Opinion
B309229
10-18-2022
DHIA ALHASHIM, Plaintiff and Respondent, v. SALIYA DESILVA, Defendant and Appellant.
Law Offices of Roland R. Tijerina and Roland R. Tijerina for Defendant and Appellant. First Law Group and Eric A. Forstrom for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC595497, Victor E. Chavez, Judge.
Law Offices of Roland R. Tijerina and Roland R. Tijerina for Defendant and Appellant.
First Law Group and Eric A. Forstrom for Plaintiff and Respondent.
EGERTON, J.
Plaintiff Dhia Alhashim sued defendant Saliya DeSilva for injuries he allegedly sustained when defendant's dogs attacked him in a public park. The court held a bench trial in defendant's absence and awarded plaintiff damages totaling $415,600. Defendant moved for a new trial, arguing (1) plaintiff failed to give him notice of the trial date; (2) the court admitted evidence without authentication or foundation; and (3) the damages award was excessive. The trial court denied the motion, finding defendant received the requisite notice, the evidence was properly admitted, and the record did not support defendant's contention that the award was excessive. We affirm.
FACTS AND PROCEDURAL HISTORY
Plaintiff filed this action in September 2015. His operative first amended complaint alleges he was attacked by defendant's two German Shepherds while he walked his dog in a public park. He sued defendant and several other individuals and entities for general negligence and strict liability.
On January 15, 2020, plaintiff appeared for the scheduled jury trial. Defendant did not appear. The court deemed the action an "uncontested trial" and transferred the case for a bench trial.
The court held a bench trial the same day. Plaintiff testified and the court received exhibits into evidence, including photographs, medical and billing records for plaintiff, and medical and billing records for plaintiffs dog. The court found in favor of plaintiff and against defendant. The judgment awarded damages totaling $415,600 as follows: $4,500 for medical treatment of plaintiffs dog; $45,000 for lost earnings; $120,000 for hiring staff to assist; $250,000 for pain and suffering; less $3,900 previously paid by a different defendant.
On August 20, 2020, the court gave notice of entry of the judgment.
On September 2, 2020, defendant filed his notice of intention to move for a new trial and, on September 14, 2020, he filed his new trial motion.
Contrary to plaintiff's contention, the trial court correctly determined defendant's motion was timely. It is undisputed that defendant filed his notice of intention to move for a new trial within 15 days of the court's notice of entry of judgment. (Code Civ. Proc., § 659, subd. (a)(2).) After filing his notice of intention on September 2, 2020, defendant then had 10 days to file his motion. (Id., § 659a.) However, as the trial court explained, because September 12 and 13 were weekend days and the court was closed for the whole of each day, the motion was not due until September 14, 2020, when defendant filed his motion. (Id., §§ 12a, 12b.)
The motion asserted three grounds for a new trial: (1) there were "irregularities in the proceedings" caused by plaintiffs counsel "deliberately fail[ing]" to give defendant notice of the trial date; (2) there were irregularities "in that evidence appeared] to have been admitted and considered by the Court that lacked authentication and foundation"; and (3) the damages award was excessive.
With respect to the first ground, defendant offered the declaration of his wife (who had been a defendant in the case), the declaration of his former attorney, Steve Tamer of Tamer Law Corp. (collectively, Tamer), and his current attorney's declaration. According to that evidence, in May 2019, the trial court granted Tamer's motion to be relieved as counsel and defendant proceeded with the action in propria persona from that date until he retained his current counsel to represent him in the post-trial proceedings. At the time, the pending trial date was June 26, 2019.
On June 3, 2019, another defendant moved to continue the final status conference and trial dates. Tamer made a "special appearance" on defendant's behalf "for purposes of monitoring the continuances only." Consistent with the parties' oral stipulation, the trial court continued the final status conference to January 3, 2020 and the trial to January 15, 2020. The court's minute order specified Tamer's motion to be relieved as counsel was "previously granted" and Tamer had appeared on defendant's behalf "for the purposes of [the] continuance only." The court ordered plaintiff to give notice.
