California Court of Appeal Sep 13, 2021 No. E071558Unpublished
Filed 9/13/21 Ramirez v. Barajas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
FRANCISCO ROMEO RAMIREZ,
Plaintiff and Appellant, E071558
v. (Super.Ct.No. CIVDS1516561)
ISAOLE BARAJAS et al., OPINION
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed; cross-appeal dismissed.
Wilshire Law Firm and Daniel B. Miller for Plaintiff and Appellant, Francisco
Romeo Ramirez.
Kinkle, Rodiger and Spriggs, Scott B. Spriggs, and Ronald R. Carlson for
Defendants and Appellants, Isaole Barajas and Star Auto Parts, Inc.
1
Plaintiff Francisco Ramirez appeals from the judgment after a jury trial on his
personal injury claim. Plaintiff sued Isaole Barajas and her employer, Star Auto Parts,
Inc., (defendants) for $1.4 million in damages after Barajas rear-ended another person’s
car, causing it to hit the back of his pickup truck. Defendants admitted negligence but
contested causation and damages, and two months before trial, plaintiff rejected their
to this code.) Ultimately, the jury concluded defendants were responsible for some but
not all of plaintiff’s medical costs (he had shoulder and neck surgery after the accident),
awarding him a total of $58,311.77.
Plaintiff challenges the damage award, arguing it is contrary to the law on
exacerbating a preexisting condition because the evidence the accident worsened his
existing shoulder injury was undisputed. He also argues the trial court committed
reversible error by excluding two documents he intended to use to impeach defendants’
orthopedic expert. In addition, defendants have filed a cross-appeal of the section 998
award, arguing the trial court improperly taxed the majority of their costs.
We conclude plaintiff’s arguments lack merit and defendants’ cross-appeal is
untimely. We therefore affirm the judgment and dismiss the cross-appeal for lack of
jurisdiction.
2
I
FACTS
A. The Accident and Subsequent Medical Treatment
In November 2014, Barajas was on delivery for her employer when she caused a
rear-end collision involving three cars. She tried to change lanes but didn’t see there was
a construction zone ahead and the cars in front of her had stopped. Her subcompact Ford
Fiesta rear-ended another subcompact car (a Chevy Aveo) at about 50 miles per hour,
which caused that car to collide with plaintiff’s pickup truck (a Nissan Frontier) at about
17 miles per hour. Plaintiff had been looking in his rearview mirror and saw the first
collision happen so he braced for the impact by putting his foot on the brake and hands
on the steering wheel.
After the accident, plaintiff made sure his two sons weren’t hurt, then got out of
his truck to check on the other two drivers, who were also okay but Barajas was crying
and apologizing. Plaintiff told her accidents happen and it was a good thing no one was
hurt. When the police arrived, plaintiff declined medical treatment but mentioned he had
some pain in his shoulder and neck. He drove away from the accident and took his sons
to lunch before going home. The cost of repairing his truck was $772 for parts and $2,507
for labor.
The accident happened on Friday afternoon. Plaintiff said he felt some pain over
the weekend and took two ibuprofen. On Sunday, he hired an attorney, who referred him
to a chiropractor. The chiropractor diagnosed plaintiff with a cervical spine sprain or
3
1 strain and treated him for about 20 sessions. The chiropractor’s final assessment report,
dated January 2015, says plaintiff’s neck pain had “resolved with full range of motion.”
At trial, the chiropractor said the diagnostic test he performed on plaintiff’s neck did not
indicate radiculopathy (or nerve injury).
In February 2015, plaintiff had surgery on his right shoulder to repair a tear in his
labrum (bone socket tissue) commonly referred to as a “SLAP” tear (which stands for
“superior labrum anterior to posterior”). In May 2015, he began receiving cervical
injections for renewed pain in his neck and, in April 2016, underwent surgical
discectomy and fusion of his fifth and sixth cervical vertebrae (C5 and C6).
Plaintiff was 39 years old at the time of the accident and was between jobs. His
most recent employment was in 2012, working in construction as a stone setter, a job that
required him and his partner to lift 100- to 200-pound stones on a routine basis.
B. Expert Testimony
Both sides presented medical and accident reconstruction experts to express their
views on the severity of the accident and whether it necessitated the treatment plaintiff
had received. It was undisputed that the Delta-V of plaintiff’s truck (the change in speed
from the impact) was between seven and eight miles per hour. It was also undisputed that
the labral tear in plaintiff’s right shoulder was a preexisting condition and was not caused
by the accident. As defendants’ radiologist explained, the presence of a sizable cyst near
1A sprain is an injury to the tissue or tendons that connect two bones together, whereas a strain is an injury to muscle or the tendons that attach muscle to bone. 4
the tear (caused by joint fluid seeping into the injury) meant the tear had occurred a few
years before the accident—either from one movement or repetition over time.
