Ledbetter v. Tenderloin Neighborhood Development Corp.

Filed 1/29/07 Ledbetter v. Tenderloin Neighborhood Development Corp. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Herman Ledbetter appeals on the grounds that the damages awarded to him by the jury in his personal injury lawsuit are not supported by substantial evidence and/or are the product of passion or prejudice on the part of the jury. He also contends that the trial court erred in denying his motion for a new trial. We disagree and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 28, 2003, appellant Herman Ledbetter suffered injuries when James Holland, respondents hotel manager, pushed him to the ground and kicked him in the face. As a result of the injuries, three metal plates and 12 screws had to be used to repair the broken bones in his cheek. Appellant had recently been evicted from the hotel where the assault occurred. He sued the manager and the entities operating the hotel for personal injury.[1]

The jury awarded appellant $16,747.81 in special damages, which is the amount the parties stipulated to for medical expenses incurred at the treating hospital. It awarded $12,000 in general damages. The jury did not award any damages for lost wages or future medical expenses. Asserting the award was insufficient, appellant moved for judgment notwithstanding the verdict and filed a motion for a new trial. These motions were denied. This appeal followed.

DISCUSSION

I. Substantial Evidence Supports the Damages Award

Appellant claimed damages for loss of earnings in the amount of $116,000 and medical expenses in the amount of $117,257.81. Additionally, he demanded $6 million in general damages. He asserts he established that his face is permanently disfigured and that he continues to suffer from pain. Additionally, he claims his expert witness established that he suffered severe posttraumatic stress syndrome due to the assault, which will persist for the rest of his life. Without citation to any supporting authority, he contends that the general damages awarded are unheard of in the legal history of trial for personal injury.[2]

In denying appellants motion for a new trial or judgment notwithstanding the verdict, the court stated: I have to look at this record. Theres not that much, and what you have is subject to contradiction. And the jury drew their conclusions from it. And the dimension of the case depends on what happened, and it didnt appear to me that there was much of a case, notwithstanding what appeared to be a brutal attack.

Determining the amount of damages is a question of fact. (Gersick v. Shilling (1950) 97 Cal.App.2d 641, 645.) The determination of whether the jurys damages are too high or too low rests largely in the discretion of the trial judge. (Ibid.) [A]lthough the trial courts determination is not binding upon a reviewing court, it is to be accorded great weight because having been present at the trial the trial judge was necessarily more familiar with the evidence. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.)

 An appellate court is authorized to disturb a judgment on the ground of inadequacy of damages only where the amount of the award is supported by no substantial evidence in the record and the verdict is a clear abuse of the jurys discretion.  (Horowitz v. Fitch (1963) 216 Cal.App.2d 303, 310311, citation omitted.)   [T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, that will support the conclusion reached by the jury. . . .  (Estate of Teel (1944) 25 Cal.2d 520, 526, quoting Estate of Bristol (1943) 23 Cal.2d 221, 223; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.) The court is thus limited to determining whether the evidence before the trier of fact supports its findings. (Reichardt v. Hoffman, supra, at p. 766.)

Under this rule of appellate review, we resolve all conflicts in the evidence in favor of the prevailing parties, and we draw all reasonable inferences in a manner that upholds the verdict. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 16321633.) We then determine whether the evidence thus marshaled is substantial, (Kuhn, supra, at p. 1633), that is, whether it is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

A. Appellants Evidence

Dr. George Karalis testified as appellants expert witness. Karalis had first met appellant about 15 years earlier in connection with a stress-related workers compensation claim. At that time appellant was put on state disability because Karalis felt that he was temporarily unable to work. Sometime in 2003, he again came to Karalis with a stress-related claim from a different job. Karalis again found that appellant was temporarily totally disabled and signed him up for state disability. This disability was extended in May, July August, and October 2003.

In December 2003, Karalis saw appellant for the first time after the assault. He testified that appellants symptoms of depression and anxiety appeared to have worsened. After another visit in January, he did not see appellant again until June 2004 when he diagnosed him as suffering from posttraumatic stress disorder. Karalis reported that appellant had never displayed any evidence of exaggerating his symptoms for financial gain or malingering. He estimated that appellant would need about $100,000 worth of additional psychological therapy to recover from his stress disorder.

