Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Patrick O'Hara, Judge. Super. Ct. No. 06-221821.
Law Office of Ken M. Fitzgerald, Ken M. Fitzgerald; Law Offices of Larry M. Lee, Larry M. Lee and Christopher C. McLain for Plaintiff and Appellant.
Emerson Corey & Sorensen, James D. Emerson and C. Frederick Meine, III for Defendants and Respondents.
OPINION
HILL, J.
Plaintiff, Carson McDaniel, a minor appearing through his father as guardian ad litem, appeals from a judgment after trial in an action based on a dog bite. The verdict was in plaintiff’s favor, but apportioned 50 percent of the responsibility for his injuries to his father. Plaintiff contends he established the elements of statutory strict liability for the dog bite, but the jury was improperly instructed on the defense of comparative negligence, which he asserts is not a valid defense to that statutory liability. Plaintiff also contends there was insufficient evidence to support the jury’s finding that his father was 50 percent responsible for plaintiff’s injury, and he challenges the adequacy of the damages awarded by the jury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 20, 2005, plaintiff’s father, David McDaniel, delivered a vehicle to defendants, Rudy and Debra Witschi, at their home after repairing it for them. Plaintiff’s mother, Sharon McDaniel, followed in their car, to give David a ride home. Plaintiff accompanied one of his parents to defendants’ home. After receiving payment for the repair work, David and Rudy stood outside Rudy’s office chatting. While that conversation went on, plaintiff, who was then five years old, stood nearby petting defendants’ dog, Max. There was conflicting evidence regarding whether plaintiff pulled the dog’s ears as he petted him and whether Rudy told plaintiff not to pull the dog’s ears. Suddenly, without warning, the dog grabbed plaintiff’s face in his mouth and took him to the ground. Rudy pulled the dog off plaintiff; David, Sharon, and Debra, who had arrived from the kitchen after hearing plaintiff scream, tended to plaintiff’s wounds. Debra called 911. An ambulance arrived, and plaintiff was taken to the emergency room, where the doctor sutured wounds in his cheek and ear with a total of about 20 stitches. At the time of trial more than two years later, plaintiff had a scar on his cheek, which a plastic surgeon testified could not be improved by plastic surgery and would remain throughout plaintiff’s life.
For purposes of clarity, because some of the persons involved share a last name, they will be referred to by their first names. No disrespect is intended.
Plaintiff and his parents sued defendants. Plaintiff asserted causes of action for strict liability pursuant to the dog bite statute (Civ. Code, § 3342) and negligence. His parents each alleged a cause of action for negligent infliction of emotional distress, but those causes of action were dismissed at the beginning of trial.
The jury found in favor of plaintiff on the statutory cause of action and awarded him $1,507.94 in economic damages for his medical expenses and $5,000 for past noneconomic damages, including pain and suffering. It awarded nothing for future noneconomic damages. It found defendants 50 percent responsible for plaintiff’s injuries and David responsible for the other 50 percent. It assigned no responsibility to plaintiff.
Plaintiff moved for a new trial; the motion was denied and plaintiff appealed.
DISCUSSION
Plaintiff raises two issues in this appeal: (1) David should not have been assigned 50 percent of the responsibility for plaintiff’s injury and (2) the noneconomic damages awarded were inadequate.
I. Comparative Fault
Plaintiff challenges the jury’s verdict apportioning 50 percent of the responsibility for his injuries to his father. Plaintiff seems to assert that the jury should not have been given the instruction directing it to assign percentages of responsibility to any person listed on the special verdict form whose negligence or fault contributed to his injury, or that the special verdict form should not have listed David as a potentially responsible person, or both. Plaintiff argues that (1) comparative fault is not a defense to strict liability under the dog bite statute, (2) a parent has no duty to supervise or protect his child in the absence of knowledge of the danger, and (3) there was insufficient evidence to support the jury’s finding of negligence on the part of David.
