Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Donald S. Black, Judge. Super. Ct. No. 04CECG02776
Overstreet & Associates and David M. Overstreet, IV; Dowling, Aaron & Keller, and Lynne Thaxter Brown for Defendant and Appellant.
Stuart R. Chandler for Plaintiff and Respondent.
OPINION
Ardaiz, P.J.
Appellant City of Fresno (City) is a defendant in this civil personal injury action brought by respondent Jones. Jones was eight years old when he was struck by a pickup truck after getting off of a City bus and walking in front of the bus in an attempt to cross the street. A jury found the City 10 percent at fault for Jones’s damages, and Jones obtained a judgment for $11,508.13. Dissatisfied with this result, Jones moved for a new trial. The City opposed the motion, but argued alternatively that if the trial court were to grant a new trial, the new trial “should be limited to the issue of damages.” The court granted Jones’s motion for a new trial, and did so “on the sole ground of inadequacy of future non-economic damages.” The court ordered a new trial “on all issues raised by the operative pleadings” and did not limit the new trial to the issue of Jones’s damages.
APPELLANT’S CONTENTION
The City contends on appeal that although the court acted within its discretion in ordering a new trial, the court abused that discretion in refusing to limit the new trial to the issue of Jones’s future non-economic damages. As we shall explain, we find no abuse of discretion in the trial court’s decision to grant an unlimited new trial. We will affirm the trial court’s order granting a new trial “on all issues raised by the pleadings.”
FACTS
Richard Aaron Jones III was injured on the morning of September 8, 2003, when he was struck by a pickup truck after getting off a City transit bus.
Richard was eight years old at the time of the accident and lived with his grandparents in Fresno. He was developmentally delayed in all areas and classified with intellectual challenges, which qualified him for special education services.
The case was tried in April and May 2007. The driver of the pickup truck that hit Richard, Armen Der Nersession, settled with Richard before trial.
1. Liability
Richard attended Ericson Elementary School in Fresno. He had ridden school busses for a number of years and had been riding the school bus to Ericson, but was having problems with some kids on the school bus, so his grandmother decided to have him ride the City transit bus instead. There is a City transit bus stop just outside the apartment complex where Richard lived with his grandparents.
Richard and his grandparents regularly rode City transit buses around Fresno. Richard’s grandmother and grandfather trained him to ride the City buses and in particular, to ride the City bus to school. He was trained and knew the bus stop where he was supposed to get off for his school. He was trained and knew to look for his bus stop, to pull the cord when the bus was approaching the stop, and to get off the bus when it stopped. He was trained and knew that the bus stop was on the same side of the street as his school and he did not have to cross the street to get to his school after he got off the bus. Richard had ridden the City bus to school before the accident, with his grandmother as well as by himself.
Richard was also trained about crossing the street by his grandparents and at school. He was trained and knew that he was to cross the street at crosswalks, look both ways before he crossed and to walk across the street, not run. He knew that if a car was coming, he had to wait until after it passed by before crossing the street.
On the day of the accident, Richard’s grandmother took him to the bus stop and put him on the City bus to ride to school. There were other kids on the bus going to Ericson that morning, including some kids and their parents from Richard’s apartment complex. Richard’s grandmother and grandfather did not ride the bus with him that day.
When the bus stopped at the designated bus stop nearest to the school, other kids got off the bus but Richard did not. He stayed on the bus while it continued on its route through Fresno. When the bus got to the end of the route in Malaga, the driver saw that Richard was still on board. He did not appear to be lost, frightened or confused. He was not crying. The bus driver asked Richard what he was doing and he said he missed his stop. The driver did not call her dispatcher or the school to report that Richard was on board and had missed his stop. Richard stayed on the bus while it continued back on its route.
At some point on the return route, a passenger attempted to board the bus with a stolen bus pass. The bus driver called her dispatcher to report the incident and a police officer then came out to the bus to deal with the situation.
