Saad v. Hatziris
Filed 4/2/13 Saad v. Hatziris CA4/3
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
>
RAMZY GIRGIS AWADA SAAD, Plaintiff and Respondent, v. JOHN HATZIRIS, Defendant and Appellant. | G046068 (Super. Ct. No. 30-2010-00353507) O P I N I O N |
Appeal from a judgment
of the Superior Court
of
County, Gregory Munoz, Judge.
Affirmed.
Hager Dowling Lim &
Slack, John V. Hager and Christine W. Chambers for Defendant and Appellant.
Law Offices of Gene J.
Goldsman, Gene J. Goldsman, Arik Shafir, and Fernando Brito, Jr., for Plaintiff
and Respondent.
John Hatziris (Hatziris)
appeals from a judgment awarding Ramzy Girgis Awada Saad (Saad) damages for
sustained during a low-speed traffic collision.
A jury found Hatziris’s negligent driving caused Saad’s physical
injuries and awarded $121,083 in damages for economic and noneconomic losses,
including $75,000 for future medical expenses.
After the trial court denied Hatziris’s motion for a new trial, Hatziris
filed this appeal, asserting the trial court erred by refusing to admit four
sub rosa videos depicting Saad’s activities on several days between October
2010 and June 2011. His contention lacks
merit, and we affirm the judgment.
I
On December 31, 2009, Hatziris’s car rear-ended
Saad’s car at the intersection of Center Drive
and Beach Boulevard in Huntington
Beach, California. Saad and Hatziris immediately proceeded to a
nearby parking lot, where they exchanged contact information, inspected the
damage to their vehicles, and attempted, although unsuccessfully, to have a
police report taken to document the accident.
During the exchange, which lasted approximately 30 minutes, Saad
separately told Hatziris, a 911 dispatcher, and a California Highway Patrol
officer that he did not need medical assistance. However, three and one-half months after the
accident, Saad filed a personal injury lawsuit against Hatziris, alleging he
suffered injuries during the low-speed collision that immediately caused him to
suffer from neck and back pain, persistent dizziness, a ringing in his ears,
and blurry vision.
At trial, Saad testified
the symptoms he experienced immediately following the accident persisted throughout
the rest of that day, so he went to the emergency room. Saad recalled he told the treating physician
assistant that he was suffering from a headache, a persistent ringing in his
ears, blurry vision, and pain in his neck and back. However, the physician assistant testified
Saad only complained of a headache and neck pain during his physical
examination.
After thoroughly
examining Saad, and reviewing a CT scan and X-rays of his neck and back, the
physician assistant determined Saad was not suffering from injuries that
required immediate medical attention and prescribed him pain relief
medications. The physician assistant
also instructed Saad to see his regular doctor in a couple of days.
Saad testified he
continued to suffer from headaches,
blurry vision, a persistent ringing in his ears, and pain in his back and
neck following his visit to the emergency room.
Within a few weeks of the accident, Saad sought further treatment for
his back and neck pain from an orthopedic surgeon, who prescribed physical
therapy and prescription medications to treat his symptoms. Saad stated this treatment relieved his back
pain but had no affect on his neck pain, which continued to get worse with
time. Saad also received treatment from
a neurologist he was
referred to by the orthopedic surgeon.
Saad recalled the treatment he received from the neurologist did not
relieve his symptoms and his headaches continued to get worse.
When five months of
physical therapy and prescription medications failed to relieve Saad’s
symptoms, the orthopedic
surgeon ordered an MRI of his neck.
The orthopedic surgeon testified the MRI revealed a herniated disc
between two neck vertebrae and the fairly recent development of bone
spurs. The orthopedic surgeon opined the
injuries were likely due to Saad having suffered an
vehicle accident, rather than being the results of a long-term degenerative
condition. The orthopedic surgeon also
asserted the only way to repair Saad’s neck injuries was to perform a surgical
procedure. Furthermore, she recommended
Saad have the surgery to repair his injuries and relieve his pain.
Saad testified he sought
additional medical opinions on whether he should undergo the surgical procedure
recommended by the orthopedic surgeon because he feared surgery; however, the
two additional opinions he received affirmed the orthopedic surgeon’s
recommendation. One of the additional
medical opinions he obtained was from a neurosurgeon, who testified on his
behalf during the trial. The
neurosurgeon agreed with the orthopedic surgeon’s conclusion that Saad’s
injuries originated from a recent trauma and were not the result of a long-term
degenerative condition. The neurosurgeon
also stated Saad’s neck injuries, and the pain he was experiencing because of
the injuries, would continue to get worse if he did not have the surgery. He estimated the surgery would cost
approximately $75,000. Additionally, the
neurosurgeon noted that, despite Saad’s injuries and the related high levels of
pain, Saad could still function and do many normal things with the assistance
of pain medications.
