Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG-05-220843
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
In this personal injury case, plaintiff Alberto Martinez claims the jury’s award of $275,000 in damages is inadequate. He also challenges the trial court’s evidentiary rulings with respect to his future lost earnings and loss of earning capacity, as well as its finding that Civil Code section 3339 does not overrule Rodriguez v. Kline (1986) 186 Cal.App.3d 1145 (Rodriguez). We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was employed by Smith Emery as a rebar and concrete inspector. On July 3, 2003, he sustained injuries when he was struck by a bundle of rebar while conducting an inspection on a flatbed trailer at defendant P.J.’s Lumber. The bundle was being moved by a crane operated by defendant Salvador Garcia. The impact struck plaintiff’s right upper arm and his hard hat, causing him to fall backwards, where his head struck some rebar that was stacked on the trailer. After the impact, Garcia jumped on the trailer and went to where plaintiff was lying. Garcia asked plaintiff how he was feeling, and plaintiff responded: “Don’t worry, it’s an accident.”
On July 1, 2005, plaintiff filed a complaint against defendants.
I. Trial
A. Testimony on initial medical treatment
Jeffrey Veilleux was working for P.J.’s Lumber on the day of the accident. Previously, he had been certified as a paramedic, and had worked as a paramedic for nine years. Veilleux went to the trailer after he learned of the accident and saw plaintiff sitting with his back against a stack of rebar. He was conscious and appeared to be alert and oriented. There were abrasions on his right arm. Veilleux told the employees to use a pallet and forklift to lower plaintiff to the ground. They then went to the break room. Plaintiff was able to walk unassisted. He never told Veilleux that he was experiencing loss of hearing, ringing of the ears, or blurry vision. After about 45 minutes, plaintiff left the work site.
Plaintiff testified he was wearing a hard hat when the accident occurred. He stated that he lost consciousness after his head was struck. Later, after the accident report was completed, Veilleux handed him a map and told him to go to a medical office in Fremont. He lost his way twice while driving to the office. When he saw Dr. John Giddens at the clinic, he complained of dizziness, headache, shoulder pain, knee pain, low back pain, and disorientation. When he returned to the clinic four days later, he still felt pain on the right side of his body, and was experiencing confusion, dizziness, headaches, and nausea.
Dr. Giddens testified he had noted plaintiff had abrasions on his right arm, but did not observe any other physical marks. Plaintiff had complained of dizziness and stated that he had lost consciousness when he fell, but he was alert and oriented during the exam. He did not complain of hearing loss or tinnitus. Giddens did not observe any signs of trauma to the head. He gave plaintiff an information sheet on head injuries, but did not have any concerns about plaintiff driving himself home to Vallejo. When plaintiff returned to the clinic four days later, Giddens diagnosed him with postconcussive syndrome. That diagnosis was based on plaintiff’s self-reported symptoms. At his final appointment a few days later, he complained of headaches and depression. Giddens ordered a CAT scan to rule out the possibility of blood clots in the brain. The scan came back normal.
Dr. Kenneth Wilkes treated plaintiff on July 14, 2003, 11 days after the accident. Wilkes is not a neurologist. During the visit, plaintiff reported that he had possibly lost consciousness for a few seconds after the accident. He did not complain to Wilkes of any dizziness, hearing loss, tinnitus, or headaches, and did not appear to be in a postamnesiac state. Wilkes diagnosed plaintiff with multiple contusions, cervical and lumbosacral strain, and right knee strain.
Dr. Lawrence Weil treated plaintiff beginning two months after the accident. At his first appointment, plaintiff complained of loss of hearing and problems with headaches, memory, concentration, and attention, as well as pain in his shoulder, neck, arm, back, and knee. He diagnosed plaintiff with hearing loss, mild traumatic brain injury (MTBI), a meniscal tear in the right knee, a rotator cuff tear, and lumbar facet syndrome. Weil opined that each of these injuries was caused by the accident. In his view, plaintiff was no longer employable.
