Filed 1/16/14 Gehlhar v. Baldwin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

PHILIP GEHLHAR et al., Plaintiffs and Appellants,

v. BRIANA BALDWIN et al., Defendants and Respondents. G048026 (Super. Ct . No. 30-2011-00472481)

O P I N I O N

Appeal from postjudgment orders of th e Superior Court of Orange County, Gail Andrea. Andler, Judge. Affirmed as modified. Mohammed K. Ghods, William A. St ahr, and Ruben Escobedo III, for Plaintiffs and Appellants. No appearance by Defendants and Respondents.2 A landlord, Romans 12 , LLC (Romans), and its so le owner, Philip Gehlhar, prevailed in their fraud and elder abuse cau ses of action against former tenants, Ron Fenney and Briana Baldwin (hereafter coll ectively referred to as the Tenants, unless the context requires otherwise). A jury conc luded the Tenants must pay Gehlhar a total of $20,000 in compensatory damages and $200,000 in p unitive damages. The jury awarded Romans a total of $1,827.50 in comp ensatory damages but no punitive damages. Thereafter, the trial court granted the Tenant s’ motion for a new trial on the grounds the punitive damages award was excessive. It al so denied Gehlhar an d Romans’ motion for attorney fees as moot. On appeal, Gehlhar and Romans ma intain the trial court abused its discretion by: (1) granting the motion for a ne w trial without the benefit of an adequate record; (2) sending Romans back for a new trial despite the fact it was not awarded punitive damages; (3) exceedin g its authority; (4) concluding the punitive damages award was excessive; and (5) denying the motion fo r attorney fees. We find none of these contentions have merit. However, for reasons explained anon, we modify the new trial order to limit retrial to the issue of punitiv e damages. We affirm the order regarding attorney fees.
I Preliminarily we note, where no respo ndent’s brief is filed, California Rules of Court, rule 8.220(a)(2), provides that “the court [will] decide the appeal on the record, the opening brief, and any oral argument by the appellant.” We must “‘examine the record on the basis of appellant’s brief and to reverse only if prejudicial error is found. [Citations.]’ [Citations.]” ( Lee v. Wells Fargo Bank (2001) 88 Cal.App. 4th 1187, 1192.) Appellant did not provide us with any record of the jury trial. Accord ingly, the following3 summary of the facts is based primarily on information we found in the complaint, postjudgment documents in the sparse appe llant’s appendix, and the opening brief. In December 2008, the Tenants sp oke with Gehlhar about leasing residential property owned by Gehlhar’s co mpany, Romans. Only Baldwin signed the initial lease for the property locat ed in Huntington Beach. The following month, the Tenants learned 81-year-old Gehlhar was hospitalized after suffering from a stroke, and he was rendered partially disabled. They soon stopped making timely rental payments . Approximately one year later, Gehlhar entered into a new lease agreement with Fenn ey because he promised to pay the rent on time. Fenney signed a new l ease on January 1, 2010. However, soon after signing the new leas e, Fenney fell behind on the rent. Fenney promised Gehlhar that he “had money coming to him soon.” On April 8, 2010, Fenney signed a promissory note agreeing to pay Romans $8,800 owed in current and back-due rent within 15 days. Fenney failed to pay the note and fell further behind on his monthly rent payments. When Gehlhar’s wife attempted to interven e on his behalf, the Tenants said they would not deal with her. Gehlhar alleged in his complaint he believed happened because the Tenants wa nted to continue to take a dvantage of him, an elderly disabled person. Over the next few months, Gehlhar a nd his wife asked the Tenants for the rent money, and they falsely promised they would pay. Eventually, Gehlhar filed an unlawful detainer action, and on November 23, 2010, he rece ived a favorable judgment. The judgment canceled the rent al agreement and ordered Fe nney to pay $19,901.14, and Baldwin to pay $18,301.14, in damages. Gehlhar also obtained a writ of possession, and4 with the assistance of law enforcement, fo rcibly removed the Tenants and regained possession of the residence. In May 2011, Gehlhar and Romans filed the underlying lawsuit seeking additional damages arising from breach of the l ease (first cause of action), breach of the promissory note (second cause of action), fraud and conspiracy to defraud (third cause of action), and elder abuse (fourth cause of ac tion). The factual basis of the latter two
causes of action was the Tenants took unfair a dvantage of their frail, disabled, and elderly property owner. The gravamen of the entire complaint ce ntered on allegations the Tenants deliberately misrepresented their ability to pay rent and thereby misappropriated the residence (and rental income) by repeat edly making false promises to pay. In their answer, the Tenants denied all the allegations and raised various affirmative defenses, including the defense th at all the causes of action had been already adjudicated in the unlawful detainer action and, therefore, were barred by res judicata and collateral estoppel. The Tenants also filed a cross-complaint, but we do not know what
claims were raised because it was not included in appe llant’s appendix. Counsel agreed to hold a bifurcated trial on the Tenants’ res judicata affirmative defense. The court advised counsel that during the bifurcated trial it would also consider the cross-complaint, noting it al so raised a res judicata issue. The court ruled for the Tenants on the first and second causes of action (breach of lease and note), stating Gehlhar and Roman “had adjudicated their obligation to pay past due rent through [the] prior [unlawful de tainer] action, up to the date of judgment [November 23, 2010].” The court found Gehlhar and Roman were not barred from proceeding with the third (fraud/conspiracy to defraud) and fourth (elder abuse) causes of action given “the prior action did not resolve any liabilities[,] duties and rights under exhib it A or B which arose5 after [November 23, 2010,] or did not relate to [the] claim [for] pa st due and owing rent under exhibit B through [November 23, 2010].” 1 A jury considered evidence relating to the remaining causes of action. After Gehlhar and Roman completed their case-in-chief, the Tenants moved for a directed verdict, and the court took the matter under submission. At the end of trial, the Tenants renewed their motion for a directed verdict, but once again, the trial court delayed ruling on the motion and s ubmitted the matter to the jury. The jury completed a special verdic t form. It concluded the Tenants engaged in conduct with malice, oppression , or fraud. It awarded Gehlhar $15,000 compensatory and $100, 000 punitive damages against Fe nney, and $5,000 compensatory and $100,000 punitive damages against Bald win. Romans was awarded $1,827.50 compensatory damages ag ainst the Tenants but no punitive da mages. After the trial court dismissed the jury, it denied the motion for a di rected verdict. The trial court entered a final judgment on November 9, 2012. The Tenants filed three postjudgment mo tions. First, they filed a motion for a judgment notwithstanding the verdic t (JNOV), arguing the unlawful detainer judgment barred any further action or damage s. Second, they filed a motion to set aside/vacate the judgment (this motion was not included in a ppellant’s appendix). Third, and relevant to this appeal, the Tenants file d a motion for a new tria l pursuant to Code of Civil Procedure sec tions 657 and 659 2 on grounds the punitiv e damages award was excessive. The motion, unsupported by any de clarations or documents, asserted the award was excessive because (1) the failure to pay rent was not reprehensible conduct, (2) the award did not bear a reasonable rela tionship to the relatively small amount of

