Cohen v. Barry
Filed 11/17/08 Cohen v. Barry CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
WAYNETTE L. COHEN, Plaintiff and Respondent, v. CELESTE B. BARRY, Defendant and Appellant. | B194300 (Los Angeles County Super. Ct. No. MC014425) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y. Jackson, Judge. Affirmed.
Veatch Carlson, Gilbert A. Garcia and Ted L. Travis for Defendant and Appellant.
Kuzyk Law and Robert Ryan for Plaintiff and Respondent.
____________________
Celeste B. Barry appeals from the judgment entered after a jury awarded Waynette L. Cohen $282,815 in Cohens personal injury action arising out of her automobile accident with Barry. Barry contends Cohens action is barred by an enforceable settlement agreement; the evidence is insufficient to support the damage award; the damage award is excessive; Cohens attorney committed prejudicial misconduct during the trial; and the court erred in denying, in part, her motion to tax costs. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Automobile Accident
In June 2002 Cohen, then 61 years old, was involved in an automobile accident with Barry when Barrys car, travelling between 30 and 40 miles per hour in the opposite direction, crossed the center lane divider and sideswiped Cohens car. Cohen suffered injuries to her shoulder and knees and various cuts and bruises.
2. The Trial
After Cohen filed this lawsuit, Barry admitted her negligence, but disputed causation and damages.
According to the evidence at trial, six weeks prior to the accident, Cohen had undergone a complete medical physical and was found by her physician to be in good health. She made no complaints at that time of any pain. Following the accident, she suffered pain to her neck and shoulder and her left knee. When the pain in her shoulder did not subside after several months, Dr. Kayvanfar, Cohens treating physician, performed surgery to repair a tear in the shoulders rotator cuff. During surgery, Kayvanfar determined the partial tear in the rotator cuff did not demand repair, but shaved some bone near the area to prevent a more substantial tear and facilitate her recovery. Kayvanfar testified the trauma to Cohens knee during the accident had accelerated her arthritis, causing her persistent and on-going problems with walking and necessitating future surgery.
One of Barrys defense experts, Dr. Robert Wilson, testified all of Cohens problems were consistent with normal degeneration caused by aging. According to Wilson, although Cohen may have suffered cuts and bruises and some swelling in the knee, any long-term problems suggested by Dr. Kayvanfar, including the need for arthroscopic surgery, were the result of normal aging, not the trauma from the accident. Dr. Stephen Rothman, a radiologist and expert witness for the defense, similarly testified Cohens magnetic resonance imaging (MRI) scans showed nothing but the normal wear and tear associated with aging.
In a special verdict identifying four separate components of damages, the jury found Barry liable to Cohen for past economic losses in the amount of $36,000; future economic losses in the amount of $30,000; past noneconomic loss, including physical pain, mental suffering, loss of enjoyment of life, fear, loss of sleep, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation and emotional distress in the amount of $122,001; and future noneconomic loss in the amount of $94,814.
3. The Bifurcated Court Trial on the Affirmative Defense of Settlement
In a pretrial motion in limine seeking to prevent the trial of the case, Barry argued Cohen had entered into an enforceable settlement agreement for $15,000, the limit of Barrys automobile insurance policy. The court agreed to hold a bifurcated court trial on that issue following the jurys verdict.
The evidence at the bifurcated proceeding following the jurys verdict established Cohens counsel had sent a letter to Barrys insurer on October 15, 2002 entitled Demand for Policy Limits, requesting that Barrys insurer tender an offer in the amount of the policy limits of all of your insureds applicable liability policies for our immediate consideration. On October 17, 2002 Barrys insurer, Farmers Insurance Group, responded, Per our settlement agreement, please find enclosed release forms and payment to conclude this matter. Neither Cohen nor her counsel signed the release. Several weeks later Cohens counsel responded it could not recommend settlement to Cohen until it had more information, including testimony from Barry at a deposition.
