DELLOCA v. THE BANK OF NEW YORK TRUST COMPANY Part II
Where parties and judge in suit against defendant for breaching indenture agreement agreed to procedure whereby judge reviewed pleadings submitted by parties and issued tentative ruling, held telephonic hearing while judge was out of state, and prepared and electronically transmitted an order to superior court that was signed by another judge in original judge's absence, Code of Civil Procedure Secs. 166(b) and 661, and Government Code Sec. 69741.1, did not deprive first judge of subject matter jurisdiction to issue order granting motion for new trial. Court did not abuse its discretion in granting conditional motion for new trial unless plaintiffs consented to a reduction in damages award after finding award speculative where there was a material conflict of evidence regarding extent of damage and order had support in record; order was not equivalent to directed verdict or JNOV where it did not fully dispose of the litigation. Court properly denied plaintiff's motion for partial JNOV where it could not be coupled with remainder of unaltered verdict to become a final judgment. Where court found only that evidence did not justify the jury's verdict, and made no findings that plaintiffs must lose on theory of causation and damages, it appropriately and correctly granted defendant's motion for a new trial, and equally appropriately and correctly denied defendant's motion for JNOV. Where plaintiffs had not accepted condition in court's order that would prevent new trial, they had no monetary recovery from defendants and no right to costs.
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