Filed 9/10/19 Reale v. Bay West Family Health Care Medical Group CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

SUSAN REALE,

Plaintiff and Respondent,

v.

BAY WEST FAMILY HEALTH CARE MEDICAL GROUP et al.,

Defendants and Appellants.

A152757

(San Francisco County

Super. Ct. No. CGC-15-548532)

Defendants Sacha Niemi, M.D. (Dr. Niemi) and Bay West Family Health Care Medical Group (Bay West) appeal from a trial court order granting a motion for a new trial (the motion) in this medical malpractice case. Plaintiff Susan Reale filed the motion after a jury reached a verdict in favor of defendants, finding that they were negligent but that their negligence was not a substantial factor in causing harm to Reale. In granting the motion, the court rejected the jury’s causation finding. We affirm.

I.
FACTUAL AND PROCEDURAL
BACKGROUND

Reale was a patient of Bay West who was seen several times by Dr. Niemi. In October 2011, Reale took laboratory tests in advance of an annual checkup with Dr. Niemi. The test results, one of which indicated Reale’s kidney functioning might be impaired, were conveyed to Dr. Niemi before the checkup. At the checkup on October 14, Dr. Niemi prescribed Reale the drug Lisinopril, which is used to control blood pressure and protect kidney function. Dr. Niemi also asked Reale to repeat her laboratory tests in a week or two.

Certain aspects of what occurred at the October 2011 checkup are disputed. Defendants contend that Dr. Niemi discussed the laboratory results with Reale and diagnosed her as “qualify[ing] for chronic kidney disease stage 3A.” Reale, on the other hand, contends that Dr. Niemi never told her she “had kidney problems or kidney disease” and did not “tell [her] Lisinopril could protect [her] kidneys.”

Both sides agree, however, that for the next 15 months Reale did not take Lisinopril. Reale testified that she did not take it because she was unaware of possible kidney problems and was told only that the medication would help control her high blood pressure, which she planned to address through exercise and diet. In January 2013, Reale was seen by a nurse practitioner at Bay West who took her blood pressure, told her it was still high, and stressed “that she need[ed] to take the [blood pressure] medication as directed.” Reale started taking Lisinopril, but she soon complained to Bay West about side effects. After learning of Reale’s complaints, Dr. Niemi changed the prescription to a different medication.

Over a year later, in July 2014, Reale again visited Bay West out of a continued concern about her blood pressure. A doctor other than Dr. Niemi saw her and ordered further testing on her kidneys. After receiving the results, the doctor diagnosed Reale with stage four chronic kidney disease. Reale’s kidney function continued to decline, and she started dialysis in September 2016. Five months later, in January 2017, she had a kidney transplant.

At trial, the experts on both sides agreed that Reale’s kidney impairment likely would have progressed regardless of whether she had taken Lisinopril during the 15-month period between the October 2011 checkup and January 2013, but they disagreed on how the disease’s progression might have slowed if Reale had taken the medication. Reale’s expert believed the need for dialysis could have been delayed for “months to several years,” whereas the defense expert believed it could have been delayed for “six months to [two-and-a-half] years.”

The jury returned a verdict for defendants. It found that Dr. Niemi and Bay West were negligent but that their negligence was not a substantial factor in causing harm to Reale. After the trial court entered judgment for defendants, Reale filed the motion under Code of Civil Procedure section 657. The court granted the motion in a 41-page order, from which defendants appeal.

II.
DISCUSSION

A. The Standards of Review.

“The determination of a motion for a new trial rests so completely within the [trial] court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)

“[A]n order granting a new trial under section 657 ‘must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court’s] theory.’ ” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 (Lane).) Thus, “ ‘the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new trial] order.’ ” (Ibid.) “[T]he trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.” (Ibid.) “The reason for this deference ‘is that the trial court, in ruling on a [new trial] motion, sits . . . as an independent trier of fact.’ ” (Ibid.)

As a result of this deference, “ ‘[a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached.’ ” (Lane, supra, 22 Cal.4th at p. 412.) “Conflicting evidence . . . places the new trial order beyond review so long as the conflict relates to the trial court’s reasons for granting a new trial. ‘An abuse of discretion [warranting reversal of a new trial order] cannot be found in cases in which the evidence is in conflict.’ ” (Id. at p. 416.) “[S]o long as the outcome is uncertain at the close of trial—that is, so long as the evidence can support a verdict in favor of either party—a properly constructed new trial order is not subject to reversal on appeal.” (Id. at p. 414.)

