Filed 11/17/20 Morales v. Harris CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

OBDULIA MORALES,

Plaintiff and Appellant,

v.

JEFFEREY WILLIAM HARRIS,

Defendant and Respondent.

G057729

(Super. Ct. No. 30-2017-00918947)

O P I N I O N

Appeal from a judgment and postjudgment orders of the Superior Court of Orange County, Gregory H. Lewis, Judge. Dismissed in part and affirmed in part. Motion to dismiss partially granted.

The Law Offices of Arash Khorsandi and Brian G. Beecher; Huskinson Brown & Heidenreich, Paul E. Heidenreich and David W.T. Brown for Plaintiff and Appellant.

Veatch Carlson and Serena L. Nervez for Defendant and Respondent.

This appeal concerns a personal injury action in which the parties disputed whether Jeffrey William Harris’s vehicle came into contact with and injured Obdulia Morales. At the time of the incident, Harris was stopped but inching forward, waiting to turn right. Morales stepped off the curb and attempted to walk around the front of Harris’s car. After a 16-day trial, which included testimony from 11 different experts, the jury determined Harris was negligent, but it was not a substantial factor in causing Morales any harm. Thereafter, the court denied Morales’s motions for a new trial and for judgment notwithstanding the verdict (JNOV).

Morales filed a poorly drafted notice of appeal. Harris moved to dismiss Morales’s appeal as being untimely. He is correct that we lack jurisdiction to consider the appeal to the extent it challenges the underlying judgment or Morales’s motion for new trial. However, we will liberally construe the notice as relating to the JNOV order, which is separately appealable. (Code Civ. Proc., § 904.1, subd. (a)(4).)

Accordingly, we dismiss the portion of the appeal challenging the judgment and new trial order. We considered Morales’s contentions on appeal regarding the JNOV and concluded the arguments lack merit. We affirm the postjudgment order denying the JNOV motion.

PROCEDURAL HISTORY

In May 2017, Morales filed a complaint against Harris alleging he “negligently, unsafely and dangerously operated a motor vehicle, including, but not limited to making an unsafe and dangerous turn, causing the vehicle to collide with [her].” She sought $3 million for her injuries. The jury considered testimony from the parties and 19 witnesses, including multiple experts. The jury answered questions on a special verdict form and concluded Harris was negligent but his “negligence [was not] a substantial factor in causing harm to . . . Morales.” On January 2, 2019, the court entered a judgment in favor of Harris. Thereafter, the court denied Morales’s motions for a new trial and JNOV.

With respect to the JNOV motion, the court rejected Morales’s argument there was no substantial evidence to support the jury’s verdict that Harris’s negligence was not a substantial factor in causing her harm. In its minute order, the court ruled as follows: “[Morales] argues that, because injury occurred as a result of the collision, then there cannot be a ‘no substantial factor’ finding. [¶] There is substantial evidence, however, to support the jury’s finding that [Harris’s] negligence was not a substantial factor in causing harm to [Morales]. While [Morales] points to testimony of Dr. Kowell that [Morales] was injured in the collision, Dr. Kowell also testified that information regarding multiple falls [Morales] suffered after the accident would have been very important and that his opinions were based [on] the assumption that [Morales’s] reports regarding her injuries were accurate . . . . But [Harris] impeached [Morales’s] credibility, and the jury may have justifiably believed that [Morales] suffered no harm as a result of the collision. Further, substantial evidence supported a finding that [Morales’s] injuries were caused by falls that occurred after the collision. It does not appear that the [c]ourt can conclude ‘as a matter of law that no other reasonable conclusion is legally deducible from the evidence and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it or the trial court would be required to set it aside as a matter of law.’ [Citation.]”

Morales filed a notice of appeal, and Harris filed a motion to dismiss the appeal as being untimely. We determined the motion would be decided in conjunction with the appeal.

MOTION TO DISMISS

Morales’s notice of appeal is problematic. On the pre-printed Judicial Council form required for filing a notice of appeal, Morales checked the box designating the appeal was from a “[j]udgment after jury trial” but incorrectly indicated the judgment was entered on March 25, 2019. The judgment was entered on January 2, 2019. The court denied Morales’s postjudgment motions on March 25, 2019.

If Morales intended to appeal from the postjudgment orders she should have checked the “other” box asking appellants to “describe and specify [the] code section that authorizes [an] appeal” that is not from a judgment. (Italics omitted.) If Morales only intended to appeal the JNOV ruling, which is statutorily and separately appealable, she should have checked the box used to designate the appeal as being from an “order of judgment under [section] 904.1[, subdivisions] (a)(3)-(13).”

Harris correctly asserts Morales’s appeal from the judgment was untimely. California Rules of Court, rule 8.104(a)(1) sets forth the deadlines to file a notice of appeal. The deadline for Morales to appeal the judgment was 60 days, however, the deadline was extended because she filed post-trial motions. Rules 8.108(b) and (d) provide that if the court denies a JNOV or a new trial motion “the time to appeal from the judgment is extended” for “30 days after the superior court clerk, or a party serves an order denying the motion or a notice of entry of that order . . . .” (Italics added.)

