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Law v. Garamallo

California Court of Appeals, Sixth District
Feb 25, 2011
No. H033062 (Cal. Ct. App. Feb. 25, 2011)

Opinion


YOK LAW, Plaintiff and Appellant, v. TERRENCE D. GARAMALLO et al., Defendants and Respondents H033062 California Court of Appeal, Sixth District February 25, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CV070497

RUSHING, P.J.

Appellant Yok Law, proceeding in pro per, appeals a judgment entered against her following a jury trial in a negligence action arising from a four-car accident that occurred in 2004. Appellant sued Terence Garamallo, and the owners of the car he was driving, Ruchir Pandya, and the owners of the car he was driving, and Sim Aquino. The jury returned defense verdicts as to all parties except Ruchir Pandya, who it found negligent, and awarded damages to appellant in the amount of $3,412.

Appellant asserts the judgment should be reversed because the trial court erred in its jury instructions, the damages awarded were insufficient, and there was not substantial evidence to support the jury’s finding that respondent Garamallo was not a substantial factor in the cause of her injuries, and that respondent Aquino was not negligent.

Statement of the Facts and Case

This case arises out of a four-car automobile accident that happened on September 1, 2004 on Highway 680 southbound at the Calaveras Boulevard exit in Fremont. At the time of the accident, traffic was backed up on Calaveras exit. Appellant Law was a passenger in a car driven by her husband, Kit Sing Mak, and was stopped on the off-ramp. Respondent Sim Aquino was driving a car that was stopped directly behind appellant on the off-ramp.

Respondent Ruchir Pandya was driving a van owned by his aunt and uncle, respondents Sunil and Reshma Pandya, and came up behind Aquino’s car. Pandya hit Aquino’s car, pushing it into the rear of appellant’s car.

Respondent Terence Garamallo was driving a car owned by his grandparents, respondents Esther and Thomas Garcia. Garamallo rear-ended Pandya’s car, pushing it into Aquino’s car, hitting it for the second time. On the second impact, Aquino’s car did not hit appellant’s car.

As a result of the accident, appellant was taken to the hospital by ambulance, where she was examined, treated with medication and discharged. Appellant suffered from pain in her head, neck, low back, hands and feet.

The ambulance records stated that appellant suffered “[n]o obvious trauma.” The emergency room records showed that appellant had tenderness in her back, and that the neurological exam was normal.

In September 2006, appellant and her husband, Mak filed a complaint for personal injuries they sustained in the accident. The theories of liability asserted in the complaint were negligence in the operation of a motor vehicle, and negligent entrustment of a vehicle. Law’s husband settled his claims before trial.

A jury trial began in February 2008, with appellant as the single plaintiff. The jury’s verdict was that Aquino was not negligent, Garamallo was negligent, but his negligence was not the cause of appellant’s injury or damages, and that Ruchir Pandya was negligent, and that his negligence was the cause of appellant’s injuries and damages. The jury awarded Law economic damages of $2,622 and general damages of $750 for a total of $3,412.

Appellant filed a notice of appeal.

Discussion

Appellant asserts the judgment should be reversed, because the court erred in its jury instructions, the damages award was insufficient, and there was not substantial evidence to support the jury’s finding regarding negligence.

Instructional Error

Appellant argues the trial court erred in not instructing the jury on the theory of res ipsa loquitor.

“A judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)... [¶] Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.)

Here, appellant cannot establish prejudice for the trial court’s failure to instruct on res ipsa loquitor. Specifically, although she asserts in her brief that she presented a proposed instruction to the trial court, and that such instruction was refused, she provides no record of any attempt made in the trial court to seek such instruction.

One of the most fundamental rules of appellate review is that an appealed judgment or order is presumed to be correct. “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellate has the burden of overcoming the presumption of correctness. For this purpose, she must provide this court with an adequate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) The record on appeal does not show that appellant made any effort to request an instruction on res ipsa loquitor, nor did she rely on this theory in her case.

In addition to the lack of sufficient record to show error in failing to instruct in this case, there is no evidence that appellant suffered any prejudice from any failure to instruct on res ipsa loquitur.

“In California, the doctrine of res ipsa loquitor is defined by statute as a presumption affecting the burden of producing evidence. [Citation.] The presumption arises when the evidence satisfies three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. [Citation.] A presumption affecting the burden of producing evidence require[s] the trier of fact to assume the existence of the presumed fact unless the defendant introduces evidence to the contrary. [Citations.] The presumed fact, in this context, is that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. [Citation.] If the defendant introduces evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence. [Citation.] ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826, internal quotations omitted.)

Here, the evidence produced at trial demonstrated that only respondent Pandya caused appellant’s injuries by running into Aquino’s car, causing it to rear-end appellant. Indeed, the jury found this to be the case, and awarded damages to appellant accordingly. Therefore, a res ipsa loquitor instruction, creating a presumption as to causation, would have no effect in this case, because the evidence supports the jury’s finding that Pandya was negligent and the sole cause of appellant’s injuries.

With regard to the remaining respondents, a res ipsa loquitor instruction is equally inapplicable, because there was no evidence that the accident was caused by an instrumentality within their exclusive control.

We find no error in the lack of a res ipsa loquitor jury instruction.

Damages Award Against Respondent Ruchir Randya

Appellant asserts that the damages award of $3,412 against respondent Ruchir Randya was not supported by substantial evidence.

Here, appellant did not first raise the issue of the lack of evidentiary support for the damages award in the trial court. If a party fails to raise the issue of the adequacy of a damages award in the trial court through a motion for a new trial, the party is precluded from raising the issue for the first time on appeal. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918.) Because appellant did not raise the issue of insufficiency of damages below, she is precluded from raising it for the first time here on appeal.

Jury’s Findings Regarding Negligence

Appellant asserts there is not substantial evidence to support the finding that respondent Sim Aquino was not negligent in the car accident, and that respondent Terence Garamallo was not a substantial factor in the cause of her injuries.

“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination....” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) As long as there is substantial evidence, the appellate court must affirm, even if the reviewing justices personally would have ruled differently if they had presided over the proceedings below and even if other substantial evidence would have supported a different result. (Id. at p. 874.)

Our view of the evidence supports the jury’s findings in this case. At trial, Aquino testified that she was stopped behind appellant’s car when she was hit from behind by respondent Pandya. It was this impact from Pandya’s car that pushed Aquino’s car into appellant’s car, and caused the only impact of appellant’s car. Only after appellant’s car was hit did Garamallo hit Pandya’s car from behind, causing a second impact to Aquino’s car. This evidence supports the jury’s findings that Aquino was not negligent, and Garamallo was not a substantial factor in causing the injuries to appellant.

Viewing the evidence in the light most favorable to respondents, giving them the benefit of every reasonable inference, and resolving all conflicts in his favor, as we must under the rules of appellate review (In re Marriage of Mix (1975) 14 Cal.3d 604, 614), we conclude that there is substantial evidence to support the jury’s findings regarding negligence in this case.

Disposition

The judgment is affirmed.

WE CONCUR: PREMO, J., ELIA, J.


Summaries of

Law v. Garamallo

California Court of Appeals, Sixth District
Feb 25, 2011
No. H033062 (Cal. Ct. App. Feb. 25, 2011)
Case details for

Law v. Garamallo

Case Details

Full title:YOK LAW, Plaintiff and Appellant, v. TERRENCE D. GARAMALLO et al.…

Court:California Court of Appeals, Sixth District

Date published: Feb 25, 2011

Citations

No. H033062 (Cal. Ct. App. Feb. 25, 2011)