedures and given the notice described in
error is clear, and the matter should be expedited. Accordingly, a peremptory writ in the first
instance is appropriate. (§ 1088;
Cal.4th 1218, 1222-1223; Ng v. Superior
Court (1992) 4 Cal.4th 29, 35.)
The
petition is granted. The trial court is
ordered to (1) vacate its order of April 2, 2012, granting Barkus’s renewed
motion for a new trial, and instead (2) issue a new order denying the motion,
and enter judgment for White in accordance with the jury’s verdict. White is to recover her costs in this writ
proceeding.
BIGELOW,
P.J.
WE CONCUR:
RUBIN,
J.
FLIER,
J.
name="_ftn1" title="">[1] At
the same time White filed her writ petition, she also appealed the order
granting a new trial, which is an appealable order. (Code Civ. Proc., § 904.1, subd.
(a)(4).) Further code references are to
the Code of Civil Procedure. Because our
writ opinion in case No. B233360 resolved all issues concerning the order
granting a new trial, the appeal was no longer necessary and it was dismissed
on March 28, 2012. (Case
No. B233560.)