On April 9, 2019, Harris served a notice of entry of the orders denying the JNOV and new trial motions. Accordingly, the deadline to file an appeal of the judgment was May 9, 2019. Morales filed her notice of appeal on May 10, 2019. “[N]o court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (Rule 8.104(b); Beresh v. Sovereign Life Ins. Co. (1979) 92 Cal.App.3d 547, 551 [rule is jurisdictional and appellate court lacks discretion to hear an untimely appeal but must dismiss on its own motion]. We dismiss the appeal of the judgment.

We must also dismiss Morales’s appeal of the trial court’s order denying her motion for new trial. This postjudgment order was not directly appealable but reviewable only with an appeal from the underlying judgment. (§ 906; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)

All that remains is the JNOV ruling. As Harris notes, the notice of appeal does not clearly indicate Morales intended to appeal this order. In his motion to dismiss, Harris predicted Morales would try to “save” the appeal by focusing on “a scrivener’s error” of writing the wrong date for the judgment, which happens to be the date of JNOV ruling, March 25, 2019. He points out Morales’s untimely, amended notice of appeal (which this court rejected) clearly checked two boxes and designated the appeal as challenging the January judgment and the March JNOV order. He concludes we should not liberally construe Morales’s original notice of appeal, clearly intended to be from the final judgment, as instead being from the order denying the JNOV. (See rule 8.100(a)(2) [policy of liberally construing notice of appeal in favor of its sufficiency].)

After considering the record, we conclude Morales intended to appeal from the judgment as well as the JNOV ruling. And because Harris was not misled or prejudiced by the notice, we will liberally construe it as a timely appeal of the JNOV order.

First, a brief review of the applicable legal principles is instructive. As mentioned, an order denying a party’s JNOV motion is an appealable order. (§ 904.1, subd. (a)(4).) As a general rule, if an order is appealable, an aggrieved party must file a timely notice of appeal from the order to obtain appellate review. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) “A notice of appeal from a judgment alone does not encompass other judgments and separately appealable orders[.]” (Ibid.) “‘“[W]here several judgments and/or orders occurring close in time are separately appealable . . . each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.”’ [Citations.] The policy of liberally construing a notice of appeal in favor of its sufficiency (rule 8.100(a)(2)) does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all. [Citations.]” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.)

Additionally, “‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ (Luz v. Lopes (1960) 55 Cal.2d 54, 59; see also rule 8.100(a)(2) [‘notice of appeal must be liberally construed’].) A notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ (Rule 8.100(a)(2).)” (In re Joshua S. (2007) 41 Cal.4th 261, 272.) And the notice in this case met this requirement by identifying the date of the JNOV order, which was not entered close in time to the judgment (three months earlier). Morales also attached a copy of the March 2019 minute order to her notice of appeal, clearly showing she intended to challenge the postjudgment ruling. Although she did not attach a copy of the January 2019 judgment to the notice of appeal, she attached a copy of it to her civil case information statement.

To the extent Morales’s failure to check the appropriate boxes created ambiguity, there has been no showing Harris could have been misled or prejudiced. First, Harris did not assert in his motion that he was misled or prejudiced by the notice. Second, Harris filed the motion to dismiss after receiving Morales’s opening brief, which clearly contains arguments related to the two March 2019 postjudgment rulings. Thus, Harris was aware that Morales was challenging the JNOV order before he filed his motion to dismiss and his respondent’s brief.

Third, this court dismissed Morales’s appeal early in the proceedings for a rule violation, and during the process of seeking its reinstatement, Morales clarified her intention to challenge both the judgment and the JNOV ruling. As acknowledged by Harris in his briefing, Morales’s counsel filed several declarations explaining the situation. In one of them, counsel explained the original notice of appeal failed to identify the judgment’s date in January and he wished to file an amended notice of appeal “to identify both the January 2, 2019, [j]udgment and to correctly identify the March 25, 2019, [m]inute [o]rder.” He submitted copies of both the judgment and the minute order, explaining he wanted the appellate court to have “the correct documents.” Because Morales also served Harris with these documents and a proposed amended notice of appeal, Harris cannot say he was unaware of Morales’s intention to appeal the judgment as well as the postjudgment rulings.

In summary, Morales’s notice was not especially specific so as to be read as only an appeal from the January 2019 judgment. By including the date of the minute order and attaching the order (and not the judgment) to the notice, it is reasonably clear Morales was attempting to appeal from both the judgment and the minute order. This and other evidence showed Harris was neither misled nor prejudiced by the ambiguous notice of appeal.

APPEAL OF THE JNOV RULING

FACTUAL BACKGROUND

We begin our summary with a physical description of the T-intersection where Harris encountered Morales. The intersection of Flower Avenue (Flower) and Gilbert Street (Gilbert) is located in the City of Fullerton. Flower runs west to east and Gilbert is situated north to south. Drivers going eastbound on Flower will observe the street terminates at a T-intersection where it meets Gilbert. Flower has a stop sign to halt traffic before turning left (northbound) or right (southbound) onto Gilbert.

A driver traveling east on Flower towards the T-intersection will encounter two visibility obstacles if he or she intends to turn right onto Gilbert. On the driver’s right hand side, the view of the sidewalk extending along Gilbert is partially obstructed by a homeowner’s high brick wall and row of tall shrubbery. A driver looking right can see the curb and approximately two feet of the sidewalk. On the driver’s left hand side, he or she must contend with oncoming traffic driving southbound 30 miles per hour or more and the view is partially obstructed by vehicles parked along Gilbert.

