Samarkos v. Goddard
Filed 6/14/13 Samarkos v. Goddard CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ANDREA SAMARKOS,
Plaintiff and Respondent,
v.
THOMAS E. GODDARD,
Defendant and Appellant.
D060052
(Super. Ct.
No. 37-2009-00063736-CU-PA-EC)
APPEAL from
a judgment of the Superior Court
of
County, Eddie C. Sturgeon, Judge. Reversed.
Walters
& Caietti; Law Office of Cherie A. Enge and Cherie A. Enge for
Defendant and Appellant.
Boudreau
Williams, Jon R. Williams; Law Offices of George de la Flor and George L. de la
Flor for Plaintiff and Respondent.
Thomas E.
Goddard appeals the judgment entered on a jury verdict awarding Andrea Samarkos
compensatory and punitive damages for
personal injuries she sustained when Goddard, while drunk, drove his vehicle
into the rear end of Samarkos's stopped vehicle. Goddard attacks the judgment on grounds of
erroneous evidentiary rulings, instructional errors, and
counsel. We conclude two of the
challenged evidentiary rulings were prejudicially erroneous and therefore
reverse the judgment.
I
FACTUAL
BACKGROUND
While
Samarkos was in her vehicle stopped at an intersection, Goddard drove his
vehicle into the back of hers. Although
Samarkos was wearing her seatbelt, she "flew forward." When she recoiled, she felt "a burst or
a pop" in her lower back, and hit her head on the headrest. Samarkos also felt a "sensation just go
up [her] back and down [her] butt to [her] sides," as well as
"tightness" in her neck and shoulders.
Immediately after the collision,
Samarkos drove through the intersection and pulled over to the curb to summon
emergency assistance. An ambulance
arrived and transported Samarkos to a nearby hospital, where she was examined
briefly, given a prescription, and discharged with instructions to follow up
with her regular physician.
Samarkos's
physical condition worsened over the next few days. She experienced "immense pain where it felt
like somebody was stabbing [her] in [her] lower back." She also had "right shoulder tightness,
neck tightness, but that was secondary . . . to the
extreme . . . lower back pain."
During the two years following the
collision, Samarkos consulted numerous health care providers, who ran various
diagnostic tests and prescribed different treatments but were unable to cure
the constant, stabbing pain in her lower back.
Approximately two years after the collision, Samarkos had an episode of
"excruciating" pain in her back and right lower limb, which required
her "to crawl from the bathroom to [her] bed because the pain and the
discomfort [were] so bad." A
physician found a change in Samarkos's physical examination; and a radiological
study revealed a herniated intervertebral disc in the lumbosacral region, which
was pressing on her spinal nerves.
By the time
of trial, Samarkos still had chronic back pain, but stated "every day is
different." On some days, the pain
was so severe that she had to crawl from one room to another. The only pain-free day Samarkos recalled was
the day immediately following her receipt of an epidural injection.
As a result
of the back pain Samarkos has suffered since the collision, she has been
"limited in all daily activities."
She wakes up very stiff in the morning but gets more flexible as the day
goes on. Because Samarkos has such
difficulty leaning forward and bending in the morning, to save time getting
ready for work in the morning she washes her face and hair the prior evening,
when she is more flexible. Samarkos has
trouble standing for more than 10 minutes at a time; walking is also painful
for her; and sitting in a chair is even more difficult than walking. She also has difficulty getting into and out
of her car because she is "sore" and her "back hurts." Even such simple tasks as grocery shopping
can be "a challenge."
As a further result of her
constant, post-collision back pain, Samarkos's lifestyle has changed
significantly. Before the collision, she
was socially active. She took weekly
shopping trips with her mother, regularly dined out and traveled with family
and friends, and spent weekends with her boyfriend and his children. Samarkos was also physically active before
the collision. She walked daily and participated
in Pilates classes, and, as a result, was able to reduce her clothing size from
14 to 10 and her weight to 160 pounds.
After the collision, however, Samarkos no longer dates her boyfriend,
takes shopping trips with her mother, or dines out or travels with her
friends. She cannot exercise and has
gained 100 pounds. In sum, after the
collision Samarkos has "pretty much curtailed everything."
