Hamill v. Smith

Filed 8/14/07 Hamill v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John P. Vander Feer, Judge. Affirmed.

Welebir & McCune and James F. Tierney, III for Plaintiff and Appellant.

Horvitz & Levy, Peter Abrahams, Jason R. Litt; Norton & Melnik, John S. Walker and Sonali Olson for Defendant and Respondent.

1. Introduction

Audry Hamill claims that she was injured when Melanie Smiths car struck the rear end of the car in which she was riding. The trial court directed a verdict on the issue of whether Smith was negligent and as a result caused harm to Hamill. Smith claimed that there was very little injury to the Hamill car and that Hamills claims of injury and expenses for medical treatment were excessive and unnecessary.

Hamill asserts that the trial court erred when it refused to continue the trial in order to allow her to investigate a recent medical report regarding her condition. In addition, Hamill asserts that the jury verdict for her medical expenses was inadequate as a matter of law.

We find no trial court error and confirm the judgment of the jury.

2. Facts

Hamill and her boyfriend, Steven McNeil, were traveling to Las Vegas on April 18, 2003, on the I-15 freeway at approximately 70 miles per hour when the driver of a big rig traveling adjacent to their car lost control. McNeil stopped his car to avoid the big rig and then began to move ahead. At that time the car behind them driven by defendant Melanie Smith struck their car. Smiths car propelled McNeils car into the car in front of his car. Some damage was sustained in the front and rear of McNeils car, some of which was temporarily repaired in Las Vegas.

Hamill testified that after the accident they stopped at a rest area and she began to feel numbness in her arm. When they arrived in Las Vegas she went right to bed and the following morning her right arm and shoulder were painful and she went to a hospital where X-rays were taken and her condition was diagnosed as a whiplash injury.

When she returned to Southern California, Hamill saw a chiropractor who ordered an MRI. Over the next two years she obtained approximately 13 studies of her condition including MRIs, EMG nerve condition studies, X-rays, and CAT scans.

Hamills action was filed on July 14, 2003, and was originally set for trial on October 22, 2004, continued to, and finally commenced on June 7, 2005. Hamills expert testified that in a May, 2005 CAT scan he visualized a subluxation of Hamills spine a dislocation of her vertebrae - which he opined was due to damage caused by the accident, and which accelerated the onset of degeneration of Hamills joints. When Hamill moved ex parte to continue the trial again to a date after June 2005 to allow for a full medical evaluation of the new evidence, the trial court denied the request, noting that the original trial already had been continued from the original date to the June 7, 2005 date.

The jury awarded Hamill damages of $6,951. The trial court granted plaintiff an additur of $2,100, and denied Hamills motion for new trial. Hamill claims that the damage award was inadequate as a matter of law.

3. Trial Courts Refusal to Continue Trial

Hamill contends that the trial court breached its discretion when it refused her request to continue the trial after continuing the original trial date from October 2004 to June 2005. Hamill relies upon testimony of her expert that the increase in the degeneration of her vertebrae was only visible in May 2005 and left her insufficient time to pursue the evidence prior to the June 2005 trial. Hamill cites Garciav.McCutchen (1997) 16 Cal.4th 469 in support of her assertions that expeditious processing of civil cases cannot override the public policy that litigation be disposed of on the merits whenever possible. In the Garcia case the trial court dismissed plaintiffs action for counsels noncompliance with local rules implementing the 1990 Trial Court Delay Reduction Act (Gov. Code, 68600 et seq.). The California Supreme Court reversed the trial court order. In this case the trial court did not dismiss the action. To the contrary, the trial court granted Hamills initial request to continue the trial, and to set the new trial in June 2005.

Unlike Garcia, where the trial court refused to hear the case and as a sanction dismissed the complaint, the trial court in this case heard the case, even though the complaint had been filed two years earlier. Furthermore, Hamill had obtained numerous X-rays, CAT scans, MRIs, and consulted with at least five doctors during the period between the filing of the action and the trial. Even though the most recent Hamill X-ray occurred within a month of the actual trial, neither the trial court nor counsel for the defendant objected to the testimony of Hamills expert based upon that information. There was no evidence that an additional period of time would have provided more evidence than the information obtained by the myriad of consultants and tests already performed on Hamill.

Nor is this case similar to Oliverosv.County of LosAngeles (2004) 120 Cal.App.4th 1389, cited by Hamill, in which the trial court denied a continuance sought by the attorney for the county even though the attorney representing the county had only recently retired from the practice of law. The Oliveros court, citing Linkv.Cater (1998) 60 Cal.App.4th 1315, concluded that a court must look beyond the limited facts which cause a litigant to request a last minute continuance and must consider the degree of diligence in counsels efforts to bring the case to trial. The court concluded that the trial court in that case abused its discretion in refusing to grant time for new counsel to prepare the case. Unlike this case, the refusal there resulted in the denial of a fair hearing on the merits. Here counsel had substantial time to prepare for trial, and was even allowed to introduce evidence of very recent medical information regarding Hamills condition. The trial court did not abuse its discretion by allowing the case to proceed to trial.