Appellant also introduced the deposition testimony of Dr. Michael Gelb, a supervisor at the UCSF/San Francisco General Hospital Trauma Recovery Center. He supervised other therapists who were treating appellant and he authorized their diagnosis of posttraumatic stress syndrome. Gelb also had five or six sessions with appellant, ending in December 2004. He did not conduct any psychological testing on appellant because he does not find such testing useful in a clinical setting. He considered whether appellant was exaggerating or malingering, but did not come to a conclusion one way or the other.

Appellant also testified regarding his injuries, his treatment, his employment history, and his tenancy at the hotel. This testimony was subjected to pointed cross-examination.

When asked why he did not want to refer to his departure from his previous job as a termination, appellant became uncooperative. He claimed he left the job because of stress caused by an ongoing eviction proceeding. Respondents presented evidence, however, that appellant had avoided eviction on that occasion by negotiating an agreement allowing him to remain on the premises. This agreement was finalized in January 2002. Yet he remained in his job as a security guard until January 2003, suggesting that the eviction proceeding did not play a role in his termination.

Appellant also admitted on cross-examination that he did not pay rent for several months because he felt the landlord had failed to honor the prior settlement agreement. Instead, he chose to use the money to buy luxury items for himself. Respondents also introduced evidence suggesting that appellant might have falsified records in an attempt to prove that he made rental payments.

B. Respondents Evidence

Respondents called psychologist Dr. Ronald Roberts. Roberts interviewed appellant and conducted four psychological tests, which included elements designed to uncover whether a person is malingering with respect to claims of mental distress. Roberts testified that appellant was resistant to taking the tests and that on certain tests his responses were so exaggerated that they could not be scored by the computer. After hand-scoring the results, Roberts concluded that there was clear evidence of exaggeration of a psychological problem. Roberts concluded that appellant was malingering.

Respondents also called Dr. Mark Strassberg, who is board certified in psychiatry and neurology. Strassberg met with appellant and concluded that he had preexisting emotional problems, which were exacerbated by the assault. Strassberg verified that appellant had symptoms of posttraumatic stress syndrome after the assault, however, these symptoms had diminished over the following months. Strassberg opined that appellant would have required ongoing psychiatric treatment even if the assault had not occurred.

Strassberg also emphasized the discrepancies in appellants account of events leading up to his eviction and to his separation from employment. Strassberg opined that he had an ongoing tendency to feel angry and unfairly victimized, and to exaggerate his symptoms. He did not believe appellant was suffering from posttraumatic stress disorder at the time of his evaluation. In Strassbergs opinion, appellant was physically capable of working, though his ongoing anger issues might interfere with employment.

C. The Damages Award

The jurors were free to accept the version of the facts as set forth by respondents expert witnesses over the evidence offered by appellant. Respondents argued that there was no basis for awarding appellant $100,000 for continued psychiatric care, as had been recommended by Karalis. They also highlighted his problematic employment history and his deliberate failure to pay rent while living at the hotel. Ultimately, the jury awarded economic damages for the stipulated amount of medical expenses, and awarded no damages for past or future wage loss. The jury also awarded $12,000 in noneconomic damages.

While appellants injuries were not insignificant, we find that substantial evidence supports the jurys determination of damages. Respondents presented two expert witnesses who testified that he was likely exaggerating or malingering with respect to his psychological injuries. The surgeon who operated on his face opined that the injury was not one that would normally prevent a patients return to the workforce. Evidence was also introduced indicating that appellants physical injuries were resolved within five months following the assault.

If the evidence clearly indicates that plaintiff suffered serious pain, inconvenience, or mental suffering, a verdict for medical expenses alone might be inadequate as a matter of law. [Citation.] However, an award for the exact amount of, or even less than, the medical expenses is not necessarily inadequate if there is a conflict as to whether the plaintiff suffered any substantial injury or pain. (Randles v. Lowry (1970) 4 Cal.App.3d 68, 7374.)

