Filed 4/5/22 Soulliere v. Suzuki Motor Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, Glenn R. Salter, Judge. Dismissed. Request to file exhibits. Denied.

BHC Law Group, Lori A. Schweitzer; Bowman and Brooke and Robert A. Brundage for Defendant and Appellant.

The Simon Law Group, Robert T. Simon, Brad M. Simon, Jenny V. Anglin, and Travis E. Davis for Plaintiff and Respondent.

* * *

Suzuki Motor Corporation appeals from postremand orders setting the matter for a new trial, arguing the orders effectively denied Suzuki a judgment notwithstanding the verdict (JNOV). We conclude the orders did not deny Suzuki a JNOV, and thus, are not appealable orders. Accordingly, we dismiss the appeal.[1]

I

Factual and Procedural Background

The factual background is detailed more fully in our prior opinion. (See Soulliere v. Suzuki Motor Corporation. (Dec. 8, 2020, G057266) [nonpub. opn.].) Briefly, 10 days after plaintiff and respondent Thomas Joseph Soulliere purchased a Suzuki motorcycle, he was involved in an accident which he blamed on complete failure of the bike’s front brake. During a subsequent inspection, the bike’s front brake master cylinder was destroyed as part of a recall campaign for a possible defect. Soulliere sued Suzuki for product liability. After a jury returned a verdict in favor of Soulliere, Suzuki appealed from the trial court’s denial of its motion for a judgment notwithstanding the verdict (JNOV) and the subsequent judgment. We concluded the judgment should be reversed, in part, because Soulliere did not present expert evidence establishing the recall condition, the only defect at issue, was a substantial factor in causing the accident. However, because he made an offer of proof on this issue when opposing Suzuki’s motion for nonsuit or directed verdict, we could not order the trial court to enter a judgment in Suzuki’s favor without providing Soulliere an opportunity to present his expert’s, Hyatt’s, opinion on the causal defect. (Ibid.)

We reversed the judgment and remanded for “the plaintiff to make an offer of proof on the admissibility of Hyatt’s opinion linking the recall condition to a complete brake failure. If the trial court concludes the proffered expert testimony is admissible or insufficient as a matter of law, the trial court shall enter judgment in favor of Suzuki on all claims. Otherwise, the trial court shall set the matter for a new trial.” (See Soulliere v. Suzuki Motor Corporation. (Dec. 8, 2020, G057266) [nonpub. opn.].)

Following remittitur, the trial court held a hearing on Soulliere’s offer of proof. On October 8, 2021, the trial court issued an order setting the matter for a new trial. Suzuki filed a motion requesting express rulings on its evidentiary objections to the offer of proof. At a November 4, 2021 status conference, the trial court reaffirmed its prior ruling setting the matter for a new trial.

Suzuki noticed appeals from the October 8, 2021 and the November 4, 2021, orders setting the matter for a new trial. Subsequently, we requested the parties to file supplemental briefs on whether the orders were appealable pursuant to Code of Civil Procedure section 904.1. (See, e.g., Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [“An appealable judgment or order is essential to appellate jurisdiction, and the court, on its motion, must dismiss an appeal from a nonappealable order”]; City of Los Angeles v. Schweitzer (1962) 200 Cal.App.2d 448, 452 [“If it be determined that the appeal is from a nonappealable order and the reviewing court is without appellate jurisdiction, that court has no recourse other than to dismiss the appeal on its own motion”].)

II

Discussion

“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) “A trial court’s order is appealable when it is made so by statute.” (Ibid.; see Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [“The right to appeal is wholly statutory”].) Here, Code of Civil Procedure section 904.1 does not list an order setting a matter for a new trial as an appealable order.

Suzuki argues the order setting a new trial is effectively an order denying a JNOV, which is appealable pursuant to Code of Civil procedure section 904.1, subdivision (a)(4). It notes that in the prior appeal, we concluded we would “conditionally reverse” the trial court’s order denying its JNOV motion, and following remand, the trial court confirmed that its intent in setting a new trial was to deny the prior JNOV motion. The order setting a new trial, however, is not functionally an order denying a JNOV because there are no unfavorable jury verdicts given our reversal of the underlying judgment. (See Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 750 [“the defendant may move for a nonsuit if the case has not yet been submitted to the jury, a directed verdict if the case is about to be submitted, or a judgment notwithstanding the verdict (jnov) following an unfavorable jury verdict”].)

Rather, the order setting a new trial here is akin to an order denying a directed verdict. In our disposition, we directed the trial court to (1) enter judgment in favor of Suzuki or (2) set the matter for a new trial depending on its resolution of Soulliere’s offer of proof. In setting the matter for a new trial, the trial court effectively denied Suzuki a judgment in accordance with our directions. But an “order directing a verdict is nonappealable,” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 384), and may be reviewed only in connection with an appeal from the final judgment. (See Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448, fn. 1 [pursuant to Code of Civil Procedure section 906, intermediate rulings are generally reviewable on appeal from any judgment made appealable by section 904.1]; see also McKee v. Lynch (1940) 40 Cal.App.2d 216, 228 [“An order denying a motion for nonsuit is not an appealable order but may be reviewed on the appeal from the judgment”].)

III

Disposition

The appeal is dismissed. No costs are awarded.

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

SANCHEZ, J.

[1] We deny Suzuki’s request to file five volumes of materials in connection with this appeal.