Stanford Law School - Robert Crown Law Library

Filed 7/2/07
IN THE SUPREME COURT OF CALIFORNIA

THE OAKLAND RAIDERS,
Plaintiff,
Cross-defendant
and
Appellant,
S132814
v.
Ct.App. 2/2 B163115
NATIONAL FOOTBALL LEAGUE,
Defendant, Cross-complainant )
Los Angeles County
and Appellant;
Super. Ct. No. BC206388
PAUL TAGLIABUE et al.,
Defendants and Respondents. )

Code of Civil Procedure section 657 (hereafter section 657) requires that an
order granting a new trial specify not only the ground for the order but also “the
court’s reason or reasons for granting the new trial upon each ground stated.”
Here, the trial court granted plaintiff Oakland Raiders’ motion for a new trial on
the ground of jury misconduct, but the court failed to set out the required
specification of reasons for granting a new trial based on jury misconduct.
Although ordinarily an order granting a new trial is reviewed only for abuse
of discretion, the Court of Appeal held that an order lacking an adequate
specification of reasons is subject to independent review. Under that standard of
review—one that gives no deference to the trial court’s ruling—the Court of
Appeal overturned the order granting a new trial and consequently affirmed the
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verdict and judgment against the Raiders. We agree with the analysis and
conclusion of the Court of Appeal, and therefore we affirm the judgment of that
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts Leading to the Raiders’ Move from Los Angeles
The Oakland Raiders is a professional football team owned by Al Davis,
with a membership in the National Football League (NFL), which is an
unincorporated association governed by its own constitution and bylaws. After the
Raiders relocated to Los Angeles from Oakland in 1982, they played their home
games at the Los Angeles Memorial Coliseum until 1995. Unlike newer stadiums,
the Coliseum’s facilities did not permit the team to derive revenues from items
such as luxury suites, club seats, naming rights, or other sponsorships.
Throughout the end of 1994 and the first half of 1995, the Raiders
negotiated with individuals representing Hollywood Park, a racetrack, for the
construction of a new, state-of-the-art stadium in Inglewood in Southern
California. In March 1995, the parties reached an agreement that required the
Raiders to secure from the NFL a contribution of $20 million and a commitment
that at least two Super Bowl games would be played in the new stadium at
Hollywood Park between 2000 and 2004. The NFL, however, offered only to
schedule one Super Bowl at Hollywood Park during the period in question. The
NFL proposed to invest some money in the project, but less than the Raiders had
requested. It offered to provide additional assistance on the condition that a
second NFL team be permitted to play at the stadium for several years.
In May 1995, the NFL adopted Resolution FC-7, which, among other
things, awarded two Super Bowls to the planned Hollywood Park stadium
conditioned on two NFL teams playing there and created a committee to negotiate
with both the Raiders and Hollywood Park concerning a second NFL team. The
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new committee developed terms to permit a second NFL team to play in the Los
Angeles region, but those terms were inconsistent with the Raiders’ goals, and the
Raiders perceived them as favoring the second team. As a result, the Raiders
entered into an agreement with the City of Oakland in June 1995 to move to the
renovated Oakland Coliseum. The agreement included an “up-front” $64 million
payment to the Raiders and immediately enhanced revenue streams. Al Davis, the
Raiders’ owner, testified that Oakland officials assured him that personal seat
licenses and game tickets would sell out.
B. Pleadings and Trial
In March 1999, the Raiders brought an action for damages against the NFL
and other defendants.1 On March 13, 2001, jury trial commenced on five of the
six causes of action that had survived motions for summary adjudication. The first
through third causes of action involved the Raiders’ claim that, by moving to
Oakland, they left the NFL with an “opportunity” to put another team in Los
Angeles and that the NFL’s constitution and bylaws implicitly required that the
Raiders be compensated for providing the NFL with that opportunity. The fifth
and sixth causes of action addressed the NFL’s failure to offer the Raiders more
support for the development of the Hollywood Park stadium. (The fourth cause of
action, for declaratory relief, was tried later without a jury.)
The jury deliberated for 15 days. (It began deliberations anew on the fifth
day after one juror was excused because of a scheduling conflict.) It returned a 9-
to-3 verdict in favor of the NFL. Later, after a bench trial, the court entered its

