Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 05CECG00353, Adolfo M. Corona, Judge.
Law Offices of Edward J. Horowitz and Edward J. Horowitz; Law Offices of Omid Khorshidi and Omid Khorshidi, for Defendants and Appellants.
Law Offices of Gary A. Dordick, Gary A. Dordick and David Azizi for Plaintiff and Respondent.
OPINION
HILL, J.
Defendants appeal from a judgment entered against them after jury trial. Defendants do not challenge the finding of liability; they challenge only certain items of the damages awarded. They assert the jury failed to apportion the future noneconomic damages between those caused by plaintiff’s preexisting condition and those caused by the incident for which defendants were held responsible. They also contend the trial court improperly failed to reduce the damages awarded for past medical expenses, even though the hospital’s bill was assigned to a third party in exchange for a much smaller sum. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 16, 2004, plaintiff Miguel Rojas was driving a truck-trailer rig westbound on Hamilton; he stopped at flashing red lights for a slow-moving southbound train to pass. Defendant Jose Romero, an employee of defendant Ashland, Inc., was driving a truck-trailer rig eastbound on Hamilton and stopped on the opposite side of the tracks for the same train. After the southbound train had passed, Romero began to cross the tracks. He observed a northbound train approaching; it had been blocked from his view by the southbound train. Because he was in a position where the train would have hit the cab of his truck if he stopped, Romero accelerated across the tracks. The train collided with his trailer, cutting it in two. Plaintiff saw the trailer coming toward him and ducked down sideways in the seat of his truck. Part of the trailer or its cargo struck plaintiff’s truck.
After the accident, plaintiff began to experience pain in his lower back. He also had emotional problems, trouble sleeping, nightmares, and flashbacks to the accident. He saw a psychiatrist and a psychologist. He was treated by a physical therapist and a chiropractor. When those treatments did not relieve the pain, he had surgery on his back; after the surgery, his pain and emotional condition improved so that they were 70 percent better than just after the accident.
The jury found in favor of plaintiff and against defendants, awarding substantial damages, including $197,068.10 for past medical expenses and $537,000 for future noneconomic loss, including pain and suffering.
DISCUSSION
I. Future Noneconomic Damages
Defendants contend that the award of future noneconomic damages was excessive for two reasons. First, they argue that plaintiff had a preexisting condition that was allegedly aggravated by the accident, defendants could be held liable only for the damage attributable to that aggravation, and the jury failed to apportion the future noneconomic damages between the two causes. Second, they contend plaintiff’s attorney argued for an award of “per diem” damages at a certain rate per year for the rest of plaintiff’s life, and the jury awarded that full amount as noneconomic damages, even though there was evidence plaintiff’s condition was expected to continue to improve for another year.
A. Waiver of issue of excessive damages
“A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate .… [Citation.] The power to weigh the evidence and resolve issues of credibility is vested in the trial court, not the reviewing court. [Citation.] Thus, a party who first challenges the damage award on appeal, without a motion for a new trial, unnecessarily burdens the appellate court with issues that can and should be resolved at the trial level. [Citation.] Consequently, if ascertainment of the amount of damages turns on the credibility of witnesses, conflicting evidence, or other factual questions, the award may not be challenged for inadequacy or excessiveness for the first time on appeal. [Citation.]” (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719-720.)
A notice of intention to move for new trial must designate the grounds upon which the motion will be made. (Code Civ. Proc., § 659.) “The general rule is that a trial court has no power to grant a motion for a new trial on a ground that is [not] specified in the notice of such motion.” (McFarland v. Kelly (1963) 220 Cal.App.2d 585, 587.) Consequently, if a defendant moves for a new trial, but fails to raise a claim that the damages awarded were excessive, and that issue turns on factual questions, the issue of excessive damages is waived and may not be raised for the first time on appeal.
Defendants moved for a new trial on grounds other than excessive damages. They failed to assert in their motion that the future noneconomic damages awarded were excessive. They now argue that the issue of the excessiveness of the damages was not waived, because it does not turn on factual questions.
