California Court of Appeal Aug 20, 2013 No. B236626Published
Filed 7/24/13; pub. order 8/20/13 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NADJA RAYII, B236626
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. PC042687) v.
MELVIN OVIDIO GATICA et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of Los Angeles County, Melvin D. Sandvig, Judge. Affirmed. R. Rex Parris Law Firm, R. Rex Parris and James P. Fowler; Liddy Law Firm and Donald G. Liddy for Plaintiff and Appellant. Murchison & Cumming, Edmund G. Farrell III; Hunter, Molloy & Salcido and Richard Salcido for Defendant and Respondent Melvin Ovido Gatica. Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Lane J. Ashley, Caroline E. Chan; Kramer & Kramer and Mark D. Kramer for Defendant and Respondent Carlos Seciada. Horvitz & Levy, David M. Axelrad, Daniel J. Gonzalez; and J. Dean Rice for Defendant and Respondent Gateway Insulation, Inc. _______________________________________
Nadja Rayii suffered injuries when a car being driven by Melvin Ovidio Gatica
collided head-on with the car she was driving. She appeals a judgment after a jury trial
and the denial of her motion for judgment notwithstanding the verdict. She challenges
the jury‘s finding that Gatica was not acting in the course and scope of his employment
for Gateway Insulation, Inc. (Gateway), at the time of the collision; the denial of relief
against Carlos Seciada, who she contends was the registered owner of the car driven by
Gatica; and the denial of her new trial motion on grounds of attorney misconduct,
irregularity in the proceedings and inadequate damages. We conclude that she has
shown no prejudicial error and will affirm the judgment and the denial of her motion for
Gatica was driving a 1991 Honda Accord southbound on a two-lane road near
Newhall on May 3, 2006, at approximately 5:26 p.m. when he crossed the
double-yellow center line while negotiating a curve and crashed head-on into Rayii,
who was traveling northbound. Rayii suffered a fractured vertebra, fractured ribs,
a bruised knee and other injuries. She was approximately 61 years old at the time.
Gatica was employed by Gateway at its warehouse in Valencia at the time of the
collision. His supervisor had sent him to a jobsite in Valencia, and he was returning
from the jobsite at the time of the collision. The evidence is conflicting as to whether he
was driving home or returning to the warehouse. Gatica purchased the Accord from his
2
friend, Seciada, the day before the collision. He was not licensed to drive in California
and had never driven in the United States before the day he purchased the car.
2. Trial Court Proceedings
Rayii filed a complaint against Gatica and Seciada in April 2008 alleging a single
count for negligence. She substituted Gateway for a fictitious defendant in December
2009. A jury trial commenced in June 2011. Rayii moved for a directed verdict against
Gateway arguing that the evidence compelled the conclusion that Gatica was returning
from a ―special errand‖ for Gateway, his employer, at the time of injury and therefore
was acting within the scope of his employment. The trial court denied the motion.
The jury returned a special verdict finding that Gatica was negligent, that his
negligence was a substantial factor in causing harm to Rayii, that he was not acting in
the course and scope of his employment at the time of injury, that Gateway did not
negligently hire or supervise Gatica and that Seciada was not an owner of the vehicle at
the time of injury.1 The jury also found that Rayii‘s damages were $100,000, consisting
of $60,000 for ―Past Harm and Loss, including physical pain, mental suffering, loss of
enjoyment of life, loss of health, and loss [sic] independence,‖ $13,000 for ―Future
Harm and Loss, including physical pain, mental suffering, loss of enjoyment of life, loss
of health, and loss [sic] independence,‖ and $27,000 for future medical expenses. The
1 The special verdict form instructed the jury to skip the further questions relating to negligent entrustment if it found that Seciada was not an owner of the vehicle at the time of injury. Accordingly, the jury did not answer the question whether Seciada knew or should have known that Gatica was unfit to drive.
