(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)
The court may decide to disregard a witness’ testimony because untrustworthy in light of inconsistencies and vagueness; then, weighing the remaining evidence, the motion for new trial should be granted if the verdict clearly cannot stand without that witness’s testimony. CCP 657, para 10; Montijo v. Western Greyhound Lines (1963) 219 CA2d 342; Locksley v. Ungureanu (1986) 178 CA3d 457; Dominguez v. Pantalone (1989) 212 CA3d 201, Ashcraft v. King (1991) 228 CA3d 604, 616-617.
In this case, the testimony of defendant Topp and Cantor falls directly into the category of inconsistent and vague testimony. In fact, their testimony was downright perjurious and false. In cross-examination, both Topp and Cantor admitted that the information contained in the declaration they signed were not accurate. This was with respect to the most material facts of this case (i.e., what kind of dog was it; how many times had it been to the defendant’s property; had it bitten before, etc…). On the basis of the vague and inconsistent testimony, the motion for new trial should be granted, as the weight of the evidence indicated that the defendant was strictly liable for this incident.
The trial court has wide discretion in granting or denying a motion for new trial. Its ruling will not be upset on appeal unless the court demonstrated a manifest and unmistakable abuse or discretion, or based its order exclusively upon an erroneous concept of legal principles. Schelbaur v. Butler Mfg. Co. (1984) 35 C3d 442; Ashcraft v. King (1991) 228 CA3d 604, 616; Neal v. Montgomery Elevator Co. (1992) 7 CA4th 1194, 1199-1200
An order granting a new trial will be affirmed on appeal unless the opposing party demonstrates that no reasonable fact finder could have found for the movant on the trial court’s theory. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. Lane v. Hughes Aircraft Co. (2000) 22 C4th 405, 409.
If distinct and severable issues are involved in the case, the court has authority to grant a new trial on some issues and deny it on others. CCP 657; Shapiro v. Prudential Property & Cas. Co. (1997) 52 CA4th 722, 726. (See Part 7 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.