Hilton v. Bressler

Filed 6/26/08 Hilton v. Bressler CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Joseph De Vanon, Judge. Affirmed.

Law Offices of Julius Johnson and Julius Johnson for Plaintiff and Appellant.

Calendo, Puckett, Sheedy & DiCorrado and Kim B. Puckett for Defendants and Respondents.

_______________________________________

Plaintiff and appellant Brenda Hilton brought suit against defendants and respondents Joe and Jean Bressler, seeking damages for injuries allegedly sustained from being bitten by the Bresslers dog. The trial jury delivered a unanimous verdict finding the Bresslers strictly liable[1] for Hiltons injuries and awarding Hilton damages equivalent to her past medical expenses. Hilton subsequently filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 10, 2004, Hilton and her mother Gloria Stocks (Hiltons mother) attended a garage sale at the home of the Bresslers. While on the Bresslers property, Hilton was bitten in the face by the Bresslers dog. Hilton then requested that 911 be called and an ambulance soon arrived. After the paramedics took Hiltons blood pressure, examined her forehead, and checked her vital signs, they asked whether she wanted to be taken to the hospital. Hilton instead volunteered to drive herself and her mother to the hospital, and the paramedics agreed that Hilton was capable of doing so. Hilton proceeded to Huntington Memorial Hospital where a Steri-Strip bandage was placed on her forehead; no sutures were necessary. The emergency room report made no mention of a puncture through Hiltons sinus cavity.

Five days after the incident, on January 15, 2004, Hilton filed a complaint against the Bresslers seeking damages for the injuries she had sustained as a result of the dog bite. During pretrial discovery, Hilton stated in her response to the Bresslers interrogatories that there were no witnesses to the actual dog bite.[2] In contrast, Hilton testified at trial that her mother had witnessed the entire incident. Citing the disparity between Hiltons answer to interrogatories and her testimony at trial, the Bresslers attorney made a motion to exclude any testimony from Hiltons mother. Hiltons attorney initially responded by asserting that, prior to trial, the Bresslers possessed a list summarizing each witnesss testimony which stated that Hiltons mother was to testify to the actual dog bite. Later on the same day, when the document failed to materialize, Hiltons attorney confirmed that Hiltons mother had not witnessed the incident at issue and would be testifying only to Hiltons physical state before and after the dog bite.

As a result of representations by Hilton in interrogatories and Hiltons attorney at trial, the court ruled that Hiltons mother could not address the actual dog bite in her testimony. Following the trial courts ruling, however, Hiltons mother still testified to the dog bite even though Hiltons attorney instructed her to only focus on Hiltons condition after the incident.[3] The court subsequently halted Hiltons mother from answering further questions and instructed the jury to disregard her testimony in its entirety.[4] In response to the courts ruling, Hiltons attorney twice requested the court to admit testimony from Hiltons mother concerning Hiltons physical state before and after the dog bite. The court refused both requests.

The main issue at trial was the nature of Hiltons facial injuries. Hilton testified that she had sustained a punctured sinus cavity as well as a deep forehead laceration, and presented a photograph taken two days after the incident to substantiate her claims. Hilton also presented additional photographs taken several months after the incident to illustrate alleged scars. Hilton presented no medical testimony to support her claim. In opposition, the Bresslers introduced testimony from a physician who had examined Hilton following the dog bite. The doctor characterized Hiltons facial injuries as minor, deeming the alleged severity of her wounds to be physically impossible. To support his conclusion that Hiltons injuries were mild, the physician relied on the absence of any sinus cavity injury in the emergency room report and the lack of suturing of Hiltons wounds. Furthermore, the doctor who physically examined Hilton at the emergency room had noted in his report that Hiltons general appearance indicated she was under no acute distress.

At the conclusion of trial, the jury delivered a special verdict for Hilton awarding her damages equivalent to her emergency room expenses in the amount of $749.10. Hilton subsequently filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied the motion. Hilton filed a timely notice of appeal.

ISSUES ON APPEAL

On appeal, Hilton contends that the trial court erred: (1) in denying her post-trial motion because the damages awarded were inadequate as a matter of law, since they failed to compensate her for pain and suffering; and (2) the trial court abused its discretion by excluding the entire testimony of her mother instead of instructing the jury to disregard only the inadmissible responses.

