Judge: Edward B. Moreton, Jr., Case: BC707490, Date: 2022-10-26 Tentative Ruling
Case Number: BC707490 Hearing Date: October 26, 2022 Dept: 200
|
Hozelito
duric, Plaintiff, v. LUCRETA KATHRYN MORRIS
TAYLOR, Defendant. |
Case No.:
BC707490 Hearing Date: October 26, 2022 [TENTATIVE]
order RE: DEFENDANT’S motion FOR NEW TRIAL OR IN THE ALTERNATIVE FOR REMITTITUR |
MOVING PARTY: Defendant
Lucreta Kathryn Morris Taylor
RESPONDING PARTY: Plaintiff Hozelito Duric
BACKGROUND
This action arises from a motorcycle
accident. Plaintiff Hozelito Duric was
on his motorcycle when he was hit by Defendant Lucreta Kathryn Morris
Taylor. After a trial, a jury returned a
verdict finding that Defendant was negligent, that her negligence was a
substantial factor in causing Plaintiff’s damages, and that Plaintiff was not
negligent. 8/19/2022 Minute Order. The jury awarded $1,437,000 in total damages,
including $187,200 in future economic loss and medical expenses, $600,000 in
past noneconomic loss, and $650,000 in future noneconomic loss. 8/19/2022 Minute Order.
This hearing is on Defendant’s motion for a
new trial or, in the alternative, for remittitur. Defendant argues that a new trial should be
granted because (1) the jury’s finding that Plaintiff was not negligent is not
supported by the evidence, (2) the Court erred in refusing to have the jury put
on Plaintiff’s motorcycle helmet, (3) the Court erred in not allowing further
examination on Plaintiff’s use of other helmets and the visibility of helmets, (4)
the Court improperly instructed the jury on the imminent peril doctrine, and (5)
the noneconomic damages awarded were excessive.
In the alternative, Defendant seeks a remittitur of the noneconomic
damages.
EVIDENTIARY
OBJECTIONS
Plaintiff objects to Defendant’s supplemental
declaration on the ground it is untimely.
The Court SUSTAINS the objection.
“As the motion for a new trial finds both its
source and its limitations in the statutes … the procedural steps prescribed by
law … are mandatory and must be strictly followed.” (Mercer v. Perez (1968) 68 Cal.2d 104,
118; see also Pac. Trends Lamp & Lighting Prods., Inc. v. J. White Inc. (1998)
65 Cal.App.4th 1131, 1135 (“Code of Civil Procedure sections 655 - 662.5 specify the procedures for a new trial motion. These procedures
must be strictly followed, and the court has no jurisdiction to order a new
trial except as provided in those sections.”).)
Under
CCP §659a, the party intending to move for a new trial must file and serve the
required moving papers within 10 days of filing its intention to move for new
trial. CCP §659 states the 10 days may
be extended by stipulation or court order, but the most this 10 day period may
be extended is an additional ten days. CCP §659a (“These deadlines may, for
good cause shown by affidavit or by written stipulation of the parties, be
extended by any judge for an additional period not to exceed 10 days.”)
Here,
Defendant filed her notice of intention to move for new trial on September 12,
2022. Thus, Defendant’s last day to file
and serve any papers in support of her motion was September 22, 2022. Defendant filed her motion and her counsel’s supporting
declaration on September 22, 2022. Defense
counsel then filed a supplemental declaration on October 10, 2022. This filing was untimely. Under §659a, Defendant had until October 3,
2022 (10 days after September 22, 2022) to file any papers supporting her motion. As this deadline is jurisdictional, the Court
cannot consider the supplemental declaration.
Plaintiff
argues that because defense counsel’s original declaration was largely stricken
by the Court on October 13, 2022, see 10/13/2022 Minute Order, and the
supplemental declaration is untimely, Defendant has failed to cite to any
evidence and her motion should be denied on this ground alone. The Court disagrees. Even in the absence of evidence from
Defendant, under §660
the Court may still rely on the minutes of the Court, including a reporter’s
transcript or if there is no such transcript, its recollection.
Accordingly, the Court declines Plaintiff’s request to deny Defendant’s
motion on the sole basis she does not have any affidavits.
LEGAL STANDARD
A motion for new trial asks the trial court
to reexamine one or more issues of fact or law after a trial and decision by a judge
or jury. Since the right to a new trial
is purely statutory, exact compliance is required with the procedural steps for
making and determining a motion for new trial.
Any significant departure from the procedural requirements on new trial
motions deprives the trial court of power to grant the motion. Strict literal compliance is required. (Telefilm,
Inc. v. Superior Court (1949) 33 Cal.2d 289, 294; Wall Street Network,
Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193.) The grounds for new trial are also entirely
statutory. (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166; Marriage
of Herr (2009) 174 Cal.App.4th 1463, 1465, 1471.) Thus, the motion must be based on one or more
of the statutory grounds set forth in CCP §657.