A. Comparative fault and strict liability
“The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.” (Civ. Code, § 3342, subd. (a).) This statute imposes strict liability on the dog’s owner. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 175-176 (Johnson).) Nonetheless, the owner is not an insurer of others’ safety, and the statutory liability is not absolute. (Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358; Smythe v. Schacht (1949) 93 Cal.App.2d 315, 321.) The defenses of assumption of the risk and contributory negligence may still be asserted. (Johnson, supra, at p. 176; accord Burden v. Globerson (1967) 252 Cal.App.2d 468, 470-471.)
While some early cases suggested that contributory negligence was not a defense to liability under the dog bite statute, they recognized that provocation of the dog by the injured person was a defense that was not precluded by the strict liability imposed by statute. (See, e.g., Talazin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 438; Smythe v. Schacht, supra, 93 Cal.App.2d at pp. 321-322, indicating that contributory negligence is a defense to an action for injuries caused by a domestic animal based on negligence but not on strict liability, but also recognizing that “good morals and sound reasoning dictate that if a person lawfully upon the portion of another's property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof.”) Those cases also preceded the advent of comparative fault principles in California law. Prior to Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, contributory negligence was an all-or-nothing proposition; if plaintiff negligently contributed to his own injury, his recovery from defendants who also negligently contributed to his injury was barred. (Id. at pp. 809-810.) Li adopted “a system of ‘pure’ comparative negligence, the fundamental purpose of which [is] to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties.” (Id. at p. 829.) Subsequently, in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 583, the court held that the equitable indemnity doctrine could be used to apportion fault on a comparative negligence basis among multiple tortfeasors responsible for the same injury. More recently, Civil Code section 1431.2 was enacted, providing that “[i]n any action for personal injury, … based upon principles of comparative fault, … [e]ach defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault.” (Id., subd. (a).) Thus, under current law, liability for a plaintiff’s injuries may be apportioned among all persons the jury finds legally responsible for those injuries, including plaintiff, defendants, and third persons.
In the strict products liability context, courts have held that the jury is competent to apportion liability between negligent and strictly liable parties. In Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 742, the court concluded that the jury could be required to apportion the loss between a negligent plaintiff and a strictly liable defendant. (Id. at pp. 737-738.) It held that “a system of comparative fault should be and it is hereby extended to actions founded on strict products liability.” (Id. at p. 742.) The court noted: “While … the term ‘equitable apportionment of loss’ is more accurately descriptive of the process, nonetheless, the term ‘comparative fault’ has gained such wide acceptance by courts and in the literature that we adopt its use herein.” (Ibid.) In Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328 (Safeway), the court concluded that the comparative indemnity doctrine discussed in American Motorcycle provides an appropriate basis for apportioning liability among multiple defendants, some of whom were found negligent and some of whom were found strictly liable for plaintiff’s injuries. In Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413, the court suggested the principles of comparative fault applicable in strict products liability cases should also apply to actions based on strict liability for ultrahazardous activities. The court stated: “There are many obvious parallels between strict products liability and ultrahazardous activity cases, and the rationale for applying comparative negligence or fault to the former would seem equally pertinent to the latter. [Citations.]” (Id. at p. 421.)
The rationale behind the application of comparative negligence principles to apportionment of responsibility among tortfeasors in strict product liability cases was explained in Safeway, supra, 21 Cal.3d at pp. 330-331:
“Nothing in the rationale of strict product liability conflicts with a rule which apportions liability between a strictly liable defendant and other responsible tortfeasors. Although one of the principal social policies served by product liability doctrine is to assign liability to a party who possesses the ability to distribute losses over an appropriate segment of society [citation], this policy has never been viewed as so absolute as to require, or indeed as to permit, negligent tortfeasors who have also contributed to the injury to escape all liability whatsoever. Instead, from the initial adoption of strict product liability in Greenman [v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57], the propriety of awarding contribution between strictly liable and negligent defendants has been uniformly recognized. [Citations.] With the advent of the common law comparative indemnity doctrine, we achieve a more precise apportionment of liability … by allocating damages on a comparative fault or a comparative responsibility basis, rather than by fixing an inflexible pro rata apportionment pursuant to the contribution statutes. [Citation.]”