B. Aggravation of pre-existing condition
Defendants assert their first challenge to the future noneconomic damages - the failure to apportion between damages caused by the accident and those caused by a preexisting condition – is not a factual question because it is based on the testimony of plaintiff’s witnesses and accepts that testimony as true.
“A tortfeasor may be held responsible where the effect of his negligence is to aggravate a preexisting condition or disease.” (Hastie v. Handeland (1969) 274 Cal.App.2d 599, 604.) “Plaintiff may recover to the full extent that his condition has worsened as a result of defendant’s tortious act. [Citations.]” (Ng v. Hudson (1977) 75 Cal.App.3d 250, 255 overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) In keeping with these rules, the jury was instructed: “Miguel Rojas is not entitled to damages for any physical or emotional condition that he had before Jose Alfredo Romero’s conduct occurred. However, if Miguel Rojas had a physical or emotional condition that was made worse by Jose Alfredo Romero’s wrongful conduct, you must award damages that will reasonably and fairly compensate him for the effect on that condition.”
The surgery plaintiff underwent about two years after the accident resulted in the fusion of the L5-S1 vertebrae in his lower back and the removal of the disk between them. There was conflicting evidence regarding the condition of plaintiff’s spine at the L5-S1 level after the accident but prior to the surgery. Both parties presented evidence acknowledging that plaintiff had a degenerative disk condition at that level existing prior to the accident. Defendant’s expert, Dr. Dennis Malkasian, testified that 50 percent of the population past the age of 30 or 35 shows degenerative changes in the spine, with the disks losing water and flattening out. He testified the degenerative condition of plaintiff’s spine was not unusual, and was “within the range,” given his age (39 at the time of the accident), height, weight, and history. Dr. Arthur Kreitenberg, also a defense witness, agreed the preexisting moderate degenerative condition was a normal finding for someone plaintiff’s age. The evidence indicated plaintiff did not have pain or other symptoms from this condition prior to the accident, but began to experience pain in his lower back radiating down his left leg shortly after the accident.
Defendants’ contention appears to be that, in the absence of the accident, plaintiff would eventually have begun to experience pain or other symptoms as a result of the preexisting degenerative disk condition, and the jury should have reduced the amount of future pain and suffering damages awarded by the amount attributable to this inevitable future pain. Plaintiff’s counsel, in closing argument, asked for future noneconomic damages for plaintiff’s life expectancy of 35.8 years, computed at $15,000 per year, for a total of $537,000. The jury awarded that amount. Defendants contend the testimony of plaintiff’s expert, Dr. Fardad Mobin, indicated that plaintiff would have begun to experience pain or other symptoms from the degenerative disk condition when he was in his 50’s or 60’s, so the jury should have apportioned the future pain and suffering damages after that time between the two causes and should not have awarded a constant amount for the full 35.8 years. Defendants assert that the issue does not require a factual determination because it is based on the testimony of plaintiff’s expert and therefore the issue was not waived by failure to raise it in defendants’ motion for new trial. Defendants’ argument is not supported by the record.
The testimony of Dr. Mobin that defendants cite in support of this argument is as follows:
“Q All right. And is there any indication whatsoever, from your training or education, your experience, all the thousand or so patients you’ve seen that had he not been in this accident, that he would have needed surgery anyway?
“A Most patients with this type of degenerative condition lead normal lives. They have -- they go about doing their business. There have been a lot of studies that patients with asymptomatic problems have been MRIed, and they have bad disks, but it’s not painful. There is a trigger event. There’s usually a trauma, a sort of accident that tips the fulcrum to the other side. Their body’s compensated to that point, but then the injury is so severe that the nerve can’t recover on its own. That’s where we come in. [¶] … [¶]
“Q Is it a common or uncommon experience to see events like the ones that Mr. Rojas suffered cause a preexisting degenerative condition to become symptomatic?
“A It’s a very commonplace situation that I see people that have lived well into their 50’s and 60’s with no problem. All of a sudden say, yes, it was a wedding party that I had to help out. I saw a lady another -- the other day. She was basically helping with a children benefit event, and she lifted a heavy object about three weeks ago, and she’s in constant pain since. And her MRI clearly shows that she has a degenerative problem, but now she’s to the point that her body can’t recover that.”