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jury wrote on the verdict form that the $60,000 figure ―includes reimbursement for
$45,000 out of pocket expense.‖
The trial court entered a judgment on the special verdict on July 13, 2011,
awarding Rayii a total of $100,000 in damages against Gatica and awarding her no
relief against Seciada and Gateway.
Rayii moved for a new trial on grounds of inadequate damages, insufficiency of
the evidence to support the findings that Gatica was not acting in the course and scope
of his employment and that Seciada was not an owner of the vehicle at the time of
injury, and irregularity in the proceedings. She also moved for judgment
notwithstanding the verdict as to Gateway. The trial court denied the motions. Rayii
timely appealed the judgment and the denial of her motion for judgment
notwithstanding the verdict.
CONTENTIONS
Rayii contends (1) the evidence compels the conclusion as a matter of law that
Gatica was acting in the course and scope of his employment for Gateway at the time of
the collision, so the denial of her motion for judgment notwithstanding the verdict was
error; (2) Seciada is liable as the registered owner of the Accord at the time of the
collision; (3) Seciada is liable for negligent entrustment; (4) Gateway‘s counsel
committed attorney misconduct in opening statement; (5) the calling of three of the
defendants‘ expert witnesses out of order and a statement made by Dr. Klapper deprived
her of a fair trial; (6) the award of future economic damages is inadequate; and (7) the
past and future noneconomic damages awarded are inadequate.
4
DISCUSSION
1. Rayii Has Not Shown that Gatica Was Acting in the Course and Scope of his Employment at the Time of Injury
Rayii contends there is no substantial evidence to support the jury‘s finding that
Gatica was not acting in the course and scope of his employment at the time of the
collision and the evidence compels the conclusion as a matter of law that he was acting
in the course and scope of employment. She argues that this is so because the evidence
shows that Gatica was returning to Gateway‘s warehouse in Valencia from the jobsite in
Lancaster. She also argues that the evidence shows that Gatica was on a ―special
errand‖ for his employer, so he was acting in the course and scope of employment
regardless of whether he was returning to the warehouse. Rayii cites Gatica‘s testimony
that he was returning to the warehouse and other evidence to this effect and cites
evidence that he was on a special errand, but she fails to cite and discuss contrary
evidence in the record.
An appealed judgment is presumed correct, and the appellant must affirmatively
demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant
challenging the sufficiency of the evidence to support the judgment must cite the
evidence in the record supporting the judgment and explain why such evidence is
insufficient as a matter of law. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887;
Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.) An appellant who fails to cite
and discuss the evidence supporting the judgment cannot demonstrate that such
evidence is insufficient. The fact that there was substantial evidence in the record to
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support a contrary finding does not compel the conclusion that there was no substantial
evidence to support the judgment. An appellant, such as Rayii, who cites and discusses
only evidence in her favor fails to demonstrate any error and waives the contention that
the evidence is insufficient to support the judgment. (Marriage of Fink, supra, at
p. 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Accordingly, we
conclude that substantial evidence supports the finding that Gatica was not acting in the
course and scope of his employment at the time of injury and that Rayii has shown no
error.
In any event, Gatica testified that he arrived at the warehouse in Valencia that
morning at 5:30 a.m. His supervisor sent him to Lancaster at about 10:00 a.m. The
collision occurred at 5:26 p.m. on his return trip on a road that he would have taken to
go either home or to the warehouse. His supervisor testified that he did not require or
expect Gatica to return to the warehouse if he finished a job late in the afternoon, that
Gatica would have called if he planned to return to the warehouse and that Gatica did
not call him that afternoon. His supervisor also testified, contrary to Gatica‘s testimony,
that there was no company policy requiring workers to return to the warehouse at the
end of the workday. We conclude that the jury reasonably could find based on this
evidence that Gatica was not returning to the warehouse at the time of the collision, but
instead was going home. The evidence also shows that Gatica worked both at the
warehouse and occasionally as an installer at jobsites. We conclude that the jury
reasonably could find based on this evidence that the Lancaster job was not an
extraordinary ―special errand,‖ but instead was part of Gatica‘s routine work duties.
