Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCV038811 James E. Oakley, Judge.
Law Offices of Michael T. Morrissey and Michael T. Morrissey; Machado & Machado and Robert A. Machado for Plaintiff and Appellant and for Cross-defendant and Appellant.
Rushford & Bonotto, James W. Rushford and Amanda R. Stevens for Defendants, Cross-complainants and Respondents.
OPINION
Wiseman, Acting P.J.
Plaintiff Karen Lollar was hurt when she fell off the deck of a house owned by defendants and cross-complainants Ken and Denise Trappen and leased by Lollar’s son, cross-defendant Ryan Snyder. Lollar sued the Trappens and the Trappens filed a cross-complaint for equitable indemnity against Snyder. After a trial, a jury awarded Lollar $175,467.91. The jury also made a fault allocation, finding the Trappens 40 percent responsible and Snyder 60 percent responsible. After a separate court trial on the cross-complaint, the court entered judgments ordering the Trappens to pay the damages and ordering Snyder to indemnify the Trappens for 60 percent of the amount.
Lollar and Snyder appeal. They argue that the damage award was inadequate as a matter of law; that the Trappens were solely liable as a matter of law; that the indemnification order was erroneous; that the court made a number of errors in the jury instructions and in admitting and excluding evidence; and that defense counsel engaged in misconduct. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Lollar filed a form complaint against the Trappens in superior court on December 26, 2007. It alleged causes of action for general negligence and premises liability. It asserted that, while Lollar was on property owned by the Trappens, she “rested or leaned against a railing that was improperly secured and it gave way and [she] fell approximately seven feet.”
The Trappens filed a cross-complaint against Ryan Snyder. It alleged that if they were found liable for Lollar’s injuries, they would be entitled to be indemnified by Snyder and would be entitled to have fault apportioned between themselves and Snyder. It prayed for a declaratory judgment stating that Snyder was responsible for the injuries and setting forth percentages of the harm for which Snyder and the Trappens would be required to pay.
The Trappens filed a trial brief stating that their house had a deck about seven feet above the ground, on one side of which the railing had been converted into a large gate for the loading of firewood. The gate had no latch and would open if pushed. Snyder knew of the gate and used it himself to load firewood onto the deck, and knew that if a person leaned on it, it would open and the person could fall. The brief argued that Snyder, as the tenant and occupier of the property, had a duty to warn Lollar about the gate and failed to warn her. It contended that the Trappens discharged their own duty by making Snyder aware of the gate and had no duty to warn Snyder’s guests. If they were found liable to Lollar, Snyder should be required to indemnify them.
Lollar filed a trial brief arguing that it was the owners who were responsible for the condition of the deck and gate and that their duty could not be delegated to the tenant. The brief also argued that the doctrine of equitable indemnity was inapplicable.
At trial it was established that, while the Trappens were living in the house themselves, their son built the gate by sawing through a portion of the railing, reattaching it with hinges on one side, and attaching a post and cable to bear the weight of the gate when it was open. No latch was ever placed on the gate. When the Trappens lived in the house, the gate was obstructed by some pallets with firewood stacked on them, so no one could inadvertently lean on the gate and push it open. When they moved out of the house and rented it, they removed the pallets and firewood, leaving the unlatchable gate exposed. They did not think about adding a latch or posting a warning sign.
In October 2005, the Trappens leased the house to Snyder, who lived in it with his wife. Snyder testified that before he rented the house, he looked around it with Ken Trappen and saw the deck gate. He thought the gate was a good idea, since it meant he could back a truck up to the deck and load firewood directly onto it. He used the gate for that purpose himself. Once, while Snyder was living in the house, his father-in-law visited and leaned against the gate. The gate moved, but Snyder’s father-in-law caught himself in time and did not fall off the deck. Snyder believed he mentioned this to Ken Trappen and they discussed the possibility that the Trappens would add a means of latching the gate. Ken Trappen did not recall any conversation in which Snyder asked him to put a latch on the gate. Snyder never considered adding a latch or posting a warning himself. He did sometimes orally warn people not to lean on the gate. The parties’ lease prohibited the tenant from making any alterations to the property without the landlord’s prior written consent.
Another tenant, David Goad, rented a studio attached to the house. The Trappens never told him he could or could not use the deck. There was no evidence that he ever used it.
Lollar and her daughter, Rae, came to the house on February 17, 2007, to go out to breakfast with Snyder and his wife. While Snyder and his wife were in the bedroom getting ready to go, Lollar and Rae went out to the deck for a smoke. Snyder did not mention the loose gate or warn them not to lean on it because he did not know they intended to go to the deck. Lollar leaned against the gate and fell off the deck. Snyder heard screaming and came out to find Lollar on the ground. He called 911 and Lollar was taken to a hospital in an ambulance.
Richard H. Blanks, an orthopedic surgeon who treated Lollar when she was brought to the emergency room, testified in a videotaped deposition that was shown to the jury. He said Lollar had fractures of her left wrist, left shoulder, pelvis, and one vertebra of the lumbar spine. The wrist and shoulder fractures required surgery. Both surgeries involved the placement of metal plates and screws. Lollar was hospitalized for three days. The fractures of the pelvis and vertebra did not require surgery and were treated with rest and medication for pain. A brace was used for support while the vertebra fracture was healing.
By September 14, 2007, the wrist fracture was healed, there was no pain, and there was only a slight limitation of the wrist’s range of motion. The pelvis and vertebra fractures also healed. The shoulder treatment was less successful. By October 30, 2008, symptoms of a condition called “frozen shoulder” remained. This condition involved pain and stiffness and some limitation of the shoulder’s movement. Lollar might also have had a torn rotator cuff, but for reasons of cost she never had the MRI scan which would have been necessary to make this determination. The pain, stiffness, and movement limitation remained at the time of the deposition in February 2009, and Dr. Blanks could not say when, if ever, they would get better. He described Lollar’s shoulder pain as chronic pain.
