Opinion
E052589 Super.Ct.No. RIC524042
01-26-2012
JOSEPH FEKETE, Plaintiff and Appellant, v. SPENCER SHERMAN et al., Defendants and Respondents.
Parker-Stanbury and Jorge L. Garcia-Barron for Plaintiff and Appellant. Gilbert, Kelly, Crowley & Jennett and Peter J. Godfrey for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Michael M. Duggan and Gary B. Tranbarger, Judges. Affirmed.
Parker-Stanbury and Jorge L. Garcia-Barron for Plaintiff and Appellant.
Gilbert, Kelly, Crowley & Jennett and Peter J. Godfrey for Defendants and Respondents.
On substantial evidence grounds, plaintiff and appellant Joseph Fekete appeals a jury's verdict in favor of defendants and respondents Nancy Sherman and Spencer Sherman on a negligence cause of action. Plaintiff also challenges the trial court's exclusion of the videotaped deposition of an expert and a medical bill listing treatment rendered to him in excess of $8,000. We affirm.
FACTUAL AND PROCEDURAL HISTORY
On April 16, 2009, plaintiff filed a form complaint alleging a single cause of action against Nancy Sherman and Spencer Sherman for negligence in the operation of a motor vehicle. Trial commenced on October 5, 2010.
At trial, plaintiff testified he was involved in a motor vehicle accident at a parking lot on November 15, 2007. His vehicle, a 1987 Corvette, was parked in a lot at his place of employment. Defendant's vehicle was a Ford pickup truck parked in the same parking lot.
Plaintiff testified he got into his car, put on his seatbelt, and looked in all directions for other vehicles. He did not see any other vehicles moving or coming out of other spaces, so he backed out of his parking space about 25 feet to have enough clearance to pull forward and make a turn to the right. When he stopped to switch from reverse to drive, he noticed defendant's brake and reverse lights in his side mirror on the driver's side. He honked his horn and was able to move his car slightly forward to get out of the way but not enough to avoid the collision with defendant's truck as it backed out of the parking space.
According to plaintiff, defendant's truck "hit hard" behind his rear wheel and the whole car "shook." He was wearing his seatbelt and his body did not strike any part of the interior of the car. As a result of the collision, defendant's bumper, window, and some electrical components were damaged. After the accident, plaintiff said he got out of his car, talked with defendant, and exchanged insurance information. Defendant was apologetic and said he noticed plaintiff getting into his car and should have thought about it but did not. Referring to the property damage on his Corvette, plaintiff commented, "[T]his is going to be expensive." Plaintiff later testified he believed the fair market value of his car prior to the accident was $15,000, and the value after the accident was about $5,000. Plaintiff admitted he did not see any damage to defendant's truck.
The evening following the accident, plaintiff noticed stiffness and low level pain in his neck and upper back. The next morning, he felt worse and went to the doctor and was prescribed medication for post-concussion syndrome. Although plaintiff received physical therapy, he still did not have a full range of neck motion. Plaintiff also complained of twitching, numbness, vision and processing problems, headaches, forgetfulness, and insomnia. Because of these problems, his doctor told him not to work. For awhile he lost his insurance coverage because he was not working enough hours; as of the time of trial, he had insurance again and needed to continue therapy and treatment. He estimated his lost earnings of approximately $150,000 over the last three years. Plaintiff was involved in two other car accidents in 2007 but said he did not suffer any injuries similar to the ones he had experienced following the accident in this case.
Plaintiff obtained medical treatment following the accident through Kaiser Permanente, an HMO. Plaintiff's treating neuropsychologist, Randolph Kado, testified he diagnosed plaintiff with post-concussion syndrome and believed the accident on November 15, 2007, was the cause of plaintiff's symptoms. Plaintiff was his patient for about a year. In treating plaintiff, he used computer programs to try to improve plaintiff's processing speed, attention, memory, visual perceptual skills, and reasoning abilities. He last treated plaintiff in July of 2009, but did not believe plaintiff made significant improvement. It was his opinion plaintiff needed to continue with rehabilitation efforts. He was surprised plaintiff was able to work even 15 hours per week. During cross-examination, the neuropsychologist admitted plaintiff's symptoms could have existed prior to the accident, his symptoms could have been exaggerated or faked, and the symptoms of post-concussion syndrome can mimic symptoms from other disorders.
