Filed 1/15/20 Brokaw v. City of Riverside 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BONNIE BROKAW,

Plaintiff and Appellant,

v.

CITY OF RIVERSIDE,

Defendant and Respondent.

E069465

(Super.Ct.No. RIC1300052)

OPINION

APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge. Affirmed.

Law Offices of Joseph W. Carcione, Jr., and Joshua S. Markowitz for Plaintiff and Appellant.

City of Riverside, Gary G. Geuss, Robert L. Hansen and Richard S. Hall for Defendant and Respondent.

Dennis Brokaw (Husband) sued defendant and respondent City of Riverside (the City) and others for injuries he sustained in a car accident. A jury found Husband sustained $450,000 in damages. The jury also found the City was 11 percent liable for Husband’s injuries.

Husband’s wife, plaintiff and appellant Bonnie Brokaw (Wife), sued the City and others for loss of consortium. The jury found Wife sustained no damages related to her loss of consortium claim. Wife moved for a new trial on the basis of inadequate damages. (Code Civ. Proc., § 657.) The trial court denied Wife’s motion for a new trial.

Wife asserts the trial court erred in denying her motion for a new trial because (1) the jury found Husband suffered $450,000 in damages, and therefore Wife, as a matter of law, should have been found to have sustained damages for loss of consortium; and (2) there was undisputed evidence that Wife suffered damages for loss of consortium. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. FIRST AMENDED COMPLAINT

The facts in this subsection are taken from Husband and Wife’s first amended complaint. On January 6, 2012, Husband was driving southbound on Charles Street, in the City. Husband collided with a concrete barrier that had been placed across the street. The lighting in the area, the incline of the road, and a bend in the road caused the barrier to be difficult to see. There were no warning signs and no measures to decrease speed that would have protected the public from colliding with the barrier.

As a result of the crash, Husband “suffered a fracture of his neck, pain in his mid back, low back and left hand, contusion to his chest, headaches, dizziness, and/or other injuries . . . . As a result, [Husband] . . . incurred and will incur loss of earnings, loss of earning capacity, medical and hospital expenses, and general pain and suffering.”

B. JUDGMENT

The judgment reads, “The jury found that [Husband’s] Past Economic Damages are $450,000.” The judgment also reads, “Further, the Past Economic Damages for [Husband’s] injuries are found to be $22,541.28.” The jury’s special verdict form reflects Husband suffered $450,000 in “[p]ast non-economic loss, including physical pain/mental suffering.”

The City was found to be 11 percent liable for the car crash. The trial court ordered that Husband recover $70,371.70 from the City, with interest of 10 percent. In regard to Wife, the judgment reads, “[Wife’s] damages for loss of consortium are $0.”

C. MOTION FOR NEW TRIAL

Wife moved for a new trial on the issue of damages. Wife asserted, “Where, as here, there is a significant award of damages based upon a physical injury, the injured party’s spouse suffers compensable injury as a matter of law.”

The City opposed Wife’s motion for a new trial. The City contended a non-injured spouse is not automatically entitled to loss of consortium damages when an injured spouse prevails on his/her claim. The City wrote, “Were that the case, why would a spouse even need to assert a cause of action for loss of consortium? The jury would simply be instructed that if it awarded damages to the injured spouse it must award damages to the other spouse for loss of consortium. However, that is not the law.” The City explained that a loss of consortium claim is a separate cause of action, distinct from the injured spouse’s personal injury claim.

The trial court held a hearing on Wife’s motion for a new trial. Wife argued, “This is someone who suffered a severe injury. The testimony was that he was essentially bedridden for a number of months, and there is no question she suffered some loss of consortium. The cases say, as a matter of law, there has to be some amount.” Wife asserted, “[Z]ero is just per se inappropriate.”

The City responded, “I hear counsel talk about all of this evidence of all these things that happened, but . . . those things didn’t come out at trial. They had the opportunity to present all of this evidence of all these months of being apart and all of this trauma and all this, and there’s just not any testimony on that.”

Wife responded, “[T]he evidence for a new trial motion is the trial.” Wife continued, “The evidence is the testimony. [¶] And, in fact, the code specifically requires that the new trial motion be before the trial judge because the trial judge has heard the evidence.” Wife asserted, “[S]o there was evidence. The trial is the evidence.”

