Choi v. Lawrence

Filed 6/22/07 Choi v. Lawrence CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Malcolm Mackey, Judge and Phrasel L. Shelton, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Law Offices of Richard D. Hoffman, Richard D. Hoffman; Donna Bader for Plaintiffs and Appellants.

Law Offices of Marsha Munemura, Robert H. Edgerton; Pollak, Vida & Fisher and Daniel P. Barer for Defendant and Respondent.

_______________________

I. INTRODUCTION

This personal injury action arose out of an automobile accident. Plaintiffs, Young Pil Choi and Joo Yeon Baek, alleged a single cause of action for negligence. They appeal from a judgment entered on a jury verdict and an order denying their new trial motion. The jury awarded plaintiffs damages in the exact amount of the acupuncture and chiropractic expenses they incurred in the two plus months following the incident. Plaintiffs contend the damage awards are inadequate as a matter of law insofar as the jury necessarily found they were injured, but failed to award any amount for pain and suffering. We find: there was conflicting evidence as to the nature and extent of plaintiffs accident-related injuries; given the conflicting evidence, the jury reasonably could conclude plaintiffs were entitled to recover medical costs for short-term treatment of soft tissue injuries; but they did not endure any significant physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, or emotional distress. Accordingly, we conclude the evidence supported the jurys verdict and the trial court did not abuse its discretion in denying the new trial motion. We affirm the judgment.

II. BACKGROUND

We view the evidence in the light most favorable to the judgment. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61; Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 43; Horowitz v. Fitch (1963) 216 Cal.App.2d 303, 307; Gersick v. Shilling (1950) 97 Cal.App.2d 641, 645.) On October 10, 2003, there was a low-impact accident in which defendant, Jarrod Lawrence, rear-ended plaintiffs car at an intersection. Defendant admitted liability. There was no damage to defendants 2001 Ford Explorer Sport and little or no damage to Mr. Chois 12-year-old Mitsubishi Eclipse. There was a low probability the impact caused physical injury. The airbags did not deploy. Plaintiffs were not cut or bruised, except for a small bruise on Mr. Chois knee. Neither the police nor an ambulance were summoned. No police report was prepared. Defendant and Mr. Choi exchanged information. Four minutes after the accident, the parties went their separate ways.

Plaintiffs were co-workers at a medical facilityCare Love Medical Center. Following the accident, they continued on a work-related errand to visit a patient in a hospital. Although they claimed to be in pain, they did not seek any medical treatment during the one and one-half hours they spent at the hospital. When they returned to the medical center where they were employed, two hours or more after the incident, both plaintiffs were x-rayed. Neither received any kind of treatment for any injuries that day. However, their employer subsequently provided chiropractic, massage, and acupuncture treatment. Plaintiffs continued those therapies for two and one-half months. They were never referred to a medical doctor. No magnetic resonance imaging scans were taken in the two plus months after the mishap. Ms. Baek never missed any time from either of her two jobs or from the classes she was attending. Mr. Choi did not miss any time from work. He continued to play golf regularly, as he had done prior to the accident. No pain medication was ever prescribed for either plaintiff.

An orthopedic surgeon, Jon Greenfield, M.D., treated plaintiffs some time later at the request of their attorney. After the incident in question, but before she saw Dr. Greenfield, Ms. Baek was in a second automobile accident. Dr. Greenfield testified both plaintiffs had disk problems. Dr. Greenfield could not say whether those conditions predated or were a result of the accident. Phillip Kanter, M.D., also an orthopedic surgeon, examined the plaintiffs at the request of defendants counsel. Dr. Kanter found no objective evidence to substantiate their physical complaints. Dr. Kanter assumed plaintiffs had suffered minor soft-tissue type injuries, but those injuries would have healed on their own.

