Jackson v. Estate of Brasel

Filed 1/27/10 Jackson v. Estate of Brasel CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Deanne Smith Myers and Morris Jones, Judges. Reversed with directions.

Law Offices of Alvin L. Pittman and Alvin L. Pittman for Plaintiff and Appellant.

Knapp, Petersen & Clarke, Stephen C. Pasarow, Robert D. Brugge and Maria A. Grover for Defendant and Respondent.

_______________________________________

Jasmine Jackson appeals a judgment after a jury verdict in a personal injury action. She suffered serious injuries when the car in which she was a passenger was struck by another vehicle being driven by Jo Ann Brasel. Brasel later died from other causes. Plaintiff sued the decedents estate, seeking to recover damages limited by the decedents insurance coverage. On appeal, plaintiff challenges the amount of damages awarded, the apportionment of fault, the admission and exclusion of evidence, the refusal of her proposed jury instruction on an item of economic damages, the denial of her motions for a mistrial during jury voir dire, and other matters.

We conclude that comments by prospective jurors and the trial court concerning the financial impact of the verdict on the heirs were incurably prejudicial and warrant a complete new trial. We also conclude that the admission of an exculpatory hearsay statement by the decedent was prejudicial error, as was the refusal of plaintiffs proposed instruction on an item of damages. Accordingly, we will reverse the judgment for a complete new trial.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Plaintiff was riding in the passenger seat of her Toyota Corolla on Sunday, April 3, 2005. She was 21 years old at the time. Her friend Tianna Moore was driving. The sun was just beginning to set. They were driving north on Denker Avenue through the intersection with Carson Street when their car was broadsided by a Toyota Prius driving westbound on Carson Street being driven by Brasel. Plaintiff, who was wearing a seatbelt, was knocked unconscious. The paramedics arrived and took her to the hospital.

The police interviewed Moore and Brasel at the hospital approximately one hour after the collision. According to the police report, both drivers stated that they had the green light. The police were not able to interview plaintiff because of the extent of her injury. The police did not interview any other witnesses.

Plaintiff suffered a serious brain injury. She was in a coma for two or three days after the collision and remained in the hospital for a total of ten days. Upon her release from the hospital, she was taken to an in-patient rehabilitation center, where she was treated until April 29, 2005. She was discharged at that time, before achieving her treatment goals, at her familys request with the understanding that relatives would care for her at her mothers home. Her cousin and her cousins husband, Kimberly Odain and Kevin Odain, provided in-home occupational and physical therapy services. Plaintiffs mother, aunts, and others provided assistance with daily activities, including cooking and eating, and attendant care.

Brasel died sometime later, apparently from causes unrelated to the collision.

2. Complaint

Plaintiff filed a complaint against Brasel in January 2007. She filed an amendment to the complaint in July 2007, substituting the decedents estate for the individual decedent. She filed a first amended complaint in August 2007, alleging counts for negligence and negligence per se and seeking recovery within the limits of Brasels insurance coverage, pursuant to Probate Code sections 550 et seq.

3. Motions in Limine

Plaintiff filed a motion in limine to preclude the admission of Brasels exculpatory statement made to the investigating police officer. She argued that the statement was inadmissible hearsay and should be excluded under Evidence Code section 1200 or 352. The trial court heard testimony by the police officer out of the presence of the jury. The court concluded that Brasels statement was not an excited utterance, but that the statement was admissible under Evidence Code section 1261 because the circumstances are trustworthy. The court therefore denied the motion in limine.

Defendant filed a motion in limine to preclude plaintiff from calling Arthur Kowell, a neurologist, to testify regarding his expert opinions. Defendant had designated Kowell as an expert witness but plaintiff had not, and he was not deposed. Defendant argued that plaintiff could not satisfy the conditions of Code of Civil Procedure section 2034.310 so as to justify her calling of an expert witness at trial whom she had not previously designated as an expert. The court granted the motion and excluded the testimony.

Defendant also filed a motion in limine to preclude plaintiff from calling insurance company employees to testify regarding verified discovery responses or other matters, arguing that evidence that defendant was insured against liability would unduly prejudice defendant and that their expected testimony was not relevant. The court granted the motion and excluded the testimony.

