Chan v. Soo

Filed 9/27/06 Chan v. Soo CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

This appeal comes to us from a lawsuit alleging personal injuries arising from two separate rear-end automobile collisions. Plaintiff Jane W. Chan appeals from a judgment in favor of defendants following a special jury verdict, finding that neither accident was a substantial factor in causing her injuries. Plaintiff contends the trial court erred in denying her motion for new trial. We affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. First Accident--October 13, 2002

On October 13, 2002, plaintiff was involved in an automobile accident, while she was a restrained, front-seat passenger in a car driven by her boyfriend, Thomas Ma. Plaintiff and Mr. Ma were stopped at a red light, when they were rear-ended by a car driven by Andy Chou. Mr. Ma estimated that Andy Chou’s vehicle was traveling at three to four miles per hour at the time of the collision. Neither vehicle sustained any structural damage; there were some scratches on Mr. Ma’s car.

Plaintiff complained of pain at the scene. However, she did not think her symptoms were serious, as she considered the accident “basically kind of minor.” Neither the police nor an ambulance was summoned to the scene. Plaintiff did not go to the emergency room and did not seek medical treatment until approximately two days after the accident.

Plaintiff filed a personal injury action,[1] alleging that she had been harmed in the collision, but did not specify the type of the injury sustained.

B. Second Accident--November 18, 2003

On November 18, 2003, plaintiff was driving southbound on Highway 101, in the vicinity of Redwood City, when she was involved in another rear-end collision. The traffic was bumper to bumper and was moving less than five miles per hour. At one point, due to the flow of traffic, plaintiff brought her vehicle to a stop. While stopped on the freeway, plaintiff’s vehicle was struck from behind by a car driven by Henry Honniball. The collision did not cause plaintiff’s car to move from its stationary position.

After the collision, plaintiff and Honniball moved their vehicles into the center divider, and exchanged information. Plaintiff did not tell Honniball that she was injured and did not complain of any pain. After exchanging information, plaintiff retrieved a camera from her car and took some photographs of her car and Honniball’s car. Plaintiff’s vehicle sustained minor damage from the collision. Plaintiff, herself, sustained no cuts or bruises as of result of the collision.

Following the accident, plaintiff drove herself to Mills Peninsula Hospital. While at the emergency room, plaintiff complained only of back pain. Later that same day, plaintiff went to her primary physician and again complained only about having back pain.

Plaintiff filed a second amended complaint, naming Honniball as an additional defendant.[2] Shortly after the second amended complaint was filed, Honniball died. Plaintiff then filed a third amended complaint, substituting the Estate of Henry Honniball as a defendant.[3]

C. Symptoms of Neck and Back Injury

Mr. Ma testified that prior to the accident plaintiff was an avid bowler, who bowled at least two to three times per week. However, following the October 13, 2002 accident, plaintiff gradually reduced the frequency of her bowling, and eventually stopped bowling altogether. Mr. Ma stated that since the October 13, 2002 accident, he and plaintiff could not “even go through any trip[s] at all . . . .” The only type of physical activity they can now enjoy is something “a little slow, like, walking . . . .” Plaintiff also is unable to sit for long periods of time and often needs to stretch and move around.

On cross-examination, Mr. Ma admitted to having taken two long trips to Hong Kong with plaintiff in February 2004 and February 2005. Additionally, in the summer of 2004, plaintiff accompanied Mr. Ma on a trip to Hawaii, where the pair went on a boating excursion to swim with the dolphins.

A co-worker of plaintiff testified that after the October 13, 2002 accident, he observed plaintiff having difficulties sitting in one position for long periods of time. He noticed that she would get up several times and would do stretches in the hallway. A friend of plaintiff testified that prior to the October 13, 2002 accident, plaintiff did not show any signs of physical problems and had a very sweet and friendly personality. However, on a recent trip to Las Vegas, plaintiff did not participate in any activities and was in a “really unacceptable” mood.

Plaintiff testified that she was only 80 per cent recovered from the accidents and that she was restricted in her activities. On cross-examination, plaintiff admitted telling one of her doctors that, within seven to ten days of the November 18, 2003 accident, she was starting to feel better. Plaintiff further admitted going to Hawaii in the summer of 2004, and taking a boat trip out into the ocean to swim with the dolphins.