DISCUSSION

1. Damages

The amount of damages awarded at the conclusion of trial is a question of fact to be determined by the jury. (Miller v. San Diego Gas & Elec. Co. (1967) 212 Cal.App.2d 555, 558.) On a motion for a new trial, ascertaining the adequacy of the jurys award rests largely in the discretion of the trial judge. (Ibid.) Although courts have occasionally deemed jury awards inadequate as a matter of law for their failure to compensate for pain and suffering, every case depends upon the facts involved. (Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 936.) It is beyond a reviewing courts power to weigh the evidence of the case and our duty ends in assessing whether substantial evidence exists to support the jurys verdict by considering facts most favorable to the defendants. (Miller v. San Diego Gas & Elec. Co., supra, at p. 559‑560.)

Damages awarded by the jury in a verdict for the plaintiff need not fulfill specific numerical quotas. (Miller v. San Diego Gas & Elec. Co., supra, 212 Cal.App.2d 555, 561.) Furthermore, cases finding damages inadequate as a matter of law for failing to compensate for pain and suffering all involved egregious injuries with lengthy durations (E.g. Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 891 [infant was subjected to repeated hospital visits and suffered recurring attacks of diarrhea, vomiting, dehydration, shock, and cramps throughout the first year of her life]; Dodson v. J. Pacific, Inc., supra, 154 Cal.App.4th 931, 937‑938 [plaintiff underwent medical procedure that removed a herniated disk and replaced it with a metal plate]; Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 521 [plaintiff remained in the hospital for six months following his initial injury and later endured partial amputation of his foot due to gangrene].).

In asserting that her awarded damages were inadequate as a matter of law, Hilton relies on her emergency room visit following the dog bite as evidence of her suffering. However, both parties introduced conflicting evidence at trial as to the actual severity of Hiltons injuries. There was substantial evidence that Hiltons injuries were superficial and thus should not compel compensation for pain and suffering. The physician testifying for the Bresslers concluded from his examination of Hilton and the circumstances of her emergency room visit that Hiltons injuries were mild. The paramedics who had examined Hilton following the dog bite agreed that she was capable of driving herself to the hospital. The emergency room doctor who had treated Hilton observed that she was under no acute distress. Even the most severe account of Hiltons injuries describes her emergency room treatment as nothing more than a Steri‑Strip bandage to the forehead. Considering the absence of dispositive evidence of severe injury, the jury, as the ultimate arbiter of fact, was well within its right to accept the defendants depiction of Hiltons injuries in lieu of Hiltons.

A thorough examination of the record thus reveals evidence that would substantially support the jurys verdict. Given the conflicting witness testimony from both sides  . . . it seems entirely probable that the jury felt that although plaintiff was entitled to no more than nominal damages, the kindest disposition of the case was to award to her an amount at least equivalent to her medical bills. (Miller v. San Diego Gas & Elec. Co., supra, 212 Cal.App.2d 555, 560.) Unlike cases where jury verdicts have been deemed inadequate as a matter of law due to their failure to compensate for pain and suffering, the present case lacks conclusive evidence concerning the nature of Hiltons injuries. Considering that the conflicting factual record contains witness testimony characterizing Hiltons injuries as superficial, substantial evidence exists supporting the jurys decision to limit Hiltons damages to her past medical expenses. Thus the jurys verdict for damages cannot be deemed inadequate as a matter of law.

2. Excluding Testimony of Hiltons Mother

Hilton contends that the court erred in prohibiting her mother from addressing the actual dog bite.[5] Hilton next contends that the trial court abused its discretion by excluding the totality of her mothers testimony when she was unable to comply with instructions limiting the scope of her testimony. Hilton argues that this error was prejudicial because the barred testimony could have resulted in a greater jury verdict for damages.

One of the principle purposes of discovery is to eliminate surprise at trial, replacing the game element of litigation with the notion that a trial is a fair contest with the basic issues and facts disclosed to the fullest possible extent. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376.) Furthermore, trial courts are vested with a broad discretion in regulating discovery procedures. (Id. at p. 378.) In Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274, the court held that the plaintiffs willful failure to disclose the identity of a specific witness in interrogatories merited an evidence sanction that justifiably excluded the unnamed witnesss testimony at trial. Characterizing the plaintiffs behavior as impairing the defendants ability to prepare for trial, the court reasoned that responses to interrogatories can be binding when necessary to accomplish the purposes of civil discovery. (Id. at p. 275.)