Section 657 sets forth seven grounds for a
new trial. The first four grounds
are: (1) Irregularity in the proceedings
of the court, jury or adverse party, or any order of the court or abuse of
discretion by which either party was prevented from having a fair trial; (2)
Misconduct of the jury; (3) Accident or surprise, which ordinary prudence could
not have guarded against; and (4) Newly
discovered evidence, material for the party making the application, which he
could not, with reasonable diligence, have discovered and produced at the
trial. (CCP §657.) Motions seeking a new trial on the first
four grounds must be made upon affidavits.
(CCP § 658.) The remaining three
grounds are (5) Excessive or inadequate damages; (6) Insufficiency of the
evidence to justify the verdict or other decision, or the verdict or other
decision is against law; and (7) Error in law, occurring at the trial and
excepted to by the party making the application. (CCP § 657.) Motions relying on the remaining three
grounds must be made on the minutes of the Court. (CCP § 658.)
In addition to the requirement that a motion
for new trial be made on statutory grounds, the trial court must find that the
error has caused a miscarriage of justice.
The California Constitution, article VI, section 13 provides: “No judgment shall be set aside, or new trial
granted, in any cause, on the ground of misdirection of the jury, or of the
improper admission or rejection of evidence, or for any error as to any matter
of pleading, or for any error as to any matter of procedure, unless, after an
examination of the entire cause, including the evidence, the court shall be of
the opinion that the error complained of has resulted in a miscarriage of
justice.”
DISCUSSION
Plaintiff’s Negligence
Defendant argues there was insufficient
evidence to conclude Plaintiff was not negligent, and no reasonable juror could
have reached such a conclusion. The
Court disagrees.
When a trial court rules upon a motion for a new trial made upon
the ground of insufficiency of the evidence, the judge is required to weigh the evidence and judge the credibility of witnesses. (Dominguez v. Pantalone (1989)
212 Cal.App.3d 201, 215.) “While it is the exclusive province of the
jury to find the facts, it is the duty of the trial court to see that this
function is intelligently and justly performed, and in the exercise of its
supervisory power over the verdict, the court, on motion for a new trial,
should consider the probative force of the evidence and satisfy itself that the
evidence as a whole is sufficient to sustain the verdict." (Id.) Insufficiency of the evidence in this context
means an absence of evidence or that the evidence received, in the individual
judgment of the trial judge, is lacking in probative force to establish the
proposition of fact to which it is addressed. (Id.) The court
does not disregard the verdict, or decide what result it should have reached if
the case had been tried without a jury, but instead "it should consider
the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient
credible evidence to support the verdict. (Id.)
Here, there was sufficient evidence to support the jury’s
verdict that Plaintiff was not negligent.
At trial, Defendant had the burden to prove Plaintiff was negligent and
that his negligence was a substantial factor in causing Plaintiff’s harm. Defendant argued Plaintiff was negligent
because he was speeding. But there was
substantial evidence to contradict that claim: (1) Plaintiff’s testimony that
he was not speeding, (2) Plaintiff’s contemporaneous statements to law
enforcement and medical personnel that he was driving at 35 mph, (3) the
unopposed testimony of Plaintiff’s accident reconstruction expert, Philip Wang,
and (4) evidence proving a low speed collision, including photos of the minimal
damage to Plaintiff’s riding gear. (Exs.
16-19, 21 to Akagarian Decl.; Trial Exs 3-1 to 3-8, 4-1 to 4-5, 64, 65).
In sum, the Court has independently considered
the evidence and finds it is consistent with the jury’s finding that Plaintiff
was not negligent.
Experiment with Helmet
Defendant argues the Court erred when it
refused Defendant’s request to allow jurors to try on Plaintiff’s helmet. The Court disagrees. Defendant has not shown that such an
experiment would be sufficiently probative and not misleading. Given differences in head sizes, eyeglass
prescriptions, and peripheral vision, an individual juror’s view through the
helmet would not have been representative of Plaintiff’s own field of vision at
the time of the collision. Any such
experimentation should have been the subject of expert testimony which
Defendant chose not to present. Further,
due to Covid 19 concerns, it would have been imprudent for the Court to
instruct jurors to try on the helmet.
Other Helmets
Defendant argues the Court erred when it
“[p]recluded the defendant from further asking questions about the plaintiff’s
use of other helmets, visibility of helmets, thus cutting off presentation of
additional evidence supporting a finding of plaintiff’s negligence in wearing a
helmet with limited peripheral vision, a crucial factor in this case.” The Court disagrees.