1 These exhibits were not incl uded in appellant’s appendix.

2 All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.6 compensatory damages, and (3) the Tenants have a negative net worth and insufficient income to pay the award. Gehlhar and Roman filed oppositions to each of the three motions. Relevant to this appeal, Ge hlhar and Roman opposed the motion for a new trial on the grounds the Tenants did not challenge the jury ’s determination they defrauded an elderly person, for which a statute permits a punitive damages award. (See Welf. & Inst. Code, § 15657.5, subd. (a) [dam ages when defendant liable for fi nancial elder abuse].) They argued the award was reasonabl e and could reasonably be pa id over time based on the Tenants’ employment history. They asserted the Tenants failed to “establish a basis for the [c]ourt to touch the ju ry’s verdict at all.” In their reply, the Tenants reiterate d their original arguments, maintaining there was no evidence to support punitive damages, the award was excessive, and they engaged in no “reprehensible conduct.” The Tenants pointed out there was no documentary evidence introdu ced at trial refuting they had a negative net worth or challenging their stated income. They conc luded, “Someone with a negative net worth can pay nothing.” At the hearing, the court began by givi ng counsel “an opportunity to talk to one another to see if [they could] come up with a compromise that re flects the fact that the court was considering perhaps a remittitur [.]” The parties were unable to reach a settlement. The court listened to oral argument on the three motions and took them under submission. Prior to the court’s ru ling, Gehlhar and Romans filed a motion for attorney fees as the prevaili ng party on the elder abuse clai m. (See Welf. & Inst. Code, § 15657.5, subd. (a).) On January 10, 2013, the trial cour t issued a minute order denying the motion for a JNOV stating the Te nants failed to meet their bur den of persuasion based on7 the moving papers. It deemed the motion to set aside/vacate the judgment moot in light of its decision to grant the Tena nts’ motion for a new trial. The court granted the new trial mo tion on the ground punitive damages were excessive. It offered three reasons su pporting this conclusion. First, the court stated it was unclear if the jury based its award upon the Tenants’ intentional misrepresentations to Gehlhar. The court r easoned that, nevertheless, the damages were grossly excessive “based on the evidence submitted as to both” of the Tenants and “taking into account the guidelines under the applicable case law for determining on the one hand, the degree of re prehensibility of the misconduct of Baldwin and the misconduct of Fenney; and on the other hand, the disparity between the harm suffered by [] Gehlhar and the size of the punitive damages award.” Second, the court considered “the ev idence of [the Tenants’] financial condition in light of the purpose of an awar d of punitive damages, which is to deter misconduct and punish the defe ndant without being excessive[,]” and ruled the punitive damages award was excessive. The court rest ated the following rele vant facts in the minute order: “Fenney testifie d at trial that over the ‘last year’ the combin ed income of [the Tenants] was between $120,000 and $130, 000 with the majority of the amount from [Fenney’s] income. [Fenney] testified that Baldwin’s income was approximately $2,000, although Baldwin testified that at the time of trial she was unemployed. Fenney testified he prepared a profit and loss statement and that as a couple they ow ed between $350,000 and $400,000, and that their combined net wo rth was a negative $350,000 to $400,000. No further evidence was admitted in this regard, except fo r the stipulation of the parties that Baldwin’s testimony regarding net worth would be consistent with the testimony of Fenney.” The court explained, “There was no evidence to su ggest that the net worth of [the Tenants] was manipulated or failed to re flect the actual wealth of these defendants, who [were] heavily in debt and one of whom was unemploye d at the time of trial.”8 Third, the court determined the “punitive damages are excessive as a multiplier of the compensatory damages.” The court note d the jury awarded Gehlhar $15,000 compensatory and $100,000 punitive damages against Fenney and $5,000 compensatory and $100, 000 punitive damages against Bald win. This totaled $20,000 in compensatory damages and $200, 000 in punitive damages. Cl early, the jury applied a multiplier of 10. In addition to finding damages excessi ve, the court expressed dismay with the briefing, stating, “[t]he motion [for a new trial] contains a [m]emorandum of [p]oints and [a]uthorities spanning less th an a page and a half. There are no declarations or excerpts of trial testimony, and the summary of [the Tenants’] tes timony does not entirely comport with [the] [c]ourt’s recollection or no tes of the trial testimony (no transcript was apparently obtained). Perhaps this brevity was intended or perhaps it was occasioned by an effort to avoid costly legal fees; neverthe less, even with the lim itations of the filing, this [c]ourt finds there is merit to the ar gument that the award of punitive damages was excessive.” Moreover, the court clarified the lim ited