4. Voir Dire and Motions for a Mistrial

The court discussed the burden of proof during jury voir dire. The court stated:

Now, the other thing is I just want you to be aware that in a civil case the burden of proof is not proof beyond a reasonable doubt. Youve all heard that term I think in a criminal case. You have to prove that a defendant is guilty by proof beyond a reasonable doubt. Here the standard is lower. Its called more likely to be true than not true.

Let me kind of give you a sort of a sense of what that means. You know, as I think the attorneys have kind of indicated to you, one of the issues in this case is going to be, you know, who was at fault for the accident. And as I understand it from talking to them its going to be a case of whether the light was red or it was green or it was yellow; I dont know entirely. So what youre going to hear is youre going to hear that the plaintiff must prove certain things. Youre going to hear what those are. And she has to prove that the defendant is liable, is responsible for the accident. So she has to prove that, you know, in this case for Ms. BraselMs. Brasel, if Im saying it right.

After an interjection by defense counsel, the court continued:

She has to prove basically that the light was red so Mrs. Brasel is at fault; thats basically what shes going to have to prove. Youll get a lot of evidence whether the light was red, the light was green, the light was yellow or whatever the case may be. And ultimately you have to sit down and think, wait a minute, from everything Ive heard is it more likely to be true than not true, tipping the scales of justice by 51 percent that that light was red or green or whatever it is that she has to prove. So its more likely to be true than not true.

If you think, wait a minute, I just really dontI cant say that its more likely that it was green or red or whatever its going to have to be then she hasnt proved it. Or its just so even I really cant say. Thats the standard of proof, more likely to be true than not true, not proof beyond a reasonable doubt, not clear and convincing. And the same thing with damages and all that, thats what were talking about.

The following exchange occurred a short time later during voir dire:

Prospective juror 1: Yeah, I was wondering if she does win who has to pay her the money?

The court: Well, shes suing the defendant.

Prospective juror 1: So shes passed away; isnt she?

The court: Well, shes suing her estate.

Prospective juror 1: Oh, so the family has to pay?

The court: Well, thats something that you really cant consider who actually has to pay. In other words, you know, whos actually going to pay, what will be the effect.

Prospective juror 1: If they lost somebody, family died, you know, that would be wrong for them to pay money because they

The court: Im sorry, say that again.

Prospective juror 1: Well, they lost a family member, and it would be wrong for them to even lose money, you know, just to pay for something.

The court: You mean, Ms. Brasels heirs?

Prospective juror 1: Yeah, it would be wrong for them to pay money. Theyve already lost a family member.

The court: She died from something else unrelated to this accident.

Prospective juror 1: Oh.

The court: If you find that it was her fault and the injuries that Ms. Jackson you find suffered were as a result of the injury.

Prospective juror 1: What are the heirs asking for?

The court: The heirs arent asking for anything. Theyre just simply saying we shouldnt have to pay, were not evenI think theyre saying were not even responsible for the accident; it wasnt Ms. Brasels fault.

Prospective juror 1: I would say the state or if somebody was going to pay them I would say, yeah, give them the money. But if its coming from other people, no. I would say, no, dont give it.

Plaintiff moved for a mistrial, arguing that defendants negligence did not necessarily depend on the light being red and that the court had unduly focused on that issue. Plaintiff also argued that the courts response regarding the heirs was prejudicial. The court denied the motion.

The court later told the jury panel: You remember prior to lunch I talked about the burden of proof here and its more probable than not probable. In other words, more likely to be true than not true. And I used the example of a red light, green light, just as an example. And, you know, even though you heard, I think in the opening statements, that there may be some issue of a red light, green light, whatever it might be, I just want to be sure that you understand that whatever comments I made when I was kind of giving you that example is just kind of exemplified to you what do I mean by more likely to be true than not true, that I dontI dont know what the evidence is going to be. And I dont know that that is the issue in this case. So please disregardI mean, that was only meant as an example to give you kind of a concept of whats more likely to be true than not true.

It isnt specific in this case. Youre going to hear all of the evidence, and there will be lots of evidence and the attorneys will talk to you about what the issues are and all. So please dont think that that was an example of what youre going to have to find because that was just a simple little example that I came up with to try to show you, and, you know, it is not necessarily what youre going to have to decide in this case. So I just wanted to be sure that you kind of put that in context, please.

After the denial of the motion for a mistrial, prospective jurors continued to comment on their concern for the heirs. For example:

Prospective juror 15: Its a little different because the other person has passed away already, kind ofI dont know.

