Case Number: EC057360    Hearing Date: April 25, 2014    Dept: A

Radner v Herendeen

MOTION FOR NEW TRIAL

Calendar: 2
Case No: EC057360
Date: 4/25/14

MP: Defendant, County of Los Angeles
RP: Plaintiff, Michael Radner

RELIEF REQUESTED:
1. Order granting a new trial.

DISCUSSION:
This case arises from the Plaintiff’s claim that he suffered personal injuries in a motor vehicle accident caused by the negligence of Defendant, Sean Herendeen, and by a dangerous condition on the roadway of Defendant, County of Los Angeles. The matter proceeded to trial and the jury returned a verdict in favor of the Plaintiff on February 27, 2014. The jury awarded $763,023.34 to the Plaintiff and against the Defendant, County of Los Angeles. In addition, the jury found that Sean Herendeen was not negligent. The judgment was entered on March 4, 2014.

This hearing concerns the motion for a new trial of the Defendant, County of Los Angeles. The Defendant argues there was insufficient evidence to support the jury’s finding that the Defendant, Sean Herendeen, acted as a reasonably prudent motorcyclist, that it was an irregularity at trial or an error of law to exclude the fact that Sean Herendeen did not have a motorcycle endorsement, that the Plaintiff’s damages were excessive, and that the exclusion of a jury instruction was an irregularity at trial or an error of law.

Under Article VI, section 13, of the California Constitution, no new trial shall be granted unless, after an examination of the entire cause, including the evidence, the Court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. In re Marriage of Steiner & Hosseini (2004) 117 Cal. App. 4th 519, 526.
The grounds for a new trial under CCP section 657 are the following:

1) Irregularity 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.
2) Jury misconduct
3) Accident or surprise, which ordinary prudence could not have guarded against.
4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.
5) Excessive or inadequate damages.
6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
7) Error in law, occurring at the trial and excepted to by the party making the application.

A motion for new trial is a creature of statute and the Court may grant a new trial only by conforming to the statutory procedures. Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899-900. Unless the Court conforms to the statutory procedures, an order granting a new trial will be void as in excess of jurisdiction. Id.

1. Irregularities at the Trial
The Defendant argues that there were irregularities at trial because the Court excluded evidence that Sean Herendeen lacked a motorcycle endorsement and because the Court declined to give a special jury instruction that a public entity is not an insurer of the property who use its property. The Defendant does not bring forth authority regarding irregularities in the proceedings of the Court to demonstrate that these issues constitutes such a ground for a new trial.
A new trial for irregularity in the proceedings of the Court occurs when there is any departure by the Court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected, where such departure is not evidenced by a ruling or order that may be made the subject of an exception. Lowe v. Massachusetts Mut. Life Ins. Co. (1976) 54 Cal. App. 3d 718, 740-741. Examples of conduct that was the basis for a new trial on this ground are:

1) showing partiality for a party. Davis v. Pezel (1933) 131 Cal.App. 46, 50 to 52 (judge’s remarks during cross-examination of plaintiff clearly implied to jury a leaning towards the plaintiff’s side of case).
2) showing bias or prejudice against a party. Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 262 (judge’s gender bias toward plaintiff in sexual harassment case).
3) prejudging the case or expressing an opinion on the merits before all the evidence has been presented. Webber v. Webber (1948) 33 Cal.2d 153, 156-162 (judge told wife at outset of marital dissolution proceeding that he was not going to award her any spousal support).
4) improperly commenting on evidence in front of jurors. Lewis v. Bill Robertson & Sons (1984) 162 Cal.App.3d 650, 654-655 (judge stated to jurors that he disbelieved plaintiff’s claim of disability and that plaintiff’s own carelessness caused the injury)
5) ridiculing a party, attorney, or witness. Kloepfer v. Commission on Judicial Performance (1989) 49 Cal.3d 826, 842 (judge ridiculed attorneys in open court).
6) coercing the jurors into reaching a verdict. Langdon v. Superior Court (1923) 65 Cal.App. 41, 43.

The Defendant offers no evidence that the Court engaged in such conduct that showed partiality, bias, or prejudgment in favor of a party. Accordingly, there are no grounds for a new trial based on an irregularity in the proceedings.

2. Excessive Damages
The Defendant argues that the general damages award of $440,000 for future pain and suffering was excessive. In addition, the Defendant argues that the special damages were excessive because the jury relied upon the full billed amounts, as opposed to the amount paid. Further, the Defendant argues that the special damages are excessive because the Defendant’s expert was precluded from testifying as to the reasonableness of the medical bills.
Under CCP section 657, a motion for new trial based on excessive or inadequate damages shall not be granted unless the Court is convinced from the entire record, including reasonable inferences, that the jury clearly should have reached a different decision. The judge is not permitted to substitute his judgment for that of the jury on the question of damages unless it appears from the record the jury verdict was improper. Bigboy v. County of San Diego (1984) 154 Cal. App. 3d 397, 406.

