Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VC044555. Robert J. Higa, Judge.
Law Offices of Marlon M. Alo and Marlon M. Alo for Plaintiff and Appellant.
Liebhaber & Masserman, Jack M. Liebhaber and Elizabeth H. Lopez for Defendant and Respondent.
ZELON, J.
The trial court granted nonsuit on Mario Cordero, Jr.’s tort claims arising out of an automobile collision. Cordero, Jr. claims that the nonsuit was improper because he offered evidence of compensable injuries and detriment that would have permitted the jury to render a verdict in his favor. We reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2003, the car in which five-month-old Cordero, Jr. was riding with his parents and sister suffered a flat tire on the freeway. While they were stopped on the freeway and telephoning for assistance, their car was hit from behind by a car driven by Evans. Cordero, Jr., and other members of the family sued Evans. Evans admitted that he caused the collision, and the trial focused entirely on damages.
We are considering this matter with another case arising out of this collision, Case No. B196589, in which the plaintiff was Cordero, Jr.’s father, Mario Cordero, Sr.
According to the testimony of Cordero, Jr.’s mother and sister, Cordero, Jr. was fastened into an infant car seat in the rear center seat. After the collision he was crying, screaming, and vomiting. There was glass and some blood on his face; he was bleeding and had a black eye. Cordero, Jr. was transported to Long Beach Memorial Hospital. There, medical tests were performed on him for a number of hours.
Counsel represented to the court in proceedings at sidebar that initial tests run on Cordero, Jr. indicated the presence of intracranial bleeding, leading to a CT scan, “and they found there was a blood clot or intracranial bleeding, and they consulted a neurosurgeon who ordered another re-scan, and it was ruled out after that.” The parties argued over the proper way to present this information, and the trial court ordered that to prove Cordero’s mother’s emotional distress damages, the testimony would come in that she believed him to have been suffering from intracranial bleeding, and that the defense could ask her whether she later found out that he was not. Cordero, Jr.’s mother testified that she learned that Cordero, Jr. had intracranial bleeding. On cross-examination, counsel asked, “Isn’t it true that you were informed that all the tests that were done to your son’s head were normal that night?” She responded, “No, not that night.” She denied that Cordero, Jr. was released from the hospital the night of the incident, denied knowing who the pediatric neurologist was who treated Cordero, Jr., and denied knowledge of what the neurologist concluded as to Cordero, Jr.’s prognosis.
Cordero, Jr.’s mother testified at trial that she had received numerous bills for the family’s medical treatment, and verified them one by one. Designated expert Khalid Ahmed, M.D., testified that he had reviewed the bill from the radiologist for services rendered. He testified, “[T]his is the billing from the radiologist for Baby Cordero’s hospitalization from the radiologist. And this is from multiple studies that were read. And this appears to be medically necessary and reasonable. The billing is for $1612. These were for about six CAT scan studies that were done.” He also testified that charges in Exhibit 25 related to Cordero, Jr.’s treatment in the emergency room, intensive care unit, and with the trauma team; that they were “reasonable, medically necessitated and indicated;” and that they were in the amount of $25,822.66.
At the close of the plaintiffs’ presentation of evidence, Evans’s counsel moved for a nonsuit on the ground that there was no evidence of injury to Cordero, Jr. Cordero, Jr.’s counsel argued that there was circumstantial evidence of injuries to Cordero, Jr., to which the court responded, “Because you’re in the car doesn’t mean you get damages for it.” Cordero, Jr.’s counsel answered that there was circumstantial evidence that the baby was in pain, and was interrupted by the trial court, which stated, “The baby was crying. There is no evidence the baby was in pain. The baby was crying.” Cordero, Jr.’s counsel said, “The baby was crying, correct, and he had blood—” and the court again interrupted, with “Well, that was your leading question. You asked about blood in the eye or something like that.” Counsel continued, “There was testimony to th[at] effect and there was testimony that he had a black eye from the accident.”
The court noted that both Cordero, Jr.’s mother and sister testified that they saw him in a hospital room, “but there is really no evidence of any real injuries here.” Cordero, Jr.’s counsel responded that the child was hospitalized and underwent medical tests, which resulted in medical bills. The court interjected, “Because they run tests don’t mean they’re injured.” Counsel responded, “I understand, Your Honor, but he incurred bills. [¶] Whether the fact—” and the court again cut in, saying “All right. [¶] As to Baby Mario, Mario Jr., the nonsuit is granted.’
Cordero, Jr. appeals.
