Opinion
B321809
06-10-2024
VEDA ROCHELLE FLYNN, Plaintiff and Respondent, v. BRALLAN VASQUEZ ARTEAGA et al., Defendants and Appellants.
Ford, Walker, Haggerty & Behar, Neil Tardiff, and Mark P. LaScola for Defendants and Appellants. Law Offices of Michael J. Libman and Michael J. Libman for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC709096 Gloria White-Brown, Judge. Affirmed in part and reversed in part with directions.
Ford, Walker, Haggerty & Behar, Neil Tardiff, and Mark P. LaScola for Defendants and Appellants.
Law Offices of Michael J. Libman and Michael J. Libman for Plaintiff and Respondent.
EDMON, P. J.
Plaintiff Veda Flynn (Flynn) brought the present negligence action for back and neck injuries she claimed to have suffered when her car was rear-ended by a truck driven by defendant Brallan Vasquez (Vasquez). Vasquez and his employers (collectively, defendants) stipulated to Vasquez's negligence but denied that Flynn was injured in the collision. The case was tried to a jury, which returned a special verdict for defendants. Flynn then moved for a new trial; the trial court granted the motion and ordered a new trial on damages only.
We affirm in part and reverse in part. As we discuss, while the trial court did not abuse its discretion in granting the new trial motion, it should have granted a new trial on both causation and damages. We therefore direct the trial court on remand to conduct a new trial on both issues.
FACTUAL AND PROCEDURAL BACKGROUND
I. The July 2016 auto accident.
This litigation arises out of an auto accident that occurred on July 14, 2016 on Interstate 5 in Los Angeles. Flynn, a 58-year-old therapist, was driving home from work in stop-and-go traffic when Vasquez rear-ended her Hyundai sedan. Vasquez, driving about five miles per hour in an empty box truck, was attempting to change lanes; Flynn had her foot on the brake and was stopped. The force of the impact pushed Flynn's car into a BMW vehicle immediately in front of her.
Vasquez described the impact as "a big bump" that shook the cabin of his truck. Flynn said the collision was "horrific," "like an explosion." Flynn's airbags did not deploy, but her briefcase flew from her car's back seat to the front, and the things on her front seat fell onto the floor. Flynn's body was thrown forward and back.
Flynn, Vasquez, and the driver of the BMW drove off the freeway and called the California Highway Patrol. Flynn's car was declared a total loss. The bumper of Vasquez's truck was damaged, and the BMW sustained a small scratch.
II. Flynn's injuries.
A. Prior injury and surgery.
Years prior to the 2016 accident, Flynn had a pinched nerve in her neck that periodically caused debilitating pain. A 2012 car accident exacerbated her pain. Flynn had spinal surgery in April 2015, and she testified that she had no pain after recovering from the surgery, other than a single episode of sciatica.
B. Post-accident complaints.
Flynn had a headache the evening of the accident; she took ibuprofen and went to bed. The next morning, her whole back was tender and she was bruised across her forearm and chest. She again took ibuprofen and rested. By the third morning, Flynn still had a headache and was experiencing pain in her neck, shoulders, lower back, legs, and the backs of both arms. She saw a doctor who prescribed pain medication.
Much of Flynn's pain dissipated over time, but she continued to experience significant pain and weakness in her neck and low back. Throughout 2016 and 2017, she did physical therapy, saw a chiropractor and acupuncturist, applied heat and ice packs at home, did therapeutic exercises, and received pain management. She nonetheless continued to experience chronic headaches and pain in her neck, back, and the backs of her arms. She also had tingling and numbness in her fingers, and episodes of weakness in her hands that caused her to lose her grip on things she was holding. Nonetheless, she did not seek further medical treatment for back or neck pain in the two years immediately prior to trial.
Flynn testified to a significant change to her quality of life as a result of the accident. She lived with constant pain, which she described as "exhausting." She slept a lot because she did not want to take strong pain medication, and she self-isolated to avoid burdening her friends and family. She sometimes took medication to allow her to do a particular activity; the medication numbed but did not eliminate the pain. Flynn also was fearful of driving on freeways after the accident. She attempted to get to work without using freeways, but her commute from Orange County to Los Angeles became more than three hours. Ultimately, she changed jobs. She was never placed on disability, however.
