Briggs v. Cavazos

Filed 8/31/09 Briggs v. Cavazos CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed.

Beam, Brobeck, West, Borges & Rosa, David J. Brobeck, Jr., and Glen A. Stebens for Defendants and Appellants.

Michael J. Briggs, in pro. per., for Plaintiff and Respondent.

* * *

Defendants Ricky Cavazos and Juan Cavazos appeal a postjudgment order granting a new trial solely on the issue of damages.[1] Before trial, the court granted a motion in limine excluding evidence which established the amount plaintiff Michael Briggs was initially billed for medical expenses incurred as a result of the tort at issue. In granting the motion in limine, the court stated its reading of the cases indicate[s] that . . . only the amount that has been paid should . . . go into evidence[,] not the amount initially billed. (See Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 306 (Nishihama); Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 643 (Hanif).) The court changed direction when presented with a motion for new trial, concluding it did not think it had discretion under the relevant case law to exclude evidence of medical bills from the jurys consideration, even if it had the duty to reduce damages after trial if the damage award for medical expenses exceeded the amount actually paid by plaintiffs insurer and accepted as payment in full by plaintiffs medical care providers.

Defendants argue the motion in limine ruling did not amount to legal error and the court therefore should not have granted plaintiffs motion for new trial based on its supposed prior error. In the alternative, defendants claim the court abused its discretion in granting a new trial only as to damages. We affirm the courts order granting plaintiff a new trial as to damages. The court committed legal error when it concluded Hanif/Nishihama and subsequent case law required the exclusion of evidence of initial medical bills. Moreover, the court did not abuse its discretion in finding prejudice to plaintiff due to its earlier error of law, as it is possible the exclusion of medical bill evidence affected the amount of damages awarded by the jury. Finally, the court did not abuse its discretion in limiting the new trial to the issue of damages.

FACTS

The parties to this appeal were involved in a pickup basketball game at an L.A. Fitness International, LLC (L.A. Fitness) gym in October 2005. As happens frequently at such games, the combination of a close score and aggressive play led to several physical confrontations between the players. In this instance, the usual round of shoving and posturing went too far. Defendant Ricky Cavazos punched plaintiff Michael Briggs on the side of the face while plaintiff was facing another player. Plaintiff suffered severe injuries, including a fractured cheekbone, damage to the orbital floor surrounding the eyeball, and nerve damage.

Plaintiff sued defendants Ricky Cavazos, Juan Cavazos, and L.A. Fitness.[2] Plaintiffs brother, Jason Briggs, was brought into the case as a cross-defendant for his alleged role in the melee.

Plaintiffs healthcare providers initially charged plaintiff $81,734.78 for the services provided as a result of his injuries. By the time trial began, all of plaintiffs medical bills had been paid in full in the amount of $23,181.82. All three defendants moved to exclude evidence, testimony, mention, comment or conveyance to the jury in any other manner . . . as to the sums originally billed by healthcare providers for past medical care and services, if those services were paid for by plaintiffs insurance. The court granted the motion in limine.

Plaintiff proceeded to trial against the Cavazos defendants and L.A. Fitness on a negligence theory, waiving claims for intentional tort. During trial, the parties stipulated that the paid medical bills incurred by Michael Briggs is the amount of $23,181.82. The court asked counsel whether the parties intended to include in their stipulation that the medical bills are reasonable . . . . Counsel for the Cavazos defendants replied, We are not saying they are reasonable. Plaintiff and his doctor testified in detail with regard to the extent of the damage done to plaintiffs face and the medical procedures required to address the damage.

Counsel for the Cavazos defendants stated in his closing statement to the jury, The medical bills here are stipulated. We agree $23,181 was correct. So there is no dispute on that. [] The wage loss, there is a dispute. Counsel for the Cavazos defendants went on to argue, This case is probably worth about three times what the medical bills are, which are about $24,000. Probably worth in the $50,000-to-$100,000 range, total. In his closing argument, plaintiffs counsel noted the stipulated medical damage amount of $23,181.82 and asked for $7,692.10 in lost income based on wage records introduced into evidence. The court instructed the jury with a modified version of CACI No. 3903A, stating in relevant part: To recover damages for past medical expenses, Michael Briggs must prove the reasonable cost of reasonably necessary medical care that he has received.