DISCUSSION
The sole issue on appeal is whether the trial courterred when it granted a judgment of nonsuit with respect to Cordero, Jr.’s claims against Evans. In reviewing a nonsuit, we affirm the trial court’s judgment if, interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff, a judgment for the defendant is required as a matter of law. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
In reviewing a nonsuit ruling, “[o]nly the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839; see also Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1385.) Here, the entire ground for the oral nonsuit motion was: “There’s been no evidence as to what injuries this plaintiff suffered in this case,” with the follow-up sentence “There’s no records.” We therefore consider whether there was evidence that Cordero, Jr. suffered injuries—or, more precisely, whether Cordero, Jr. had furnished evidence of detriment proximately caused by Evans’s negligence. (Civ. Code, § 3333.)
Although the record is not complete, the answer to this question is clearly affirmative, because Cordero, Jr. presented evidence of physical injuries, pain and suffering, and medical expenses resulting from the collision. Cordero, Jr., though an infant, is entitled to damages for pain and suffering caused by Evans’s conduct. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895 [despite infants’ inability to testify as to their mental suffering, “an infant plaintiff should recover for pain and suffering incurred as the result of negligently caused injury”].) “[L]ay testimony may be admitted and may provide for infants as well as adults the basis for a finding of pain and suffering,” (id. at p. 896) and “even in the absence of any explicit evidence showing pain, the jury may infer such pain, if the injury is such that the jury in its common experience knows it is normally accompanied by pain.” (Ibid.) Cordero, Jr.’s mother and sister testified that Cordero, Jr., who had been playing with his father and sister before the incident was crying, screaming, vomiting, and bleeding after the collision. He had glass and blood on his face, at least one visible mark, and a black eye. The jury heard descriptions of the collision and saw photographs of the car after the impact, and certainly would reasonably have been able to conclude from both lay testimony and its own inferences that Cordero, Jr. experienced physical injury and mental suffering as a result of the collision. Evans argues that whatever suffering Cordero, Jr. may have suffered is not compensable because he failed to demonstrate any physical injury, but this argument disregards the testimony that Cordero, Jr. had a black eye and was bleeding.
Furthermore, Cordero, Jr. also provided some evidence of detriment in the form of medical expenses. Although it appears that he was spared serious injury, he is nonetheless entitled to recover those reasonable and necessary medical testing and treatment costs that resulted from the collision, as they are part of the detriment caused by Evans’s act. (Civ. Code, § 3333 [measure of damages is the amount which will compensate for all the detriment caused by the breach of an obligation not arising from contract]; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1007 & fn. 26; Miranda v. Shell Oil Co. (1993) 17 Cal.App.4th 1651, 1656-1657.)
According to Cordero, Jr.’s opening brief, his medical special damages were “$165.00—Santa Fe Springs Fire Department (Plaintiffs’ Exhibit 10); $300—Dr. Nguyen, trauma consultation (Plaintiffs’ Exhibit 23); $25,822.66, LBMMC [Long Beach Memorial Medical Center], for hospitalization services in the emergency room,[] admission in the intensive care unit, for the trauma team and for multiple studies (Plaintiffs’ Exhibit 25); $156.75, pathology doctor (Plaintiff’s Exhibits 27, 28); $687.00, ER doctor (Plaintiffs’ Exhibit 31); $1612.00 radiologist (Plaintiffs’ Exhibit 32).” All of these exhibits were admitted, fully or partially, into evidence. Plaintiff, however, does not appear to have provided Exhibits 10, 23, 27, 28, 31, or 32 to this court. He does not supply a record reference to the exhibits themselves, nor have we located them in our review. The only trial exhibit on which he relies that was provided to this court was Exhibit 25, attached to Cordero, Jr.’s opening brief. (While this document bears no exhibit stamp, Evans does not contest that this document is Exhibit 25.)
California Rules of Court, rules 8.124 and 8.224 set forth procedures for presenting trial exhibits to the appellate court through an appendix or through by transmittal.
Without most of the exhibits themselves to examine, we have considered the testimony about Cordero, Jr.’s medical services and bills to determine whether it, standing alone, is sufficient to demonstrate damages. In many instances the testimony is less than illuminating. Ahmed never testified that Exhibit 23 pertained to Cordero, Jr.; he said, “This is a bill on Francine Narvaez [Cordero, Jr.’s mother] from a Dr. Nguyen which was for subsequent surgical trauma consultation for $300. This is medically necessary and it appears to be customary and usual, and reasonable for the services that were rendered.” Similarly, with respect to Exhibit 31, Ahmed testified, “This is for the emergency room doctor who saw and initially stabilized. And this is for $687. This is medically necessary and this is for Francine Narvaez, emergency room evaluation and appears to be reasonable.” We do not see any indication that Ahmed ever testified that these bills were for treatment for Cordero, Jr., nor has Cordero, Jr., identified any such testimony.