Flynn testified that she was contemplating spine surgery, but would wait to have surgery until she could no longer endure the pain. She had never had an epidural steroid injection, and as of her October 2021 deposition she had no scheduled doctor's appointments.
III. Expert testimony regarding the causes of Flynn's symptoms.
A. Flynn's expert.
Dr. Andrew Fox, a neurosurgeon, testified as an expert witness for Flynn. He explained that there are seven vertebrae in the cervical spine and five vertebrae in the lumbar spine. The spinal nerves exit from holes called foramen. In between the vertebrae are the discs, which are gelatinous areas. The discs can push out against the spinal canal and the nerves. If a disc presses against a nerve in the neck, it can cause symptoms in the hands; if a disc presses against a nerve in the low back, it can cause symptoms in the legs. Symptoms can be numbness, tingling, weakness, and/or pain. Disc bulges or herniations can also be asymptomatic. A precipitating event like a car accident can bring on symptoms for a person with a previously asymptomatic disc herniation.
Dr. Fox testified that Flynn's medical records indicated that Flynn had sciatica and weakness in her hand prior to 2015. In 2015, she had a surgical fusion of some of the vertebrae in her cervical spine. The surgery involved removing two discs and replacing them with spacers, plates, and screws to take pressure off the nerves. Dr. Fox explained that the plates and screws strengthen the spine where they are inserted, but can make the areas immediately above and below more vulnerable to injury. As a result, about 50 percent of people who have had a cervical fusion will require an additional surgery within 17 years.
Dr. Fox testified that Flynn's medical records indicated that within four months of her 2015 surgery, Flynn's strength had returned to normal, the radicular pain (pain caused by a pinched nerve in the spine) in her arms had abated, and she was reporting minimal discomfort. Subsequently, in February 2016, Flynn reported a little bit of shoulder pain that her treating doctor believed was unrelated to her neck, and in March 2016, she complained of lower back pain and sciatic symptoms radiating down to her left leg. After the accident, however, Flynn complained of near constant symptoms in her cervical spine (neck) and periodic symptoms in her lumbar spine (low back).
Dr. Fox examined Flynn in November 2021. Her strength was normal, but she had decreased sensation and limited range of motion in her cervical spine, difficulty standing and flexing, pain with cervical spine palpitation, pain with lumbar spine flexion, and an increase of symptoms down her arm when she turned her head, indicating nerve compression. Flynn also had an MRI of her spine in November 2021. There was no visible disc protrusion in Flynn's cervical spine, but the MRI revealed nerve compression and reduced spinal fluid at the level immediately below the surgically fused area. Dr. Fox thus opined Flynn had a disc protrusion at the C6-7 level that was not visible in the MRI but correlated with Flynn's reported neck pain and radiculopathic symptoms in her hand. The MRI also showed a disc protrusion in Flynn's lumbar spine (levels L4 to L5).
Dr. Fox noted that Flynn complained of radiculopathy two days after the June 2016 accident, and back pain and radiculopathy were reported in all of Flynn's medical records after the accident. Dr. Fox opined that to a reasonable degree of scientific probability, Flynn's pathology in the back, including her neck and hand pain and weakness, was aggravated by the 2016 accident.
With regard to future treatment, Dr. Fox opined that Flynn was a current candidate for cervical spine surgery; she might also need an epidural or/or surgery in her lumbar spine. Typical surgery costs are $150,000 to $200,000. Post-surgery, Flynn would need physical therapy and might also need x-rays or imaging.
B. Defense expert.
Dr. Paul Kaloostian, a neurosurgeon, testified as a defense expert. He opined that as a result of the 2016 accident, Flynn had "some muscle strain or muscle inflammation or whiplash . . . to the muscles of the neck, mid back, and low back." However, he testified to a reasonable degree of medical probability that the 2016 accident did not cause a spinal injury. He explained that imaging studies shortly before the 2016 accident showed mild to moderate arthritis in Flynn's neck and low back, but no significant nerve root or spinal cord compression. The imaging studies taken after the accident were unchanged: They showed chronic arthritis of the spine, but no disc herniation, bone fractures, or displacement of the surgically implanted plates and screws. Moreover, an EMG (an electrical test to determine injury to the nerves in the arms) taken after the accident was negative.