Barry argued the October 15, 2002 letter amounted to a settlement demand that was promptly accepted, thus precluding trial of the matter. The court, however, found the October 15, 2002 letter from Cohens counsel was not an offer of settlement, but a request for an offer. The court determined there was no enforceable settlement agreement.
The trial court denied Barrys motion for new trial based on claims of lack of substantial evidence to support the damage award, excessive damages and attorney misconduct. Barry filed a timely notice of appeal from the judgment.
DISCUSSION
1. The Trial Court Did Not Err in Concluding There Was No Enforceable Settlement Agreement
a. Governing law and standard of review
Mutual assent, an essential element of any contract (see Civ. Code, 1550, subd. 2, 1565, subd. 2), is manifested by an offer communicated to the offeree, who then communicates his or her acceptance to the offeror. (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 271.) Preliminary negotiation or an invitation to others to make an offer is not a legally operative offer. (City of Moorpark v. Moorpark Unified School Dist. (1991) 54 Cal.3d 921, 930-931 (Moorpark).) The determination of whether a particular communication constitutes an operative offer, rather than an inoperative step in the preliminary negotiation of a contract, depends upon all the surrounding circumstances. [Citation.] The objective manifestation of the partys assent ordinarily controls, and the pertinent inquiry is whether the individual to whom the communication was made had reason to believe that it was intended as an offer. (Donovan, at p. 271.)
Absent a factual dispute or conflict in extrinsic evidence, whether a communication constitutes a legally cognizable offer is a question of law subject to de novo review. (See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [contract interpretation question of law]; Lopez v. Charles Schwab & Co., Inc. (2004) 118 Cal.App.4th 1224, 1229 [absent conflicting extrinsic evidence, whether proposal constituted offer capable of contract formation was question of law reviewed de novo].)
b. The October 15, 2002 letter did not constitute an offer
Barry contends the court erred in concluding there was no enforceable settlement agreement, insisting the October 15, 2002 letter from Cohens counsel to her insurer constituted an offer that her insurer accepted when it tendered the full amount of the policy limits. Contrary to Barrys characterization, the October 15, 2002 letter did not demand settlement of the case by a tender of the policy limits. Rather, the letter requested that Barrys insurer tender an offer for Cohens consideration, a request apparently based, at least in part, on Cohens lack of information concerning the extent of Barrys insurance coverage. Nothing in the language of the letter reasonably justif[ied] an understanding by Barrys insurer that its assent would conclude the bargain and limit Cohens claims to the $15,000 policy limits of Barrys insurance policy. (Moorpark, supra, 54 Cal.3d at p. 930 [[d]istricts notice informing other public agencies that it proposes to offer for sale, lease or exchange all or a portion of the [site] at fair market value manifests a willingness to enter into a bargain, but it does not do so in a way that would justify an understanding that assent by the recipient of the notice is invited and will conclude the bargain]; accord, Lopez v. Charles Schwab & Co., Inc., supra, 118 Cal.App.4th at p. 1230.) Accordingly, the trial court did not err in concluding no enforceable settlement agreement had been formed by Barrys insurers response to the October 15, 2002 letter. (See Moorpark, at p. 931 [because proposal to make offer did not constitute offer capable of acceptance, no contract formed by citys purported acceptance of proposal].)
2. The Damage Award Is Supported by Substantial Evidence
Barry contends the $282,815 damage award is not supported by substantial evidence because there was no medical testimony establishing that Cohens shoulder surgery and future knee surgery were causally related to injuries from the accident. This challenge to the damage award suffers from several fatal flaws.