II
PROCEDURAL
BACKGROUND
Samarkos
sued Goddard for negligence to recover damages for the personal injuries she
sustained in the collision. Samarkos
also sought punitive damages based on Goddard's drunkenness at the time he
drove his vehicle into hers. (See
Cal.3d 890, 892 [operating motor vehicle while intoxicated may support award of
punitive damages if circumstances disclose conscious disregard of probable
dangerous consequences].)
The case
proceeded to a bifurcated jury trial. In
the first phase, Goddard admitted he was negligent and drunk when the collision
occurred. By special verdict, the jury
found Goddard's negligence was a substantial factor in causing harm to
Samarkos, and awarded her $53,118 for economic losses plus $116,000 for pain
and suffering, for a total of $169,118 in compensatory damages. The jury also found that by driving while
drunk Goddard had engaged in conduct with malice and oppression. In the second phase of the trial, the jury
awarded Samarkos $55,000 in punitive damages.
The trial court entered judgment in
favor of Samarkos and against Goddard for $224,118 in damages. It later awarded Samarkos costs of $14,712.
III
DISCUSSION
Goddard
challenges the judgment on several grounds:
(1) erroneous exclusion of video surveillance footage of Samarkos
performing daily activities; (2) erroneous admission of evidence of
Samarkos's financial condition; (3) erroneous exclusion of evidence of
fines paid by Goddard in a criminal case that arose out of the collision;
(4) misconduct by Samarkos's counsel during examination of witnesses and
closing argument; and (5) erroneous jury instructions regarding negligence
per se. As we shall explain, the first
two errors of which Goddard complains have merit and require reversal of the
judgment. We therefore need not, and do
not, address his other claims of error.
A. The Trial Court
Prejudicially Erred by Excluding Video Surveillance of Samarkos
Goddard's
primary claim of error on appeal is that the trial court erred by excluding
certain video surveillance footage showing Samarkos performing daily activities
without difficulty on 15 separate occasions over a three-year period. After setting forth relevant additional
background, we shall analyze this claim of error.
1.
Goddard
hired a private investigator to follow Samarkos and observe her activities over
a three-year period. The investigator
obtained video recordings of Samarkos on at least 15 separate occasions. The footage depicted Samarkos at different
times of day in various public locations performing the following
activities: entering and exiting her
car; stopping at and driving away from fast food restaurants; loading items
into, and unloading items from, her car; standing and chatting with a coworker
outside her car; pushing a shopping cart; carrying multiple packages; walking
along the sidewalk in a business area; and bending over to play with a dog or
to pick up something from the ground.
The entire video surveillance footage offered by Goddard runs for one
hour 28 minutes. When we reviewed the
video, however, we noticed footage from two days is included twice, and
elimination of this duplication reduces the total running time to approximately
one hour 20 minutes.
Samarkos
moved in limine to exclude all of the video surveillance evidence. Although the motion papers are not included
in the record, it appears from the transcript of the hearing on the motion that
Samarkos sought to exclude the video surveillance footage on the grounds it was
irrelevant (Evid. Code, § 350) or, alternatively, any probative value of
the evidence was substantially outweighed by the probability of undue
consumption of time, undue prejudice, confusion of issues, or misleading the
jury (id., § 352). Before the hearing on the motion, the trial
court tentatively ruled that it would grant the motion "with the exception
of true impeachment." At the
hearing, Goddard argued that "a video depiction of [Samarkos's] acts,
activities, body movements, [and] facial gestures are all relevant to the
claims that she's making for personal injuries in this lawsuit"; and that "the
video should come in not just [for] impeachment, but as true depictions of
[Samarkos's] abilities that are similar to those that she claims she cannot
do." The court postponed a final
ruling on the in limine motion to await Samarkos's testimony, after which it
would "make a determination whether it's relevant" and "look at
[Evidence Code section] 352 objections."
At a break
in the proceedings during the cross-examination of Samarkos, the trial court
indicated that, based on her testimony to that point, it was not inclined to
admit any of the video surveillance footage into evidence. The court again reserved a final ruling until
completion of Samarkos's testimony.
After
Samarkos finished testifying, the trial court conferred with counsel outside
the presence of the jury. The court
ruled that the video surveillance footage could only be used for "true
impeachment"; and after having "looked at it," the court
admitted footage from one day only.