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2. Rayii Cannot Argue for the First Time on Appeal that Seciada Is Liable as the Registered Owner
The jury found that Seciada was not an owner of the Accord at the time of injury,
as stated. Rayii does not challenge the sufficiency of the evidence to support this
finding.2 Instead, she argues for the first time on appeal that Seciada is liable as the
registered owner of the vehicle at the time of injury pursuant to Vehicle Code
section 17150. Rayii did not assert this theory of liability at trial or in her new trial
motion.
An appellate court generally will not consider a new theory of liability for the
first time on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869,
874.) We have the discretion to consider for the first time on appeal an issue of law
based on undisputed facts, but we will not consider a new issue where the failure to
raise the issue in the trial court deprived an opposing party of the opportunity to present
relevant evidence. (Ward v. Taggart (1959) 51 Cal.2d 736, 772; Richmond, supra, at
p. 879.)
Vehicle Code section 17150 states, ―Every owner of a motor vehicle is liable and
responsible for death or injury to person or property resulting from a negligent or
wrongful act or omission in the operation of the motor vehicle, in the business of the
owner or otherwise, by any person using or operating the same with the permission,
express or implied, of the owner.‖ The owner‘s liability under the statute for death or
2 Gatica testified that he purchased the Accord from Seciada two days before the collision. No conflicting evidence was presented at trial.
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injury to one person is limited to $15,000. (Id., § 17151, subd. (a).) For purposes of the
statute, the transfer of ownership to a motor vehicle is effective only if (1) the transferor
has endorsed and delivered to the transferee the certificate of ownership, and the
transferee has delivered the certificate to the Department of Motor Vehicles (DMV) or
placed it in the United States mail addressed to the DMV; or (2) the transferor has
delivered to the DMV or placed in the United States mail addressed to the DMV the
appropriate registration or transfer documents. (Id., §§ 5600, subd. (a), 5602.)
Seciada did not testify at trial, and the evidence does not conclusively show
whether he did or did not timely deliver or mail the appropriate transfer documents to
the DMV. Although Gatica testified that he never received or completed any paperwork
in connection with the sale, this does not preclude the submission of paperwork by
Seciada directly to the DMV. The traffic collision report completed by a California
Highway Patrol officer stating that Seciada was the owner of the vehicle also fails to
conclusively establish that fact, and the officer did not testify on the source of that
information. If the significance of the issue had been apparent at trial, it seems likely
that further evidence could have been presented as to the DMV‘s records. We therefore
conclude that the evidence does not conclusively establish Seciada‘s liability as the
registered owner and that this issue cannot be raised for the first time on appeal.
3. Rayii Has Shown No Error with Respect to Negligent Entrustment
Rayii contends Seciada is liable for negligent entrustment because Gatica was
unfamiliar with the rules of the road and was unfit to drive and Seciada should have
known that. Rayii does not explain how the trial court or the jury purportedly erred but
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appears to argue that the evidence compels the conclusion that Seciada was negligent in
entrusting the vehicle to Rayii. She cites evidence that Gatica was unfit to drive, but
cites no evidence that Seciada knew or should have known that.
The trial court instructed the jury that Seciada could be liable for negligent
entrustment only if he owned the vehicle at the time of injury. The jury did not decide
whether Seciada knew or should have known that Gatica was unfit to drive because the
special verdict form instructed the jury to skip that question if it found that Seciada was
not an owner of the Accord. Rayii does not challenge the special verdict form, has
shown no error in the finding that Seciada was not an owner and therefore has shown no
error in the jury‘s failure to find that Seciada knew or should have known that Gatica
was unfit to drive. Moreover, Rayii‘s perfunctory argument fails to show that the
evidence compels the conclusion as a matter of law that Seciada knew or should have
known that Gatica was unfit to drive.