First, the special verdict form prepared jointly by Cohens and Barrys attorneys requested the jury to determine only four categories of damages: past and future economic damages and past and future noneconomic damages. The special verdict did not require itemization of past or future economic damages due to medical expenses, nor did it itemize the noneconomic damages related to past or future surgical interventions. Without a special verdict segregating those various damage elements, we have no way of determining what portion ‑‑ if any of [the] award was attributable to [the] particular category of damages challenged on appeal. (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158; accord, Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 346.)[1]
Second, even if the damage award could be challenged on this basis, we would still find it supported by substantial evidence.[2] Dr. Kayvanfar testified Cohen was in good health prior to the accident and did not complain of any pain. Following the accident, she complained of daily pain in her shoulder and knee. According to Dr. Kayvanfar, shoulder surgery was indicated because Cohens pain had been persistent for several months and her MRI showed a possible rotator cuff tear. Kayvanfar also found a definite thickening of the shoulder socket, called a SLAP lesion, that he believed was contributing to Cohens pain and was caused by or aggravated by the trauma she suffered in the automobile accident.[3] As for Cohens knee, although the evidence was uncontradicted Cohen suffered from degeneration in her knee, Kayvanfar opined the trauma from the accident had accelerated that degeneration, causing persistent pain, a noticeable limp and necessitating, at a minimum, arthroscopic surgery. Although Barry cites other evidence from her own experts contradicting Kayvanfars opinion, contradictory evidence is not a basis for reversal of the jurys verdict. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.)
3. Barry Has Not Shown the Damage Award Is Excessive
The standard of review on a claim of excessive damages is well settled: The amount of damages is a fact question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. [Citations.] All presumptions favor the trial courts ruling, which is entitled to great deference because the trial judge, having been present at trial, necessarily is more familiar with the evidence and is bound by the more demanding test of weighing conflicting evidence rather than our standard of review under the substantial evidence rule. [Citations.] [] We must uphold an award of damages whenever possible [citation] and can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury. [Citations.] [] In assessing a claim that the jurys award of damages is excessive, we do not reassess the credibility of witnesses or reweigh the evidence. To the contrary, we consider the evidence in the light most favorable to the judgment, accepting every reasonable inference and resolving all conflicts in its favor. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078; see also Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64 [damages are excessive . . . where recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice]; Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 414 [trial courts determination on motion for a new trial on the issue of excessive damages is usually upheld].)
Barrys argument concerning excessive damages is essentially the same as her substantial evidence argument and suffers from the same flaws: According to Barry, the damage award is excessive because there is no evidence that surgical interventions for either the shoulder or the knee were necessary. It is impossible to determine from the special verdict form (jointly prepared by Barry without objection) which portion of the award is attributable to the surgical interventions Barry identifies. In any event, in light of the evidence we have identified supporting surgical interventions for both the shoulder and the knee, we cannot say the award is so disproportionate as to shock the conscience.
4. Barry Has Forfeited Many of Her Attorney Misconduct Claims Because of Her Failure to Object During Trial; None of the Others Has Merit
a. Closing argument remarks
Barry contends Cohens counsels remarks during closing argument were improper and justify reversal. In conducting closing argument, attorneys for both sides have wide latitude to discuss the case. An attorney is not limited to Chesterfieldian politeness, but may vigorously argue all reasonable inferences from the evidence. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795 (Cassim).)[4]However, [a]n attorney who exceeds this wide latitude commits misconduct. For example, [w]hile a counsel in summing up may indulge in all fair arguments in favor of his clients case, he [or she] may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences. [Citation.] Nor may counsel properly make personally insulting or derogatory remarks directed at opposing counsel or impugn counsels motives or character. (Id. at p. 796.)
To preserve a claim of attorney misconduct for appeal, a timely and proper objection must have been made at trial; otherwise, the claim is forfeited. (See Cassim, supra, 33 Cal.4th at pp. 794-795; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211.) In addition to interposing an objection, a litigant faced with misconduct by opposing counsel must either move for a mistrial or request a curative admonition unless an admonition would have been inadequate under the circumstances. (Cassim,at p. 795.)