Additionally, the Safeway court noted that, if comparative fault only applied to negligent tortfeasors, it “would lead to bizarre, and indeed irrational, consequences,” because a negligent defendant, who could shift some of the liability for plaintiff’s injury to a negligent co-defendant, would be in a more favorable position than a nonnegligent defendant, who was held strictly liable for plaintiff’s injury but not permitted to shift any liability to negligent co-defendants. (Safeway, supra, 21 Cal.3d at p. 332.)
While strict liability imposed on a dog owner is not concerned with distributing losses over a wide segment of society, we do not believe it was intended to permit negligent tortfeasors who contributed to plaintiff’s injury to completely escape liability. We conclude that, as in other areas in which strict liability applies, in the application of the dog bite statute, principles of comparative fault may be used to apportion liability for plaintiff’s injury among those responsible for the injury, whether that responsibility is based on negligence or on strict liability. Consequently, there was no error in instructing the jury to allocate percentages of responsibility to those whose negligence or fault the jury found contributed to plaintiff’s injury.
B. Negligence of parent
Plaintiff seems to contend there was insufficient evidence to support giving the jury instruction on comparative fault of third persons and including David in the special verdict form as a person to whom some responsibility for plaintiff’s injuries could be allocated. Plaintiff asserts David could not be held partially responsible for plaintiff’s injuries because “‘[i]t is the rule that the failure of a parent to supervise a child, with knowledge of existing danger, may constitute negligence which could preclude recovery on the part of the parent for the death of the child.’” (Smith v. Americania Motor Lodge (1974) 39 Cal.App.3d 1, 8.) Based on this quotation, plaintiff contends actual knowledge of an existing danger is a prerequisite to a finding of parental negligence based on failure to supervise a child. Plaintiff asserts there was no evidence David knew Max was dangerous, because the dog had not previously bitten or attacked anyone and it did not growl or give any other indication it was about to bite. Plaintiff concludes from this that David could not have been found negligent in failing to supervise plaintiff at the time plaintiff petted the dog and was bitten.
We express no opinion regarding whether the rule for which plaintiff argues is a correct statement of law, because we conclude he has waived the right to raise the issue on appeal. Generally, “[p]oints not raised in the trial court will not be considered on appeal.” (Hepner v. Franchise Tax Board (1997) 52 Cal.App.4th 1475, 1486.) An objection to the form of special verdict questions must be raised in the trial court or the issue is waived on appeal. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 700.) To the extent plaintiff challenges inclusion in the special verdict form of a question permitting the jury to apportion a percentage of responsibility for plaintiff’s injuries to David, he has waived that issue. Plaintiff has not identified any place in the record where he objected to the special verdict form or the question permitting apportionment of responsibility to David.
Plaintiff asserts his challenge was included in his motion in limine and his motion for directed verdict. Plaintiff’s motion in limine requested exclusion of any mention that plaintiff’s parents were contributorily negligent on the ground the negligence of a parent is not imputable to the child and will not prevent his recovery. The motion in limine conceded that “the parent’s contributory negligence is a bar to the minor’s recovery of special damages for medical expenses.” Plaintiff did not argue there, as he does here, that his father could not be held responsible for his injury on a comparative fault basis because David had no knowledge of an existing danger to plaintiff, and without such knowledge David could not be found negligent in his supervision of his son. Plaintiff’s motion for a directed verdict is not part of the record, so plaintiff has not demonstrated that he challenged the special verdict’s question concerning apportionment of responsibility to his father in that motion. Accordingly, plaintiff has not established that his challenge to the special verdict form was preserved for appeal.