Mr. Choi sought to recover: $3,295 in billing from Care Love Medical Center; $3,520 for two magnetic resonance imaging scans; $1,710 in charges from Dr. Greenfield; and $5,260 in future medical costs. Ms. Baek sought to recover: $3,840 in charges from Care Love Medical Center; $1,760 for a magnetic resonance imaging scan; Dr. Greenfields charges of at least $1,375; and $3,500 in future medical costs. In addition, plaintiffs sought damages for pain, suffering, and emotional distress. With respect to non-economic damages, the jury was instructed: [T]he following are the specific items of non-economic damages claimed by Ms. Baek and Mr. Choi. Past and future physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety and emotional distress. [] To recover for further physical pain, mental suffering, loss of enjoyment of life, physical impairment, inconvenience, anxiety, and emotional distress, Ms. Baek and Mr. Choi must prove that . . . he and/or she is reasonably certain to suffer that harm. [] No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based upon the evidence and your common sense. The jury awarded the plaintiffs past economic loss in the exact amount of the charges incurred at Care Love Medical Center; $3,295 for Mr. Choi and $3,840 for Ms. Baek. Neither plaintiff recovered any amount for future economic loss. Nor did either plaintiff recover an award for past or future non-economic loss.

III. DISCUSSION

A. Standards of Review

Plaintiffs contend the evidence was insufficient to support the jurys verdict awarding them no pain and suffering damages and the trial court should have granted the new trial motion. Code of Civil Procedure section 657, which specifies the grounds for a new trial, provides in relevant part: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [] . . . [] 5. Excessive or inadequate damages. [] . . . [] A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the [trial] court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. The standard of review on appeal is well settled. As noted above, we must view the evidence in the light most favorable to the judgment. (Horowitz v. Fitch, supra, 216 Cal.App.2d at p. 307; Kraut v. Cornell (1959) 175 Cal.App.2d 528, 532; Harris v. Los Angeles Transit Lines (1952) 111 Cal.App.2d 593, 597; Gersick v. Shilling, supra, 97 Cal.App.2d at p. 645; Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 521.) The Supreme Court has held, A reviewing court must uphold an award of damages whenever possible (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 508) and all presumptions are in favor of the judgment (Torres v. City of Los Angeles [, supra,] 58 Cal.2d [at p.] 43; Leming v. Oilfields Trucking Co. (1955) 44 Cal.2d 343, 356.) (Bertero v. National General Corp., supra, 13 Cal.3d at p. 61.) As the Court of Appeal explained in Gersick v. Shilling, supra, 97 Cal.App.2d at page 645: The question as to the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has not seen or heard the witnesses, and has no power to pass upon their credibility. Normally, the appellate court has no power to interfere except when the facts before it suggest passion, prejudice or corruption upon the part of the jury, or where the uncontradicted evidence demonstrates that the award is insufficient as a matter of law. In determining whether there has been an abuse of discretion, the facts on the issue of damage most favorable to the respondent must be considered. (Accord, Ward v. Litowsky (1970) 5 Cal.App.3d 437, 440; Haskins v. Holmes (1967) 252 Cal.App.2d 580, 584-585; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 74; Horowitz v. Fitch, supra, 216 Cal.App.2d at p. 310; Graf v. Marvin Engh Truck Co. (1962) 207 Cal.App.2d 550, 554-555; Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 215-216; Wood v. Alves Service Transp., Inc. (1961) 191 Cal.App.2d 723, 733; Adams v. Pacific Motor Trucking Co. (1959) 172 Cal.App.2d 505, 506-507; Frampton v. Stoloff (1956) 142 Cal.App.2d 175, 176; Sills v. Soto (1954) 124 Cal.App.2d 539, 544; Harris v. Los Angeles Transit Lines, supra, 111 Cal.App.2d at p. 597.)