Barry cites 23 instances of allegedly improper remarks made by Cohens counsel during closing argument, which we have itemized in the appendix attached to this opinion.[5] Barry failed to object to most of the allegedly improper remarks. Nothing in the record indicates an objection and admonition would not have cured the prejudice, if any, arising from any of those remarks. Accordingly, any argument concerning those remarks (category A in our appendix) has been forfeited. (See Cassim, supra,33 Cal.4th at pp. 794-795; Dominguez v. Pantalone, supra, 212 Cal.App.3d at p. 211.)
As to those remarks to which an objection was made and sustained (category C in the attached appendix), the trial court either gave the requested admonition, thus curing any potential prejudice,[6]or no admonition was requested by Barry, resulting in a forfeiture of the issue on appeal. (See Dominguez v. Pantalone, supra, 212 Cal.App.3d at pp. 211-212 [[b]ecause the effect of misconduct can ordinarily be removed by an instruction to the jury to disregard it, it is generally essential, in order that an act of misconduct be subject to review on appeal, that it be called to the attention of the trial court at the time, to give the court an opportunity to so act, if possible, as to correct the error and avoid a mistrial].)
As to the two remarks identified by Barry to which an objection was made and overruled (see category B of the attached appendix), we have little difficulty concluding those remarks reflecting Cohens effort to hold Barry accountable for her injuries was not improper. Barrys entire defense was that she was not responsible for Cohens extensive injuries. Cohen claimed Barry was responsible. Some of Cohens counsels statements may have been inartfully phrased, but there is no question they were fair comment on Barrys theory of the case.
b. Alleged misconduct in introducing impeachment evidence
Barry also contends Cohens counsel improperly submitted doctored impeachment evidence. During trial, Cohens counsel told the court he had received a videotape recording earlier in the day of a lecture Dr. Rothman had given to a group of lawyers about the use of MRIs in personal injury cases. Cohens counsel offered the videotaped recording, initially without objection, to impeach Dr. Rothmans testimony he had never said jurors are ignorant. The recording confirmed Rothman had used those words, but, evidently, the tape included an echo effect on the word ignorant that Barry insisted had been added to inflame the jury. After the videotape recording was played for the jury, the trial court sustained Barrys objection and granted her request to strike that evidence from the record. Barry did not request any limiting instruction or admonishment at that time, and none was given. However, when trial resumed a few days later, Barry did request that the court admonish the jury to disregard the evidence in the videotape recording. The court refused, explaining, I did strike that testimony. I dont see any reason to bring any more attention to it.
Barry asserts the altered videotape recording was introduced specifically to appeal to the passions and prejudices of the jury, a problem compounded by the courts refusal to admonish the jury to disregard the statements in the tape. In denying the new trial motion asserted on this ground, the trial court rejected Barrys contention the altered videotape recording substantially prejudiced her case. The court explained it had struck the objectionable evidence and told the jury to disregard it and believed its admonition had been sufficient to cure any prejudice. We agree.
Although the jury was not expressly instructed to disregard the videotape recording when the court sustained Barrys objection and struck the statements from the record, the court did instruct the jury ‑‑ at the beginning of the trial and again after both sides had rested ‑‑ when an objection has been made and sustained, the jury must ignore the question. If the witness did not answer, you must not guess what he or she might have said or why I sustained the objection. If the witness has already answered, you must ignore the answer. The court also instructed the jury to base its verdict on the evidence, not on passion or prejudice. In light of the courts actions, introduction of the edited videotape, even if misconduct, was not prejudicial, particularly since the objectionable material related to a collateral issue. (See People v. Yeoman (2003) 31 Cal.4th 93, 139 [the presumption that jurors understand and follow instructions [is] [t]he crucial assumption underlying our constitutional system of trial by jury]; see also Cassim, supra, 33 Cal.4th at p. 802 [verdict may be reversed for attorney misconduct only when it is reasonably probable complaining party would have achieved a more favorable result in the absence of the challenged conduct].)[7]
5. The Trial Court Did Not Abuse Its Discretion in Denying Barrys Motion To Tax Costs
a. Costs ordered as a matter of right
Pursuant to Code of Civil Procedure section 1033.5, Cohen filed a memorandum of costs totaling $13,099, including $658.99 for the videotaped deposition of Los Angeles Police Officer James Adams; $712.91 in service-of-process costs for Officer Adams; and $864 in witness fees for the time Adams spent testifying. Barry does not dispute that each of these items is a statutorily authorized cost. (See Code Civ. Proc., 1033.5, subd. (a)(3), (a)(4)(A) & (a)(4)(D)(7).) Rather, she contends, because she did not contest liability, Adamss deposition and trial testimony were unnecessary and, therefore, should have been disallowed pursuant to her motion to tax costs.