Mr. Pittman [plantiffs counsel]: So its your feeling that because the other person has died, what?

Prospective juror 15: I think itsI dont know, its justIts just that theyre suing the estate of the family. I dont think thats right.

Another prospective juror stated that even if the decedent was at fault, I dont see a reason why the family member should be liable . . . I dont see a reason why the family members should handle it or take over it after shes deceased. Another stated on the same subject, Well, depending on the size of the estate, were talking about lots of money, maybe it doesnt hurt the family, depends on if it hurts the family. Other prospective jurors expressed similar sentiments. None of those prospective jurors actually served on the jury.

Several jurors mentioned insurance when responding to the courts questions concerning their personal experiences with automobile accidents. The court stated:

Ladies and gentlemen, Ms. Vizard just brought up a point that I do want to comment on. You know, she said a number of somewhat minor accidents and insurance took care of them. And I think a couple of the others have mentioned the same thing when you talked about your accidents. But one of the things I want to tell you right now, you are going to not hear anything in this case about insurance. Youre not going to hear whether either of the parties has insurance. And if you think about it, insurance has nothing to do with this case. Youre being asked to decide certain issues. Who was responsible for this accident? What, if any, damages should be compensated? Insurance has nothing to do with that.

I bring it up because so many of you, you know, just like Ms. Vizard have indicated, well, the insurance company took care of it. And thats logical, but in this case youre not going to hear anything about whether any of the parties has insurance. And, in fact, youre going to get a jury instruction, and that instruction is going to say, youre not to consider whether any of the parties has insurance because insurance is just a case of who pays. Youre not to talk about it. Youre not to speculate about it. Youre not to discuss it. You know, youre not to think, well, gee, if she had insurance maybe Id do this, if she didnt have insurance maybe Id do that. Thats not what you are being asked to decide. And it really is very important that youand I say this because, as I say thats most of your experience, and the first question, Ill bet, when you deliberate is who has insurance. So Im telling you that right now.

So my question to the 24 of you that are seated here is youre going to get this instruction that says youre not to thinkyoure not going to hear anything about insurance, youre not to speculate about it, youre not to talk about it. Is there anyone that feels that they cannot follow that instruction because youre going to get that instruction? Will you say, I have to know about insurance in order to decide this case? Anyone?

No prospective juror responded affirmatively.

Plaintiff moved for a mistrial, arguing that the courts comments were inappropriate and prejudicial. The court denied the motion.

5. Testimony at Trial Regarding the Collision

Moore testified at trial that she came to a complete stop at a red light while driving north on Denker Street at the intersection with Carson Avenue. She stated that she waited until the light turned green, looked left and then right, and then drove into the intersection looking straight ahead. She testified that the car she was driving was struck on the passenger side by a car driving west on Carson Avenue. She testified that she did not see or hear the other car approaching and did not apply the brakes before the collision.

Plaintiff testified at trial that she had no recollection of the collision.

Fred Johnson, an accident reconstructionist called by plaintiff, estimated that at the time of impact, the Corolla being driven by Moore was traveling approximately 23 miles per hour and the Prius being driven by Brasel was traveling approximately 53 miles per hour. The speed limit on Carson Avenue was 35 miles per hour. He testified that there was no evidence of any braking by Brasel. Johnson opined that the collision was caused by Brasels excessive rate of speed and her failure to stop at the traffic light. Some of his calculations and notes were challenged on cross-examination, and he acknowledged a typographical error in his report, but testified that his opinion concerning the speed of the vehicles was unchanged. Defendant presented no expert testimony concerning the collision.

Defendant called as a witness the investigating police officer who had interviewed Brasel in a hospital about an hour after the collision. The officer testified that she had no independent recollection of her investigation apart from the fact that the interview had occurred in a hospital. She read from her report, stating,  P-2 [Brasel] stated she was westbound Carson passing Denker through the green light and did not see the car coming that hit her. 

6. Jury Instructions,Verdict and Judgment

The court instructed the jury that if the jury found that Brasel was negligent, it should award damages for any resulting past and future medical expenses, past lost earnings, and past and future emotional distress. The court refused plaintiffs proposed special instruction that plaintiff also was entitled to recover the reasonable cost of reasonably necessary medical care and home health care services provided by family members, even if those services were rendered with no expectation of payment. Counsel stipulated that the cost of reasonable and necessary medical care provided at the hospital and the rehabilitation center was a total of $182,269.