4. Rayii Failed to Preserve Her Claim of Attorney Misconduct
Rayii contends statements made by Gateway‘s counsel in opening statement
violated an order on her motion in limine and constituted attorney misconduct justifying
a new trial. Rayii filed a motion in limine to preclude any evidence of or reference to
Gateway‘s ―solvency, bankruptcies, judgments, or other debts of any kind.‖ Gateway‘s
counsel argued at the hearing on the motion that he was not aware of any bankruptcy
but that the jury might wonder why other employees from Gateway‘s Valencia branch
were not testifying at trial. He argued that it was appropriate to briefly explain to the
jury that the Valencia branch had closed ―because anybody in the construction business
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such as Gateway, they are now down to one branch.‖ The trial court stated that it would
grant the motion, ―but they can discuss downsizing of the company or that that branch
no longer exists or something to that effect if it comes out.‖
Rayii‘s counsel then argued, ―We‘re just concerned about the suggestion that
maybe they‘re not doing well financially. So if they want to say that branch is no longer
operating, I don‘t have a problem with that. But if they want to say it in the context of
we‘re not doing well because construction is down, I think that‘s improper.‖ Gatica‘s
counsel suggested that ―they be allowed to say it‘s closed but not give a reason for it.‖
The trial court stated, ―That‘s fine.‖
Gateway‘s counsel stated in opening statement that at the time of the collision
Gateway had 127 employees in four different branches, but at the time of trial it had
only 25 employees and a single branch in Corona. He referred to the economy and its
impact on the construction industry, stating, ―if we fast-forward five years into the
economy we‘re in today, they now have—Corona is the only office left. And they
employ about 25 people. So if you‘re wondering why we don‘t have more witnesses
here, it‘s because this company has shrunk over the years as has been the case with the
construction business.‖ Rayii‘s counsel did not object at the time or request an
admonition to the jury.
Rayii‘s counsel argued the following day that it was improper for Gateway‘s
counsel to mention downsizing because of the economy. The trial court stated, ―Well,
that‘s already done. We‘re not going to go into that anymore anyway, right?
Everybody agree?‖ The court stated further, ―Nobody is going to go into that area,
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insurance, downsizing. Whatever‘s been said has already been said. I understand
[plaintiff‘s counsel]. He doesn‘t want anything else to come up, like what you brought
out about the downsizing or about insurance, which is understandable.‖3 Again, Rayii‘s
counsel did not request an admonition to the jury.
Attorney misconduct is a ground for a new trial (Code Civ. Proc., § 657,
subd. (1)). (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.) Attorney
misconduct can justify a new trial only if it is reasonably probable that the party moving
for a new trial would have obtained a more favorable result absent the misconduct.
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802 (Cassim); Decker, supra, at
p. 872.)
A party ordinarily cannot complain on appeal of attorney misconduct at trial
unless the party timely objected to the misconduct and requested that the jury be
admonished. (Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892.) The purpose of these
requirements is to allow the trial court an opportunity to remedy the misconduct and
avoid the necessity of a retrial; a timely objection may prevent further misconduct, and
an admonition to the jury to disregard the offending matter may eliminate the potential
prejudice. (Cassim, supra, 33 Cal.4th at pp. 794-795; Horn v. Atchinson,
T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610.) The failure to timely object and request
an admonition waives a claim of error unless the misconduct was so prejudicial that it
could not be cured by an admonition (People v. Cunningham (2001) 25 Cal.4th 926,
3 Rayii‘s counsel also complained to the trial court that Gateway‘s counsel had improperly referred to insurance in opening statement.
11
1000-1001; Whitfield, supra, at p. 892), an objection or request for admonition would
have been futile (People v. Hill (1998) 17 Cal.4th 800, 820) or the court promptly
overruled an objection and the objecting party had no opportunity to request an
admonition (Cassim, supra, at pp. 794-795). Attorney misconduct is incurable only in
extreme cases. (Horn, supra, at p. 610; see, e.g., Simmons v. Southern Pac.