If the items in a cost bill are authorized by Code of Civil Procedure section 1033.5, the burden is on the party seeking to tax costs to show the costs incurred were not reasonable or necessary. (Ladas v. CaliforniaState Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) We review the trial courts determination whether a cost item was reasonably necessary to the litigation for abuse of discretion. (Ibid.; Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 39.)
The trial court did not abuse its discretion in concluding the costs associated with the deposition and trial testimony of Officer Adams were reasonably necessary to the litigation. Although Barry did not dispute her own negligence in the accident at trial, she had contested that issue throughout most of the action, only conceding it on what was, in effect, the eve of trial. Moreover, although she asserts she conceded liability, Barry disputed causation at trial, providing expert testimony from an engineer to support her contention the collision was minor. Officer Adams, present on the scene after the accident, corroborated Cohens account of the accident and explained how, from the examination of the skid marks on the scene and the damage that had occurred, he had classified the accident in his report of the incident as a major collision. Plainly, the trial courts conclusion such testimony was reasonably necessary to the litigation was well within its discretion.
b. Discretionary costs/expert witness fees
Barry also contends the court erred in failing to tax $6,250 in costs relating to expert witness fees. Ordinarily expert witness fees are not recoverable as costs in a civil action unless the expert was ordered by the court. (See Code of Civ. Proc., 1033.5, subd. (b)(1).) However, prior to trial Cohen served Barry with a written offer to compromise pursuant to Code of Civil Procedure section 998 in the amount of $100,000. Barry rejected the offer. Because Barry failed to receive a more favorable judgment, the court, in its discretion, was authorized to require Barry to pay Cohens reasonable costs of trial, including expert witness fees. (Code Civ. Proc., 998, subd. (d).)
Barry contends the fees awarded ($3,000 for Dr. Kayvanfar and $3,250 for Dr. Ranon Udkoff, a radiologist who testified for Cohen) are excessive, but offers nothing to support that assertion or to demonstrate the trial court abused its broad discretion in determining the amount of fees to award. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in appellate brief must be supported by argument and, if possible, by citation of authority].) We will not second guess the trial courts determination the expert fees were reasonably incurred.[8]
DISPOSITION
The judgment is affirmed. Cohen is to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
Appendix A
Remarks by Cohens Counsel Made During Closing Argument
Category A: Remarks as to which no objection was made
Its their [the defense] job to try to poke holes in everything and anybody, even if you are a good old woman from Oklahoma -- they are going to put you through this. Its what they do.
I wonder what Dr. Rothman says to his golfing buddy about how he can make a seven-figure claim with anybody on his MRI machine. Comes into court and says the same thing, same story every time, a few times a week. Makes a killing doing it. . . . Its just 1.2 million dollars a year for him. This isnt a man that cares about you or this community.
Dr. Wilson . . . I mean what a saint. What a saint he is too ‑‑ I mean he hates being here. Hes losing money. He could be over at his medical office in the Cedars Towers that he rents, taking care of patients, but he must just be up here for the good of helping people, the good of the community. Are any of these people, any of these experts that came in, any of them advocates? Maybe professional testifiers are hard to beat because they do this for a living.