basis for its decision to order a new trial. It explained the issue of excessive ness “was the sole basis for this motion and . . . for that reason it is the only ground being considered by the [c]ourt. In other words, the [c]ourt has not evaluated whether there was an insufficiency of th e evidence to justify the verdict, whether the comp ensatory damages were exce ssive, or any other ground [that] may be asserted under the law in support of a [m]otion for a [n]ew [t]rial. Although neither party requested that the [c ]ourt do so, the [c]ourt has considered whether a partial new trial should be grante d as an alternative. The [c]ourt has determined that as requested, a new trial as to the entire jury verdict should be granted. The [c]ourt is not conditioning this grant based on a remittitur, although it considered doing so. The parties are certain ly encouraged to meet and c onfer regarding settlement in light of this order.”9 After the court issued its ruling, th e Tenants filed an opposition to Gehlhar and Roman’s motion for attorney fees, arguing the motion was moot in light of the grant of a new trial. On February 7, 2013, the trial court agreed and denied the motion. Gehlhar and Roman appeal, the court’s orde rs mandating a new trial and denying their motion for attorney fees.
II A. General Law Regarding Motions for New Trial It is well settled that on “‘appeal fr om an order granting a new trial upon the ground of . . . excessive or inadequate damages, . . . such order shall be reversed as to such ground only if there is no substantia l basis in the record for any such reasons .’ (Italics added.)” ( Lane v. Hughes Aircraft Co . (2000) 22 Cal.4th 405, 412 ( Lane ), citing § 657.) “[A]n order granting a new trial under section 657 ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ [Citation.] Moreover, ‘[a]n abuse of
discretion cannot be found in cases in which th e evidence is in conflict and a verdict for the moving party could have been reached . . . .’ [Citation.] In other words, ‘the presumption of correctness norma lly accorded on appeal to th e jury’s verdict is replaced by a presumption in favor of the [n ew trial] order.’ [Citation.]” ( Lane, supra, 22 Cal.4th at p. 412.)
“The reason for this deference ‘is that the trial court, in ruling on [a new trial] motion, sits . . . as an independent trier of fact.’ [C itation.] Therefore, the trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate cour t would ordinarily accord a jury’s factual determinations. [¶] The trial court sits mu ch closer to the evid ence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the10 immediacy of being present at the trial, watc hing and hearing as th e evidence unfolds. The trial court, therefore, is in the best positio n to assess the reliability of a jury’s verdict and, to this end, the Legislature has grante d trial courts broad di scretion to order new trials. The only relevant limitati on on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial eviden ce in the record to support those reasons. [Citation.]” ( Lane, supra, 22 Cal.4th at p. 412; Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 710 ( Jones ).) B. Analysis Here, the court granted a new trial after concluding th e punitive damages award was excessive and it supported this deci sion with evidence introduced at trial of the Tenants’ meager financial status alon g with the guidelines for, and purpose of, punitive damages. Specifically, the court ba sed its decision to gr ant the motion on the uncontested testimony that during the year pr ior to trial the Tenant s’ combined income was between $120,000 and $130,000, they were indebted be tween $350,000 and $400,000, their combin ed net worth was a negative $350, 000 to $400,000, and Baldwin was unemployed at the time of trial. Evidence of a negative net worth was a valid reason for the court to hold the punitive damages award was excessive. We find Merlo v. Standard Life & Acc. Ins.
Co. (1976) 59 Cal.App.3d 5, 18 ( Merlo ), instructive. There the court upheld the trial court’s determination a punitive damages awar d was excessive as a matter of law. The court explained, “The primar y purpose of punitive damages is to punish the defendant and make an example of him. [Citations.] ‘It follows that the we althier the wrongdoing defendant, the larger the award of exemplary damages need be in order to accomplish the statutory objective.’ [Citation.] It also fo llows that the poorer the wrongdoing defendant11 the smaller the award of pun itive damages need be in orde r to accomplish the statutory objective. Here, the uncontradi cted evidence disclo se[d] that [the defendant’s] net worth was $1,607,721.01. Thus, the award of a half million dollars in punitive damages, disregarding the compensato ry damages award, constitute[d] almost one-third of
defendant’s net worth. The punitive damage award is so greatly disproportionate to [defendant’s] net worth that it is presump tively based upon passion or prejudice.” ( Ibid .)
The award in this case was even more disproportionate than in the Merlo
case because the Tenants had a negative net worth. The trial court reasonably concluded the $200,000 award was so gr eatly disproportionate to the Tenants’ net worth of negative $400,000 that the award was presumptiv ely based upon passion or prejudice. ( Merlo,