1
This appeal does not involve the other defendants or the NFL’s cross-
complaint against the Raiders.
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statement of decision on the remaining cause of action, denying the Raiders’
request for declaratory relief.
C. Posttrial Motions
On July 26, 2002, the trial court entered judgment on all matters tried
before the jury and the court. That same day, the Raiders moved for a new trial on
the ground, among others, of juror misconduct. The motion asserted that Juror
Joseph A. was biased against the Raiders and concealed that bias during voir dire.
It further asserted that another juror, attorney Linda H., dominated jury
deliberations, infected the deliberations with her own view of the law, and
engaged in private deliberations with another juror. Finally, the Raiders suggested
that a third juror, Lagrimas P., had difficulty understanding English. On appeal,
however, the Raiders abandoned their claim that Lagrimas P.’s language difficulty
was an independent ground for granting a new trial.
To demonstrate the misconduct of Jurors Joseph A. and Linda H., the
Raiders submitted declarations from five jurors. According to those declarations,
Juror Joseph A. stated several times during deliberations that he hated the Raiders
and their owner, Al Davis, and that he would never find for the Raiders or award
them any money. Juror Alice I. declared: “Joseph [A.] stated to the group that he
hated the Raiders and Raiders’ owner Al Davis. He also said to us that the Raiders
were always starting lawsuits with the NFL, and that he would never award the
Raiders any money or find for the Raiders in this case. [¶] I confronted [Joseph
A.], along with several other jurors, saying that it was improper for him to make
such a statement and to act that way. I also told him that he had filled out a
questionnaire, and he had a duty to express his hostility in the questionnaire.
[Joseph A.] responded to me ‘this is America’; that he had a right to express how
he felt; that the questionnaire only asked him what his favorite team was, which he
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said was the New York Jets or Giants, and that the questionnaire did not ask which
team he disliked. [¶] Jurors [Wayman J.] and [William S.] both told [Joseph A.],
in the presence of other jurors, that this act of concealing his bias could cause a
mistrial. [¶] [Joseph A. did not] attempt to explain his dislike for the Raiders in
terms of any evidence he had heard during the trial; rather, his references to other
lawsuits between the Raiders and the NFL and his other comments to the jury
made clear to me that his bias against the Raiders existed prior to this trial.”
Jurors William S. and Alfredo B. submitted declarations that supported
Juror Alice I.’s declaration in all particulars. Jurors Angelo C. and Richard L. also
mentioned Joseph A.’s hostility to the Raiders and Al Davis. Richard L. said:
“[Joseph A.] did not hide the fact that he was biased against the Raiders. The
deliberations were held with these statements hanging over everyone.”
The Raiders also charged jury misconduct by Juror Linda H. The
declaration by Juror William S. stated that Linda H. “told the other jurors that the
Raiders’ lawyer did not want her on the jury, and that she would make them pay.”
The declaration of Juror Angelo C. stated that Juror Linda H., a lawyer, “exercised
an unofficial leadership position,” dominated the deliberations, and instructed the
jurors on the law. She “told the jury that if they voted one way on one of the
claims, they had to vote the same way on another claim, because ‘that was the
law.’ ” She also wrote out statements of the law and taped them to the jury room
walls; her statements were not quotations from the jury instructions “but were her
own words of what she claimed the law was.” She also told the other jurors that
Resolution FC-7 could not be a contract and that there could be no fiduciary
relationship between the NFL and the Raiders as a matter of law.
The NFL submitted seven juror declarations in opposition to the Raiders’
motion for a new trial. Juror Joseph A. stated: “At no time did I have or conceal
any hostility, bias, or ill will toward the Raiders or Mr. Davis. . . . After we had
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been deliberating for many days, at a moment when everyone seemed to be tense,
I said jokingly that I hated the Raiders ‘because I had lost my bet.’ I mentioned
that years earlier, I had gone to Las Vegas and placed a small, legal bet on the
Raiders in a playoff game, which they lost. The part about ‘hating the Raiders’
was an obvious joke, no one confronted me about it, and I still cannot believe that
anyone took my comment seriously. I made my comment as a joke to relieve the
tension in the room.”
According to Jurors William S. and Alice I., Wayman J., the first jury
foreman, was among the jurors who confronted Joseph A. But Wayman J.’s
declaration in support of the NFL stated: “I did not . . . hear any words by any
juror that reflected a preexisting bias or prejudice for or against any party.” He did
not recall any incident in which he confronted Joseph A. Other jurors stated that
Joseph A. did not give them any reason to believe that he harbored a preexisting
bias against the Raiders.
Juror Linda H. denied any bias against the Raiders, denied dominating the
deliberations, stated that she told her fellow jurors to follow the court’s
instructions and did not tell the jury what the law was, and explained that she
wrote out the jury instructions verbatim, except for an inadvertent error when she
wrote “fiduciary duty” instead of “fiduciary relationship.”
In response to two jurors’ assertions that Juror Linda H. stated what
evidence could and could not be considered, Linda H. declared that she neither
used her “position as an attorney to make pronouncements about the evidence” nor
“opine[d] whether certain facts were or were not in evidence ‘as a matter of law.’ ”
She also denied the assertion of three jurors that she told the jury that Resolution
FC-7 could not be a contract and that there could be no fiduciary relationship
between the NFL and the Raiders as a matter of law. Other jurors recalled that
Linda H. said the jury should get written clarification from the trial court
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concerning this issue and that, as a result, the jury sent a written question to the
court.
The Raiders filed their reply, together with six reply declarations, on
September 5, 2002. The NFL moved to strike the declarations on the ground they
were untimely filed. The trial court did not rule on the NFL’s motion to strike.
On September 11, 2002, the trial court heard argument on the Raiders’
motions for a new trial and for judgment notwithstanding the verdict, and it took
the matters under submission. On September 23, it issued a minute order granting
the motion for a new trial and denying the motion for judgment notwithstanding
the verdict. In ruling on the motion for a new trial, the trial court stated only:
“The motion for new trial is granted. The Court finds that the objectively
ascertainable acts of juror misconduct were prejudicial to the Oakland Raiders’
right to a fair trial.” The court did not specify any reasons for its conclusion.
With respect to the other grounds raised by the motion, the court stated: “While
some of the objections in the motion for new trial premised on erroneous and/or
prejudicial jury instructions raise serious questions concerning their use, and
hav[e] given the Court some pause, having granted the motion for new trial on
other grounds, we have not reached these issues.”
The NFL appealed from the order granting a new trial, and the Raiders
appealed from the judgment. The Court of Appeal affirmed the trial court’s orders