Both defendants testified at trial. Defendant Nancy Sherman testified she was a registered owner of the truck involved in the accident, but had no personal knowledge of what happened. Defendant Spencer Sherman testified he parked the truck to eat lunch in a nearby restaurant. The parking lot was almost full when he returned to his truck after lunch. He did not notice anyone getting in or out of any cars. He got in his truck, put on his seatbelt, started the truck with his foot on the brake, and put the truck in reverse. He looked to the left and right and through the rearview mirror. A utility van was parked next to him, and he was unable to see anything on the other side of the van. He started to roll back by letting his foot off the brake a little without using the gas pedal. He heard a crunch and stopped his vehicle. After the crunch, he looked to the right and noticed a vehicle behind him. Before he got out of the truck, he drove it about four feet back into the parking space. When he got out of the truck, plaintiff said, "'You just bought yourself a world of problems.'" There was no damage to his truck, but he did notice there was a crack on the left rear quarter panel of plaintiff's car. He also noticed the coating was peeling off. After they exchanged insurance information, defendant said, "Apologize for the inconvenience."
Defendants also presented expert testimony by an accident reconstructionist and biomechanical engineer. The expert prepared computer animations of the accident to determine the severity of the impact, and his animations were shown to the jury. His computer-animated reconstruction and opinions were based on an inspection of the scene, defendant's vehicle, deposition testimony, human tolerance data, and other documentation produced in the case, such as medical records. Based on his study, the expert believed the speed of both vehicles was less than five miles per hour. The expert concluded the likelihood of a concussion from the accident was "virtually nonexistent" and the likelihood of injury was significantly less than one percent.
In a special verdict form filed on October 12, 2010, the jury concluded defendants were not negligent. Judgment was entered in defendants' favor on October 25, 2010.
DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Plaintiff contends the trial court should have granted his motion for judgment notwithstanding the verdict, because there was insufficient evidence to support the jury's verdict. According to plaintiff, there was consistent testimony by the only witnesses about the facts of the accident, and the testimony established plaintiff backed out of his parking space first and defendant then backed into him. Defendant then apologized for the accident. Based on this evidence, plaintiff believes the only inference is that defendant was at fault for the accident.
"On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's verdict. [Citations.] If there is, we must affirm the denial of the motion. [Citations.] If the appeal challenging the denial of the motion for judgment notwithstanding the verdict raises purely legal questions, however, our review is de novo. [Citation.]" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.)
In evaluating a challenge to the sufficiency of the evidence to support a judgment, "[w]e view all of the evidence in the light most favorable to the judgment, drawing every reasonable inference and resolving every conflict to support the judgment. [Citation.] 'Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact . . . . We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. . . .' [Citation.]" (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.)
"To establish negligence, it must be shown that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, and (3) the breach was a proximate or legal cause of the plaintiff's injuries. [Citations.] The absence of any one of these three elements is fatal to a negligence claim. Accordingly, if the plaintiff cannot establish that the defendant owed the plaintiff a duty, the action must be dismissed. [Citation.]" (Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 195.) Absent a specific statutory standard, the general duty of the driver of a motor vehicle has been defined as follows: "A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles." (CACI No. 700.)
Based on our careful review of the relevant evidence, we cannot agree with plaintiff's contention that negligence by defendant is the only possible inference. Plaintiff contends the evidence clearly establishes he backed up first and was stopped behind defendant's truck as he shifted from reverse to drive, when defendant negligently began backing out of his space. Although the jury might have concluded this was the case, it could also have reasonably inferred both parties just happened to move simultaneously without seeing one another, despite the exercise of ordinary care.