supra, 59 Cal.App.3d at p. 18.) We find no grounds to disturb the court’s conclusion regarding punitive damages. “Net worth generally is considered the best measure of a defendant’s ‘wealth’ for purposes of assessing pun itive damages. [Citation.]” ( Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.A pp.3d 381, 391 ( Devlin ).) The record shows the court properly carried out its statutory obligation by identifying a valid reason for a new trial and by pointing to substantial eviden ce in the record to support that reason. (§ 657.) The evidence regarding the Tenants’ financial st atus was undisput ed at trial and amply supports the court’s analysis. ( Jones , supra , 8 Cal.3d at p. 710 [order for new trial shall be reversed only if there is no substantia l basis in the record to support any of the reasons offered by the trial cour t in issuing the order]) However, our evaluation of the new trial order does not end here. We conclude that as a matter of law, the trial court should have limited its new trial order to the issue of punitive damages. The court’s order is not ambiguous. It unequivocally12 stated the sole ground for granting a new trial was th e same one raised in the moving papers, i.e., excessive punitive damages. The court expressly clarified it did not consider any other of the possible grounds for a ne w trial listed in section 657, such as insufficiency of the ev idence or excessive compensatory damages. Rather, it devoted several paragraphs to all the “reasons” su pporting the new trial ground of excessive punitive damages. 3 None of these reasons related to any issues or doubts regarding the Tenants’ underlying liability. 4 Thus, while a new trial wa s certainly warranted on the issue of punitive damages, the court offered no reason for retrying th e issue of liability or compensatory damages.
A similar issue arose in Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 455-456 ( Schelbauer ), where a trial court granted a new trial on all issues even though it had found error in only one aspect of the jury verdict. The plaintiff urged the Supreme Court to limit the new trial to th e sole contested issue, apportionment of liability. ( Ibid. ) The court agreed, holding, “A revi ewing court should not modify an order granting a new trial on all issues to one granting a limited new trial ‘unless such an order should have been made as a matter of law.’ [Citation.]” ( Id. at p. 456.) It reasoned, the new trial order “clearly indicates that the trial court (1) concurred with the jury’s special verdicts that [the manufacturer] was liable to some extent and that the total

3 The court concluded damages were ex cessive for the following reasons: (1) damages do not match the repreh ensibility of the Tenants’ co nduct; (2) disparity of harm; (3) the low amount of compensato ry damages; and (4) the Tena nts’ negative net worth.