In a special verdict form, the jury found Ricky Cavazos, Juan Cavazos, Michael Briggs (plaintiff), and Jason Briggs to have been negligent, and further found each individuals negligence was a substantial factor in causing plaintiffs harm. The jury found plaintiff suffered total damages in the amount of $80,346.12. The jury awarded $23,181.82 for [p]ast economic loss, including lost earnings and medical expenses in the special verdict form. This amount appears to reflect an acceptance by the jury of the stipulated amount of medical expenses and a rejection of any claim for lost earnings. The jury also awarded $12,000 in past noneconomic loss and $45,164.30 in future noneconomic loss. Applying comparative fault principles, the jury assigned the following percentages of fault to the parties: Ricky Cavazos 60 percent; Juan Cavazos 5 percent; L.A. Fitness 0 percent; Michael Briggs 25 percent; and Jason Briggs 10 percent. The court entered judgment against Ricky Cavazos in the amount of $48,207.67 and Juan Cavazos in the amount of $4,017.30.

Plaintiff moved for a new trial on the grounds of insufficient damages and an error of law in excluding medical damage evidence. The court granted in part plaintiffs motion for new trial: Prior to the commencement of the trial, Defendant Cavazos filed a motion in limine (#2) requesting that the amounts of the medical special damages presented to the jury be limited to the amount paid by the insurance carriers for the medical bills ($23,181.[8]2) as opposed to the amounts incurred ($81,734.78). . . . The court . . . granted the motion. The court finds that it erroneously granted this in limine motion . . . .

Although trial judges enjoy broad authority over the admission and exclusion of evidence . . . , there has been no case which the court is aware of that has held that the court has the discretion to exclude evidence of the amounts paid in medical damages from the jury. To the contrary, the great weight of authority is that the jury should hear this evidence.[3]

The court does not grant a new trial on the basis of inadequate damages, although the court notes that the $12,000 awarded in past noneconomic damages appears to be a very low amount for multiple facial surgeries. Plaintiff has not shown that the jury clearly should have reached a different verdict under [Code of Civil Procedure] section 657. [] The court vacates the judgment with respect to Ricky and Juan Cavazos as to the amount of the damages only and orders a new trial on damages . . . .

DISCUSSION

Defendants assert the court erred in granting a new trial as to damages, or, alternatively, the court erred by granting a new trial only on the issue of damages. The court granted plaintiffs motion for new trial because it thought it had previously committed an error of law, which was objected to by plaintiff, when it granted defendants motion in limine to exclude evidence of the initial medical bills. (Code Civ. Proc.,  657, subd. (7).)

Propriety of Courts Evidentiary Ruling

In ruling on the motion in limine, the court observed its reading of the cases indicate[s] that . . . only the amount that has been paid should . . . go into evidence. The court did not specifically cite an Evidence Code section in granting the motion in limine. It appears the court accepted defense counsels (for L.A. Fitness) argument at the pretrial hearing that, under the relevant case law, the initial bills lacked any possible relevance as the bills bear no relation to what was actually paid in full and in full satisfaction . . . . According to defense counsel (again, for L.A. Fitness), admitting such an artificial number in the special medical damages category would prejudicially exert a multiplying effect on a general damages amount.

Conversely, in its written decision granting a new trial, the court cited Greer v. Buzgheia (2006) 141 Cal.App.4th 1150 (Greer) and Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288 (Katiuzhinsky), as support for its ruling that it was required under existing case law to allow into evidence the amount billed initially by medical care providers. The court did not reference the Evidence Code in its written decision.

We review de novo the courts determination that it had previously committed legal error, as a trial court ha[s] no discretion to grant a new trial [pursuant to Code of Civil Procedure section 657, subdivision (7)] unless its original ruling, as a matter of law, was erroneous. (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859-860.)

Trial courts typically enjoy broad authority over the admission and exclusion of evidence. (Greer, supra, 141 Cal.App.4th at p. 1156.) Consistent with this principle, several cases hold courts are not requiredto exclude evidence of initial billed amounts when a lesser amount was subsequently accepted by the medical care providers as payment in full. (Olsen v. Reid (2008) 164 Cal.App.4th 200, 204 (Olsen); Greer, supra, 141 Cal.App.4th at p. 1157; Nishihama, supra, 93 Cal.App.4th at pp. 309.) These cases also suggest it might be an abuse of discretionto exclude evidence of initial billed amounts.

The Nishihama court modified a judgment by reducing medical care damages to the amount remitted by the insurer as payment in full for the medical services provided. (Nishihama, supra, 93 Cal.App.4th at pp. 306-309.) The jurys award was based on evidence of the health care providers normal rates[,] not the reduced rates negotiated by the insurer. (Id. at p. 306.) The Nishihama defendant claimed a new trial was necessary because the jury received a false impression of the extent of plaintiffs injuries by learning the usual rates charged to treat those injuries. (Id. at p. 309.) The court disagreed, explaining [t]here is no reason to assume that the usual rates provided a less accurate indicator of the extent of plaintiffs injuries than did the specially negotiated rates obtained by Blue Cross. Indeed, the opposite is more likely to be true. We therefore will simply modify the judgment to reduce the amount awarded as costs for medical care. (Ibid.)