B. Pain and Suffering

In Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-896, the Supreme Court discussed the basic principles governing pain and suffering damages. The question before the court was whether an infant could recover damages for pain and suffering accompanying a salmonella infection contracted in the hospital following her birth. The trial court had instructed the jury no pain and suffering damages could be awarded because of the plaintiffs age. The jury awarded the precise amount of medical expenses. The trial court denied the plaintiffs new trial motion. (Id. at pp. 891-892.) The Supreme Court held: If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of. (State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338.) In general, courts have not attempted to draw distinctions between the elements of pain on the one hand, and suffering on the other; rather, the unitary concept of pain and suffering has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433; Werchick, Unmeasurable Damages and a Yardstick (1966) 17 Hastings L.J. 263.) Admittedly, these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. (Seffert v. Los Angeles Transit Lines[, supra,] 56 Cal.2d [at pp.] 511-512 (dissenting opinion of Traynor, J.); McCormick on Damages (1935) pp. 318-319.) But the detriment, nevertheless, is a genuine one that requires compensation (Civ. Code, 3333; State Rubbish etc. Assn. v. Siliznoff, supra, 38 Cal.2d 330), and the issue generally must be resolved by the impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence. (Beagle v. Vasold (1966) 65 Cal.2d 166, 181; cf. Seffert v. Los Angeles Transit Lines, supra, 56 Cal.2d [at p.] 507.) [] Indeed, mental suffering frequently constitutes the principal element of tort damages (Rest.(2d) Torts, 905, com. c); awards which fail to compensate for pain and suffering have been held inadequate as a matter of law. (Clifford Ruocco (1952) 39 Cal.2d 327, 329; Haskins v. Holmes[, supra,] 252 Cal.App.2d [at pp.] 586-587; Buniger v. Buniger (1967) 249 Cal.App.2d 50, 54; Gallentine v. Richardson (1967) 248 Cal.App.2d 152, 155; Chinnis v. Pomona Pump Co. (1940) 36 Cal.App.2d 633, 642-643; Bencich v. Market St. Ry. Co.[, supra,] 20 Cal.App.2d [at p.] 522.) (Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3dat pp. 892-893, fn. omitted.)

Pain and suffering may be established by lay testimony, including a plaintiffs own testimony. No opinion testimony is required from a properly qualified medical physician. (Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3dat p. 895; Green v. Pacific Lumber Co. (1900) 130 Cal. 435, 440-441.) Moreover, the trier of fact may infer pain from the nature of the injury. The Supreme Court has held: [E]ven in the absence of any explicit evidence showing pain, the jury may infer such pain, if the injury is such that the jury in its common experience knows it is normally accompanied by pain. (Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 637.) Indeed, for certain injuries the inference of pain may be so compelling that the trial judge would be justified in ordering a new trial if the jury declines to draw it. [T]he items of pain, suffering and inconvenience . . . are inevitable concomitants with grave injuries. . . . A jury may not eliminate pain from wounds when all human experience proves the existence of pain . . . . (Todd v. Bercini (1952) 371 Pa. 605, 607-608, 92 A.2d 538, 539.) (Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3d at p. 896.) In Capelouto, there was detailed evidence of the childs suffering. The Supreme Court concluded, absent the erroneous no pain and suffering damages instruction, the jury would have been impelled to infer some pain and suffering. (Id. at p. 897.)

As can be seen, the Supreme Court in Capelouto cited several cases in support of the proposition that, [A]wards which fail to compensate for pain and suffering have been held inadequate as a matter of law. (Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3d at p. 893.) The cited cases involved serious injuries necessarily giving rise to pain and suffering: uncontradicted evidence of serious injury, extensive medical treatment and hospital care, surgery, and the reasonable probability of a further operation (Clifford v. Ruocco, supra, 39 Cal.2d at pp. 328-329); multiple fractures, a depressed cheekbone, surgery, and a trial courts express conclusion the plaintiff suffered general damage (Haskins v. Holmes, supra, 252 Cal.App.2d at pp. 582-588); an extremely painful broken hip, surgery to implant a prosthetic device, three subsequent strokes, and a continuing disability (Buniger v. Buniger, supra, 249 Cal.App.2d at pp. 51-54); a gunshot wound, surgery, a three-day hospitalization, a five to six-month healing period, a large scar, continuing discomfort, and possible further surgery (Gallentine v. Richardson, supra, 248 Cal.App.2d at pp. 153-155); multiple fractures of the cheek, skull, hip, and ribs, a concussion, a puncture wound, internal injuries, a permanent disfiguring injury to the face, a twenty-day hospitalization, and five months at home on bed rest (Chinnis v. Pomona Pump Co., supra, 36 Cal.App.2d at pp. 635-643 [first plaintiff]); multiple fractures to the collar, thigh, arm, and shoulder bones, three to four weeks in traction, two casts, a five-month hospitalization, and permanent injury to the leg and deformity of the foot (ibid. [second plaintiff]); and a fractured left humerus, a badly crushed foot, a six-month hospitalization, traction, surgery to insert pins in the toes, and a partial amputation of the foot. (Bencich v. Market St. Ry. Co., supra, 20 Cal.App.2d at pp. 521-530; see also Wilson v. R. D. Werner Co. (1980) 108 Cal.App.3d 878, 880-881; Thompson v. Mattucci (1963) 223 Cal.App.2d 208, 208-211.)