Where the experts disagreed was whether the accident necessitated either surgery.
Plaintiff’s experts believed the accident had exacerbated the tear to the point it required
surgery and had caused a disc injury to plaintiff’s neck. Plaintiff’s radiology expert could
not say whether the abnormalities in plaintiff’s cervical discs that were present in his
postaccident MRI predated the accident. Dr. Alexander, the orthopedic surgeon who had
performed the discectomy and fusion of plaintiff’s C5 and C6 vertebrae, acknowledged
that plaintiff’s MRI indicated he was suffering from aging-related disc degeneration, but
he believed the accident had caused additional trauma to the discs thereby necessitating
surgery.
Defendants’ orthopedic expert, Dr. Bhatia, strongly disagreed with Dr.
Alexander’s opinion and his treatment plan. He said it is virtually impossible in today’s
vehicles for a person to suffer a spinal injury from a low speed collision, and that if
plaintiff had suffered a disc injury from the accident, he would have immediately felt
severe nerve pain in his neck and the pain would have persisted. He believed the surgery
Dr. Alexander performed was “absolutely” unnecessary at this stage of plaintiff’s life and
that he would have recommended more conservative and less invasive treatment. In his
opinion, plaintiff had suffered a cervical sprain from the accident, necessitating precisely
the type of treatment the chiropractor had performed. He said the cost of that treatment
would typically be $2,000 but could be as high as $4,000.
5
Defendants’ radiologist believed to a medical certainty that plaintiff’s MRI
showed chronic, aging-related degeneration that was actually quite typical for someone
plaintiff’s age. He explained that the presence of bone spurs on plaintiff’s cervical
vertebrae indicated his discs had been degenerating for years prior to the accident. The
fact the discs were bulging rather than herniated also pointed towards a chronic condition
as opposed to acute trauma.
As for plaintiff’s shoulder, Dr. Bhatia apportioned the cause of surgery equally
between the accident and the preexisting tear and cyst. He said that “both of the issues
. . ., the incident and the underlying labral tear and cyst played into” the need for surgery.
“[I]f either one of those hadn’t existed, he probably wouldn’t have needed surgery at the
time he had it.” When asked if he could quantify “on a percentage basis . . . what portion
[of the shoulder surgery] would be due to preexisting conditions and what portion would
be due to the auto accident,” Dr. Bhatia replied, “I would say 50/50.”
Finally, defendants’ accident reconstruction and biomechanics expert concluded it
was virtually impossible defendant suffered a disc injury from the accident because the
impact was so minor. He explained that a change in velocity of seven to eight miles was
within the range of impact between bumper cars, and the trailer hitch on the back of
plaintiff’s truck had absorbed some of the impact. By his calculation, the impact would
have caused plaintiff’s neck to move three inches at most, which could possibly result in
a muscle or tendon strain, but not radiculopathy or disc injury.
6
C. The Verdict
The parties stipulated that the reasonable charges for the medical treatment
plaintiff had received was $205,881.17—that is, $62,623.53 for the shoulder treatment
and $143,257.64 for the neck treatment. During plaintiff’s closing statement, counsel
argued his damages totaled over $1.4 million broken down as follows: $205,881.17 for
past medical expenses; $150,000 for future medical expenses; $400,000 for past pain and
suffering; and $653,350 for future pain and suffering. In contrast, defense counsel argued
for a total damage award of $65,000. He said defendants should be liable for half the cost
of the shoulder surgery plus $4,000 for the chiropractic treatment of the neck, plus
$30,000 for past pain and suffering.
The jury retired to deliberate around noon on the last day of trial and returned a
verdict that same afternoon. They found Barajas’ negligence was a substantial factor in
causing harm to plaintiff and awarded him $58,311.77 in damages, comprised of
$33,311.77 for past medical expenses, $25,000 for past pain and suffering, and nothing
for future medical expenses or future pain and suffering. They were unanimous on each
of the damage amounts except for the $25,000 award for past pain and suffering, for
which the vote was nine to three.
7
II
ANALYSIS
A. The Damage Award
Plaintiff contends the damage award is contrary to the law on aggravation of
preexisting conditions. He argues the evidence was undisputed on two crucial points—
that the accident had aggravated his labral tear and that he would not have needed surgery
if the accident had not occurred. As a result, he argues, the law on aggravating
preexisting conditions renders defendants liable for the entire cost of his surgery, not half
the cost like the jury awarded. We disagree.
“The amount of damages is a fact question, committed . . . to the discretion of the
jury,” and we review the award for substantial evidence. (Westphal v. Wal-Mart Stores,
Inc. (1998) 68 Cal.App.4th 1071, 1078.) We do not “reassess the credibility of witnesses
or reweigh the evidence,” but instead “consider the evidence in the light most favorable
to the judgment, accepting every reasonable inference and resolving all conflicts in its
favor.” (Ibid.) “A reviewing court must uphold an award of damages whenever possible
and all presumptions are in favor of the judgment.” (Bertero v. National General Corp.