Although Hilton argues that the Bresslers had knowledge of her mothers capacity as a witness for more than six months, Hilton failed to identify her mother or any other individual in response to interrogatories requiring the names of witnesses to the actual dog bite or the events occurring immediately before or after. Prior to the testimony of Hiltons mother, Hiltons attorney also confirmed that the mother had not witnessed the incident at issue and stressed that she would instead testify to Hiltons physical condition before and after the dog bite. We thus conclude that the trial court did not err in restricting Hiltons mother from testifying to the specific dog bite incident, in adherence to representations made by Hilton in interrogatories and her attorney at trial.

Hilton challenges the trial courts subsequent decision to exclude her mothers testimony in its entirety. Arguing that her mothers failure to understand the scope of questions at trial cannot justify total preclusion of her testimony, Hilton asserts that instructions requiring the jury to disregard only the inadmissible testimony constituted a more reasonable alternative.

The Supreme Court of California recognizes that California courts have an equitable power derived from the historic power of equity courts as well as supervisory or administrative powers which allow all courts . . . to carry out their duties. (Bauguess v. Paine (1978) 22 Cal.3d 626, 635) Drawing from both sources of authority, courts possess an inherent power independent of constitutional or legislative grant to curb abuses and promote fair process, which extends to the exclusion of evidence at trial. (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287‑288.) Recognized and applied in many cases to prevent injustice at trial and to remedy wrongs absent statutory authority, the courts power to control litigation by precluding evidence contains no intrinsic limitation. (Id. at p. 288‑289.) Furthermore, even absent abuses, courts maintain a broad power over the admission and exclusion of evidence. (Id. at p. 288.)

The factual context of the present case indicates that the trial court was well within its inherent authority to exclude the testimony of Hiltons mother in its entirety for the purpose of promoting fair process. All parties were aware of the specific restrictions set by the trial court to limit the scope of the mothers testimony, and Hiltons attorney concurred with the characterization that Hiltons mother had not witnessed the dog bite. By addressing the mechanism of the dog bite, the testimony of Hiltons mother directly violated boundaries set by the court and contradicted earlier representations that she had not seen the bite. The court thus reasonably concluded from the circumstances that permitting any portion of the testimony would constitute an injustice because what the witness had or had not seen remained ambiguous. In light of the courts broad authority to effectuate the exclusion of evidence, the court did not abuse its discretion in excluding the totality of the mothers testimony at trial.

Even if the trial court erred in excluding evidence, however, the courts judgment may only be reversed if the error resulted in a miscarriage of justice. (Evid. Code,  354.) In the present case, Hilton has the burden of demonstrating with reasonable probability that a more favorable result would have been reached absent the error. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) Considering the factual discrepancies with respect to the extent of Hiltons injuries as well as the lack of medical testimony to substantiate Hiltons claims, additional witness testimony cannot ensure within a reasonable probability that the jury would have arrived at a different verdict. The absence of any sinus cavity injury in the undisputed emergency room report, the use of a Steri‑Strip bandage to treat Hiltons wounds, the emergency room doctors observation that Hilton was under no acute distress, and the paramedics assessment that Hilton was capable of driving herself to the hospital following the dog bite collectively establish that Hilton did not sustain serious injuries. Furthermore, the confused nature of Hiltons mothers testimony diminishes its potentially probative value. Any error in excluding the testimony of Hiltons mother was therefore harmless.

DISPOSITION

The judgment is affirmed. The Bresslers are to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Civil Code section 3342 imposes strict liability on dog owners for dog bites when the individual bitten was lawfully on the dog owners property.

[2] Defendants interrogatories 12.1 asked: State the name, address, telephone number of each individual; A, who witnessed the incident or the events occurring immediately before or after the incident; B, who made any statements at the scene of the incident; C, who heard any statements made about the incident by any individual at the scene; and, D, who you or anyone acting on your behalf claim has knowledge of the incident? Hilton replied: None are known at this time.

[3] Hiltons attorney initially asked Hiltons mother what happened on January 10. The court then imposed its own objection because the question is going to call for a narrative, which is going to possibly elicit things that the witness heard about, rather than things the witness saw. Shortly thereafter, the following occurred:

[Hiltons attorney]: All right. Now, again, I want to focus your attention to a point in time after the dog bite had taken place. Do you understand what I am saying to you?

A: Yes.

Q: Okay. After the dog bite had taken place, what was Brendas physical condition?

A: Well, let me think here. Her I didnt know at the time, you know.

Q: But what did you see?

A: I seen she tried to get up out of that chair.

The court: Are we talking about after?