B. Plaintiff’s postaccident activities
Some time after the accident, plaintiff was able to pass a test to renew his certification as a concrete inspector. The test was a multiple choice test, and he answered 91 percent of the questions correctly. He testified that he was unable to take the test to obtain a higher level of certification because he could not mentally retain the study materials. At the time of trial (four years after the accident), he claimed he was still experiencing pain, headaches, dizziness, problems with his hearing, and mental confusion. He stated he has been unable to work since the accident.
Plaintiff admitted that during the previous two years he had driven at least 10 times from his home in Portland, Oregon to San Francisco. On these trips, he drives his motor home or another vehicle pulling a camper trailer. He drives these vehicles in downtown San Francisco because he wife does not like to drive in city traffic.
C. Plaintiff’s expert witnesses
Dr. Deborah Doherty, a physician in the field of rehabilitation medicine retained by plaintiff, examined him and concluded that he had sustained a brain injury. During the exam, she administered different mental status tests. In her opinion, plaintiff had sustained a concussion that left him with permanent residual deficits, such as problems with concentration, memory, and learning. Though she recommended plaintiff receive 20 hours per week of “life attendant care” for the rest of his life, she did not believe his symptoms were sufficiently severe to justify revoking his driver’s license. On cross-examination, she acknowledged that Dr. Cole, a neuropsychologist who examined plaintiff in 2003, found that certain test results suggested plaintiff could have been malingering.
Dr. Timothy A. Scott testified that he examined plaintiff about 13 months after the accident. At that time, plaintiff was complaining of hearing loss, tinnitus, difficulties with speech and comprehension, dizziness, and blackouts. Scott concluded plaintiff had suffered a labyrinthian concussion, which is a blow affecting the part of the ear that houses the organs for hearing and balance. In Scott’s opinion, 25 percent of plaintiff’s hearing loss and 100 percent of the tinnitus were caused by the accident.
Dr. Jack Miller, a neurologist, testified plaintiff was suffering from MTBI. Plaintiff reportedly had an episode of amnesia right after his fall, which led Miller to conclude he had sustained a concussion. According to Miller, the increase in headaches and problems with memory following the fall indicate that plaintiff is suffering from a persistent brain injury. Depression, which plaintiff has also complained of, is another indication of brain injury. Referring to a 1995 article entitled “Mild Traumatic Brain Injury,” Miller testified that plaintiff met all the criteria for this diagnosis. Miller also disagreed pointedly with many of the conclusions contained in the report prepared by Dr. James Soong, defendants’ neuropsychologist expert. He did testify, however, that plaintiff’s physical neurological examination was within normal limits.
Dr. James Wilson, a neuropsychologist, met with plaintiff two years after the accident and administered a series of tests relating to cognitive functioning. These tests revealed plaintiff was experiencing deficits in attention, concentration, learning, and memory. Wilson also did tests that showed plaintiff was not malingering. Tests done subsequently by another neuropsychologist revealed some cognitive improvement, which Wilson attributed to plaintiff’s use of an antidepressant as well as his familiarity with testing procedures.
D. Defendant’s expert witnesses
Dr. James Soong, a physician specializing in neurology and psychiatry retained by defendants, met with plaintiff about three years after the accident. At that meeting, plaintiff complained of having poor memory, pain in his back, leg, knee, and foot, decreased hearing in his right ear, and weakness in his right arm. He did not complain of headaches. Based on his exam of plaintiff, Soong concluded that his complaints of back pain did not correlate with any objective findings. Plaintiff scored 30 out of 30 on a mini mental status exam, though this would be a normal score even for a person with MTBI. Plaintiff did have hearing loss, which Soong attributed to his having worked in the construction industry; not the accident.
Soong doubted plaintiff’s claims of arm weakness because the muscles had not atrophied. A test of plaintiff’s grip strength persuaded Soong that plaintiff was feigning weakness on his right side because there was no medical explanation for the excessive disparity in the measurements of arm strength between his right and left sides. Soong also concluded that plaintiff had not suffered a head or a brain injury in the accident. Soong did not believe plaintiff suffered a concussion or that he had lost consciousness because percipient witnesses stated that he did not appear to be confused or disoriented after his fall. In particular, that plaintiff was able to hold conversations, drive himself to a medical facility using a map, and drive from Fremont to Vallejo right after his medical exam, suggest he did not suffer a concussion. That plaintiff was able to pass his certification test after the accident and is able to drive long distances also indicates that he is not suffering from any residual brain injury. While Soong agreed that the three neuropsychologist’s studies showed minor abnormalities, Soong did not believe these deficits were caused by a brain injury.