I. Evidence Relating to the Incident

A. Harris’s Version of the Incident

Harris worked as the safety director of the 79th theater sustainment command as an Army civilian. He was no longer active with the military. Harris had lived in the same house in Fullerton since 1998. On February 2, 2016, early in the morning when “there’s a lot of light out” but it was not yet sunrise, Harris got into his vehicle (a 1994 Saturn sedan with a manual transmission). He drove east on Flower, his usual route to go to work. Harris could see the road and his surroundings, but he also turned on his vehicle’s headlights. As he approached the T-intersection of Flower and Gilbert, he came to a complete stop behind the limit line located at the stop sign. He was not late for work and he did not hurry to turn right. Rather, Harris had the habit of being extra cautious at this T-intersection due to the visibility concerns.

After stopping at the limit line, Harris first looked to the right for a few seconds and saw approximately two feet past the corner of the sidewalk. He did not see any pedestrians. He next turned his head to the left and looked for oncoming vehicles, which were difficult to see due to parked cars on Gilbert. While looking left, Harris inched slowly past the limit line into the intersection, an action referred to in this case as “the California Creep.” Harris stated that when his entire car was past the limit line and fully into Gilbert, he felt he had “cleared the area, but the risk still ha[d] not gone away” due to the inability to see oncoming traffic. He scanned through the windshields of the parked cars looking for the reflections of headlights.

Thus, Harris was well past Flower’s unmarked crosswalk when he heard a noise that sounded like a slap on his car’s right front fender. Harris stated his vehicle was a “low-sitting car” and the front fender would be closer to someone’s knee level than their thigh. After hearing the slap sound, Harris immediately stopped his vehicle while turning his head right. He saw Morales moving left towards the center of his vehicle’s hood. He made eye contact with Morales and then watched her sit straight down on the ground. He stated she had a “determined face.” When questioned further by Morales’s counsel on what Harris meant by “determined,” he explained, “she wasn’t scared, she wasn’t happy, she wasn’t angry, she was determined.”

Harris did not know what happened but immediately got out of his car to check on Morales. He saw Morales laying on her back with her knees to the side. She was not unconscious. He heard Morales moan and saw her shift her body weight, which he called “a wiggle.” Harris put a “supportive hand on [Morales] to provide some comfort” and he sensed she calmed down. Harris recalled Morales was not scraped, bruised, or bleeding. He also remembered “she had a firm grip on her purse” while laying on the ground.

Later Harris inspected his car and did not see any damage to the front end of his vehicle. The hood was still dusty with pollen, because he typically parked under elm trees. He noticed the dirt was not smudged or otherwise disturbed as he would have expected if there had been contact with someone. When pressed by Morales’s counsel, Harris stated he was “a million percent certain” his vehicle did not make contact with Morales, and instead she sat down on the ground “on her own free volition.”

B. Morales’s Version of the Incident

Morales, who was in her late 40s, worked in a restaurant making pasta and she had never driven a car. On her way to work the morning of the incident, she was walking southbound on Gilbert and intended to cross over Flower. Morales testified she approached the intersection and while standing on the curb she made eye contact with Harris while his car was three car lengths away. She saw his vehicle stop behind the limit line, and she believed it was safe to cross the street. On cross-examination, she denied stating in her deposition that she never made eye contact with Harris.

Morales conceded she was having trouble with her memory. Indeed, since the incident she had given several different accounts of what transpired. During discovery, Morales indicated she was run over by a vehicle traveling between 10 to 40 miles per hour (mph). Later Morales stated she did not know how fast Harris was driving and it must have been slow. However, she described the impact as causing her body to fly up onto the hood in a “Superman” type pose. Morales stated her whole body was on the hood except her feet were dangling and then the car “threw [her] backwards.” At trial, she testified the vehicle struck her foot. Morales later corrected she was struck “on top of the knee.” Morales verified she hit the car with her right hand so Harris would stop driving forward.

At trial, Morales conceded the impact did not cause any bleeding, but she bruised her head. She testified that after the incident, she suffered from headaches and tried to avoid places having loud noises and bright lights. Consequently, she had missed going to several family events. She described being forgetful and having lost her sense of smell. Additionally, since the incident she sometimes felt dizzy and had fallen several times. However, on cross-examination she denied having any falls.

C. Officer Victoria Chandler

Officer Victoria Chandler testified she had been a police officer for three years. She graduated from the Sheriff’s Department’s academy in January 2016 and two weeks later she prepared the report for this incident. She acknowledged having limited prior experience at the time of incident.

She determined the area of impact was “six feet east of the west curb line of Gilbert Street, and six feet north of the south curb line of Flower.” Accordingly, Harris was well into the southbound lane of Gilbert when he encountered Morales at the hood of his vehicle.

Chandler could not remember what Morales looked like when they spoke on the day of the incident. Chandler testified Morales complained about pain to her head and she was unable to move. She wrote down Morales’s statement using someone who volunteered to help translate Spanish. Chandler testified Morales stated she saw Harris look left before she began crossing the street.