Dr. Kaloostian opined that Flynn's current pain and weakness likely were caused by chronic degenerative arthritis, not a disc herniation. He explained that imaging studies of Flynn's spine prior to the accident showed mild to moderate arthritis, and x-rays dating back to 2008 showed a reduction in the curvature of Flynn's spine, which also indicated spinal arthritis. Further, records prior to the 2016 accident, including some as recent as three months before the accident, noted that Flynn was complaining of severe neck pain, chronic headaches, radiculopathy in both arms, and lumbar sciatica. Dr. Kaloostian opined that all of these symptoms were caused by degenerative arthritis, not trauma.
Dr. Kaloostian opined that Flynn was not a candidate for spinal surgery or epidural injections because the MRIs of her spine did not explain her symptoms. He explained: "[T]he reason I say that is . . . because the imaging studies both on CT, MRI of the neck and low back don't show a disk that's herniated out. Don't show a fractured bone, don't tell me that the plate and screws are pulled out. I don't see any bony bruising. Nothing that I can say yeah, this is new. I don't see that. So I cannot say that there's any fresh or new injury here from the accident." Further, he said: "[A] lot of things can cause arm pain and leg pain. For example, shoulder problems . . . can cause arm pain. And if you do a neck surgery for that, it's not going to help someone . . . . [O]r hip pain or sacroiliac pain . . . are common causes of arthritis. Those cause leg pain. So if you did a spine surgery on someone with hip arthritis, it's not going to help them."
IV. The present action.
In June 2018, Flynn filed the present negligence and vicarious liability action against Vasquez and his employers, Jose Luis Espinoza and Luis Espinoza Trucking LLC.
The case was tried to a jury over four days in December 2021. After testimony concluded, the jury was instructed that the parties had stipulated that Vasquez was employed by his codefendants, was acting within the scope of his employment when the accident occurred, and had violated Vehicle Code section 22350 or was otherwise negligent. The jury was also instructed that Flynn was not seeking damages for past medical expenses. The jury therefore was asked to decide just two questions: Whether Vasquez's negligence was a substantial factor in causing harm to Flynn, and the amount of Flynn's damages for future medical expenses and past and future noneconomic loss.
Vehicle Code section 22350 provides: "No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property."
Flynn's counsel argued to the jury that defendants were responsible for aggravating Flynn's preexisting spinal injury. He urged the jury to award Flynn $350,000 for future medical expenses for back and neck surgery, $75,000 per year for five years for past noneconomic damages, and $75,000 per year for 23 years for future noneconomic damages, for a total award of $2,487,500.
Defendants' counsel argued that Flynn had been suffering from chronic headaches, neck, and back pain for many years prior to the accident, she continued working after the accident, and she had not sought medical care in more than two years. He thus argued that Flynn was unlikely to need any future medical care or to suffer any future noneconomic damages related to the accident. He conceded that Vasquez had negligently caused the accident, but told the jury with respect to causation that "if you feel that [Flynn] does not deserve an award of monetary damages for this incident, [you can] check the 'no [causation]' box. That puts the floor . . . for your decision at zero dollars. . . . I strongly feel that the answer is no."
After deliberating for less than an hour, the jury returned a unanimous verdict that Vasquez's negligence was not a substantial factor in causing Flynn's harm. The jury did not reach the issue of damages. The trial court entered a judgment on the special verdict in January 2022.
V. Post-trial motions.
Flynn timely filed a motion for new trial or, alternatively, for judgment notwithstanding the verdict. In relevant part, Flynn contended that the evidence did not support the verdict because both experts testified that Flynn was injured by the July 2016 accident, although they disagreed about the extent of her injuries. Flynn therefore urged the trial court to grant a new trial on damages only.