4 A court may order an entire new trial when excessive or inadequate damages suggest liability was not clearly es tablished and a limited retrial would be prejudicial to either party. ( Liodas v. Sahadi (1977) 19 Cal.3d 278, 285-286 [partial new trial on damages prejudicial and ne w trial on all issues required]; Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608-609 [entire new tr ial warranted because low verdict indicated jury compromised because liability a close question].)13 damages sustained by [the plaintiff] were $865,000, and (2) disagr eed only with the jury’s apportionment of liability.” ( Ibid. ) The court then reviewed the trial evidence and
concluded sufficient evidence existed to support the liability findings. ( Id. at pp. 456-457.) The court concluded retria l on those issues was unnecessary because, “There is no reason to subject the parties and the courts to the expense and delay of retrial of those issues on which the ju ry and the trial court agreed and which are supported by
the evidence. . . . Acco rdingly, the new trial order is modi fied to limit the new trial to the issue of apportionment of liability.” ( Id. at p. 457.) Here, we do not have a transcript of the trial and therefore cannot independently review the record to determine if substantial evidence existed to support the liability finding or if th ere was evidence of a compro mised verdict. However, we
conclude under the circumstances of this case such a review is unne cessary. The court’s order referenced the Tenants’ liability. In evaluating punitive damages, the court weighed the reprehensibility of their mi sconduct against other factors. (See Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928 ( Neal ) [factors weighed in considering punitive damages include reprehen sibility of the conduct and ha rm actually caused].) It noted the basis for punitive damages c ould have been the oral or written misrepresentations. Although clearly opposed to the amou nt of punitive damages, the court’s order does not suggest the jury’s ve rdict on liability was suspect or required a retrial. The Tenants made no challenge to the jury’s finding they were liable to Gehlhar in their motion for new trial, and they made no appearance on appeal to argue this point. They have essentially conceded that the finding of their lia bility had ample support in the
evidence.14 In summary, since there appears to be no issue regarding the Tenants’ liability, the only remaining contested issue is the punitive damages award. The new trial order should be limited to this issue because “[ t]here is no reason to subject the parties and the courts to the expense and delay of retr ial of those issues on which the jury and the trial court agreed and which are supported by the evidence.” ( Schelbauer, supra , 35 Cal.3d at p. 457.) We note a partial new trial will not be prejudicial to the Tenants
because the court must allow ev idence before the second jury to determine the degree of reprehensibility of their acts (without revising the issue of whether they were liable). Although much of the same evidence might be presented at the retrial, this reason alone is not a reason to permit a trial on all issues. We conclude as a matter of law the court
should have limited its new trial or der to the issue of punitive damages. 5 C. Meritless Arguments Raised by Gehlhar/Romans i. Adequacy of the Record Gehlhar and Romans first argue, “[The Tenants] failed to provide the trial court with any record. Thus, the trial cour t necessarily abused its discretion by granting the motion [for a new trial] . . . .” They assert the “trial c ourt may have consulted its own notes taken during the trial, or it may have re lied solely on its memory . . . [but] [w]ithout any record, it cannot be ascertained whether th e [c]ourt’s notes or memories are accurate

5 We recognize Romans received no punitive damages award, however, the court exercised its authority a nd discretion under section 657 to order a new trial as to all parties. We find no reason to modify this por tion of the order. Gehlhar is the sole owner of Romans, and they provide no relevant authority to support the contention Romans need not participate in the new trial. For this reason, we c onclude the issue is waived. (See Badie v. Bank of America (1998) 67 Cal.App. 4th 779, 784-785 ( Badie ) [when appellant raises issue “but fails to suppor t it with reasoned argument and citations to authority, we treat the point as waived”]; see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [same].)15 or were even consulted. Rather than assert what it believed might be in the record, the trial court should have just denied the unsupported motion on that basis alone. To do
otherwise was an abuse of discretion . . . .” We find this claim somewhat ironic given that Gehlhar and Romans fail to provide this c ourt with any record of the trial. In any event, their conten tion lacks merit. Gehlhar and Romans’ argument, focusi ng on the inadequacy of the record supplied by the Tenants in support of their motion, is esse ntially an attack on the briefing. Not surprisingly, this same argument was rais ed below in their opposition to the new trial motion. The court considered and rejected this argument and in its ruling the court expressly acknowledged the Tenants’ motion c ontained “no declarati ons or excerpts of trial testimony” and, furthermore, did no t “entirely comport with [the] [c]ourt’s recollection or notes of the trial testimony.” In spite of these “limitations,” the court nonetheless found “merit to the argument that the award of punitive damages was excessive.” The trial court specifically re called Fenney’s testimony as to his and Baldwin’s financial condition, noting it found no reason to question the credibility of the
testimonial evidence. The c ourt commented there was no evid ence to “suggest that the net worth . . . was manipulated or failed to re flect the actual wealth of these defendants, who are heavily in debt.”
We conclude the Tenants’ failure to provide the court with a more robust record was not fatal to their argument. Th e court expressly stated the grounds for its decision to grant the motion and adequately anchored its reasoni ng to facts in the record. Nothing more was required. ( Romero v. Riggs (1994) 24 Cal.App.4th 117, 122 ( Romero ) [order granting new trial “will not be disturbed if it adequately refers to evidence in the record to support the action taken”].) Gehl har and Romans provide no support for their16 contention the court’s notes or its memory was inaccurate. We find not hing in the record (or case authority) supporting their theory a tr ial judge should not be permitted to rely on his or her recollection of the trial evidence, or it would be an abuse of discretion for a court to rely on its notes and memory. Simila rly, we found no authority or rational basis
to hold a trial court has no discretion to consider a poorly drafted motion. To the contrary, section 661 requires that a motion for new trial must be heard and determined by the judge who presided at trial. “The reason for this basic rule is obvious: ‘It needs no argument, we think, to prove that a judge who has heard the evidence, examined the witnesses, and made a study of the law applicab le to the facts in a case is best qualified to rule upon the weig ht and value of the testimony of such witnesses, as well as upon other questions presented by the motion and which were
involved in the trial of the action and to which the trial judge in most instances has given
his attention and studious consideration.’ [Citation.]” (Wegner et al., Cal. Practice
Guide: Civil Trials & Eviden ce (The Rutter Group 2013) ¶ 18:325, p. 18-69 (Wegner).) Section 661 supports the conclu sion a trial court is expected to rely on his or her notes
and recollection of the trial evidence when considering a motion for new trial. All the case authority provided by Ge hlhar and Romans on this issue is inapt. Those cases concerned whether the tr ial court sufficiently complied with section 657’s mandate to prepare an adequate statem ent of reasons when granting a new trial. (See Mercer v. Perez (1968) 68 Cal.2d 104, 108.) Thes e cases agree a trial court must refer to specific evidence “in th e record” rather than ultimate facts or legal issues. (See

