Opinion
G044621
11-07-2011
SUZETTE MONIQUE PEREZ TATE, Plaintiff and Appellant, v. VICKI JO PRENDERGAST, Defendant and Respondent.
Russell & Lazarus and Marc Lazarus for Plaintiff and Appellant. Gilbert, Kelly, Crowley & Jennett, Peter J. Godfrey and Jesse D. Marr, for Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2009-00122816)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Steven L. Perk, Judge. Affirmed.
Russell & Lazarus and Marc Lazarus for Plaintiff and Appellant.
Gilbert, Kelly, Crowley & Jennett, Peter J. Godfrey and Jesse D. Marr, for Defendant and Respondent.
INTRODUCTION
Appellant Suzette Monique Perez Tate sued Vickie Jo Prendergast for rear-ending her on the freeway at a very low speed, during rush hour. She sought $750,000 in damages. The jury awarded her $300, for past medical expenses. Because she had turned down a pretrial offer of compromise, Tate was required to pay Prendergast's costs.
On appeal, Tate asserts that she was entitled as a matter of law to damages for pain and suffering. She also asserts that Prendergast's costs award must be set aside for failure to file a memorandum of costs. She has asked us to remand the case to the superior court for a new trial on damages, subject to an additur.
We cannot do as Tate asks. She failed to move for a new trial in the trial court and thus cannot complain about inadequate damages on appeal. Contrary to Tate's assertion, Prendergast did file a cost memorandum; she just filed it somewhat early. A prematurely filed costs bill is not subject to being set aside unless the other party can show prejudice. Tate has not explained how filing the memorandum of costs prematurely has prejudiced her, so the judgment is affirmed.
FACTS
Prendergast rear-ended Tate's car on the San Diego Freeway during rush hour. Prendergast did not contest negligence. Tate alleged back, neck, and shoulder injuries and estimated her damages at $750,000. The jury awarded her $300 in past medical expenses and nothing for future damages or for pain and suffering. Tate did not move for a new trial.
Several months before trial, Prendergast tendered an offer to compromise under Code of Civil Procedure section 998 for $20,001, an offer that Tate did not accept. Tate having failed to obtain a higher award at trial, Prendergast filed a memorandum of costs for $12,703 on July 30, 2010, the day after the jury rendered its verdict. Final judgment, including Prendergast's cost award, was entered on September 29, 2010. The net award to Prendergast was $12,403.
DISCUSSION
Tate has framed her appeal as a petition for writ of mandamus. This is improper. Tate is appealing from a judgment, which is reviewed by appeal, not by writ. (Code Civ. Proc., § 904.1, subd. (a)(1).)
I. Inadequate Damages.
Tate's argument about her damages is ambiguous and unclear. She could be asserting the amount she got was inadequate, and she simply wants more money. But she might be maintaining she is entitled to pain and suffering damages as a matter of law, and the jury's failure to award them at all is the error. We address each issue in turn.
A. Inadequate Amount of Damages
If Tate's complaint is that she did not get enough money, her immediate remedy was to move for a new trial in superior court under Code of Civil Procedure section 657, subdivision 5. Tate did not, however, move for a new trial.
"When a jury returns its verdict, the trial judge determines whether that verdict as to liability is supported by substantial evidence; if it is not, he may, on his own motion, grant judgment notwithstanding the verdict. [Citation.] The court, however, cannot grant judgment notwithstanding the verdict merely upon the ground that damages were excessive or inadequate. That issue must be raised by a motion for a new trial [citation], and absent exceptional circumstances . . . the trial court cannot grant a new trial on its own motion. Thus, because of the failure of defendants here to move for a new trial, the issue of adequacy of damages was never presented for decision by the trial judge. [¶] The trial court is in a far better position than an appellate court to determine whether a damage award was influenced by 'passion or prejudice.' [Citation.] In reviewing the issue, moreover, the trial court is vested with the power, denied to us, to weigh evidence and resolve issues of credibility. [Citation.] When defendants first challenge the damage award on appeal, without a motion for a new trial, they unnecessarily burden the appellate courts with issues which can and should be resolved at the trial level." (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919, fn. omitted.) If the correct amount of damages turns on factual questions - such as credibility of witnesses or conflicting evidence - the issue cannot be raised for the first time on appeal. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719-720.)
Tate's claim of an inadequate amount of damages had to be addressed first to the trial court. The resolution of this issue turned on factual questions and conflicting evidence. It was up to the jury in the first instance to decide what and how much to award her; an award for the exact amount of medical damages, or even less than the exact amount, is not inadequate when the evidence of pain and suffering is conflicting. (Randles v. Lowry (1970) 4 Cal.App.3d 68, 74.)
For example, Tate testified about her back and leg pain after the auto accident, but the evidence also showed she had run a half marathon, gone kayaking and boogie boarding, and played volleyball after the accident.
If Tate was dissatisfied with the amount, she had to move for a new trial on this issue. Her failure to do so constitutes a waiver of this issue on appeal. (See County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121; Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 132.)
B. No Damages for Pain and Suffering
Tate may actually be complaining that, having persuaded the jury she was physically injured (and getting a modest award for past medical expenses), she was entitled as a matter of law to some compensation for pain and suffering and the jury's failure to award anything at all is error as a matter of law, requiring no weighing of evidence or resolution of credibility issues.