Dr. Adelheid Ebenhoech, who also treated Lollar after the accident, testified in a deposition that she also considered Lollar to be experiencing chronic pain. A colleague in her practice was treating the pain with osteopathic manipulation.
The parties presented evidence about Lollar’s ability to work and her earning capacity before and after the accident. Lollar testified that, during her first marriage from 1973 to 1994, she worked in two convenience stores owned by her husband. During her second marriage, from 1994 to 2005, her husband owned a business that provided physical therapy for horses. The business earned $50,000 to $65,000 per year. Before they were married, the husband paid Lollar $100 a day to work with him. She continued working with him throughout the marriage. From 2005 until the accident in 2007, Lollar was not employed and was not looking for work. She spent her time during this period gardening, canning, running, volunteering at a retail store operated by the American Cancer Society, and helping her daughter, Rae, prepare for her wedding.
After Lollar was discharged from the hospital, she went to stay with her parents. At first she stayed in bed all the time, using a bedpan, for about two weeks. After a time, she began spending days at her own house, but her parents would pick her up and bring her back to their house at night. She began sleeping at her own house again about two months after the accident.
Sorrelle Green, a vocational rehabilitation counselor, testified as an expert for the Trappens. Relying on a report prepared for the defense by a Dr. Katz, Green stated that a reasonable recovery time for Lollar, after which she would be able to work again, was 12 months. Jerald Udinsky, an economist, also testified as an expert for the Trappens. He testified about one scenario in which Lollar would return to work in one year, but he also discussed another scenario in which, after recovery, she would spend an additional one and a half years receiving training, and therefore would return to work after two and a half years. Ronald Morrell, a vocational rehabilitation counselor, testified as an expert for Lollar. He stated that, because of the chronic pain, as well as Lollar’s age (“early to mid 50’s”) and prior work experience, Lollar was unable to work in any capacity at the time of trial, which was two years after the accident. Lollar herself answered, “Correct, they have not, ” when asked, “And it’s also true that no doctor has told you that you cannot work?” Her own opinion, however, was that she could not work.
Lollar said that before the accident, she had planned to go back to work. She was interested in yoga and considered the possibility of obtaining the necessary training and opening a business teaching yoga. After the accident, she did not work and did not look for work. She testified that she had a monthly income, from a source she did not mention, of $1,265 and was living on that amount. This income will run out in 2014.
Green, the defense expert on vocational rehabilitation, opined that Lollar’s education level and her work in convenience stores and with horses meant she was able to earn $9 to $12 per hour before the accident. With the lingering effects of her injuries, Lollar would not be able to do the same type of work after her recovery because of the standing and lifting involved. With basic clerical training, however, she could become a general office clerk in a setting in which she would be able to sit some of the time and stand some of the time. The training, at a junior college or an adult school, would take six to nine months and would cost between $480 and $830. Lollar could again earn $9 to $12 per hour after this training. Udinsky, the defense economics expert, generated lost-earnings figures based on Green’s conclusions. He opined that on the low end, the loss could be zero. It would be zero if Lollar got a job after one year, and if it were shown that she had not intended to get a job during that one year even without the accident. On the high end, the loss would be $71,000. That would be the result if it were shown that Lollar would have gotten a job immediately at the time of the accident if the accident had not occurred and if it were shown that recovery and retraining would take until one and a half years after the date of trial, i.e., three and a half years after the accident. Udinsky also discussed several intermediate scenarios resulting in losses between zero and $71,000.
Morrell, Lollar’s expert on vocational rehabilitation, opined that her earning capacity before the accident was about $43,000 per year. Eric Drabkin, an economist who testified as an expert for Lollar, used Morrell’s opinion as a basis for calculating lost earnings. Assuming, based on Morrell’s opinion, that Lollar would never work again and that her retirement age would have been 67, he opined that her lost earnings from the date of the accident would be $646,000.
Lollar also presented evidence on damages for loss of household services. Lollar testified that before the accident, she did all her own housekeeping but could not do it after the accident and remained unable to do it at the time of trial. Since she returned home, her sister had been cleaning her house for her and helping her when she went grocery shopping. The sister, Debra, testified that at the time of trial she was continuing to go to Lollar’s house to vacuum the floors, clean the bathrooms, and change the bedding. Lollar’s parents testified that they cared for Lollar when she came to stay with them after she left the hospital. Her mother was continuing to cook for her at the time of trial. Drabkin, Lollar’s economist, calculated that at $12 per hour and 16 hours per week, the value of the housework Lollar would be unable to perform for the remainder of her life would be $270,910. Udinsky, the defense economist, testified that for each hour of housework per week that Lollar was unable to perform, her loss would be $10,662 over the remainder of her life; he did not, however, know how many hours of housework Lollar did each week before and after the accident, so he could not calculate the total loss.
Lollar presented bills showing that her medical expenses arising from the accident were about $75,000. Defense counsel conceded the correctness of this amount.
The stipulated amount of medical damages provided to the jury was $75,467.91, but should have been $74,767.91. The amount was corrected in the judgment.
A special verdict form was submitted to the jury. Under the heading “General Negligence, ” the form asked whether Ken and Denise Trappen were negligent and, if so, whether their negligence was a substantial factor in causing harm to Lollar. The jury answered yes to both questions. Under the heading “Premises Liability, ” the form asked whether the Trappens or Snyder were negligent “in the use or maintenance of the property.” The jury answered yes. Next, the form asked whether the Trappens were negligent in the use and maintenance of the property. The jury answered no. The form then asked whether Snyder was negligent. The answer was yes. To the next question, whether Snyder’s negligence was a substantial factor in causing harm to Lollar, the jury answered yes.