Dr. Thomas Sampson, an orthopedic surgeon retained by defendants, testified that plaintiff’s rotator cuff injury was not caused by the accident. In Sampson’s opinion, the damage to plaintiff’s shoulder was the result of a preexisting degenerative condition. Sampson also opined that the tear in plaintiff’s meniscus was caused by arthritis, not by the accident. His opinions were based, in part, on the fact that plaintiff did not have the symptoms of an acute injury after the accident. Also, MRI images of the shoulder and knee showed that his injuries were consistent with degenerative wear. Additionally, the fact that four years had passed and plaintiff still had not elected to have the surgery suggested to Sampson that the injuries were not caused by the accident.
Plaintiff testified that at the time of the accident, he weighed 310 pounds.
Dr. Laura Liptai, a biomedical engineer and mechanical engineer retained by defendants, opined that plaintiff was not subjected to enough force during the accident to have resulted in brain injury.
E. Testimony and rulings on economic damages
Plaintiff testified he was educated in Mexico and obtained the equivalent of a bachelor’s degree. Before coming to the United States, he had worked as an architectural engineer, moving up to becoming a project manager. In the United States, he obtained his certification as a concrete and rebar inspector.
On October 5, 2007, the trial court ruled that plaintiff could claim future lost wages based only on what he could earn in Mexico for a job similar to the one he had held in the United States. He would not be able to claim Mexican wages for a professional-level job, including as an architectural engineer, the job that he held before coming to the United States.
James McGowan, a vocational rehabilitation consultant retained by plaintiff, testified that plaintiff would earn, on average, the equivalent of $5,542 per month in Mexico doing a job similar to the one he had at the time of the accident. With the disabilities that plaintiff was claiming, his job opportunities would be limited to those paying between $450 and $550 per month in Mexico.
Robert Johnson, a forensic economist retained by plaintiff, calculated the present value of plaintiff’s economic losses, including future medical expenses. He estimated plaintiff’s future lost earnings to be $886,631 to $962,895, based on what he could have earned in Mexico as a construction coordinator. As a certified building materials inspector, plaintiff would have earned from $847,341 to $903,498. Assuming vocational limitations imposed by his postaccident conditions, the present value of lost future earnings would be $56,157. Wage loss incurred up to the time of trial was estimated at either $306,145 or $319,459, calculated for a materials inspector and a construction coordinator, respectively, based on Mexican wages. Johnson also calculated the present value of plaintiff’s proposed future life care plan, including medical expenses, to be $2,642,400.
F. The verdict
On October 16, 2007, the jury returned its special verdict, finding the defendants negligent and finding that their negligence was a substantial factor in causing plaintiff’s harm. The jury awarded $275,000 damages, allocated as follows: $15,000 in past medical expenses, $140,000 in past wage loss, $80,000 in future medical expenses, $30,000 in lost earning capacity, $10,000 in past noneconomic losses, and zero dollars in future noneconomic losses.
II. Motion for New Trial
On January 4, 2008, plaintiff filed his notice of intention to move for new trial.
On January 22, 2008, defendants filed their opposition to the motion for new trial. The opposition includes a declaration signed by the presiding juror stating that the jurors determined plaintiff did not suffer a traumatic brain injury, and that preexisting degenerative conditions in his right knee and right shoulder would have required surgery even if the accident had not happened. For this reason, while they awarded him some costs for future surgery, they did not award him general damages as he would have experienced the same pain and suffering from the surgery even if the accident had not happened.
Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” Accordingly, “posttrial solicitation and use of jurors’ statements concerning their conduct and deliberation and which seek to explain the effect of evidence upon their mental processes is improper.” (Drust v. Drust (1980) 113 Cal.App.3d 1, 9.) We note the parties have not raised any objections to the trial court’s consideration of the presiding juror’s declaration.
On February 6, 2008, the trial court denied the motion for new trial. This appeal followed.
