Opinion
B222071
02-02-2012
FRANK LINDSEY, Plaintiff and Appellant, v. RAZMIK GHARIBIAN et al., Defendants and Respondents.
Frank Lindsey, in pro. per., for Plaintiff and Appellant. Doherty & Catlow and Michael R. Blaise for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC098434)
APPEAL from a judgment of the Superior Court of Los Angeles County, John L. Segal, Judge. Affirmed.
Frank Lindsey, in pro. per., for Plaintiff and Appellant.
Doherty & Catlow and Michael R. Blaise for Defendants and Respondents.
Frank Lindsey, acting in propria persona, appeals from the judgment after the jury awarded him $33,000 in damages in his personal injury lawsuit arising from a rear-end car collision. Lindsey's appeal principally focuses on the trial court's denial of his motion for new trial, asserting irregularities in the court proceedings arising from the trial court's denial of his request for reasonable accommodations for his mental and physical disabilities, and inadequate damages for his future medical expenses and loss of earnings. We affirm, finding Lindsey's requests did not follow the form or substance of California Rules of Court, rule 1.100, addressing requests for accommodations by persons with disabilities, and even if the procedures are not mandatory, the trial court's orders did not affect Lindsey's right to meaningfully participate in the court proceedings to protect his interests. The trial court also properly denied Lindsey's motion for new trial on the alternative grounds, as the damages awarded were not inadequate as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2006, Shant Gharibian (Gharibian) was driving a car leased by his father, when his car rear-ended Lindsey's car (2006 accident). Lindsey testified at trial that Gharibian was traveling at approximately 25 to 30 miles per hour when he hit Lindsey's car. Lindsey was stopped at a red light on the campus of the University of California Los Angeles (UCLA). Lindsey was a graduate student in the producer's program at the UCLA film school. He was on his way to a doctor's appointment at UCLA for treatment related to his preexisting conditions when the accident occurred. He reported the accident to his doctor.
Lindsey sued both Gharibian and Gharibian's father for negligence.
1. The Trial and Jury Verdict
Lindsey represented himself at trial. He contended as a result of the 2006 accident, he suffered soft-tissue damage resulting in neck and back pain, neurological symptoms, depression, and anxiety.
Lindsey suffered from "central pain syndrome," "a condition which only occurs in patients with preceding injury to their central nervous system, that is, brain injury, brain stem injury or spinal cord injury." Lindsey suffered a spinal cord injury in 1980 and is a paraplegic confined to a wheelchair (1980 accident). Lindsey also suffered from post-concussion syndrome as a result of a 2001 accident (2001 accident). Dating back to 2001, Lindsey took a low dosage of the pain medicine, Vicodin, along with anti-anxiety medicine and an antidepressant. Lindsey and his treating physician both testified that his pain worsened after the 2006 accident, and ever since he has been prescribed increasingly stronger pain medications.
Lindsey worked as a producer, among other jobs. He testified that after the 2006 accident, he could no longer work, and the severe pain, coupled with his pain medications, made it more difficult for him to live independently, leave his house, and drive his car. Lindsey sought to recover for his lost earnings and past and future medical expenses, which included additional medical equipment.
Lindsey's treating physician, Dr. Howard Lehrhoff, testified regarding both his past and future medical expenses, and the durable medical equipment Lindsey sought. Lindsey estimated it would cost more than $100,000 for this equipment, which included a van with a wheelchair lift, an electric wheelchair, and a functional electric stimulation bicycle. Lehrhoff testified that this equipment gave Lindsey the best chance to recover more function. Lehrhoff also responded to direct questions about Lindsey's other medical treatment, referring to an exhibit attached to Lehrhoff's deposition testimony, and medical bills Lindsey incurred following the 2006 accident. Lindsey, however, did not offer these records into evidence or any other records related to his claim to recover for past and future medical expenses.
During jury deliberations, the jury asked the court the following question: "Can we see dates [and] amounts for past medical bills?" The trial court's response referred the jury to the testimony.