In Greer, supra, 141 Cal.App.4th at page 1156, the tortfeasor contended the court erred in denying his motion in limine to exclude evidence of the full amount of plaintiffs billed medical expenses. When it denied the motion in limine, the trial court informed the parties that while a postverdict reduction of the jurys award of medical expenses might be justified, defendant could not prevent the jury from hearing evidence regarding reasonable medical costs for plaintiffs care in the first instance.

(Id. at p. 1157.) The appellate court agreed: Nishihama and Hanif stand for the principle that it is error for the plaintiff to recover medical expenses in excess of the amount paid or incurred. Neither case, however, holds that evidence of the reasonable cost of medical care may not be admitted. Indeed, Nishihama suggests just the opposite: Such evidence gives the jury a more complete picture of the extent of plaintiffs injuries. Thus, the trial court did not abuse its discretion in allowing evidence of the reasonable cost of plaintiffs care while reserving the propriety of a Hanif/Nishihama reduction until after the verdict. (Ibid.)[4]

In Olsen, supra, 164 Cal.App.4th at p. 204, this court, citing Nishihama and Greer, squarely reject[ed] the argument that a trial court errs by permitting the jury to hear evidence of the full measure of . . . medical damages. Olsen quotes Nishihamas observation that [t]here is no reason to assume that the usual rates provided a less accurate indicator of the extent of plaintiffs injuries than did the specially negotiated rates obtained by Blue Cross. Indeed, the opposite is more likely to be true. (Olsen, supra, 164 Cal.App.4th at p. 204.)

A fourth case, Katiuzhinsky, supra, 152 Cal.App.4th at pages 1295-1296, held the trial court erred by excluding evidence of the plaintiffs medical bills. Katiuzhinsky is factually distinguishable, however. There, uninsured plaintiffs hurt in an automobile accident obtained medical care. (Id. at pp. 1291-1292.) The healthcare providers secured a lien against any personal injury recovery by plaintiffs, then sold plaintiffs accounts at a discount to a firm specializing in such transactions (MedFin). (Id. at pp. 1291-1293.) The trial court ruled that as to the bills sold to MedFin, the only admissible evidence of plaintiffs damages for medical expenses would be the amounts MedFin paid the medical providers to acquire their liens. (Id. at p. 1293.) Concomitantly, applying Hanif/Nishihama, the trial court limited plaintiffs recovery for medical care bills sold to MedFin to the amount MedFin paid for such accounts. (Katiuzhinsky at p. 1296.) The Katiuzhinsky appellate court found error in the trial courts application of Hanif/Nishihama because plaintiffs remained liable for the full amount billed; MedFins purchase of the accounts at a discount did not reduce the amount owed by plaintiffs. (Katiuzhinsky at pp. 1296-1297.)

Thus, the Katiuzhinsky case is fundamentally different from the instant case, as it does not fall under Hanif/Nishihama. But as to the admissibility of evidence, the Katiuzhinsky court broadly stated: The trial courts ruling did not merely preclude plaintiffs from recovering special damages for medical expenses above the discounted rate paid by MedFin, but kept the jurors from considering the medical bills as evidence of the reasonable value of the medical services. This ruling was erroneous. . . . [] . . . [R]egardless of whether defendants were entitled to a Nishihama-type reduction of the medical damage award, there was no basis in law to prevent the jurors from receiving evidence of the amounts billed, as they reflected on the nature and extent of plaintiffs injuries and were therefore relevant to their assessment of an overall general damage award. (Katiuzhinsky, supra, 152 Cal.App.4th at pp. 1295-1296.)

It is clear the trial court in the instant case was not required to exclude evidence establishing plaintiff was initially billed for $81,734.78. Furthermore, each of the cases discussed above expresses a strong preference for admitting evidence of the amount billed because evidence of the initial medical bills is evidence of the reasonable value of medical services. These cases imply that the amount initially billed is always relevant[5] (Evid. Code,  210, 350) to the issue of reasonable value and therefore presumptively admissible (Evid. Code, 351), even when a defendant argues a damage award will be ultimately subject to reduction under Hanif/Nishihama. Katiuzhinsky, supra, 152 Cal.App.4th at page 1296, goes farther by stating in dicta that the trial court has no authority to exclude evidence of the amount billed, even if such amount is subject to reduction under Hanif/Nishihama.