The form next asked the jury to find the amount of Lollar’s damages. Under the heading “Past economic loss, ” there were spaces for lost earnings, medical expenses, and other past economic loss. The jury found $75,467.91 in medical expenses and zero for the other categories. Under the heading “Future economic loss, ” there were spaces for the same categories-lost earnings, medical expenses, and other economic loss-and the jury found zero damages in each category. For “Past non-economic loss, including physical pain and mental suffering, ” the jury found damages of $75,000. For “Future non-economic loss, including physical pain and mental suffering, ” the jury found damages of $25,000. To the question whether Lollar was also negligent, the jury answered no.
The form also asked the jury to assign a “percentage of responsibility for Karen Lollar’s harm” to the Trappens, Lollar, and Snyder. It assigned 40 percent to the Trappens, 60 percent to Snyder, and zero to Lollar. The court entered judgment against the Trappens for $174,767.91.
After the jury trial ended, the court conducted a bench trial on the Trappens’ cross-complaint for indemnity against Snyder. Based on the jury’s fault allocation, the court entered a second judgment requiring Snyder to pay the Trappens 60 percent of the judgment entered against them.
DISCUSSION
I. Motion for new trial on damages
After the verdict, Lollar moved for a new trial on damages. She now argues that the court erred in denying the motion, claiming the damages were inadequate as a matter of law in three categories: (a) lost earnings and earning capacity, (b) loss of household services, and (c) pain and suffering.
Inadequacy of damages is a statutory ground for granting a motion for a new trial. (Code Civ. Proc., § 657.) The trial court should not grant a new trial on that ground “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.” (Ibid.) Unlike the trial court, we do not reweigh the evidence to determine whether a new trial should have been granted because of inadequate damages. (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in the Trial Court, § 36, p. 621.) The denial of the motion is reviewable, however: “While as a general rule the factfinders are the final judges of the extent of damages suffered by a plaintiff in a tort action, the rule is not of universal application. The uncontradicted evidence may demonstrate that the damages awarded are so inadequate as to justify appellate intervention.” (Smith v. Moffat (1977) 73 Cal.App.3d 86, 94; see also Clifford v. Ruocco (1952) 39 Cal.2d 327, 329 [$1,500 verdict inadequate as matter of law where uncontradicted evidence showed medical expenses and lost earnings exceeding $2,000].) We will now apply this standard to the three categories of damages at issue.
A. Earnings
Earnings loss is a somewhat complex category of damages. Two distinct concepts are involved: lost earning capacity and actual lost earnings. Loss of earning capacity or earning power is the real injury to be measured, for a plaintiff can recover for what is often loosely called “lost earnings” even if the plaintiff was not working for pay, or working at all, and did not intend to do so. Proof of actual earnings lost by a showing that the plaintiff earned a certain amount before the injury and, but for the injury, would have earned a certain amount in the future, is only a means of showing the value of the lost earning capacity. This view of what really is to be measured-what the plaintiff could have earned without the injury, not what he or she actually would have earned without it-has long been settled. (Storrs v. Los Angeles Traction Co. (1901) 134 Cal. 91, 93 [“it is what he was capable of earning, rather than what he was actually earning, that was to be considered by the jury”]; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 412-413 [“The test is not what the plaintiff would have earned in the future but what she could have earned.… The plaintiff may recover even where she was not working and earned nothing”]; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1666, p. 1185.)
Two pattern jury instructions, corresponding to both of these concepts, were given in this case. The court first gave an instruction in accordance with CACI No. 3903C, which pertains to actual lost earnings:
“[P]ast and future lost earnings. To recover damages for past lost earnings Karen Lollar must prove the amount of earnings that she has lost to date. To recover damages for future lost earnings, Karen Lollar must prove the amount of earnings she will be reasonably certain to lose in the future as a result of the injury.”
Next, the court gave an instruction in accordance with CACI No. 3903D regarding lost earning capacity:
“[T]he loss of Karen Lollar’s ability to earn money. To recover damages for the loss of ability to earn money as a result of the injury, Karen Lollar must prove the reasonable value of that loss to her. It is not necessary that she have a work history.”
As we have said, the verdict form divided Lollar’s damages into past economic loss, future economic loss, past non-economic loss, and future non-economic loss. The past and future economic loss categories were further divided into subcategories for lost earnings, medical expenses, and other economic loss. The jury awarded medical expenses and past and future noneconomic damages, but awarded nothing for lost earnings or other economic losses. The court had instructed the jury that lost earnings and lost earning capacity were both categories of economic loss, so it must have found that Lollar not only had no actual lost earnings but also no lost earning capacity.
It is clear that the jury could reasonably find that Lollar had no actual lost earnings. She was not working for pay at the time of the accident and the evidence was sufficient to support a conclusion that she did not have any concrete plans to get work then. Recognizing this, Lollar focuses now on lost earning capacity. She argues that the jury could not reasonably avoid finding that she had some earning capacity at the time of the accident and some reduction in that capacity because of her injuries.
We disagree. The evidence was in conflict over how long Lollar would be prevented from working, whether that period would ever end, and how much Lollar would be able to earn if she went back to work. The defense experts testified that Lollar would be able to work after a recovery period of a year or more; and she would then be able to earn $9 to $12 per hour, the same as she could have earned before the accident, so there would be no loss of earning capacity except during the period of recovery and retraining. Lollar’s experts testified that Lollar’s earning capacity was $43,000 per year before the accident, and she would never be able to work again-her earning capacity was reduced to zero. As a result, she lost an earning capacity of $43,000 for every year beginning with the accident and ending at retirement age. By accepting the defense evidence and rejecting Lollar’s evidence, the jury could reasonably find that Lollar’s earning capacity after her recovery would be equal to her earning capacity before the accident and that the difference therefore was zero.
Lollar contends that even if this is so, the jury still could not reasonably find that Lollar had zero lost earning capacity during her recovery because the evidence on both sides was in agreement that she was able to work for some amount of pay before the accident and could not work while she was recovering. Even the defense experts assumed she needed at least a year to recover. If so, then, given the defense estimate of a pre-accident earning capacity of $9 to $12 per hour, the minimum lost capacity for this period would be in the vicinity of $20,000, assuming a full-time job of 2, 000 hours per year. Lollar claims we should remand for a new trial on at least this component of lost earning capacity damages.
