New Trial Based on Surprise California Cases
In Whitfield v. Debrincat (1937) 18 Cal.App.2d 730, 732-734, the trial court granted the defendant in a personal injury action a new trial based on surprise, where the defendant's own witness averred in support of the new trial motion that he had been confused at trial and had intended to testify differently.
The appellate court held that it could not say that the lower court had abused its discretion in granting a new trial under those circumstances. (Id. at p. 734.)
In Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723, the court held that a party that has designated an expert on a particular subject could not use a supplemental expert list to substitute a new expert on the same subject.
In Andersen v. Howland (1970) 3 Cal.App.3d 380, 382-383, the prevailing plaintiff in a personal injury action moved for a new trial based on newly discovered evidence of additional injuries. The trial court found the plaintiff had exercised due diligence. The appellate court concluded that the trial court did not abuse its discretion, but noted that a finding of lack of due diligence may not have been an abuse of discretion either. (Id. at pp. 383-384.)
In Vise v. Rossi (1957) 150 Cal.App.2d 224, 225-226, the defendant in a personal injury action filed a motion for a new trial based on an affidavit from his own medical witness that he had examined the plaintiff's x-rays after the trial and determined her injuries were not as extensive as he previously believed.
The trial court denied the motion. The appellate court did not review the order denying a new trial but observed that the lack of diligence may have justified the denial. (Id. at p. 227.)