When the police officer came on board the bus, the driver pointed Richard out to him and they tried to talk to him but could not understand what he was saying. A passenger on the bus told the police officer and bus driver that he could understand Richard and that he was saying he was supposed to go to Ericson Elementary School. The passenger told them where it was located, which was not far from where they were. The bus driver continued on with the bus route toward Richard’s school.
The bus driver stopped the bus at the bus stop nearest to Richard’s school. Because the bus was on the return route, the bus was then on the opposite side of the street from the school. The bus driver did not tell Richard to cross the street at the crosswalk or warn him to be careful crossing the street when he got off the bus.
Richard got off the bus and started to cross the street in front of the bus. The bus driver could see a pickup truck approaching in her side-view mirror and honked her horn to alert Richard. He ran out into the street and was immediately hit by Mr. Der Nersessian’s truck.
Richard was unconscious for at least some period of time, broke both of his legs and an arm, and suffered dental injuries. He spent several weeks in the hospital.
2. Damages
It was undisputed that Richard suffered a traumatic brain injury, consisting of a small, microscopic bleed in one area of the brain; that the injury did not require surgical repair; and that Richard had no skull fractures. It was also undisputed that Richard was already significantly mentally impaired before the accident. However, the extent and residual effects, if any, of Richard’s brain injury were hotly contested.
Richard presented evidence that he was worse off from a mental standpoint after the accident than before; that the brain injury had not resolved and he was left with permanent mental impairment, including slowed cognitive processing; that he would have increasing difficulties in school as he got older and educational expectations increased, and would fall further and further behind his peers; and given his deficits and his risk factors and difficulties before the accident, it is unlikely that he would graduate from high school. Richard’s neuropsychologist expert opined that whereas before the accident, Richard had the capacity and opportunity to be a “fully functional independent productive member of society,” the odds were now increased that Richard was “going to be someone who needs to be watched over.”
The City presented evidence that Richard’s pre-accident mental capacity was already significantly reduced and impaired by in utero exposure to methamphetamines, alcohol, tobacco and sleeping pills, child abuse and a traumatic social environment; his pre-accident IQ scores were well below average; that Richard’s brain function and IQ scores improved after the accident as compared with pre-accident scores; Richard had been a special education child since before kindergarten; and statistically, there was a substantial likelihood that Richard would not have graduated from high school regardless of whether the accident happened.
There was little dispute in the evidence concerning Richard’s orthopedic and dental injuries. The medical evidence showed that there is a very slight inversion of Richard’s right femur, without any functional impairment or significance. It was uncontroverted that there was no present or future impairment arising from Richard’s orthopedic injuries and no evidence that any future medical care was required. Richard presented no dental expert, and there was no evidence of any past or future dental care required.
3. Jury’s Deliberation and Verdict
The jury was instructed and began deliberations on the afternoon of May 1, 2007. There were no requests for read backs during deliberations.
The jury asked one question while it was out, for clarification of certain language in the CACI 430 “causation: substantial factor” instruction. The court initially read CACI 430 to the jury as follows: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” In response to the jury’s question, the court reread this language and then added the bracketed portion f the instruction, “Conduct is not a substantial factor in causing harm if the same harm would have occurred without the conduct.”
The court also reread CACI 900 to the jury during deliberations. The jury was initially instructed, “Richard Jones claims that he was harmed by the City of Fresno’s negligence while he was a passenger on the City of Fresno’s bus. In this case, the City of Fresno was a common carrier at the time of the incident. A common carrier provides transportation to the general public.” After the jury began deliberating, Richard’s attorney requested a modification to the instruction because he was concerned that the language, “while he was a passenger on the City of Fresno’s bus” could be misleading to the jury, since the incident and Richard’s injury occurred after he got off the bus, not while he was a passenger on the bus. The court modified CACI 900 to eliminate that language and re instructed the jury accordingly.
The court reinstructed the jury as follows: “Richard Jones claims that he was harmed by the City of Fresno’s negligence. In this case, the City of Fresno was a common carrier. A common carrier provides transportation to the general public.”