[Hiltons attorney]: After the dog bite?

A: After.

The Court: Not when it happened, but afterwards.

The witness: After he bit her, her whole body went back, you know.

Q: Uh-huh?

A: Like real

[Bresslers attorney]: May we approach, your honor? Can I have the reporter?

The Court: Yes.

(The following proceedings were held at the bench out of the hearing of the jury.)

The Court: Lets go on record.

[Bresslers attorney]: Your honor, there was a motion before this court. The court was very specific in its ruling. The court has now admonished plaintiffs counsel one time and he has gone right back and done the exact same thing that the court admonished him against. The discovery interrogatories specifically asked about witnesses to the incident. He represented to this court he was not doing that. There has been testimony that is extremely prejudicial to my client, talking about the movement of the plaintiffs head as a result of which is the whole thing they have been trying to establish. This is contrary to the courts ruling. Contrary to the courts admonition. I am going to ask plaintiffs counsel be sanctioned. I ask there be an admonition to this jury as strongly as the court can possibly make. What he did was in violation of a court ruling and a follow-up admonishment by the court . . . that they are to disregard the testimony of this [witness] and this [witness] not be allowed to testify any further in this trial.

[Hiltons attorney]: Your honor, I specifically asked the [witness] about what happened after the dog bite had taken place. Okay? I made it clear as I possibly could. She is eighty something years old. Her understanding of this situation isnt clear. But I specifically asked her before the dog bite took place what happened to her daughter, because she is only testifying as to what happened after the dog bite and that was my question. I didnt ask her did she see the dog bite.

The Court: Heres what is clear in my mind. Its unclear as to what this witness remembers she saw and what this witness has heard or learned about the incident since it occurred. So, I am going to grant part of what Mr. Puckett has requested. I am going to end the examination of this witness right now, and thank her for her attendance. Have her step out, tell the jury to disregard the testimony and strike it from the record.

[Bresslers attorney]: Thank you, your honor.

[Hiltons attorney]: Your honor --

The Court: You cant control her, Mr. Johnson.

[Hiltons attorney]: May I talk to her first?

The Court: No. No, not now. You tried on two occasions to get her on target to avoid talking about the incident. She cant do it.

[Hiltons attorney]: At least let me tell her. I didnt get a chance to do that before. We called her right before

The Court: We broke for an hour and 45 minutes.

[Hiltons attorney]: She just arrived here, your honor.

[Bresslers attorney]: You dont

[Hiltons attorney]: Ruling changed this morning.

The Court: But it happened before lunch in order to help you out. I am going to have I think its too potentially explosive and runs too close to the gamut of a mistrial to allow her to continue. (Emphasis added.)

[4] The court instructed the jury as follows: Ladies and gentlemen, that witness has been excused by the court. You are not to infer from that anything negative, that I disbelieved [Hiltons mother] or anything of that nature. Such is not the case. However, I am going to tell you you need to disregard her testimony. The problem is that it is unclear based on previously signed statements what [Hiltons mother] remembers she has seen and what it is she has heard about. Given her advanced age and declining physical health, it is not fair to allow that testimony to be received in trial, because it could mislead you one way or the other. For those reasons, you are told to disregard that testimony. Hiltons attorney later challenged the courts instructions for referring to the witnesss physical competency as a reason for her exclusion. The court responded: Thats because I was giving you a break, because the real concern was that her testimony was contra to the discovery responses you had given, and I didnt want to point that out to the jury . . . .  I  didnt want the jury to infer there had been improper action on the plaintiffs side, [what] I think actually was true was to allude to the confusion of [Hiltons mother] given Mr. Johnsons very strenuous statement that she was not a witness to the actual biting conduct. We do not address whether the jury admonition constituted error because Hilton raises the issue in for the first time in her reply brief. (Thompson v. Koeller (1920) 183 Cal. 476, 486)

[5] It remains unclear whether Hilton contests the trial courts initial ruling to prohibit her mother from addressing the actual dog bite. At trial, Hiltons attorney had agreed to the restrictions imposed by the court on the testimony of Hiltons mother, confirming that she had not witnessed the actual dog bite. However, Hilton argues in her opening brief that her mothers testimony did not warrant any discovery sanction because it failed to cause surprise for the Bresslers. In this, Hilton seems to mischaracterize the courts decision to exclude her mothers entire testimony as a discovery sanction. In any event, in an abundance of caution, we will address the discovery sanction issue.