Thorn v. Modesto & Empire Traction

Filed 4/19/06 Thorn v. Modesto & Empire Traction CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. William A. Mayhew, Judge.

Jay-Allen Eisen Law Corporation, Jay-Allen Eisen and C. Athena Roussos for Defendant and Appellant.

The Crow Law Firm, Gerald J. Adler and Richard E. Crow, II for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On April 10, 2003, plaintiff/respondent Derek Thorn (Thorn) filed an unverified complaint for personal injuries and damages in Stanislaus County Superior Court. Respondent named defendant/appellant Modesto & Empire Traction Company (Traction), a California corporation, as defendant and alleged the following causes of action: first cause of action--violation of the Safety Appliance Act (49 U.S.C. § 20301) and second cause of action--failure to provide a safe place to work under the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq.). Thorn prayed for past and future general damages, medical expenses, and impairment of earning capacity, prejudgment interest, costs of litigation, and other and further relief.^[1]

On June 25, 2003, Traction filed an answer generally denying the material allegations of the complaint (Code Civ. Proc., § 431.30) and setting forth 15 affirmative defenses.

On May 14, 2004, Thorn filed written motions in limine regarding collateral source benefits, nonrelevant injuries and illnesses, employment discipline, Thorn's personal life, Traction's failure to produce documents and evidence requested by Thorn, and lack of prior accidents or injuries in the area where Thorn was injured.

On May 25, 2004, Thorn filed a trial brief.

On June 8, 2004, Thorn filed a written request for jury instructions and proposed form of special verdict. (Code Civ. Proc., § 607a.)

On June 9, 2004, the jury returned a verdict finding a mutual mistake concerning Thorn's condition at the time he executed a release for $1,250, but further finding that Traction was not negligent, did not violate the safety statute relating to couplers, and did not violate the safety requirement relating to walkways.

On June 30, 2004, Thorn filed an amended notice of intent to move for new trial on the ground of irregularity in the proceedings, juror misconduct, insufficiency of evidence, and error in law, along with various supporting papers (Code Civ. Proc., § 657, subds. 1, 2, 6, 7, § 659).

On or about July 15, 2004, Traction filed a memorandum of points and authorities in opposition to the motion for new trial and motion to strike a juror's declaration in support of appellant's motion.

On August 10, 2004, Thorn filed a written reply to Traction's opposition to the motion for new trial.

On August 19, 2004, the Honorable John E. Griffin, Jr., judge of the superior court, announced his tentative ruling over the Internet and summarily granted the motion for new trial by minute order.

On August 25, 2004, Thorn filed an ex parte application for a hearing and order stating the court's grounds and reasons for the new trial order.

On August 26, 2004, the Honorable William A. Mayhew, judge of the superior court, conducted a hearing on the ex parte application, heard the arguments of counsel, noted the unavailability of Judge Griffin due to his absence from Stanislaus County, and filed a minute order setting forth grounds and reasons for the new trial order.

On August 30, 2004, Judge Mayhew filed a formal order granting new trial stating in relevant part:

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