What is the effect of a decision by the Court of Appeal on a motion for a retrial where new evidence has not been presented?

3 The existence or nonexistence of new evidence is not directly relevant to the determination of a prior court's intent, since there is no occasion to present new evidence until after that court reaches its decision. It is relevant, however, to a consideration whether retrial would serve any purpose. Under the doctrine of law of the case, the effect of an appellate decision that the trial court judgment was not supported by sufficient evidence is conclusive in further litigation unless evidence is produced at a subsequent trial which is "materially," "essentially," or "substantially" different from that passed upon in the first appeal. (Estate of Baird (1924) 193 Cal. 225, 236, 223 P. 974; In re Marriage of Steinberg (1977) 66 Cal.App.3d 815, 821, 136 Cal.Rptr. 299; Stromer v. Browning, supra, 268 Cal.App.2d at p. 521, 74 Cal.Rptr. 155.) Evidence merely cumulative to that previously presented is not sufficient to avoid the law of the case. (Estate of Baird, supra, 193 Cal. at p. 245, 223 P. 974.)