The jury returned a special verdict on May 2, 2008, finding that Brasel was negligent and that plaintiff had suffered $185,269 in past medical expenses and $75,000 in noneconomic damages for past emotional distress. The jury found that plaintiff had suffered no past earnings loss and that she would suffer no future medical expenses and no future noneconomic damages. The jury also found that Moore was negligent and apportioned 65 percent of the fault to Brasel and 35 percent to Moore.

Defendant moved to reduce the award of damages for past medical expenses to $24,750.25, as the amount actually paid by plaintiff and her medical insurance provider. The court granted the motion. The court entered a judgment on July 10, 2008, awarding plaintiff a total of $64,838.06.

7. New Trial Motion

Plaintiff moved for a new trial on several grounds. Defendant opposed the motion. Judge Deanne Smith Myers died before the hearing date. A hearing on the new trial motion took place on September 9, 2008, before another judge, who denied the motion. Plaintiff timely appealed the judgment.

CONTENTIONS

Plaintiff contends (1) statements by the trial court and prospective jurors during voir dire concerning the burden of proof, the heirs, and insurance misled and prejudiced the jury and warranted a mistrial; (2) the preclusion of testimony by Kowell and insurance company employees was error; (3) the admission of the exculpatory statement by Brasel was error; (4) defendants counsel committed misconduct in closing argument by stating that the jury should consider the plaintiffs absence from the courtroom during the trial; (5) the denial of plaintiffs proposed instruction on damages for home health care services was error; (6) the award of damages is inadequate; and (7) the evidence does not support the apportionment of fault to Moore.

DISCUSSION

1. Comments by Prospective Jurors and the Trial Court Concerning
the Heirs Were Incurably Prejudicial and Required a New Trial

A trial court should grant a motion for mistrial only when  a partys chances of receiving a fair trial have been irreparably damaged   [citation], that is, if it is apprised of prejudice that it judges incurable by admonition or instruction [citation]. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] Accordingly, we review a trial courts ruling on a motion for mistrial for abuse of discretion. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 573.)

A prospective juror commented on the perceived injustice of holding the heirs liable, as quoted above. Rather than promptly cut off this line of commentary and admonish the jury panel to disregard the comments, the trial court allowed the prospective juror to continue to expound on the theme. The court lent credence to the notion that the heirs were somehow involved in the litigation and would be responsible to pay any damages by stating that the heirs were not asking for anything and that they were simply saying we shouldnt have to pay, were not evenI think theyre saying were not even responsible for the accident; it wasnt Ms. Brasels fault. After the court denied Plaintiffs motion for a mistrial, other prospective jurors also commented on the perceived injustice of holding the heirs liable or paying damages from the estates assets. Although the prospective jurors who made these comments were excused from the panel, others who overheard them were not excused and served on the jury.

We conclude that it is exceedingly likely that the effect of these pervasive comments was to cause the prospective jurors to believe that any award of damages would be payable by the estate, or by the heirs personally, and to engender a considerable degree of sympathy for the innocent heirs. The comments were allowed to continue to such an extentand were seemingly corroborated by the trial courts own commentsthat the only effective remedy would have been to excuse the entire jury panel. In this context, the trial courts admonition (quoted ante) that the jury could not consider who would actually pay any award of damages was plainly inadequate. We conclude that the denial of plaintiffs motion for a mistrial was error and that a new trial is required. The prejudicial effect of the comments was not confined to only liability or damages but affected the entire trial, so a complete new trial is required.

In light of our conclusion, we need not decide whether the comments regarding the burden of proof and insurance required a mistrial. We also need not decide whether the award of damages is inadequate or whether the evidence supports the apportionment of fault. We will address other issues, however, that are likely to arise again on remand. (Code Civ. Proc.,  43.)

2. Exclusion of Evidence

a. Kowell

Plaintiff contends the court erred by granting defendants motion in limine precluding expert testimony by Kowell concerning plaintiffs neurological condition. Defendant argued that plaintiff could not call Kowell as a witness at trial because plaintiff had failed to designate him as an expert and because plaintiff could not satisfy the conditions of Code of Civil Procedure section 2034.310. The trial court stated that because plaintiff had not designated Kowell as an expert and his deposition had not been taken, plaintiff could not call him as a witness at trial.

Code of Civil Procedure section 2034.300 states:

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

Code of Civil Procedure section 2034.310 states:

A party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied:

(a) That expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section 2034.410).