Again, we disagree. The evidence was sufficient to support a finding that, even absent the injuries, Lollar was not planning to work and would not have worked during the time she was recovering. Her position on this point, therefore, would require us to hold that, even though the jury could reasonably find that Lollar had no intention of working in any event, she still had some lost earning capacity while she was recovering, for the law on lost earning capacity does not require proof that the plaintiff would have had earnings, but only that she could have had them. This may be correct as an abstract statement of the law, but it was not Lollar’s theory of the case at trial. Lollar’s counsel did not argue to the jury that Lollar was seeking lost earning capacity damages because she was entitled to recover even if she did not intend to work. Instead, he argued that the purpose of the lost earning capacity claim was to allow the jury to compensate Lollar properly for her economic losses even though her work experience did not involve payment of wages or a salary and even though she happened not to be working for money at the time of the accident:
“The-one item lost earning capacity-the way you determine lost earning capacity-what we will instruct you is that a person’s work time has value even if they never worked before. And I believe the instruction is something to the effect that-let me look. ‘Loss of Karen Lollar’s ability to earn money, to recover damages for the loss of the ability to earn money, as a result of the injury. Karen Lollar must prove the reasonable value of that loss to her.’ It is not necessary that she have a work history. Why do you think that is?
“The law recognizes there are going to be people who are injured for one reason or another do not have an extensive recorded work history. Women, for example, who have worked in the home-and this idea just a homemaker doesn’t have value is outrageous. Women who work side by side with their husband and the idea that it’s his business, it’s not theirs is nonsense too, have a very big economic value but they don’t have a history. In the case of a mini mart, neither does the man. What they have is a business that makes money and supports them.”
Counsel’s strategy was to argue that what Lollar lost because of her injuries was the ability to do work comparable to running a mini mart or a veterinary physical therapy business, and that the jury should base its damages calculation on that-not on the defense estimate of $9 to $12 per hour-even though she could not prove with documents the value of her contribution to those businesses. It was not counsel’s strategy to contend that his client should still recover damages for lost earning capacity even if the jury found she did not plan on working.
Defense counsel responded to Lollar’s argument by telling the jury that Lollar was entitled to no lost earning capacity damages because she had no intention of working and, therefore, any capacity she lost had no value to her:
“There’s no wage loss. What there is, is loss of earning capacity. If I wanted to go to work I couldn’t because I was laid up. And then experts try and come up with an idea of well, what could you earn if you wanted to go to work during this time in your life? And they described this, and you will hear it in the jury instruction from the Court, it’s the reasonable value of that loss to her not to any one of you, not to me. Different people have different values of their inability to work. Part of it goes into it-would they be likely to want to do something?
“And what we know about Ms. Lollar is that she had an income. She told you that.… We know she had an income of some kind from someplace that was going to go to 2014, she told us that. So we know she was going to have some income until that time.
“Now, we did hear some really vague plans about a yoga business. Think about what she said. She really didn’t have any plans.… [¶] … [¶]
“[A]ll of [defense expert Udinsky’s] scenarios assumed that this lady really intends to go back to work before 2014. If you don’t believe that there’s no economic loss for inability to earn income. Again, remember we are talking about lost earning capacity not real lost income. Part of that is what are you going to do as a person?… [¶] … [¶]
“We know she didn’t actually lose income, we know that. What about this concept that we talked about earlier of inability to earn income? What should you give her for that? I suggest you give her nothing because she wasn’t working at the time and there’s no indication that she was going to go to work at all. Certainly not before 2014. Anything in between there is speculative.… The law gives you the right to award it if you think it’s fair and you think it applies in this case. Based upon the evidence that you have heard in court, I don’t think you should.”
Lollar’s counsel did not object to this argument. On rebuttal, he did not say the defense argument involved an incorrect statement of the law. The combined effect of this omission and the arguments counsel did make was to present a theory of lost earning capacity damages, according to which the defendants’ negligence took away Lollar’s capacity to engage in lucrative activities she had engaged in before and would have liked to engage in again. Lollar effectively conceded that if the jury found she did not intend to go back to work, then it could also find she did not lose any earning capacity. In attempting to maximize damages for lost earning capacity, counsel had good reason to portray Lollar as a hard-working person who had devoted energy and skill to her past business enterprises. To tell the jury that she was entitled to lost earning capacity damages even if she did not intend to go back to work could have undermined this theme.
Lollar’s theory on appeal that she must be awarded lost earning capacity damages even if she did not intend to work is, therefore, a new theory. Ordinarily, appellate courts will not consider “a new theory of recovery never properly tendered in the trial court.” (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
“The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240-241.)
We have discretion to apply or not apply this rule according to the circumstances. (Richmond v. Dart Industries, Inc., supra, 196 Cal.App.3d at p. 874.) In this case, we exercise our discretion not to consider the new theory. Lollar had the opportunity to present the theory to the jury, but did not do so. We conclude that Lollar has forfeited her claim on this particular point.
B. Household services
Lollar also argues that the award of zero for lost household services was inadequate as a matter of law. No jury instruction was given on lost household services and apparently none was requested, although a pattern instruction for the value of lost household services, CACI No. 3903E, exists. The verdict form had no space specifically for household services. The form did have a space for “[o]ther past economic loss, ” however, and Lollar’s counsel urged the jury to award damages for lost household services in his closing argument. Lollar now says the jury could not rationally find she had proved no damages of this type. We disagree.