Dr. Mobin did not, as defendants suggest, testify that all persons with degenerative disk conditions inevitably develop pain or other symptoms when they reach their 50’s or 60’s. Rather, he was asked whether plaintiff would have needed surgery in the absence of the accident. He stated, “Most patients with this type of degenerative condition lead normal lives.” He then discussed the events that might “trigger” symptoms in one with a previously asymptomatic condition. He did not express any opinion as to whether plaintiff would have suffered pain or other symptoms in the future in the absence of such a triggering event, or when such a trigger might have occurred in plaintiff’s case if the accident had not occurred. Thus, Dr. Mobin’s testimony did not require the jury to apportion plaintiff’s pain and suffering, experienced after some unspecified date in plaintiff’s “50’s or 60’s,” between that caused by defendants’ conduct and that caused by plaintiff’s preexisting degenerative disk condition.
The extent to which a preexisting condition has been aggravated by a defendant’s conduct is a factual question to be resolved by the jury. “Obviously there is no rule by which either expert or laymen may measure the precise degree, if any, to which a pre-existing pathological condition has been aggravated .… From the very necessities and uncertainties of the situation, the segregation of the items which combine to form the full measure of actual injury is a matter for the exercise by the jury of its unbiased judgment, and in assessing the damages it is accorded a ‘wide latitude’ and an ‘elastic discretion.’ [Citation.]” (Taylor v. Pole (1940) 16 Cal.2d 668, 672-673.)
Defendants did not establish that the jury was required by Dr. Mobin’s testimony to apportion the future noneconomic damages between the accident and plaintiff’s preexisting condition. Whether the jury’s award of future noneconomic damages for aggravation of a preexisting condition was excessive or not requires consideration of factual issues. Defendants failed to move for a new trial on the ground of excessive damages. That issue may not be raised for the first time on appeal.
C. Per diem damages
Defendants contend that, in his closing argument, plaintiff’s counsel asked for damages of $15,000 per year for 35.8 years, plaintiff’s life expectancy, but the evidence showed plaintiff’s condition would not remain the same throughout that time because Dr. Mobin testified plaintiff had improved 70 percent by the time of trial, and he expected plaintiff would continue to improve for another year, reaching a plateau at about 90 percent. Defendants again argue this claim of excessive damages does not require a factual inquiry, because it is based on the testimony of plaintiff’s own witness.
Dr. Mobin related that plaintiff told him just prior to trial that plaintiff was 70 percent better than before. Dr. Mobin testified he expected a little more improvement over the next year; at the rate plaintiff was improving, he expected plaintiff would “plateau somewhere around 90 percent” in the next year. The remaining 10 percent would be a “permanent residual for a chronic condition.”
In closing argument, plaintiff’s counsel stated Dr. Mobin was optimistic plaintiff would recover to “70 or 80 or maybe in a best case scenario to 90 percent”; he then stated that “everybody agrees whatever residuals are there after the surgery and at this stage are permanent for the rest of his life .… Some degree of emotional distress, some sensitivity, some phobias for trucks and trains will be there the rest of his life.” Counsel then asked for future compensation for 35.8 years and suggested an amount equal to $15,000 per year for that period ($537,000).
“The amount of damages is a fact question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial.” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) “In assessing a claim that the jury’s award of damages is excessive, we do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor.” (Ibid.)
Defendants’ complaint seems to be that the jury awarded the same amount for each year in the future, even though plaintiff was not expected to reach his “permanent residual” level for another year. Their underlying assumption appears to be that plaintiff was overcompensated because the jury awarded damages for all subsequent years at the same rate it awarded them for the first year post-trial, although his damages could be expected to be higher for the first year, when he had not yet reached the full extent of his expected recovery, and lower in subsequent years. In his argument, however, plaintiff’s counsel seemed to be asking for $15,000 per year based on plaintiff’s permanent residual condition, which Dr. Mobin anticipated would be at about a 90 percent recovery level. Nothing in the record indicates the jury ignored Dr. Mobin’s testimony and awarded damages for pain and suffering at a first year recovery level for the entire 35.8 years of plaintiff’s life expectancy.