Chandler also spoke with Harris and wrote down his statement. She testified Harris described hearing a thump as he was turning right, and he thought he struck a pedestrian. She stated she would have noted in her report if the hood of Harris’s car showed a hand mark or other evidence of a point of impact. She did not write anything down about the condition of the hood.

D. Kenneth Solomon, Forensic Accident Reconstruction & Biomechanical Expert

Solomon testified he was a forensic scientist who investigates how accidents happen using principles of Newtonian physics, conservation of energy, and conservation of momentum. He described his duties as an accident reconstructionist, his educational background, and his extensive experience in this field. He had published 200 peer reviewed papers and 15 books. He opined that “if the contact had occurred between the Harris vehicle . . . and . . . Morales, the Harris vehicle would have been traveling at a speed well under five miles per hour. The evidence supporting this opinion was Harris’s testimony he was creeping forward, in a car with a manual transmission, about one to two mph. Solomon testified this inching forward meant “he still had his foot on the clutch, and he was lifting the clutch.” Solomon also relied on the lack of any physical evidence of harm to the vehicle or to Morales.

In addition, Solomon stated that, “at the time that there is a potential impact, the rear of Harris’s car would have been at the limit line” making the area of impact six feet beyond the intersection. He opined, “[B]ased on . . . Morales’s description of events, the front bumper of the Saturn would have made the initial contact with the side of [her] left leg . . . a little above the knee.” Solomon noted that in reading Morales’s deposition and her medical records “I have at least [10] different descriptions of the incident from her” and he tried his “best to comprehend each of those descriptions in [his] reconstruction and . . . biomechanical analysis.”

He also opined that based on the lack of any physical evidence of damage to the vehicle or Morales’s body there was no contact between them. Alternatively, if there was contact then “Morales’s complaint of left hip pain following the accident does not directly correspond with where the front bumper of the Saturn would be[.]” He reached this conclusion based on Morales’s height and weight, and the dimensional specification of the Saturn. He also concluded nothing supported Morales’s claim she stuck her head following an alleged collision between the fender and her upper knee. He disagreed with Morales’s biomechanical expert’s (Rami Hashish) calculation the impact to Morales “was at 97 G’s[ and a] G is a measure of force.” Solomon explained “97 G’s” would mean she was hit somewhere between 58 mph and 100 mph, “which is not physically possible, and would have . . . greater than the likelihood of a 50 percent chance of fatality, so we know that didn’t happen.”

Solomon opined Morales walked in front of the Saturn without making eye contact with Harris, and he did not make eye contact with her. He disagreed with Hashish’s opinion Morales walked 14 feet into the street, explaining that at a maximum she walked 8.4 feet because “if she is six feet east of the curb, and . . . six feet north of the curb, and she took a projected hypotenuse walk, so to speak” that would be 8.4 feet (or six feet if she walked in a perpendicular line). Agreeing with Hashish’s determination that a woman of Morales’s age would typically walk three mph, this meant Morales was walking approximately 4.4 or 4.5 feet per second. In summary, it would take less than two seconds to walk six feet east of the curb.

Counsel asked Solomon to describe Morales’s 10 different versions of the incident. Based on his reading of the records in the case, Solomon discussed the various stories. On the day of the incident, ambulance records recorded the incident as involving a car that rolled into the intersection at a low speed “bumping patient.” The ambulance report did not indicate Morales suffered swelling at the back of her head. Later that same day, records from the emergency room stated Morales reported a car hit her at low speed, she did not go on the hood, the car traveled only two feet, and it did not run her over.

A month after the incident, on March 4, 2016, Morales told D.H. Kim, a chiropractor, she was struck from the front and thrown back and forth. In the beginning of May 2016, Morales reported to a different chiropractor, Julie Brown, that the car hit her left side and she put her hands on the hood and she was thrown back and forth. She also claimed the car kept going after the impact, which was inconsistent with her earlier claims she was not run over. At the end of May 2016, Morales told an orthopedic expert, Thomas Phillips, she was run over by a car, which hit the right side of her body and she landed on her back.

In August 2017, Morales told an otolaryngology expert, Stephen Grifka, that she was knocked down and had swelling on the back of her head. Later that month, Morales’s written discovery statement, made under penalty of perjury, indicated she was run over by Harris, who was driving 10 to 40 mph. In her deposition, taken in December 2017, Morales testified under oath that she hung on the car with her feet dangling for a minute and slid back off the hood. Morales gave her ninth version of the incident to a neurologist, Vincent Fortanasce, in January 2018. She again described landing after impact in a Superman pose on the hood of the car. Solomon noted that Morales’s final version of the story was also recorded in a doctor’s office. Morales claimed she was walking “through the car path between lights” and landed on top of the car. Solomon pointed out how the various stories were inconsistent and why some could be easily discounted for scientific reasons.

Solomon stated it was undisputed Harris stopped at the limit line and lifting his foot off the clutch would mean the car inched forward, moving one to two feet per second. Solomon concluded Harris, at that slow speed, would have to had started moving “way before” Morales started walking (approximately 4.5 feet per second) due to the point of the alleged impact and the parties’ starting positions. Solomon concluded Harris’s vehicle was moving when Morales stepped off the curb intending to walk around the hood.