When the trial court gives an instruction “which is an incorrect statement of law, the party harmed by that instruction need not have objected to the instruction or proposed a correct instruction of his own in order to preserve the right to complain of the erroneous instruction on appeal.” (Suman v. BMW of North America (1994) 23 Cal.App.4th 1, 9.) However, “[w]hen a trial court gives a jury instruction which is correct as far as it goes but which is too general or is incomplete for the state of the evidence, a failure to request an additional or a qualifying instruction will waive a party's right to later complain on appeal about the instruction which was given.” (Ibid.)
Plaintiff seems to challenge the comparative fault instruction, either as incomplete or as an instruction not warranted by the evidence. That instruction advised the jury that “[m]ore than one person’s negligence/fault may have been a substantial factor in causing [plaintiff’s] harm” and the jury “must decide how much responsibility each person has by assigning percentages of responsibility to any person listed on the verdict form whose negligence or other fault was a substantial factor in causing [plaintiff’s] harm.” Plaintiff does not assert that the instruction is an incorrect statement of law. To the extent plaintiff is claiming that the instruction was too general or incomplete, because it did not include any requirement that the parent must know of the danger and fail to avoid it in order to be found negligent for failing to supervise the child, that issue is waived. Plaintiff has not demonstrated that he requested a modification of that instruction or an additional instruction addressing parental responsibility.
To the extent plaintiff claims that the comparative fault instruction should not have been given at all because David could not be held partially responsible for plaintiff’s injuries without knowledge of the danger, which he lacked, that issue has also been waived. Plaintiff’s assertion that he objected in his motion in limine and motion for directed verdict is not supported by the record, as discussed previously. Plaintiff’s assertion that he had no duty to correct “the erroneous jury instruction proposed by defense counsel and allowed by the court” is also without support in the record. Although “‘[i]nstructions requested by an adverse party “are deemed to have been excepted to” … even though the complaining party made no objection thereto,’ …” (Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1230, citations omitted), the record does not reflect that defendants requested the challenged instruction. It is not listed in defendants’ request for jury instructions and the jury instruction form itself indicates the instruction was requested by plaintiff.
C. Sufficiency of evidence of comparative fault
Plaintiff contends the evidence at trial was not sufficient to support a finding that David was 50 percent responsible for plaintiff’s injuries. A challenge to the sufficiency of the evidence to support the verdict, including the jury’s apportionment of fault, is subject to the substantial evidence standard of review. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678; Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1234.) “[W]hen ‘a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Gray v. Don Miller & Associates (1984) 35 Cal.3d 498, 503.) “‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.]” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)
There was evidence at trial that, prior to the dog bite incident, neither defendants nor Max’s previous owner had had any problems with Max being aggressive or biting anyone. On the day of the incident, plaintiff was petting Max in close proximity to Rudy and David. Plaintiff petted the dog on the head and said “good doggie.” Although plaintiff and his parents testified that plaintiff did not pull Max’s ears, Rudy testified that, as plaintiff petted down from the dog’s head, he was pulling Max’s ears. After the second time, Rudy told plaintiff not to pull the dog’s ears. Plaintiff pulled the dog’s ears several times. Additionally, plaintiff was eye-to-eye with Max, which a dog may see as a challenge. Max did not growl, bark or give any other warning of danger. The dog suddenly grabbed plaintiff’s face in his mouth and dropped plaintiff to the ground.
“‘In determining whether a judgment is supported by substantial evidence, we … must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court. [Citation.] We may not substitute our view of the correct findings for those of the trial court [or jury]; rather, we must accept any reasonable interpretation of the evidence which supports the [factfinder's] decision.’” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.) “[W]e defer to the trier of fact on issues of credibility.” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
Although the evidence was conflicting, we must view it in the light most favorable to the jury’s verdict. There was sufficient evidence from which the jury could have found that plaintiff was pulling Max’s ears as he petted the dog, that Rudy warned plaintiff not to pull the dog’s ears, that plaintiff continued to do so, and that David did not intervene to prevent plaintiff from pulling the dog’s ears before Max bit plaintiff. Thus, there was sufficient evidence from which the jury could conclude that David had notice that plaintiff was pulling the dog’s ears and that Rudy had told plaintiff not to, but David failed to take steps to control plaintiff’s conduct, and that his omission to act was a contributing cause of plaintiff’s injuries. There was substantial evidence to support the jury’s assignment of a portion of the responsibility for plaintiff’s injuries to David.