Cal. Evid. Code §354 provides, “A verdict or
finding shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous exclusion of evidence unless
the court which passes upon the effect of the error or errors is of the opinion
that the error or errors complained of resulted in a miscarriage of justice and
it appears from the record that (a) The substance, purpose, and relevance of
the excluded evidence was made known to the court by the questions asked, an
offer of proof or by any other means, (b) The rulings of the court made
compliance with subdivision (a) futile, or (c) The evidence was sought by
questions asked during cross-examination or recross examination.”
Here, Defendant has made no showing that
further examination about other helmets would have produced a different result
such that the exclusion of such evidence resulted in a miscarriage of justice. The Court gave defense counsel ample
opportunity to examine Plaintiff about his visibility. Plaintiff testified he saw Defendant’s car at
all relevant times. (Ex. 17 to Akagarian
Decl.). Defendant failed to establish
that Defendant’s vision was impaired as a result of his helmet, so examination
about other helmets would not have had any impact on the jury’s unanimous
finding that Plaintiff was not negligent.
Jury Instruction on Imminent Peril
Defendant argues the Court erred in giving an instruction
on the “imminent peril” doctrine, BAJI 4.40 and BAJI 4.41. The Court disagrees. Under the “imminent peril” doctrine, a person
who without negligence on his part is suddenly and unexpectedly confronted with
peril, arising from either the actual presence, or the appearance, of imminent
danger to himself or to others, is not expected nor required to use the same
judgment and prudence that is required of him in the exercise of ordinary care
in calmer and more deliberate moments.” (Abdulkadhim
v. Wu (2020) 53 Cal.App.5th 298, 301-302.) “A party will be denied the
benefit of the doctrine … where that party's negligence causes or contributes to the creation of the perilous
situation.” (Id. at 302.)
Here, Defendant contends the Court’s instructions on
imminent peril were erroneous because “the evidence was clear that the
plaintiff was negligent.” As discussed
above, there was substantial evidence to support the jury’s finding that
Plaintiff was not negligent. There was also
evidence to support the fact that Defendant made an abrupt lane change giving
Plaintiff very little time to react: an eyewitness testified Defendant made a
quick lane change, without signaling and without looking, and Defendant herself
testified she abruptly, quickly and without looking crossed into Plaintiff’s
lane. (Exs. 17-21 to Akagarian Decl.;
Trial Exs 45-22, 59-14) Therefore, there
was sufficient bases to support the Court’s instruction on the “imminent peril”
doctrine.
Defendant relies on the Court’s comment that
the jury’s decision would be a difficult one, which Defendant contends is proof
“the jury could not have concluded that [Plaintiff] was not at a minimum
comparatively negligent.” Defendant’s
argument is meritless. The Court’s
comment does not suggest the only reasonable finding was comparative negligence. To the contrary, the Court’s comment
acknowledged there was evidence to support either finding, making it a
difficult decision for the jury.
Even assuming the evidence did not support
the instruction, Defendant must show that in the absence of the error, a result
more favorable to Defendant would have been reached. In order to obtain a new trial, Defendant
must show the error resulted in a “miscarriage of justice”. (See Article VI, Section 13 of the
California Constitution.) The California
Supreme Court has interpreted “miscarriage of justice” as prohibiting a
reversal unless there is “a reasonable probability that in the absence of the
error, a result more favorable to the appealing party would have been reached.” (Soule v. Gen. Motors Corp. (1994) 8
Cal.4th 548, 574.) Thus, when
challenging the jury instructions given in a civil case, the complaining party
must show that but for the error, it was “reasonably probable the jury would
have returned a more favorable verdict.”
(Holmes v. Petrovich (2011) 191 Cal.App.4th 1047,
1073.)
Here, there are many reasons why the jury may
have concluded Plaintiff was not negligent, irrespective of the “imminent
peril” doctrine, including Defendant’s unsafe and abrupt turning; Plaintiff’s
testimony that he was not speeding; the testimony of Plaintiff’s unopposed reconstruction
expert; the post-accident photos of the motorcycle showing minimal damage, and
the lack of damage to Plaintiff’s riding gear.
In short, Defendant has simply failed to show that in the absence of the
purported instructional error, the jury would have returned a verdict in her
favor.
Non-Economic Damages
Defendant argues the jury’s award of
noneconomic damages is excessive and the Court should grant a new trial or
remit the verdict. The Court disagrees.