The Defendant does not demonstrate that the jury “clearly should have reached a different decision” or that there is any basis in the record to find that the jury award of $440,000 for future pain and suffering was improper. The jury heard evidence that the Plaintiff suffered a severe injury to his thoracic spine requiring extensive surgery, that the Plaintiff suffered “piercing pain”, and that pain medication was less effective for the pain that the Plaintiff was suffering. Further, the jury heard evidence that the constant pain has interfered with the Plaintiff’s life activities, e.g., sleep, motorcycle riding at long distances, walking up or down stairs, preparing meals, folding laundry, and brushing his teeth. The jury heard evidence that the Plaintiff has had pain ever since the date of the accident.
This evidence is sufficient to support the jury’s finding that the amount to award for future pain and suffering was $440,000. There are no grounds to find that the jury clearly would have reached a different decision or that the record indicates that the verdict was improper.

The Defendant also does not demonstrate that the jury “clearly should have reached a different decision” or that there is any basis in the record to find that the jury award for special damages was improper. The Defendant argues that the Court should not have admitted the amount of the Holy Cross Hospital lien because Holy Cross could have elected to bill collateral sources for payment, i.e., the Plaintiff’s coverage under Medicare and the Screen Actor’s Guild. However, Holy Cross did not bill any collateral sources; instead, it perfected a lien against the Plaintiff for $110,419.09. This is amount that the Plaintiff sought.
Further, the Defendant cited Nishihama v. City and County of San Francisco (2001) 93 Cal. App. 4th 298 for the principle that a plaintiff may recover only the amount actually billed. However, in the pending case, the Plaintiff provided evidence of the actual amount of Holy Cross’ lien, $110,419.09. This is the amount for which the Plaintiff is actually liable. The court does not express an opinion on whether plaintiff’s failure to utilize his insurance constituted a failure to mitigate his damages, because the issue was not litigated at trial.
Accordingly, the jury’s finding on special damages is supported by sufficient evidence. There are no grounds to find that the jury clearly would have reached a different decision or that the record indicates that the verdict was improper.

Finally, the Defendant does not demonstrate that the jury “clearly should have reached a different decision” or that there is any basis in the record to find that the jury award for special damages was improper on the ground that the Defendant’s expert on the reasonableness of the Plaintiff’s medical bills was precluded from testifying. The Plaintiff objected to the testimony of Dr. Tauber because the Defendant’s expert designation had failed to state that Dr. Tauber would provide an opinion on the reasonable costs of the Plaintiff’s past medical treatment. The Court sustained the objection.
This offers no grounds to find that the jury awarded an excessive amount of damages. Instead, this is an argument based on a Court evidentiary order, as opposed to the evidence regarding damages. Second, the Defendant can only speculate that Mr. Tauber would have provided an opinion that would have affected the jury’s finding on special damages; the court does not recall that an offer of proof was made. Third, the Defendant offers no basis to find that the evidentiary order was an error because the Defendant did not disclose that Dr. Tauber would be called to provide testimony on the reasonableness of the costs of medical bills and the Defendant never sought to augment its expert witness designation.
Accordingly, the jury’s finding on special damages is supported by sufficient evidence. There are no grounds to find that the jury clearly would have reached a different decision or that the record indicates that the verdict was improper.

Accordingly, there are no grounds for a new trial based on excessive damages.