Despite trial courts wide discretion to determine whether evidence is relevant (DePalma v. Westland Software House (1990) 225 Cal.App.3d 1534, 1538), we agree with the courts conclusion that it abused its discretion by excluding plaintiffs evidence of the initial amount billed. In ruling on defendants motion in limine, the court misconstrued Hanif/Nishihama and later cases to establish an evidentiary exclusionary rule. The rule announced in Hanif/Nishihama is a limitation on damages based on Civil Code section 3333s definition of the measure of tort damages as the amount which will compensate for all the detriment proximately caused by the tort at issue. (See Olsen, supra, 164 Cal.App.4th at p. 215 (conc. opn. of Fybel, J.).) This rule does not operate to transform probative evidence of the reasonable value of medical services into per se irrelevant evidence. Notwithstanding Hanif/Nishihama, juries are still tasked with finding the reasonable value of medical services, not the amount paid by insurers for medical bills incurred.

The facts here demonstrate why the initial amount billed by plaintiffs medical care providers, $81,734.78, is relevant to the factual question of what reasonable medical expenses were caused by the tort in question. The parties stipulated to an agreed amount of paid medical bills after the court granted the motion in limine. But the parties were not required to stipulate to the amount of paid medical bills or to the fact that the amount paid was reasonable indeed, defendants counsel initially reserved his right to argue the $23,181.82 amount was not reasonable. The jury could have returned a verdict providing less than $23,181.82 in past economic damages. By excluding evidence of the higher billed amount as irrelevant, the court placed plaintiff at a distinct and unwarranted disadvantage.

In exercising its discretion to determine whether evidence is relevant, a trial court should determine whether the evidence tends logically, naturally, and by reasonable inference to establish material facts . . . . (Smith v. SelmaCommunityHospital (2008) 164 Cal.App.4th 1478, 1510 fn. 17.) We emphasize the courts decision here to grant the motion in limine did not entail a particularized exercise of discretion under Evidence Code section 210. Rather, the court thought case law compelled it to conclude evidence of the initial bills was per se irrelevant when such bills had been paid already in a lesser amount and accepted as payment in full. By deciding this case, we do not necessarily endorse the proposition that there is no basis in law to prevent the jurors from receiving evidence of the amounts billed in a case where a party requests a Hanif/Nishihama limitation on damages. (Katiuzhinsky, supra, 152 Cal.App.4th at p. 1296.) Although it is difficult to imagine a case in which evidence of the initial medical bills would not be relevant, there is no need for this court to conclusively opine as to the propriety of all future evidentiary rulings in cases where a Hanif/Nishihama reduction is requested.

Similarly, we need not decide whether trial courts, pursuant to Evidence Code section 352, may ever exclude relevant evidence of initial billed amounts in cases where a Hanif/Nishihama reduction in medical expense damages is requested. Neither the court nor the parties ever mentioned Evidence Code section 352 during the motion in limine hearing, the motion for new trial hearing, the papers submitted by the parties in reference to those hearings, or the courts order granting a new trial. Thus, the court did not deign to exercise its discretion under Evidence Code section 352. (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291 [Reasonable exercise of trial court discretion pursuant to Evidence Code section 352 requires that the trial judge balance the probative value of the offered evidence against its potential of prejudice, undue consumption of time, and confusion].)

Harmless Error Analysis

As the court correctly found error in its exclusion of plaintiffs medical bills, we also must determine whether the court complied with article VI, section 13 of the California Constitution, which provides in relevant part: No judgment shall be set aside, or new trial granted, in any cause, on the ground of . . . the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (See also Code Civ. Proc.,  475.) With regard to whether the courts decision to exclude evidence was harmless, we review the trial courts finding of harm under an abuse of discretion standard. (People v. Ault (2004) 33 Cal.4th 1250, 1271-1272 [when the trial court finds prejudice in granting a new trial, all presumptions favor the trial courts order, and prejudice, at least, need not be independently redetermined].)

The court did not extensively analyze in its written decision whether its previous error of law had prejudiced plaintiff at trial. The court did note in its tentative decision granting the motion for new trial that [i]n view of the $12,000 awarded in pain [and] suffering for multiple facial surgeries, it would appear that this ruling prejudiced the plaintiff as to the issue of damages. Plaintiffs counsel argued in his motion for new trial that the lower anchor prejudiced plaintiff; in other words, had $81,734.78 in medical bills been in evidence, the jurys noneconomic damage award would have been higher.