During direct
examination, Saad testified he was still experiencing headaches, a ringing in
his ears, severe neck pain, and numbness in his arms and hands. Saad also stated the pain interfered with his
day-to-day life by, among other things, preventing him from lifting heavy
objects, working full time, sleeping for more than a few hours at a time, and
participating in the recreational activities he used to enjoy.
On cross-examination, Saad
testified he complained of an extensive list of symptoms during his first visit
with his orthopedist.
name="_ftnref1" title="">[1] Saad recalled he told the neurosurgeon he
rated his neck pain “as a seven to eight on a scale of one to ten, ten being
the most severe.†Furthermore, Saad
stated his neck pain continued to persist, which led to: (1) pain when turning his neck from side to
side; (2) pain when holding a cell phone up to his ear; (3) difficulty pulling
and pushing with his hands; (4) difficulty getting in and out of his car; and
(5) pain when carrying things in his left hand, which sometimes resulted in him
dropping the objects he was carrying.
However, when Saad was subsequently questioned by his attorney, he
clarified he had “good days and bad days†with regard to the level of pain he
experienced and he sometimes did “something even though it causes [him] some
pain.â€
During cross examination
Saad also admitted he suffered injuries, including back injuries, during
previous accidents; however, Saad noted he had completely recovered from those
injuries before Hatziris rear-ended him.
Specifically, Saad recounted he was involved in two separate car
accidents in 2000, causing neck and shoulder injuries. Saad did not disclose this prior trauma to
the orthopedic surgeon or the neurosurgeon who both recommended he have surgery
and who both testified his injuries were the result of the more recent car
accident. Additionally, Saad admitted
he suffered a work-related back injury in 1990, and his physician recommended
surgery to repair that injury. Saad,
however, refused to undergo back surgery at that time, and he opined his back
eventually healed.
Hatziris countered
Saad’s testimony, and the testimony of Saad’s expert witnesses, with expert
testimony from a neurologist who examined Saad and a neuroradiologist who
examined the MRI taken of Saad’s neck.
The neurologist testified the injuries and pain Saad complained of were
“out of proportion†with the objective findings of the exam he performed on
Saad. He found “no objective evidence to
support a pinched nerve in his neck or back.â€
The neurologist also opined that due to all the inconsistencies between
Saad’s complaints and the objective evidence obtained during his examination,
he believed Saad was exaggerating his injuries and the level of pain he was
experiencing. The neurologist concluded
the injuries Saad suffered during the vehicle accident did not require future
care or a surgical procedure. And on
cross-examination,
the neurologist asserted the injuries depicted in the MRI of Saad’s neck were
the result of long-term degenerative changes.
Like the neurologist,
Hatziris’s expert neuroradiologist concluded the injuries to Saad’s neck were
the result of a long-term degenerative process, and not caused by a recent traumatic
event. However, because it was not his
area of expertise, the neuroradiologist offered no opinion on whether it was
necessary or advisable for Saad to undergo surgery.
On the final day of
trial, and after Saad had been excused as a witness, Hatziris’s attorney
presented four sub rosa videos to the court, asserting they were admissible
under Evidence Code section 780
name="_ftnref2" title="">[2]
to impeach Saad’s testimony. The sub
rosa videos were taken on October 28, 2010; October 29, 2010; November 17,
2010; November 23, 2010; January 6, 2011; June 15, 2011; and June 16,
2011. The footage depicted Saad walking
short distances, opening and closing a rolling driveway gate at his home,
driving his vehicle, smoking a cigarette, talking on his cell phone, squatting
to repair an ATM machine, and holding items in his left hand. During argument on the admissibility of the
videos, Hatziris’s attorney asserted the videos were admissible as evidence to
impeach Saad’s testimony about the extent of his injuries and the level of pain
he experienced as a result of those injuries.
After taking an hour to
view all four sub rosa videos, the court sustained Saad’s objection to their
admission, citing section 352. More
specifically, the court excluded the sub rosa videos because it found the
probative value of the videos was substantially outweighed by the likelihood
the presentation of the videos to the jury would necessitate an undue
consumption of time. The court
determined the videos did not depict “anything significant to impeach the
plaintiff’s testimony concerning his injuries and his disability,†and thus,
their presentation would be “a waste of time.â€
Furthermore, the court
agreed with Saad’s attorney that the videos had minimal probative value because
they would simply show the jury what it could already observe Saad doing in
court during the trial. Moreover, the
videos did not impeach Saad’s testimony because he had clarified he could still
do the things depicted in the videos while taking medications to limit his
pain.