granting the NFL’s motion for summary judgment on the issue of Hollywood
Park’s fiduciary duty and denying the Raiders’ request for declaratory relief. It
held, however, that the trial court’s order granting the Raiders a new trial failed to
comply with section 657 because it lacked a statement of reasons for granting a
new trial on the ground of juror misconduct. It concluded that, in view of the
sharp conflict in the juror declarations, the Raiders had failed to meet their burden
of showing that the trial court should have granted the motion on the ground of
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juror misconduct. The Court of Appeal further rejected the Raiders’ contention
that the new trial order could be sustained on the ground of instructional error. It
reversed the trial court’s order granting the Raiders a new trial, and it directed the
trial court to enter judgment in accordance with the jury verdict in favor of the
NFL.
We granted the Raiders’ petition for review, which raised only the issue of
the appropriate standard of review on appeal when an order granting a new trial on
the ground of jury misconduct lacks the statutorily required statement of reasons
for granting a new trial on that ground.
II. ANALYSIS
A. Section 657
The authority of a trial court in this state to grant a new trial is established
and circumscribed by statute. (See Diamond v. Superior Court (1922) 189 Cal.
732, 736.) Section 657 sets out seven grounds for such a motion: (1) “Irregularity
in the proceedings”; (2) “Misconduct of the jury”; (3) “Accident or surprise”; (4)
“Newly discovered evidence”; (5) “Excessive or inadequate damages”; (6)
“Insufficiency of the evidence”; and (7) “Error in law.”
Before 1965, section 657 only required the trial court to specify whether it
was granting the new trial motion on the ground of insufficiency of the evidence.
(See Stats. 1919, ch. 100, § 1, p. 142; Stats. 1939, ch. 713, § 1, pp. 2234-2235.)
Amendments enacted in 1965 (modified slightly in 1967) require the trial court to
state not only the ground upon which the motion is granted but also the reasons for
granting the motion on that ground. Section 657 now provides: “When a new trial
is granted, on all or part of the issues, the court shall specify the ground or grounds
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upon which it is granted and the court’s reason or reasons for granting the new
trial upon each ground stated. [¶] . . . [¶] . . . [I]f the motion is granted [the
order] must state the ground or grounds relied upon by the court, and may contain
the specification of reasons. If an order granting such motion does not contain
such specification of reasons, the court must, within 10 days after filing such
order, prepare, sign and file such specification of reasons in writing with the clerk.
The court shall not direct the attorney for a party to prepare either or both said
order and said specification of reasons.” (§ 657, as amended by Stats. 1965, ch.
1749, § 1, pp. 3922-3923; Stats. 1967, ch. 72, § 1, pp. 970-971.)
As this court explained in Mercer v. Perez (1968) 68 Cal.2d 104 (Mercer),
the first case to construe the amended statute, “it is apparent that in the context of
this statute the words ‘ground’ and ‘reason’ have different meanings.” (Id. at
p. 112.) The word “ground” refers to any of the seven grounds listed in section
657. (Mercer, supra, at p. 111.) A statement of grounds that reasonably
approximates the statutory language is sufficient. (Ibid.; see Treber v. Superior
Court (1968) 68 Cal.2d 128, 131 (Treber).) The statement of “reasons,” on the
other hand, should be specific enough to facilitate appellate review and avoid any
need for the appellate court to rely on inference or speculation. (See Scala v. Jerry
Witt & Sons, Inc. (1970) 3 Cal.3d 359, 370 (Scala); Mercer, supra, 68 Cal.2d at
pp. 112-115; Meiner v. Ford Motor Co. (1971) 17 Cal.App.3d 127, 136.)
Finally, section 657 provides: “On appeal from an order granting a new
trial the order shall be affirmed if it should have been granted upon any ground
stated in the motion, whether or not specified in the order or specification of
reasons . . . .” There are two exceptions: Orders may not be affirmed on the
ground of insufficiency of the evidence or on the ground of excessive or
inadequate damages unless that ground is specified in the order. Neither applies
here.
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California courts have consistently required strict compliance with section
657. Its requirement that the statement of reasons be filed no later than 10 days
after the order granting a new trial is jurisdictional, and a statement of reasons
filed more than 10 days after the order is ineffective. (La Manna v. Stewart (1975)
13 Cal.3d 413, 418; Mercer, supra, 68 Cal.2d at p. 121; Hand Electronics, Inc. v.
Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 867-868 (Hand
Electronics).) Substantial compliance with the statute is not sufficient. (La
Manna v. Stewart, supra, at pp. 419-423 [oral statement of reasons set down in
reporter’s transcript does not comply with statute]; see Malkasian v. Irwin (1964)
61 Cal.2d 738, 744-745 (Malkasian) [trial court orally stated the ground for
granting a new trial, but the clerk mistakenly failed to specify the ground in the
written order]; Stewart v. Truck Ins. Exchange (1993) 17 Cal.App.4th 468, 484-
485; Steinhart v. South Coast Area Transit (1986) 183 Cal.App.3d 770, 773-774
[minute order referring to oral statement insufficient].) The statement of reasons
must refer to evidence, not ultimate facts. (Scala, supra, 3 Cal.3d at pp. 366-367.)
And the appellate court cannot remand the case to permit the trial court to correct
an insufficient statement of reasons. (Mercer, supra, at pp. 122-123; see Fry v.
Young (1968) 267 Cal.App.2d 340, 347.)
The courts’ strict interpretation of section 657 has been criticized as
creating “a ‘procedural minefield’ for trial judges who issue new trial orders.”
(Thompson v. Friendly Hills Regional Medical Center (1999) 71 Cal.App.4th 544,
550, fn. 5 (Thompson), quoting Sanchez-Corea v. Bank of America (1985) 38
Cal.3d 892, 911 (dis. opn. of Kaus, J.) (Sanchez-Corea).) This court has also
noted the unfairness to the successful moving party when the trial court’s failure to
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file an adequate statement of reasons renders the order defective.2 (Sanchez-
Corea, supra, at p. 905, fn. 5.) But to this criticism the response has been: “ ‘The
power of the legislature [in] specifying procedural steps for new trials is exclusive
and unlimited. [Citations.] The wisdom of or necessity for certain requirements
are matters for legislative and not judicial consideration . . . .’ ” (Mercer, supra,
68 Cal.2d at p. 117; see La Manna v. Stewart, supra, 13 Cal.3d at p. 422, fn. 8.)
B. Judicial Review of Orders Granting a New Trial
Although many issues were raised in the Court of Appeal, the Raiders’
petition for review in this court raises only one: whether the trial court’s order
granting the Raiders’ motion for a new trial should be sustained on the ground of
juror misconduct. The parties here do not contest (1) that the only possibly viable
ground for a new trial was jury misconduct; (2) that the trial court adequately
specified that ground as a basis for granting the motion; and (3) that the trial court
did not state its reasons for granting a new trial on that ground. Thus, we address
a single, narrow issue: the standard of review—whether abuse of discretion or
independent review—when, as here, a trial court grants a new trial on the ground
of jury misconduct and properly specifies the ground for granting the motion but
does not provide a statement of the reasons for granting the new trial on that
ground.