e.g. Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal. 3d 359, 366 ( Scala ) [discussing intent underlying requirement of a sp ecification of reasons].) None of these cases held or suggested a trial court cannot look beyond the reco rd supplied by the moving party when17 making its “specification of reasons ” mandated by section 657. ( Scala, supra, 3 Cal.3d at p. 366

. ) ii. Court’s Authority to Grant A New Trial Gehlhar and Romans boldly assert th e court abused its discretion because trial courts have no authority to ever grant a complete new trial when only a partial new trial was requested. They are wrong. The sc ope of a trial court’s authority when ruling
on new trial motions is well esta blished. As stated by our Su preme Court, the trial court
has broad discretion under secti on 657 to decide whether a ne w trial shall be granted on some or all the issues. ( Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608 [appellate court has “jurisdiction to do no more than the trial court itself could have done” on the new trial motion]; Leipert v. Honold (1952) 39 Cal.2d 462, 467 [court concerned inadequate damages award result of jury compromise or bias and liability fi nding unreliable]; see also Wegner, supra, ¶ 18:424, p. 18-92 [c autions counsel seeking new trial on damages that court has power to grant a new trial on all issues, particularly where judge feels damage award represents a compromise verdict].) Noticeably absent from th e briefing is any menti on of the Supreme Court opinions or their progeny, relevant treatises, or the plain language of section 657 that clearly and broadly authorizes a trial court to set aside the judgment “in whole or in part” and to grant a new trial on “all or pa rt of the issues.” (See Wegner, supra , ¶ 18:423, p. 18-92.) For this reason, we find dising enuous Gehlhar and Romans’ sole reliance on Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593 ( Teitel ), to support their argument the court was limited to granting a pa rtial new trial on the issue of damages. They blatantly misstate the law and the holding of that case. They focus on that court’s18 holding: “[The] exclusive remedy for a tria l court to employ where some damages are properly awarded, but the amount is excessive [,] . . . is through a remittitur pursuant to . . . section 662.5.” ( Teitel, supra, 231 Cal.App.3d at pp. 1604-1605, fn. omitted

. ) This quotation, when read in context of the facts of that case, utterly fails to support their argument. Indeed, the case has nothing to do with limiting a trial court’s authority when ruling on a new trial motion.
In Teitel, a bank customer successfully sued a bank and was awarded $9,193.50 in general da mages and $500,000 in punitive damages. ( Teitel, supra, 231 Cal.App.3d at p. 1600.) The trial cour t denied the bank’s post-trial motions to alternatively reduce the amount of punitive da mages by a remittitur or grant a new trial. However, it granted the bank’s JNOV, and in so doing, reduced the punitive damages award from $500,000 to $50,000. ( Id. at pp. 1600-1601.) The Teitel court held the trial court erred in selecting the bank’s motion for JNOV as the vehicle by which to reduce the excessive punitive damages award, rather th an an order for a new trial subject to remittitur. ( Id. at p. 1606.) Enough said. iii. Were Punitive Damages Excessive Gehlhar and Romans next contend the trial court abused its discretion in finding the Tenants’ conduct “not sufficiently reprehensible to warrant the imposition of a substantial punitive damage[s] award.” (O riginal capitalization omitted.) Gehlhar and Romans contend punitive damages were warrante d because: (1) the Tenants could afford to pay the punitive damages aw ard over time; (2) the award amount was reasonable; and (3) the fraudulent conduct was reprehensibl e. As we will explain, they have misconstrued the court’s ruling and applicable case law.19 A punitive damages award is evaluated “u nder three criteria: the nature of the defendant’s wrongdoing; the actual harm to the plaintiff; and the defendant’s wealth. [Citations.]” ( Bankhead v. ArvinMeritor, Inc. (2012) 205 Cal.App. 4th 68, 77, fn. omitted ( Bankhead ).) A trial court reviews a motion cha llenging the excessiveness of a punitive damages award as a thirteenth juror, and is vested with the power, denied to reviewing courts, to weigh the evidence and resolve issues of credibility. ( Id. at pp. 76-77