The jury
subsequently viewed four minutes of video surveillance footage from one day,
which depicted Samarkos unloading several packages from her car, leaning
forward, bending over to play with a dog, and walking on sidewalk and
grass. In the footage, Samarkos did not
manifest any difficulty performing these tasks; and she did not grimace, wince,
or otherwise indicate she was in pain.
During
cross-examination of the private investigator who conducted the surveillance,
Samarkos's trial counsel asked the investigator whether he observed Samarkos on
at least 15 different days over three years.
The investigator responded:
"Yes, it was more than that, actually." When Goddard's trial counsel asked the
investigator on redirect examination whether he had "observed her on any
of the other 15 days, 15 plus days," Samarkos's trial counsel objected
that the question went beyond the scope of cross-examination. The trial court sustained the objection and
stated, "We're not going to go there."
During closing argument, Samarkos's
trial counsel reminded the jury that Goddard "showed [the jury] a day's
worth of film," even though the investigator had "followed [Samarkos]
around for 15 days over 2009, '10, '11."
Referring to only the one day of footage, he later argued "that is
all that they have. That is all that
they have."
2.
Goddard contends the trial court
prejudicially erred by excluding all of the video surveillance footage except
that from one day because the excluded footage was relevant to the issues of
the nature and extent of Samarkos's injuries and damages; and the video
presentation would not have consumed an inordinate amount of time, unduly
prejudiced Samarkos, confused the issues, or misled the jury. Samarkos counters that the court properly
excluded the bulk of the footage because it was cumulative of the portion shown
to the jury; the portion shown was sufficient to allow Goddard to argue that
Samarkos was not being truthful about the nature and extent of her injuries and
limitations; and admission of additional footage would have introduced collateral
matters confusing to the jury. We agree
with Goddard for the reasons discussed below.
a.
A trial court has broad discretion
in determining the relevancy of evidence and its admissibility under Evidence
Code section 352. (
377, 386; Smith v. Brown-Forman
Distillers Corp. (1987) 196 Cal.App.3d 503, 519-520; Milton v. Montgomery Ward & Co., Inc. (1973) 33 Cal.App.3d
133, 138.) "Rulings regarding
relevancy and Evidence Code section 352 are reviewed under an abuse of
discretion standard." (
643; accord, Smith, at
pp. 519-520.) This standard
"is 'deferential,' but it 'is not empty.'
[Citation.] '[I]t asks in
substance whether the ruling in question "falls outside the bounds of
reason" under the applicable law and the relevant facts [citations].' " (People
v. Giordano (2007) 42 Cal.4th 644, 663.)
Although a trial court's discretionary ruling regarding the
admissibility of evidence rarely is disturbed on appeal, reversal may be
required if the court applied the wrong legal standard (Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th
1210, 1218-1219), or if its ruling exceeds the bounds of reason under the
particular facts of the case (Burton v. Sanner
(2012) 207 Cal.App.4th 12, 18, 22 (Burton)). Applying these tests with due deference to
the trial judge who viewed the excluded video surveillance footage, we conclude
the challenged ruling was erroneous.
b.
To the
extent the trial court ruled the excluded video surveillance footage was
irrelevant because it was not "true impeachment," it erred in two
ways: (1) the footage did impeach
Samarkos's testimony, and (2) the court applied the wrong legal standard
by focusing exclusively on the impeachment value of the evidence. " 'Relevant evidence' means evidence,
credibility of a witness or hearsay
declarant, having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added.) Thus, evidence is relevant
credibility (Granville v. Parsons (1968)
259 Cal.App.2d 298, 304), but also if
it tends logically, naturally, or by reasonable inference to establish or
negate a material disputed fact (Grimshaw
v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 787). The excluded video surveillance footage
satisfied both of these standards for
relevancy.
The main issues disputed at trial
included the nature of Samarkos's injuries and the limitations they place on
her daily activities. Samarkos testified
that although "every day is different," she has constant back pain
that makes it difficult to walk, lean forward, bend over, and perform simple tasks
of daily living, such as grocery shopping.
The video surveillance footage directly contradicted this testimony by
depicting Samarkos performing some or all of these tasks without any trouble on
15 separate occasions over a three-year period.