D. Medical Testimony

1. Plaintiff’s Expert

Plaintiff called Jerome Schofferman, M.D., a pain management specialist. Dr. Schofferman first saw plaintiff on May 15, 2003, approximately seven months after the first collision. Dr. Schofferman performed a physical examination and ordered a magnetic resonance imaging (MRI) scan of plaintiff’s cervical and lumbar spine, along with some x-rays.

The MRI scan of plaintiff’s lumbar spine revealed that the bottom disk in her lower back had some drying or desiccation. According to Dr. Schofferman, desiccation was not an unusual finding. However, in normal, healthy people in plaintiff’s age group (early 30’s), with no history of back pain, the finding was generally considered a mild abnormality. Dr. Schofferman opined that “the chances of having a normal MRI scan are like 70, 80 percent, so statistically to have even a small abnormality in a young individual would mean that this is more likely than not abnormal, as opposed to just being part of the normal aging process.”

The MRI scan of plaintiff’s cervical spine revealed three herniated disks in her neck, which Dr. Schofferman opined was “much more abnormal” than the results of the lumbar MRI scan. According to Dr. Schofferman, plaintiff’s neck and back symptoms were “totally” consistent with the results from her MRI scans.

It was Dr. Schofferman’s opinion that the October 13, 2002 accident caused the three herniated disks in plaintiff’s neck. He further opined that the lumbar disk abnormality “was probably present prior to either accident . . . but was rendered symptomatic by the first accident originally . . . .”

Dr. Schofferman testified that whiplash is the generally accepted term for neck pain following a motor vehicle accident. He testified that there was a very poor correlation between vehicle damage and whether or not a person will develop whiplash. Thus, the fact the vehicle in the first rear-end collision sustained no damage was of “very little significance” to Dr. Schofferman.

Dr. Schofferman testified that the treatment plaintiff received from November 2003 through February 2004 was entirely related to the second collision. He opined that after about three months following the second collision, the effects of the two collisions blended together.

On cross-examination, Dr. Schofferman admitted that the diagnostic MRI reports described the purported cervical spine herniations as “tiny central disk protrusions.” He further admitted that there was no scientific or medical test to determine when plaintiff actually sustained the three herniated disks in her neck, and as such, he had to rely on her medical history to correlate the complaints with the structural issues. Dr. Schofferman further testified that plaintiff declined certain diagnostic injections that would have helped to pinpoint the exact nature of her neck and back pain. He was unable to state for certain that plaintiff’s neck pain was caused by the herniated disks.

Dr. Schofferman also conceded that some of his opinions were based on his understanding that plaintiff had no prior neck or back problems. He was shown chiropractic records, indicating that plaintiff had back problems before the October 13, 2002 accident. Dr. Schofferman testified on redirect that the records of plaintiff’s longtime family doctor did not show any notation of prior neck or back problems.

2. Defendant Andy Chou’s Expert

Defendant Andy Chou called Victor Prieto, M.D., an orthopedic surgeon. Dr. Prieto reviewed the MRI films of plaintiff’s cervical and lumbar spine. The MRI scans of plaintiff’s cervical and lumbar spine showed no pathology, other than some very mild degenerative changes. It was Dr. Prieto’s opinion that the pathology on plaintiff’s cervical spine was not related to an automobile accident. Dr. Prieto testified that the MRI scan of plaintiff’s cervical spine did not show any fractures or dislocation or herniated disks.

Dr. Prieto testified that his physical examination of plaintiff in April 2005, was a relatively normal one. During the examination, plaintiff told Dr. Prieto that she was experiencing some form of pain 24 hours a day, seven days a week. According to Dr. Prieto, there was a disparity between the severity and magnitude of the accident and the prolonged nature of plaintiff’s symptoms. Dr. Prieto described the disparity as follows: “If there was a fracture, if there was some documentation of a true herniated disk or annular ligament damage, which is the ligament that supports the disk, I could understand that, and that makes sense why symptoms never resolve, but when we can’t attribute it to joint inflammation, joint damage of the spine, disk damage, we’re left under this term ‘soft tissue,’ and it’s sort of a general term meaning, you know, there may have been a muscular sprain or strain.” He further explained that a bad sprain results in a large number of torn ligaments, and that an MRI scan would show swelling even six to nine months following an injury. Dr. Prieto stated that neither he, nor the radiologist, nor the other defense expert, noted any such inflammation on plaintiff’s MRI scan. Dr. Prieto concluded that plaintiff sustained some type of soft tissue injury, but that given that impact of the collision was the equivalent of plopping oneself firmly into a chair, the injury should have clearly dissipated within three months.

