Opinion
G043728 Super. Ct. No. 07CC08026
12-14-2011
GARY LOW, Plaintiff and Respondent, v. ANNA SCHOENDORFER et al., Defendants and Appellants.
Pollak, Vida & Fisher, Daniel P. Barer; McClaugherty & Associates and Jay S. McClaugherty for Defendants and Appellants. Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Francisco F. Firmat, Judge. Affirmed.
Pollak, Vida & Fisher, Daniel P. Barer; McClaugherty & Associates and Jay S. McClaugherty for Defendants and Appellants.
Snell & Wilmer, Richard A. Derevan and Todd E. Lundell for Plaintiff and Respondent.
This is an appeal from a new trial order. The main argument is that the trial specified the wrong "ground" for the new trial. Supposedly, the trial court specified "insufficient evidence" when its real ground was "inadequate damages" and the inaccurate specification requires an automatic reversal.
We affirm. As we show below, back in 1967, when the Legislature added "inadequate damages" to the list of grounds for new trials under section 657 of the Code of Civil Procedure, it specifically intended judges to "continue" the practice of granting new trials based on inadequate damages under the general heading of insufficient evidence. (All undesignated statutory references in this opinion will be to the Code of Civil Procedure.)
FACTS
In August 2005 Gary Low was stopped in his Mercedes at an intersection on 17th Street in Santa Ana. Anna Schoendorfer approached the intersection at about 50 miles per hour. She failed to stop. Her car hit the car right behind Low's. That car in turn struck Low's car. Low's Mercedes incurred less than $4,000 in damages.
Low sued Anna Schoendorfer and her father, who owned the 1998 Saturn she was driving, for personal injuries. Liability was admitted. Damages were contested. The Schoendorfers claimed most of Low's medical bills were properly attributable to preexisting conditions. The bills amounted to more than $180,000. The jury awarded Low $20,000.
Low moved for new trial. In his notice of intent to move for new trial, he listed, among other grounds, both inadequate damages and insufficiency of the evidence. However, in his memorandum of points and authorities supporting his motion for new trial filed 11 days later, Low did not expressly give "inadequate damages" as one of the grounds for his motion. He did, however, list "insufficiency of the evidence to justify the verdict." The motion also listed misconduct on the part of the Schoendorfers' trial counsel.
Low's motion was quite specific in articulating the basis for the claimed insufficiency of evidence as to damages: The Schoendorfers' "own evidence demonstrate[d] damages well in excess of $20,000." One of their expert witnesses, Milton Legome, M.D., had admitted that Low had sustained soft tissue injuries to his neck and back in the accident that required a course of physical therapy. The total costs were $8,700. Dr. Legome also conceded that Low's right wrist had been injured in the accident. The cost of treatment for that wrist was reasonable. It came to $13,734.76. Adding $8,700 for the neck and back plus more than $13,700 for the wrist came to more than the $20,000 awarded by the jury.
The trial judge granted the motion. As far as damages were concerned, the trial court's order tracked the motion in focusing on the testimony of Dr. Legome. Here is what the trial judge wrote at the beginning of the order as a general summary: "Plaintiff's motion for a new trial is granted on the grounds of irregularity in the proceedings and insufficiency of the evidence to justify the award given by the jury."
A few lines later the judge wrote: "Doctor Legome testified as Defendant's expert and stated that Plaintiff was injured in the accident and that over $20,000 of the medical bills were caused, were reasonable and necessary. The jury apparently disregarded him and gave less than testified to by Dr. Legome. This shows the jury was swayed by defense counsel's misconduct as stated below. No evidence supports the jury's award of less than the amount testified to by Dr. Legome."
The new trial order concluded with this summary, which did mention inadequate damages: "Plaintiff has been denied a fair trial by irregularities caused by defense counsel that led to an inadequate jury award of damages."
The new trial motion was granted. The Schoendorfers timely appealed from the new trial order.
DISCUSSION
The trial court mentioned misconduct of counsel in addition to inadequacy of damages in its statement granting the new trial motion. However, there is no need to address the misconduct issue. This court is required to sustain the new trial order "'unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court's] theory.'" (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412, quoting Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 710, Lane court's brackets.) A reasonable trier, however, could have found for Low on the trial court's theory of inadequate damages by itself, even under the heading of insufficient evidence.
1. The issue
The Schoendorfers argue that, under the statutory canon against surplusage, because section 657 uses both phrases, "insufficiency of the evidence" and "inadequate damages," the two phrases must mean different things. They argue that since the trial court did not mention "inadequate damages" in its formal recital of the "grounds" for the order, and since the evidence was sufficient to uphold the jury's verdict, the order must be automatically reversed because "insufficient evidence" will not support it. (Cf. Bakurjian v. Pugh (1935) 4 Cal.App.2d 450, 453-454 (Bakurjian)[where only ground for new trial motion was inadequate damages, failure to "specify insufficiency of the evidence as one of the grounds upon which" order was granted was fatal because, when a motion for new trial is granted for insufficiency of the evidence, "the order must say so"].)