The jury returned its special verdict in favor of plaintiff on the afternoon of May 2, 2007. The jury found the City liable for Richard’s injuries by a 10-2-vote. It also found that Richard was negligent (by a vote of 11-to-one), Richard’s grandmother was negligent (unanimous vote), and the driver of the pickup truck was not negligent (unanimous vote). The jury apportioned liability between the City, Richard and his grandmother as follows: 10 percent to the City (nine-to-three vote), 5 percent to Richard (11-to-one vote), and 85 percent to Richard’s grandmother (11-to-one vote).
The jury awarded Richard damages for past economic loss of $67,210.25 and past non-economic loss of $50,000. The jury awarded Richard no damages for future economic loss or future non-economic loss. After deduction for Richard’s comparative fault and apportionment of liability as to his grandmother, and after deducting credit for set-off payment made by the settling defendant driver, judgment was entered in favor of Richard and against the City in the amount of $11,508.13.
DISCUSSION
Code of Civil Procedure section 657 states in pertinent part:
“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, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict or other decision, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification or reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.”
An order granting a new trial “must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 409; quoting Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 710.) This is a “highly deferential standard” of review. (Lane, supra, 22 Cal.4th at p. 409.) “[T]he presumption of correctness normally accorded on appeal to the jury's verdict is replaced by a presumption in favor of the [new trial] order.’ [Citation.]” (Lane, supra, 22 Cal.4th at p. 412.) The City does not contend that the trial court erred in granting a new trial, but rather contends that although the court could properly exercise its discretion to grant a new trial, it could only lawfully exercise discretion to grant a new trial if that new trial is “limited... to the issue of Richard’s future non-economic damages.”
We see at least two flaws in the City’s argument. First, neither Jones nor the City asked the trial court for a retrial limited to the issue of Jones’s future non-economic damages. Jones sought a new trial on all issues, i.e., on both liability and damages. The City opposed the motion, arguing primarily that no new trial should be granted at all. Alternatively, the City briefly argued that if a new trial was granted, the new trial “should be limited to the issue of damages.” Under these circumstances, we cannot fault the trial court for failing to issue a new trial order that no one requested -- an order granting a new trial, but limiting the new trial “to the issue of Richard’s future non-economic damages.” “[A] litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and to the opposing litigant. [Citations.]” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) “As a general rule, ‘issues not raised in the trial court cannot be raised for the first time on appeal.’ [Citations.]” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417.) As we shall explain, however, we do not rely on this general rule to reject the City’s contention. We reject the City’s contention for a second reason – it fails on its merits.
In deciding to grant a new trial on all issues, the court concluded: “It thus appears to the court that because of the failure to award any compensation for future pain and suffering despite the horrific nature of the incident and evidence supporting the existence of a permanent brain injury and other injuries, ‘the verdict was probably the result of prejudice, sympathy, or compromise or that for some other reason the liability issue has not actually been determined.’ [Citation.] Accordingly, a new trial is ordered on all issues raised by the operative pleadings.” The City’s argument, reduced to its essence, is that no reasonable jurist could have reached this conclusion, and that therefore the trial judge abused his discretion. “‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse of discretion.”’ [Citation.]... In other words, judicial discretion must be measured against the general rules of law and, in the case of a statutory grant of discretion, against the specific law that grants the discretion. [Citations.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393-394.) The City appears to contend that there are “applicable principles of law” (Horsford, supra, 132 Cal.App.4th at p. 393) which precluded the trial court from rationally or reasonably concluding that the verdict was probably a compromise verdict, and that therefore the court abused its discretion.
The City calls our attention to a number of case law decisions, which we will say more about below, but we see nothing in any of them which compels a conclusion that the trial court here abused its discretion in concluding that the verdict was probably a compromise verdict, or that the trial court failed to apply “applicable principles of law” in reaching its decision. The City calls our attention to no case which has ever held that a trial court which properly granted a new trial on the ground of inadequate damages erred by not restricting the new trial order to a new trial on the issue of damages only.