Defendants opposed Flynn's motion, contending that the evidence presented at trial was sufficient to support the jury's verdict.
At the March 2022 hearing, the trial court told the parties that its tentative decision was to deny Flynn's motion because while there "certainly was some injury to the plaintiff," the jurors appeared to believe her injury "was not extensive." After taking the matter under submission, however, the trial court reversed course and granted a new trial on damages only. In relevant part, the court's written order stated as follows:
" 'In weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there [is] sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines the weight of the evidence is against the verdict.' (Candido v. Huitt (1984) 151 C.A.3d 918, 923.)
" 'The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues for . . . insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against the law.' [Code of Civil Procedure 657(6)].
"The 'against the law' ground applies only when the evidence is without conflict in any material point and insufficient as a matter of law to support the verdict. [McCown v. Spencer (1970) 8 CA3d 216].
"Dr. Fox (Plaintiff's expert) and Dr. Kaloostian (Defendant's expert) testified at trial that the Plaintiff was in fact injured as result of the traffic collision. The doctors, however, disagreed as to the extent of the injuries.
"Both doctors testified as to soft tissue, muscular injuries, and aggravation of preexisting injuries. Defendant testified as to causing the traffic collision.
"The court finds the jury failed to follow the law regarding whether Defendant's negligence was [a] 'substantial factor' in causing Plaintiff's harm. The court further finds that as to the issue of 'inadequate damages' the weight of the evidence is against the verdict."
Defendants timely appealed from the order granting a new trial.
DISCUSSION
Defendants contend the trial court erred in granting Flynn's new trial motion because the evidence was sufficient to support the verdict. Alternatively, defendants urge the trial court was not "convinced" the jury should have reached a different verdict within the meaning of the new trial statute; the trial court should have directed the jury to continue deliberating before discharging it; Flynn invited any error; and defendants were denied their right to a jury trial. Finally, defendants contend that if the trial court had discretion to grant the new trial motion, it should have granted a new trial as to both causation and damages.
I. Legal standards.
A. Code of Civil Procedure section 657.
Code of Civil Procedure section 657 provides that a trial court may, on the application of the party aggrieved, vacate or modify a jury verdict and grant a new trial on all or part of the issues. The statute sets out seven grounds on which a new trial may be granted, including "[e]xcessive or inadequate damages," "[i]nsufficiency of the evidence to justify the verdict or other decision," or "the verdict or other decision is against law." (§ 657, subds. (5), (6).)
All subsequent statutory references are to the Code of Civil Procedure.
A trial court may grant a new trial for insufficiency of the evidence or excessive or inadequate damages (§ 657, subds. (5), (6)) if "after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the . . . jury clearly should have reached a different verdict or decision." (§ 657.) When a trial court rules on a motion for new trial based upon insufficiency of the evidence or inadequate or excessive damages, "it is vested with a plenary power-and burdened with a correlative duty-to independently evaluate the evidence. (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.)" (Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775, 784, italics added.) In this capacity, the court sits as an independent trier of fact (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933 (Neal); Pearl v. City of Los Angeles (2019) 36 Cal.App.5th 475, 485; Maroney v. Iacobsohn (2015) 237 Cal.App.4th 473), with the power "to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact" (Mercer v. Perez (1968) 68 Cal.2d 104, 112). In other words, the trial court "ha[s] the power to reweigh [the trial] evidence in its exclusive role as the 13th juror." (Maroney, at p. 486; see also Estate of Elliot (1952) 114 Cal.App.2d 747, 748 ["[I]t is the duty of the trial judge to review all the evidence, weigh its sufficiency and judge the credibility of the witnesses. He is at liberty to disregard the findings of the jury which are implied from the verdict. He functions as a thirteenth juror"].) Our Supreme Court has explained: "The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jury's verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons." (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 (Lane).)