(b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other partys expert witness, but may not include testimony that contradicts the opinion.

In our view, the admissibility of Kowells expert testimony depended first on whether plaintiffs failure to designate him as an expert in her exchange of expert witness information pursuant to Code of Civil Procedure section 2034.260 was unreasonable. We need not decide whether the trial court erred in this regard. Our reversal of the judgment for a new trial will result in automatically resetting the time limitations on discovery (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 250-251; Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1295-1296), so the parties will have an opportunity to designate expert witnesses anew and take depositions as appropriate.

b. Insurance Company Employees

Plaintiff contends the court erred by granting defendants motion in limine precluding testimony by insurance company employees. Plaintiff sought to call employees of the defending insurance company to testify as to facts stated in verified discovery responses. She argues on appeal that she was entitled to test their knowledge at trial. Plaintiff did not explain what personal knowledge she believed the insurance company employees had or explain the relevance of that information. We conclude that the court acted within its discretion in granting the motion in limine. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493.)

3. The Admission of the Decedents Hearsay Statement
Was Prejudicial Error

Evidence of an out-of-court statement offered to prove the truth of the matter stated is hearsay. (Evid. Code, 1200, subd. (a).) Hearsay is inadmissible unless an exception to the hearsay rule applies. (Id., subd. (b).) Evidence Code section 1261 establishes an exception to the hearsay rule in an action on a claim against the declarants estate, if certain conditions are satisfied:

(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear.

(b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness. (Evid. Code,  1261.)

Evidence Code section 1261 was enacted in 1965 (Stats. 1965, ch. 299,  2, p. 1342) at the time of the repeal of the dead man statute (former Code Civ. Proc.,  1880, subd. (3)). The dead man statute prohibited parties to an action on a claim or demand against a decedents estate from testifying to any fact occurring before the decedents death. (See Cal. Law Revision Com. com., 29B Wests Ann. Evid. C. (1995 ed.) foll.  1261, p. 308.) The dead man statute was intended to prevent the perceived unfairness that could result from allowing the survivor to speak when the decedent could not. (Ibid.) The California Law Revision Commission recommended the repeal of the dead man statute and, to avoid tipping the scales in favor of the survivor, proposed Evidence Code section 1261 as an exception to the hearsay rule to allow evidence of a statement by the decedent if certain safeguards were met. (Id. at pp. 308-309.)

Plaintiff substituted the decedents estate for the individual decedent pursuant to Probate Code section 550 et seq. [A]n action to establish the decedents liability for which the decedent was protected by insurance may be commenced or continued against the decedents estate without the need to join as a party the decedents personal representative. (Prob. Code,  550, subd. (a).) An action under this chapter shall name as the defendant, Estate of (name of decedent), Deceased. Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative. (Prob. Code,  552, subd. (a).) The damages sought in such an action must be limited to the amount of insurance coverage, except in circumstances that are not present here. (Prob. Code,  554, subd. (a).)

Plaintiff seeks to establish the decedents liability and named the decedents estate as the defendant solely for the purpose of recovering insurance proceeds without the need to join the decedents personal representative as a party. Contrary to plaintiffs argument, we conclude that this action to establish the decedents liability covered by insurance is an action upon a claim or demand against the estate of the declarant within the meaning of Evidence Code section 1261, subdivision (a).

The trustworthiness of a hearsay statement is a preliminary fact to be determined by the trial court. (See People v. Cudjo (1993) 6 Cal.4th 585, 608; Ass. Com. on Judiciary com., 29B Wests Ann. Evid. Code (1995 ed.) foll.  405, p. 376.) The trial court here conducted a hearing out of the presence of the jury pursuant to Evidence Code section 402 in which it heard testimony by the investigating police officer and determined that the hearsay statement by Brasel was trustworthy.  The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.  (People v. Edwards (1991) 54 Cal.3d 787, 819-820.)

We review the courts finding regarding the trustworthiness of a hearsay statement for abuse of discretion. (People v. Edwards, supra, 54 Cal.3d at p. 820.) An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the courts decision exceeds the bounds of reason and results in a miscarriage of justice. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478‑479; Denham v. Superior Court (1970) 2 Cal.3d 557, 566; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.)