DISCUSSION
I. Adequacy of Damages Awarded
On appeal, plaintiff challenges the award of damages as inadequate and unsupported by the evidence, and requests a remand for a new trial on the issue of damages. Our analysis is guided by the applicable standard of review.
A. Standard of review
An appellate court has limited power to review the jury’s award of damages. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) “Damages, even economic damages, are difficult to measure in personal injury cases. There may be disputed facts regarding the amount of medical expenses or lost wages, or disputed inferences about the probable course of events such as the length of incapacitation or whether a continuing disability will worsen, plateau, or improve. [¶] The common law in its wisdom has left these inherently subjective decisions regarding damages with the jury as the trier of fact to apply its collective experience, common sense, and diverse backgrounds. As a further safeguard, the trial judge has considerable discretion to review excessive or inadequate damage awards in conjunction with a motion for new trial.” (Abbott v. Taz Express (1998) 67 Cal.App.4th 853, 856–857 (Abbott).)
Code of Civil Procedure section 657 governs a motion for new trial and provides in pertinent part, “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, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶]... [¶] 5. Excessive or inadequate damages. [¶]... [¶] A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of 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.”
Where the plaintiff moves for a new trial on the ground of inadequate damages, the trial court “must weigh the evidence and acts as an independent trier of fact.” (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.) The trial court is in a better position than the appellate court “to evaluate the amount of damages awarded in light of the evidence presented at trial.” (Id. at p. 1121.) Consequently, “although the trial court’s determination is not binding upon a reviewing court, it is to be accorded great weight because having been present at the trial the trial judge was necessarily more familiar with the evidence.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.) Thus, the reviewing court “must uphold an award of damages whenever possible....” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) “ ‘An appellate court is authorized to disturb a judgment on the ground of inadequacy of damages only where the amount of the award is supported by no substantial evidence in the record and the verdict is a clear abuse of the jury’s discretion.’ [Citation.]” (Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 931–932.)
To determine whether a damages award is supported by substantial evidence, we are guided by well established rules. “[T]he reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is appellant’s burden to demonstrate otherwise.” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) “Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) “It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.” (Id. at pp. 630–631.) “In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial,’ that is, of ‘ “ponderable legal significance,” ’ ‘ “reasonable in nature, credible, and of solid value....” ’ [Citations.]” (Id. at p. 631.)
B. Evidence of brain injury
Plaintiff first claims there is no substantial evidence to support the jury’s conclusion that he did not suffer from a brain injury. Initially we note the argument’s logic attempts to dislocate the burden of proof. In support of his argument, he claims Dr. Soong’s testimony discounting MTBI was contradicted by the testimony of all the other medical experts. He also faults Soong’s reasoning and claims the opinion that plaintiff was fabricating his symptoms is unjustifiable. He further claims that Soong’s rejection of the findings of the other medical experts was unreasoned. Plaintiff also attacks Liptai’s testimony.
The general rule is “that ‘expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary.’ [Citation.]” (Howard v. Owens Corning, supra, 72 Cal.App.4th 621, 632.) In the present case, it appears that the jury found Soong’s testimony to be more credible than the testimony of plaintiff’s medical experts. In particular, in this case, we note that the existence of MTBI is not subject to verification by objective testing, such as an MRI. Nor was there evidence plaintiff sustained any observable signs of head trauma, such as a bruise, bump or scrape. While Soong admitted that the absence of physical evidence does not necessarily rule out the existence of MTBI, we note the testimony of plaintiff’s experts was based, in large part, on plaintiff’s self-reported symptoms. In that regard, we also note the percipient witnesses to the accident testified that plaintiff did not lose consciousness or show undue mental confusion immediately after the accident. Thus, the opinion that plaintiff was feigning brain injury was not plainly implausible.
Plaintiff’s briefing on appeal focuses on his alleged confusion as to whether he had come down off the trailer using the ladder, rather than a forklift, and whether he had used a cell phone rather than the office phone when he phoned his employer after the accident. This information was available for the jury to consider when it evaluated Soong’s testimony.