In Leipert v. Honold (1952) 39 Cal.2d 462 (Leipert), a 15-year-old boy was seriously injured in an automobile accident. The jury awarded him $500 against three defendants and $700 against a fourth (the owners and driver, respectively, of the car which struck the car in which the boy was riding). The trial court granted a new trial on the issue of damages only. The defendants appealed. The California Supreme Court reversed the limited new trial order.
“The power of a trial or appellate court to order a new trial on fewer than all the issues is generally recognized (see 66 C.J.S., New Trial, § 11, p. 87; 39 Am. Jur. New Trial, § 21, p. 44; 98 A.L.R. 941), and is authorized by statute in this state. (Code Civ. Proc., §§ 657, 662.)
“The purpose of limited retrials is to expedite the administration of justice by avoiding costly repetition. Such retrials should be granted, however, only if it is clear that no injustice will result. (Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 499; see 66 C.J.S., New Trial, § 11, p. 88.) Some courts have expressed reluctance to limit new trials in negligence cases, suggesting that only rarely is such a step proper. [Citations.] Even in California, where new trials limited to the issue of damages have frequently been approved in personal injury and wrongful death actions, it has been held that a request for such a trial should be considered with the utmost caution [citations] and that any doubts should be resolved in favor of granting a complete new trial. (Keogh v. Maulding, 52 Cal.App.2d 17, 21.)
“The decision on limiting the new trial appropriately rests in the discretion of the trial judge. It is presumed that in passing upon the motion he has weighed the evidence and the possibility of prejudice to the defendant. His decision will not be reversed on appeal unless an abuse of discretion is shown. [Citations.]
“Such an abuse is shown when the damages are inadequate, the record discloses that the issue of liability is close, and other circumstances indicate that the verdict was probably the result of prejudice, sympathy, or compromise or that for some other reason the liability issue has not actually been determined.” Leipert, supra, 39 Cal.2d at pp. 466-467.)
The City takes the last above-quoted paragraph of Leipert and argues that (1) “the verdict on liability was not close,” (2) “the liability issue was actually determined,” and therefore (3) the court abused its discretion in not limiting the new trial to the issue of future non-economic damages only. We see several problems with this argument.
First, we fail to see how a trial judge could not reasonably consider a 10-to-2 verdict to be “close.” Two jurors refused to find any liability at all on the part of the City. In Leipert there was “a 9-3 verdict returned awarding grossly inadequate damages.” (Leipert, supra, 39 Cal.2d at p. 470.) Here, it was a 10-to-2 verdict awarding what the City concedes on this appeal to be inadequate damages. The City argues that “as the trial court expressly found, there was no material conflict in the evidence regarding liability.” While it may be true that there was agreement about many of the basic facts concerning how the accident occurred, there was a great deal of disagreement about whose actions or omissions were a cause of Richard Jones’s injuries, and to what degree. In other words, there was a great deal of dispute about who was liable for Richard’s injuries caused by the accident. This is a dispute about “liability.” What the trial court actually said was “there was little dispute at trial about the salient facts as they related to the happening of the incident in question.” But the court’s order granting a new trial also said: “There was a substantial legal and factual dispute at trial as to whether plaintiff had safely disembarked from defendant’s bus at the time he stepped from the bus onto the curb and whether defendant’s bus driver was negligent in either failing to summon help if and when she realized plaintiff had missed the bus stop, failing to see to it that plaintiff could safely cross Chestnut Avenue when he left defendant’s bus, failing to escort plaintiff across Chestnut Avenue, or in any other respect.” Unlike a case in which liability may hinge on a basic factual dispute, such as whether one of two colliding cars had been stopped for 13 seconds before impact or instead was still moving at the time of impact (see Leipert, supra), this is a case in which much of the liability dispute was about which person’s actions or inactions were the cause of Richard’s injuries. As the City itself points out, the jury during deliberations requested clarification on the CACI 430 “causation” instruction.