Brasel made the exculpatory statement to a uniformed police officer who was questioning her regarding a serious collision in which her car had struck the side of another vehicle. She clearly had a motive to be less than truthful. Moreover, her statement that the other car hit her was directly contrary to the physical evidence, as shown in photographs taken at the scene and expert testimony, and strongly suggested that at least that part of her statement was false. Viewing the circumstances as a whole, we conclude that the trial court could not reasonably conclude that Brasels statement was trustworthy. Instead, the evidence compels the conclusion that the statement lacked trustworthiness and therefore should have been excluded as inadmissible hearsay under Evidence Code sections 1200 and 1261, subdivision (b).

4. Plaintiff Has Shown No Attorney Misconduct

Defendants counsel stated in closing argument that the jury should consider plaintiffs absence from the trial when she was not testifying as a reflection of her regard for the proceedings.[1] Plaintiffs counsel objected. The trial court overruled the objection.

Plaintiff contends the statements were misconduct because they suggested that plaintiff was legally required to be present at trial and because the statements constituted a personal attack on plaintiffs character and motives. We disagree. Counsel did not state that plaintiff was required to be present at trial, but only that the jury should consider her absence as it reflected her attitude toward the proceedings. We do not regard that statement as an impermissible personal attack or an appeal to passion or prejudice that would require either an admonition or a new trial. (See Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 351-352.) The trial court properly overruled the objection.

5. The Refusal of Plaintiffs Proposed Instruction on Damages for
Home Health Care Services Was Prejudicial Error

a. Proposed Instruction and the Courts Ruling

Plaintiff requested a special instruction that if she was entitled to recover damages for medical expenses, she also was entitled to recover the reasonable cost of reasonably necessary medical care and home health care services provided by family members, even if those services were rendered with no expectation of payment. The proposed instruction stated:

If you decide to award JASMINE JACKSON damages for medical expenses, JASMINE JACKSON is entitled to recover the reasonable cost of reasonably necessary medical care and services rendered by members of her family even though the services were rendered without an agreement or expectation of payment. In addition to medical care provided by hospitals and other providers, medical care includes, but is not limited to, services such as therapyoccupational, physical and speechand home health care services. Whether the family member providing these services is specially trained to provide these services is not relevant.

The trial court stated that the proposed instruction was not needed with respect to services provided by Kimberly Odain because she was a licensed occupational therapist. Plaintiffs counsel responded that plaintiff was seeking damages not only for those services, but also for 24-hour care provided by plaintiffs mother and aunt. Counsel stated that he would request judicial notice of the minimum wage at the time. The court concluded:

There is evidence from Judy Jackson that she got family members, including her sister, that moved in and other cousins that all helped to provide 24-hour care. Even if you geteven if I take judicial notice of the minimum wage at that point in time, Im not going to give it. I dont think there is enough evidence.

We dont know really who did what. The only statement I have is Judy Jackson says the whole family kind of pulled together, and we gave her 24/7 care. I dont know what they did.

The court stated further:

Thats my ruling. Im not going to give that instruction for that purpose because I dont think you have any evidence to really show what they did, you know, caregiving. The only thing we have is Judy Jackson saying I had my sister move in so that we could basically have 24/7 care. I just dont think thats enough.

b. The Refusal of the Proposed Instruction Was Error

A plaintiff is entitled to recover economic damages for the reasonable value of attendant care or nursing services that are required as a result of the defendants tortious conduct, even if the services are rendered by the plaintiffs family members with no expectation of payment. (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 644‑645; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 661.) In those circumstances, the amount of damages is determined by the prevailing market rate for persons performing those services. (Hanif, supra, at pp. 645-646.)

A party is entitled to an instruction on each theory of the case that is supported by the pleadings and substantial evidence if the party requests a proper instruction. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule); Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 684.) The trial court did not conclude, and defendant does not argue, that the proposed instruction was inaccurate or misleading, or that other instructions adequately covered the point, but only that there was insufficient evidence to support the proposed instruction. We independently determine whether there was substantial evidence to support the proposed instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)

Kimberly Odain, an occupational therapist and plaintiffs cousin, testified that she and her husband provided occupational and physical therapy services to plaintiff and that those services were ongoing at the time of trial. She acknowledged that she did not bill plaintiff for those services until shortly before trial, when she sent a bill to plaintiffs attorney, and that plaintiff never paid for the services. Her bill for past services totaled $17,050, and she estimated that plaintiff would require over $500,000 for future occupational, physical, and speech therapy.