The day after the jurors
began deliberations, they informed the court they believed they had reached an
insurmountable stalemate as to one of the questions in the instructions, i.e.,
whether Saad should be awarded future medical expenses. The foreperson reported seven jury members
were opposed to awarding any future medical expenses and five jury members were
in favor of awarding the expenses. The
court instructed the jurors to continue their deliberations and encouraged them
to do their best to arrive at a verdict.
After spending the rest
of the morning and a portion of the afternoon deliberating, the jury informed
the court it had reached a verdict in Saad’s favor and awarded him $11,083 for
his previously paid medical expenses, $75,000 for his future medical expenses,
and $35,000 for his past noneconomic loss.
Hatziris’s attorney requested the jury be polled, which revealed that,
ultimately, 10 members were in favor of awarding Saad damages for future
medical expenses and two members were opposed.
Following the jury’s
verdict, Hatziris filed a motion for a new trial, arguing the court’s exclusion
of the four sub rosa videos prevented him from receiving a fair trial. In response to Hatziris’s motion, the court stated: “In my 47 years of practicing [and] trying
cases, I’ve seen a number of sub rosa films.
This is probably the weakest one I’ve ever seen.†Furthermore, the court concluded the four
videos did not show “any impeachment whatsoever†and, because the videos
presented no new facts, there was “no point†in spending “40 to 55 minutesâ€
presenting the videos to the jurors before they began their deliberations. For those reasons, the court denied
Hatziris’s motion for a new trial.
II
Hatziris contends the
trial court abused its discretion under section 352 by excluding the four sub
rosa videos he attempted to admit under section 780. He asserts the videos impeach Saad’s
testimony about the extent of his injuries and his level of pain. He also asserts the court’s determination the
probative value of the videos was substantially outweighed by the probability
the presentation of the videos would have necessitated an undue consumption of
time exceeded the bounds of reason, and thus, the judgment should be vacated
and the court should be ordered to proceed with a new trial. We disagree.
Section 352 authorizes
the trial court to exclude relevant evidence if its probative value is
substantially outweighed by the probability that its admission will, among
other things, necessitate an undue consumption of time. “Under . . . section 352, the trial court
enjoys broad discretion in assessing
whether the probative value of particular evidence is outweighed by concerns of
undue prejudice, confusion or consumption
of time. [Citation.]†(People
v. Rodrigues (1994) 8 Cal.4th 1060, 1124, italics added.) Where, as here, a statute expressly vests a
trial court with a broad discretionary power, the “‘exercise of that wide
discretion must not be disturbed on appeal except
on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest
(People v. Gutierrez (2009) 45
Cal.4th 789, 828 (Gutierrez).) The trial court’s “‘discretion is only abused
where there is a clear showing [it] exceeded the bounds of reason, all of the
circumstances being considered.’†(
Farming Co. (2000) 77 Cal.App.4th 619, 640 (Lockyer).)
Applying this standard,
we find no abuse of discretion. The four
sub rosa videos present brief, shaky, and seemingly random segments of Saad
walking very slowly, sliding his driveway gate open and closed, holding a
folder, smoking a cigarette, performing his work as an ATM repairman, and
driving his vehicle. The video segments
do not evidence whether Saad is or is not experiencing pain or discomfort while
performing these activities, nor do the segments prove whether or not Saad actually
has a serious neck injury.
Importantly, the trial
record reveals Saad did not testify he cannot perform the activities depicted
in the videos. Rather, Saad testified he
could perform the activities depicted in the videos while taking pain relief medications
prescribed by his doctors. Furthermore,
the record reflects Saad clarified he has “good days and bad days†with regard
to the pain he experiences, and he sometimes performs certain activities even
though it causes him pain. Saad never
claimed he was unable to walk, open his gate, or smoke a cigarette. In fact, he testified he continues to take
walks around his neighborhood for exercise, often smokes cigarettes throughout
the day and night, regularly travels to doctors’ appointments, and continues to
work a few days a week as an ATM repairman.
He explained his job requires him to drive to ATM locations and to
sometimes hire an assistant to lift heavy machines for him.
The court took
approximately one hour to review the four sub rosa videos in their entirety,
and considered argument regarding their admissibility. The court reasonably concluded the videos had
minimal probative value because the jury could observe Saad performing the same
activities depicted in the video footage throughout the trial, and the videos
did not contradict Saad’s trial testimony regarding his injuries or the level
of pain he was experiencing.
In light of the court’s
reasonable determination the videos had minimal probative value, it was also
reasonable for the court to conclude the probative value of the videos was
substantially outweighed by the likelihood the presentation of the videos to
the jury would have necessitated an undue consumption of time. After carefully reviewing all the testimony
and evidence presented during the trial, it cannot be said the court’s decision
to exclude the videos under section 352 was “arbitrary, capricious or patently
absurd.†The ruling was well within the
“bounds of reason.†(See
640.)