2
The Court of Appeal in LaBorne v. Mulvany (1974) 43 Cal.App.3d 905,
917, suggested that the moving party could seek a writ of mandate to compel the
trial court to state its reasons for granting a new trial order. But as pointed out by
the Court of Appeal in Zhadan v. Downtown L.A. Motors (1976) 66 Cal.App.3d
481, 494, the moving party does not know that the trial court will not file a timely
statement of reasons until the statutory 10-day period for filing the statement has
expired, and once that period has expired the trial court has no jurisdiction to file
the statement.
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Section 657 provides for the situation in which an order granting a new trial
is not supported by a specification of reasons. As noted earlier, section 657 states:
“On appeal from an order granting a new trial the order shall be affirmed if it
should have been granted upon any ground stated in the motion, whether or not
specified in the order or specification of reasons . . . .” Consequently, when as
here an order granting a new trial states the ground as jury misconduct, but the
trial court fails to specify the reasons for that conclusion, the order is not void.
(See Sanchez-Corea, supra, 38 Cal.3d at p. 901; Hand Electronics, supra, 21
Cal.App.4th at p. 868.) The order may still be sustained if a new trial should have
been granted upon any ground set out in section 657 except the grounds of
insufficiency of the evidence or inadequate or excessive damages. (Sanchez-
Corea, supra, at p. 905.)
When the trial court provides a statement of reasons as required by section
657, the appropriate standard of judicial review is one that defers to the trial
court’s resolution of conflicts in the evidence and inquires only whether the
court’s decision was an abuse of discretion. (See, e.g., Lane v. Hughes Aircraft
Co. (2000) 22 Cal.4th 405, 409, 412; In re Marriage of Beilock (1978) 81
Cal.App.3d 713, 728.) But when there is no statement of reasons, an appellate
court’s use of an abuse of discretion standard of review would subvert the
purposes that this court has identified as underlying section 657’s statement-of-
reasons requirement.
In Mercer, supra, 68 Cal.2d 104, we described those purposes as twofold.
One is “to promote judicial deliberation before judicial action.” (Id. at p. 113.)
The statute serves that purpose by requiring a statement of reasons drafted by the
court, not by the prevailing party. (Id. at pp. 113, 115.) The other purpose is “to
make the right to appeal from the order more meaningful.” (Id. at p. 113; see
Stewart v. Truck Ins. Exchange, supra, 17 Cal.App.4th at p. 484; Bigboy v. County
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of San Diego (1984) 154 Cal.App.3d 397, 404.) We explained in Mercer that
before the Legislature’s 1965 amendments to section 657, “[i]t often occurred . . .
that the notice of motion was predicated on all or most of the statutory grounds,
and the subsequent order specified neither the ground or grounds found applicable
nor the reasons therefor; in that event, the appellant was left in the dark as to
which aspect of the trial to defend, and quite understandably struck out blindly in
several directions at once.” (Mercer, supra, at p. 113.) Mercer went on to state:
“The new statute seeks to correct this inefficient and often frustrating procedure.
. . . [¶] . . . [T]he appellant need only address himself to those asserted
deficiencies in the proof which are specified as reasons for the order . . . .” (Id. at
p. 115.)
Our decisions have frequently overturned orders granting a new trial based
on a conclusion that to do otherwise would frustrate the purposes of section 657’s
requirements.
In Scala, supra, 3 Cal.3d 359, for example, we held that a statement of
reasons in the form of a finding of ultimate facts rather than evidentiary facts
“frustrates rather than promotes the legislative purpose of facilitating meaningful
appellate review of the order granting a new trial, and hence is inadequate to
comply with the mandate of Code of Civil Procedure section 657.” (Id. at p. 370,
fn. omitted.) We therefore reversed the order granting a new trial, observing:
“The order was made almost a full year after our ruling in Mercer, which
prescribed in as much detail as feasible the duty of a trial court to comply with
section 657. Today’s decision is no new departure in the law, but simply reiterates
the Mercer construction of the statutory intent and the manner of translating that
intent into action.” (Scala, supra, at p. 371.)
In La Manna v. Stewart, supra, 13 Cal.3d 413, the trial court stated its
reasons for granting a new trial orally, specifying the ground of insufficiency of
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the evidence. (Id. at p. 417, fn. 1.) It later filed a written statement of reasons
after the statutory 10-day period had run. (Id. at p. 417.) Rejecting the argument
that the trial court had substantially complied with section 657, we reversed the
order granting the new trial because the statement of reasons did not conform to
the specific requirements of section 657. (La Manna v. Stewart, supra, at pp. 420-
423.)
Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689 was
a wrongful death and personal injury suit in which the plaintiffs alleged that the
flood control district had negligently maintained a dam-like flood control basin,
thereby creating a dangerous condition of public property. (Id. at p. 693.) During
a rainstorm, water and debris flowed over the basin and demolished the plaintiffs’
house, causing the death of one resident and injuries to another. (Ibid.) After the
jury returned a verdict for the plaintiffs, the trial court granted the flood control
district’s motion for a new trial on the ground of insufficiency of the evidence.
(Id. at p. 696.) The court’s statement of reasons stated only that the defendant
completely and adequate discharged its obligations, without any further
explanation. (Ibid.) We reversed the order granting a new trial, holding that the
trial court’s statement of reasons was inadequate because we could not determine
whether the trial court found that a hazardous condition never existed or that it had
been remedied before the date of the plaintiffs’ injuries. “[T]he amendments to
section 657,” we said, “were intended to preclude just this type of guesswork.”
(Id. at p. 698, fn. 8; see La Manna v. Stewart, supra, 13 Cal.3d at p. 420.)
In Sanchez-Corea, supra, 38 Cal.3d 892, the trial court’s order specifying
insufficiency of the evidence as the ground for granting a new trial was not filed
until after the trial court had lost jurisdiction. (Id. at pp. 898, 903.) Consequently,
under the terms of section 657, the new trial order could not be sustained on the
grounds of insufficiency of the evidence, excessive damages, or inadequate
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damages. (Sanchez-Corea, supra, at p. 905.) We observed, however, that if “the
motion states any other ground for a new trial, an order granting the motion will
be affirmed if any such other ground legally requires a new trial.” (Ibid., original
italics.)
The moving party in Sanchez-Corea argued that the order granting a new
trial should be affirmed on the ground that the verdict was “against law” (§ 657).
In this context, a verdict is “against law” only if it was unsupported by substantial
evidence. (Sanchez-Corea, supra, 38 Cal.3d at p. 906.) We therefore reviewed
the record in the case, but in doing so, we did not defer to the decision of the trial
court granting the new trial motion. To the contrary, we examined the record in
the light most favorable to the jury verdict, and we concluded that substantial
evidence supported the verdict. (Id. at p. 907.)
Finally, we note the decision of the Court of Appeal in Thompson, supra,
71 Cal.App.4th 544. There, the plaintiff sued for breach of an employment
contract. (Id. at p. 547.) The jury returned a verdict for the plaintiff, but the trial
court granted the defendant’s motion for a new trial on the ground of excessive
damages. (Id. at pp. 547-548.) The trial court adopted a statement of reasons that
the defendant had prepared—a clear violation of section 657, which requires the
court itself to prepare the statement of reasons. (Thompson, supra, at pp. 548-
549.) Thompson concluded that in the absence of a statement of reasons prepared
by the trial court, the appellate court should “independently review all the grounds
advanced for the new trial motion” to determine if a new trial was required on any
stated ground. (Id. at p. 550.) Applying an independent standard of review, and
finding no stated ground that required a new trial, the Court of Appeal in
Thompson reversed the new trial order. (Id. at pp. 550-552.)
The Raiders urge us not to apply a standard of independent review,
contending that doing so would be inconsistent with two older decisions of this
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court, Malkasian, supra, 61 Cal.2d 738, and Treber, supra, 68 Cal.2d 128. As we
will explain, those decisions suggest that an appellate court should defer to the
trial court in determining whether an act of misconduct was prejudicial. But
before a court can consider whether an act of misconduct was prejudicial, it must
first determine whether the act occurred, and on that question Malkasian and
Treber do not require deference to the trial court.
At the time of the Malkasian trial, section 657 did not require a statement
of reasons, but it did require the trial court to state whether its order was based on
the ground of insufficiency of the evidence. (See ante, at p. 8.) The motion for a
new trial in Malkasian was based on several grounds. The trial court said it was
granting the motion on the ground of insufficiency of the evidence, but the written
order prepared by the court clerk did not specify the grounds for granting a new
trial. (Malkasian, supra, 61 Cal.2d at pp. 743-744.) This court in Malkasian held
that the language of section 657 prevented the trial court from correcting that
mistake by an order made after the expiration of the 10-day period. (Malkasian,
supra, at pp. 744-745.) We therefore examined the record to determine whether
the order granting new trial was supported on any other ground (id. at p. 745), and
we concluded that the order could be sustained on the ground of improper
argument to the jury by the defendant’s counsel (id. at pp. 745-749).
In Malkasian, the analysis proceeded in two steps. We first determined that
the defendant’s attorney had engaged in misconduct during argument to the jury,
and then that the attorney’s misconduct was sufficiently prejudicial to require a
new trial. The first step, determining whether misconduct had occurred, did not
require the resolution of conflicting evidence because the undisputed record
showed that the attorney’s argument to the jury had relied on purported facts that
were unsupported by the evidence presented during the trial. (Malkasian, supra,
61 Cal.2d at pp. 746-747.) We did not state what standard of review we used to
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decide whether the argument was erroneous, but explicitly applied an abuse of
discretion standard to determine whether the erroneous argument was prejudicial.3
Treber, supra, 68 Cal.2d 128, the other case cited by the Raiders, was a
companion case to Mercer, supra, 68 Cal.2d 104. Treber involved a petition for a
writ of mandate to compel the trial court to vacate an order granting a new trial
that lacked an adequate specification of reasons. (Treber, supra, at p. 130.) We
held mandate unavailable because the petitioner had an adequate appellate
remedy. (Id. at p. 136.) We also explained that in reviewing an order granting a
new trial, the appellate court will independently review an issue of law (id. at
p. 132; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860) but will
defer to the trial court’s judgment on the issue of prejudice because that issue
involves an assessment based on the entire record of the proceedings before the
trial court, and it is thus more suitably made by the trial court (Treber, supra, at
p. 132; see People v. Ault (2004) 33 Cal.4th 1250, 1267-1268; Hand Electronics,
supra, 21 Cal.App.4th at p. 871).
The Court of Appeal here concluded that the absence of a statement of
reasons calls for independent review of the trial court’s order granting a motion for