A trial court may also grant a new trial if the verdict is "against law" (§ 657, subd. (6))-that is, if it is unsupported by substantial evidence. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 638 (Oakland Raiders); Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906.) "In contrast to the grounds of insufficient evidence and excessive or inadequate damages, 'the phrase "against law" does not import a situation in which the court weighs the evidence and finds a balance against the verdict, as it does in considering the ground of insufficiency of the evidence.' (Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44, 56.)" (Sanchez-Corea, at p. 906.) Instead, this power is analogous to the power to grant a directed verdict because it may be exercised only if the evidence, when construed in the light most favorable to the jury's verdict, is incapable of supporting that verdict because it does not constitute substantial evidence. (Ibid.; Fergus v. Songer (2007) 150 Cal.App.4th 552, 567.)
B. Standard of review.
If a new trial is granted, the trial court "shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." (§ 657.) So long as the trial court provides a statement of reasons as required by section 657, "the appropriate standard of judicial review is one that defers to the trial court's resolution of conflicts in the evidence and inquires only whether the court's decision was an abuse of discretion." (Oakland Raiders, supra, 41 Cal.4th at p. 636.)
If the trial court fails to provide a statement of reasons, an appellate court independently reviews an order granting a new trial. (Oakland Raiders, supra, 41 Cal.4th at p. 640.) As we discuss below, this standard does not apply here because the trial court provided an adequate specification of reasons.
Where a motion for new trial is granted for insufficiency of the evidence or excessive or inadequate damages and the new trial order properly specifies the grounds and reasons on which it is based, the order" 'must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court's] theory.' (Jones [v. Citrus Motors Ontario, Inc. (1973)] 8 Cal.3d [706], 710.)" (Lane, supra, 22 Cal.4th at p. 412). Our Supreme Court has explained:" '[A]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached . . . .'' [Citation.] In other words, 'the presumption of correctness normally accorded on appeal to the jury's verdict is replaced by a presumption in favor of the [new trial] order.' (Neal, supra, 21 Cal.3d at p. 932.)" (Ibid.) Stated differently, "[s]o long as the outcome is uncertain at the close of trial-that is, so long as the evidence can support a verdict in favor of either party-a properly constructed new trial order is not subject to reversal on appeal." (Id. at p. 414, italics added; see also Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 ["The determination of a motion for a new trial rests so completely within the [trial] court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside"].)
A different standard applies when a motion for new trial is granted because the jury's verdict is "against law." In that case, "we examine the record to determine whether the verdict for plaintiffs was, as a matter of law, unsupported by substantial evidence. In our examination we apply the well-established rule of appellate review by considering the evidence in the light most favorable to the prevailing party . . . and indulging in all legitimate and reasonable inferences indulged in to uphold the jury verdict if possible." (Sanchez-Corea, supra, 38 Cal.3d at p. 907.)
II. The trial court did not abuse its discretion by granting Flynn's new trial motion.
A. The trial court's statement of reasons was sufficiently specific to allow meaningful appellate review.
As noted above, if a new trial motion is granted, the trial court "shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." (§ 657.) A statement of grounds is sufficient if it "reasonably approximates the statutory language." (Oakland Raiders, supra, 41 Cal.4th at p. 634.) The statement of reasons "must refer to evidence, not ultimate facts," and "should be specific enough to facilitate appellate review and avoid any need for the appellate court to rely on inference or speculation." (Id. at pp. 634-635.) "[A]s our Supreme Court has repeatedly stated,' "To avoid overtaxing our already burdened trial courts, it will be sufficient [under Code of Civil Procedure section 657] if the judge who grants a new trial furnishes a concise but clear statement of the reasons why he [or she] finds one or more of the grounds of the motion applicable to the case before him [or her]. No hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case."' (Neal, [supra, 21 Cal.3d] at pp. 931-932, quoting Mercer v. Perez (1968) 68 Cal.2d 104, 115.)" (Johnson v. Monsanto Co. (2020) 52 Cal.App.5th 434, 461.)