In other words, we essentially agree with the following analysis by the trial court in denying plaintiff's motion for judgment notwithstanding the verdict: "Both parties were backing up. They were in a one-in-a-million kind of situation. Both parties, probably when they started to back up, looked, didn't see anything, started to back up. But because both parties were backing into each other, an impact occurred. A reasonable jury could conclude that it's just an accident that happened, a freakish coincidence as opposed to either side being negligent." We therefore decline to substitute our judgment over the jury's verdict by overturning the trial court's denial of plaintiff's motion for judgment notwithstanding the verdict.
B. EXCLUSION OF EVIDENCE
1. VIDEOTAPED EXPERT DEPOSITION
Plaintiff sought to present to the jury a videotaped deposition by the physician who treated him for his physical injuries from the accident and then authorized and prescribed much of his further treatment. He claims the testimony was admissible under Code of Civil Procedure section 2025.620, subdivision (d), and believes he was prejudiced because the trial court excluded the testimony after reviewing the deposition transcript.
Code of Civil Procedure section 2025.620, subdivision (d) states as follows: "Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340." Code of Civil Procedure section 2025.340, subdivision (m) requires a party intending to offer a videotaped deposition to provide adequate notice to the court and all parties in writing.
On October 5, 2010, just before trial commenced, the court asked plaintiff's counsel to confirm the names of the doctors he expected to call as witnesses at trial. Plaintiff's counsel said, "Dr. Shibata who is by videotape and Dr. Kado. Those are the two. Dr. Kado is a neuropsychologist. He's a PHD, not an MD." Plaintiff's counsel also stated he was seeking to admit the entire videotaped deposition. Defendant's counsel argued Dr. Shibata's deposition testimony was objectionable, because he opined plaintiff was injured in the accident at issue in this case but also admitted he had "no information regarding which specific accident the plaintiff was injured in. So any opinions that he has rendered in the deposition will be inadmissible because they're based on speculation." The court then asked for and was given a copy of the transcript of the deposition. A copy of the transcript is not part of the record on appeal.
Upon further questioning by the court, plaintiff's counsel indicated Dr. Shibata was a treating physician and the "[o]steopathic [d]octor" who diagnosed plaintiff with post-concussion syndrome and testified during his deposition about the symptoms plaintiff displayed after the accident on November 15, 2007. Plaintiff's counsel also admitted there were inconsistencies in Dr. Shibata's testimony.
Plaintiff contends the trial court read the transcript of Dr. Shibata's testimony, and ruled the videotaped deposition would not be admitted. Defendant also claims the record shows the trial court decided to exclude the deposition. However, neither party is able to cite to the record where the court made any specific ruling on this issue. We were also unable to locate the trial court's decision on this issue in the transcript of the trial or in the clerk's minutes during the time of trial.
The record does show the court had a conference with counsel on October 7, 2010, before the jury was brought into the courtroom. At this time, the court asked, "Who do we have lined up?" Plaintiff's counsel said he would call Dr. Kado in the morning and then continue with the remainder of plaintiff's testimony as to his opinion on the diminution of value on his damaged vehicle. Plaintiff's counsel also said, "That's all I have, unless the Court is willing to allow me to show Dr. Shibata's videos out of order, and I couldn't finish evidence until Tuesday. Otherwise, we would rest." The court made no comment on the mentioning of Dr. Shibata's videotaped deposition, and just said, "Let's see how long Dr. Kado is going to take." After Dr. Kado's testimony, plaintiff's counsel indicated he wanted to ask additional questions of plaintiff on redirect and said, "That was going to be my last line of questioning." Thereafter, the record indicates plaintiff rested his case without seeking a formal ruling from the court on the admissibility of the videotaped deposition.