The jury returned a verdict in favor of Lindsey in the amount of $33,000, awarding $23,000 in economic damages, and $10,000 in noneconomic damages against Gharibian.
Judgment was entered on December 23, 2009, and notice of entry of judgment was served by mail on December 30, 2009. Lindsey filed a notice of intent to move for a new trial on January 14, 2010. Lindsey filed a notice of appeal on January 27, 2010 from the judgment.
2. The Motion for New Trial
Lindsey's notice of intent to move for a new trial listed all the grounds stated in Code of Civil Procedure section 657, except insufficiency of the evidence to justify the verdict. In his memorandum of points and authorities, Lindsey narrowed the grounds for his motion, contending that there were irregularities in the proceedings because he was denied reasonable accommodations, and he was awarded inadequate damages.
a. Lindsey's Requests for Accommodations During Trial
During the final status conference, the trial court stated: "Obviously, you can go anywhere you want in the courtroom. . . . You can use the counsel table, and Mr. Lindsey, when you testify, you want to testify from the counsel table?" Lindsey responded: "I'll figure it out when I get there. . . ." Lindsey made no pretrial requests for accommodations.
Lindsey cites the trial court's denial of the following requests during trial.
(1) . Removal of Chairs Near Jury Box
On the first day of trial, Lindsey asked the trial court to remove six chairs in front of the jury box. The trial court agreed to remove the chairs, but Lindsey states in his declaration that the court never did so. Lindsey states "those six chairs were a psychological and physical barrier between me and the jury. However subtle the mistake, I believe that it kept the jury from connecting with me and me having access [to] the jury as well."
(2) . Request to Leave Early on First Day of Trial
In the late afternoon on the first day of trial, Lindsey did not have any additional witnesses to call, and the trial court stated: "[t]hen you may testify." In the presence of the jury, Lindsey responded: "I've been up for almost 48 hours. My back is killing me. I'm pretty much done for the day myself."
The trial court excused the jury for their afternoon break and stated: "On the record with the parties, Mr. Lindsey. Part of my job is to make credibility determinations, not in this case, the jury is going to do that. I think you're doing fine. I don't really believe that you're unable to continue unless you tell me specifically in what way because your actions today belie that and contradict that. [¶] And although any reviewing court that looks at this won't be able to get a full flavor of it, but will be able to look at the questioning and answering. You are representing this case better than many lawyers, very sophisticated questioning and answering. If you need a break, that's fine, but I don't want to send the jury home this early, if there's more testimony to be heard. If you want to call someone else, you can. If you don't, you may call yourself." In response, Lindsey explained that the problem was he did not understand the "timing of how things would happen this afternoon . . . ."
During the course of the colloquy discussing Lindsey's remaining witnesses, Lindsey informed the court that he intended to testify the following day because he would "have the attorney signed on . . . ." Lindsey did not tell the trial court that he intended to substitute counsel and never filed a substitution of attorney. The trial court stated that it was not waiting until the following day, and explained that Lindsey could testify by giving a narrative.
Lindsey began his narrative. At the conclusion of the first day of trial, and out of the presence of the jury, Lindsey told the trial court he intended to have an attorney with him the following day. The trial court responded: "If he filed a notice of substitution, he may."
Lindsey did not file a substitution of attorney on the following day. He continued his narrative, informing the jury that he was his own lawyer because it "just wasn't financially feasible," to hire one.
(3). Sidebar Conferences
During trial, Lindsey stated in his declaration that he "had a matter that needed a side bar." Lindsey, however, never made a request for a sidebar. As stated in Lindsey's declaration: "The judge looked out in front of his desk and I immediately knew, after 30 years of being a paraplegic, that the judge had never been presented with such a request. I suggested that we sidebar off to the left side away from the jury, but [t]he judge decided that there would be no sidebars, that any matters needed to be discussed would have to wait until a break, or a lunch break or at times when the jury was not in the courtroom."