Plaintiff resided with her mother, Judy Jackson, after leaving the rehabilitation center and until the time of trial. Her mother testified that plaintiff required assistance feeding herself and that she was unable to cook for herself. Her mother stated that plaintiff sometimes cried uncontrollably or expressed anxiety and locked the door to her room. Her mother stated that plaintiffs aunt had moved in with them in order to attend to plaintiffs needs, and continued to do so, and that some family member was present in the home 24 hours a day to care for plaintiff.

In our view, this evidence was sufficient to support an award of damages for past and future home health care or attendant care. The credibility of the witnesses was a question of fact for the jury. Uncertainty as to the precise amount of damages would not prevent the jury from applying some reasonable basis of computation so as to determine with reasonable certainty an appropriate amount of damages. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873-874.)

c. The Error Was Prejudicial

Instructional error in a civil case is prejudicial where it seems probable that the error prejudicially affected the verdict. [Citations.] Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a partys ability to place his full case before the jury.

But the analysis cannot stop there. Actual prejudice must be assessed in the context of the individual trial record. . . .  Thus, when deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled. [Fn. omitted.] (Soule, supra, 8 Cal.4th at pp. 580-581.)

As discussed above, plaintiff presented evidence of home health care services provided by her relatives, including occupational and physical therapy and attendant care, for which the jury, if properly instructed, could have awarded damages. That evidence was uncontradicted, although defendants counsel argued that Kimberly Odain was not a credible witness because she had a financial interest in any award for therapy services.

The court instructed the jury that any damages should include the reasonable cost of reasonably necessary medical care received in the past or that she was reasonably certain to need in the future.

Plaintiffs counsel in closing argument requested damages for past medical expenses consisting of $182,269 for hospitalization and rehabilitation center costs, as stipulated, and $17,050 for past occupational and physical therapy. He also requested $500,000 for future medical expenses, including occupational, physical, and speech therapy. He argued that those expenses were reasonable and necessary and that plaintiff should not be penalized for the fact that Kimberly Odain was a relative. Defendants counsel argued that Odain was financially interested and therefore not credible and that she failed to present any contemporaneous record of her services or a patient chart. He also argued that the projected need for future therapy was exaggerated, that no physician had requested physical therapy, and that plaintiff had received no speech therapy to date.

There is no indication that the jury failed to understand that its determination of the amount of past and future medical expenses should include the reasonable cost of occupational and physical therapy provided in the past or reasonably certain to be needed in the future. The jury found that plaintiff had suffered $185,269 in past medical expenses and that she would suffer no future medical expenses. The jurys finding as to the amount of past medical expenses exceeded the stipulated hospitalization and rehabilitation center costs by $3,000. In light of the evidence, the instructions, and the argument of counsel, it appears that the jury found that the reasonable value of the occupational and physical therapy services provided by Kimberly Odain and her husband was $3,000, and that plaintiff had failed to establish a need for future therapy. Accordingly, we conclude that the refusal of the proposed instruction did not prevent the jury from awarding damages for past or future occupational and physical therapy. The instructional error therefore was not prejudicial with respect to that item of damages.

In contrast, the instruction on damages for past and future medical expenses did not encompass attendant care services, and no other damages instruction encompassed those services. The courts refusal of the proposed instruction made it clear that plaintiff could not seek those damages, and neither counsel mentioned attendant care services in closing argument. There is no indication that any part of the verdict was intended to compensate plaintiff for past or future attendant care services. We conclude that the natural and probable effect of the refusal of the proposed instruction was to preclude an award for that item of damages. In light of the evidence presented, we conclude that it is reasonably probable that the jury would have awarded some amount for past and future attendant care services. A new trial is warranted to determine those amounts. In any event, a complete new trial is required for another reason, as we have stated.

DISPOSITION

The judgment is reversed with directions to the trial court to conduct further proceedings consistent with the views expressed in this opinion. Plaintiff is entitled to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Defendants counsel stated: The first issue is that, as you already know, the plaintiff has not been present throughout this case. The only time that she testified and appeared was the day that she gave her testimony in this case, which was about one and a half hours. There is no legal requirement that a plaintiff who is seeking millions of dollars of damages be present. However, as part of the overall totality of the circumstances, in weighing the attitude of the plaintiff towards the proceedings and weighing what exactly is the message thats being sent when she does not appear at her own case, certainly is one of the items where the dot just does not connect. . . .