Gomez v. City of
Angeles
Filed 5/17/13 Gomez v. City of Los Angeles CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
CARLOS GOMEZ,
Plaintiff and Appellant,
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
B238765
(Los Angeles
County
Super. Ct.
No. BC442777)
APPEAL from
a judgment of the Superior Court
of
County.
Barbara Scheper, Judge.
Affirmed in part, reversed in part, and remanded.
Tamborelli
Law Group, John V. Tamborelli for Plaintiff and Appellant.
Carmen A. Trutanich,
City Attorney, Amy Jo Field, Deputy City Attorney for Defendants and
Respondents.
_______________
A jury awarded plaintiff Carlos Raymond Gomez $180,000,
the stipulated amount of his past medical expenses, in this
Angeles (the "City") based on an automobile
accident involving plaintiff and an LAPD cruiser. No damages were awarded, however, for
plaintiff's past pain and suffering, or for future
pain and suffering. Plaintiff relies on
a line of cases including Dodson v. J.
Pacific, Inc. (2007) 154 Cal.App.4th 931 to argue that, in a case such as
this where the plaintiff incurs substantial medical expenses as a result of the
defendant's negligence, the jury's failure to award any damages for pain and
suffering renders the judgment inadequate as a matter of law. We agree, and so reverse the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
Plaintiff's
car was hit by an LAPD cruiser as it ran a red light in August of 2008. Weeks before the automobile accident,
plaintiff had suffered a fall in Cancun, Mexico.
The parties
stipulated that, from August 19, 2008
until the date of trial, plaintiff had paid $180,000 for medical care and
treatment, which included a craniotomy, blood patches, and the insertion of
needles, screws and plates in his head.
Defendant did not controvert plaintiff's contention that he experienced
severe pain both before and after the surgery.
Plaintiff maintained that all of the medical expenses were a result of
the car accident, while the City argued that the treatments were predominantly
due to a pre-existing condition caused by his fall in Cancun.
As noted
above, the jury awarded plaintiff all of his stipulated past medical expenses,
but returned a special verdict awarding no damages for future medical expenses
or past or future pain and suffering.
Plaintiff moved for a new trial, arguing that the judgment was
inadequate as a matter of law because it awarded no damages for past and future
pain and suffering and for future medical expenses. At the hearing on the motion, the trial court
first announced its tentative decision:
"[I]t is clear from the jury's verdict that they were holding the
City responsible for the harm caused to [plaintiff] as a result of the
accident, which the City stipulated they were at fault for. [¶] . . . [T]he
evidence was also clear that [plaintiff] indeed did suffer pain and suffering
as a result of the accident from the surgery and thereafter." On the issue of future medical expenses, the
court cited the evidence that plaintiff's doctor was optimistic that no
additional surgery would be necessary, and stated that "the jury was within
its purview to determine that either future actual medical expenses were too
speculative or they could not determine they were going to be reasonable or
necessary."
At the
hearing on the motion for new trial, the City stated: "The primary issue in this entire trial
was not did the defendant undergo a craniotomy, it was to what degree did the
City's actions – was the City's negligence a cause of the craniotomy or was the
plaintiff by his pre-existing condition just delaying the inevitable." The City further argued that the fact that
the jury awarded plaintiff all of his past medical expenses did not mean that
the jury rejected the City's position that the surgery was due to plaintiff's
pre-existing condition and not the result of the City's negligence. The City Attorney argued at the hearing: "We think that the jury by providing the
$180,000 was basically, for lack of a better phrase, throwing the plaintiff a
bone to say, 'Listen, we don't think it is connected. However, we think it might be fair to award
an amount of $180,000 so he is not sitting on these bills after
trial.'"
At the
conclusion of the hearing, the trial court stated, "The court will adopt
its tentative ruling as the ruling of the court. So the ruling will be that the motion for new
trial is granted insofar as the issue of past non-economic loss only. [¶] In
the alternative, the court will deny the motion for new trial on condition that
the defendant accept an additur of $375,000 for past pain and suffering only. The verdict will stand and the motion will be
denied as to future both economic and non-economic losses." The court then scheduled a hearing for
January 20, 2012 to learn whether the City would accept the additur, and if not,
to schedule the new trial.
At the
January 20 hearing, counsel acknowledged that the trial court's ruling on
plaintiff's motion for new trial was not memorialized in the minute order of
the prior hearing, and agreed that the court had lost jurisdiction to rule on
the motion resulting in denial of the motion by operation of law.
tied, it urged the City Attorney to resolve the matter without requiring
plaintiff to file an appeal. The court
addressed the City Attorney as follows:
"I think you will be back here, and I am sorry to say I feel this
smacks a bit of gamesmanship. I just
don't know if this is a good use of the city's time and money to do – spend
money on an appeal when I think that the jury's result in this is reversible
for the absence of any damages for pain and suffering."
Plaintiff
appeals the judgment, contending that it is inadequate as a matter of law.
DISCUSSION
As the
trial court recognized, a long line of California cases have held that a
verdict which awards the plaintiff economic damages for the extensive medical
treatment required due to the defendant's negligence but which awards no, or
nominal, damages for pain and suffering is inadequate as a
580, 585.) The principle has been
recently explicated in Dodson v. J.