3
After determining that the defense attorney in Malkasian had
misrepresented the evidence in argument to the jury, this court stated that the issue
was whether the attorney’s argument “was sufficiently misleading so that the trial
court that had seen and heard the witnesses could find that it was improper” and
that “[i]f that point is . . . reasonably debatable, the discretion of the trial court
cannot be disturbed.” (Malkasian, supra, 61 Cal.2d at p. 748.) This language
does not refer to determining what the attorney said to the jury or what evidence
had been presented during the trial (all of which was undisputed) but instead to
whether the attorney’s misrepresentations to the jury were so prejudicial that a
new trial was required.
17

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a new trial. We agree.4 The reviewing court should not, in a situation such as that
presented here, defer to the trial court’s resolution of conflicts in the evidence, or
draw all inferences favorably to the trial court’s decision, because in the absence
of a statement of reasons, the record does not show whether the trial court resolved
those conflicts or drew those inferences.
Our decision is a narrow one. We address only the situation in which there
is conflicting evidence on the issue of juror misconduct, not the question whether
misconduct, shown by the record, is prejudicial. We do not address the situation
in which apparently conflicting declarations can be reconciled, so that on close
examination it is determined that the crucial allegations of misconduct are not in
dispute. (See, e.g., McDonald v. Southern Pacific Transportation Co. (1999) 71
Cal.App.4th 256, 263-265; Young v. Brunicardi (1986) 187 Cal.App.3d 1344,
1351; Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356,
365.)