Consequently, the footage was relevant not only because it impeached
Samarkos, but also because it constituted demonstrative evidence —
independent of her testimony — that tended to disprove her claims that she
is "limited in all daily activities" and has "pretty much
curtailed everything." (See Evid.
Code, § 210;
Cal.App.4th 436, 442 (Jones) [" 'Day in the Life' " videotape of
injured plaintiff was "relevant on the issue of damages" and
"highly probative of the extent of [her] injuries"].) Indeed, Samarkos acknowledged in her briefing
that the footage had probative value both
"to impeach Samarkos'[s] credibility about the nature and extent of her
injuries . . . , and
to support Goddard's theory that [she] was a mere malingerer."
surveillance footage was relevant, it was presumptively admissible. (See Evid. Code, § 351 ["Except as
otherwise provided by statute, all relevant evidence is admissible."];
Cal.App.2d 311, 314 [in personal injury action, trial court properly admitted
film showing plaintiff who claimed to be invalid driving in heavy traffic;
"shopping, walking, stooping and bending without assistance from
anyone"; and "carrying grocery bundles"].) The trial court therefore erred by excluding
the footage on the ground it was not "true impeachment" and, for that
reason, was irrelevant.
c. Evidence
Code Section 352
The trial
court also erred to the extent it relied on Evidence Code section 352 to
exclude all the video surveillance footage except four minutes obtained on one
day. Under section 352, a court
"may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice,
of confusing the issues, or of misleading the jury." For evidence properly to be excluded under
section 352, the record must affirmatively show that the trial court
weighed the probative value of the evidence against the probability its
admission would waste time, cause undue prejudice, confuse the issues, or
mislead the jury. (People v. O'Shell (2009) 172 Cal.App.4th 1296, 1309-1310;
Cal.App.4th 1666, 1674.) "This
requirement provides 'the appellate courts with the record necessary for
meaningful review' and 'ensure[s] that the ruling' is ' "the product of a mature and careful
reflection on the part of the judge." ' " (O'Shell,
at p. 1310; see also Andrews v.
City and County of San Francisco (1988) 205 Cal.App.3d 938, 947
[record must show trial court "exercise[d] its discretion in an informed
manner, as section 352 requires"].)
Here, although the trial court mentioned section 352 in its first
tentative ruling on Samarkos's motion in limine to exclude the video
surveillance footage and the parties argued whether the evidence was excludable
on that ground, the record "is unclear and confusing" as to whether the
court actually analyzed the various factors listed in the statute and concluded
they weighed in favor of exclusion. (
583.) "The failure of the court to
discharge its statutory duty to weigh for the record the probative value of this
evidence against its potential prejudice was error." (Ibid.) In any event, as we explain in detail below,
the footage could not have been properly excluded on the basis of
section 352 because "the probative value of the evidence here was
significant, while its prejudicial effect was minimal at best." (Wright,
at p. 583.)
In performing the balancing test
required by Evidence Code section 352, a trial court first assesses the
"probative value" of the evidence sought to be excluded. Here, the excluded video surveillance footage
had substantial probative value. As
objective depictions of Samarkos going about her daily life in real time on 15
separate occasions over the course of three years, the footage constituted some
of the best evidence of her physical limitations. (See, e.g., People v. Mattson (1990) 50 Cal.3d 826, 871 (Mattson) [photographs were "best evidence" of actual
conditions of victim's body]; Rodriguez
v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 663 (
body were relevant to issues of nature and extent of injuries and adequate
compensation].) In addition, the footage
"was highly probative of the extent of [Samarkos's] injuries and
graphically demonstrated her [limitations] in a manner oral testimony could not
convey. It also had substantial
probative value on the extent of [her] pain and suffering and was therefore
helpful to the jury in calculating appropriate damages." (Jones,
supra, 20 Cal.App.4th at
p. 442.)
Against the probative value of the
evidence, the trial court weighs the probability that admission of the evidence
sought to be excluded would take too much time or would create substantial
danger of undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352.) None of these countervailing factors applies
to this case.
Playing the excluded video
surveillance footage for the jury would not have "necessitate[d] undue
consumption of time." (Evid. Code,
§ 352.) Courts typically exclude
evidence on this ground "to preclude [a] cumulative and time-consuming
duplication of inquiry" (Vossler v.
Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 960), or to prevent
the case from being sidetracked on a collateral matter when the probative value
of the evidence is low (see, e.g., People
v. Lightsey (2012) 54 Cal.4th 668, 714; Notrica
v. State Comp. Ins. Fund (1999) 70 Cal.App.4th 911, 950).
repetitive in that it shows Samarkos doing some of the same things depicted in
the footage played for the jury, the
excluded footage shows her on different days, at different times of day, and
also doing other things. In light of
Samarkos's claim that her pain and mobility varied from day to day and also
throughout the course of any given day, it was important for the jury to see
her going about her daily life on multiple days and at different times of
day. The excluded footage therefore was
not, as Samarkos erroneously contends, merely "cumulative." (See People
v. Filson (1994) 22 Cal.App.4th 1841, 1850 [evidence is cumulative only if
"other evidence on the point at issue has already been
introduced"].)
Nor was the video surveillance
footage unduly lengthy. Removal of the
duplicative two days reduces the total running time to one hour 20
minutes — a fraction of the time taken for testimony from Samarkos, her
mother, coworkers, friends, and health care providers about her injuries and
limitations. Even if the trial court
considered one hour and 20 minutes too much time to devote to the video
surveillance footage, the court could have shortened Goddard's presentation
further. Indeed, Goddard asserts in his
briefing that he offered to limit his presentation at trial to 27 minutes
of footage from five different days.
That apparently would have been sufficient for Goddard's purposes and
would not have been unduly time-consuming.
Finally, and most importantly, the
excluded footage bore directly on one of the main issues in dispute at trial,
namely, the nature of Samarkos's injuries and the limitations they place on her
everyday activities. " 'Presentation of evidence
at the heart of the defense would not have represented an "undue"
consumption of time.' " (People
v. Minifie (1996) 13 Cal.4th 1055, 1070; accord, O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59
Cal.App.4th 563, 576 (O'Mary).)
There also was no likelihood that
showing the jury more than four minutes of the video surveillance would have
"create[d] substantial danger of undue prejudice." (Evid. Code, § 352.) Section 352 uses the word
"prejudice" in its etymological sense of prejudging a person or cause
based on extraneous factors. (
998, 1009.) "Undue prejudice under
section 352 occurs when the jury is emotionally inflamed against a party
without regard to the issues in the case."
(Smalley v. Baty (2005) 128
Cal.App.4th 977, 985.) Thus,
"evidence should be excluded as unduly prejudicial when it is of such
nature as to inflame the emotions of the jury, motivating them to use the
information, not to logically evaluate the point upon which it is relevant, but
to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is
unduly prejudicial because of the substantial likelihood the jury will use it
for an illegitimate purpose." (
491.) There was no risk of such
prejudice here because the excluded footage does not depict extraneous matter
or anything grotesque, violent, obscene, embarrassing, or otherwise
inflammatory. Rather, as Samarkos stated
in her briefing, it depicts her engaged in "innocuous conduct that
reflected daily living" — precisely the type of conduct she claimed
has been limited as a result of the collision.
Finally, playing the excluded video
surveillance footage would not have "create[d] substantial
danger . . . of confusing the issues, or of misleading the
jury." (Evid. Code, § 352.) The nature of Samarkos's injuries and the
associated limitations on her daily activities were among the key issues
disputed at trial. Those issues are not
complicated, and the excluded footage bears directly on them. (See, e.g., People v. Cudjo (1993) 6 Cal.4th 585, 609, 610 (
testimony due to danger of confusion of issues when testimony was "highly
material" to "primary defense" and "issue was already
there"]; People v. McAlpin (1991)
53 Cal.3d 1289, 1310, fn. 15 [same when excluded testimony "was
limited to the main issue in the case" and "would not have raised any
new question"]; O'Mary,
[abuse of discretion to exclude evidence that "went to the very heart of
the case"].)