The standard of review that generally applies when appellate courts review lower courts’ factual determinations is different from the standard that applies when a trial court reviews a verdict in connection with a motion for a new trial. We discuss them both and start with the appellate courts’ standard. “When the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court’s resolution of the factual issue is supported by substantial evidence, it must be affirmed.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Under this standard, “the power of the appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics omitted.) If there is such evidence, the appellate court must affirm, and “it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Id. at p. 874, italics omitted.) And it is also of no consequence that “ ‘ “the reviewing justices personally would have ruled differently had they presided over the proceedings below, [or that] other substantial evidence would have supported a different result.” ’ ” (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1553.)

The standard that a trial court applies when it reviews a verdict in connection with a motion for new trial is different. Under section 657, subdivision (6), a trial court may vacate a verdict and grant a motion for a trial on the basis of “[i]nsufficiency of the evidence to justify the verdict.” Such an insufficiency may be present when too little evidence is introduced to support the verdict, but as Lane explained, it may also be present when conflicting evidence was introduced and could support either party. (Lane, supra, 22 Cal.4th at p. 416.)

B. The Trial Court Did Not Abuse Its Discretion in Entering the Order

Because There Is a Substantial Basis for It.

Although the parties extensively discuss the evidence related to whether Dr. Niemi and Bay West were negligent, our analysis is limited to the evidence related to whether their negligence was a substantial factor causing harm to Reale. This is because the jury and the trial court agreed that defendants were negligent. The only disagreement was whether this negligence was a substantial factor in causing harm to Reale: The jury found that it was not such a substantial factor, and the court found that it was. Since defendants on appeal challenge only the court’s causation finding, we need not belabor the conflicting evidence and arguments relating to the issue of negligence.

On the issue of causation, the record reveals a substantial basis for the trial court’s determination. At trial, Reale acknowledged that in October 2011 Dr. Niemi prescribed Lisinopril for her, but she testified that Dr. Niemi did not tell her she might have kidney problems or disease. She testified that she would have remembered being told about concerns with her kidneys and would “have absolutely taken probably any drug, the Lisinopril included.”

Contrary to defendants’ contentions, the trial court in its 41-page order thoroughly, and certainly sufficiently, considered the evidence supporting its causation determination. In the order, the court found that Dr. Niemi failed to diagnose Reale with kidney problems and did not tell her “the prescribed Lisinopril was to treat [kidney disease].” In making these findings, the court observed that Dr. Niemi did not recall her conversations with Reale with specificity, and Reale was “the type of person who would remember if she were told by a doctor that she had a chronic disease affecting her kidneys, a major organ of her body.” Indeed, the court flatly rejected the defense’s argument that “Reale is not worthy of belief.” And it found that “Dr. Niemi’s failure to remember is either irrelevant or has little weight in determining that . . . Reale’s statement that Dr. Niemi did not tell her she had [a kidney impairment] on October 14, 2011 is correct.”

The trial court then found that, as a result of not being told about her kidney problems, “Reale did not begin taking the prescribed Lisinopril on or about October 14, 2011. Instead, she did not take Lisinopril until about 15 months later.” The court found that this delay caused Reale harm. Both experts testified that if Reale had taken Lisinopril during the 15-month period, her kidney disease likely would have progressed more slowly. “Reale testified as to what dialysis involved: trips to a medical facility every few days with the dialysis procedure itself requiring several hours. She also experienced restrictions in other life activities such as limitations on what foods she could safely eat and a limitation on what activities she could undertake, like not being able to swim in public pools or participate in any activities with dogs.” The court “carefully weighed this testimony and concluded that the need to have dialysis six months to three years sooner and the limitations on other life activities constitutes ‘harm.’ ”

Defendants argue that the trial court erred because it “conclude[d] there was insufficient credible evidence to support the verdict” and there was, in fact, sufficient evidence to do so. We perceive no error. We acknowledge that some of the court’s comments could be misconstrued. The court remarked that there was “insufficient evidence for the jury to have answered ‘no’ to [the causation questions] on the jury verdict form,” and made similar comments to that effect. The wording of these comments does not precisely track section 657, which allows a court to vacate a verdict and grant a motion for a trial on the basis of “[i]nsufficiency of the evidence to justify the verdict.” (§ 657, subd. (6), italics added.) Read in isolation, the court’s phrasing could be interpreted to mean the court was concluding that not enough evidence supported the jury’s verdict, as opposed to making independent factual determinations. But a plain reading of the lengthy order leaves no doubt that the latter was the case, as the court reweighed conflicting evidence, made reasonable inferences, and evaluated witness credibility. It was acting perfectly within its authority to do so. As we have said, a court may grant an order for a new trial when there is conflicting evidence, and its order must be affirmed “so long as the evidence can support a verdict in favor of either party.” (Lane, supra, 22 Cal.4th at p. 414.)