Lindsey stated the "inability to sidebar at times when I needed to discuss matters out of earshot of the jury severely impaired [his] ability to conduct a fair trial."
b. Future Medical Expenses
During direct examination of Lindsey's treating physician, Lindsey referred to records that were attached as an exhibit to his doctor's deposition to prove past and future medical expenses. These records included Lindsey's transcripts while he was a graduate student at UCLA, medical bills, prescription bills, letters recommending medical equipment, and medical records from other physicians. Lindsey did not attempt to offer into evidence any medical records referred to during this testimony, or any other medical records.
3. The Trial Court Denied Lindsey's Motion for New Trial
Citing Biscaro v. Stern (2010) 181 Cal.App.4th 702, Lindsey argued during the hearing on the motion for new trial that the failure to make reasonable accommodations for his disabilities was reversible error.
In ruling on the motion for new trial, the trial court believed it had made all the accommodations that Lindsey requested. The trial court stated: "The record may not reflect this, because most of this was done when the court was not on the record, but both this court staff and the court assisted the plaintiff in the courtroom, throughout the courthouse, filing papers, with his documents, with the plaintiff's evidence and with his physical and other needs."
As for the removal of the six chairs, those chairs "are right in front of the jury box." The trial court stated the chairs are normally removed after jury selection, but it could not recall if they were moved in this case. The court recalled, however, that Lindsey had "free range of movement in the area, all around the counsel table and the jury box, and the plaintiff spoke to the jurors, facing them from a distance very close, I'd say about three feet away. And as reflected in the verdict in plaintiff's favor, plaintiff's testimony and argument were effective."
On the request for a sidebar, all issues that needed to be discussed outside the presence of the jury were discussed before or after breaks in the testimony. The trial court stated it does "everything it can to avoid side bars[.]"
The trial court also noted that the recovery of $33,000 was a "significant recovery in this case . . . particularly in light of the fact that plaintiff's car shows virtually no damage at all." The trial court noted the jury's verdict was fair and based upon the evidence.
In denying the motion, the trial court praised Lindsey's presentation of the case, resulting in the substantial verdict in his favor, but noted Lindsey would likely not get a more favorable award in a new trial. The court concluded Lindsey did not raise any grounds to warrant a new trial.
DISCUSSION
The denial of a motion for a new trial is reviewable on appeal from the judgment. (Code Civ. Proc., § 906; In re Marriage of Liu (1987) 197 Cal.App.3d 143, 153, fn. 4.) Lindsey timely appealed from the judgment, so the order is reviewable. (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 505, fn. 2.) In reviewing an order "denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial." (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872; see Code Civ. Proc., § 657; Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 46-47.)
The authority of a trial court to grant a new trial is established and circumscribed by statute. (See Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.) Code of Civil Procedure section 657 sets out seven grounds for the motion: (1) "Irregularity in the proceedings"; (2) "Misconduct of the jury"; (3) "Accident or surprise"; (4) "Newly discovered evidence"; (5) "Excessive or inadequate damages"; (6) "Insufficiency of the evidence . . . or the verdict or other decision is against law"; and (7) "Error in law." Here, we are only concerned with irregularity in the proceedings arising from the denial of Lindsey's requests for accommodations, and inadequate damages.
1. The Trial Court Did Not Commit Reversible Error in Denying Lindsey's Requests During Trial that were Unrelated to his Disabilities
Lindsey contends he sought and was denied accommodations under California Rules of Court, rule 1.100, which provides persons with disabilities full and equal access to the judicial system. (Cal. Rules of Court, rule 1.100(b).) A party may present a request for accommodation in written format or orally. (Id., (c)(1).) The applicant must describe the accommodation sought and state the impairment necessitating the accommodation. (Id., (c)(2).) The request must be made as far in advance as possible, but no less than five court days before the requested implementation date, although the court may waive this requirement. (Id., (c)(3).) The court must inform the applicant in writing that the request is granted or denied. (Id., (e)(2)(A).) A request may be denied for only three reasons, that is, the applicant failed to satisfy the requirements, the requested accommodation would "create an undue financial or administrative burden," or the requested accommodation would "fundamentally alter the nature of the service, program, or activity." (Id., (f).) Review of a determination made by a judicial officer is by a petition for writ of mandamus in the appropriate court within 10 days after the response to grant or to deny the accommodation is given or sent. (Id., (g)(2).)