The amount that should be awarded to plaintiff for his future noneconomic damages is an issue of fact to be determined by the jury. Defendants failed to raise the issue of excessive damages in their motion for new trial and they cannot raise it for the first time in this court. Even if it were properly raised here, we would find no merit in their contention.
II. Reduction of Damages for Past Medical Expenses
“[A] person injured by another’s tortious conduct is entitled to recover the reasonable value of medical care and services reasonably required and attributable to the tort.” (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 640 (Hanif).) The jury was instructed in accordance with this rule that plaintiff “must prove the reasonable cost of reasonably necessary medical care that he has received.” The jury awarded plaintiff $197,068.10 for past medical expenses. Defendants contend this amount included $132,075.96 for the cost of a four-day hospital stay at Brotman Medical Center for the surgery performed on plaintiff two years after the accident. Defendants contend the amount awarded is excessive because the hospital assigned its right to collect the $132,075.96 debt to a third party for $19,959.20, and the hospital is no longer trying to collect the debt from plaintiff. After the verdict was rendered, but before the judgment was entered, defendants moved for a reduction of the award based on this assignment. The court denied the motion. After entry of judgment, defendants moved for a new trial on the issue of damages, asserting information about the assignment should have been presented to the jury for its consideration in determining the reasonable cost of the hospital’s services. That motion was also denied.
In denying defendants’ motions, the trial court concluded their evidence of the assignments was inadmissible. That evidence consisted of the declaration of defense counsel relating telephone conversations she had with someone at the business office of Brotman Medical Center and with Charles Perez, president of Medical Acquisition Company. Defendants do not challenge the ruling on the inadmissibility of counsel’s declaration. Instead, they argue that a declaration of Charles Perez, submitted by plaintiffs in opposition to defendant’s motion, contained sufficient evidence of the assignment to establish it and no objection to that declaration was raised. They contend evidence of the assignment was admissible on the issue of the reasonable cost of the services rendered by the hospital, and either the jury’s award for that expense should have been reduced to the amount paid for the assignment or defendants should have been granted a new trial on the issue of the reasonable cost of the medical services rendered to plaintiff.
While a successful plaintiff in a personal injury action is entitled to recover the reasonable value of the medical services reasonably rendered in response to the injury, plaintiff “cannot recover more than the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services might be a greater sum.” (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1290 (Katiuzhinsky).) The purpose of an award of damages is to compensate the plaintiff for the loss or injury sustained as a result of the tortfeasor’s action; the object is to restore him as nearly as possible to his former position, without placing him in a better position than he would have been in if the wrong had not been done. (Hanif, supra, 200 Cal.App.3d at p. 641.) Where a “plaintiff’s medical provider accepted payment for services from a third party under a contract that the provider would accept the third party’s payment as payment in full, discharging the plaintiff from any further liability,” the plaintiff cannot recover more than the amount paid by the third party. (Katiuzhinsky, supra, 152 Cal.App.4th at pp. 1290-1291, fn. omitted.) However, “[t]he intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment.” (Id. at p. 1291.)
The Perez declaration, cited by defendants in support of their argument, states that Perez is president of Medical Acquisition Company. He states his company is not an insurance company and it “has a valid contractual right to recover the full amount of the Brotman Hospital bill arising out of treatment and care rendered to Miguel Rojas in the amount of $132,075.96.” He states he has a valid lien agreement with plaintiff, entitling his company to recover the full amount of the hospital’s bill out of the judgment. The declaration states: “The amounts paid to date to Brotman Hospital were paid by my company and had nothing whatsoever to do with the reasonableness of the charges and were not intended as a compromise of the Brotman Hospital bill for a reduced amount.”
The declaration does not indicate what amount Medical Acquisition Company paid to purchase the debt and the lien. Thus, the declaration provided no basis for the trial court to reduce the jury’s award, even if such a reduction were proper.