We want every penny, not just half justice, not just this much justice, but the full value, the full price, and if you were going to go into a store and buy whats been lost and buy away a limp . . . . How many times in your life do we get to come together as a community, as neighbors, in a courtroom, and take something wrong, a terrible injustice, something wrong and make it right, and say, this is what, an old woman 61 years old, who didnt feel like an old woman. This is what her happiness and this is what the golden years are worth. So that in 10, 15, 25 years, next week, you can ‑‑ defense can come in and look at your verdict that you will all sign, which the presiding juror will sign, and say, well, if we force members of this community to decide what justice is, when it comes to a good woman, a good man, thats what it is.
Just the price of a limp. Not being able to walk the way you used to.
And if you take all that money and ask each and every one of you in exchange for that to give us a magic wand and wave it around and go back in time so that this crash never happened and make it all -- just make it all go away, everyone would be happy, and everyone would pay for that magic wand. But theres no magic wand. This is what we can do. . . . Each and everyone one of you can make the difference in good peoples lives and make this thing right.
Appendix A (page 2 of 4)
Category A: Remarks as to which no objection was made (contd)
He [defense counsel] called her a liar. . . . You know what its like to be called a liar? You know what its like to have him sit here? Hes a 79-year-old man. A World War II vet. Hes worked hard all his life. And her, never had an attorney, never had a claim, never come to court, to be called a liar? And have your wife called a liar? And have to get up and sit here and listen to it and in a roundabout way, all these guys coming in and calling her a liar? Well, finally, he said it. . . . A nice guy doesnt call nice people liars. How does that settle with you?
Sympathy. We are not asking for sympathy. There was some talk about not using emotion in your verdict. Every major decision you have made in your life, that I have made in my life ‑‑ family, job, military, you name it ‑‑ emotion comes into play with every decision we make. So if someone says, Hey, we cant use emotion here, you can use emotion. Not sympathy though.
Who are you going to call if you need help, if you are hurt? Are you going to call one of these guys down in L.A., Beverly Hills, wherever, making 1.2 million dollars a year, or are you going to go to a local doctor in your community like Dr. Kayvanfar?
Your feelings, you -- what is right in your heart is just as important as the next person. Make sure you express how you feel and why and really deliberate.
You can poke as many holes and do things that us lawyers do and try to put a spin on this and a spin on that, and take a person thats never testified in front of a jury, thats never made a claim for injury or anything in their life, and you can put a spin on it. Its what a trained good lawyer . . . in a high rise building is able to do.
If a person is in a car thinking its smoking, thinking its on fire, screaming for dear life, they are going to do everything they can to pull them out.
[Your verdict] has to matter. It has to hold them fully accountable. It has to make a difference.
[Defense engineering experts] opinion is clearly incomplete to come in here and try to deny a person justice when we do not need a weatherman. It is . . . I think its despicable, but thats what happens in these courtrooms.
Appendix A (page 3 of 4)
Category B: Remarks as to which an objection was made and overruled
The full price when we evaluate every separate item, everything that has been taken, is 450 to 850 thousand [dollars]. . . . I cant tell you everything, but I can tell you that theres a terrible disrespect going on in this community. Theres a big lack of accountability, and the defense has mastered it.
I want to close by, yes, I tell stories. I am telling you a story . . . about this beautiful, big, magnificent building, and it stood high, wasnt in a real big city, but it stood high, tall above all the other buildings, and it was strong. The building was strong. But the building got old, but it still stood strong. And no matter what was thrown at it in the normal wear and tear, it stood strong until one day a big truck, a big heavy cement truck from a cement company came driving along, and the guy wasnt watching was he was doing and had to make a sharp turn, lost control, and slammed right into the building. . . . and really, really hurt it. And the next day, the owners of the building said, you know the lights are starting to flicker. The lights never flickered before, and the elevator doesnt work . . . . The electrician said, well, somehow [the crash] affected the breaker box here, and its an old breaker box, and we can try to repair it but its not really going to be the same. And so the owners of the building turned to the company, the cement company, and said, you know, you guys have to fix this. . . . And the company said, well its not our fault. We are not going to fix anything. Why should we? Make us.