In other instances, we cannot determine what the evidence is from the record provided on appeal. According to Cordero, Jr.’s opening brief, both exhibits 27 and 28 pertain to him. In testimony, however, Ahmed did not identify the charges in Exhibit 27 as being for services rendered to Cordero, Jr., merely testifying “These are reasonable and necessary. This is from the pathology doctor at Long Beach Memorial Hospital. The bill is for $156.75. This is for the doctor services for the lab studies that were ordered.” Then he proceeded to testify about exhibit 28, a bill apparently in the same amount, “[T]his is again from the pathology, different doctor, for the lab studies done on Francine Narvaez. And these are various labs that were drawn when she was seen in the emergency room, and the charge is $156.75, and these are medically necessary and reasonable.” From this limited information and without the exhibits themselves we cannot ascertain which of these bills, if either, pertains to Cordero, Jr., or that services were provided to him in the amount of $156.75.
We are thus left with: Exhibit 25; Ahmed’s testimony that the charges in Exhibit 25 ($25,822.66) were “reasonable, medically necessitated, and indicated,” and for Cordero, Jr.; Ahmed’s testimony that the radiology bills in Exhibit 32 (not provided) were for Cordero, Jr., that they were for approximately six CAT scans, and that the amount of $1612 was reasonable for these medically necessary services; and testimony that Cordero was transferred to the hospital by ambulance. While this is clearly not the full universe of evidence of damages that was presented in the trial court, this evidence of medical treatment and bills and the evidence of Cordero, Jr.’s physical injuries, pain and suffering were enough to permit a jury verdict that Cordero, Jr. had suffered compensable detriment in the collision. “A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff’s favor.” (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 838.) Here, the trial court erred by granting the motion for nonsuit on the basis that there was no evidence that Cordero, Jr. suffered injury as a result of Evans’s conduct.
While our review is based on the whole record rather than excerpts chosen by the appellant (Kidron v. Movie Acquisition Corporation (1995) 40 Cal.App.4th 1571, 1581), Evans has not argued that any portions of the record not supplied on appeal would prevent this court from addressing the nonsuit issue. (Murray’s Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1290.)
Evans contends, however, that the nonsuit was proper because the evidence on which Cordero, Jr. relies to establish medical treatment costs and damages was erroneously admitted into evidence by the trial court. Evans argues that Cordero, Jr. failed to lay a proper evidentiary foundation for the medical bills, that they therefore are “inadmissible hearsay,” and that the expert testimony concerning the reasonableness of the charges was “wrongfully admitted.” The California Supreme Court has long rejected this argument. In Estate of Callahan (1967) 67 Cal.2d 609, at page 617, the respondent argued that a nonsuit had properly been granted because a crucial piece of evidence (on which the appellant relied to demonstrate that nonsuit was improper) had been improperly admitted into evidence. The Supreme Court wrote, “It is contended, however, that the testimony of Mr. Ely purporting to fix the time of execution [of a portion of a will] was erroneously admitted, over proper objection, because it lay outside the scope of his expertise. Since contestants presented no other evidence purporting to place the execution of sheet B within the critical period, it is argued, the nonsuit was properly granted as to this ground of contest. This contention ignores the well-settled rule that, upon a motion for nonsuit, ‘Evidence, whether erroneously admitted or not, if relevant to the issues joined, must be given the credit and benefit of its full probative strength, . . .’ (Italics added.) (Berger v. Lane (1923) 190 Cal. 443, 452-453 [213 P. 45]; [additional citations].) It is therefore clear that Mr. Ely’s evidence as to the time of execution, which was clearly relevant to the issues joined, must be given full effect in the instant case regardless of whether or not its admission was erroneous. If the evidence was improperly admitted, and the jury in due course determines the issues of testamentary capacity adversely to proponents, their remedy lies by way of appeal.” The same recourse will be available to Evans in the future if a jury awards damages to Cordero, Jr., but his evidentiary error argument is not properly raised on the review of the nonsuit ruling. (Ibid.)
DISPOSITION
The judgment is reversed and the matter remanded for a new trial. Appellant shall recover his costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.