Metropolitan News-Enterprise


Friday, August 10, 2012


Page 1


Court of Appeal Says Judge Rogers Failed to Follow Its Directive

He Exceeded Jurisdiction in Granting Motion for New Trial After CA Scrapped Previous Grant—Bigelow


By a MetNews Staff Writer


The Court of Appeal for this district has directed Los Angeles Superior Court Judge Randolph A. Rogers to vacate an order for a new trial, taking him to task for snubbing a previous order.

After a jury last year found for the defendant in a wrongful death action, Rogers had granted a motion for judgment notwithstanding the verdict and a new trial on damages. Div. Eight of the appeals court granted a writ of mandate on Dec. 14, 2011, commanding that the judgment NOV and the new-trial order be vacated.

Following remand, the plaintiff renewed her motion for a new trial, and on April 2, Rogers granted it.

In an unpublished opinion Wednesday, Div. Eight issued another writ of mandate.

Exceeded Jurisdiction

Writing for the panel, Presiding Justice Patricia Bigelow said that Rogers “had no authority” to grant the motion by plaintiff Dina A. Barkus for a new trial that the court “exceeded its jurisdiction in doing so.”

She explained:

“[T]he order materially varies from the directions we gave in our December 2011 written opinion in case No. B233360….A failure to follow appellate directions can be challenged by an immediate petition for writ of prohibition or writ of mandate….

“Our opinion ordered the trial court to vacate its order granting JNOV and a new trial, and to reinstate the jury verdict. While the opinion did not expressly state that judgment was to be entered for [Jennifer] White, it did not need to. The entire opinion, as a whole, established an intention that is contrary to a retrial…. [A]nything other than a judgment for White exceeded the directions given in our opinion.”

Other Reasons Cited

Bigelow pointed to three other reasons Rogers couldn’t do what he did:

The court’s jurisdiction had been exhausted. Bigelow said that once a court has made a final order granting or denying a motion for a new trial, the court may no nothing more, other than to correct a clerical error or afford relief from inadvertence under Code of Civil Procedure §473.

“The trial court clearly exhausted its jurisdiction in April 2011 once it granted a new trial on damages, and therefore had no jurisdiction to grant Barkus’s renewed motion for new trial in April 2012,” the jurist wrote.

Rogers was compelled to defer to the jury’s verdict. “[I]f an appellate court reverses JNOV, the prevailing party is entitled to entry of judgment in conformity with the verdict,” Bigelow pointed out.

The judge was bound by the “law of the case” doctrine. “Under this doctrine, any principle or rule of law stated in an appellate opinion that is necessary to the court’s decision must be followed in all subsequent proceedings in the action, whether in the trial court or on a later appeal,” Bigelow recited.

Pronouncements in the Dec. 14, 2011 opinion precluded the April 2 order granting a new trial, she explained. Among the matters determined in that opinion was that “the new trial on damages was rendered moot by our ruling reversing the JNOV,” Bigelow said.

Bigelow noted that a Palma notice was issued. She wrote:

“No factual issues are disputed, the legal error is clear, and the matter should be expedited. Accordingly, a peremptory writ in the first instance is appropriate.”

Stephen J. Beaton, Eric B. Kunkel, and Laura J. Becker of Tharpe & Howell represented White. Olaf Arthur Landsgaard acted for Barkus.


Copyright 2012, Metropolitan News Company