On cross-examination, Dr. Prieto testified that plaintiff’s time off from work and elected course of treatment were not unreasonable. Dr. Prieto testified on redirect that plaintiff told him that she did not have any back problems prior to October 13, 2002. He further testified that his review of the records from plaintiff’s treating chiropractor revealed a notation that plaintiff had experienced back problems prior to the first accident. On further cross-examination, Dr. Prieto testified that records of plaintiff’s family doctor, as late as May 2002, did not indicate any neck or back complaints.

3. Defendant Honniball’s Expert

Defendant Honniball called Gordon Lundy, M.D., an orthopedic surgeon. Dr. Lundy reviewed plaintiff’s MRI films, and gave plaintiff a physical examination. He testified that the MRI films showed only normal degenerative changes, which can begin at age 18 or even younger. He agreed with the radiologist’s conclusion that plaintiff’s cervical spine had some tiny protrusions. Bulges and protrusions of disks may be present in people who are asymptomatic. The MRI film of plaintiff’s lumbar spine indicated some normal dehydration along the disks. Dr. Lundy found no evidence of disk herniation or protrusion, or other abnormality that would likely lead to any neurological or any other lasting symptoms.

Dr. Lundy testified that plaintiff’s physical examination revealed no objective signs of an abnormality. Plaintiff had a normal range of motion in neck and lower back. Dr. Lundy found no evidence of muscle spasms or neurological problems. Dr. Lundy was unable to correlate any objective physical symptoms to plaintiff’s subjective complaints of pain.

It was Dr. Lundy’s opinion that there was no evidence of any substantial new injury or any marked exacerbation of prior complaints as a result of the November 18, 2003 collision. He further opined that if plaintiff suffered an injury in the second collision, it would have been at the most some mild type of exacerbation of prior problems, which would have resolved itself within a month or so.

On cross-examination, Dr. Lundy testified that the emergency room doctor who examined plaintiff on the date of the second collision (November 18, 2003) noted some muscle spasms were present in her lower back. He further testified on redirect that when Dr. Schofferman saw plaintiff two days later on November 20, 2003, there was no mention of any spasms in the medical summary. Reading from the actual note, Dr. Lundy stated that Dr. Schofferman noted there were “no specific tenderness or trigger points . . . .”

E. Accident Reconstruction Testimony

1. Defendant Andy Chou’s Expert

Defendant Andy Chou called James Hughes, a traffic accident reconstructionist. Mr. Hughes testified that he had twenty years of experience in accident reconstruction and kinematics. Kinematics is the study of forces applied to people within motor vehicles (or pedestrians) during an automobile collision. Mr. Hughes estimated that he had reviewed more than 5,000 to 6,000 motor vehicle accidents.

Mr. Hughes reviewed all of the deposition testimony of plaintiff, Mr. Ma, and defendant Andy Chou, as well as significant number of photographs of the two cars involved in the October 13, 2002 collision. According to Mr. Hughes, the change of velocity, or delta velocity for Mr. Ma’s car, was 3.01 miles per hour. Mr. Hughes explained that delta velocity represents the resultant change in momentum between the stationary vehicle and the striking vehicle. Mr. Hughes testified that the October 13, 2002 collision caused a change in velocity in Mr. Ma’s vehicle that occurred in less time than it takes to blink an eye.

Mr. Hughes calculated the forces of gravity, or G forces, felt by plaintiff and Mr. Ma would be approximately 1.89 Gs. He testified that ordinary activities such as plopping in a chair or jumping off a normal, six-inch step would generate about five Gs. According to Mr. Hughes, people in crash tests begin to complain about pain at about 14 Gs.

On cross-examination, Mr. Hughes testified that he had not physically inspected the vehicles involved in the October 13, 2002 collision. Mr. Hughes also had not met plaintiff or reviewed any of her medical records.

2. Defendant Honniball’s Expert

Defendant Honniball called Richard Stuart, Ph.D., a physicist working in the field of accident reconstruction. Dr. Stuart testified that he had reviewed over 16,000 motor vehicle accident, of which 3,000 to 4,000 were rear-end collisions. He estimated that he had testified in court approximately 200 to 300 times.

