New Trial Following Summary Judgment Review
There are few reported opinions discussing the extent and standard of appellate review of an order granting new trial following grant of summary judgment.
However, the same principles apply to appellate review of an order granting new trial following a grant of judgment on the pleadings. (See Green v. Del-Camp Investments, Inc., supra, 193 Cal. App. 2d 479, 481.)
We conclude from our review of the available authority that when a new trial has been granted following summary judgment, the new trial motion is in the nature of a motion for reconsideration and, unless the new trial motion raises post summary judgment issues of fact like diligence in obtaining newly discovered evidence ( Scott v. Farrar (1983) 139 Cal. App. 3d 462, 188 Cal. Rptr. 823), the issue on appeal of the new trial order is whether the summary judgment was properly granted or denied.
If summary judgment was properly granted, the grant of a new trial was in error; if summary judgment was not properly granted, the grant of a new trial was correct. (See Green v. Del-Camp Investments, Inc., supra, at p. 483 ["thus the motion for summary judgment was properly granted and the motion for new trial should have been denied"];
Carney v. Simmonds, supra, 49 Cal. 2d 84, 98, 315 P.2d 305 [judgment on the pleadings improperly granted and motion for new trial therefore properly granted];
Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal. App. 3d 391, 397, 285 Cal. Rptr. 757 [summary judgment treated as judgment on the pleadings granted in error and therefore motion for new trial properly granted: "the trial court had no discretion to grant a new trial unless its original ruling [judgment on the pleadings], as a matter of law, was erroneous"];
Olson v. County of Sacramento (1969) 274 Cal. App. 2d 316, 79 Cal. Rptr. 140 [judgment on the pleadings granted in error and motion for new trial therefore should have been granted];
Malo v. Willis, supra, 126 Cal. App. 3d 543 [motion for reconsideration of grant of summary judgment treated as motion for new trial; initial summary judgment erroneously granted and motion for new trial therefore properly granted]; Cf. Scott v. Farrar, supra, 139 Cal. App. 3d 462 [original summary judgment properly granted, but newly discovered evidence justified grant of motion for new trial and vacation of summary judgment].)