Plaintiff dismissed all other defendants from the action before presenting evidence at trial.
On June 12, 2019, plaintiff served Tamer with a notice of ruling regarding the continued final status conference and trial dates. Plaintiff did not serve defendant, and Tamer did not advise defendant of the continued dates.
Defendant's wife declared that she and defendant had "never been served" with notice of the January 15, 2020 trial date and, since acting in propria persona, defendant had not received notice of "any proceedings in this matter until [he] received a 'Judgment'" from plaintiffs counsel "on or about August 24, 2020."
Based on this evidence, defendant argued he was not at fault for his absence from the trial, plaintiffs counsel had "deliberately failed" to give him notice of the trial, and his absence resulted in a prejudicial judgment warranting a new trial.
As for the second and third grounds, defendant argued it was "patently clear" that there was no evidence presented to substantiate plaintiffs damages claims, "other than Plaintiffs self-serving testimony." Moreover, he argued, "it appeared]" certain exhibits "were admitted without the requirement for foundation and/or authentication." Due to these purported "irregularities" and the resulting "excessive damages," defendant argued a new trial was warranted.
Plaintiff opposed the motion with a declaration from his attorney, Eric Forstrom. Forstrom declared that, on November 18, 2019, plaintiff served defendant "directly [at his] residence of record" with a" 'Notice to Appear at Trial in Lieu of Subpoena'" (notice to appear at trial). The notice, which Forstrom authenticated as an exhibit to his declaration, stated the date, time, and place of the continued trial, and its proof of service confirmed Forstrom's office served it by mail on defendant at his residence. Based on this evidence, plaintiff argued there was no deliberate effort to conceal the trial date from defendant and defendant in fact received notice of the continued trial date months in advance.
With respect to defendant's second and third grounds for a new trial, plaintiff responded that he had personal knowledge of the authenticity of the photographs and medical bills received into evidence, and he maintained his testimony and that evidence was sufficient to support the damages award. Plaintiff emphasized defendant's motion "fail[ed] to offer any evidence" to prove the award was the product of passion, corruption, or prejudice, let alone to overcome the strong presumption that the fact-finder exercised sober judgment in rendering the award.
In a supplemental declaration offered in support of his reply, defendant disputed Forstrom's declaration and asserted he did not receive a notice to appear at trial.
The trial court denied defendant's motion for new trial. The court found plaintiffs counsel did not deliberately decline to provide defendant with notice of the trial date, citing the notice to appear at trial that Forstrom's office mailed to defendant's address on November 18, 2019. And the court rejected defendant's contentions that evidence was improperly admitted or that the damages award was excessive. The trial court emphasized defendant had failed to identify "any specific evidence that was admitted without foundation or authentication" and defendant failed to show the evidence was "too speculative" to support the damages award.
Defendant filed a timely appeal from the judgment following the court's denial of his new trial motion.
DISCUSSION
1. Defendant Failed to Establish an Irregularity in the Proceedings
A party is entitled to a new trial when an irregularity in the proceedings, or any order of the court or abuse of discretion, "materially affect[s] the substantial rights of such party" and prevents him from having a fair trial. (Code Civ. Proc., § 657, cause 1.)"' "The question whether, under all the circumstances, an irregularity has materially affected substantial rights and prevented a fair trial is addressed to the discretion of the trial court, which-having heard and seen the witnesses, and having knowledge of circumstances which may not be reproduced in the record-is in better position than the appellate court to determine the effect." '" (Grant v. F. P. Lathrop Constr. Co. (1978) 81 Cal.App.3d 790, 804 (Grant); Merralls v. Southern Pac. Co. (1920) 182 Cal. 19, 23; Piercy v. Piercy (1906) 149 Cal. 163, 166.)
Statutory references are to the Code of Civil Procedure, unless otherwise designated.