Category C: Remarks to which an objection was made and sustained
I want to talk to you about the experts. The expert witnesses. The defense, they called in three objective, honest guys. They are not advocates. They have no interest in how this case is going to turn out. I mean they are just here to be honest because they care so much about the community. Is that the case? Its not. Im being sarcastic. . . . I wish I could show you that the Dr. Rothman everyone in the legal ‑‑ everyone knows . . . (The court sustained the objection. No admonition was requested or given.)
Mr. Welcher [(the defenses engineering expert) said he] didnt review the [records of Cohens] physical from April 22nd. Why not? I was never given that record, he says. He said he reviewed all the records in his deposition. Why didnt the defense give him that record? Why didnt the defense give their experts, the ones that theyve hired, all of the medical records? Why would they take out an April 22nd physical? All the doctors said, I didnt see that. Why did they do that? Because thats what the defense does. Why do they wait until the day that you come into this courthouse to say, Okay, it was our fault. Why do they cross-complain a lawsuit against ‑‑ (Barry objected and moved to strike. The court sustained the objection and struck remarks about the cross-complaint; no admonition was requested or given.)
APPENDIX A (page 4 of 4)
Category C: Remarks to which an objection was made and sustained (contd)
Fear, being afraid. She was afraid to drive for a year. That fear, after reenacting and going through all this everything that happened in this case, and having to relieve this whole experience, goes home and has a nightmare. (The court sustained Barrys objection and instructed, Ladies and Gentlemen, you are to determine what the facts are. If your recollection of the facts differs from counsel, either counsel, you are to take your recollection of the evidence. Objection is sustained.)
I think Miss Barry is a nice gal. She is a person with a conscience and a soul, and if it were up to her [Cohen] would be taken care of. [The court sustained Barrys objection, observed there was no evidence to support the remark and struck it].
Lets go [to] that scene. Lets go to that day. Lets go to that time. Do that back in the jury room. Test what Im saying. [Barry objected, claiming Cohens counsel was urging the jury to conduct experiments. The court sustained Barrys objection and admonished the jury, There is a jury instruction that you will receive that you are not to use the dictionary or the internet. Dont conduct experiments.]
If we had to ask whats the fair price for all those things, and it was Mr. Garcias (defense counsels) mom [who had been hurt], what would he say? (The court sustained the objection. No admonition was requested or given.)
***
During direct examination, Cohens counsel asked Dr. Udkoff his opinion of Dr. Rothman. Udkoff testified, Rothman is known as a defense expert witness and, as such, his opinions are known to be predominantly everything is degenerative in nature. (The court sustained Barrys objection. No admonition was requested or given.)
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[1] To the extent Barry now contends the form of the verdict unfairly impedes her ability to argue the issue on appeal, her failure to object to the special verdict form in the trial court forecloses that argument. (See Brokaw v. Black-Foxe Military Institute (1951) 37 Cal.2d 274, 280 [[i]nsofar as the verdict might be questioned for failing to segregate the amount awarded to the mother for medical expenses from that awarded to Robert for personal injuries, it does not appear that any objection was made to the form of verdict; it was, therefore, waived]; Greer v. Buzgheia, supra, 141 Cal.App.4th at p. 1158 [[t]o preserve for appeal a challenge to separate components of a plaintiffs damage award, a defendant must request a special verdict form that segregates the elements of damage].)