Pacific, Inc., supra, 154 Cal.App.4th 931 (Dodson).
In
the defendant's employees were loading large pieces of scrap metal onto his
truck. The plaintiff did not immediately
seek medical attention, but soon had x-rays taken and received heat
treatments. He continued to be in pain,
and fell on two subsequent occasions.
After the latter fall, the plaintiff underwent tests which revealed that
he had arthritis in the neck, a ruptured disk, a compressed and bruised spinal
cord, among other things. Surgery was
performed to remove the herniated disk and arthritic joints, and a metallic
plate was inserted. Thereafter, the
plaintiff experienced substantial pain in his
a loss of equilibrium, requiring him to use a cane to walk.
In the
ensuing lawsuit, the plaintiff's treating physician testified to his opinion
that the original accident caused a spinal cord injury which resulted in
weakness in the plaintiff's limbs, which weakness led to his subsequent
falls. The defendant's experts opined
that the degenerative state of the plaintiff's spinal cord was due to constant
rubbing, not to a single trauma. They
refuted the plaintiff's evidence that the accident caused an injury to the
spinal cord by noting that "if it had been an acute process on [the date
of the accident], it would have been associated with very significant neck
pain" requiring immediate medical intervention.
The
plaintiff sought economic damages consisting of a hospital bill for the surgery
of $12,101; the surgeon's bill of $1,800; a paramedic bill of $457; and over
$10,000 in bills for physical therapy.
The jury
returned a special verdict finding that the defendant's negligence caused the
plaintiff's injury, and calculated his economic damages to be $16,679, and his
non-economic damages at zero. The jury
also found that the plaintiff's negligence contributed to his injuries, and
awarded him damages of $8,339.50, or 50 percent of his economic damages.
The plaintiff
sought a new trial on the sole issue of non-economic damages or, in the
alternative, an additur in the amount of $150,000. The trial court denied the motion, which
ruling was reversed on appeal to our colleagues in Division Eight of this
District Court of Appeal.
The
noting the many cases holding that jury awards which fail to compensate for
pain and suffering are inadequate as a matter
of law. (Dodson, supra, at p. 936,
citing Haskins v. Holmes, supra, 252
Cal.App.2d at pp. 585-586 [award insufficient where plaintiff sustained severe
head injuries necessarily requiring surgery, but the trial judge awarded only
$88.63 in excess of the plaintiff's actual medical expenses, in effect
"allowing nothing for pain and suffering;" it was "patently
obvious" that "substantial pain, suffering, shock and
inconvenience" necessarily and inevitably accompanied the injuries];
pp. 328-329 [damage award inadequate where economic injuries alone exceeded the
jury award and the plaintiff, injured in a car accident, spent 24 days in the
hospital where she developed a painful infection and underwent an unsuccessful
surgery]; Buniger v. Buniger (1967) 249
Cal.App.2d 50, 53-54 [damage award was "such as to shock the conscience
and to require a reappraisal" where plaintiff underwent surgery and a
31-day hospital stay]; Gallentine v.
Richardson (1967) 248 Cal.App.2d 152, 153, 155 [denial of new trial an abuse
of discretion where jury awarded no damages for pain and suffering to injured
plaintiff who was hospitalized for three days, confined to bed at home for a
week and not fully healed for five to six months]; Bencich v. Market S. R. Co. (1937) 20 Cal.App.2d 518, 521-522
[verdict "grossly inadequate" where plaintiff suffered badly crushed foot, was hospitalized for six months, had
part of foot amputated, and had multiple skin grafts].) The court cautioned, however, that "an
award that does not account for pain and suffering is 'not necessarily
inadequate as a matter of law' (Haskins,
at p. 586), and that '[e]very case depends upon the facts involved' (
(1963) 212 Cal.App.2d 555, 558 (Miller)).")
The
from the foregoing opinions thus:
"Cases finding an award inadequate for failure to account for pain
and suffering 'involve[] situations where the right to recover was established
and . . . there was also proof that the medical expenses were
incurred because of defendant's negligent act.'
(Miller, supra, 212 Cal.App.2d
at p. 558.) In such situations,
clear that . . . a judgment for no more than the actual
medical expenses occasioned by the tort would be inadequate.' (Ibid.) On the other hand, a verdict may properly be
rendered for an amount less than or equal to medical expenses in cases where,
'even though liability be established, a jury may conclude that medical
expenses paid were not occasioned by the fault of the defendants.'" (Dodson,
supra, at p. 937.)
The City
contends that this is just such a case.
In the trial court, the City speculated that the award of plaintiff's
medical expenses was a gift.
name="_ftnref3" title="">[3] On appeal, the City argues that,
"[w]ithout a record, this Court must presume that the jury found that
Appellant's medical expenses were not occasioned by the fault of the City and
that the injuries Appellant suffered from the accident were minimal at
best." The argument lacks merit.