3. Insufficiency of Evidence
The Defendant argues that there was insufficient evidence to support the jury’s verdict in which it found that Sean Herendeen was not negligent.
When a trial court considers a motion for a new trial made upon the ground of insufficiency of the evidence, the judge is required to weigh the evidence and judge the credibility of witnesses. Dominguez v. Pantalone (1989) 212 Cal. App. 3d 201, 215-216. While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. Id.
In Dominguez, the jury found that the defendant had acted negligently in causing a motor vehicle accident. When the defendant moved for new trial, the trial judge denied the motion, but admitted that if her were sitting as the trier of fact at a bench trial, he would have ascribed some percentage of comparative fault to the plaintiff. The Court of Appeal affirmed the denial and found that the trial court had correctly performed its duty because the trial court recognized that it could not grant a motion for new trial simply because it would have found differently from the jury. The Court of Appeal found that the trial court had correctly denied the motion because there was substantial evidence to support the jury’s finding.
Here, there is substantial evidence to support the jury’s finding that Sean Herendeen was not negligent. The jury heard evidence that Mr. Herendeen has been operating and repairing motorcycles since he was 9 or 10 years old and that he has had experience operating street motorcycles since 2008 or 2009. Further, the jury heard evidence that Mr. Herendeen had ridden the motorcycle that he was operating at the time of the accident for three to four thousand miles in the months before the accident. Further, the jury heard evidence that Mr. Herendeen was wearing motorcycle safety equipment, including helmet, jacket, gloves, boots, and pants. The jury heard evidence that the motorcycle was in good mechanical repair and that the tires and brakes were in good shape.
Further, the jury heard evidence that Mr. Herendeen was operating at 40 miles per hour on a roadway with a speed limit of 55 miles per hour. The jury also heard evidence that Mr. Herendeen had slowed down because he was approaching a blind curve. An accident reconstruction expert provided an opinion that Mr. Herendeen was traveling at 28 to 33 miles per hour.
Further, the jury heard evidence that Mr. Herendeen did not have any time to react because he lost traction as soon as his front tire encountered the gravel on the road. The jury heard evidence that the front end of Mr. Herendeen’s motorcycle “washed out” and that he fell to the ground. The jury also heard evidence that Mr. Herendeen believed that the accident occurred due to the loose gravel on the roadway and he provided rather graphic pictures of same.
Finally, the jury heard evidence in the form of an opinion from the accident reconstruction expert, Joseph Yates, that Mr. Herendeen had demonstrated a correct understanding of proper motorcycle control and that he was exercising reasonable care in the operation of his motorcycle at the time of the accident. In addition, Mr. Yates provided opinions that Mr. Herendeen would not have been able to perceive the loose gravel until it was too late to avoid it.
Moving party cites statements made by the court in denying Herendeen’s motions for a good faith settlement to the effect that the court expected that Mr. Herendeen was likely to be found with a significant proportion of negligence at trial. In fact, that was the court’s opinion before trial; but the trial took a much different life in the courtroom from the way it appeared on paper: 1) plaintiff proved virtually no case against Mr. Herendeen, but concentrated on proving a case against County of Los Angeles; 2) plaintiff had substantially more evidence against the County of Los Angeles than was apparent prior to trial; 3) the County’s case against Mr. Herendeen had an aura that it was based upon what an extraordinarily prudent motorcyclist would do, not what could be expected from the person who is using ordinary reasonable care under the circumstances; and 4) Mr. Herendeen’s counsel very adroitly and convincingly down-played his client’s involvement.
This summary indicates that the jury had substantial evidence to support its finding that Sean Herendeen was not negligent. Therefore, this is not grounds for a new trial

4. Error at Law
The Defendant argues that it was an error in law to exclude evidence that Mr. Herendeen lacked a motorcycle endorsement and for the Court to decline to read a jury instruction.
The Court cannot grant a new trial on an error in law unless the Court makes a determination that the error caused prejudice and that a new trial is warranted. People v. Ault (2004) 33 Cal. 4th 1250, 1271-1272 (holding that a trial court may order a new trial only if it makes a determination that there was prejudice). Prejudice from an erroneous instruction is never presumed; it must be affirmatively demonstrated by the appellant. Wilkinson v. Bay Shore Lumber Co. (1986) 182 Cal. App. 3d 594, 599-600.

The Court excluded the evidence that Mr. Herendeen lacked a motorcycle endorsement because the Court found it was not relevant to any issue and that its probative value was substantially outweighed by a substantial danger of undue prejudice. The Defendant offers no evidence to demonstrate that Mr. Herendeen’s lack of a motorcycle endorsement had a causal connection to the accident. There is no grounds to find that if Mr. Herendeen had the endorsement, that he would have obtained information that would have allowed him to avoid unseen gravel on a blind curve. Instead, the evidence of the County of Los Angeles as cross-complainant tended to show that an experienced trained rider (such as Mr. Herendeen’s friend who was traveling a distance ahead of Mr. Herendeen) would not have been so far to the right of the roadway, but would have taken a path more towards the center as that is a safer path on a curve for a motorcycle. But even Mr. Herendeen’s friend experienced some difficulty at the location, and this, by inference, is related to the loose gravel.
Accordingly, the Court’s exclusion of evidence regarding the lack of a motorcycle endorsement is not grounds for a new trial.

The Defendant requested the Court to give its special jury instruction 11, which stated that a public entity is not an insurer of the people who use its property and that it is not required to protect against every possibility of injury no matter how remote that possibility might be. The Court declined to give the instruction.
As noted above, the Defendant has the burden of affirmatively demonstrating that the failure to provide the instruction created prejudice. The Defendant does not make this showing.
The Defendant argues that the instruction was necessary to clarify that it was not strictly liable for the injuries on its property. However, there was no claim that the Defendant was strictly liable. Instead, the Plaintiff’s theory was that the Defendant was liable because it had negligently created a dangerous condition on the roadway when a significant amount of loose gravel was left on the roadway after a construction project ten days before.
Accordingly, the Court’s refusal to give special jury instruction 11 is not grounds for a new trial.

RULING:
Deny motion