It appears the error was harmless in terms of medical damages. The special verdict form indicates an award of $23,181.82 in [p]ast economic loss, including lost earnings and medical expenses. It is theoretically possible, but exceedingly unlikely, that the jury actually awarded less than $23,181.82 in medical expenses and arrived at the same number (down to the penny) by adding an amount of lost earnings. We will proceed on the assumption the jury found the parties stipulated figure to represent reasonable medical expense damages and rejected plaintiffs evidence of lost wages.

We conclude the court did not abuse its discretion in finding plaintiff had been prejudiced by its error in granting defendants motion in limine. [T]he cost of medical care often provides both attorneys and juries in tort cases with an important measure for assessing the plaintiffs general damages. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 11.) It is plausible the jurys receipt of only the lower number ($23,181.82) in paid medical bills, rather than both the higher number ($81,734.78) and the lower number, could have influenced its calculation of noneconomic damages. Counsel for each of the parties seemed to think so. Counsel for L.A. Fitness, arguing in favor of the motion in limine, claimed defendants would be prejudiced by the higher figures multiplying effect on a general damages amount. Counsel for the Cavazos defendants asked the jury in his oral argument to tie its damages award to three times what the medical bills are, which are about $24,000. Probably worth in the $50,000-to-$100,000 range, total. Counsel for plaintiff based his showing of prejudice to the trial court on the concept of the lower figure serving as an anchor on the overall recovery.

The concept of a multiplier or anchor is not particularly compelling. Logically, the price charged by health care providers for medical procedures has little to do with pain and suffering, or other compensable noneconomic damages. But it is difficult to specify any logically compelling method for determining noneconomic damages in a personal injury case. We think the reasonable value of medical services provided to plaintiff could be one substantial factor relied on by a jury in its task of assigning a monetary value to plaintiffs physical pain and mental suffering. As such, the trial courts finding of prejudice does not represent an abuse of discretion.

New Trial on Damages Only, Not Liability

Finally, defendants claim the court abused its discretion in granting a new trial on damages, without granting a new trial on all issues as to all parties. A trial court may grant a new trial on all or part of the issues . . . . (Code Civ. Proc.,  657.) Three factors of importance in assessing the choice of limited new trial as opposed to entire new trial are: (1) whether liability was clearly established at the first trial[;] (2) whether the evidence concerning damages was insufficient or entirely nonexistent; and (3) whether prejudice to a party would result as a result of the choice of one disposition over the other. (Tan Jay Internat., Ltd. v. Canadian Indemnity Co. (1988) 198 Cal.App.3d 695, 705.)

We think the court properly exercised its discretion in limiting the new trial to damages. First, the jury allocated liability amongst the various parties in applying principles of comparative negligence, and the percentage allocations reflect a balanced weighing of the evidentiary record. Second, the legal error providing the basis for a new trial was the exclusion of evidence pertaining solely to damages, not liability.

Third, no undue prejudice would result to any parties by restricting the new trial to damages. Unlike Hamasaki v. Flotho (1952) 39 Cal.2d 602, 604-605, a case cited by defendants, there is no indication the jury issued a compromise verdict by awarding a low amount of damages in sympathy to a plaintiff whom the jury did not think actually established liability. Here, liability was essentially conceded by Ricky Cavazos, whose primary argument was that plaintiff should be held responsible for much of his own damages. Juan was found to be only five percent at fault for his role in the incident. As noted above, our review of the record indicates the jury carefully selected the fault percentages based on the evidence. There is no need to retry the liability issues. The parties will benefit from a shortened second trial.

DISPOSITION

We affirm the courts postjudgment order granting plaintiff a new trial against the Cavazos defendants as to the issue of damages only. Plaintiff shall recover his costs on appeal.

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

MOORE, J.

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[1] The courts postjudgment order granting a new trial is an appealable order under Code of Civil Procedure section 904.1, subdivision (a)(4).

[2] Only defendants Ricky Cavazos and Juan Cavazos are parties to this appeal. We shall refer to these individuals as defendants or, when necessary to distinguish them from L.A. Fitness, the Cavazos defendants.

[3] It is unclear what the court meant by referring in this portion of its order to the amounts paid in medical damages. The court did not exclude evidence of the amounts paid in medical expenses; the parties stipulated to that figure ($23,181.82). The court excluded the initial bills provided by health care providers, which were subsequently reduced pursuant to contractual arrangements with plaintiffs insurance company.

[4] We note that the propriety of a postverdict reduction hearing is not at issue in the instant appeal. (Compare Olsen, supra, 164 Cal.App.4th at pp. 204-214 (conc. opn. of Moore, J.) with Olsen, supra, 164 Cal.App.4th at pp. 214-218 (conc. opn. of Fybel, J.).)

[5] Evidence Code section 210 defines relevant evidence as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.