In other cases, however, damage awards in the exact amount of medical costs have been upheld. (Randles v. Lowry (1970) 4 Cal.App.3d 68, 70-72; Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 556-557; 22 Am.Jur.2d (2003) Damages, 203.) In other words, even when liability is established, and special damages are awarded, compensation for pain and suffering is not always required. (Ibid.) In Miller v. San Diego Gas & Elec. Co., supra, 212 Cal.App.2d at pages 556-557, the plaintiff claimed she received severe and permanent injuries from an electric shock. Her medical bills totaled $1,133.18, which was exactly the amount a jury awarded in damages. The plaintiffs new trial motion was denied. The Court of Appeal for the Fourth Appellate District observed, It cannot be said . . . that because a verdict is rendered for the amount of medical expenses or for a less amount the verdict is inadequate as a matter of law. Every case depends upon the facts involved. (Id. at p. 558.) In Miller, there was evidence the electric shock would have been minimal and would not have caused any physical injury. Further, there was no medical evidence the plaintiffs arm had been burned or blistered. Moreover, according to the Court of Appeal, There was evidence which would have fully justified a finding that the arm had been treated with dye or some other coloring material. (Id. at p. 560.) The Court of Appeal concluded the evidence supported the verdict: [W]e are compelled to conclude that there was a substantial conflict as to whether plaintiff received any substantial injury and as to whether bills incurred for medical examinations and treatment were rendered necessary by reason of the shock or whether they were necessary at all. The evidence would here amply support a finding that plaintiff received no injury whatever. . . . Faced by this conflict in testimony and with evidence that there was negligence on the part of the defendant, 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. Obviously, the trial court so appraised the situation and permitted the judgment to stand. (Ibid.)

Similarly, in Randles v. Lowry, supra, 4 Cal.App.3d at pages 70-72, a child was injured when the station wagon in which he was riding was rear-ended by the defendants truck. The child suffered two cuts on his head. After the collision, the childs mother saw him on the floor of the car. He was bleeding from one of the two small cuts. Further, according to the mother, He was quite upset and crying. (Id. at p. 72.) A doctor testified: the cuts were not severe and did not require suturing; x-rays showed no bone injury or other abnormality; and no treatment other than a tetanus booster shot was necessary. (Ibid.) On appeal, this court held a jury verdict awarding only special damagesthe medical expenses incurredwas not inadequate as a matter of law. (Id. at pp. 73-74.) We explained: In the instant case, the evidence shows that [the childs] injuries consisted solely of two lacerations which did not need suturing, and only required two visits to his family doctor[, on the day of the accident and the following day,] and a total doctor bill of $10 (plus $5.50 for St. Johns Hospital report, plus X-ray charges). There is no evidence that he suffered any discomfort after the date of the accident. . . . [] . . . [W]e cannot say that under the facts of the instant case a verdict awarding only special damages is inadequate as a matter of law. An appellate court will not set aside a judgment for no more than actual medical expenses unless the trial court abused its discretion. (Haskins v. Holmes, [supra,]252 Cal.App.2d [at p.] 586.) 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. ([Ibid.]; Buniger v. Buniger, [supra,] 249 Cal.App.2d 50.) 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. (Haskins v. Holmes, supra[, 252 Cal.App.2d at p. 586]; Miller v. San Diego Gas & Electric Co., [supra,]212 Cal.App.2d [at p.] 558.) (Randles v. Lowry, supra, 4 Cal.App.4th at pp. 73-74; see also Horowitz v. Fitch, supra, 216 Cal.App.2d at pp. 306-308, 310-311 [conflicting evidence as to nature and extent of injuries and, medically, no objective signs of injury]; Graf v. Marvin Engh Truck Co., supra, 207 Cal.App.2d at pp. 551-556 [same].)