Rayii did not timely object to the statements made by Gateway‘s counsel in
opening statement, but instead raised the issue for the first time the following day. Even
then, Rayii did not request an admonition to the jury, but instead seemed content to rely
on the trial court‘s admonition to opposing counsel. Rayii has not shown that the
purported misconduct was so persistent or egregious as to justify the conclusion that it
was incurable. We conclude that Rayii‘s failure to timely object and request an
admonition to the jury precludes our consideration of the point on appeal.
5. Rayii Has Not Shown that the Calling of Defense Witnesses Out of Order or Statements Made by Dr. Klapper Deprived Her of a Fair Trial
a. Order of Proof
Rayii contends the calling of three of the defendants‘ expert witnesses out of
order and a statement made by Dr. Klapper deprived her of a fair trial. The trial court
granted a request by Seciada‘s counsel to call Dr. Klapper, an orthopedic surgeon, to
testify out of order during plaintiff‘s case-in-chief in order to accommodate his family
vacation plans, over plaintiff‘s objection. Dr. Klapper was the third witness to testify at
trial and interrupted the testimony by Rayii‘s son. Dr. Klapper testified that he believed
12
that Rayii bruised her knee in the collision but that the bruise had healed, that other
injuries to her knee did not result from the collision and that Rayii‘s proposed life care
plan included medical care that either was not needed or related to injuries that did not
result from the collision.
Rayii later agreed to allow Gateway to call Dr. Sam Maywood, an
anesthesiologist who also had family vacation plans, to testify out of order during
plaintiff‘s case-in-chief. Dr. Maywood testified on Rayii‘s proposed life care plan. The
trial court also allowed Seciada‘s counsel to call Dr. Amy Sutton, a psychologist, to
testify out of order due to her family vacation plans, over plaintiff‘s objection.
Dr. Sutton proposed an alternative life care plan and interrupted the testimony by
plaintiff‘s expert witness Sandra Callaghan, who presented Rayii‘s proposed life care
plan. Rayii objected to further interrupting her case-in-chief, particularly after
Dr. Maywood‘s testimony out of order.
Code of Civil Procedure section 607 prescribes the order of proceedings at trial,
―unless the court, for special reasons otherwise directs.‖ Evidence Code section 320
states that the court has the discretion to regulate the order of proof: ―Except as
otherwise provided by law, the court in its discretion shall regulate the order of proof.‖
Accordingly, we generally review a trial court‘s ruling as to the order of proof at trial
for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 207.) Specifically,
the court exercises discretion in ruling on a request to call a witness out of order, and its
ruling will not be disturbed absent a clear showing of abuse of discretion. (Estate of
Lefranc (1950) 95 Cal.App.2d 885, 887-888.)
13
―An abuse of discretion occurs if, in light of the applicable law and considering
all of the relevant circumstances, the court‘s decision exceeds the bounds of reason and
results in a miscarriage of justice. [Citations.] This standard of review affords
considerable deference to the trial court provided that the court acted in accordance with
the governing rules of law. We presume that the court properly applied the law and
acted within its discretion unless the appellant affirmatively shows otherwise.
[Citations.]‖ (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.)
Rayii argues that the calling of the three defense witnesses out of order and
particularly the interruption of Callaghan‘s testimony on Rayii‘s proposed life care plan
―caused a great deal of prejudice to the Plaintiff and resulted in an insufficient verdict.‖
Her argument is conclusory and fails to adequately explain why the decision to allow
the witnesses to testify out of order was an abuse of discretion in light of the alternatives
facing the trial court at the time. We conclude that the trial court acted within its
discretion by allowing the witnesses to testify out of order so as to avoid having to
continue the trial date, force the witnesses to cancel their vacation plans or forego their
testimony. Rayii has shown no error.
b. Dr. Klapper’s Statements
Rayii also argues that statements made by Dr. Klapper on cross-examination
suggested that Rayii was faking her injuries and that everyone‘s insurance rates would
increase if she succeeded on her claim for damages. She argues that the statements
were improper and prejudicial and should have been stricken.