Defendants moved for a new trial, asserting, among other things, that plaintiff failed to disclose the assignment of the hospital’s bill in his discovery responses, which prevented defendants from learning of it or presenting evidence of it at trial. Apparently, defendants’ theory was that the assignment constituted newly discovered evidence. (Code Civ. Proc., § 657, subd. (4).) The essential elements of a motion for new trial based on a claim of newly discovered evidence are: “(1) that the evidence is newly discovered; (2) that reasonable diligence has been exercised in its discovery and production; and (3) that the evidence is material to the movant’s case.” (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 137.) The evidence must be material in the sense that it is likely to produce a different result. (Id. at p. 138.) The trial court’s decision on a motion for new trial will not be disturbed on appeal unless an abuse of discretion is clearly shown. (Id. at p. 138.)
Defendants have not demonstrated that evidence of the assignment of the hospital’s bill to Medical Acquisition Company was material to their case. Defendants contend, based on Hanif, Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298 (Nishihama), and Parnell v. Adventist Health System/West (2005) 35 Cal.4th 595 (Parnell), that plaintiff cannot recover more in damages for the hospital bill than Medical Acquisition Company paid to acquire it. We disagree.
In Hanif, the plaintiff presented evidence that the reasonable value of the medical services rendered to him was greater than the amount Medi-Cal had paid for those services. The trial court awarded the higher amount. The appellate court held that a plaintiff “may [not] recover from the tortfeasor more than the actual amount he paid or for which he incurred liability for past medical care and services.” (Hanif, supra, 200 Cal.App.3d at p. 640.) The court noted that, “[f]or purposes of analysis, plaintiff is deemed to have personally paid or incurred liability for these services [paid for by Medi-Cal] and is entitled to recompense accordingly.” (Ibid.) The plaintiff’s recovery was limited to the amount paid by Medi-Cal. (Id. at pp. 643-644.)
In Nishihama, the plaintiff recovered damages for her medical bills charged at the medical center’s normal rates. The plaintiff’s medical treatment, however, was paid for through an employer-sponsored health plan administered by Blue Cross. Pursuant to a contract between Blue Cross and the medical center, Blue Cross paid the medical center at a reduced rate and the medical center accepted that payment as payment in full for the services rendered. (Nishihama, supra, 93 Cal.App.4th at p. 306.) The court noted that “[t]he amount that a hospital is entitled to receive as payment necessarily turns on any agreement it has with the injured person or the injured person’s insurer.” (Id. at p. 308.) The court concluded the plaintiff could not recover more for the medical services than Blue Cross had paid on her behalf. (Id. at p. 309.)
In Parnell, the plaintiff was injured by a third party tortfeasor. His medical treatment was paid for by the plaintiff and his insurer, pursuant to the plaintiff’s health plan, which provided that those payments would be accepted by the hospital as payment in full for the services rendered. Defendant hospital asserted a lien against the plaintiff’s recovery for the difference between the payment received from the plaintiff and his insurer and the hospital’s usual charges for the services rendered to the plaintiff. The plaintiff sued the hospital for breach of a third party contract, unfair business practices, and other torts. The court concluded the hospital could not assert such a lien in the absence of an underlying debt owed by the plaintiff to the hospital. (Parnell, supra, 35 Cal.4th at p. 607.) Because the hospital had agreed to accept the amount specified in the hospital’s provider agreement as payment in full, the plaintiff’s entire debt to the hospital was extinguished by that payment, and no debt remained to form the basis for the claimed lien. (Id. at p. 609.)
In each of these cases, the medical provider received payment from a third party paying on behalf of the plaintiff; the provider accepted that payment as full payment for the services rendered to plaintiff and discharged plaintiff from any further liability. Defendants have not shown that Medical Acquisition Company’s purported payment of $19,959.20 for the $132,075.96 debt to Brotman Medical Center was a similar payment. It presented no evidence the payment was made on behalf of plaintiff or that it discharged plaintiff’s obligation to pay the full amount. In fact, defendants refer to the transaction as an assignment of the debt from the hospital to Medical Acquisition Company. The Perez declaration, consistent with that characterization, states that plaintiff now owes the full amount of the debt to Medical Acquisition Company.
“The assignee ‘stands in the shoes’ of the assignor, taking his or her rights and remedies.” (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 735, p. 819.)