On balance, then, the probative
value of the video surveillance footage that Goddard sought to introduce at
trial was not substantially outweighed by the danger of undue prejudice,
confusing the issues, misleading the jury, or undue time consumption. Therefore, the footage could not properly
have been excluded on the basis of Evidence Code section 352. (See Cudjo,
supra, 6 Cal.4th at p. 609
["Unless these dangers 'substantially outweigh' probative value, the
objection must be overruled."]; O'Mary,
supra, 59 Cal.App.4th at p. 574
[abuse of discretion to exclude highly probative evidence when there was little
risk of prejudice]; Jones,
["only where the photographs have little probative value, are cumulative
of other testimony and are calculated to inflame the jury, can an appellate
court conclude the discretion conferred upon the trial court pursuant to
Evidence Code section 352 should be exercised in favor of
exclusion"].)
d.
Having
concluded the trial court erred by excluding all but one day of the video
surveillance footage, we must determine whether that error was
prejudicial. We may not reverse a
judgment based on the erroneous exclusion of evidence unless the error
"resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; Evid.
Code, § 354.) Error in excluding
evidence constitutes a miscarriage of justice only if the appellant shows that
a different result would have been reasonably probable had the evidence been
admitted. (Burton, supra, 207
Cal.App.4th at p. 22; Winfred D.
v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1038 (
pp. 576-577.) Under this standard,
the trial court's exclusion of the bulk of the video surveillance footage
requires reversal.
At trial, the most vigorously
contested issues were the nature of Samarkos's injuries and the limitations
they place on her daily activities.
Goddard correctly asserts that some of "the best evidence of
[Samarkos's] actual injuries suffered as a result of the subject accident is
the videotape," which illustrates in a vivid and objective way the
limitations (or lack thereof) on her daily activities. (See Mattson,
supra, 50 Cal.3d at p. 871
[photographs were "best evidence" of actual conditions of victim's
body]; Jones, supra, 20 Cal.App.4th at p. 442 [videotape of injured
plaintiff "was highly probative of the extent of [her] injuries and
graphically demonstrated her [limitations] in a manner oral testimony could not
convey"].) Goddard also
legitimately complains that it was unfair to "limit [the video
presentation] to only one day," because Samarkos testified the severity of
her back pain and the degree of limitation on her mobility varied from day to
day. Having seen Samarkos easily
walking, lifting, bending, and otherwise moving about on only one day, the jury might well have concluded the private
investigator recorded her on a "good" day, and the video was not
truly representative of Samarkos's physical limitations. Indeed, Samarkos's counsel suggested that
conclusion during closing argument by reminding the jury that Goddard produced
footage from only one day, even though the investigator followed Samarkos on
more than 15 days over a three-year period; and then twice asserted, "That
is all that they have." Counsel of
course knew that was not all Goddard had.
Had the jurors in fact seen "all that they ha[d]" —
Samarkos walking, shopping, carrying packages, getting into and out of her car,
loading and unloading her car, and otherwise going about her business without
obvious pain or difficulty on 15
different days over a three-year period — there is a reasonable
probability the jury would have concluded she did not suffer the injuries or
limitations on her daily activities she claimed at trial. (Cf. Burton,
supra, 207 Cal.App.4th at p. 22
[error in admitting expert testimony was prejudicial when plaintiff's counsel
emphasized in closing argument that defendant called no expert].) The jury might also have concluded Samarkos
was not credible and discounted her testimony on other issues in the case as
well, causing it to reach a different verdict.
(Cf. O'Mary,
[erroneous exclusion of evidence was not harmless when evidence bore on issue
that was "the very core of the case" and affected credibility of key
witness on issue, and its admission "might have easily made a
difference"].)
In sum, we agree with Goddard that
the jury needed to see more than four minutes of surveillance footage from one
day "to be able to make a fair assessment of adequate compensation for [Samarkos's]
alleged injuries." (See
"helpful to the jury in calculating appropriate damages"];
injuries were properly admitted "to guide the jury in making a fair
assessment of adequate compensation for such injuries"].) The trial court's erroneous exclusion of all
of the remainder of the footage thus caused a miscarriage of justice that requires
reversal of the judgment. (Cal. Const.,
art. VI, § 13; Evid. Code, § 354; Winfred D., supra,
165 Cal.App.4th at p. 1040; O'Mary,
supra, 59 Cal.App.4th at
pp. 566-567, 585.)
