California Appellate Lawyer & Attorney : Archer Norris Law Firm : Trial, Business, Torts : Sacramento, Bay Area, Los Angeles, California

Ever find yourself questioning a victory as the verdict is read?

In Zagami, Inc. v. James A. Crone, Inc., Case no. D049563 (4th Dist. Mar. 10, 2008), the Fourth District remanded a case for a rehearing on damages finding that the jury’s verdict was hopelessly ambiguous and refusing to choose between two internally inconsistent verdicts. 

Zagami sued James A. Crone, Inc. seeking compensation after equipment disappeared following delivery.  Zagami claimed an agent of Crone signed for receipt of the equipment upon delivery.  Crone argued it never received the equipment and were therefore not liable for its disappearance.

The special verdict form requested damages on (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) good and services rendered; and (4) an open book accounting. The jury returned a verdict in favor of plaintiff in the amount of $15,500 on issues 1, 2, and 4.  On the value of goods and services rendered, however, the jury found that the lost equipment was worth $30,000.

The attorneys made a tactical decision in not asking for clarification of the verdict from the jury.  Instead, they argued before the trial court as to which amount --  $15,500 or $30,000 – was the proper judgment.  The trial court entered judgment in the amount of $15,500.  Plaintiff appealed.

The Fourth District reiterated that, on appeal, the correctness of the trial court’s interpretation of a special verdict is reviewed de novo.  There can be no inference in favor of the prevailing party and there is no preference for upholding a special verdict where the confusion is caused by two questions within that verdict.  Nor can the court choose between inconsistent answers.  Therefore, unless the court of appeal can interpret the verdict intended by the jury from its language in light of the pleadings and evidence, the case will be reversed and remanded for another trial on the issue of damages – which is exactly what they did here.

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Yesterday, the Second District issued an unfortunate reminder that CCP §§ 425.16, subd. (i), and 904.1, subd. (a)(13) make an order either granting or denying a Special Motion to Strike (Anti-SLAPP) immediately appealable.  Waiting until entry of final judgment after the grant of a Special Motion to Strike that disposes of all of the issues in a case could mean waiving your right to appeal the decision at all.  Russell v. Foglio (February 28, 2008) 73 Cal.Rptr.3d 87.

Plaintiff was successful on its Special Motion to Strike.  Defendant mistakenly waited until the entry of final judgment in the case to appeal the court's order.  The Second District found that it was too late and that the court no longer had jurisdiction to hear the appeal on that issue. 

Interestingly, Justice Rubin's concurrence includes a request to the Legislature that amendment may be needed to protect the unwary.  He argues that a more workable solution may be to have a denial of a Special Motion to Strike to be immediately appealable, but not necessarily the granting of such an order.

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