California
Appeals
Standard of Review
Judgment Notwithstanding The Verdict

Standard of Review-Judgment Notwithstanding The Verdict-McCarty v. Caltrans
 

3.         Judge Umhofer’s stated grounds for denying the motion for JNOV.

Caltrans also contends that Judge Umhofer failed to exercise his discretion in ruling on the motion for JNOV.  It argues that he erred by relying on Judge Mandabach’s previous rulings, rather than reviewing the record that Caltrans had provided with its motion.

“‘“The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.”  [Citation.]’”  (Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563, 568, quoting Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510, quoting Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603.)  We review an order granting or denying JNOV under a de novo standard (Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1194), not an abuse of discretion standard.  In part III.B.2, ante, we held, as a matter of law, that Caltrans was not entitled to JNOV.  Accordingly, even assuming Judge Umhofer erred, the error could not have been prejudicial.

In fairness to Judge Umhofer, however, we have considered Caltrans’s contention and concluded, alternatively, that he did not err.

Ordinarily, a motion for JNOV is made on the ground that there is insufficient evidence to support the verdict; hence, it requires the court to review the trial record.  Here, however, Caltrans argued that, based on the combined effect of Judge Mandabach’s order granting a nonsuit and the jury’s finding that there was no dangerous condition, it was entitled to judgment in its favor as a matter of law; accordingly, “[s]ubstantial evidence is not relevant . . . .”  Caltrans did not even supply Judge Umhofer with a complete transcript of the trial.  Thus, it forfeited any contention that Judge Umhofer should have granted JNOV based on insufficiency of the evidence.

Caltrans therefore argues that Judge Umhofer erred by relying on Judge Mandabach’s rulings.  However, that is precisely what Caltrans was asking him to do!  It was arguing that Judge Mandabach’s order granting a nonsuit should have precluded McCarty from recovering under the retained control doctrine.  Caltrans’s real grievance is that Judge Umhofer took a different view of Judge Mandabach’s rulings than Caltrans did.

We must begin by deciding precisely what the order granting a nonsuit did (and did not) determine.  As we noted in our introduction, the first cause of action, captioned “Negligence,” embraced all of McCarty’s claims; the other causes of action were superfluous.  Judge Mandabach then purported to grant a nonsuit “as to the first cause of action.”  This order, if taken literally, would have been essentially a nonsuit on the whole case.  Obviously, however, that is not what Judge Mandabach intended.

“‘The true measure of an order . . . is not an isolated phrase appearing therein, but its effect when considered as a whole.  [Citations.]’”  (Concerned Citizens Coalition of Stockton v. City of Stockton (2005) 128 Cal.App.4th 70, 77, quoting Roraback v. Roraback (1940) 38 Cal.App.2d 592, 596.)  “‘“‘The rule with respect to orders and judgments is that the entire record may be examined to determine their scope and effect . . . .’”’”  (Talman v. Talman (1964) 229 Cal.App.2d 39, 43, quoting Cottom v. Bennett (1963) 214 Cal.App.2d 709, 717, quoting Strohm v. Strohm (1960) 182 Cal.App.2d 53, 63, quoting L.A. Local etc. Bd. v. Stan’s Drive-Ins, Inc. (1955) 136 Cal.App.2d 89, 94.)  Here Judge Mandabach, “having been the same judge who made the prior order, . . . had in mind his own considerations in connection therewith, his actual determination thereon and what he intended to accomplish by the order.”  (Talman, at p. 43.)  We construe the order granting the nonsuit accordingly.

After granting the nonsuit, Judge Mandabach proceeded to give jury instructions on the dangerous condition of public property theory and the retained control doctrine.  However, he did not instruct on the respondeat superior theory.[10]  Thus, it appears that Judge Mandabach intended to grant a nonsuit on the respondeat superior theory but to deny a nonsuit on the retained control doctrine.

In Caltrans’s view, the resulting order was inconsistent.  It would argue that, if it was entitled to a nonsuit on the respondeat superior theory, then it was also entitled to a nonsuit on the retained control doctrine.  As we held in part III.B.2, ante, that is not correct; even assuming Caltrans was entitled to a nonsuit on the respondeat superior theory, McCarty was still entitled to go to the jury on the retained control doctrine under Government Code section 815.4.

Alternatively, however, we may assume for purposes of argument that the order was inconsistent.  But even if so, which aspect of the order should be controlling?  Should we say that, because Judge Mandabach found that Caltrans was entitled to a nonsuit on the respondeat superior theory, he erred by allowing McCarty to go to the jury on the retained control doctrine?  Or should we say that, because Judge Mandabach denied a nonsuit on the retained control doctrine, he erred by precluding McCarty from going to the jury on a respondeat superior theory?

It has been held that, when one jury has returned two inconsistent findings, neither of those findings is entitled to collateral estoppel effect.  (People v. Morales (2003) 112 Cal.App.4th 1176, 1187-1191.)  The situation here is analogous.  If and to the extent that the order granting the nonsuit was inconsistent, neither inconsistency was controlling over the other.  Caltrans was not entitled to JNOV on the retained control doctrine merely because Judge Mandabach had granted a nonsuit on the respondeat superior theory; after all, he had also denied a nonsuit on the retained control doctrine.

Judge Umhofer used essentially the same reasoning.  Instead of focusing on the fact that Judge Mandabach had granted a nonsuit on the respondeat superior theory, he noted that Judge Mandabach had instructed — and thus had implicitly denied a nonsuit — on the retained control doctrine.  He viewed this (as we do) as an implicit finding that there was sufficient evidence to support a jury verdict based on the retained control doctrine.  Hence, he refused to view the nonsuit order as a finding that there was insufficient evidence to support a jury verdict based on the retained control doctrine.  We agree.

We therefore conclude that Caltrans has failed to show that Judge Umhofer erred by denying the motion for JNOV.

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