Citing to Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510, plaintiff claims Soong’s conclusions were unsupported because they were based on circular reasoning. In Bushling, the appellate court upheld the grant of summary judgment in favor of the defense, concluding that the plaintiff’s medical experts had assumed causation from the fact of injury, without any supporting facts. In the present case, plaintiff claims that Soong rejected any connection between plaintiff’s symptoms (such as headaches) and brain injury, because he had already concluded plaintiff did not have a brain injury. In our view, this argument oversimplifies Soong’s testimony. Soong concluded that plaintiff had not suffered a concussion, and this conclusion was based on his review of plaintiff’s medical records, the testimony of percipient witnesses, and plaintiff’s actions immediately following the accident. Thus, Soong did not simply assume plaintiff did not suffer a concussion. In the absence of a concussion, it would be reasonable for Soong to conclude that plaintiff’s headaches, confusion, and loss of hearing were not caused by MTBI.
Plaintiff also argues that Soong unjustifiably assumed he was fabricating his symptoms. However, Soong’s opinion was based on his conclusion that plaintiff’s claim of weakness in his right arm was contradicted by the lack of muscular atrophy in that arm. He further found there was no neurological explanation for plaintiff’s claimed lack of sensation on his right side. We also note indications of malingering were found in tests conducted by Dr. Cole. Accordingly, Soong had a reasonable basis for his opinion that plaintiff had feigned certain symptoms.
Soong’s testimony also provided a basis for the jury to conclude that plaintiff’s symptoms, even if not exaggerated, were not caused by MTBI. For example, Soong explained that symptoms such as hearing loss, tinnitus, and headaches, would have appeared immediately after the injury, not several months later. Further, Soong’s opinions were supported by evidence that after the accident plaintiff was able to pass the test to recertify as a concrete inspector and was able to drive a motor home in dense city traffic. We also note that the jury had the opportunity to observe both Soong and plaintiff on the witness stand and to evaluate their credibility. In sum, the jury’s conclusion that plaintiff did not suffer from MTBI is supported by substantial evidence. While we agree there is evidence which if believed could support a contrary conclusion, as a court of review it is not our function to reweigh the evidence presented at trial.
C. Substantial evidence supports damage awards
Plaintiff claims that the jury’s awards for past and future medical expenses, past and future wage loss, and noneconomic damages are unsupported by the evidence.
With respect to past medical damages, plaintiff claims the evidence is “uncontroverted” that his expenses were $44,405.37, the amount paid by the workers’ compensation carrier, and not the $15,000 that the jury awarded. While it is true the jury found defendants 100 percent liable for the injuries caused by their negligence, plaintiff does not cite to any authority for the proposition that a jury is required to award an injured worker the entire amount paid by the workers’ compensation insurer as damages for past medical expenses. Further, the reduced award is supported by the evidence, insofar as the jury found plaintiff did not suffer any brain injury and that his knee and shoulder injuries were primarily caused by degenerative wear.
On appeal, plaintiff does not challenge the declaration signed by the presiding juror revealing the jury’s conclusions regarding his injuries. In fact, he bases some of his argument on the declaration.
The jury awarded past lost earnings of $140,000. Plaintiff again claims it is “uncontroverted” that his past wage loss was $306,145, based on the assumption that he was unable to work from the time of injury through the date of trial. As he acknowledges, however, Soong opined that he could have returned to work in two months. The jury’s award for past wage loss thus falls in between the amounts estimated by plaintiff’s and defendants’ experts. The question of the amount of damages is a matter for determination by the trier of fact, and we will “not question the discretionary determinations of jury and judge, so long as they fall within a reasonable range permitted by the evidence.” (Abbott, supra, 67 Cal.App.4th 853, 857.) We see no basis to disturb the jury’s conclusion.
With respect to future medical expenses, the jury awarded $80,000 in the face of plaintiff’s claim for $2,642,400. Yet again, he asserts that his damages estimate was “uncontroverted,” and claims there is no evidentiary basis for the amount awarded by the jury. Yet, he concedes the award may be understandable if part of his orthopedic injuries and no brain injuries are deemed accident-related. Plaintiff appears to have correctly interpreted the jury’s award. The declaration prepared by the foreperson states: “The jury further agreed that plaintiff had pre-existing degenerative conditions in his right knee and right shoulder that would have required surgery even if the accident had not happened. Therefore, although we awarded the plaintiff some costs for potential surgery, we did not award plaintiff general damages as he would have had the same ‘pain and suffering’ for the surgery if the accident had not happened.”
