Appealing a new trial order without the trial transcript: the Fifth District affirms in Martinez v. Contreras

An appeal from a new trial order granted for juror misconduct starts uphill, and in Martinez v. Contreras the Fifth District showed how much steeper the climb gets without the trial record. The appellant brought only the motion papers and a few transcript excerpts from an eight-day trial. With hearsay objections never made below and no counter-declarations on file, the order stood.

What happened in Martinez v. Contreras

The case arose from a March 2021 motor vehicle accident and was tried in Fresno County Superior Court. The defendant, Antonio Contreras, stipulated to negligence before trial, and the court directed a verdict for the plaintiff, Aleshia Martinez, on causation. The jury decided damages only. After an eight-day trial, it returned a $55,000 verdict on October 31, 2024.

Martinez moved for a new trial on three grounds under Code of Civil Procedure section 657: jury misconduct, inadequate damages and insufficient evidence. She supported the motion with declarations from two jurors. One said jurors openly discussed the defendant's wealth and ability to pay, expressed sympathy for him, and compared her injuries to those of injured service members, and that these matters were "heavily discussed" in setting damages. The other said jurors discussed why the suit was against an individual rather than an insurer. Contreras filed no counter-declarations.

Judge Kristi C. Kapetan granted a new trial solely on jury misconduct. Contreras appealed. In an opinion by Justice De Santos, joined by Acting Presiding Justice Franson and Justice Snauffer, the Court of Appeal affirmed. The opinion was filed October 5, 2026, and certified for publication on October 9.

How is an order granting a new trial reviewed on appeal?

The appeal was timely, but the standard of review favored the trial court. Because the trial court gave an adequate statement of reasons, the Court of Appeal reviewed for abuse of discretion, following Oakland Raiders v. National Football League (2007) 41 Cal.4th 624. As the opinion put it, "the burden of persuading this court that there has been an abuse of discretion remains with Contreras."

The court rejected the argument that the statement of reasons was inadequate. It identified the specific evidence and the jury instructions the jurors disregarded (CACI Nos. 105, 117 and 5000, on insurance, wealth or poverty, and sympathy), and section 657 does not require the court to explain why that evidence was admissible. The opinion also notes that, under section 657, an order granting a new trial must be affirmed if it should have been granted on any ground stated in the motion, even one the order does not specify.

Juror declarations under Evidence Code section 1150

Evidence Code section 1150 allows evidence of statements and conduct inside or outside the jury room, but not evidence of a juror's mental processes. The court held that the discussions of wealth, insurance, sympathy and the service-member comparisons were objectively observable statements. Their very making was the misconduct, so the declarations were admissible to prove it. The court set aside the parts of the declarations that described what jurors were thinking.

The forfeiture problems

Several of the appellant's arguments never reached the merits. On hearsay, the court wrote that "Contreras never raised a hearsay objection to any of the juror declarations in his opposition to the new trial motion," and held the objection forfeited. The challenges to corroboration and authentication had not been raised below either: "We conclude the arguments have been forfeited."

Why the missing reporter's transcript decided the prejudice question

Once misconduct is shown through admissible evidence, it is presumed prejudicial. The opposing party can rebut that presumption in two ways: with an affirmative evidentiary showing that there was no prejudice, or through the reviewing court's examination of the entire record for a reasonable probability of actual harm.

Contreras had made no affirmative showing; he filed no counter-declarations. And the second route depended on the record. "Contreras chose to proceed without a reporter's transcript," the court observed. He supplied the new trial papers, the jury instructions and the rulings, but not a transcript of the eight-day trial, most of the exhibits, or pleadings such as the complaint, answer and motions in limine. Without that record, the court could not review the whole trial to find that no prejudice occurred.

His fallback, the transcript excerpts attached to his opposition below, also failed. His opening brief did not discuss them, cite them or explain how they overcame the presumption, so the court treated the point as forfeited. The conclusion followed:

"Contreras has not met his burden of demonstrating that no prejudice occurred as a result of jury misconduct."

The disposition: "The new trial order is affirmed. Martinez is entitled to her costs on appeal."

What Martinez v. Contreras means in practice

The decision turns less on any new rule than on choices made at each stage. In the trial court, objections that are not made in the opposition papers are gone on appeal. Juror declarations that go unanswered by counter-declarations stand as the account of what happened in the jury room. On appeal, the party challenging a misconduct-based new trial order carries the burden on prejudice, and one of the two ways to carry it requires the full record. Here, the absence of a reporter's transcript meant the court could not review the whole trial for prejudice.

Timing matters too. The appeal itself was timely, but a timely notice is only the first requirement; see our overview of California appeal deadlines. What the record contains, and what the briefs actually argue with record citations, decides what the court can review.

Why appeals like this one need an appellate lawyer

The decisive moves in Martinez v. Contreras came before the opening brief was written. The hearsay objection had to be made in the opposition to the new trial motion. Counter-declarations had to be filed then too. On this record, once the trial court ruled, those windows had closed.

Then came the record. In an appeal where the appellant must rebut a presumption of prejudice, the reporter's transcript is what lets the court review the whole trial for harm. Here, the partial record left one route to reversal instead of two, and because the opening brief did not discuss the excerpts that were in the record, that route closed as well.

An appellate lawyer looks at a new trial motion with the appeal in mind: which objections must be made now, what evidence must answer the declarations, which standard of review will apply, and what record the appellate court will need. If you are opposing a new trial motion or weighing an appeal from a new trial order, talk to an appellate lawyer early, before the objections are waived and before the record is designated.

Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864

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