. ) “The most important question [the trial court mu st decide] is whether the amount of the punitive damages award will have [a] deterren t effect—without being excessive. Even if an award is entirely reasonable in light of th e other two factors . . . the award can be so disproportionate to the defendant’s ability to pay that the award is excessive for that
reason alone .” ( Adams v. Murakami (1991) 54 Cal.3d 105, 111 ( Adams ).) “The purpose [of punitive damages] is to deter, not to destroy.” ( Id. at p. 112.) In this case, the court’s ruling was primarily based on its conclusion the award amount was disproporti onate to the Tenants’ ability to pay as measured by their
financial condition. Gehlhar and Romans ar gue the trial court only considered the Tenants’ negative net worth but should have focused on their “income flows and other factors indicating . . . ability to pay.” Not so. First, the court’s written ruling shows it considered not only the Tenant’s net worth, but also their co mbined income for the year preceding trial ($120,000), their debts (exc eeding $350,000), Baldwin’s approximate previous income ($2,000), alongside the fact she was unemployed at the time of trial.
The record demonstrates the court considered a range of financial indicators in addition to the Tenants’ negative net worth. Second, Gehlhar and Romans provide no case authority to support their contention the court abused its discretion by focusing on the Tenants’ net worth. “Net20 worth generally is considered the best measur e of a defendant’s ‘wealth’ for purposes of assessing punitive damages. [C itation.] . . . While the f unction of punitive damages will
not be served if the wealth of the defendant allows him to absorb the award with little or no discomfort, the function also will not be se rved by an award wh ich is larger than necessary to properly punish and deter. [Citations.]” ( Devlin, supra, 155 Cal.App.3d at p. 391.)
We turn next to Gehlhar and Roma ns’ argument and citations to case authority speaking to a “broad range of permissible ratios ” in support of the theory the jury’s punitive damages awar d should not be disturbed. However, Gehlhar and Romans
discount the role of the trial c ourt in determining if a damage award is appropriate. It is well settled the trial court is in a better pos ition than an appellate court to weigh the evidence, resolve issues of credibility, and determine whether a damage award is
excessive as a matter of law or in fluenced by passion or prejudice. ( Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1689.) We cannot reweigh the evidence. And as stated at the beginning of th is opinion, we find the record amply demonstrates the trial court, after reviewing the evidence, properly exercised its authority under section 657 to grand a new trial on the grounds the punitive damages award was grossly disproportionate to the Tenants’ ability to pay. In their next argument, Gehlhar and Romans assert the Tenants’ fraudulent conduct was reprehensible and th e evidence fully supports $20 0,000 in punitive damages. It is unclear if they are su ggesting the trial court wrongly determined the conduct was irreprehensible, or if they are complaining th at court failed to we igh the reprehensibility of the conduct more heavily. In either case, the contentions are meritless. The first of21 these arguments misconstrues the court’s findings, while the second misconstrues the applicable law. Starting with the first contention, we have carefully reviewed the record and found nothing suggesting the court ruled the Tenants’ misconduct was irreprehensible or did not warra nt punitive damages. We recognize that at one point the
court indicated it was “not clear” from the special verdict whethe r the jury based the award on the Tenants’ “intentional misrepre sentations” about paying rent or other misconduct, i.e., elder abuse. This comment was likely based on the way the special verdict forms were worded, but since the forms were not included in appellant’s appendix for us to review, we cannot know for sure. In any event, we have no reason to construe the court’s observations about the verdict as meaning it believed the Tenants’ were
blameless. To do so we wo uld have to ignore the rest of the minute order that plainly
shows the court determined th e Tenants’ conduct had some degree of reprehensibility, but that weighed agai nst other factors, the punitive damages award was excessive. For example, the court explained it to ok “into account the guidelines under the applicable case law for de termining on the one hand, the degree of reprehensibility of the misconduct . . . and on the other hand, the disparity between the harm suffered by . . . Gehl[h]ar and the size of the punitive damages award.” This statement shows the court appropriately questioned whether the degr ee of wrongdoing warra nted $200,000 in punitive damages when weighed against the amount of compensatory damages ($20,000)
and the Tenants’ unfortuna te financial condition. Alternatively, it appears from the opening brief Gehlhar and Romans