When, as here, there is conflicting evidence as to the cause, extent, or permanency of a plaintiffs injuries, an appellate court may not interfere with a trial courts order denying a new trial on asserted inadequate damages grounds. (Randles v. Lowry, supra, 4 Cal.App.3d at pp. 70-72; Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 931-932; Horowitz v. Fitch, supra, 216 Cal.App.2d at pp. 306-311; Kraut v. Cornell, supra, 175 Cal.App.2d at pp. 530-533; Frampton v. Stoloff, supra, 142 Cal.App.2d at pp. 176-179.) An award of economic damages alone is not necessarily inadequate when there is a conflict in the evidence as to whether the plaintiffs suffered any substantial injury or pain. (Randles v. Lowry, supra, 4 Cal.App.3d at p. 74; Haskins v. Holmes, supra, 252 Cal.App.2d at p. 586; Miller v. San Diego Gas & Electric Co., supra, 212 Cal.App.2d at p. 558.) Every case involving the jurys failure to return a non-economic damage award turns on its facts. (Miller v. San Diego Gas & Electric Co., supra, 212 Cal.App.2d at p. 558.)

Here, defendant conceded liability. Further, the jury necessarily found plaintiffs were injured because it awarded economic damages. But the jury did not award any pain and suffering damages. The evidence in this case, viewed in the light most favorable to the judgment, fully supported the jurys verdict and the trial court did not abuse its discretion in denying the new trial motion. The jury reasonably could find as follows: this was a negligible, low-impact accident resulting in some minor soft-tissue injuries that healed on their own; the airbags did not deploy; defendants vehicle was not damaged; Mr. Chois car suffered little or no damage; plaintiffs were not cut or bruised, except for a small bruise on Mr. Chois knee; neither the police nor an ambulance were summoned; no police report was prepared; plaintiffs, who claimed to be in pain, did not seek any treatment for their injuries after the accident, even though they were in a hospital for two hours visiting a patient; neither plaintiff received treatment of any kind for injuries on the day of the accident; Ms. Baek never missed any time from either of her two jobs or from the classes she was attending; Mr. Choi did not miss any time from work; he continued to play golf after the accident; plaintiffs were never prescribed any pain medication for injuries received in the incident; in the two and one-half months following the accident, plaintiffs were treated by chiropractors and acupuncturists, but they were not referred to a medical doctor, and no magnetic resonance imaging scans were taken. Dr. Greenfield subsequently diagnosed disk problems, but he could not say whether the plaintiffs conditions predated or were a result of the accident. Moreover, before she saw Dr. Greenfield, Ms. Baek had been in a second automobile accident. Given this evidence, the jury reasonably could conclude: plaintiffs were entitled to recover the cost of chiropractic and acupuncture treatment they received in the two plus months following the accident; they did not suffer any significant physical or mental pain, loss of enjoyment of life, physical impairment, inconvenience, anxiety, or emotional distress as a result of their soft-tissue injuries; and therefore they were not entitled to pain and suffering damages. For the same reasons, the trial court did not abuse its discretion when the new trial motion was denied.

IV. DISPOSITION

The judgment is affirmed. Defendant, Jarrod Lawrence, is to recover his costs on appeal jointly and severally from plaintiffs, Young Pil Choi and Joo Yeon Baek.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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