II. Inadequacy of the Damage Award
“Failure to move for a new trial on the ground of excessive or inadequate damages precludes a challenge on appeal to the amount of damages if the challenge turns on the credibility of witnesses, conflicting evidence, or other factual questions. [Citations.] A trial court ruling on a new trial motion on the ground of excessive or inadequate damages must weigh the evidence and acts as an independent trier of fact. [Citations.] .…
“‘When defendants first challenge the damage award on appeal, without a motion for new trial, they unnecessarily burden the appellate courts with issues which can and should be resolved at the trial level. [Fn. omitted.]’ [Citation.] The same is true when a plaintiff challenges a damage award on appeal on the ground of inadequacy.” (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121, first, second & last bracketed insertions added.)
A notice of intention to move for new trial must be filed within 15 days after the mailing of a notice of entry of judgment. (Code Civ. Proc., § 659 .) The notice of intention must designate the grounds upon which the motion will be made. (Ibid.) “The general rule is that a trial court has no power to grant a motion for a new trial on a ground that is neither statutory nor specified in the notice of such motion.” (McFarland v. Kelly (1963) 220 Cal.App.2d 585, 587 (McFarland).) There are seven statutory grounds for a motion for new trial, including “[e]xcessive or inadequate damages” and “[i]nsufficiency of the evidence to justify the verdict.” (§ 657, subds. (5), (6).)
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
On July 23, 2007, defendants served a notice of entry of judgment on plaintiff. Within 15 days thereafter, on August 2, 2007, plaintiff filed a timely notice of intention to move for a new trial. The notice specified six grounds – all of the statutory grounds except “[e]xcessive or inadequate damages.” (§ 657, subd. (5).) On August 13, 2007, more than 15 days after service of the notice of entry of judgment, plaintiff filed a memorandum of points and authorities in support of the new trial motion; in that document, plaintiff argued for the first time that the jury’s award of damages was inadequate. Plaintiff’s argument was based on factual issues concerning the nature and extent of his injuries and their potential effect upon him in the future. In opposition to the motion for new trial, defendants argued that the court could not grant the motion on the ground of inadequate damages, because that ground had not been specified in the notice of intention to move for new trial. The trial court agreed with defendants, finding that the notice was insufficient.
Plaintiff argues that inadequacy of damages has historically been subsumed within the ground of insufficiency of the evidence to support the verdict, and because his notice specified insufficiency of the evidence as one ground for the motion, the notice was sufficient. Prior to 1968, the statutory grounds for new trial included insufficiency of the evidence and “[e]xcessive damages, appearing to have been given under the influence of passion or prejudice.” (Stats. 1965, ch. 1749, § 1.) “Inadequate damages” was not expressly listed as a ground for new trial. The inadequacy of a damage award could be challenged, however, on the ground of insufficiency of the evidence to justify the judgment. (See McFarland, supra, 220 Cal.App.2d at p. 588 [“‘... It is now accepted that where the trial court grants a motion for new trial because of inadequacy of the damages awarded, it acts on the broad ground of insufficiency of the evidence to justify the verdict.’ [Citation.]”)
Effective in 1968, the Legislature amended section 657 to expressly include inadequate damages as a ground for new trial. (Stats. 1967, ch. 72, § 1.) The Senate Legislative Committee comment for the amendment explains: “First, the amended section explicitly recognizes that an inadequate award of damages is a ground for granting a new trial just as an excessive award of damages presently is recognized. The availability of this basis for granting a new trial, on the ground of ‘insufficiency of the evidence to justify the verdict,’ is well settled in California. [Citations.] Thus, the revisions of Section 657 continue the power of the trial judge to grant a new trial when, after weighing the evidence, he is convinced from the entire record, including reasonable inferences therefrom, that the award of damages clearly is inadequate.” (Legis. Com. com. – Sen., 16A West’s Ann. Civ. Proc. (1976 ed.) foll. § 657, pp. 222-223.) Thus, prior to the amendment, a notice of intention to move for a new trial based on inadequacy of the damage award had to specify insufficiency of the evidence as the ground for that motion. After amendment, inadequacy of the damage award was recognized as a separate ground for the motion, to be identified specifically in the notice.