Some courts have found a failure to award damages for pain and suffering when the evidence has established physical injury erroneous as a matter of law. In Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, a trial judge instructed a jury that an infant could not recover damages for pain and suffering. (Id. at p. 892, 895.) The failure to award these damages despite evidence of substantial physical distress was error as a matter of law, and the reviewing court sent the case back for a new trial on damages. (Id. at p. 898.) In Wilson v. R.D. Werner Co. (1980) 108 Cal.App.3d 878, a plaintiff who required surgery, physical therapy, and casts on both arms received nothing for pain and suffering, even though his evidence on that issue was uncontroverted. (Id. at p. 883.) This case also went back for a new trial. (Ibid.; see also Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 937-938 [verdict failing to compensate for pain and suffering inadequate as matter of law].)
In each of these cases, the reviewing court determined failure to award damages for pain and suffering was error as a matter of law, but only after the trial court had denied a motion for a new trial. We have found no case in which a reviewing court has been willing to forgo this step, even when juries have awarded nothing or virtually nothing for pain and suffering. (See, e.g., Crowe v. Sacks (1955) 44 Cal.2d 590, 599; Clifford v. Ruocco (1952) 39 Cal.2d 327; Haskins v. Holmes (1967) 252 Cal.App.2d 580, 582; Buniger v. Buniger (1967) 249 Cal.App.2d 50; Gallentine v. Richardson (1967) 248 Cal.App.2d 152, 153; Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 522.)
We conclude a plaintiff disputing a pain-and-suffering award of zero as inadequate must still move for a new trial under Code of Civil Procedure section 657. Because Tate did not move for a new trial below, she cannot do so for the first time in this court.
Tate has also asked us to send this case back for new trial subject to an additur. We are singularly ill-equipped to do so. Code of Civil Procedure section 662.5, subdivision (a), which Tate cites as the authority for her request, applies to trial courts, not reviewing courts, and also applies only when the trial court has made an order for a new trial for inadequate damages. No such order was obtained, or even sought, in this case.
"Upon a motion for a new trial grounded on insufficiency of the evidence because the damages are inadequate, the court should first determine whether the damages are clearly inadequate and, if so, whether the case would be a proper one for granting a motion for new trial limited to damages[]. . . . If both conditions exist, the court in its discretion may issue an order granting a motion for new trial unless the defendant consents to an additur as determined by the court.[] . . . [¶] If the court decides to order an additur, it should set the amount that it determines from the evidence to be fair and reasonable." (Jehl v. Southern Pac. Co., supra, 66 Cal.2d at p. 832-833.)
"Additur" is an order granting plaintiff's motion for a new trial unless the defendant consents to a specified increase in the amount of damages within a time limit. (Jehl v. Southern Pac. Co. (1967) 66 Cal.2d 821, 827, fn. 1.)
We do not weigh evidence, and, not having observed the witnesses, we are in no position to determine a "fair and reasonable" amount of pain-and-suffering damages. (See Choate v. County of Orange (2000) 86 Cal.App.4th 312, 321-322 [appellate court not able to second-guess factual determinations on damages].) Tate should have directed the request for an additur to the trial court in the course of moving for a new trial.
II. Cost Award
Tate does not challenge the amount of the cost award or its basis in her failure to accept an offer of compromise. Instead, she contends Prendergast did not file her cost memorandum within the time frame specified under rule 3.1700(a)(1) of the California Rules of Court. As a result, Tate contends, the judgment for costs in Prendergast's favor must be set aside.
Tate inexplicably argues that Prendergast never filed a memorandum of costs. The superior court docket clearly reflects a cost memorandum filed on July 30, 2010, one day after the jury rendered its verdict. Tate does not explain how the trial court could have awarded Prendergast $12,703.10 in costs - the exact amount she requested - without the aid of such a document.
California Rules of Court, rule 3.1700(a)(1) provides in pertinent part, "A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of services of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first." Prendergast filed her memorandum of costs on July 30, 2010, before any of these events took place.
The interpretation of a statute is a question of law subject to our independent review. (Board of Retirement v. Lewis (1990) 217 Cal.App.3d 956, 964.) Time limitations pertaining to a memorandum of costs are not jurisdictional (Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal.App.4th 1301, 1304), and the premature filing of a cost memorandum is treated as a mere irregularity. Indeed, courts sometimes treat prematurely filed cost bills as timely. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880; Brown v. West Covina Toyota (1994) 26 Cal.App.4th 555, 560, disapproved on other grounds in Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985; Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 528; Parker v. City of Los Angeles (1974) 44 Cal.App.3d 556, 566; see also Lange v. Fisher (1983) 146 Cal.App.3d 113 [premature service of cost bill].) Premature filing does not constitute reversible error unless it prejudices the other party. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 961.)
Tate has not explained how the early filing of the cost bill prejudiced her. She did not move to strike it in the trial court. (Cf. Combs v. Eberhard (1932) 120 Cal.App. 25, 31 [no motion to strike prematurely served cost bill; objection waived].) There is no reversible error.
DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. FYBEL, J.