Case Number: KC061503    Hearing Date: August 08, 2014    Dept: NCB

12. KC061503
JACK QIN v JENNY GY XU
Motion for a New Trial

This case arises from the Plaintiff’s claim that the Defendant defamed him when the Defendant told third parties that the Plaintiff had sexually battered her. The jury returned a verdict in favor of the Plaintiff. A judgment for $250,000 was entered in favor of the Plaintiff and against the Defendant on June 18, 2014.

This hearing concerns the Defendant’s motion for a new trial on the ground that there was surprise at trial and an error in law. The Defendant argues that she was surprised when the Plaintiff provided credit card records that indicated that he was in Las Vegas on the date on which the Defendant claimed she was sexually battered.
Under CCP section 657, the grounds for new trial are the following:

1) Irregularity in the proceedings of the Court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2) Jury misconduct
3) Accident or surprise, which ordinary prudence could not have guarded against.
4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
5) Excessive or inadequate damages.
6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
7) Error in law, occurring at the trial and excepted to by the party making the application.

A motion for new trial is a creature of statute and the Court may grant a new trial only by conforming to the statutory procedures. Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899-900.

1. Surprise
The term “surprise” is used to denote some condition or situation in which a party to a cause is unexpectedly placed to the party’s injury, without any default or negligence of the party, and which ordinary prudence could not have guarded against. Kauffman v. De Mutiis (1948) 31 Cal. 2d 429, 432. However, a party who is surprised by developments during trial should ordinarily seek a continuance or move for a mistrial or other relief during trial. Id. at 432-433. Surprise, as a ground for a motion for a new trial, should be looked on with “suspicion” and is seldom successful because the moving party must make a showing of injury, a showing of diligence, and a showing that the party did not unduly delay seeking redress. Fletcher v. Pierceall (1956) 146 Cal. App. 2d 859, 866.
In the pending case, the Defendant argues that she was surprised by the credit card statement that contained facts tending to show that the Plaintiff was in Las Vegas on the night of December 21, 2009. However, the Defendant does not meet her burden of showing diligence and that she did not unduly delay.
First, the Plaintiff contended that he was not at the Defendant’s home on December 21, 2009. The Defendant offers no evidence of written discovery in which she sought facts regarding the Plaintiff’s location on December 21, 2009.
The Defendant filed a notice of lodging on July 25, 2014 of the notice of deposition and the deposition transcript for the Plaintiff held on September 13, 2013. A review of the requests for production accompanying the notice of deposition reveals no specific request for documents regarding the Plaintiff’s location on December 21, 2009. A review of the transcript reveals no request for documents regarding the Plaintiff’s location on December 21, 2009. Since the Defendant does not demonstrate that she acted diligently to obtain information about the Plaintiff’s location on December 21, 2009, the Defendant does not establish that surprise is grounds for a new trial.
Second, the Defendant does not offer any facts to demonstrate that she sought relief during the trial, e.g., by a request for a continuance or through a motion for a mistrial. Since the Defendant unduly delayed in seeking redress, the Defendant does not establish that surprise is grounds for a new trial.

Accordingly, there are no grounds for a new trial based on surprise.

2. Error in Law
The Defendant argues that it was an error in law for the Court to admit the credit card statement. The improper admission of evidence is an error at law that may be the basis for granting a new trial. Richard v. Scott (1978) 79 Cal.App.3d 57, 63.
First, the Defendant argues that the credit card statement was withheld during discovery. However, the Defendant offers no evidence that she ever sought records supporting the Plaintiff’s contention that he was not present in her home on December 21, 2009. The Defendant did not attach any request for production, any interrogatory, or any portion of a deposition transcript to demonstrate that she sought records from the Plaintiff related to his contention that he was not present in her home. Since the Defendant did not seek records related to the Plaintiff’s location on December 21, 2009, there are no grounds to find that the Plaintiff withheld the credit card statement during discovery.
Second, the Defendant argues that the record was inadmissible because it was hearsay and no foundation had been properly laid for the admission of the credit card statement. A review of the transcript for the March 28, 2014 proceeding reveals that the Court admitted the credit card statement for the purpose of the purchase of the airline tickets under Evidence Code section 1271 (page 59 to 60). Section 1271 states that evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

a) The writing was made in the regular course of a business;
b) The writing was made at or near the time of the act, condition, or event;
c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

The Court found that the credit card statement was made in the regular course of business and that the writing was made at or near the time of the event because it was a monthly statement. Further, the Court found that the Plaintiff, as the recipient of the monthly statement could testify to the identity of the document. Further, the Court found that the source, method, and time of preparation indicated that the monthly statement was a trustworthy account of the Plaintiff’s purchase of an airline ticket. This indicates that the credit card statement fell within business record exception of Evidence Code section 1271.
Further, there were facts regarding the foundation when the Plaintiff testified that he received the credit card statement and that he had found the statement when he looked at his credit card record (see pages 46 to 49). This indicates that there was a foundation for the admission of the credit card statement.

Accordingly, there are no grounds for a new trial based on error in law.

Motion for new trial is denied.