Based on the record, it is unclear whether the court actually excluded the videotaped deposition, or whether plaintiff simply failed to pursue a ruling for tactical or other reasons. From the defense objections to the videotaped deposition, it appears the content of the deposition may have been duplicative of other evidence presented to the jury, and may not have been helpful to plaintiff's case because of internal inconsistencies in the testimony. Thus, we cannot eliminate the possibility plaintiff had tactical reasons for deciding not to present the videotaped deposition and/or not to press the trial court for a ruling. In our view, it was incumbent upon plaintiff to specifically request a ruling from the court on the admissibility of the videotaped deposition if he wanted to present it to the jury, or to preserve the issue for appeal. Because he did not do so, he cannot now claim error on appeal. "Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error." (Telles Transport, Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.)
2. MEDICAL BILLING RECORDS
Plaintiff argues he was prejudiced by the trial court's erroneous exclusion of a medical bill showing the treatment he received following the accident on November 15, 2007. He believes the medical bill should have been admitted because he "sufficiently laid the evidentiary foundation."
Outside the presence of the jury, plaintiff presented testimony by the custodian of Kaiser Permanente's billing records. The custodian prepared an audit of all of the services provided to defendant from the date of the accident through May 5, 2008, and prepared a total bill for services of $8,264. On cross-examination, the custodian stated plaintiff would never personally be required to pay this bill, and the bill was only prepared because of the lawsuit against a third party. After a discussion off the record, the custodian did not testify in the presence of the jury. Later, there was an off-the-record discussion with plaintiff's treating neuropsychologist, who was asked whether he felt qualified to give an opinion as to whether the cost of plaintiff's therapy shown on the bill represented the reasonable cost in the area. The neuropsychologist said he was not prepared to express such an opinion. As a result, the court said it was not going to admit the bill. Plaintiff's counsel argued the bill should be admitted because the custodian's testimony implied the total amount of the services was "reasonable and necessary." The court disagreed, stating, "He didn't testify to what you just testified to." Thus, the bill was not admitted, because there was no testimony to establish the charges were necessary and reasonable in the Southern California area.
"Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages." (Civ. Code, § 3281.) "For the breach of an obligation not arising from contract, the measure of damages, . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Civ. Code, § 3333.) "A person who undergoes necessary medical treatment for tortiously caused injuries suffers an economic loss by taking on liability for the costs of treatment. Hence, any reasonable charges for treatment the injured person has paid or, having incurred, still owes the medical provider are recoverable as economic damages." (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 551.)
"When, as here, the costs of medical treatment are paid in whole or in part by a third party unconnected to the defendant, the collateral source rule is implicated. . . . The rule thus dictates that an injured plaintiff may recover from the tortfeasor money an insurer has paid to medical providers on his or her behalf." (Howell v. Hamilton Meats & Provisions, Inc., supra, 52 Cal.4th at p. 551.)
On the record before us, we agree with the trial court's conclusion the medical bill prepared by the custodian of records was not admissible. Outside the presence of the jury, the custodian of records testified plaintiff would never be asked or required to pay the bill. To the extent the medical bill was relevant because plaintiff's medical care provider was entitled to a lien against any amount of damages plaintiff might have recovered as a result of defendant's alleged negligence, the amount of the lien was limited under section 3045.1 of the Civil Code.
Civil Code section 3045.1 states in part as follows: Those who provide "emergency and ongoing medical or other services to any person injured by reason of an accident or negligent or other wrongful act . . . shall, if the person has a claim against another for damages on account of his or her injuries, have a lien upon the damages recovered . . . to the extent of the amount of the reasonable and necessary charges . . . for the treatment, care, and maintenance" of the injured person resulting from the accident.
As noted above, neither the custodian of records nor the treating neuropsychologist was able to opine the services rendered were both reasonable and necessary. As a result, the trial court was justified in excluding this evidence, because there was nothing to indicate it represented an accurate measure of damages recoverable in tort.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal. NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.