We review the trial court's decision to deny a new trial motion for an abuse of discretion. (Kolar v. County of Los Angeles (1976) 54 Cal.App.3d 873, 880.) The "determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." (Jiminez v. Sears, Roebuck & Company (1971) 4 Cal.3d 379, 387.)
Defendant contends his substantial rights were materially affected by (1) plaintiffs failure to give him notice of the continued trial date and (2) the trial court's admission of certain exhibits that lacked foundation and authentication. The record does not support either contention.
a. Defendant received notice of the trial date
Section 594, subdivision (a) prohibits a trial of "an issue of fact" in the absence of a party unless there is proof "made to the satisfaction of the court that the [absent] party has had 15 days' notice of such trial." (See Au-Yang v. Barton (1999) 21 Cal.4th 958, 960 (Au-Yang).) Section 594, subdivision (b) authorizes a party to serve the requisite 15-day notice "by mail."
" A proceeding taken against [a party] in his absence is in the nature of a default. The purpose of [section 594, subdivision (a)] is to prevent the possibility of such default being taken against one who has, by reason of insufficient notice or no notice of the time of trial, been unable to appear.' " (Au-Yang, supra, 21 Cal.4th at p. 963.) Thus, while the protections of section 594 may be waived, compliance with the statute's notice requirement "is 'mandatory.'" (Au-Yang, at p. 963; see also Bird v. McGuire (1963) 216 Cal.App.2d 702, 714 (Bird) [notice period may "be shortened by waiver or consent of the parties"].)
Defendant maintains the notice to appear at trial was insufficient "to apprise" him of the continued trial date, and he argues the trial court's reliance on the notice "contradicts California law" as embodied in section 594. He cites no authority for this contention and, other than baldly claiming the statute requires "formal notice," he makes no effort to specify why the notice was insufficient. Contrary to defendant's unsupported contention, our review of the relevant authorities convinces us the notice was sufficient to satisfy the statutory mandate and the trial court reasonably relied on the notice in denying defendant's new trial motion.
Because we conclude the notice to appear at trial was alone sufficient to satisfy section 594, we need not address the sufficiency of the other notices that the parties discuss in their briefs.
As the court recognized in Bird, section 594 "does not prescribe the kind of notice required." (Bird, supra, 216 Cal.App.2d at p. 713, cited with approval in Au-Yang, supra, 21 Cal.4th at p. 963.) The "term 'notice,'" the Bird court explained, simply "imports that the information given thereby comes from an authentic source and is directed to someone who is to act or refrain from acting in consequence of the information contained in the notice." (Bird, at p. 713.) Thus, a "notice of time and place of trial or any affidavit of the service thereof is sufficient to satisfy section 594's notice requirement, provided it is served 15 days before the trial. (Bird, at pp. 715-716; see also id. at p. 715 [section 594's "formality is satisfied by service of the pretrial conference order specifying such time and place of trial, provided that such service is made [15] days before the date fixed for trial"].)
Plaintiff's evidence showed the notice to appear at trial stated the date, time, and location of the continued trial proceeding. The attached proof of service, signed under penalty of perjury, showed plaintiff's counsel served the notice by mail on defendant's address of record on November 18, 2019-nearly two months before the continued January 15, 2020 trial date. Although defendant declared he did not receive the notice, the trial court reasonably rejected that assertion as insufficient to overcome the presumption that a letter correctly addressed and properly mailed was received by its intended recipient. (See Evid. Code, § 641 ["A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."].)
Based on the evidence presented, the trial court reasonably found defendant received notice of the trial more than 15 days before the continued trial date, as required under section 594.We find no abuse of discretion.