This assumption also explains why the jury awarded $30,000 in future lost wages, as the amount would appear to correspond to the amount of time required to recover from the surgeries.
The juror’s declaration also explains why the jury did not award any future noneconomic damages. While plaintiff contends that an award of zero damages for future pain and suffering is internally inconsistent with the awards of future medical expenses and wage loss, the jury evidently concluded that plaintiff would have required corrective surgery regardless of whether the accident had occurred and, accordingly, deemed an award of damages against defendants for future pain and suffering to be unwarranted. Further, plaintiff’s reliance on Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931 is misplaced. In that case, the appellate court held a special verdict awarding zero dollars for past pain and suffering was inadequate as a matter of law when the plaintiff underwent a serious surgical procedure. (Id. at pp. 937–938.) Dodson did not address the situation presented here—where only some of the future medical expenses requested were awarded, but damages for future pain and suffering were not.
While plaintiff claims, in passing, that the award of $10,000 for past noneconomic damages is a “token award,” he offers no argument to substantiate this claim. For the reasons we have already explained, we conclude he has failed to demonstrate the award is erroneous.
II. Calculation of Lost Earning Capacity
A. Limitation on occupation
Plaintiff claims the trial court erred in refusing to allow him to claim damages for lost earning capacity based on the wages he could have earned in Mexico as a professional-level architectural engineer, a job he had previously held in that country. The court ruled instead that he would be able to claim Mexican wages based only on jobs similar to the jobs he had held in the United States.
As a rule, “Loss of earning power is an element of general damages that may be inferred from the nature of the injury, with or without proof of actual earnings or income either before or after the injury. [Citations.] The test is not what the plaintiff would have earned in the future but what [he] could have earned. This is an element of general compensatory damages. Such damages are ‘... awarded for the purpose of compensating the plaintiff for injury suffered, i.e., restoring... [him] as nearly as possible to... [his] former position, or giving... [him] some pecuniary equivalent. [Citations.]’... [Citation.] Impairment of the capacity or power to work is an injury separate from the actual loss of earnings. [Citation.] The plaintiff may recover even where [he] was not working and earned nothing.” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 412–413.)
Under Rodriguez, supra, 186 Cal.App.3d 1145, an undocumented immigrant’s claim for future lost wages or earning capacity is limited “to those he could anticipate receiving in his country of lawful citizenship.” (Id. at p. 1149.) Having previously ruled that plaintiff’s damages would be limited to Mexican wages, the court further determined that the wage calculation would be limited to jobs comparable to jobs he had held in the United States. As plaintiff was not qualified to work as an architectural engineer in the United States, the court found that he would not be able to claim Mexican wages based on that occupation.
Plaintiff claims that under the “Rodriguez standard” he “was entitled to measure his lost future earnings based on whatever job would have been open to him in Mexico, including architectural engineer.” His reading of Rodriguez is overbroad. That case does not stand for the proposition that an undocumented alien is entitled to claim lost wages based on a job that he was not qualified to hold in the United States.
Further, “it is fundamental that ‘damages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery. [Citations.]’ [Citations.] However, recovery is allowed if claimed benefits are reasonably certain to have been realized but for the wrongful act of the opposing party.” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 989.) Plaintiff did not demonstrate that he had any intention of returning to Mexico to resume his career as an architectural engineer. Accordingly, the trial court correctly determined that an award of damages based on such a scenario would have been unduly speculative. We find no error.
B. Limitation to Mexican wages
Plaintiff claims he should have been allowed to produce evidence of loss of future earnings based on United States wages despite his status as an illegal alien. In limiting plaintiff’s recovery to Mexican wages, the trial court followed the procedure set out in Rodriguez, supra: “[W]henever a plaintiff whose citizenship is challenged seeks to recover for loss of future earnings, his status in this country shall be decided by the trial court as a preliminary question of law. [Citation.] At the hearing conducted thereon, the defendant will have the initial burden of producing proof that the plaintiff is an alien who is subject to deportation. If this effort is successful, then the burden will shift to the plaintiff to demonstrate to the court’s satisfaction that he has taken steps which will correct his deportable condition.” (Rodriguez, supra, 186 Cal.App.3d 1145, 1149.) If the plaintiff meets his or her burden, the trial court must exclude all evidence relating to his alienage and projected earning capacity may be computed on the basis of past and future income in the United States. But if the defendant prevails, then evidence of plaintiff’s future earnings must be limited to what the plaintiff would receive in the country where he or she has lawful citizenship. (Ibid.)