II. Harris’s Evidence Relating to Morales’s Injuries

Harris’s experts universally testified Morales was injured if her self-reported symptoms were accepted as true. However, several of Harris’s experts concluded Morales was an unreliable historian of the incident as well as of her injuries. Some experts opined Morales’s multiple falls after the incident were potential intervening causes of the brain injury reflected on recent magnetic resonance imaging (MRI) scans. All of the above evidence supported Harris’s theory of defense: His vehicle did not crash into Morales and he did not cause her current medical problems.

A. Arthur P. Kowell, Neurologist

Morales’s counsel called Harris’s neurology expert, Kowell, as part of her case in chief. Kowell agreed with counsel’s statement that Morales “suffered injuries from this crash” including “a mild traumatic brain injury” (TBI). Kowell also agreed with counsel that Morales suffered from a post-concussion syndrome following the incident. He explained this could be the cause of her headaches, neck issues, occasional complaints of blurred vision, and her permanent loss of smell and taste senses.

Kowell examined Morales and he recalled she described being struck by a car on her lateral left thigh, she landed on the vehicle’s hood, the car “continued to move and she fell back on the pavement with the occipital region, the back of the head striking the pavement.” He acknowledged this account differed from the St. Jude medical records. Kowell stated it was “very important” and “vital” to his analysis of a case to obtain an accurate account of symptoms and reliable information from a patient. He stated sometimes it is possible to tell whether an “unreliable historian” is someone who does not have a good memory rather than someone who is malingering. He clarified malingering meant someone was “consciously falsifying something.” He would defer to a neuropsychologist’s expertise for deciding if someone was malingering. Kowell stated that in formulating his opinion he had to assume Morales accurately reported her symptoms.

On cross-examination, Harris’s counsel asked Kowell about the apparent “lack of investigation” regarding Morales’s three falls following the car incident. Kowell replied that Grifka’s medical report, from August 2017, indicated Morales reported falling two or three times. Kowell did not recall seeing any information about the falls in other medical reports. He noted it was important to know if Morales fell, and the reasons for those falls, when considering whether Morales’s symptoms were caused by Harris or something else.

Kowell agreed with counsel that a person’s brain injury symptoms typically appear within a few days of a car accident, not one year later. Based on his review of the records, Kowell noticed Morales’s complaints stopped approximately six months after the incident and there was a one year gap before she made an appointment with Grifka. His review of the ambulance records did not show Morales lost consciousness. She also scored the maximum possible on a diagnostic tool, the Glasgow Coma Score (GCS), used to detect brain injury.

B. Ari Kalechstein, Neuropsychologist

Harris’s expert, Kalechstein, was a licensed psychologist who specialized in neuropsychology and forensic psychology. He spent over 60 hours on this case, reviewing the medical records and deposition testimony and he also examined Morales. He stated his assignment was to determine if Morales sustained a TBI. When counsel asked Kalechstein to identify what kind of information would be relevant, if he were to assume Morales’s self-reporting was unreliable, he discussed several objective diagnostic tools. He explained these tools included the recorded observations of medical staff and first responders. Additionally, a doctor could rely on physical testing such as the GCS score, CT scans, and the “DSM-V” test, which measures if there was loss of consciousness. He explained that if someone has experienced a concussion or TBI, the symptoms “almost always show up within seconds or minutes.” His review of the records revealed Morales did not lose consciousness after the incident. He stated there was no objective evidence of a brain injury, but Morales’s subjective report of head pain and dizziness would indicate she had a mild concussion (a mild TBI).

Kalechstein stated that typically symptoms related to concussions lasted a few days or six months “at the outside” and this was evident in Morales’s records. He explained St. Jude’s medical workers diagnosed her as having a mild concussion and discharged her without referring her for “any sort of rehabilitation.” Kalechstein saw no documentation in Morales’s medical records from her regular doctors at Kaiser showing she suffered from any other symptoms associated with a concussion during the month following the incident. He opined this evidence suggested Morales recovered.

Kalechstein stated he examined Morales in January 2018 for approximately seven hours. The exam is lengthy because it included an interview and testing. He concluded there was evidence of malingering and exaggeration. He determined Morales was not suffering from Post-Traumatic Stress Syndrome (PTSD), depression, or anxiety from the incident. He explained Morales’s different accounts of how the incident occurred was not the result of post-traumatic amnesia, as she claimed. Rather, the inconsistencies were likely the result of malingering or lack of effort. He agreed with counsel that one reason for malingering was if there was “secondary” financial gain. He elaborated Morales was an “unreliable historian,” which meant it was “difficult to take what she says at face value, and you have to corroborate it, for lack of a better term, with objective party data.” Kalechstein believed Morales’s unreliability extended beyond her injuries.

Finally, Kalechstein noted the threshold for a concussion diagnosis can simply be a patient’s self-reported symptoms, such as dizziness. If Morales’s complaints were accepted and considered as true, then her symptoms were consistent with someone suffering from a brain injury. However, Kalechstein was of the opinion Morales had provided “unreliable self-reporting.” Based on his examination of Morales, Kalechstein did not believe she needed any further treatment.