“The jury is entrusted with vast discretion
in determining the amount of damages to be awarded[.]” (Bender v. County of L.A. (2013) 217
Cal.App.4th 968, 985.) Cases
involving excessive damages typically involve “some aspect of the record which
would have misled or prejudiced the jury and which convinces the trial judge
the jury clearly should have reached a different decision. Otherwise, there is no reason to disturb the
factual question of compensation, a matter long within the province of the
jury.” (Bigboy v. County of San Diego
(1984) 154 Cal.App.3d 397, 405.)
Here, the noneconomic damages are not
excessive. The nature and extent of
Plaintiff’s injuries warrant the award of these damages. Before the collision, Plaintiff was in good
health, and as a result of the collision, he suffered, and continues to suffer,
very serious and permanent injuries.
Dr. Tye Ouzounian, an orthopedic surgeon,
testified that Plaintiff had a broken ankle, and because of the location of the
break, the ankle required surgery; seven screws were inserted into the bone to
stabilize it. Dr. Ouzounian testified Plaintiff
walked with a limp, had restrictions in
his ankle and hindfoot, had left calf atrophy, and numbness in his foot. Dr. Ouzounian also testified that Plaintiff
would likely have arthritis and problems long term. This includes foot pain, ankle pain and ankle
limitations that will remain the same.
Additionally, Dr. Ouzounian testified that the hardware in Plaintiff’s
ankle will need to be removed, and Plaintiff will need an orthotic or insert
for his foot pain for the rest of his life.
(Ex. 20 to Akagarian Decl.)
Dr. Robert Klapper, an orthopedic surgeon,
testified that during the crash, Plaintiff’s femur was driven into his pelvis;
the injury was severe and required surgery.
Before surgery could even take place, Plaintiff’s leg had to be drilled
and put into traction. The surgery to
repair Plaintiff’s hip was extensive, and Dr. Klapper described Plaintiff’s
broken hip as “the most severe because the facture went into the joint.” Dr. Klapper also noted Plaintiff had daily
left hip pain; his left leg is now ¼ inch shorter than his right leg, and
Plaintiff’s knee is bothering him because of his broken hip and ankle. Additionally, Dr. Klapper testified that
Plaintiff will have arthritis in his hip joint, and there will be continued
wearing away of the cartilage which will lead to more pain, stiffness and
continued shortening of Plaintiff’s leg.
During the process of deterioration, the pain in Plaintiff’s hip will
wake him up at night, and the pain will get so excruciating that Plaintiff will
no longer be able to walk without further medical help. Further, Plaintiff will have to undergo two
additional hip surgeries within the next ten years: one to remove the plate and
screws and another to completely replace the hip, both of which come with risks
of infection, blood clot, nerve injury, arterial damage, wound healing, stroke,
heart attack and death. (Ex. 22 to
Akagarian Decl.)
Plaintiff’s neurologist, Dr. Moshe
Hendizadeh, testified that based on his examination, Plaintiff’s nerve is
damaged and will never get better.
Plaintiff will continue to experience tingling and numbness and the
feeling that a portion of his body has fallen asleep for the rest of his life. (Ex. 18 to Akagarian Decl.)
Plaintiff’s orthopedist, Dr. Foreman,
testified that Plaintiff will need a hip replacement as a result of the crash. He stated that the numbness and tingling in
Plaintiff’s foot and ankle will not get better and will continue for the rest
of his life, and as he ages, his arthritis will continue to get worse. (Ex. 16 to Akagarian Decl.)
Plaintiff also testified that he experienced
severe pain at the scene of the accident, an inability to move and a fear of
paralysis. He also described his
excruciating pain when doctors drilled into his leg to put it into
traction. Following the collision,
Plaintiff also had to suffer through a long and painful recovery process. This
included being casted, being unable to bear weight on his leg, and having to
use an orthopedic boot and cane. Also, shortly
after the accident, Plaintiff had to use a wheelchair, needed significant help
for months with showering, using the toilet and getting dressed, was unable to
run or jump, gained significant weight and could no longer ride his motorcycle
as he used to. Plaintiff also explained
the significant mental suffering he endured and continues to endure from his
injuries -- that he isolates himself, has lost hope, withdraws from
relationships and has realized that he will never be able to engage in the
activities he used to love. (Exs. 16-17
to Akagarian Decl.)
On these facts, the Court concludes the
jury’s award of $600,000 for past noneconomic damages and $650,000 for future
noneconomic damages is supported by substantial evidence. The nature and extent of Plaintiff’s injury
justifies the amount of the verdict. Accordingly,
there is no ground to grant a new trial or a remittitur on damages.
CONCLUSION
Based on the foregoing, the Court DENIES Defendant’s
motion for new trial or in the alternative for a remittitur.
IT IS SO ORDERED.
DATED: October 26, 2022 ___________________________
Edward
B. Moreton, Jr.
Judge
of the Superior Court