The jury
was instructed with CACI No. 3927 (Aggravation of Preexisting Condition or
Disability) as follows: "Carlos
Gomez is not entitled to damages for any physical or emotional condition that
he had before City of Los Angeles/Eric Williams's conduct occurred. However, if Carlos Gomez had a physical or
emotional condition that was made worse by City of Los Angeles/Eric Williams's
wrongful conduct, you must award damages that will reasonably and fairly
compensate him for the effect on that condition."
In the face
of the jury's determination that the City's negligence was a substantial factor
in causing harm to plaintiff, and awarding him all of his $180,000 in medical
expenses, the City's contention that "this Court must presume that the
jury found that Appellant's medical expenses were not occasioned by the fault
of the City and that the injuries Appellant suffered from the accident were
minimal at best" is curious, to say the least.
The
appellate record establishes that plaintiff incurred $180,000 in medical expenses. The record further demonstrates that the jury
determined that the City's negligence harmed the plaintiff, and that the
medical expenses which plaintiff incurred were the result of the City's
negligence, were reasonable, and were fair compensation for his economic
damages. Contrary to the City's
argument, we are not free to presume that the jury did not mean what it said,
or that it disregarded the instructions given by the court. (Hoyt
v. Southern Pac. Co. (1935) 6 Cal.App.2d 49, 53.)
The question
before us on this appeal is whether, applying the rule of Dodson and Miller, we can
determine that the judgment was inadequate as a matter of law.
both that the plaintiff established his right to recover from the City, and
that plaintiff's medical expenses were incurred as a result of the City's
negligence (Miller, supra, 212
Cal.App.2d at p. 558.) As
"[i]t is of course clear that . . . a judgment for no
more than the actual medical expenses occasioned by the tort would be
inadequate." (Ibid.)
While we
conclude that the judgment is inadequate for failure to award damages for past
pain and suffering, we cannot say the same with respect to the jury's failure
to award future economic and noneconomic damages. As the trial court explained during the
hearing on plaintiff's motion for new trial, the plaintiff's doctor was
optimistic that no additional surgery would be necessary, and stated that
"the jury was within its purview to determine that either future actual
medical expenses were too speculative or they could not determine they were
going to be reasonable or necessary."
We note as well that the holdings in Dodson
and its predecessors are limited to claims of damages for past pain and
suffering.
DISPOSITION
The
judgment is reversed to the extent that it awards no damages for plaintiff's
past pain and suffering; in all other respects, it is affirmed. The matter is remanded to the trial court for
a new trial to determine plaintiff's damages for past pain and suffering. The City is to bear the costs of appeal.
ARMSTRONG,
J.
I concur:
MOSK,
J.
TURNER,
P.J.
I
respectfully dissent.
Plaintiff,
Carlos Gomez, has failed to provide a complete record of the trial. According to the superior court docket, the
jury was sworn on October 12, 2102.
Trial was conducted on October 13, 14, 17, 18, 19, and 20. Partial transcripts of the some of the
testimony on October 13, 14, 17, and 18 have been provided. Those transcripts, which consist solely of
medical testimony, indicate other witnesses testified for both sides during the
trial. Throughout those exhibits are
liberal references to exhibits, none of which have been provided.
Defendants,
the City of Los Angeles and Eric Craig Williams, contend that the record is
insufficient to permit adequate appellate review. I agree.
In numerous situations, appellate courts have refused to reach the
merits of an appellant’s claims because no reporter’s transcript of a pertinent
proceeding or a suitable substitute was provided. (Walker
v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order];
Cal.3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of
Grodin, J.) [new trial motion hearing]; In
re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel
was waived and the minor consented to informal adjudication]
127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on an instruction
request]; Vo v. Las Virgenes Municipal
Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney
fees sought]; Estate of Fain (1999)
75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion
where trial transcript not provided]; Interinsurance
Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary
sanctions hearing]; Null v. City of Los
Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails
to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197
Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition];
Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction
hearing]; Rossiter v. Benoit (1979)
88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73
[transcript of argument to the jury]; Ehman
v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s
transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order
confirming arbitration award].) On this
ground alone, I would affirm the judgment in its entirety.
TURNER,
P.J.
Notice of Entry of Judgment, then "the power of the court to rule on a
motion for a new trial shall expire . . . 60 days after filing of the first notice of intention to
move for a new trial. If such motion is
not determined within said period of 60 days, . . . the effect shall be a
denial of the motion without further order of the court. A motion for a new trial is not determined
within the meaning of this section until an order ruling on the motion (1) is
entered in the permanent minutes of the court or (2) is signed by the judge and
filed with the clerk." (Code Civ.
Proc., § 660.) Here, plaintiff filed his
Notice of Intent to Move for New Trial on November 1, 2011. Thus, the 60-day period to rule on the motion
expired in early January 2012, approximately a week after the hearing on the
motion.
the judgment, but the denial of his motion for new trial, a non-appealable
order. The argument is frivolous. Plaintiff's notice of appeal states that he
"appeals from the following judgment or order in this case, which was entered
on November 22, 2011." Although the
box labeled "Judgment after jury trial" was not checked, plaintiff's
intention to appeal the judgment entered on the jury's verdict, that is, the
only judgment or order entered on November 22, 2011, is beyond debate.