C. James Rosenberg, Neuropsychiatrist

Rosenberg was a doctor specializing in neuropsychiatry, and the subspecialty of forensic psychiatry. His expertise was in neuropsychiatry, “the branch of medicine that overlaps between psychiatry and neurology . . . so it involves brain-related disorders that have psychiatric manifestations.” Rosenberg testified there was “mixed or inconclusive evidence whether . . . Morales actually experienced a brain injury during the incident . . . .” He based this opinion on evidence Morales was able to give a complete and detailed description of the entire incident when she was laying on the ground to the police officer and later the paramedics. He stated, “the fact that she is able to give that description with continuous memory means continuous intact brain function[, which] is not consistent with a mild TBI.”

When asked if Morales’s different accounts should be attributed to amnesia, Rosenberg stated the following: “[T]here are some inconsistences in her claims over time, but to have intact brain function and be able to describe in detail, particularly when it seems helpful to her case, exactly what happened suggests no [TBI], and at other times to give a different description or say I don’t know constitutes an inconsistency and doesn’t make reasonable medical scientific sense[.] [A]nd the other issue of potential amnesia, as I understand it, if she was emotionally traumatize[d] in the case, could this be [PTSD], and again, that makes no reasonable sense because she was able to demonstrate, particularly at the scene, and then later on in another context, that she had a complete and continuous memory of it . . . . [PTSD does not] explain why at times she is able to give very detailed information, when it is from a common-sense standpoint helpful to her case, and then other information that would not reasonably be related to the accident, she says I don’t know, or I can’t remember, information from a common-sense standpoint is information that she wants to either keep from the defense or when she needs an excuse for why she gave two different stories.” He added the evidence did not support a PTSD diagnosis, particularly evidence that after four days Morales returned to full time employment and “walked 100-plus times that same route past the accident to work” and “continued functioning in various aspects of her life . . . .”

Rosenberg discussed the types of diagnostic tools used to determine if someone has lost consciousness. He concluded the evidence indicated the following: “[T]hat if there was a TBI, it would be in the mild and complicated range because at the scene[] she was already awake and alert and conversant, her mental function had returned to normal, according to the paramedics . . . [and] police officer . . . [and] putting aside what . . . Morales may have said later on, that her [GCS] score was a perfect 15 in the field and continued to be a perfect 15 in the [emergency room]. In the [emergency room] she remained awake and alert, normal in her mental functioning. She had a normal neurologic exam . . . [and] head [computerized tomography (CT) scan], so there . . . was no other significant evidence which suggested . . . [a] TBI. [Moreover, Morales’s subsequent] [MRIs] were completely normal as well.” On cross-examination, Rosenberg stated that “if I give her the benefit of the doubt and accept what she said at face value” her reported symptoms would be consistent with TBI.

D. Jay Tsuruda, Neuroradiologist

Tsuruda was a radiologist who was a specialist in neuroradiology, focused on the brain, spine, head, neck, and peripheral nerves. He had additional expertise in pain management. He testified that Morales’s brain CT scan taken on the day of the accident, and two subsequent MRIs showed no abnormalities. He explained CT and MRI technology “are the two gold standards” for diagnosing brain injuries.

He opined a diffusion tensor MRI (DT MRI) was not a scientifically reliable diagnostic tool. He explained the DT MRI was “a research tool, applied to large populations to look at trends that there may be a loss of integrity of the white matter in patients with trauma, but never ever use this on a single individual to make that diagnosis as positive for brain trauma.” He acknowledged Morales’s expert performed a DT MRI in 2018 to diagnose a TBI, but he noted there were no prior scans with which to make a comparison. Tsuruda testified that if he hypothetically assumed the DT MRI showed a brain injury, that injury cannot, to a reasonable degree of medical probability, be related to the accident as opposed to Morales’s subsequent falls.

E. James Bredenkamp, Otolaryngologist

Harris retained Bredenkamp, an otolaryngologist (an ear, nose, and throat (ENT) surgeon). He stated that ordinarily he would not agree to testify in a case involving a disputed TBI because it was not his specialty. However, he became interested in the case when he learned Morales’s ENT doctor was rendering an opinion based on a Videonystagmography (VNG) test, which ENTs use to measure nystagmus (response in the eyes). He explained balance disorders are complex and can have multiple causes including issues with the “peripheral system” (ears, eyes, joints) and “central system.” Bredenkamp stated a VNG test was time consuming and could be objective only if administered properly and the patient was “focused.” He opined, “it is dangerous to use [a VNG test] to diagnose TBI” because that would be a “misuse” of the procedure. He explained the test was used to detect specific balance disorders relating to vertigo and inner ear issues and “so it has very limited clinical utility.”

Bredenkamp added, “I’ve been in private practice for 28 years, I’ve never been called by a neurologist to . . . do a VNG, because [he or she thought the] patient ha[d a TBI]” and, therefore, Grifka’s use of the test “is a complete misrepresentation

. . . and misuse of this test.” Bredenkamp noted people without a TBI can have abnormalities on VNGs. Moreover, he was concerned by Grifka’s decision to send the data to a doctor in Kansas City and co-author Morales’s report. He opined this was a “dangerous” practice.