The trial court said, “I’m not sure the testimony is there with regard to [Wife], but I’m going to take another look at it and I’ll take it under submission.” The trial court said, “I’ll order a copy of the transcript and I’ll go through it again.” The trial court took the matter under submission. The trial court denied the motion.

D. Record on Appeal

March 13, 2017, was the second day of trial. On that day, the witnesses included: (1) Jeffrey Gross; (2) Gary Hirdler; (3) James Avila; and (4) Fernando Barbarin.

March 14 was the third day of trial. On that day, the witnesses included: (1) Timothy Jensen; (2) David Eisenbeisz; and (3) Dale Dunlap.

March 15 was the fourth day of trial. On that day, the witnesses included: (1) Howard Guan; (2) Dale Dunlap; (3) Tate Kubose; and (4) Catherine Witt.

March 16 was the fifth day of trial. On that day, the witnesses included: (1) Catherine Witt; (2) Kimberly Salverson; (3) Jimmy Lowery; (4) Vincent Fortanasce; and (5) Assid Michael Moheimani.

March 20 was the sixth day of trial. On that day, the witnesses included: (1) Michael Reynard, a defense witness called out of order; (2) John Landerville, a defense witness called out of order; (3) Wife; and (4) Husband.

March 21 was the seventh day of trial. On that day, Husband was the only witness to testify.

March 22 was the eighth day of trial. On that day, the witnesses included: (1) Husband; (2) Alexander Sandoval, a defense witness called out of order; (3) Vance Whitworth; (4) Ed Farnaghi, a defense witness; and (5) Jeffrey Bounds, a defense witness.

March 23 was the ninth day of trial. On that day, Frederick McSkimming, a defense witness, testified.

The record on appeal includes a partial reporter’s transcript. The partial reporter’s transcript includes the trial dates of March 20, 21, and 22. Only the testimony of Wife and Husband are included in the reporter’s transcript.

DISCUSSION

A. LOSS OF CONSORTIUM LAW

“ ‘Consortium’ refers to ‘ “the noneconomic aspects of the marriage relation, including conjugal society, comfort, affection, and companionship.” ’ ” (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223.) “[A] loss of consortium cause of action has four elements: [¶] (1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant’s act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2.) “[A] partial loss, or diminution, of consortium is compensable.” (Mealy, at p. 1224.)

“An important aspect of consortium is . . . the moral support each spouse gives the other through the triumph and despair of life. A severely disabled husband may well need all the emotional strength he has just to survive the shock of his injury, make the agonizing adjustment to his new and drastically restricted world, and preserve his mental health through the long years of frustration ahead. He will often turn inwards, demanding more solace for himself than he can give to others. Accordingly, the spouse of such a man cannot expect him to share the same concern for her problems that she experienced before his accident. As several of the cases have put it, she is transformed from a happy wife into a lonely nurse.’ ” (Mealy v. B-Mobile, Inc., supra, 195 Cal.App.4th at p. 1223.)

B. EVIDENCE

Wife asserts the trial court erred by denying her motion for a new trial on the issue of inadequate damages because “[t]he uncontradicted evidence establishes a loss of consortium injury and damages.”

“A new trial shall not be granted upon the ground of . . . inadequate damages, 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.” (§ 657.) The trial court reviews the motion for new trial “as a ‘thirteenth juror’: ‘The trial court is in a far better position than an appellate court to determine whether a damage award was influenced by ‘passion or prejudice.’ [Citation.] In reviewing that issue, moreover, the trial court is vested with the power, denied to us, to weigh the evidence and resolve issues of credibility. [Citation.]’ [Citation.] We review the trial court’s determination for an abuse of discretion.” (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1689.)

In evaluating the motion for new trial, the trial court was required to “weigh[] the evidence . . . from the entire record, including reasonable inferences therefrom.” (§ 657.) It is this court’s job to review the trial court’s ruling and determine whether the trial court exceeded the bounds of reason. In order for this court to perform our review, we need a complete record because we need to be able to see all the evidence that the trial court considered when ruling upon the motion for new trial. The trial court had to review “the entire record” (§ 657), and therefore this court, in reviewing the trial court’s ruling, must also review the entire record. (See Pacific Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 317-318 [the trial court must review the whole record, and the appellate court must determine if the trial court exceeded the bounds of reason].)