“Generally, household services damages represent the detriment suffered when injury prevents a person from contributing some or all of his or her customary services to the family unit. [Citation.] The justification for awarding this type of damage … is that the plaintiff should be compensated for the value of the services he would have performed … which, because of the injury, will now have to be performed by someone else.” (Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 170, fn. 5.) As this statement indicates, proof of household services damages requires a showing that the plaintiff would actually have provided the services claimed to be lost-“his or her customary services.” There is no recovery for lost capacity to provide household services that were not actually being provided. Household services are unlike earnings in this respect. The pattern jury instruction on the subject reflects this, stating that the plaintiff must “prove the reasonable value of the services [he/she] would have been reasonably certain to provide to [his/her] household if the injury had not occurred.” (CACI No. 3903E.) We know of no authority to the contrary.
The jury could reasonably find there was no proof of an actual loss. Lollar’s sister testified that she cleaned house for her. Lollar’s mother testified that she cooked for her. It was not clear whether all of this help was necessitated by Lollar’s injuries, however. There was no evidence that her mother did not cook for her before the accident as well, for instance. Lollar’s mother testified that she also cooked for Lollar’s sister, and that the reason she cooked for Lollar was that “[w]e do live close together and she is not able to always go and do it herself.”
There was no evidence that Lollar’s injuries made her unable to cook. There was no evidence about how much help Lollar might have received from family members with these tasks before the accident. Lollar herself testified that she formerly did household chores and now could not, but she did not claim she could do nothing for herself and did not attempt to describe the types or quantify the amount of housework she could or could not do. There was no expert testimony about what amounts or kinds of housework she could or could not do. Her economist testified about what the monetary value of her household services would be for the rest of her life, but her vocational rehabilitation expert did not testify that she could do no housework or say how much or little housework she could do. Further, the vocational rehabilitation expert for the defense opined that Lollar could do light office work that included periods of sitting and standing, from which it could reasonably be inferred that Lollar could do some kinds of housework. Considering all this, the jury could reasonably find that Lollar failed to prove the amount of household services she would have been reasonably certain to provide but for the accident.
Presumably, Lollar was unable to provide household services in the period immediately after the accident, when her parents were caring for her in their home. Lollar has waived any claim for the value of household services lost during that period, however. In his closing argument, her counsel said, “She is taken care of by her mom and dad for months, nursed. She could make a claim for that, but she didn’t. She could say mom, give me a bill and I ask the jury to pay you. She didn’t.”
C. Pain and suffering
Lollar contends:
“The pain and suffering award is inadequate as a matter of law. While standing in isolation an award of a hundred thousand dollars in pain and suffering would ordinarily be invulnerable to attack regardless of the injury. We are not in isolation here as we know the jury ignored the instructions on economic loss and awarded zero for all economic damages save the medical bills.”
As this court has stated, a jury has “relatively unfettered authority and responsibility to calculate damages for pain and suffering.…” (Garfoot v. Avila (1989) 213 Cal.App.3d 1205, 1210.) We quoted our Supreme Court:
“‘One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. (See 7 Wigmore, Evidence (3d ed. 1940) § 944, pp. 55-56.) In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy. As one writer on the subject has said, “Translating pain and anguish into dollars can, at best, be only an arbitrary allowance, and not a process of measurement, and consequently the judge can, in his instructions, give the jury no standard to go by; he can only tell them to allow such amount as in their discretion they may consider reasonable.… The chief reliance for reaching reasonable results in attempting to value suffering in terms of money must be the restraint and common sense of the jury.…” (McCormick on Damages, § 88, pp. 318-319.)’ (Beagle v. Vasold [(1966)] 65 Cal.2d 166, 172.)” (Garfoot v. Avila, supra, 213 Cal.App.3d at p. 1210.)
We concluded that “[t]he critical issue subject to review by the trial and appellate courts is whether the jury’s award for pain and suffering is just and reasonable as required by law.…” (Garfoot v. Avila, supra, 213 Cal.App.3d at p. 1211.)
Lollar’s discussion of this issue cites no authority and, although it asserts that the jury’s findings on economic damages reveal inadequacy in its finding on pain and suffering, it does not explain how. Lollar has not sustained her burden of showing how the $100,000 pain-and-suffering award was not just and reasonable or how the jury exceeded its relatively unfettered authority in arriving at this figure.
II. Snyder’s liability
Snyder makes several arguments about why he could not properly be held liable for a portion of the damages to be paid to Lollar. We will consider each of these in turn.
A. Tenant’s duty of care
Snyder argues that only a landlord-never a tenant-can be liable for negligence that results in a person being harmed by a dangerous condition on the property. He says the duty to guard against dangerous conditions “was solely the duty of the Trappens.” He is mistaken.
Snyder shifts his ground in his reply brief, saying it “has never been disputed” that he “had an independent duty of care to those visiting” the house. Out of an abundance of caution, we will address the argument that Snyder had no duty of care in spite of his apparent abandonment of it.
It is simply not the case that an owner of real property is liable for negligence arising from a dangerous condition on the property to the exclusion of another who has possession or control of the property. “The liability is imposed on an owner or possessor.” (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1083, p. 407.) “[A] duty to exercise due care can arise out of possession alone.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 367.) Rowland v. Christian (1968) 69 Cal.2d 108, 119, abolished the traditional distinctions between the types of persons to whom the duty is owed-invitees, licensees, and trespassers-but the class of persons who owe the duty has always been defined as owners and possessors. “The proper test to be applied to the liability of the possessor of land … is whether in the management of the property he has acted as a reasonable man in view of the probability of injury to others.…” (Ibid.)
There is no question but that a tenant is a possessor of the leased property. Black’s Law Dictionary defines “leasehold” as “[a] tenant’s possessory estate in land or premises.…” (Black’s Law Dict. (9th ed. 2009) p. 973, col. 1.) The verb “to lease” means “[t]o grant the possession and use of (land, buildings, rooms, moveable property, etc.) to another in return for rent or other consideration.…” (Id. at p. 972, col. 2.) Since Snyder was the lessee of the house, he was a possessor and had a duty of care to guests he invited into the house.