14
Rayii‘s counsel asked Dr. Klapper a series of questions about his annual income
from testifying in court and his planned trip to Hawaii. The trial court sustained
objections to those questions as irrelevant and argumentative. The questioning and
testimony proceeded:
Plaintiff‘s counsel: ―$600,000, the money you make testifying, how does that
help patients?‖
Dr. Klapper: ―Well, first of all, I have to pay my staff, so I don‘t—‖
Plaintiff‘s counsel: ―That‘s not my question. How does it help patients?‖
Dr. Klapper: ―It keeps people from being abused in accidents where a lawyer
can say they are badly injured, which will increase the insurance that all of us have to
pay. When there is real pathology, it‘s justified. But where there is not real pathology,
each and every one of these folks is a potential patient.‖
Plaintiff‘s counsel: ―Move to strike as nonresponsive.‖
The court: ―Overruled.‖
―A witness must give responsive answers to questions, and answers that are not
responsive shall be stricken on motion of any party.‖ (Evid. Code, § 766.) A motion to
strike must be timely made and must clearly state the specific ground for the motion.
(Id., § 353, subd. (a).) Moreover, ―[a] motion to strike must be directed with precision
to the matter sought to be stricken. [Citation.] A motion to strike out inadmissible
evidence may properly be denied where it is general and embraces evidence which is
admissible as well as that which is inadmissible. [Citations.]‖ (Rose v. State of
California (1942) 19 Cal.2d 713, 742; see 3 Witkin, Cal. Evidence (4th ed. 2000)
15
Presentation at Trial, § 383, pp. 475-476.) If part of the answer is responsive and part is
nonresponsive, the moving party must specify the nonresponsive part, and a motion to
strike the entire answer as nonresponsive may properly be denied. (Bates v. Newman
(1953) 121 Cal.App.2d 800, 804.)
We can reverse a judgment based on the erroneous admission of evidence only if
it is reasonably probable that the appellant would have obtained a more favorable result
absent the error, so the error resulted in a miscarriage of justice. (Cal. Const., art. VI,
§ 13; Evid. Code, § 353, subd. (b); People v. Richardson (2008) 43 Cal.4th 959, 1001.)
We need not decide whether Dr. Klapper‘s answer was nonresponsive in its
entirety because we conclude that Rayii has failed to show any likely prejudice.
Dr. Klapper testified that he believed that Rayii suffered a bruised knee as a result of the
collision and that he was not suggesting that she was faking her injuries. He provided
medical reasons for his conclusion that the more serious injuries to her knee predated
the collision. The trial court instructed the jury not to consider insurance and that the
presence or absence of insurance was totally irrelevant, and we presume that the jury
followed the instructions absent some indication to the contrary. (Cassim v. Allstate Ins.
Co., supra, at pp. 803-804.) In light of the evidence and the instructions, we conclude
that any error in the denial of the motion to strike was nonprejudicial.
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6. The Damages Are Not Inadequate
a. Future Economic Damages
Rayii contends the award of only $27,000 in future economic damages is
inadequate in light of the evidence of her need for future medical care. The trial court
denied Rayii‘s motion for a new trial on this ground.
―Code of Civil Procedure section 657 states: ‗A new trial shall not be granted
upon the ground of insufficiency of the evidence to justify the verdict or other decision,
nor upon the ground of excessive or inadequate damages, unless after weighing the
evidence the court is convinced from the entire record, including reasonable inferences
therefrom, that the court or jury clearly should have reached a different verdict or
decision.‘ A trial court has broad discretion in ruling on a new trial motion, and the
court‘s exercise of discretion is accorded great deference on appeal. (City of
Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872 [135 Cal.Rptr. 647, 558 P.2d
545].) An abuse of discretion occurs if, in light of the applicable law and considering
all of the relevant circumstances, the court‘s decision exceeds the bounds of reason and
results in a miscarriage of justice. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479
[243 Cal.Rptr. 902, 749 P.2d 339]; Denham v. Superior Court (1970) 2 Cal.3d 557, 566
[86 Cal.Rptr. 65, 468 P.2d 193].) Accordingly, we can reverse the denial of a new trial
motion based on insufficiency of the evidence or [inadequate or] excessive damages
only if there is no substantial conflict in the evidence and the evidence compels the
conclusion that the motion should have been granted.‖ (Fassberg Construction Co. v.
Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 751-752.)
17
Defendants presented evidence that Rayii had osteoarthritis throughout her body
and a meniscal degenerative tear in her knee before the collision. They also elicited
testimony on cross examination that a compression fracture in her vertebra and rib
fractures that she suffered as a result of the accident had healed at the time of trial.
Other evidence indicated that she suffered trauma to her back in November 2009, more
than three years after the collision, and Rayii acknowledged that she ―may have fallen‖
at that time. Rayii fails to acknowledge or discuss this evidence and other evidence
tending to show that the majority of any future medical care needed did not relate to
injuries suffered in the collision and that much her proposed future medical care was not
needed. We need not discuss that evidence in detail. We conclude that the evidence
was in substantial conflict and that Rayii has shown no abuse of discretion in the denial
of her new trial motion on the ground of inadequate damages with respect to future
medical expenses.
b. Past and Future Noneconomic Damages
Rayii contends the awards of only $15,000 in past noneconomic damages and
$13,000 in future noneconomic damages are inadequate in light of the evidence.4 The
trial court denied Rayii‘s motion for a new trial on this ground.
4 Rayii argues that the jury‘s interlineation on the verdict form indicates that it awarded only $15,000 for past noneconomic damages and $45,000 for past medical expenses, despite the fact that she did not seek a recovery of past medical expenses. We need not decide the point because we conclude that Rayii has shown no abuse of discretion regardless of whether the jury awarded $15,000 or $60,000 in past noneconomic damages.
18
The amount of noneconomic damages to award for pain and suffering is
a subjective determination that is particularly within the discretion of the jury.
(Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 893.) The evidence of
Rayii‘s preexisting conditions and other medical conditions unrelated to the collision, if
credited by the jury, tends to show that the majority of her past and future pain and
suffering is unrelated to the collision. Again, Rayii fails to discuss that evidence. We
conclude that the evidence was in substantial conflict and that Rayii has shown no abuse
of discretion in the denial of her new trial motion on the ground of inadequate damages
with respect to past and future noneconomic damages.
DISPOSITION
The judgment and the order denying the motion for judgment notwithstanding
the verdict are affirmed. Defendants are entitled to recover their costs on appeal.
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
ALDRICH, J.
19
Filed 8/20/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NADJA RAYII, B236626
Plaintiff and Appellant, (Los Angeles County Super. Ct. No. PC042687) v. ORDER CERTIFYING OPINION MELVIN OVIDIO GATICA et al., FOR PUBLICATION [NO CHANGE IN JUDGMENT] Defendants and Respondents.
THE COURT:
The opinion in the above-entitled matter filed on July 24, 2013, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
[There is no change in the judgment.]
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment and the denial of the motion for judgment notwithstanding the verdict, holding that the appellant failed to demonstrate prejudicial error regarding the jury's findings on employment scope, vehicle ownership, attorney misconduct, or evidentiary rulings.
Issues
Whether the evidence compelled a finding that the driver was acting within the scope of his employment as a matter of law.
Whether the trial court erred in denying a new trial based on attorney misconduct and evidentiary rulings.
Whether the trial court abused its discretion in allowing defense experts to testify out of order.
Whether the damages awarded were inadequate as a matter of law.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“An appealed judgment is presumed correct, and the appellant must affirmatively demonstrate error.”
“An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient.”
“We conclude that she has shown no prejudicial error and will affirm the judgment and the denial of her motion for judgment notwithstanding the verdict.”