4
In this context, we use the term “independent review” to mean a form of
review that does not defer to the trial court’s inferred resolution of conflicts in the
evidence. We recognize that in some other cases, “independent review” signifies
that the appellate court will resolve those conflicts itself. In habeas corpus cases,
for example, we resolve issues of credibility ourselves, but we give great weight to
the findings of our appointed referee when they are supported by substantial
evidence. (See, e.g., In re Hamilton (1999) 20 Cal.4th 273, 296.) And in cases
raising First Amendment issues, an appellate court must undertake an independent
review of the evidence to determine “ ‘whether a given course of conduct falls on
the near or far side of the line of constitutional protection.’ ” (In re George T.
(2004) 33 Cal.4th 620, 632, quoting Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc. (1995) 515 U.S. 557, 567.) Here, however, we do
not independently resolve conflicts in the evidence; instead, we conclude that the
existence of such conflict demonstrates that the Raiders have not shown that a new
trial was warranted.
18

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C. Independent Review of the Juror Declarations
Because ordinarily “a party who seeks a court’s action in his favor bears the
burden of persuasion thereon” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th
at p. 850), if here the NFL were appealing from a new trial order supported by the
statutorily required statement of reasons, it would bear the burden of persuading
the appellate court that the order should be overturned. (See Yarrow v. State of
California (1960) 53 Cal.2d 427, 434; see also Aguilar v. Atlantic Richfield Co.,
supra, at p. 850, fn. 11 [explaining the difference between a burden of persuasion
and a burden of proof].) But when a party such as the Raiders asks a reviewing
court to sustain a defective trial court order, relying upon a ground stated in the
new trial motion but not supported by a statement of reasons, the situation is
reversed. Now “the burden is on the movant to advance any grounds stated in the
motion upon which the order should be affirmed, and a record and argument to
support it” (Sanchez-Corea, supra, 38 Cal.3d at p. 906) and to persuade the
reviewing court that the trial court should have granted the motion for a new trial.
Thus, the effect of the trial court’s failure to file a statement of reasons in support
of the order granting a new trial is to shift the burden of persuasion to the party
seeking to uphold the trial court’s order.
The Raiders have not met this burden. We have described in detail (see
ante, at pp. 4-6) the juror declarations filed in support of and in opposition to the
Raiders’ new trial motion. In summary, the Raiders alleged that Juror Joseph A.
was biased and that Juror Linda H. committed misconduct. Because the trial court
did not file a statement of reasons underlying its conclusion of jury misconduct,
we do not know whether the trial court’s ruling was based on the bias of Joseph
A., the misconduct of Linda H., or both.
19

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Juror Joseph A., in his declaration submitted by the NFL in opposition to
the Raiders’ motion for a new trial, acknowledged telling the other jurors that he
hated the Raiders, but he claimed that he said so in jest. Some jurors who filed
declarations in favor of the NFL agreed that Joseph A. was only joking; but those
filing declarations in favor of the Raiders said they took Joseph A.’s comments
seriously. Other jurors did not hear or remember Joseph A.’s comments. Juror
Alice I. said that she and two other jurors (Wayman J. and William S.) confronted
Juror Joseph A. and warned him that by concealing his bias he could cause a
mistrial. Juror William S. supported Alice I.’s statement, but both Joseph A. and
Wayman J. denied that any confrontation occurred.
Juror Linda H. acknowledged in her declaration submitted by the NFL in
opposition to the Raiders’ motions for a new trial that she wrote statements of law
and taped them to the walls of the jury room. Linda H. and three other jurors said
the statements merely copied the trial court’s instructions; three other jurors said
the statements departed from the court’s instructions. The papers taped to the jury
room walls are not part of the record, and no declarant could say specifically how
Linda H.’s written statements of law differed from the court’s instructions to the
jury.
According to the declarations of three jurors, Linda H. told them Resolution
FC-7 (see ante, at p. 2) could not be a contract, but the declarations of two other
jurors said Linda H. only suggested that the jurors should get clarification from the
trial court on that issue, which they did.
In sum, the testimonial evidence submitted by the parties in the form of
juror declarations is sharply conflicting on every material issue, and the Raiders
submitted no other evidence to support their motion for a new trial. Consequently,
20

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upon independent review of the record, we conclude that the Raiders have failed to
discharge their burden to persuade us of jury misconduct warranting the grant of a
new trial.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

21

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CONCURRING OPINION BY BAXTER, J.
I join in the judgment affirming the Court of Appeal and concur generally
in the majority’s analysis under the particular circumstances of this case. Had the
trial court supported its order granting a new trial with an adequate statement of
reasons, we would have been bound to defer to the trial court’s resolution of the
factual conflicts in the affidavits concerning the existence of juror misconduct.
(Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108-109.) In that
event, it appears that the Raiders would have been entitled to the benefit of the
new trial order, inasmuch as the National Football League has not contended here
that the new trial order was invalid under an abuse-of-discretion standard. The
Raiders snatch defeat from the jaws of victory in this proceeding only because the
trial court failed to comply with its “mandatory” duty to specify the reasons for its
order granting a new trial (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d
892, 896) and because the Raiders, on this record, failed to discharge their burden
of persuading the reviewing court that a new trial should have been granted.
As the majority emphasizes, however, our decision to review this new trial
order under a nondeferential standard is “a narrow one” (maj. opn., ante, at p. 18)
in that the trial court’s failure to file a statement of reasons made it impossible for
us to determine “whether the trial court’s ruling was based on the bias of Joseph
A., the misconduct of Linda H., or both.” (Id. at p. 19.) Different situations may
invoke a different standard of review, in accordance with our prior observation
1