Prior to opening statements, the trial court conducted an Evidence Code section 402 hearing. Michael Schoenleber, an expert in immigration law, testified that plaintiff was an overstayed visitor without employment authorization and as such was deportable from the United States. He stated that the permanent resident card that plaintiff had submitted to Smith Emery was invalid. A second card, which plaintiff produced at the hearing, also appeared to be fake. After this testimony, plaintiff stipulated that defendants had proved he was in the country illegally and was subject to deportation. Addressing his burden of proof, plaintiff testified as to the steps he had taken to establish legal residency. Specifically, he testified that at some point after the accident he retained an immigration attorney. At the time of the hearing, however, he had not yet applied to the government to adjust his immigration status.
As plaintiff has conceded that he is not a legal resident of the United States, we find it unnecessary to address his claim that the court erred in allowing Schoenleber to express his opinion as to the validity of plaintiff’s residency cards.
As noted above, the Rodriguez court held that a plaintiff must “demonstrate to the court’s satisfaction that he has taken steps which will correct his deportable condition.” (Rodriguez, supra, 186 Cal.App.3d 1145, 1149, italics added.) This language suggests that the trial court has discretion in determining whether a plaintiff has met his or her burden. Here, plaintiff conceded he had not filed a petition to adjust his status with the Immigration and Naturalization Service. He merely offered that he was waiting to see if pending federal amnesty legislation would be enacted. Under these circumstances, the trial court found it would be speculative to conclude that he would take any steps to alter his immigration status. Evidence of plaintiff’s loss of future earnings in the United States was thus properly excluded under Rodriguez.
C. Civil Code section 3339
Finally, plaintiff claims the trial court erred in finding that Civil Code section 3339 (section 3339) does not operate to overrule Rodriguez. We agree with the court that section 3339 does not apply to claims for future wage loss brought by plaintiffs in personal injury lawsuits.
Section 3339 provides: “The Legislature finds and declares the following:
Section 3339 was enacted in 2002 (Stats. 2002, ch. 1071, § 1 (Sen. Bill No. 1818)), just over five months after Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137 was decided by the United States Supreme Court. In Hoffman, the Supreme Court reviewed an award of back pay to illegal immigrants who, in violation of the National Labor Relations Act (NLRA), were terminated because of their participation in the organization of a union. (535 U.S. at pp. 140–141.) Hoffman held that the policies underlying the Immigration Reform and Control Act of 1986 prohibited the National Labor Relations Board from awarding back pay as a remedy for unfair labor practices to illegal aliens. (535 U.S. at pp. 149–151.) Courts have noted that by enacting section 3339, “California appears to have provided for a wide range of monetary remedies including some that may not be available to undocumented workers under Title VII....” (Rivera v. NIBCO, Inc. (9th Cir. 2004) 364 F.3d 1057, 1073.)
A 2003 California case further clarified the intent of section 3339: “These statutes [section 3339 and its companion statutes Labor Code section 1171.5 and Government Code section 7285] leave no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws. Thus, if an employer hires an undocumented worker, the employer will also bear the burden of complying with this state’s wage, hour and workers’ compensation laws.” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460.) Notably, the appellate court in Hernandez discussed Rodriguez and found that the trial court had improperly admitted evidence of the plaintiff’s immigration status because the plaintiff was not claiming damages for future lost wages. Thus, we find no indications that courts have interpreted section 3339 as having abrogated the rule set forth in Rodriguez, nor does it appear that the Legislature intended such a result. Accordingly, we decline to hold that section 3339 overrules Rodriguez.
DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.
“(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.
“(b) For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.
“(c) The provisions of this section are declaratory of existing law.
“(d) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.”