He also disapproved of the lack of data available for him to review and interpret. In reviewing the data provided to him, Bredenkamp opined that after comparing VNG tests that it appeared Morales’s condition was getting worse. He suggested this decline would not be attributable to the incident with Harris, “but rather, with intervening injurious event[s] such as a fall.” He clarified that although the data showed something happened between the two VNG tests, “I’m going to say, you know, if you’re asking me to interpret garbage data, and I can hypothesize about this, but the bottom line is nobody can interpret this data. It’s worthless.” Bredenkamp was also highly critical of the lack of evidence available to confirm the proper testing protocols were followed to determine if Morales lost her sense of smell.

F. Michael Weinstein, Orthopedic Surgeon

Weinstein was an orthopedic surgeon with a subspecialty in neck and back surgery and rehabilitation. Like other experts, Weinstein’s opinions were based on accepting Morales’ self-reported symptoms as being reliable. He did not examine Morales, but noted the records showed she was seen at Kaiser two days after the incident and she did not report any pain associated with the alleged collision. He testified Morales’s radiological films of her neck showed “very minor degenerative changes” that did not “appear to be any different from what you would expect” for her age. He noted it was not possible to determine from the MRI what changes were caused by the incident. He opined Morales’s “spine was 90 percent better than people in her age group.”

G. Morales’s Experts

Morales’s experts were Vincent Fortanasce (neurology expert), Stephen Grifka (otolaryngology expert), Thomas Phillips (orthopedic expert), Aaron Filer (neurosurgical expert), Mark McDonough (neuropsychology expert), and Hashish (biomechanical expert who testified that the collision forces were sufficient to cause the injuries identified by the medical experts). In her briefing, Morales asserted these experts provided evidence she was hurt by the collision. However, she failed to discuss any specific details.

Harris referred briefly to these expert opinions only to highlight how his experts disagreed with Morales’s expert’s opinions. While a summary of this testimony would have provided a better overall picture of the case, we do not feel compelled to create one for Morales because the jury’s verdict clearly showed it found Harris’s experts to be more persuasive. Like the parties, we will focus on whether Harris’s experts provided evidence warranting a JNOV in Morales’s favor.

II. Standard of Review

“The standards to apply in reviewing a ruling on a motion for JNOV are well established. ‘“The trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” [Citation.] “‘The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.]’” [Citation.] The trial court cannot consider witness credibility. [Citation.]’ [Citation.]” (In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 606 (Latex Glove).)

In general, ‘“[t]he purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury’s deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation.” [Citation.]’ [Citation.]” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.)

III. Analysis

Morales raises several arguments concerning the court’s denial of her JNOV motion. The gravamen of her complaints is that the jury could not have possibly found Harris negligent but not a substantial factor in causing harm because “all [the] experts agreed the crash caused . . . harm.” She maintains the only issue at trial was the severity, not the existence of harm. We disagree.

We begin with Morales’s assertion the jury, in answering “yes” to the negligence question, necessarily rejected Harris’s claim he did not crash into Morales. She maintains the jury evidently determined Harris was not a credible witness. She reminds this court that we cannot reassess a witness’s credibility and therefore the jury’s negligence finding was inconsistent with its conclusion regarding lack of causation. We disagree with her interpretation of the special verdict.

David v. Hernandez (2014) 226 Cal.App.4th 578 (David), is instructive. In that case, appellants brought a negligence action against a truck driver after their car collided with his tractor-trailer. (Id. at p. 581.) The jury returned a special verdict finding the truck driver was negligent, “but that his negligence was not a substantial factor in causing harm to appellants.” (Id. at p. 585.) The issue decided on appeal was whether the verdict was “fatally inconsistent because ‘a finding of causation flows automatically from the negligence finding.’” (Ibid.) The appellate court concluded that because the special verdict did not specify the manner in which the truck driver was negligent, “‘the jury’s finding is tantamount to a general verdict. As long as a single theory of negligence is lawfully rebutted on a lack of causation theory, it matters not that another theory of negligence is not so rebutted. [Citation.]’ [Citation.]” (David, supra, 226 Cal.App.4th at pp. 585-586.)

The David court listed “several theories of negligence that the jury could have reasonably concluded had been rebutted for lack of causation.” (David, supra, 226 Cal.App.4th at p. 586.) For example, the jury might have found the truck driver negligent for failing to maintain certain lights and reflector strips on his vehicle, but then also found that appellants would not had seen those lights or reflectors even had they been properly maintained, and thus the negligence played no part in the collision. (Ibid.) It concluded the special verdict was “neither inconsistent nor unsupported by substantial evidence” and “[t]he jury could have reasonably concluded that the collision was caused by [one of the] [a]ppellant’s inattentiveness to the road ahead of him rather than any act of negligence committed by [the truck driver].” (Id. at p. 588.)

In the case before us, there was more than one theory of negligence. Thus, the jury could have reasonably concluded a negligence finding was rebutted for lack of causation. For example, at oral argument, Harris’s counsel suggested the jury may decide Harris was negligent for looking left for oncoming traffic, rather than looking right, as he proceeded onto Gilbert. Counsel argued “[t]hat’s not enough to find against him. You have to have the next part, and that’s substantial factor. [¶] [Has] anything . . . Harris done a substantial factor in this accident occurring? Because I’m going to tell you, if he was looking in any other direction, this accident still happens. The substantial factors are

. . . Morales walking out into the road and jaywalking. And if he looked right, there wouldn’t have been enough time anyways, if he in fact even hit her.” (Italics added.)