B. The
Trial Court Prejudicially Erred by Admitting Testimony About a Loan Samarkos
Received from Her Mother
Goddard
also argues the trial court prejudicially erred by admitting evidence that
Samarkos received a loan from her mother to pay medical expenses. We again shall provide additional facts and
then analyze this contention.
1.
During the
direct examination of Samarkos's mother, Samarkos's counsel asked whether she
had to loan Samarkos money after the collision.
Goddard's counsel objected on relevancy grounds. The trial court overruled the objection. Samarkos's mother then testified she loaned
Samarkos $50,000 after the collision because Samarkos was not working the hours
or earning the bonuses she had in the past, and she had "a lot of medical
expenses."
Samarkos's
trial counsel brought up the loan again during redirect examination of
Samarkos's mother. The mother testified
she gave Samarkos the $50,000 "to just help her out because she had so
many medical expenses."
Samarkos
herself also gave testimony about the loan.
On direct examination, she testified that she needed to borrow money
from her parents because her "medical bills got [to be] too much for [her]
to handle." She further testified
that at no time before the collision that injured her back had she ever had to
borrow money from her parents, and borrowing the $50,000 after the collision
made her feel "like [she] was a little kid."
2.
Preliminarily,
we must address Samarkos's argument that Goddard has not preserved his claim of
error regarding the testimony about the loan.
Samarkos contends that Goddard did not (1) include in his opening
brief a citation to the record showing he made an objection that the testimony
should be excluded under Evidence Code section 352, or (2) seek an
instruction limiting the jury's use of the testimony. Our review of the record disclosed that
Goddard did not object to the testimony about the loan on the basis of
section 352, and we thus deem his claim of error forfeited to the extent
it relies on that statute. (See, e.g.,
Cal.App.4th 717, 726 [grounds for objection not asserted in trial court may not
be asserted on appeal].) Nevertheless,
Goddard did specifically object to that testimony on the ground it was
irrelevant, and his opening brief includes argument and authorities supporting
his claim of error on that basis.
Goddard thus preserved his claim of error to that extent; he did not
also have to seek a limiting instruction, notwithstanding Samarkos's
unsupported assertion to the contrary.
(See, e.g., People v. Partida (2005)
37 Cal.4th 428, 435 [grounds for objection asserted in trial court are
preserved for appeal]; Short v. Frink (1907)
151 Cal. 83, 87 ["Where the question upon its face shows that the
testimony called for is necessarily inadmissible, the rights of a party are
fully preserved by his objection to the proposed evidence, and his exception to
the ruling admitting the same."].)
Turning to
the merits, we conclude the trial court should have excluded as irrelevant the
testimony about the $50,000 loan Samarkos obtained from her mother. "No evidence is admissible except
relevant evidence." (Evid. Code,
§ 350.) "The general financial
condition of the plaintiff was immaterial and irrelevant to the question of
damages, or to any issue in the case."
(Johnston v. Beadle (1907) 6
Cal.App. 251, 253 (Johnston).) As our Supreme Court long ago explained:
Evidence of a plaintiff's poverty
"ha[s] no pertinent or competent bearing upon the extent of injury
suffered by plaintiff[], for which defendant could be held responsible, and its
only effect and inevitable tendency was undoubtedly to excite the sympathies of
the jury and improperly influence their finding upon
question of damages. Such evidence is
never admissible in a case of this character, for the very simple reason that
the extent of a defendant's responsibility for the results of his negligence is
not to be measured by the condition as to affluence or poverty of the injured
party at the time of suffering the injury, since that is a condition for which
the defendant is in no way responsible . . . ." (Green
v. Southern Pac. Co. (1898) 122 Cal. 563, 564-565; accord,
Wilbur v. Emergency Hospital Assn. (1915)
27 Cal.App. 751, 760.)
Thus, "[i]t seems to be the rule, supported by a long
line of decisions in this state and elsewhere, that evidence of the plaintiff's
poverty is inadmissible in an action to recover damages for personal
injuries." (Steinberger v. California Electric etc. Co. (1917) 176 Cal. 386, 389-390
(Steinberger); accord,
199 Cal. 562, 567.)
Ignoring
these controlling authorities and citing no others, Samarkos argues the
testimony concerning the loan was admissible because it (1) showed the
medical expenses she incurred as a result of the collision "had a tangible
financial impact upon her" and (2) "illuminated the 'anxiety'
element of her noneconomic damages resulting from Goddard's conduct." We disagree.