It is true that the scope of the possessor’s duty depends on the nature of the possessory interest and is limited by the degree of control conferred. (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1240-1241 [owner of easement over road had no duty to victim injured on road by dogs who escaped from neighboring property, since easement owner had no control of dogs].) Snyder points out that the lease forbade him to make any alterations to the property without the Trappens’ written consent. This fact does not show, however, that limits on Snyder’s control of the property meant he had no relevant duty to Lollar. Nothing prevented Snyder from warning all his guests about the gate, and nothing prevented him from asking for the Trappens’ consent to put a latch or other safeguard on the gate. It was up to the jury to decide whether reasonable care required him to do one of these things.
The nondelegable duty doctrine on which Snyder relies is inapplicable. The doctrine states that an owner or possessor of property cannot escape liability for a dangerous condition of property by delegating his duty of care to another. In Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, for instance, the Court of Appeal held that a landlord was liable to a tenant who was burned when hot tar being applied by the landlord’s roofing contractor fell through the roof and burned the tenant. The landlord’s duty to the tenant could not be delegated to the contractor. (Id. at pp. 724, 726.) The court quoted Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260: “‘“[t]he duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable. If an independent contractor, no matter how carefully selected, is employed to perform it, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition[.]”’” (Srithong v. Total Investment Co., supra, at p. 726.) Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, which Snyder relies on, recites these same principles.
Here, Snyder was a possessor of the property. Neither he nor the Trappens could delegate their duty of care to an independent contractor or other third party. That does not, of course, show that Snyder himself could not be liable as a possessor: To the contrary, it shows that he was subject to the nondelegable duty. In sum, this case does not involve a delegation of a duty by a landlord to a nonpossessor; it involves a duty that was shared by the landlord and tenant, both possessors, in the first place.
Snyder’s references to a landlord’s statutory duties toward a tenant also fail to support his position. For instance, he cites Civil Code section 1953, subdivision (a)(5), which voids any lease provision that purports to waive a tenant’s right “to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.” The fact that the lease could not contain this kind of waiver is irrelevant. The law imposes a duty of care on both the landlord and the tenant to the extent that each has control of the property.
After the evidence was presented, Lollar made a motion for a directed verdict finding the Trappens liable for 100 percent of her damages. She and Snyder argue now that the court erred in denying the motion. In support of this argument, Lollar and Snyder repeat the contention that only the Trappens, not Snyder, could properly be held liable for Lollar’s injuries. The contention fails for the reasons we have discussed.
B. Equitable indemnity as a means of apportioning liability
Snyder argues that, as a matter of law, equitable indemnity was not available as a method of imposing liability on him for the share of fault the jury’s verdict assigned to him. He says that, even if he had a duty of care toward Lollar, he still had no duty toward the Trappens to equitably indemnify them. He is, again, mistaken.
Indemnity is “the obligation resting on one party to make good a loss or damage another party has incurred.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1974) 13 Cal.3d 622, 628.) Equitable indemnity is indemnity that does not arise from a contract, either expressly or impliedly, but arises instead from the “equities of particular circumstances.” (Ibid.) There is no contention that the lease agreement between Snyder and the Trappens provided for any indemnity, express or implied, so equitable indemnity is the type of indemnity at issue here.
“[A] defendant may generally file a cross-complaint against any person from whom he seeks equitable indemnity.” (Platt v. Coldwell Banker (1990) 217 Cal.App.3d 1439, 1444.) Apportioning liability between joint tortfeasors is one accepted application of equitable indemnity, and the filing of a cross-complaint by one joint tortfeasor against another is a common method of obtaining a judgment for equitable indemnity: “Rules permitting a joint tortfeasor to cross-complain against another joint tortfeasor for equitable indemnity ‘promote the public policy considerations underlying multiparty tort litigation: the maximization of recovery to the injured party; settlement of the injured party’s claim; and equitable apportionment of liability among concurrent tortfeasors.’ [Citation.] Courts have ‘consistently adopted procedures’ promoting these policies and ‘have rejected procedures which would undermine these policies.’ [Citation.]” (Id. at p. 1449.)
This is an ordinary case of allocation of liability between joint tortfeasors by means of a cross-complaint for equitable indemnity. Snyder says allowing the Trappens to recover a portion of the verdict from him would be inequitable, but we do not see why. “‘The purpose of equitable indemnification is to avoid the unfairness, under joint and several liability theory, of holding one defendant liable for the plaintiff’s entire loss while allowing another responsible defendant to escape “‘scot free.’”’” (Platt v. Coldwell Banker, supra, 217 Cal.App.3d at p. 1444.) In this case, not allowing the Trappens to recover against Snyder in equitable indemnity would be unfair, for it would mean they must absorb the entire amount of Lollar’s damages-even though the jury found them only partially responsible-merely because Lollar chose not to sue her son.
Snyder also argues that he is not liable in equitable indemnity because a tort victim cannot be required to indemnify the tortfeasor. Snyder, however, was a joint tortfeasor, not a victim of the Trappens’ negligence. He was not injured. He cannot, of course, show that he was a victim merely by arguing that if the Trappens had not been negligent, there would have been no injury and he would not have had to pay. The Trappens could equally well argue that they are Snyder’s victims, since they would not have had to pay but for Snyder’s negligence.
C. Indemnification of insurer
Snyder argues that the judgment is erroneous because it effectively requires him to indemnify the Trappens’ insurer. This argument has no merit. No insurer is a party to the litigation. No judgment for indemnity or anything else was entered in favor of an insurer. The record contains no evidence regarding insurance.
Even if there were evidence in the record that the judgment against Snyder may redound to the benefit of an insurer, that evidence would not be relevant to any issue now before us. The real point of Snyder’s argument is that he should not have to pay the Trappens for a liability that will be covered by their insurance and that his payment to them will presumably only reduce the net payment by the insurer, since the policy likely requires the Trappens to turn over any indemnification for a covered claim to the insurer. Snyder has suggested no legal reason, however, why the fact that one joint tortfeasor has liability insurance would reduce or eliminate the liability of another joint tortfeasor.