Citing Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 363 (Scala), defendants contend the trial court's specification of reasons was insufficient to support the grant of a new trial. We are not persuaded. In Scala, the trial court granted a new trial motion on the ground of insufficiency of the evidence, but its order "recited only that 'there is no sufficient evidence to show that the defendant was negligent and the evidence does show that the plaintiff failed to use ordinary care for his own safety and that that failure was a proximate cause of his injuries.'" (Id. at p. 363.) The Supreme Court held this statement of reasons was inadequate because "a specification which merely recites that under the court's view of the evidence 'the defendant was not negligent' or 'the plaintiff was negligent' is of little if any assistance to the appellant or to the reviewing court. Negligence, whether of the defendant or of the plaintiff, is a complex issue requiring for its resolution the determination of the existence or nonexistence of a variety of different elements, including the standard of due care, foreseeability of risk, duty to the person injured, breach of that duty, cause in fact, and proximate cause. To state that a party 'was not negligent' does not identify which one or more of the foregoing elements the adversary failed to prove by a preponderance of the evidence; and to state that a party 'was negligent' does not identify which of his acts or omissions deviated so far from the conduct of an ordinarily prudent person as to warrant that condemnation. Indeed, it borders on the tautological to 'specify' that a new trial is granted on the ground of the insufficiency of the evidence to justify the verdict finding the defendant negligent because that evidence fails to show the defendant was negligent. Such a 'reason' simply reiterates the ground of the ruling itself." (Id. at pp. 366-367.)
The present case is distinguishable from Scala. Unlike in that case, the trial court here did not merely assert the evidence was insufficient to support the verdict. Instead, it explained that the jury "failed to follow the law regarding whether Defendants' negligence was a 'substantial factor' in causing Plaintiff's harm" because both experts "testified at trial that [Flynn] was in fact injured as a result of the traffic collision." Specifically, the trial court stated, "[b]oth doctors testified as to soft tissue, muscular injuries, and aggravation of pre-existing injuries," although they "disagreed as to the extent of the injuries." Accordingly, the court said, the jury's failure to award Flynn any damages was "against" "the weight of the evidence."
Here, the trial court's specification of reasons, while brief, "refer[red] to evidence, not ultimate facts" (Oakland Raiders, supra, 41 Cal.4th at p. 635) and described "why the evidence was insufficient to support the damage award" (Lane, supra, 22 Cal.4th at p. 413)-namely, because both experts agreed that Flynn suffered some injury as a result of the collision. Accordingly, we conclude that the trial court adequately specified its reasons for granting the new trial motion.
Defendants also contend that "the section 657 specifications of reasons should mandate that the trial court specify why it changed its mind since [the order granting the new trial motion] was based upon the same evidence wherein it originally concluded the jury verdict was appropriate." The single case defendants cite for this proposition does not support it.
B. The trial court had discretion to grant the motion for new trial based on insufficiency of the evidence and inadequate damages because the evidence at trial would have supported a verdict for Flynn.
Defendants urge that the trial court abused its discretion by granting Flynn's motion for a partial new trial because substantial evidence supported the jury's verdict. Defendants note that a verdict is "against the law" only if it is unsupported by substantial evidence," 'i.e., when the entire evidence is such as would justify a directed verdict against the party in whose favor the verdict is returned.'" They further contend the verdict was supported by substantial evidence-namely, by Flynn's medical records, which evidenced that Flynn was experiencing pain in her neck and lower back months before the accident, and by testimony that Vasquez was traveling slowly when he hit Flynn's car, Flynn's airbags did not deploy, and Flynn did not miss any work after the accident.
Although defendants focus on whether the verdict was "against the law," the trial court appears to have granted a new trial on several alternative grounds-that is, that the evidence was "insufficien[t] . . . to justify the verdict," the jury awarded inadequate damages, and the verdict was "against law." (See § 657, subds. (5), (6).) Defendants attack only the latter ground, urging that the verdict was not "against the law" because it was supported by substantial evidence. But if a new trial order "can be upheld on any of the grounds asserted, the inadequacy of the others is irrelevant." (Sierra Pacific Industries v. Carter (1980) 104 Cal.App.3d 579, 583, italics added, citing Treber v. Superior Court (1968) 68 Cal.2d 128, 133; In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 727; see also Tortorella v. Castro (2006) 140 Cal.App.4th 1, 10 [same].) Thus, if the trial court properly granted the new trial motion based on insufficiency of the evidence or inadequate damages, we need not consider whether the verdict was against law.