believe the trial court abused its discretion by failing to weigh the re prehensibility of the misconduct more heavily. They assert “‘the degr ee of reprehensibility of the conduct’” is22 the “‘most important’” factor and the Tena nts’ motion failed prove the jury wrongly decided this issue. (Citing Bankhead, supra, 205 Cal.App.4th at p. 85.) After restating the evidence supporting the elder abuse verd ict, they assert punitive damages were warranted “to deter such reprehensible conduc t in the future.” They have misconstrued
the case law. As stated earlier, there are three crite ria for evaluating p unitive damages, all related to the purpose of punitive damages, wh ich is to punish the wrongdoer and protect the public from future misconduct. ( Adams, supra, 54 Cal.3d at pp. 111-112.) Our Supreme Court has explained, “[T]he most important question is whether the amount of the punitive damages award will have deterrent effect—without being excessive. Even if an award is entirely reasonable in light of the other two factors . . . (nature of the misconduct and amount of compensatory damage s), the award can be so disproportionate to the defendant’s ability to pa y that the award is excessive for that reason alone .” ( Id. at p. 111, first italics added, second italics orig inal.) “The reviewing court must consider
the amount of the award in light of the relevant facts. The nature of the inquiry is a comparative one. Deciding in the abstract whether an award is ‘excessive’ is like deciding whether it is ‘bigger,’ withou t asking ‘bigger than what?’” ( Id. at p. 110.) To support their argument, Gehlhar and Romans once again misconstrue the relevant case authority. For example, they cite to our Supreme Court’s statement in Neal, supra, 21 Cal.3d at page 928, that “the more reprehensible the act, the greater the appropriate punishment, assuming all other fact ors are equal. [Citations.]” However, the quote is taken out of context. The Suprem e Court did not suggest misconduct is the most important factor. Rather it held, “ One factor is the particular nature of the defendant’s acts in light of the whole record; clearly, di fferent acts may be of varying degrees of23 reprehensibility, and the more reprehensibl e the act, the greater the appropriate punishment, assuming all other factors are equal . [Citations.] Another relevant yardstick is the amount of compensatory damages awarded; in general, even an act of considerable reprehensibility w ill not be seen to justify a pr oportionally high amount of punitive damages if the actual harm suffe red thereby is small. [Citation.] Also to be
considered is the wealth of the particular defe ndant; obviously, the f unction of deterrence [citation], will not be served if the wealth of the defendant allows him to absorb the
award with little or no disc omfort. [Citations.]” ( Id. at p. 928, italics added.) Certainly a high degree of repreh ensibility is an important indication punitive damages are reasonable. ( Bankhead, supra, 205 Cal.App.4th at pp. 84-85.) But we found no authority suppor ting the contention it is the mo st important factor. (See
Burnett v. Nationa l Enquirer, Inc. (1983) 144 Cal.App.3d 991 [although defendant’s misconduct was reprehensible, punitive dama ges reduced because award constituted too great a portion of the defendant ’s net worth and income].) In conclusion, we find the tria l court properly considered the reprehensibility of the conduct and the disparity between the harm suffered and the size of the punitive damages award. Weighing this information along with testimonial evidence of Fenney’s and Ba ldwin’s financial condition, the court found the award grossly excessive in light of the purpose of punitive damages awards as well as excessive as a multiplier of compensatory damages. The trial court was simply not required to weigh the reprehensibility of the conduct more heavily th an Fenney’s and Baldwin’s
financial condition when it examined th e jury’s punitive damages award. ( Adams, supra, 54 Cal.3d at pp. 111-112.)24 iv. Motion for Attorney Fees
The trial court denied Gehlhar and Romans’ motion for attorney fees on grounds the grant of a new trial precludes the ex istence of a prevailing party. In passing, Gehlhar and Romans argue the trial court ab used its discretion when it denied their motion for attorney fees. Th e argument is devoid of any reasoned legal analysis or citation to authorities. Accordingly, we consider the point waived. ( Badie, supra, 67 Cal.App.4th at pp. 784-785.)
III The postjudgment order granting a new tr ial is modified to limit retrial to the issue of punitive damages. The tria l court shall conduct further proceedings consistent with the view expressed in th is opinion. The postjudgment order denying attorney fees is affirmed. In the interests of justice a nd because appellants failed to follow basic rules of appellate procedure, an d the briefing did not assist the court, we award no costs to appellants on this appeal.

O’LEARY, P. J.

WE CONCUR:

RYLAARSDAM, J.

ARONSON, J.