In their cross-appeal, defendants challenge the court’s order taxing the majority of
their section 998 request. They argue the court erroneously failed to treat their attorney’s
declaration “that all the costs in the Memorandum are true and accurate” as sufficient to
satisfy their burden of proving costs and expert fees under section 998. While this
argument fails for multiple reasons (the most obvious of which is that defendants have
mischaracterized the declaration—it did not say the costs listed in the memorandum were
true and accurate, it said it was attaching true and accurate information about the costs,
but then failed to do so), we lack jurisdiction to reach the merits of the cross-appeal,
because, as plaintiff correctly points out, defendants’ challenge is untimely.
Under the California Rules of Court, defendants were required to file their cross-
appeal within 20 days of the superior court serving them notice of plaintiff’s appeal,
which occurred on October 30, 2018. (Cal. Rules of Court, rule 8.108(g).) As we’ve seen,
defendants did not file their notice until December 10, which is 21 days past the cross-
appeal deadline. A timely notice of appeal is a jurisdictional requirement we may not
overlook. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1316 [in the absence
of a valid and timely notice of appeal, the reviewing court lacks jurisdiction].)
18
We note there is an additional jurisdiction issue with defendants’ challenge to the
cost order. A cross-appeal may challenge only the same judgment or orders challenged by
the underlying appeal (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284), and it is well
established that “[a]n award of expert witness fees [under] section 998 is not incidental to
the judgment but is instead a separately litigated issue.” (Fish v. Guevara (1993) 12
Cal.App.4th 142, 148.) This is because, while section 998 makes ordinary litigation costs
mandatory, it gives the trial court discretion to award expert fees. (§ 998, subd. (c).) And,
because it is not incidental to the judgment, “a postjudgment award of expert witness fees
cannot be reviewed on an appeal [or cross-appeal] from the judgment” but must instead
be the subject of a separate notice of appeal. (Fish, at p. 148.) In other words, plaintiff’s
“notice of appeal from the judgment did not create appellate jurisdiction over the trial
court’s subsequent [ruling on] . . . expert witness fees” such that a cross-appeal would be
sufficient to challenge the ruling. (Ibid.) Thus, untimeliness aside, defendants’ cross-
appeal would not give us jurisdiction to review the court’s order taxing expert fees—
which, at $111,774.88 were the bulk of the costs taxed. To challenge that order,
defendants were required to file a separate notice of appeal.
19
We note there is an additional jurisdiction issue with defendants’ challenge to the
cost order. A cross-appeal may challenge only the same judgment or orders challenged by
the underlying appeal (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284), and it is well
established that “[a]n award of expert witness fees [under] section 998 is not incidental to
the judgment but is instead a separately litigated issue.” (Fish v. Guevara (1993) 12
Cal.App.4th 142, 148.) This is because, while section 998 makes ordinary litigation costs
mandatory, it gives the trial court discretion to award expert fees. (§ 998, subd. (c).) And,
because it is not incidental to the judgment, “a postjudgment award of expert witness fees
cannot be reviewed on an appeal [or cross-appeal] from the judgment” but must instead
be the subject of a separate notice of appeal. (Fish, at p. 148.) In other words, plaintiff’s
“notice of appeal from the judgment did not create appellate jurisdiction over the trial
court’s subsequent [ruling on] . . . expert witness fees” such that a cross-appeal would be
sufficient to challenge the ruling. (Ibid.) Thus, untimeliness aside, defendants’ cross-
appeal would not give us jurisdiction to review the court’s order taxing expert fees—
which, at $111,774.88 were the bulk of the costs taxed. To challenge that order,
defendants were required to file a separate notice of appeal.
20
III
DISPOSITION
We affirm the judgment and dismiss defendants’ cross-appeal. In the interests of
justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
MILLER Acting P. J.
FIELDS J.
21
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment, holding that substantial evidence supported the jury's damage award and that the trial court did not abuse its discretion in excluding impeachment evidence. The court further dismissed the defendants' cross-appeal for lack of jurisdiction because it was untimely.
Issues
Whether the jury's damage award for a preexisting condition was supported by substantial evidence.
Whether the trial court committed reversible error by excluding impeachment evidence regarding a whiplash pamphlet and an income disclosure policy.
Whether the defendants' cross-appeal regarding the order taxing costs was timely filed.
Disposition. Affirmed; cross-appeal dismissed.
Quotations verified verbatim against the opinion
“The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence.”
“We conclude plaintiff’s arguments lack merit and defendants’ cross-appeal is untimely.”