Nor does the case of Hernandezv.SuperiorCourt (2004) 115 Cal.App.4th 1242 support plaintiffs position. In Hernandez, the trial court rejected the plaintiffs request to continue his trial even though plaintiffs counsel died shortly before trial. The Court of Appeal found the denial an abuse of discretion and ordered a new trial date and an extension of the discovery cutoff date. Plaintiff Hamill sought to delay this trial at the last minute before trial, based upon her last medical examination.

Hamill cites a number of other cases in support of her contention that the trial court erred in refusing her request for a continuance, most of which have little application to this case: In re Stephanie M. (1994) 7 Cal.4th 295, [determination of trial court whether to grant custody of a child to her grandmother]; Shamblin v. Brattain (1988) 44 Cal.3d 474 [whether the trial court properly granted relief from default]; In re Marriage of Martin (1991) 229 Cal.App.3d 1196 [whether the trial court erred in granting spousal support to wife]; Fatica v. Superior Court (2002) 99 Cal.App.4th 350 [precluding a treating physician from testifying to his opinion of plaintiffs condition].

None of the cases cited by plaintiff support the position that the trial court erred in refusing to delay Hamills trial, particularly when the trial court granted plaintiffs witness the right to testify to facts regarding her condition that were learned only weeks before the trial.

4. Inadequate Jury Verdict

The jury awarded plaintiff $6,951 for special damages, and nothing for general damages. After plaintiffs motion for a new trial or in the alternative additur, the trial court denied the new trial and granted plaintiff an additional $2,100 as an additur.

Plaintiffs expert was allowed to testify that plaintiff suffered a spinal injury caused by the accident, basing his opinion on the May 2005 X-ray which showed a subluxation of the vertebrae of plaintiff, i.e. one of the vertebrae slid forward or backwards in relation to another vertebra. The witness found the subluxation to be four or five millimeters in size and opined that the joints in question were damaged at the time of the auto accident.

The trial court directed verdict against defendant, finding that she was responsible for the accident. In light of that fact, plaintiff argues that the jurys failure to award general damages was inadequate as a matter of law, citing Haskinsv.Holmes (1967) 252 Cal.App.2d 580.)

We do not find the opinion in Haskins applicable here. Haskins was assaulted by the defendant, and sustained substantial actual medical expenses for injuries to his head and face, fractures to his cheek and jaw bones and surgery from the effects of the fracture. The trial court concluded that the injury was caused by the defendants assault and battery. The trial court awarded medical expenses of $911.37 and nominal expenses of an additional $88.63, allowing nothing for pain, suffering, and inconvenience accompanying the injury and surgery. The Court of Appeal found that the award was inadequate and the denial of damages was an abuse of the trial courts discretion. (Haskinsv.Holmes, supra, 252 Cal.App.2d at p. 587.)

That case bears no similarity to this one. The trial court in Haskins rendered the verdict. In this case a unanimous jury found Hamills past economic damages to be $6,951, awarding her no damages for past and future noneconomic damages, including lost earnings and expenses. There was substantial evidence upon which the jury could reach that conclusion. As to the additur granted by the trial judge: The primary responsibility of examining the amount of the jurys damage award rests on the trial court which is more familiar with the evidence than the appellate court. The trial judges determination on a motion for a new trial on the issue of excessive damages is usually upheld. (Hilliardv.A. H. Robins Co. (1983) 148 Cal.App.3d 374, 414.)

There was substantial evidence to support the general verdict in this case and the additur granted by the trial court. The evidence showed that Hamill had obtained a combination of 12 MRIs, CAT scans, and X-rays, none of which showed she had suffered permanent injury caused by the accident. In the few weeks before the trial, Hamill obtained another X-ray from which her expert, Loddengaard, for the first time concluded that Hamill had sustained a spinal cord injury as a result of the accident. Smiths witness, Barry Ludwig, a neurologist, testified that he had examined all of the records of Hamills tests and they showed merely degenerative changes in her spine, a function of age, none of which were traumatically induced. Thomas Murtaugh, a mechanical engineer, also testified for Smith. His background was accident reconstruction and biomechanics. He concluded from the condition of the cars of Smith and Hamill that the speed of the two cars could not be more than 14 miles per hour maximum, that damage to the Hamills car was less than $2,000, and that the force of gravity to which Ms. Hamill was subjected as a result of the collision was in the neighborhood of the forces that people experience just conducting their lives and everyday activities. It is the force one sustains when one sits down into a chair. Murtaugh testified that the force of gravity resulting from the two cars colliding would cause only a neck strain.

The testimony of the witnesses for Smith would have been sufficient to convince a jury that Hamills injuries were minimal.

5. Disposition

The judgment is affirmed. Smith is awarded costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Hollenhorst

Acting P. J.

s/Richli

J.

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