On appeal, Hatziris
contends the court abused its discretion simply because the videos are
relevant, probative, and brief. He
misconstrues the discretionary authority section 352 vests in trial courts. As stated above, pursuant to section 352,
trial courts are authorized to exclude certain evidence that is otherwise
relevant and probative to shield the trial process and jury from evidence
likely to prejudice a party to the case, confuse the issues of the case,
mislead the jury, or consume an unnecessary amount of time.
Finally, citing
1055, 1070 (Minifie), Hatziris
contends the trial court’s exclusion of the four sub rosa videos under section
352 was an abuse of discretion because it stripped him of a fundamental portion
of his defense as to primary issues of the case, i.e., the extent of Saad’s
injuries and Saad’s truthfulness regarding his level of pain. In Minifie,
our Supreme Court reviewed an assault with a deadly weapon conviction. (Id.
at p. 1061.) Defendant shot his gun
multiple times at a man after the man punched him in the face. (Id.
at pp. 1060-1061.) Defendant argued the
trial court prevented him from presenting his claim of self-defense by
improperly excluding evidence victim was a close friend of a violent and
dangerous family that had repeatedly threatened to kill him. (Id.
at pp. 1061-1063.) Defendant also was
prevented from presenting evidence he was threatened and attacked by associates
of the family while incarcerated, and he traveled in secret to avoid being
attacked by the family. (
The trial court excluded
the evidence as inadmissible character evidence under section 1100. (Minifie,
supra, 13 Cal.4th at pp. 1062-1063.)
Additionally, the court ruled that if the evidence was admissible under section
1100, it would be excluded under section 352 as “substantially more prejudicial
than probative†because “an undue amount of time would be consumed identifying
the [violent family’s] friends and the group’s violent acts, and that such
evidence would tend to confuse the jury.â€
(Id. at p. 1063.)
The Supreme Court
reversed this ruling, holding “evidence of third party threats is admissible to
support a [criminal defendant’s] claim of self-defense if there is also
evidence from which the jury may find that the defendant reasonably associated
the victim with those threats.†(
1060.) With regard to the issue of
whether the evidence was properly excluded under section 352, the Supreme Court
held the trial court abused its discretion because the defendant should have
been afforded the opportunity “to argue that the perceptions of a reasonable
person in his position would have been colored by the [third parties’] threats
and their reputation for violence.†(
value of the evidence of third party threats and defendant’s state of mind when
he committed his crimes were not substantially outweighed by the considerations
of section 352, especially if defendant had reason to fear for his life. (Id.
at pp. 1070-1071.)
We find the
evidence as to primary issues of his case.
Hatziris’s attorney took full advantage of the opportunity to question
Saad about the extent of his injuries and the level of pain he claimed to
experience. Additionally, Hatziris
presented the testimony of two expert witnesses who provided medical opinions
about the extent of Saad’s injuries and his likely pain. Moreover, unlike the relevant and extremely
probative evidence excluded in Minifie,
the court reasonably concluded the four sub rosa videos had minimal probative
value because they did not serve to impeach Saad’s testimony regarding his injuries
or the level of pain he was experiencing.
In short, the court’s exclusion of the videos did not unduly prevent
Hatziris from presenting his defense.
For these reasons, we conclude that the court did not abuse its
discretion under section 352 by excluding the sub rosa video evidence.
III
The judgment is
affirmed. Respondents shall recover
their costs on appeal.
O’LEARY,
P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
name="_ftn1" title="">[1] Saad testified he told his
orthopedist that he suffered from:
“nausea,†“difficulty in concentration,†“mindless staring,†“sadness,â€
“blurry vision,†“disorientation,†“confusion,†“headaches,†“attention
problems,†“appetite change,†“dizziness,†“balance problems,†“difficulty
walking,†“being very tired,†“dozing during the day,†“personality change,â€
“can’t remember numbers,†“poor attention,†“difficulty learning new things,â€
“difficulty understanding and remembering,†“difficulty making decisions,â€
“slurred speech,†“depression,†“change in sexual functioning,†“hopelessness,â€
“reduced confidence,†“being impatient,†“frustration,†“wanting to be alone,â€
“hearing problems,†“change in sense of taste,†“change in sense of smell,â€
“difficulty with hand coordination,†“difficulty planning or organizing,â€
“easily distracted,†“social withdrawal,†“jaw pain,†“pain when chewing,†and
“numbness and tingling in [his] legs and feet.â€
name="_ftn2" title="">[2] All further statutory
references are to the Evidence Code.