---

that “any determination underlying any [new trial] order is scrutinized under the
test appropriate to such determination.” (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 859, italics added.) Our decision today thus does not preclude the
possibility of deference to the trial court, despite its failure to supply a statement
of reasons, when the record leaves no room for doubt as to the trial court’s reasons
for granting a new trial and its resolution of conflicting evidence supporting those
reasons—as may be the case where the motion for new trial alleged only a single,
specific instance of juror misconduct. When the reviewing court is confident both
that the trial court carefully deliberated before ordering a new trial and in what
findings the trial court must have made in entering its order—i.e., when the
statute’s purposes have been satisfied—it seems to me that the interests in
accuracy, efficiency, and functional competence may indicate that the new trial
order should be reviewed under an abuse-of-discretion standard.

BAXTER, J.
WE CONCUR:

GEORGE, C.J.

MORENO, J.
2

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Oakland Raiders v. National Football League
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 126 Cal.App.4th 1497
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S132814
Date Filed: July 2, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Richard C. Hubbell

__________________________________________________________________________________

Attorneys for Appellant:

Howard Rice Nemerovski Canady Falk & Rabkin, Jerome B. Falk, Jr.; Kaye Scholer, Larry R. Feldman,
Robert M. Turner, Paul Gelb; Arnold & Porter, John J. Quinn, Laurence J. Hutt; and Jeffrey E. Birren for
Plaintiff, Cross-defendant and Appellant.

Stephan, Oringher, Richman, Theodora & Miller, Harry W. R. Chamberlain II, Robert M. Dato and Brian
P. Barrow for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Plaintiff,
Cross-defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Covington & Burling, Gregg H. Levy; Greines, Martin, Stein & Richland, Irving H. Greines; Ruby &
Schofield, Allen J. Ruby; Skadden, Arps, Slate, Meagher & Flom and Douglas B. Adler for Defendant,
Cross-complainant and Appellant and for Defendants and Respondents.

Reed Smith, Paul D. Fogal and Dennis Peter Maio for Alameda Contra Costa Trial Lawyers Association,
Hinton, Alfert & Sumner and Abbey, Weitzenberg, Warren & Emery as Amici Curiae on behalf of
Defendant, Cross-complainant and Appellant.

Munger, Toller & Olson and Ronald L. Olson as Amici Curiae on behalf of Defendant, Cross-complainant
and Appellant.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Larry R. Feldman
Kaye Scholer
1999 Avenue of the Stars, Suite 1700
Los Angeles, CA 90067-6048
(310) 788-1000