Although the need for a loan indicated the collision-related medical
expenses had an adverse financial effect on Samarkos, proof of such an effect
was irrelevant because she was entitled to recover those expenses as part of
her damages regardless of her ability to pay them. (See Hanif
v. Housing Authority (1988) 200 Cal.App.3d 635, 640 [person injured by tort
of another is entitled to recover reasonable medical expenses attributable to
tort]; Johnston, supra, 6 Cal.App. at
p. 253 [general financial condition of plaintiff is irrelevant to question
of damages].) The need for a loan to pay
medical expenses was also inadmissible as proof that Samarkos suffered anxiety
for which she should be awarded noneconomic damages. According to the California Supreme Court:
"To allow such evidence to go in
under the plea that it forms an element to be considered in weighing the worry
or other mental suffering occasioned to the plaintiff would be to open the door
to its admission in all cases of this kind.
Every person sustaining physical injuries will suffer mentally. If, under the guise of showing the extent of
such mental suffering, the plaintiff may show his poverty, and consequent
worry, he may on the same ground introduce in evidence a mass of circumstances
which in themselves would not be proper elements of damage because too remote
or speculative, bringing them in by the claim that he suffered increased worry
by brooding over these extraneous factors." (Steinberger,
supra, 176 Cal. at p. 391;
accord, Dillon v. Wallace (1957) 148
Cal.App.2d 447, 453-455.)
Thus, the testimony about the loan was not admissible for
either of the purposes identified by Samarkos.
Having
determined that the trial court erred by admitting the testimony about the
$50,000 loan Samarkos obtained from her mother, we must determine whether that
error "resulted in a miscarriage of justice" requiring reversal of
the judgment. (Cal. Const.,
art. VI, § 13; Evid. Code, § 353.) In a negligence action in which the trial
court erroneously admitted testimony that the plaintiff's decedent "was unable
to take certain treatments because of the fact that he had no money and that
everything he owned was mortgaged," our Supreme Court held:
"Where the element of sympathy enters
into a case, the difficulty is that it is as likely to result in the giving of
a verdict against the evidence of nonliability as it is to increase the verdict
where a liability exists. Sympathy
permeates the whole case and introduces an irrelevant factor which may result
not only in the giving of an excessive verdict but a verdict where none would
otherwise be given. It cannot be said,
we think, that evidence of poverty, particularly where that poverty has
apparently resulted from the efforts to meet obligations arising from an
illness resulting from the injury in suit, is not prejudicial. The cases in this state are unanimous in
holding the admission of such testimony prejudicial error sufficient to call
for a reversal of the case." (
Cal. 311, 321, 322; accord, Smellie v.
Southern Pac. Co. (1933) 128 Cal.App. 567, 577-578.)
We are bound by the Supreme
Court's holding (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455), and therefore conclude the
trial court's error in admitting the testimony about the loan requires reversal
of the judgment.
DISPOSITION
The judgment is reversed.
IRION, J.
WE CONCUR:
NARES,
Acting P. J.
McINTYRE, J.
trial court ultimately decided to exclude almost all of the footage because it
was irrelevant (Evid. Code, § 350), or because its probative value was
substantially outweighed by the probability that its admission would require an
undue amount of time, or would create substantial danger of undue prejudice,
confusing the issues, or misleading the jury (id., § 352). The
parties discuss both grounds in their briefing.
We therefore analyze both.
name="_ftn2" title="">[2] We reject Samarkos's unsupported assertion that the
excluded video surveillance footage had "an attenuated connection to [her]
claims, as most of it failed to depict specific activities Samarkos said she
could no longer pursue." Samarkos
claimed that as a result of the collision, she suffered chronic back pain, was
"limited in all daily activities," and "pretty much curtailed
everything." The excluded footage
depicted her standing, bending, stooping, walking, shopping, socializing, and
otherwise going about her daily business on multiple occasions without obvious
impairment. Although the footage did not
depict Samarkos while she was at the gym, shopping with her mother, out to
dinner with friends, on a date with a man, or on a vacation, the footage showed
she did not suffer the severe pain and mobility limitations that she claimed
prevented her from engaging in those specific activities.