Here, the jury did award $12,000 in general damages. Appellants contention the amount fixed was too low was considered by the trial court in denying his motion for a new trial. The court stated: It appeared to me that Plaintiffs case did not speak to pain and suffering, which would have allowed the jury to draw perhaps the kind of conclusions that you wanted them to draw. Unlike this court, the trial judge saw and heard the witnesses, including appellant, and possessed the power to pass upon their credibility. The determination of the question rests largely in his discretion, and the denial of appellants motion is an indication he approved of the fairness and sufficiency of the verdict. (Gersick v. Shilling, supra, 97 Cal.App.2d 641, 645648; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 7374.)

Appellant cites to Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361, in support of his argument that reversal is required. In that case, a judgment awarding zero dollars in damages after a default judgment had been entered against the defendant was reversed where substantial evidence existed to establish a prima facie case for damages. Johnson has no application here. This case does not concern a default judgment or an award of no damages. In sum, we cannot say that the verdict in the present case is unsupported by substantial evidence.

II. The Damages Award was Not the Result of Passion or Prejudice

Appellant contends the jury award was a product of passion or prejudice based on the allegation that respondents irresponsibly and unconscionably argued that he had failed to work due to extreme hatred towards the White people. Respondents counter that appellant did not raise this as an issue with the trial court, implying that this argument has been waived.

Generally, failure to raise an issue or argument in the trial court waives the point on appeal. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) While appellant states that he objected to respondents arguments regarding his alleged racism, the record indicates that appellant registered only one objection to respondents mention of this evidence in front of the jury. The objection was made during opening arguments and the court sustained the objection and struck the reference. When respondents counsel made references to this issue during closing arguments, appellants counsel did not object, assign it as misconduct, or ask that the jury be admonished to disregard it. Accordingly, the point may be deemed waived.

Even if appellant had not waived this argument, however, we have reviewed the trial transcript and find no evidence to support his contention. Appellants alleged hatred towards White people only came up during the trial because he himself had indicated to Gelb that this was a problem that he had worked through in therapy with Karalis. Also, during Strassbergs evaluation he told the doctor that he had issues with anger towards White people.

During closing argument, respondents counsel mentioned appellants supposed hatred of White people twice. The first time was to point out an inconsistency concerning his treatment by Karalis. Respondents counsel merely pointed out that appellant had told Gelb that Karalis had helped him deal with his hatred of White people, while Karalis denied that he had treated him for this problem.

The second reference was made in the context of suggesting that appellant had psychological issues apart from any posttraumatic stress suffered as a result of the assault. Respondents counsel stated: He has this issue with White people. I dont really know how true that is. That could be part of this exaggeration problem, and that all of this all predates the October assault and has nothing to do with that assault. Thus, defendants counsel did not unduly emphasize appellants racial feelings and even suggested that these feelings were not genuine.

Read in context, it appears that the references were made to show that appellant received psychological counseling for issues that predated the assault, not to attack his character. In sum, we find no evidence that the jurys award of damages was the product of passion or prejudice.

III. Motion for New Trial

Appellant argues that the trial court erred in denying his motion for new trial because it did not weigh the evidence independently, but instead deferred its duty in favor of the jury decision in contravention of case law. We disagree.

Code of Civil Procedure section 657 provides in part: A new trial shall not be granted . . . upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury should have reached a different verdict or decision. Accordingly, in deciding whether to grant a new trial the trial court must independently weigh the evidence and assess whether it sufficiently supports the jurys verdict. [Citations.] [Citation.] As a corollary to this rule, the trial courts ruling is entitled to great weight on appeal. [Citation.] (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 257258.)

The transcript of the hearing on appellants motion shows that the trial court understood its obligation to evaluate the evidence. After hearing arguments from both sides, the court stated: Based on the record, I dont see any basis to either grant a new trial or a judgment NOV.

Appellants arguments that the trial court was influenced by the racist and prejudicial arguments from the defense attorney, and that the court allowed respondents attorney to use his peremptory power to exclude Blacks and Latinos from the jury panel are not well taken. There is nothing in the record suggesting improper conduct on the part of respondents counsel or the trial judge.

The judgment is affirmed.

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[1] Mr. Holland is not a party to this appeal.

[2] Appellant requests that we reverse the judgment and grant the amount of damages that we consider appropriate. Even if we were to find that the award of damages was insufficient, however, we would not calculate a new award but would instead remand this case for a new trial on the issue of damages. (See Cunningham v. Simpson (1969) 1 Cal.3d 301, 310.)