Dr. Stuart reviewed plaintiff’s deposition testimony, photographs of the vehicles, and the repair estimate for plaintiff’s vehicle. In Dr. Stuart’s opinion, the change of velocity of plaintiff’s car was 2.4 miles per hour, which generated “at most a half G.” Dr. Stuart equated the force of the impact as a “momentary moderate brake application.”

On cross-examination, plaintiff’s counsel rhetorically stated that nine times out of ten Dr. Stuart testified for the defense, to which Dr. Stuart replied: “I do more defense work. For some reason all the good plaintiffs’ cases seem to settle.” Plaintiff’s counsel immediately objected and moved to strike the response. The trial court struck the answer and instructed the jury to disregard the answer.

F. Special Verdict and New Trial Motion

By special verdict the jury determined that neither the October 13, 2002 accident nor the November 18, 2003 accident was a substantial factor in causing plaintiff harm. Plaintiff then filed motions for a new trial and a judgment notwithstanding the verdict. She agued that she provided expert testimony to establish that she suffered injuries in both collisions and that defendants failed to offer any substantial evidence to refute her evidence. She also claimed that Dr. Stuart’s comment that “all the good plaintiffs’ cases [seem to] settle,” violated an in limine ruling precluding defendants from referencing settlement negotiations, and that merely striking the response from the record and advising the jury not to consider it as evidence was insufficient to remedy the prejudice.

The trial court denied both motions, finding that there was substantial evidence to support the jury’s finding that neither of the two accidents was a substantial factor in causing harm to plaintiff. In denying the new trial motion, the trial court expressly stated that it was “not convinced from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict on either of the two questions answered by the jury.” The trial court was also satisfied that the jury followed the instruction to disregard the gratuitous comment made by Dr. Stuart and that plaintiff had a fair trial. This timely appeal followed.

II. DISCUSSION

A. Standard of Review

A new trial may be ordered on various statutory grounds. (Code Civ. Proc., § 657.)[4] As relevant here, those grounds include insufficiency of the evidence and irregularity in the proceedings. (§ 657, subds. 1. & 6.) Ordinarily, a trial court has wide discretion in deciding a motion for new trial, and the court’s decision will be given great deference on appeal. (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 645.)

However, when the court has denied a motion for a new trial, we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion. (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832; City of Los Angles v. Decker (1977) 18 Cal.3d 860, 872.)

B. Sufficiency of the Evidence

Plaintiff contends that the trial court erred when it denied her motion for new trial on the ground of insufficiency of the evidence. (§ 657, subd. 6.) When ruling on a new trial motion made on the ground of insufficiency of the evidence, the trial judge is required to weigh the evidence and judge the credibility of the witnesses. (Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463.) The trial court may disbelieve witnesses and draw inferences contrary to those supporting the verdict. (Ibid.) Nevertheless, the court may not grant a new trial unless after weighing the evidence, the court is convinced from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict or decision. (Ibid.; § 657.)

“In reviewing the trial court’s exercise of its discretion, this court, unlike the trial court, does not weigh the evidence; our power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the jury’s verdict. [Citation.]” (Locksley v. Ungureanu, supra, 178 Cal.App.3d at p. 463.) “Our consideration of the issue of whether the judgment was supported by substantial evidence is governed by the well-established standard of review applicable to any claim that a judgment or finding is not supported by the evidence in the record. Under that standard, we consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] . . . Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn. We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.)

“We emphasize that the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the [prevailing party]. If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with contradictory evidence, the judgment must be upheld. . . . In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial,’ that is of ‘ “ponderable legal significance,” ‘ ‘ “reasonable in nature, credible, and of solid value . . . .” ‘ [Citations.]” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631, italics original.)

Plaintiff argues that there is insufficient evidence to support the jury’s verdict in favor of defendants. As she asserted below, plaintiff argues that unrefuted expert medical testimony establishes that she suffered injuries as a result of both collisions. We briefly summarize the expert medical testimony. Plaintiff’s expert, Dr. Schofferman, testified that the collisions caused injuries to her neck and lower back. Defendant Andy Chou’s expert, Dr. Prieto, testified that the first collision caused, at most, a minor muscle strain, which should have dissipated within three months of the accident. Defendant Honniball’s expert, Dr. Lundy, testified that there was no evidence of any substantial new injury or any marked exacerbation of prior complaints as a result of the second collision. Dr. Lundy opined that if plaintiff had sustained an injury in the second collision, it would have been only a mild exacerbation of prior problems, which would have resolved itself within a month or so.