In the special verdict, the jury factually determined Harris was negligent without specifying the way in which he was negligent. Because we do not know the jury’s theory of negligence, we have no reason to conclude the jury determined Harris lacked credibility or disbelieved his assertion there was no impact with Morales.

Morales, in her reply brief, argues we cannot reach this conclusion for the following reasons: (1) the court did not deny the JNOV motion on this basis but rather assumed there was a collision; (2) the jury would have to ignore “the defense judicial admission” there was an impact causing damages; and (3) the jury would have to ignore all the expert testimony, which was conclusive on the issue of causation. She forgets our standard of review. We are not examining whether the court abused its discretion and we are not limited by the reasons articulated by the trial court when denying the motion. Rather, we are required to examine the entire record to determine “whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion. [Citations.]” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

Likewise, we are unpersuaded by Morales’s suggestion there was a “defense judicial admission,” which is a new argument raised for the first time in her reply brief. She asserts Harris’s counsel, during closing argument, made statements that appeared to concede Morales sustained injuries as a result of a collision. Statements of counsel in argument are not evidence and are not binding on the client unless made in the form of a stipulation. (Haynes v. Hunt (1962) 208 Cal.App.2d 331, 335.) And to hold counsel’s comment was an unequivocal admission of fault, we would have to ignore his many other statements asserting there was no impact, the gravamen of the Harris’s defense case. More importantly, we will not overlook basic rules of appellate procedure. This court will not consider an argument unfairly raised for the first time in a reply brief, to which Harris had no opportunity to respond. (See Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.)

While Morales’s next argument regarding the conclusive nature of expert testimony was included in her opening brief, we conclude the contention lacks merit. Morales maintains “the parties’ experts agreed that the Crash harmed [her].” She argues that when an issue requires expert guidance, and when the “undisputed expert evidence is conclusive,” the conclusions cannot be disregarded by the jury or court. She elaborates that her six experts and Harris’s seven experts agreed the collision caused injuries and only “disagreed on the extent of the injuries and the credibility of [the parties.]” To support this argument, Morales focuses on select portions of the reporter’s transcript, noticeably failing to set forth or analyze any unfavorable testimony. This violation of basic appellate rules results in briefing that misconstrues the record. It appears Morales did not anticipate this court could and would read the experts’ testimony. It was not conclusive on the issue of causation.

Before reviewing the testimony, we must point out Morales misstated the applicable law. As noted in Harris’s briefing, Morales cited to only professional negligence cases using expert testimony to establish the applicable standard of care. (E.g., Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278.) A jury need not accept the uncontradicted testimony of an expert in a personal injury case. “‘[A]s a general rule, “[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]” [Citation.] This rule is applied equally to expert witnesses.’ [Citation.] The exceptional principle requiring a fact finder to accept uncontradicted expert testimony as conclusive applies only in professional negligence cases where the standard of care must be established by expert testimony.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.)

After reviewing the testimony, we conclude the experts in this case did not unequivocally opine the collision caused a TBI. Kowell, Kalechstein, and Rosenberg clearly stated their opinions were based on their assumption Morales was a reliable historian and they accepted her self-reported symptoms at face value. Kowell highlighted inconsistencies with Morales’s accounts of the incident and explained inaccurate reporting from a patient can significantly impact a diagnosis. In addition, Harris’s experts also discussed the following: (1) the lack of objective evidence of a TBI; (2) how a TBI diagnosis can be based on self-reported symptoms alone; (3) evidence suggesting Morales was not a reliable historian given her inconsistent accounts of the incident;

(4) psychological testing exposing malingering and exaggeration; and (5) evidence Morales’s subsequent falls caused a TBI. Accordingly, the jury could have rejected medical opinions founded on Morales’s self-reported maladies if it concluded she lacked credibility. As Morales acknowledged in her briefing, we cannot reassess issues of credibility. (Latex Glove, supra, 99 Cal.App.4th at p. 606.)

Moreover, the jury was free to accept Harris’s claim and the biomechanical expert’s testimony there was no contact between the vehicle and Morales. The jury may also have been persuaded by various experts who discussed the lack of objective evidence to support Morales’s claim she was injured by the crash. For example, the vehicle showed no signs of an impact, and Morales was not bruised or bleeding on the day of the incident. There was no evidence she lost consciousness, and she was assessed with a perfect GCS score. Her CT and MRI scans were normal. She did not require ongoing medical care. She offered multiple, and sometimes exaggerated, versions of how the alleged crash took place.

In conclusion, although we do not know the jury’s theory of negligence, there was evidence to support a finding Harris was negligent in looking left as he moved into the intersection, but that his negligence did not cause Morales’s injuries. Accordingly, we affirm the trial court’s order denying her motion for JNOV.

DISPOSITION

The motion to dismiss is partially granted, i.e., the appeal from the judgment and new trial motion are dismissed as untimely. We affirm the trial court’s postjudgment order denying the motion for JNOV. Respondent shall recover his costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

THOMPSON, J.