In Katiuzhinsky, the plaintiffs’ medical providers secured a lien for the cost of their services against any recovery in plaintiffs’ personal injury actions. The providers later sold plaintiffs’ accounts at a discount to a financial services company (MedFin). Those medical providers then wrote off the balance, but plaintiffs remained liable to MedFin for payment of their medical bills. (Katiuzhinsky, supra, 152 Cal.App.4th at p. 1291.) Relying on Hanif and Nishihama, the trial court limited evidence and recovery of those medical expenses to the discounted amount paid by MedFin.
The appellate court reversed, distinguishing Hanif, Nishihama, and Parnell.
“First, unlike the circumstances in Hanif, Nishihama and Parnell, plaintiffs here remain fully liable for the amount of the medical provider’s charges for care and treatment. The principle of law for which Hanif and Nishihama stand is that a plaintiff’s recovery should be limited to ‘the actual amount he paid or for which he incurred liability for past medical care and services.’ [Citations.] The point is crucial, for those decisions rest on the principle that a damage award should not place a tort plaintiff in a ‘“better position”’ than if the wrong had not been done. [Citations.] Under the trial court’s ruling, plaintiffs are placed in a worse position than had the tort not been committed. Despite the fact that plaintiffs are liable for the full amount of the medical bills, the tortfeasor is answerable only for a discounted rate paid by a bill collector that bought the lien from a health care provider. The result is that plaintiffs are undercompensated and the tortfeasor receives a windfall.
“Second, while the medical providers could opt to sell their bills to MedFin, they were under no obligation to do so. Whether sold to MedFin or not, the charges billed to plaintiffs reflected on the reasonable value of the services they received. A subsequent assignment of the bill to a third party cannot result in a decrease in the value of services that have already been rendered.” (Katiuzhinsky, supra, 152 Cal.App.4th at p. 1296-1297.)
The court concluded: “[T]he trial court erred in limiting recovery of special damages for medical expenses to the amounts paid by MedFin to purchase plaintiffs’ accounts. Plaintiffs should have been permitted to present evidence of the amounts charged to and incurred by them, and to argue to the jury that these amounts represented the reasonable value of the medical services provided.” (Katiuzhinsky, supra, 152 Cal.App.4th at p. 1298.)
The Perez declaration, which is the evidence defendants rely on in support of their request for a new trial on the issue of damages for past medical expenses, demonstrates that plaintiff is still obligated to pay the full amount of the Brotman Medical Center’s bill. The situation is not like that inHanif, Nishihama, and Parnell, where payment was made on behalf of plaintiff and plaintiff’s debt was thereby extinguished. Rather, it appears similar to that in Katiuzhinsky, where a third party with no relationship to plaintiff purchased the debt and the lien, and plaintiff remained obligated to pay the full amount, but to the purchaser instead of to the medical provider.
As Katiuzhinsky points out, “[t]he fact that a hospital or doctor, for administrative or economic convenience, decides to sell a debt to a third party at a discount does not reduce the value of the services provided in the first place.” (Katiuzhinsky, supra, 152 Cal.App.4th at p. 1298.)
The amount for which a hospital is willing to sell and a third party is willing to buy an account receivable appears to be a function of the seller’s need or desire for immediate payment, both buyer’s and seller’s evaluation of the likelihood of payment either out of the plaintiff’s recovery or directly from plaintiff in the event the litigation is unsuccessful, and the buyer’s and seller’s willingness to assume the risk of nonpayment. The amount paid in such a transaction would have little, if any, bearing on the value of the services rendered to the patient.
We conclude that defendants did not, in their motion for new trial, establish that evidence of the assignment of Brotman Medical Center’s bill to Medical Acquisition Company was likely to produce a different result on the issue of damages for past medical expenses. Thus, it did not demonstrate that the purported newly discovered evidence was material to defendants’ case. Consequently, the trial court did not abuse its discretion in denying the motion for a new trial on that issue.
DISPOSITION
The judgment is affirmed. Plaintiff is awarded his costs on appeal.
WE CONCUR: WISEMAN, Acting P.J., GOMES, J.