Based on this testimony, plaintiff argues that experts on both sides agree that she suffered injuries. Moreover, she claims that the jury should have found causation as a matter of law because neither of the defense experts refuted that she was injured. Plaintiff oversimplifies the medical testimony proffered by the defense. While defense experts agreed that plaintiff may have suffered some injury, the nature and extent of the injuries were refuted. Specifically, defense experts disagreed with Dr. Schofferman’s conclusion that plaintiff suffered three herniated disks, in her cervical spine. Dr. Prieto expressly stated that the pathology on plaintiff’s cervical spine was not related to an automobile accident.

Defense experts also refuted Dr. Schofferman’s claim that the degenerative changes in plaintiff’s lumbar spine were abnormal for woman in her early 30’s. According to the defense experts, desiccation, or dehydration of disks is a normal part of the aging process, which can begin as early as age 18.

Additionally, both defense experts testified as to the disparity between plaintiff’s subjective complaints of pain in the face of otherwise normal physical examinations. To the extent defense experts testified that plaintiff was injured, this testimony established only a possible minor strain or mild exacerbation of a prior complaint, which should have long been resolved. Accordingly, there was substantial evidence in the record refuting the testimony of Dr. Schofferman.

Even assuming for the sake of argument that plaintiff presented uncontroverted medical testimony that the collisions caused her injuries, “ ‘expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary.’ [Citation].” (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632.) As a general rule, a jury is free to reject uncontradicted expert opinion, and draw its own inferences from the facts. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 632-633.) A jury is not required to accept the opinions expressed by medical experts even where no opposing opinion is offered. (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-172.) The sole exception to this rule is that a trier of fact must accept uncontradicted expert testimony as conclusive in professional negligence cases where the duty of care must be established by expert testimony. (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 632-633.) That is not the case here.

Contrary to plaintiff’s contention, the jury was not required to find causation as a matter of law, and was free to reject the testimony of Dr. Schofferman. There is no indication that the jury arbitrarily rejected his testimony. The jury could have deemed it significant that plaintiff declined diagnostic testing that would have helped Dr. Schofferman pinpoint the exact nature of her neck and back pain. Dr. Schofferman’s own testimony confirmed that he was unable to state for certain whether plaintiff’s neck pain was caused by the three herniated disks. The jury could have also properly taken into consideration that there was conflicting evidence that plaintiff had suffered back pain prior to the collisions and that some of Dr. Schofferman’s opinions were based on his understanding that plaintiff had no prior back or neck problems.

Moreover, there was uncontradicted evidence that the amount of force involved in the two accidents was insignificant. Mr. Hughes testified that the amount of force involved in the first accident was less than that of plopping oneself into a chair. Dr. Stuart equated the force in the second accident to a momentary, moderate brake application. This alone constitutes substantial evidence supporting the jury’s findings that neither collision was a substantial factor in causing plaintiff’s injuries.

Plaintiff seeks to minimize this testimony, arguing that neither expert expressly stated that no injury could have occurred. While it is true that neither expert said that no injury could have incurred, the jury could have reasonably inferred from their testimony that an injury was unlikely to result from either collision. (See Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 630.)

Having independently reviewed the entire record, we conclude that the jury had ample evidence from which to conclude that plaintiff’s neck and back injuries were not caused by the impact of the two rear-end collisions. The trial court, therefore, did not abuse its discretion in refusing to grant a new trial on the ground of insufficiency of the evidence.

C. Irregularity in the Proceedings

The court may grant a motion for a new trial where there has been “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial,” (§ 657, subd. 1.), as long as the irregularity “materially affect[s] the substantial rights of [the moving party]” (§ 657). “No accurate classification of such irregularities can be made, but it is said that an overt act of the trial court, jury, or adverse party, violative of the right to a fair and impartial trial, amounting to misconduct, may be regarded as an irregularity.” (Gray v. Robinson (1939) 33 Cal.App.2d 177, 182, italics added; see also Russell v. Dopp (1995) 36 Cal.App.4th 765, 780.)