2. Analysis
This is the rare case where the canon against surplusage does not apply. On rare occasions like this one the Legislature may intend terms in statutes to overlap. (See People v. Cruz (1996) 13 Cal.4th 764, 782 ["Rules such as those directing courts to avoid interpreting legislative enactments as surplusage are mere guides and will not be used to defeat legislative intent."]; Dickey v. Raisin Proration Zone No. 1 (1944) 24 Cal.2d 796, 811; Civ. Code, § 3537.)
In the case of section 657, trial courts had long been granting new trial motions under the heading of insufficient evidence when the real basis was inadequate damages, and had been affirmed in so doing. (See Taylor v. Northern Electric Ry. Co. (1915) 26 Cal.App. 765 (Taylor); Phillips v. Lyon (1930) 109 Cal.App. 264, 268 (Phillips); Franklin v. Bettencourt (1936) 16 Cal.App.2d 511, 512 (Franklin); Reilley v. McIntire (1938) 29 Cal.App.2d 559 (Reilley); Harper v. Superior Air Parts (1954) 124 Cal.App.2d 91, 95 (Harper); McFarland v. Kelly (1963) 220 Cal.App.2d 585, 586-587 (McFarland).)In this company the Bakurjian case is the distinct outlier.
Moreover, a number of courts had even gone so far as to explicitly equate inadequate damages with insufficiency of the evidence. (See Taylor, supra, 26 Cal.App. at p. 767; Franklin, supra, 16 Cal.App.2d at p. 514; Reilley, supra, 29 Cal.App.2d at p. 562; Bray v. Rosen (1959) 167 Cal.App.2d 680, 683 (Bray).)
In 1967, the Legislature finally amended section 657 to explicitly include inadequate damages in addition to insufficient evidence as one of the grounds for a new trial order. The Senate Legislative Committee Comment to the amendment was clear that the addition of inadequate damages was simply to "codify" what judicial decisions had been doing for years: "The amendments to Section 657 simply codify judicial decisions declaring its substantive effect." (Legis. Com. com., 16A West's Ann. Code Civ. Proc. (1976 ed.) foll. § 657, p. 222, italics added.) The Comment even cited Harper and Reilley for the proposition that "The availability of this basis [i.e., inadequate damages] for granting a new trial, on the ground of 'insufficiency of the evidence to justify the verdict,' is well settled in California." (Ibid.; see also Phillips, supra, 109 Cal.App. at p. 268 [no reason to treat new trials for excessive damages any differently from new trials for inadequate damages because either way "it is erroneous because it does not represent just compensation for the injuries sustained"].)
After the 1967 amendment, dicta in Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51 (Stevens)equated inadequate damages with excessive damages. The Supreme Court had already declared, in Sinz v. Owens (1949) 33 Cal.2d 749 (Sinz), that insufficiency of evidence could cover "excessive damages," even if there was no "passion or prejudice" attendant upon the verdict as the language of section 657 required at the time. In Stevens the court treated inadequate damages, in substance, as subspecies of insufficient evidence: "[T]o state that the damages awarded by the jury are excessive is simply one way of saying that the evidence does not justify the amount of the award." (Stevens, supra, 9 Cal.3d at p. 61.)
Stevens' dicta treating inadequate damages as another way of "saying" insufficient evidence was soon reified in Galindo v. Partenreederei M.S. Parma (1974) 43 Cal.App.3d 294 (Galindo)which took the final step of holding that a new trial could be granted for inadequate damages under the heading of insufficient evidence. Galindo is on point with the case before us. We will therefore give it an extended explication.
A longshoreman was injured in a banana box loading accident. He claimed severe back injuries. He sued the owner of the ship. By the time of trial he still unable to sit, stand or lie in any position for any period of time without pain. (Galindo, supra, 43 Cal.App.3d at p. 297.) Experts differed as to whether he could return to any sort of manual labor. His own expert said he could not return to manual labor at all. He was 24 years old and had always worked as a manual laborer. A plaintiff's expert calculated the present value of his lost earnings at $270,000. (Id. at p. 298.)
But there was conflicting evidence. The defense was contributory negligence (Galindo, supra, 43 Cal.App.3d at p. 298), apparently rooted in some sort of unsafe loading of the offending box. (See id. at pp. 297, 300.) The defense also attempted to minimize plaintiff's overall condition. The defendant's expert said the plaintiff could still "do light longshore work," such as jitney driving. (Id. at p. 297.) The defense also attempted to ascribe all or almost all of plaintiff's condition to three previous injuries: one four years before, one two years before, and one in January of the same year as the accident with the banana crate. While the plaintiff's expert attributed 75 percent of plaintiff's condition to the banana box accident, the defendant's expert apportioned 100 percent of the plaintiff's condition to his previous injuries. (Id. at pp. 297-298.)