III. Verdict on premises liability
Lollar and Snyder argue that the jury’s verdict is erroneous as a matter of law because it found the Trappens negligent generally but not negligent in the maintenance and use of the property. They say the finding is “unsupported by the evidence” and “suggests the jury was confused.” “By asserting that there was no substantial evidence to support the jury’s verdict for respondent, appellant is in fact claiming that he proved negligence as a matter of law, and such is not established unless the only reasonable hypothesis is that negligence existed.” (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099.) To sustain Lollar and Snyder’s position, we would have to conclude that “it would have been impossible from all the evidence for the jury to find” that the Trappens were not negligent in the use and maintenance of the property. (Byrum v. Brand (1990) 219 Cal.App.3d 926, 947.)
Lollar and Snyder are not very explicit about why it would be impossible for the jury to find the Trappens were not negligent in the use and maintenance of the property. Presumably, however, their point is that the only evidence that could have supported the jury’s finding of general negligence-or any kind of negligence-was the evidence that the Trappens did not repair the unsecured gate or provide adequate warnings, and this was evidence about their use and maintenance of the property.
We agree that it is difficult to understand why the jury found the Trappens generally negligent but not negligent in the use and maintenance of the property. It is also difficult to see why the verdict form made this distinction, which, in light of the evidence, seems to have little practical significance in this case. All the negligence of which there was evidence related to failures to repair the gate or give warnings about it.
At the same time, however, there are no grounds for believing this feature of the verdict was prejudicial to Lollar or Snyder. The jury found the Trappens were negligent and assigned a portion of the fault to them based on its assessment of the facts. Given the record, there is no reason to think the jury would have assigned more of the fault to the Trappens or awarded more damages if it had found the Trappens were negligent in the use and maintenance of the property as well as generally negligent. As we have said, the only evidence of their negligence was the evidence that they failed to repair or warn. The jury could not rationally have found a different fault allocation or different damages just because it found the conduct amounted to two types of negligence (general negligence and negligence in the use and maintenance of property) instead of one. There was no prejudicial error.
IV. Other issues
Lollar and Snyder make several other arguments relating to jury instructions, evidentiary rulings, and defense counsel’s conduct. None of these arguments have merit.
A. Alleged suppression of evidence
Dr. Edward Katz is a physician who was retained by the defense to examine Lollar, study her medical records, and prepare a report on her injuries and her ability to work. He was not present at trial. Sorrelle Green, the vocational rehabilitation expert for the defense, testified that defense counsel told her he told Katz not to come to the trial. Katz had been deposed, however, and Lollar’s counsel read the transcript of his deposition to the jury. Among other things, Katz described Lollar’s injuries and said she would need vocational rehabilitation and training before she could work again.
Lollar unsuccessfully asked the trial court to instruct the jury that Katz’s nonappearance at trial could mean the defense had suppressed evidence and that the jury could draw adverse inferences from this occurrence. The pattern instruction she requested, BAJI No. 2.03, states: “If you find that a party willfully [suppressed] [, ] [altered] [, ] [damaged] [, ] [concealed] [, or] [destroyed] evidence in order to prevent its being used in this trial, you may consider that fact in determining what inferences to draw from the evidence.” She now argues that defense counsel “procured the absence” of Katz from the trial and “tried to prevent his testimony” and that the court erred when it refused to give the instruction. We review jury instructions de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
In denying the request, the trial court referred to BAJI No. 2.04, but this must be a mistake, since that instruction is not about suppression of evidence.
So far as anything in the briefs or the record reveals, the alleged suppression of Katz consisted merely of a decision by the defense not to call him as a witness. Lollar and Snyder claim this happened “at the eleventh hour” and resulted in the “inability of the plaintiff to subpoena him.” The Trappens’ brief adds that defense counsel released Katz from a subpoena that had been served on him.
A mere failure to call a witness is not a willful suppression of evidence. (Keena v. United Railroads of San Francisco (1925) 197 Cal. 148, 158.) At the same time, however, there is a “rule that where a party has an opportunity to call a witness who is prepared and qualified to testify as to a fact in issue and fails to do so, it may be inferred by the trier of fact that the evidence if given would be adverse to such party.” (Hays v. Viscome (1953) 122 Cal.App.2d 135, 138.)
We need not determine whether the court erred in refusing to give the requested instruction, for Lollar and Snyder have not shown that the refusal was prejudicial. The substance of the evidence alleged to be suppressed-Katz’s opinion that Lollar was seriously injured and would need rehabilitation and training before returning to work-reached the jury when Lollar’s counsel read the deposition transcript.
Lollar and Snyder argue that defense counsel made a “suggestion to the jury that [Lollar] might be faking it” and that “the jury would have been less likely to take defense counsel’s word had they known that he deliberately procured the absence of the witness.…” This is not persuasive. The jury did not take defense counsel’s word that Lollar was faking her injuries. It believed she was injured and it awarded her $75,000 for her medical expenses and $100,000 for pain and suffering. It did reject Lollar’s claim that she could never go back to work, but that rejection has no logical connection with any efforts the defense might have made to keep Katz away from the trial. It would be different if Katz thought Lollar had lost all her earning capacity and the defense had kept that view from reaching the jury. Katz’s opinion, however, was that Lollar could work again and the jury heard that opinion. There was no way the requested instruction could have led the jury to infer that the defense was hiding evidence that she could not work again.