Second, the language in Leipert stating “that for some other reason the liability issue has not actually been determined” has to be read in context. In Leipert there was “a 9-3 verdict” awarding damages. (Leipert, supra, 39 Cal.2d at p. 470.) Because there can be no award of damages without a finding of liability, implicit in the jury’s verdict is the reality that nine jurors agreed to hold the defendants liable, even if some of them may not have actually thought the defendants should be held liable. We fail to see how the 10-to-2 verdict in the case presently before us must be viewed differently, as the City contends, simply because there was in fact a verdict finding the City 10 percent liable for Richard’s damages.
The California Supreme Court has elsewhere referred to the implicit finding of liability made in a compromise verdict as a “determination of defendant’s liability” that is not “acceptable.” (See Cary v. Wetzel (1952) 39 Cal.2d 491, 495-496.)
Third, we see nothing in the language of Leipert which suggests that a trial judge who grants a motion for a new trial on the ground of inadequate damages, and who grants a new trial on all issues, ever abuses his or her discretion in doing so. Leipert describes how a trial court can abuse its discretion in improperly limiting the issues to be tried on a new trial. It does not address how an abuse of discretion is “shown” (Leipert, supra, 39 Cal.2d at p. 467) when a trial court grants a new trial and refuses to limit the issues to be retried.
Other cases cited by the City similarly do not appear to us to support the City’s argument. In Rose v. Melody Lane (1952) 39 Cal.2d 481, the plaintiff was injured in the defendant’s cocktail lounge when the stool on which the plaintiff was sitting collapsed. The jury awarded $250 in special damages and one dollar in general damages. The plaintiff’s motion for a new trial on the issue of damages only was granted by the trial court. The California Supreme Court applied Leipert v. Honold, supra, and reversed the order granting a limited new trial. “When the jury fails to compensate plaintiff for the special damages indicated by the evidence, and despite the fact that his injuries have been painful, makes no award or allows only a trifling sum for his general damages, the only reasonable conclusion is that the jurors compromised the issue of liability, and a new trial limited to the damages issue is improper.” (Rose v. Melody Lane, supra, 39 Cal.2d 481, 489.) Cary v. Wentzel (1952) 39 Cal.2d 491, was another car accident case in which the California Supreme Court reversed a trial court order granting a new trial on the issue of damages only. “We have concluded that the verdict against defendant... was the result of a compromise between jurors who believed that defendant should pay substantial damages and jurors who believed that he should pay none. There has not been, therefore, an acceptable determination of defendant’s liability, and defendant is entitled to a new trial on that issue.” (Id. at pp. 495-496.) Hamasaki v. Flotho (1952) 39 Cal.2d 602, also cited by the City, is another car accident case in which a trial court’s granting of a new trial limited to damages only was reversed.
The City also calls our attention to this court’s opinion in Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834. Lauren H. is procedurally closer to the case before us than the previously discussed California Supreme Court cases because in Lauren H., as here, the trial court granted a new trial on all issues, and the appellant contended that the new trial order should have been limited to damages only. But Lauren H. is more helpful to respondent Jones than to the City. In Lauren H. this court affirmed the unlimited new trial order, noting that the order “was not an abuse of the trial court’s considerable discretion.” (Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 840.) In Lauren H., the plaintiff suffered “a disfiguring injury for which the only reasonable inference would be that she would have anxiety and embarrassment irrespective of her ability to cope with her disfigurement.” (Id. at p. 837.) The jury nevertheless awarded “‘zero non-economic damages.’” (Ibid.) In granting the defendant’s motion for an unlimited new trial, the trial court stated “‘[t]he evidence on liability was sharply disputed and the jury finding of zero non-economic damages causes the Court to conclude that the jury rendered a compromise verdict.’” (Ibid., fn. omitted.) The plaintiff appealed, arguing that the trial court should have preserved the jury’s verdict on liability and should have permitted only a plaintiff’s attempt to recover higher damages. The City in the case before us similarly argues that the trial court should have preserved the 10 percent finding of City liability (which the City deems preferable to once again attempting to persuade a jury that the City was not negligent at all). The appealing plaintiff in Lauren H. similarly cited Leipert, supra, and argued that the trial court could not reasonably have concluded that the verdict was a compromise verdict. This court disagreed. We stated:
“Witkin addresses the topic of compromise verdicts as follows: ‘Verdicts are sometimes rendered in personal injury or death actions that, in view of the evidence of injuries, suffering, and medical and other expenses, are clearly inadequate. Common experience suggests that these are the result of compromise, some jurors believing that the evidence fails to establish liability, but yielding to the extent of agreement on a small recovery. It would be unfair to the defendant to ignore this unmistakable evidence of compromise and to accept the verdict for the plaintiff at face value as a determination of liability. Accordingly, it is well settled that the error calls for a general new trial, and a limited order is an abuse of discretion. [Citations.]’ (8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, § 115, pp. 619-620.)” (Lauren H. v. Kannappan, supra, 96 Cal.App.4th at p. 840.)