The jury returned a verdict for $7,300. The plaintiff filed a motion for new trial, listing almost all the grounds for new trial in section 657 except inadequate damages. The motion did list insufficiency of the evidence. (Galindo, supra, 43 Cal.App.3d at p. 299.) But the trial granted the new trial motion citing inadequate damages. (Ibid.) The order mentioned the surgery the plaintiff had undergone, and the simple fact he had been working as a longshoreman. He could no longer do "what all longshoremen do." (Id. at pp. 299-300.) The trial court found no evidence that the plaintiff's own negligence caused the accident. (Ibid.) The trial court concluded that the difference in the experts' opinions as to the percentage of injury attributable to the banana box accident was "substantially" in the middle of the figures of zero (the defense expert) and 75 percent (the plaintiff's expert). (Ibid.)
The defendant argued, as in the present case, that the trial court had no power to grant a new trial on the issue of inadequate damages. He asserted the new trial order violated section 657 "because this ground was not specifically included" in the notice of intention to move for new trial, particularly in the wake of the 1967 amendment adding inadequate damages to the list of new trial grounds. (Galindo, supra, 43 Cal.App.3d at p. 301.) The argument was that "in order to effectuate the purpose" of the 1967 amendment, listing inadequate damages in its own right was a prerequisite to granting the motion. (Ibid.)
The Galindo court rejected the argument. Two points worked together to convince the court that, under the "circumstances" of the case, the notice of intention to move for new trial "adequately raised the issue of inadequate damages." (Galindo, supra, 43 Cal.App.3d at pp. 301-302.) First, this was a maritime case, hence comparative negligence applied. The jury thus had the power to reduce the damages in proportion to the plaintiff's own negligence. (Id. at p. 301.)
Second, counsel for the defendant "was in no way misled by the fact that the notice of intention to move for new trial referred to insufficiency of the evidence rather than inadequate damages." (Galindo, supra, 43 Cal.App.3d at p. 301.) Because "plaintiff had won, it would be hard to construe an allegation of insufficiency of the evidence as anything other than a complaint of inadequate damages." (Ibid.) And in that regard, defense counsel himself clearly knew the nature of the issue before the court. He had submitted a declaration in opposition to the new trial motion "in which he thoroughly discussed" the issue of inadequate damages. (Id. at pp. 301-302.) Citing Stevens, the Galindo court then went on to do for inadequate damages what Stevens had done for excessive damages: equate them with insufficient evidence. Under the "circumstances" of the case, said Galindo, the notice of intention to move for new trial "adequately raised the issue of inadequate damages." (Galindo, supra, 43 Cal.App.3d at p. 302.)
The court then moved on to consider the adequacy of the trial court's statement of reasons for the new trial. They were adequate indeed. The trial court's statement satisfied both purposes recognized in the Mercer decision: to "encourage careful reflection" and to "bring the appellant out of the dark as to which aspect of the trial to defend." (Galindo, supra, 43 Cal.App.3d at p. 302.) The order certainly "adequately" drew attention to the reasons the court considered the $7,300 verdict inadequate. (Ibid.)
The only possible ground by which Galindo can be distinguished from the case at hand actually makes its application here stronger. In Galindo, negligence and damage were "interwoven." (See Galindo, supra, 43 Cal.App.3d at p. 301 [noting point had been made by defense counsel].) Here the trial concerned only damages. But the difference only shows that in Galindo there was some ambiguity as to the precise reason for the grant of new trial. Here no ambiguity is even possible. The trial court in the case before us made it unavoidable that in substance it was granting the new trial motion because it considered the damages inadequate, not only in its concluding words, but, more importantly, in the substance of its reasons.
3. Application
Perhaps the jury might have believed Dr. Bounds. Judge Firmat believed Dr. Legome. It is in that context that we understand Judge Firmat's "no evidence supports the jury's award" statement. No evidence, that is, if Dr. Bounds' testimony is not believed. As the "Thirteenth Juror," Judge Firmat had the authority to disbelieve Dr. Bounds and believe Dr. Legome. (See Barrese v. Murray (2011) 198 Cal.App.4th 494, 503 [trial judge has the power to reweigh the evidence, and set aside the jury's verdict if he or she "believes the weight of the evidence to be contrary to the finding of the jury"].)
There is thus substantial evidence to support the trial judge's determination that Low's damages attributable to the accident were more than $20,000, the same as there is substantial evidence to support the jury's determination that Low's damages were less than $20,000.
By the same token, the trial court's arguably infelicitous choice of headings for its new trial order (insufficient evidence instead of the somewhat more accurate inadequate damages) was and is in no way prejudicial to the defendants. The trial judge's new trial order identifies precisely the evidence on which he granted the motion. The new trial order explains precisely why that evidence justified a new trial. Reversal would elevate form over substance.
DISPOSITION
The new trial order is affirmed. Respondent shall recover his costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.