Hays v. Viscome, supra, 122 Cal.App.2d 135, on which Lollar and Snyder rely, is distinguishable. There, “[t]he critical question in the case was whether plaintiff had suffered an injury which resulted in nerve pressure”-a type of injury with serious consequences-or an injury that did not result in nerve pressure, which would not have had those consequences. (Id. at p. 140.) The defense retained a physician and, after he examined the plaintiff, decided not to call him as a witness. Instead, it retained another physician who examined the plaintiff again and testified that there was nothing wrong with her. (Id. at p. 137.) The jury awarded the plaintiff only $700. (Id. at p. 136.) The Court of Appeal held that the trial court erred when it excluded evidence that the defense had obtained the first doctor’s examination and then failed to call him as a witness and when it failed to instruct the jury that the failure to call him could support an inference that he would have given adverse testimony. (Id. at pp. 138-139.) In sum, the holding in Hays was that the the court’s ruling prevented the jury from receiving evidence and instructions on which it could have based an inference that the defense hid evidence which could have led to a different verdict. The court’s ruling did not have that effect in the present case. Katz’s opinions reached the jury; and, given the content of those opinions, there is no reason to think the jury would, if instructed differently, have rendered a different verdict.
B. Absent doctor’s report
Sorrelle Green testified that she relied on Katz’s report. Lollar and Snyder argue that the report should have been admitted into evidence.
Lollar and Snyder’s briefs do not cite any place in the record where they asked to have Katz’s report admitted into evidence. At the point in Green’s testimony where Katz’s report is mentioned, there was an objection that led to an off-the-record discussion at the bench. This discussion might have been about the admissibility of Katz’s report, but we do not know. Lollar and Snyder also have not made any attempt to show how the report would have helped them or how its alleged exclusion prejudiced them. This is especially significant in light of the fact that Katz’s opinions reached the jury in another form when his deposition was read.
Because Lollar and Snyder have not established that the ruling they claim is erroneous ever took place, and because they have nothing to say about how the alleged ruling impacted their case, we conclude that they have waived the issue by failing to brief it adequately. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999)21 Cal.4th 352, 366, fn. 2; People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.) We will not address the issue further.
C. Defense counsel’s comments about Lollar in closing argument
In his closing argument, defense counsel encouraged the jury to decide how disabled Lollar was partly by considering her behavior in the courtroom. He said:
“You have had an opportunity in this case to hear doctors talk about Karen’s condition. You also had an opportunity to hear her and watch her move around the court, watch her sit through the proceedings, see how she is and what she is able to do. And you are the best judge of what you have seen. Have you seen someone that’s been able to sit pretty much through all the proceedings, not getting up any more than counsel are? Have you seen someone who seems to move around okay or is having problems? That’s up to you, that’s your observation, I wasn’t looking. I assume you paid some attention to how she was doing.”
Lollar and Snyder now argue that Lollar’s behavior in the courtroom, except when she was testifying, was not evidence and counsel’s reference to it was misconduct requiring reversal of the judgment. Lollar and Snyder did not object at trial to this portion of defense counsel’s argument.
We ordinarily do not consider claims of error where an objection could have been, but was not, made in some appropriate form at trial. It is usually unfair to the trial court and the adverse party to take advantage of an error on appeal which could have been corrected during the trial. (People v. Saunders (1993) 5 Cal.4th 580, 590; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) In this case, if Lollar and Snyder had objected to this portion of the argument, and if the argument was improper, the court could have instructed the jury not to consider Lollar’s courtroom behavior. Their trial counsel did nothing, however. Lollar and Snyder have presented no reason why we should depart from the usual rule of forfeiture.
D. Form of defense expert’s testimony
Lollar and Snyder argue that the testimony of Udinsky, the defense economist, was generally improper because portions of it were narrative in form or were argumentative. Their argument does not analyze any specific rulings in response to any specific objections by trial counsel, and it does not explain how the form of the testimony was prejudicial except by saying the jury apparently believed Udinsky. The argument in Lollar and Snyder’s brief (with record citations omitted) is, in its entirety, as follows:
“Asking a witness to comment on another witness’s testimony or traits or characteristics of the testimony is prejudicial and reversible [People v. Chatman (2006) 38 Cal.4th 344, asking a witness whether another witness was lying is argument; see, also, People v. Zambrano (2004) 124 Cal.App.4th 228].
“In examining the defendants’ expert Jerald Udinsky, defense counsel regurgitated some prior testimony, often mis-describing it, and asked his expert to comment on it. Such questioning is improper, it is argument and it is misleading. What is more it elicits an argument, a narrative response full of improper matter such as Udinsky falsely accusing the plaintiff of being on drugs! Obviously the jury believed the false testimony and inadmissible argument from Udinsky as they did [not] award any economic damages. The entire presentation from [Udinsky] was improper.”
The record citations included in this passage refer to five objections counsel made at trial. The objections were: (1) question calls for a narrative answer; (2) “I would ask that the witness just respond to the question and not comment on his writing utensils” (Udinsky had tried to explain why something he had written in a document might be hard to read); (3) answer is narrative, no question pending; (4) question calls for a narrative answer and for “improper commenting on another witness”; and (5) question calls for a narrative or argumentative answer. The rulings, respectively, were: (1) “some leeway … needs to be given” but counsel should move on to the next question; (2) overruled; (3) a question was pending, but it was open-ended, so counsel should proceed to the next question; (4) overruled; and (5) overruled.
Lollar and Snyder have not attempted to explain why, specifically, any of these rulings were erroneous. They do not discuss the rulings separately. Their vague general argument that the rulings all constituted reversible error because some unspecified narrative or argumentative testimony was involved is not sufficient. They have, again, waived the issue by failing to brief it adequately. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th at p. 366, fn. 2; People v. Barnett, supra, 17 Cal.4th at p. 1107, fn. 37.) In any event, we have reviewed the transcript and conclude that none of the rulings constituted reversible error.
Finally, the comment that Udinsky falsely accused Lollar of being on drugs is not supported by the record. Udinsky mentioned that, at the time of the injury, Lollar was suffering from depression and was using medication to treat it. This was not in dispute. Lollar herself testified that she had depression before the accident and had been using antidepressant medication. Further, Lollar’s counsel did not object at trial to Udinsky’s remark about this, so the issue is not preserved for appeal.
DISPOSITION
The judgment is affirmed. The Trappens are awarded costs on appeal.
WE CONCUR: Kane, J., Detjen, J.