As our Supreme Court noted in Au-Yang, at least one Court of Appeal has held section 594 is satisfied where a continued trial is held in the absence of a party who, although it had 15 days' notice of the original trial date, had no actual knowledge of the continued trial date. (See Au-Yang, supra, 21 Cal.4th at p. 964, fn. 3, citing San Francisco Bay Conservation etc. Com. v. Smith (1994) 26 Cal.App.4th 113.) While our high court did not rule on the following observation, which bears on the issue of whether a party in defendant's position-i.e., one who indisputably had actual knowledge of the original trial date-could demonstrate substantial prejudice in moving for a new trial: "When a trial, previously set for one date, is continued to a later date, the absent party's opportunities to plan and prepare for trial and to be present at trial are unlikely to be harmed, for it will have completed its preparations by the previously scheduled date. This is true even if the party is unaware of the continuance, for in that case it will have completed its preparations by the original trial date and simply by appearing at that time it will learn of the new time for trial." (Au-Yang, at p. 965.) If defendant is to be believed, he did not know of the continued trial date. But he did know of the original date and (apparently negligently) failed to appear for trial where he would have learned of the continuance. In any event, we need not rely on this reasoning, as the record supports the trial court's finding that defendant received the statutorily mandated notice.
b. Defendant failed to establish evidence was improperly admitted
A motion for new trial asserting purported irregularities in the proceeding "must be made upon affidavits; otherwise it must be made on the minutes of the court." (§§ 658, 657, cause 1.) "The 'minutes of the court' include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken [citation] and may also include depositions and exhibits admitted into evidence and the trial transcript." (Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 839, fn. 4.)
While affidavits may be used to prove irregularities "that did not occur in the courtroom," any purported "irregularities which occurred in the courtroom" must be proved "from the reporter's notes showing the occurrence, the objection, and the exception" thereto. (Troy v. Troy (1925) 72 Cal.App. 757, 766 (Troy), italics added.) Affidavits presented in connection with a new trial motion, "like oral testimony at trial, must be given from personal knowledge and cannot contain hearsay." (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 105 (Weathers); Gay v. Torrance (1904) 145 Cal. 144, 151-152; Smith v. Schwartz (1936) 14 Cal.App.2d 160, 167 [averments by attorney "as to what they claimed said witnesses had stated to them amounted to no more than hearsay and carried no probative force"].)
Defendant contends "the trial court abused its discretion by admitting evidence that lacked foundation and authentication," and he argues this irregularity in the proceedings warranted a new trial. But his new trial motion was based upon neither an affidavit made on personal knowledge, nor a reporter's transcript of the proceedings showing the evidence offered and defendant's objection to the purported irregularity. Instead, defendant relied exclusively on a minute order following the trial proceeding, which said little more than that plaintiff testified and that certain exhibits were admitted into evidence.
Defense counsel's supporting declaration added nothing. It offered only the attorney's "belief and contention, based on a review of the Courts documents [sic], that there were irregularities in the proceedings [due to the admission of] evidence that lacked foundation and authentication." (Italics added.) Obviously, because defendant's counsel did not attend the trial, he could not make this declaration on personal knowledge. (Cf. Weathers, supra, 5 Cal.3d at p. 105.)
In relevant part, the minute order states: "[Plaintiff] is sworn and testifies on his own behalf. [¶] Exhibits: 7. (Statement), 8.1 (Copy of license), 4.1 thru 4.4 (photos), 2.1 thru 2.4 (Medical records and billing regarding dog), 1.1 thru 1.5 (Medical records and billing regarding plaintiff), 13. (photo by reference only), and 14. (photo by reference only), 3.1 (photo) and 3.2 (photo) are marked for identification and received into evidence." Based on the minute order, defendant argues that "it appears that the evidence . . ., i.e., the medical bills and records pertaining to the dog and to [plaintiff] were admitted without the requirement for foundation and/or authentication [citation] since the only witness that testified at the time was the [plaintiff] himself." (Italics added.) Defendant emphasizes that "[n]either the custodian of records, nor any [h]ealth [c]are providers" testified "as to the authenticity of the medical records, the reasonableness and/or necessity." But as his contention tacitly admits, there is no way that we can definitively say such an error occurred, because defendant has failed to present an adequate record of what any of this evidence actually was.