Two Court of Appeal cases construing California Rules of Court, rule 1.110, have held that it is structural error if the trial court does not comply with the rule. (In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1274; Biscaro v. Stern, supra, 181 Cal.App.4th at p. 707.)
In re Marriage of James & Christine C., supra, 158 Cal.App.4th 1261, held the denial of an accommodation on a ground other than those stated in the rules of court was structural error. In this marital dissolution case, the wife suffered from bipolar disorder and breast cancer, and requested an accommodation that included a trial court continuance; she had previously sought and obtained 29 trial continuances. (Id. at p. 1270.) The wife represented herself during trial of custody, support, and property issues and before trial filed an ex parte request for an accommodation. (Id. at p. 1269.) Accompanying the request was the wife's psychiatrist's recommendation of hospitalization in a psychiatric facility. (Ibid.) The wife checked herself into the hospital, and the trial proceeded without her, which ended in the court's entry of judgment on the contested issues. (Id. at pp. 1270-1271.) The appellate court reversed, concluding the wife presented the accommodation, stated the impairment, and made the request before the proceedings. (Id. at pp. 1273-1274.) Despite the court's frustration with the repeated continuances, the power to control the court was not one of the grounds to deny the request. (Id. at pp. 1274-1277.) Since the trial court denied the request, the wife was denied equal access to the courts. (Id. at p. 1277.)
In Biscaro v. Stern, supra, 181Cal.App.4th 702, the court held that the failure to rule on a request for accommodation by a propria persona litigant suffering from neuropsychiatric disabilities was reversible error. The husband followed the procedures in the rules of court and requested a facilitator who understood "traumatic brain injuries," to help him during the court proceedings. The trial court did not rule on the request, and in the husband's absence, it issued a restraining order against him and entered a default judgment. (Id. at pp. 706-707.) The appellate court reversed without a showing of prejudicial error, reasoning the failure to rule on the request left the court unable to assess what impact the grant of accommodation would have had on the proceedings. (Id. at p. 710.)
Although Lindsey cites and relies on Biscaro, this is not a case in which the trial court failed to rule on a procedurally proper request for reasonable accommodations. Rather, Lindsey's contention is he was denied his oral requests for accommodations during trial in the absence of any of the three grounds for denial as stated in the rules of court.
Unlike the cases cited, Lindsey's requests did not comply with the procedures set forth in California Rules of Court, rule 1.100 in form or substance.
Lindsey's oral request to move the chairs on the first day of trial appears to have been based upon limited wheelchair access near the jury box in the courtroom, although there is no stated reason in the record. The trial court agreed to move the chairs, as was its common practice after jury selection, but according to Lindsey the chairs were not moved. Lindsey never raised the issue again during trial, nor did he attempt to seek review of what he refers to as the "denial of this request," as prescribed in the rules of court. (Cal. Rules of Court, rule 1.100(g)(2).) Lindsey contends the denial of his request presented a "physical barrier" and limited his access to the jury. The chairs presented a physical barrier to both Lindsey and defense counsel, permitting neither one to reach the jury box. As the trial court stated, Lindsey had full access to the courtroom, was not denied access to the jury, and persuasively argued to them within three feet of the jury box. Lindsey's situation is remarkably dissimilar to the wife in In re Marriage of James & Christine C., supra, 158 Cal.App.4th 1261, and the estranged husband in Biscaro v. Stern, supra, 181 Cal.App.4th 702. In those cases, the lack of a reasonable accommodation prevented the requesting party from meaningfully participating in the court proceedings to protect their interests, which resulted in structural error. Based upon this record, we find no structural error requiring reversal.