To be sure, the jury’s verdict had evidentiary support. Evidence was presented that, if credited, supported the theory that Reale was told of her kidney problems but failed to attend to them properly. For example, months before the October 2011 checkup, a letter based on a then-contemporaneous laboratory test was sent to Reale informing her that her “kidney function was somewhat elevated.” And Dr. Niemi testified that it was her normal practice to discuss all laboratory results with her patients and she believed she acted in conformity with this practice by telling Reale in October 2011 that her test results showed possible kidney problems. Evidence was also presented that Reale did not always heed the medical advice she was given. She did not always take prescribed medication (such as Lisinopril), sometimes postponed medical visits, and did not always have ordered laboratory tests taken. If the trial court had denied the motion and we faced an appeal from Reale, this evidence may well have compelled us to affirm the jury’s determination that defendants’ negligence was not a substantial factor in causing harm to her. And had we been in the trial court’s position, we might have given more weight to this evidence than it did. But under our applicable standard of review, we must affirm the order granting the motion because there is a substantial basis for it.

C. The Trial Court’s Procedure in Considering the Motion Was Proper.

Dr. Niemi and Bay West contend that the trial court used improper procedures in considering the motion for a new trial. We disagree.

1. Additional facts.

Reale filed her notice of intent to file a motion for a new trial on July 10, 2017. Seven days later, she filed her brief and accompanying documents. Defendants filed their opposition brief on Friday, July 28, although their accompanying documents were not filed until the following Monday, July 31. Also on July 31, Reale filed her reply, and the trial court ordered the parties to answer a series of questions. The next day, the court ordered them to answer another question. The parties answered the questions in writing.

The hearing on the motion was held on August 3, and it lasted almost four hours. After observing that the parties were mainly arguing about factual issues, the trial court asked them to “write up the facts, a list of facts with reference to exhibits or testimony that supports your contentions that you made your briefs on.” Both sides complied by submitting a written list of evidence that they claimed supported their respective positions.

2. Discussion.

Section 659a requires a party moving for a new trial to serve and file its brief and accompanying documents within 10 days of the filing of the notice of intent to file the motion. After an opposition is filed, the moving party then has five days to reply. Reale complied with these provisions, and defendants do not contend otherwise. They argue that the hearing procedure was nonetheless improper because Reale “submitted supplemental briefing and documentation on August 2, 2017, and August 8, 2017, well after the 10-day deadline following the filing of notice of intention.” And they contend that the trial court wrongly failed to give them an “opportunity . . . to submit opposition to [her submission] filed [after the hearing].”

To begin with, these arguments were forfeited because defendants did not raise them below. (See Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264–265.) But we would reject them even if they had been preserved. The “supplemental briefing” about which defendants complain is composed of the answers Reale submitted in response to the trial court’s orders asking a series of questions and the list of facts she submitted in response to the court’s request at the hearing. Reale submitted these documents after she had already complied with section 659a by filing her brief and accompanying documents within 10 days of the filing of her notice of intent to file the motion and filing her reply within 10 days of defendants’ opposition to the motion. Nothing in section 659a prevents a court from ordering the parties to summarize their evidence after submitting their primary filings, ordering the parties to answer questions simultaneously, or declining to give the parties an opportunity to respond to each other’s simultaneous answers.

D. The Trial Court’s Conduct During the Trial Was Not “Unfair.”

Finally, we reject defendants’ contentions that the trial court acted improperly in questioning Dr. Niemi, asking Reale about her income, commenting to the jury that Dr. Niemi was not an expert witness, and denying the use of a portion of deposition testimony to impeach a witness. Even assuming these arguments were properly preserved, they are meritless. The jury favored defendants on the causation issue, the sole focus of this appeal, so any alleged misconduct by the court plainly had no prejudicial effect on the verdict. Nor do defendants explain how any of the court’s alleged misconduct could have affected the court’s own consideration and granting of the motion. In short, there was no reversible error.

III.
DISPOSITION

The order granting a new trial is affirmed. Respondent is awarded her costs on appeal.

 

_________________________

Humes, P. J.

We concur:

_________________________

Margulies, J.

_________________________

Banke, J.

Reale v. Bay West Family Health Care Medical Group et al. A152757