[2]In reviewing challenges to a verdict based on sufficiency of the evidence, we review the record as a whole, resolving all conflicts and indulging all legitimate and reasonable inferences in favor of the prevailing party, to determine whether substantial evidence supports the verdict. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) Substantial evidence in this regard does not mean any evidence. Rather, to be substantial, the evidence must be of ponderable legal significance, . . . reasonable in nature, credible, and of solid value. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) If there is substantial evidence, contradicted or uncontradicted, that will support the finding, it must be upheld regardless of whether the evidence is subject to more than one interpretation. (Western States Petroleum Assn., at p. 571 [[w]hen two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1481 [reviewing court may not reweigh the evidence].) [T]he testimony of a single witness, even [a] party . . . , may be sufficient. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.)
[3] Kayvanfar testified, SLAP stands for Superior Labrum Anterior-Posterior. Labrum is a thickening which is all around the socket in the shoulder, and the reason that we have such versatility in the shoulder is because the socket is shallow. . . . Now, once damage happens to the straining ligament around the shoulder, then you will have pain and pain goes on until the problem is fixed.
[4]The California Supreme Court first used the term Chesterfieldian politeness in the context of the permissible scope of closing argument in People v. Bandhauer (1967) 66 Cal.2d 524, 529, quoting the Ninth Circuits decision in Ballard v. United States (9th Cir. 1945) 152 F.2d 941, 943, revd. on other grounds, (9th Cir. 1946) 329 U.S. 187 [67 S.Ct. 261, 91 L.Ed. 181].) The term itself is a reference to Philip Stanhope, the fourth Earl of Chesterfield, who wrote and published letters to his son and instructional books on manners and deportment, including Principles of Politeness, and of Knowing the World, and who reportedly said, Next to good breeding is genteel manners and carriage and, An able man shows his spirit by gentle words and resolute actions. (See Colonial Williamsburg, That The Future May Learn From The Past,
[5]At oral argument Barry identified 26 instances of misconduct, each of which is addressed in the attached appendix. Our reference to 23 instances rather than 26 instances of misconduct simply reflects a conflation in the appendix of some of the challenged remarks.
[6] The comments in question, while certainly indicative of vigorous advocacy, did not exceed the bounds of acceptable argument. Even if some could be said to come close to that boundary, the trial courts instructions to the jury that the attorneys questions and opening and closing arguments are not evidence and that its verdict must be based on evidence, not on bias, sympathy, prejudice or public opinion were more than sufficient to cure any slight prejudice that may have resulted. (See People v. Young (2005) 34 Cal.4th 1149, 1214 [[j]urors are presumed to understand and follow the courts instructions].)
[7]Barry also argues Cohens counsel violated court orders limiting the attorneys comments during voir dire about the amount of damages in this case. However, the citations to the record to support that argument all involve remarks made during trial, not voir dire. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [argument must be supported by proper citation to record].)
[8] In her respondents brief Cohen asserts we have no jurisdiction to consider the award of discretionary expert witness fees because Barry did not file a separate notice of appeal from the postjudgment order awarding those fees as costs. Generally, because expert witness fees awarded pursuant to Code of Civil Procedure section 998 are not incidental to the litigation, they are not subsumed in a judgment awarding costs in an amount to be determined in a later proceeding, but must be challenged separately by an appeal from the postjudgment order awarding those fees. (See Fish v. Guevara (1993) 12 Cal.App.4th 142, 147; Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 764.) Here, however, the April 6, 2006 judgment specifically stated that Cohen was entitled to costs pursuant to her memorandum of costs and the statutory offer to compromise. Under these circumstances, when the right to costs pursuant to Code of Civil Procedure section 998 is set forth in the judgment itself, the judgment can be said to subsume the later cost award setting the amount of discretionary expert witness fees. (Cf. Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997-998 [when a judgment awards costs and fees to a prevailing party and provides for the later determination of amounts, the notice of appeal subsumes subsequent order setting the amount of cost award]; Fish, at p. 147 [Grant only applies when the partys right to costs and fees has been determined by the judgment; when the judgment does not determine the propriety of costs and fees, the right to such costs is a separately litigated issue that must be separately appealed].)