Defendant did not attach the medical bills to his motion, and they are not part of the appellate record. Thus, we may (and, indeed, must) presume plaintiff, who received and paid the medical bills, was perfectly capable of offering reliable testimony regarding their authenticity, as the trial court implicitly found. Likewise, because defendant failed to include the medical records and a transcript of plaintiffs testimony as part of his motion, we have no idea what medical procedures were ordered or whether they were the sort that would necessitate expert testimony. So, again, we must presume plaintiff offered reliable testimony to establish the reasonable necessity of those procedures, as the trial court implicitly found. (See Title Land Co. v. Schaefer (1919) 41 Cal.App. 294, 295 [in the absence of a record affirmatively showing error, the appellate court must presume the order denying a new trial motion was properly made].)
Moreover, as the trial court reasoned in denying defendant's motion, because defendant failed to attend the trial, there is no record that he objected to the admission of this evidence, nor any way to determine whether such an objection should have been sustained. (Cf. Troy, supra, 72 Cal.App. at p. 766 [irregularity occurring in court must be proved "from the reporter's notes showing the occurrence, the objection, and the exception" thereto].)
As we said at the outset,"' "[t]he question whether, under all the circumstances, an irregularity has materially affected substantial rights and prevented a fair trial is addressed to the discretion of the trial court, which-having heard and seen the witnesses, and having knowledge of circumstances which may not be reproduced in the record-is in better position than the appellate court to determine the effect." '" (Grant, supra, 81 Cal.App.3d at p. 804.) Here, we do not even have a cold record (let alone the trial court's vantage point) from which to assess the witness testimony or content of the evidence that defendant claims was erroneously admitted. Defendant has completely failed to establish an abuse of discretion with respect to either the trial court's admission of the evidence or the court's denial of the new trial motion. (See Engleman v. Malchow (1949) 91 Cal.App.2d 341, 344 ["Not only is the order denying a new trial supported by all presumptions of its correctness but the burden is upon appellant to show affirmatively that an order of denial is prejudicially erroneous."]; Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)
2. Defendant Failed to Establish the Damages Were Excessive
A court is authorized to order a new trial where an excessive damages award materially affects the substantial rights of the moving party. (§ 657, cause 5.)
When reviewing a judgment for excessive damages after the trial court has refused to set aside the verdict on that basis, we are bound by the familiar rule that "the question as to the amount of damages is a question of fact." (Wood v. Alves Service Transp., Inc. (1961) 191 Cal.App.2d 723, 733 (Wood).) "In the first instance, it is for the jury to fix the amount of damages, and, secondly, for the trial judge, on a motion for a new trial . . . . Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has neither seen nor heard the witnesses, and has no power to pass upon their credibility." (Ibid.)
To hold an award excessive it must be "so grossly disproportionate to any reasonable view of the evidence as to raise a strong presumption that it is based upon prejudice or passion." (Koyer v. McComber (1938) 12 Cal.2d 175, 182 (Koyer); Bazzoli v. Nance's Sanitarium (1952) 109 Cal.App.2d 232, 243-244.)
Defendant contends "there was no evidence admitted and received into evidence that justified [plaintiffs] alleged $45,000.00 in lost earnings and $120,000.00 for the hiring of various staff 'to assist.'" He also contends "there does not appear to be sufficient evidence to justify the award of $250,000.00 in [pain and suffering] damages." (Italics added.) Defendant has not presented an adequate record to support these contentions.
As defendant concedes, plaintiff testified at the trial in support of his damages claims. Critically, defendant has failed to provide a record of that testimony and, thus, we have no way to judge whether the award was "so grossly disproportionate to any reasonable view of the evidence as to raise a strong presumption that it is based upon prejudice or passion." (Koyer, supra, 12 Cal.2d at p. 182, italics added.) The trial court-the only one to hear plaintiffs testimony-found the evidence sufficient to support the damages award. Without a record of the evidence, we plainly cannot set aside that decision. (Wood, supra, 191 Cal.App.2d at p. 733.)
DISPOSITION
The judgment is affirmed. Plaintiff Dhia Alhashim is entitled to costs.
We concur: EDMON, P.J. ADAMS, J.[*]
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.