Relying on pre-1968 cases and the Legislative Committee comment to section 657 quoted previously, plaintiff asserts that a notice of intention to move for new trial may still raise the issue of inadequacy of the damages by specifying insufficiency of the evidence as a ground for granting the motion. We disagree. The pre-1968 cases were decided under prior law and do not interpret the current version of section 657. The Legislative Committee comment to section 657 merely recognizes that inadequacy of the damage award was previously subsumed within “insufficiency of the evidence” as a ground for a motion for new trial, but after the 1967 amendment, it became a separate ground for the motion in its own right. Under current law, there are seven statutory grounds for a motion for new trial, one of which is “[e]xcessive or inadequate damages.” If a plaintiff wishes to move for a new trial on the ground of inadequate damages, that ground must be specified in the notice of intention to move for new trial. Specifying the separate ground of insufficiency of the evidence to justify the verdict will no longer suffice. Consequently, plaintiff’s notice of intention to move for new trial, which failed to mention the ground of inadequate damages, did not preserve for appeal the issue of the inadequacy of the damage award.
The defect in plaintiff’s notice of intention to move for new trial was not cured by the subsequent filing of a memorandum of points and authorities that argued the damage award was inadequate. “A defective notice of intention to move for a new trial cannot be amended after expiration of the statutory time for filing the notice, since that would in effect extend the time allowed by law for giving such notice, and the court has no power to grant an extension. [Citation.] In effect it holds that an amended notice may be filed within the time.” (McFarland, supra, 220 Cal.App.2d at p. 587.)
In McFarland and in Galindo v. Partenreederie M.S. Parma (1974) 43 Cal.App.3d 294 (Galindo), the plaintiff sought a new trial on the ground of inadequacy of damages. Neither plaintiff included the proper statutory ground for such a motion in his notice of intention to move for new trial. In supporting papers filed with the notice or subsequently, but within the 15-day period, each specified the correct statutory ground for the motion. In each case, the court concluded defendant was given sufficient notice of the statutory ground on which the motion was brought to confer jurisdiction on the trial court to grant the motion on that ground, even though the proper ground had not been specified in the notice itself. (McFarland, supra, 220 Cal.App.2d at pp. 589-590; Galindo, supra, 43 Cal.App.3d at pp. 301-302.)
In Wagner v. Singleton (1982) 133 Cal.App.3d 69, the court reversed an order granting a new trial, where the ground on which the order was made was not mentioned in the timely filed notice of intention to move for new trial, and the memorandum of points and authorities invoking that ground was not filed until after expiration of the 15-day period for moving for a new trial. The court held the trial court lacked jurisdiction to grant the motion on the ground stated; it distinguished McFarland and Galindo, which “concerned amendments to the notice of intention to move for a new trial within the statutory time limit.” (Wagner, supra, 133 Cal.App.3d at p. 73.)
“The granting or denial of a new trial is a matter resting largely in the discretion of the trial court and will not be disturbed except on a manifest and unmistakable abuse. [Citations.] Error is not presumed and the burden is on appellant to affirmatively show its presence in the record. [Citations.]” (Girch v. Cal-Union Stores, Inc. (1968) 268 Cal.App.2d 541, 549-550.) Plaintiff’s notice of intention to move for new trial did not include inadequacy of the damages as a ground for the motion. The memorandum of points and authorities arguing that ground was not filed within the 15-day statutory period. Consequently, the trial court lacked jurisdiction to grant the motion on that ground, and did not abuse its discretion in denying plaintiff’s motion for a new trial.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.