The City also argues that the trial court abused its discretion in that it failed to consider “the possibility of prejudice to the defendant” (Leipert, supra, 39 Cal.2d at p. 467) in granting the unlimited new trial. We are not persuaded. The City relies on language in Leipert stating: “The decision on limiting the new trial appropriately rests in the discretion of the trial judge. It is presumed that in passing upon the motion he has weighed the evidence and the possibility of prejudice to the defendant. His decision will not be reversed on appeal unless an abuse of discretion is shown. [Citations.]” (Ibid.) The argument appears to be that because the City would prefer a limited new trial to an unlimited one, there would be no “prejudice to the defendant” (Leipert, supra) from limiting the new trial, and therefore the trial court abused its discretion by failing to accede to the City’s preference for a limited new trial over an unlimited new trial. The flaw we see in this argument is that nothing in Leipert says the trial court may consider only prejudice to the defendant in deciding whether to limit a new trial. As Leipert itself says, limited retrials “should be granted... only if it is clear that no injustice will result.” (Leipert, supra, 39 Cal.2d at p. 466.) “[W]hen a limited retrial might be prejudicial to either party, the failure to grant a new trial on all of the issues is an abuse of discretion.” (Baxter v. Phillips (1970) 4 Cal.App.3d610, 617; Liodas v. Sahadi (1977) 19 Cal.3d 278, 286.) We think it was abundantly clear to the trial court that (1) the plaintiff wanted an unlimited new trial, and (2) the City wanted either no new trial or a limited new trial. The trial judge devoted four pages of its ruling on the new trial motion to the issue of whether the new trial should be limited, as the City preferred, or unlimited, as the plaintiff preferred. The trial court was thus addressing the issue of whether a limited new trial would be prejudicial to the plaintiff, and concluded that it would be. This determination was not “‘[a]ction that transgresses the confines of the applicable principles of law.’” (Horsford, supra, 132 Cal.App.4th at p. 393.) It was an application by the trial court of an applicable principle of law. (Liodas v. Sahadi, supra, 19 Cal.3d at p. 286.)
We need not decide here whether the trial court would have abused its discretion if it had limited the new trial to the issue of damages only. It did not so limit the new trial order. We merely conclude that there was no “manifest abuse of discretion” (Lauren H., supra, 96 Cal App.4th at p. 842, fn. omitted) in the trial court’s decision to grant a new trial on all issues. The close (10-to-2) verdict on the city’s liability, coupled with the jury’s concededly inadequate award of zero future non-economic damages, was a sufficient basis from which the court could reasonably conclude that a new trial on all issues was warranted.
Respondent’s “Motion to Take Evidence” filed in this court on February 24, 2009, is denied. None of the evidence sought to be presented by respondent is helpful to us in determining whether the trial judge abused his discretion in granting respondent’s motion or an unlimited new trial. (See In re Zeth S. (2003) 31 Cal.4th 396, 405.)
DISPOSITION
The trial court’s order granting a new trial on all issues is affirmed. Costs on appeal to respondent Jones.
WE CONCUR, Wiseman, J., Gomes, J.