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Gonzalez v. Superior Paper and Plastic

Filed 8/29/07 Gonzalez v. Superior Paper and Plastic CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Jean E. Matusinka, Judge. Affirmed.

Smyth Law Office and Andrew E. Smyth for Plaintiffs and Appellants.

Horvitz & Levy, David M. Axelrad, Peder K. Batalden, Feliz Shafir; Corral, Chase, Parish & Arnett and Marc H. Garber for Defendants and Respondents.

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Appellants, Otto and Gloria Gonzalez, challenge the amount of noneconomic damages awarded to Mr. Gonzalez in this action from an automobile collision. His claim is precluded by his failure to seek a new trial on the issue of insufficiency of damages. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On October 21, 2003, Jose Panameno, while working for respondent, Superior Paper and Plastic, made a U-turn in front of a vehicle driven by Otto Gonzalez, causing a collision. Gloria Gonzalez, appellants wife, was seated in the passenger seat. Mr. and Mrs. Gonzalez were hospitalized for injuries. Mrs. Gonzalez suffered a minor head injury and left the hospital the following day. Mr. Gonzalez suffered a fractured right hip and underwent surgery to put a metal plate and screws along the back wall of his hip socket. He was discharged from the hospital after eight days.

The Gonzalezes brought an action against Jose Panameno and Superior Paper and Plastic for their personal injuries. At trial, Mr. Gonzalez testified that he suffers from chronic pain in his neck, back, right hip, has trouble walking, and needs a cane. An orthopedic surgeon, Dr. Arthur Kreitenberg, testified that he examined Mr. Gonzalez and found that he had decreased sensation on his right side, limited range of motion and ability to walk, his right hip was a quarter inch shorter than the left, and he had a disc problem in his neck causing compression of the spinal cord. Dr. Kreitenberg said that Mr. Gonzalez would need surgery on his neck and a hip replacement in the future. The defendants presented impeaching videotaped surveillance of Mr. Gonzalez walking without a cane, running errands without using his cane, doing sit-ups and vigorously kicking a gymnasium punching bag.

The jury returned a verdict in favor of Mr. Gonzalez for $86,640, of which $61,640 was economic damages and $25,000 noneconomic damages. The award for Mrs. Gonzalez was $4,000, all for noneconomic damages. Judgment was entered and the Gonzalezes filed this timely appeal.

DISCUSSION

On appeal, the only issue raised is insufficiency of noneconomic damages awarded to Mr. Gonzalez. Failure to move for a new trial on the ground of excessive or inadequate damages precludes a challenge on appeal to the amount of damages if the challenge turns on the credibility of witnesses, conflicting evidence, or other factual questions. [Citations.] A trial court ruling on a new trial motion on the ground of excessive or inadequate damages must weigh the evidence and acts as an independent trier of fact. [Citations.] Thus, the trial court is in a far better position than the Court of Appeal to evaluate the amount of damages awarded in light of the evidence presented at trial. [Citations.] (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.)

Mr. Gonzalez did not move for new trial on the basis of inadequacy of damages, or at all. This precludes him from raising the issue on appeal. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919, County of Los Angeles v. Southern Cal. Edison Co., supra, 112 Cal.App.4th at p. 1121.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.

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