Plaintiff contends that the comment by Dr. Stuart that “for some reason all the good plaintiffs’ cases seem to settle,” violated an limine order precluding reference to settlement negotiations, and constitutes an irregularity that prevented her from having a fair trial. We disagree. The remark, although improper, cannot reasonably be understood as pertaining to settlement negotiations in this particular case. Rather, the record reflects that the comment was made in response to a rhetorical question posed on cross-examination that Dr. Stuart testified as a defense witness nine out of ten times. Plaintiff provides no authority that a statement by a defense witness, uttered while on cross-examination, constitutes an irregularity in the proceedings within the meaning of section 657, subdivision 1.

Hoffman v. Brandt (1966) 65 Cal.2d 549, 551-553, cited by plaintiff is inapposite, as it involved attorney misconduct during closing argument. (See also City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870 [attorney misconduct constitutes an irregularity in the proceedings].) There, defense counsel suggested that if the jury returned a verdict for the amount sought by plaintiff, the defendant would have to go to a home for the indigent. (Hoffman v. Brandt, supra, 65 Cal.2d at p. 551.) After a colloquy between counsel and the court in front of the jury, the court suggested that defense counsel leave the subject inasmuch as the case “ ‘does not turn on anybody’s financial condition . . . .’ “ (Id. at p. 552.) Plaintiff’s counsel urged that the argument was unwarranted and incorrect, but he made no specific objection and he did not request an admonition to the jury. (Ibid.) The trial court admonished the jury that counsel’s comments constituted argument, not evidence, and to treat it as such. (Ibid.) Nonetheless, the court reversed the judgment in favor of plaintiff because defense counsel’s statement was a deliberate attempt to appeal to social or economic prejudices of the jury, which was not cured by the equivocal admonition by the trial court. (Id. at pp. 552-553, 555.)

Here, there is no showing or even suspicion that Dr. Stuart had been prompted to make the remark complained of, nor is there any suggestion of any intention on his part or that of defense counsel or defendants to get the issue of settlement negotiations before the jury. Moreover, plaintiff’s counsel immediately objected and moved to strike the answer. The trial court granted the motion to strike and immediately admonished the jury in unequivocal terms that it “must disregard that answer.” Additionally, at the beginning of the trial, the court fully explained the nature of nonresponsive answers and motions to strike, informing the jury that: “The witnesses are required under the law to give fair and full answers to questions but they are not permitted to volunteer information that is outside the four corners of the question. So, maybe you’ll get a lawyer that will ask a question like this: What was the weather like out today at noon? And the witness will say: ‘Well, yesterday it rained.’ Now, that’s not responsive to that question. They weren’t asked anything about yesterday’s weather. So, if one of the lawyers asks me to strike that testimony, I’ll strike it because that was a purely volunteered answer, and so that’s objectionable. . . . The bottom line for you is not to worry about the reasons for the objections or rulings, but if I strike certain testimony, you must ignore it. It’s just as if it had not been given; it shouldn’t have been given under the law.”

The comment by Dr. Stuart, although improper, was not so inflammatory that it could not be cured by the trial court’s unequivocal admonition. (See Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320.) Accordingly, we assume the jury followed the plain and explicit admonishment of the trial court, and its verdict was not based on the isolated comment by Dr. Stuart, but was based on the substantial evidence in favor of defendants.

Having independently reviewed the entire record, we conclude plaintiff has failed to establish that the improper comment by Dr. Stuart constituted misconduct by the court, jury, or defendants. The trial court, therefore, did not abuse its discretion in refusing to grant a new trial on the ground of irregularity in the proceedings.

In any event, even assuming the comment by Dr. Stuart could be considered an irregularity within the meaning of section 657, subdivision 1., we conclude that there is no reasonable probability that plaintiff would have received a more favorable outcome in the absence of the challenged statement. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) Examining the entire case, including the evidence adduced, and the context within which Dr. Stuart’s comment was made, we conclude any suggestion on his part that plaintiff did not have a “good case“ because her case had not settled, even if misconduct, was harmless. (Id. at p. 802.)

III. DISPOSITION

The judgment is affirmed. Defendants are entitled to costs on appeal.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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[1] Plaintiff’s initial complaint named Andy Chou and Richard Soo as defendants. An amended complaint was subsequently filed, naming Chin Ang Chou as an additional defendant.

[2] Defendants Soo, Andy Chou, and Chi Ang Chou subsequently filed a cross-complaint against Honniball for contribution and indemnification.

[3] For simplicity, we refer to Estate of Henry Honniball as defendant Honniball.

[4] All further statutory references are to the Code of Civil Procedure.