Lindsey's two remaining requests were not related to any physical or mental disability, but were trial management issues left to the discretion of the trial court. Lindsey's request to leave early was because he was "tired," was up late preparing for trial, and did not have another witness scheduled. Despite a direct question from the trial court, Lindsey did not state he needed to leave early because of a physical or mental disability. In hindsight, Lindsey argues his physical disability and pain limited the number of hours per day that he could participate at trial. As stated, however, he did not make a request for short days before trial, at the beginning of the first day of trial, or any subsequent day during trial. Lindsey cannot turn his scheduling error into structural error arising from a denial for a reasonable accommodation. Likewise, the sidebar issue was not a request for a reasonable accommodation because Lindsey never made the request, and the trial court had a policy against sidebars during trial.
Lindsey also appears to argue that the trial court committed reversible error when it ordered him to begin his testimony without the aid of an attorney. Lindsey told the trial court he intended to have an attorney question him during his testimony, but the trial court cautioned that Lindsey had to file a substitution of counsel. Lindsey, however, never filed a substitution of attorney. We find no error.
We find no error requiring reversal under California Rules of Court, rule 1.100.
2. The Jury's Award Was Not Inadequate As a Matter of Law
Lindsey contends that the jury's award of $33,000 is inadequate and does not adequately compensate him for his future medical expenses and lost earnings. Lindsey's contention is primarily based upon his failure to introduce into evidence the medical records attached to Lindsey's treating physician's deposition.
Inadequacy of damages is a statutory ground for granting a motion for new trial. (Code Civ. Proc., § 657.) The amount of damages is a factual question, committed first to the discretion of the jury and subsequently to the discretion of the trial court, on a motion for new trial. (Id.; see also 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 36, p. 621.) The trial court noted that based upon the evidence, Lindsey obtained a "significant recovery."
Lindsey contends the jury would have awarded significantly higher damages if he had entered into evidence the medical records attached as an exhibit to his treating physician's deposition. Lindsey did not offer these medical records into evidence and faults the court for failing to give him help. Although Lindsey appeared in propria persona, the rules of civil procedure apply equally to parties represented by counsel and those who forgo attorney representation. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Moreover, Lindsey cannot show prejudicial error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1038.) Lindsey's treating physician testified regarding Lindsey's medical history, medical treatment, medical expenses following the 2006 accident, including the cost of his prescription drugs, and the cost of medical equipment for his future care. Lindsey has not pointed to any records containing additional information related to these damages that was not addressed during the testimony of his treating physician. The jury could have disbelieved that Lindsey's damages, which included future medical expenses and lost earnings, were causally related to the injuries he suffered in the 2006 accident.
We also cannot say that the jury's determination to award $33,000 was inadequate as a matter of law. There was evidence that Lindsey incurred medical expenses and suffered pain after the 2006 accident. The evidence, however, also showed that Lindsey was on pain medication following his 2001 accident, and suffered from preexisting conditions. The jury was entitled to conclude that the preexisting conditions contributed to Lindsey's pain, thereby awarding medical expenses attributable to the 2006 accident and limiting the recovery of future medical expenses. The jury also could have disbelieved that Gharibian's negligence impaired Lindsey's ability to work and concluded that the preexisting conditions, not the 2006 accident, left Lindsey unable to work. The evidence presented at trial related to the nature of the accident and to Lindsey's preexisting conditions was sufficient for the jury to determine that not all of Lindsey's requested damages were causally related to the 2006 accident. The evidence supports the amount ultimately awarded by the jury. We find no prejudicial error.
We have considered Lindsey's remaining arguments, and none of these additional points are necessary for the resolution of this appeal.
DISPOSITION
The judgment is affirmed. Each party to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.