As we have described, a trial court may grant a new trial for insufficiency of the evidence or inadequate damages if "after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the . . . jury clearly should have reached a different verdict or decision." (§ 657, italics added.) The order must be affirmed so long as the evidence can support a verdict in favor of the party in whose favor the new trial order was granted-"that is, so long as the evidence can support a verdict in favor of either party[,] a properly constructed new trial order is not subject to reversal on appeal." (Lane, supra, 22 Cal.4th at p. 414.)
Here, the evidence unquestionably would have supported a verdict for Flynn. Flynn testified that her 2015 surgery had eliminated the cervical pain she had suffered prior to surgery, she began experiencing significant neck and lower back pain immediately after the 2016 accident, and she suffered chronic pain and weakness thereafter. Flynn's expert, Dr. Fox, testified that Flynn had a disc protrusion at the C6-7 level; Flynn's neck and hand pain and weakness were, to a reasonable degree of scientific probability, aggravated by the 2016 accident; and Flynn was a current candidate for surgery. And, even defendants' expert, Dr. Kaloostian, opined that the 2016 accident caused Flynn some muscle strain or inflammation. Because this evidence would have supported a damages award for Flynn, the trial court did not abuse its discretion by granting a new trial based on insufficiency of the evidence and inadequate damages.
Defendants do not suggest that the evidence would not have supported a verdict for Flynn, but they nonetheless urge the trial court lacked discretion to grant a new trial because it was not "convinced" within the meaning of section 657 that the jury should have reached a different verdict. As noted above, section 657 provides that a new trial shall not be granted for insufficiency of the evidence or excessive or inadequate damages" 'unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.'" (Italics added.) Defendants urge in this regard that the trial court indicated at the new trial hearing that its tentative decision was to deny the new trial motion, but then reversed itself three weeks later "with no explanation of any kind as to how the same evidence suddenly shows the jury clearly should have reached a different verdict." But defendants cite no authority, and we are not aware of any, for the proposition that a trial court is bound by its tentative decision; and, indeed, our Supreme Court has expressly held to the contrary. (See People v. Pena (2004) 32 Cal.4th 389, 399 [tentative decision does not interfere with party's right to present oral argument because court is not "unalterably bound by the" tentative]; People v. Hayes (1990) 52 Cal.3d 577, 645 [trial court is not "unalterably bound" by the opinion expressed in its tentative decision]; see also Cal. Rules of Court, rule 3.1590 [tentative decision "does not constitute a judgment and is not binding on the court"].) Plainly, on reflection, and after hearing oral argument, the trial court became convinced that its tentative decision was in error.
Defendants further contend that the trial court abused its discretion by granting a new trial based on insufficiency of the evidence because "it appears that the trial judge merely substituted her judgment for that of the jury." In support, defendants cite Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397 (Bigboy), in which a jury awarded $2.25 million to a 17-year-old who lost the use of his legs in a car accident. The trial court denied the plaintiff's motion for a new trial, conditioned on his acceptance of a reduction of the judgment to $1.75 million. (Id. at p. 402.) The plaintiff rejected the reduction, and a new trial was ordered. (Ibid.) The Court of Appeal reversed the new trial order, finding that the trial court's statement of reasons was inadequate because it did not "refer[] to any portion of the evidence that would explain a lesser verdict," and the trial court should not have substituted its judgment for that of the jury on the question of damages "unless it appears from the record the jury verdict was improper." (Id. at p. 406.)
The present case differs from Bigboy in significant ways, most notably that the trial court here did find that the verdict was improper because "[both experts] testified at trial that [Flynn] was in fact injured as [a] result of the traffic collision." Because the trial court provided an adequate specification of reasons, Bigboy is inapt.
Defendants next contend that Flynn invited error by failing to object to the jury's verdict, the damages instruction, and defense counsel's suggestion that the jury could return a no-causation verdict. Not so. As our Supreme Court has explained: "In some circumstances, failure to object can constitute a waiver. But the rules applicable to such a waiver, to invited error or to estoppel, have no application when an appellate court is considering the propriety of an order granting a new trial." (Malkasian v. Irwin (1964) 61 Cal.2d 738, 747; see also Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 204, fn. 9 [same]; Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 871 [same].)In short, the trial court had discretion to grant a new trial notwithstanding Flynn's failure to object.
Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, the sole case defendants cite in support of their claim that Flynn invited any error, was not an appeal from an order granting a new trial. Its discussion of invited error therefore is not relevant to the present appeal.
Finally, defendants contend that the trial court's grant of a new trial denied them their right to a jury trial and was a miscarriage of justice. The court considered a similar contention in Thompson v. Keckler (1964) 228 Cal.App.2d 199, 206, where the defendant urged that "her right to a jury trial is guaranteed by article I, section 7 of the California Constitution, that the question of her negligence under the circumstances was a jury question, that the jury decided it in her favor by denying plaintiff relief on the complaint . . .; and thus, if the right to grant a new trial vests in the court the right to change a jury's mind, the constitutional protection of the right to trial by jury is a complete nullity." The appellate court disagreed, citing Ingraham v. Weidler (1903) 139 Cal. 588, 589-590 for the proposition that" '[t]he courts in this country and England, since long before the time of Blackstone, had always exercised the power of granting a new trial after verdict, and for the causes, among others, of insufficiency of evidence, or that the damages were either inadequate or excessive [citation]; and this power was a recognized part of the "right of trial by jury," as that phrase is used in the constitution.'" (Thompson, supra, 228 Cal.App.2d at p. 207; see also Adams v. Hildebrand (1942) 51 Cal.App.2d 117, 119 ["Neither is there any merit in defendant's proposition that, if the order granting the motion for a new trial stands, he is being deprived of his constitutional right to a trial by jury."].)
For all the foregoing reasons, the trial court did not abuse its discretion by granting Flynn's motion for new trial.
III. The trial court erred by ordering a new trial as to damages only.
Defendants alternatively contend that if the trial court had discretion to grant a new trial, it should have done so as to both causation and damages. We agree.
A new trial "is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee." (§ 656.) If a trial court elects to grant a motion for new trial, therefore, the only relief it may grant is "a reexamination of an issue of fact." (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751; see also Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 458 ["A new trial is defined as 'a re-examination of an issue of fact' "]; In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1470 ["effect of granting a new trial is' "a re-examination of an issue of fact"' "].) In other words, "granting a new trial does not entail a victory for one side or the other. It simply means the reenactment of a process which may eventually yield a winner." (Fountain Valley, at p. 751.)
In the present case, therefore, the trial court had just two options in ruling on Flynn's motion for new trial: It could deny the motion, or it could grant "a re-examination of an issue of fact." (§ 657.) It could not, as it did, take the issue from a jury by deciding the issue itself through the vehicle of a new trial motion. Accordingly, on remand we direct the trial court to conduct a new trial on both causation and damages. (See, e.g., Pelletier v. Eisenberg (1986) 177 Cal.App.3d 558, 568 [granting new trial on compensatory and punitive damages where trial court erred by granting new trial on only compensatory damages]; Kralyevich v. Magrini (1959) 172 Cal.App.2d 784, 786, 793 [granting new trial on all issues where trial court erred by granting new trial only as to damages]; Malcomson v. Pool (1969) 276 Cal.App.2d 378, 381 [same].)
Of course, if the trial court concluded that substantial evidence did not support the jury's no-causation verdict, it could have granted a partial judgment notwithstanding the verdict. (See § 629, subd. (a) [judgment notwithstanding the verdict shall be granted "whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made"]; Dell'Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 553 ["It is settled that the trial court has the power, in appropriate circumstances, to grant partial JNOV]; Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 330 [same].) It did not do so, however. Instead, it denied Flynn's motion for judgment notwithstanding the verdict and granted her motion for a new trial.
DISPOSITION
The order granting a new trial is affirmed in part and reversed in part, with directions to the trial court to grant a new trial on both causation and damages. Each party shall bear its own appellate costs.
We concur: LAVIN, J., EGERTON, J.