For example, it is possible that a witness who testified on March 13, 14, 15, or 16 said something about Husband providing Wife with emotional support and physical affection despite his injuries. Such testimony would support the trial court’s ruling. We cannot know whether such testimony occurred because we do not have a complete record. Without a complete record, we cannot review the trial court’s ruling on Wife’s motion for a new trial. Because Wife failed to provide this court with an adequate record, we must resolve this issue in favor of the City. (Foust v. San Jose Construction Co. Inc. (2011) 198 Cal.App.4th 181, 187.)

Further, the trial court was free to find that Wife was a non-credible witness. “The cases make it clear that in ruling on the new trial motion the trial court can—and should—consider credibility independently of the jury’s conclusions.” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 504.) Wife’s assertion that she should have prevailed because her testimony was “uncontradicted” is not persuasive because she fails to explain why the trial court was required to believe her testimony concerning Husband’s inability to provide Wife with emotional support and physical affection.

Moreover, in the partial reporter’s transcript, there is contradictory evidence concerning the loss of consortium. At one point, Wife testified, “I felt very much alone.” However, at another point, she testified, “I love him and he know[s] that[] and we’re good, good friends.” Wife also said the car crash occurred on January 6, 2012, and that she and Husband engaged in sexual intercourse approximately three times during 2012, including in December 2012. Further, Wife testified that Husband injured his groin in December 2011, and they were not engaging in sexual relations following that injury.

Based upon a review of the partial record before us, the trial court did not exceed the bounds of reason in denying the motion for new trial because, the trial court could have reasonably concluded: (1) Wife did not experience a loss of consortium since she and Husband are good friends and were able to engage in intercourse three times within the year following the car crash; and/or (2) any loss in sexual activity was due to the groin injury that occurred in the month prior to the car crash. In sum, the trial court did not err.

C. DIRECT CORRELATION

Wife asserts zero dollars in damages for her loss of consortium claim is “ ‘inadequate as a matter of law.’ ” Wife contends, “As a matter of law, a serious injury to [Husband] causes an injury to [Wife].” We understand Wife’s contention as asserting that, as a matter of law, because the jury found Husband sustained $450,000 in damages, it was required to award Wife damages in an amount greater than zero.

A loss of consortium cause of action is factually dependent on the injured spouse having sustained an injury. (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284-285.) However, a loss of consortium cause of action is procedurally independent. (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1279-1280.) A loss of consortium cause of action “ ‘is comprised of [the spouse’s] own physical, psychological and emotional pain and anguish . . . .’ [Citation.] While joinder of a loss of consortium claim with the injured spouse’s personal injury claim is encouraged, it is not mandatory and a loss of consortium claim may be maintained independently. [Citations.] [¶] In many different contexts over a period of decades, California courts have held that a loss of consortium claim is an independent tort that does not rise or fall with the procedural fate of the injured party’s personal injury claim.” (Ibid.)

Because loss of consortium is an independent cause of action, we are not persuaded by Wife’s assertion that, as a matter of law, because Husband was awarded damages, then Wife should have been awarded damages. In order for Wife to be awarded damages, Wife needed to establish that she personally suffered a loss due to a lack of physical affection and/or emotional support from Husband. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927-928 [“a cause of action is not complete . . . without spousal injury”]; Leonard v. John Crane, Inc., supra, 206 Cal.App.4th at p. 1279 [loss of consortium concerns the spouse’s own “emotional pain and anguish”].) Wife’s claim required evidence personal to her—she was not entitled to damages simply because Husband was awarded damages. In sum, Wife’s loss of consortium claim was procedurally independent, and therefore, we are not persuaded that Wife was necessarily entitled to damages.

Wife asserts the case of Smith v. Covell (1980) 100 Cal.App.3d 947 is directly on point. In Smith, the jury awarded the injured spouse $10,000, and awarded $0 for the non-injured spouse’s loss of consortium claim. (Id. at p. 951.) On appeal, the issue of inadequate damages was raised. The appellate court wrote, “There was uncontradicted evidence of a loss of consortium. In such factual posture, the verdict was inadequate as a matter of law.” (Id. at p. 956.)

The factual posture of the instant case is unclear because we have not been provided a complete record on appeal. Without a complete record, we cannot conclude that there is uncontroverted evidence of loss of consortium. Because we cannot conclude there is uncontroverted evidence of loss of consortium, we are unable to conclude that Smith is directly on point with the instant case.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.