Gregg H. Levy
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 662-6000

---

Opinion Information

Date:	Docket Number:
Mon, 07/02/2007	S132814

Disposition
Jul 2 2007	Opinion: Affirmed

Dockets
Jan 9 2003	Application to file over-length brief filed   Oakland Raiders, Appellant by Jerome Falk, counsel
Apr 4 2005	Petition for review filed   counsel for appellant THE OAKLAND RAIDERS
Apr 6 2005	Record requested
Apr 19 2005	Received Court of Appeal record
Apr 26 2005	Answer to petition for review filed   By counsel for respondent {National Football League et al., } / CRC 40.1(b).
May 6 2005	Reply to answer to petition filed   appellant The Oakland Raiders
May 6 2005	Request for judicial notice received (pre-grant)   appellant The Oakland Raiders submitted concurrent with reply.
May 12 2005	Time extended to grant or deny review   To July 1, 2005.
May 26 2005	Received:   letter from counsel for respondent {NFL} dated May 26, 2005, in response to amicus letters in support of the petition for review.
Jun 8 2005	Petition for review granted (civil case)   Request for judicial notice granted. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Jun 8 2005	Letter sent to:   Counsel re: Certification of Interested Entities or Persons.
Jun 10 2005	Received Court of Appeal record
Jun 20 2005	Certification of interested entities or persons filed   By counsel for Cross-complainant /Appellant {National Football League}.
Jun 22 2005	Association of attorneys filed for:   Appellant ( Oakland Raiders) Jerome Falk and Chandra MillerFienen of: Howard, Rice Nemerovski, et al.
Jun 22 2005	Request for extension of time filed   Appellant ( Oakland Raiders) to file the Opening Brief on the Merits. Asking to Sept. 6, 2005.
Jun 22 2005	Certification of interested entities or persons filed   counsel for plaintiff, x-defendant & appellant [Oakland Raiders]
Jun 28 2005	Extension of time granted   to and including September 6, 2005 to serve and file the Appellants Opening Brief.
Aug 23 2005	Opening brief on the merits filed   Appellant (The Oakland Raiders) by counsel.
Aug 23 2005	Request for judicial notice filed (granted case)   Appellant (The Oakland Raiders) by counsel.
Aug 25 2005	Association of attorneys filed for:   attorneys for Appellant NFL (Law firm of Greines, Martin, Stein & Richland LLP]
Aug 30 2005	Request for extension of time filed   to file answer brief on the merits resp NFL asking to November 21, 2005.
Aug 31 2005	Extension of time granted   to serve and file the answer brief on the merits to and including November 21, 2005.
Nov 18 2005	Answer brief on the merits filed   By counsel for defendant/respondents {Paul Tagliabue et al.,}.
Nov 30 2005	Application to appear as counsel pro hac vice (granted case)   Gregg H. Levy for Appellant National Football League.
Dec 5 2005	Request for extension of time filed   Oakland Raiders, appellant, requesting a 30 day extension to file its reply brief on the merits to January 9, 2006.
Dec 6 2005	Extension of time granted   to Oakland Raiders, appellant to file its reply brief on the merits to January 9, 2006.
Dec 8 2005	Application to appear as counsel pro hac vice granted   Gregg H. Levy, of the District of Columbia on behalf of appellant, the National Football League.
Jan 9 2006	Received:   Oakland Raider's Reply Brief on the Merits. Oversized.
Jan 9 2006	Application to file over-length brief filed   Oakland Raiders, Appellant by Jerome Falk, counsel
Jan 11 2006	Reply brief filed (case fully briefed)   With permission.
Feb 9 2006	Received application to file Amicus Curiae Brief   Alameda Contra Costa Trial Lawyers Association, Hinton, Alfert & Sumner, and Abbey, Weitzenberg, Warren & Emery in support of NFL.
Feb 10 2006	Received application to file Amicus Curiae Brief   Ronald L. Olson in support of appellant/ NFL Ronald L. Olson, retained. [application and brief under same cover]
Feb 14 2006	Received application to file Amicus Curiae Brief   Association of Southern California Defencse Counsel in support of the Oakland Raiders. CRC 40.1(b).
Feb 22 2006	Permission to file amicus curiae brief granted   Alameda Contra Costa Trial Lawyers Association, Hinton, Alfert & Sumner, and Abbey, Weitzenberg, Warren & Emery in support of NFL.
Feb 22 2006	Amicus curiae brief filed   Alameda Contra Costa Trial Lawyers Association, Hinton, Alfert & Sumner, and Abbey, Weitzenberg, Warren & Emery in support of NFL.
Feb 22 2006	Permission to file amicus curiae brief granted   Ronald L. Olson in support of NFL.
Feb 22 2006	Amicus curiae brief filed   Ronald L. Olson in support of NFL.
Feb 22 2006	Permission to file amicus curiae brief granted   Association of Southern California Defencse Counsel in support of the Oakland Raiders.
Feb 22 2006	Amicus curiae brief filed   Association of Southern California Defencse Counsel in support of the Oakland Raiders.
Mar 14 2006	Response to amicus curiae brief filed   to briefs. (with permission) Oakland Raiders Jerome B. Falk, Counsel
Mar 14 2006	Response to amicus curiae brief filed   to briefs. (with permission) National Football League Gregg H. Levy, Counsel
Mar 22 2006	Received:   Letter from Jerome B. Falk, Jr., Counsel for Oakland Raiders requesting oral argument no be schedule during the following dates: June 15-26, 2006, October 13-November 7, 2006, December 13-18, 2006.
Sep 25 2006	Letter sent requesting supplemental briefing   The court request that the parties file simultaneous briefs on the following subjects: (1) Should the court reconsider Mercer v. Perez (1968) 68 Cal.2d 104, to the extent that it bars an appellate court from remanding a case to a trial court to enable the trial court to file a statement of reasons in support of its order granting a new trial? (2) Should the court reconsider Treber v. Superior Court (1968) 68 Cal.2d 128, to the extent that it bars an appellate court from issuing a writ of mandate to compel a trial court to file a statement of reasons in support of its order granting a new trial? The briefs shall be due on October 10, 2006.
Oct 10 2006	Supplemental brief filed   National Football League, Respondent Gregg H. Levy, Counsel
Oct 10 2006	Supplemental brief filed   Oakland Raiders, Appellant Jerome B. Falk, Counsel
Oct 11 2006	Supplemental briefing ordered   On September 25, 2006, this court requested the parties to file simultaneous briefs on the following issues: (1) Should the court reconsider Mercer v. Perez (1968) 68 Cal.2d 104, to the extent that it bars an appellate court from remanding a case to a trial court to enable the trial court to file a statement of reasons in support of its order granting a new trial? (2) Should the court reconsider Treber v. Superior Court (1968) 68 Cal.2d 128, to the extent that it bars an appellate court from issuing a writ of mandate to compel a trial court to file a statement of reasons in support of its order granting a new trial? By this order, the court clarifies that supplemental briefs are to be served and filed on or before October 10, 2006. The parties may serve and file reply briefs on or before October 24, 2006.
Oct 24 2006	Filed:   Supplemental reply brief. National Football League, Respondent Gregg H. Levy, Counsel
Oct 24 2006	Filed:   Supplemental reply brief. Oakland Raiders, Appellant Jerome B. Falk, Jr., Counsel
Feb 8 2007	Received:   Letter from Jerome B. Falk, Jr. Re: not to schedule oral argument during the following periods due to prior commitments. May 3-May 31, 2007. August 15-September 11, 2007.
Feb 28 2007	Received:   letter from Appellant National Football League re: oral argument Attorney Gregg H. Levy
Mar 6 2007	Case ordered on calendar   to be argued Wednesday, April 4, 2007, at 9:00 a.m., in Los Angeles
Apr 4 2007	Cause argued and submitted
Jun 29 2007	Notice of forthcoming opinion posted
Jul 2 2007	Opinion filed: Judgment affirmed in full   The judgment of the Court of Appeal is Affirmed. -----Majority opinion by: Kennard, J. -----Joined by George, C.J., Werdegar, Chin, Moreno, Corrigan, J.J. -----Concurring opinion by: Baxter, J. -----Joined by: George, C.J., Moreno, J.
Aug 3 2007	Remittitur issued (civil case)

Briefs
Aug 23 2005	Opening brief on the merits filed
Nov 18 2005	Answer brief on the merits filed
Jan 11 2006	Reply brief filed (case fully briefed)
Feb 22 2006	Amicus curiae brief filed
Feb 22 2006	Amicus curiae brief filed
Feb 22 2006	Amicus curiae brief filed
Mar 14 2006	Response to amicus curiae brief filed
Mar 14 2006	Response to amicus curiae brief filed

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