Davis v. Murphy CA2/2 ( 2021 )

Filed 4/2/21 Davis v. Murphy CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
STAN DAVIS, B295926
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC637746)
v.
CAROL MURPHY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court for Los
Angeles County, Peter J. Mirich, Judge. Affirmed.
Gavrilov & Brooks, Sheila Wirkus Pendergast, Ognian
Gavrilov and Eliezer M. Cohen for Plaintiff and Appellant.
Gilsleider, McMahon, Molinelli & Phan, Tioni Anh Phan;
Robie & Matthai, Kyle Kveton for Defendant and Respondent.
Appellant Stan Davis was rear-ended by a car driven by
respondent Carol Murphy. Murphy admitted negligence. In a
special verdict, a jury found that Murphy’s negligence was not a
substantial factor in causing harm to Davis; he was not awarded
damages. After reviewing the entire record, we conclude that the
jury was properly instructed on causation; substantial evidence
supports the verdict; and the court did not abuse its discretion by
admitting photographs. We affirm.
FACTS
Davis has been an electrician since 1978. As the owner of
his business, he drove to residences to work on repairs and
installations. He does not have a contractor’s license.
On June 2, 2015, Davis stopped at a red light on Van Nuys
Boulevard, behind other cars. In his side mirror, he saw a car
coming up behind him at “an extremely high speed, 50 miles an
hour.” He braced himself for impact by putting both feet on the
brake pedal and grabbing the steering wheel. Within seconds,
the car struck his van.
Davis was in shock after the impact. He testified that he
had neck, shoulder and back pain and a bump on his head. The
rear bumper of his van was damaged; he did not recall if the
taillights were broken. He was later told at a body shop that the
frame was bent.
Davis approached Murphy and asked if she was hurt; he
did not tell her that he was hurt or seek medical attention at the
scene. After exchanging information with Murphy, Davis drove
140 to 150 miles to his home. He had blurred vision, head issues,
and pain but did not go to the hospital. That night, he was
unable to sleep. The next day, he was in pain and unable to
work.
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Davis went to his health care provider, Kaiser, to address
his headache, confusion, and pain in his neck and back. He was
instructed to rest. He underwent an MRI, CT, and PET scans
and was treated by a chiropractor and physical therapist.
Davis testified that he lost income after the collision. He
did not work from June 2015 until the end of February 2016. His
income in 2014 was $37,000, a monthly average of $3,100,
working at least 40 hours per week. When he resumed working,
he could only work 10 hours per week and earned about $700 per
month. He explained that he could not raise his arm to work on
recessed lights and wiring or crawl in attics. He was limited to
changing switches or plugs.
Before the collision, Davis exercised at a gym and swam
daily. Since the accident he cannot exercise or swim, has
difficulty sleeping, shoulder pain, confusion, memory loss,
anxiety, and depression. He denied having any shoulder or back
pain or anxiety before the collision.
On cross-examination, Davis was confronted with medical
records showing he was diagnosed with anxiety disorder in 2013
and 2014, before the crash. He had hip replacement surgery in
2014, telling doctors he had very poor quality of life; his medical
records reported his inability to work due to hip pain. Around
the same time, in 2014, his medical records state that he reported
back pain. Though Davis claimed head trauma from the collision,
medical records dated 10 days after the crash indicate that he
only reported pain in his operated hip.
Davis saw a chiropractor, who did not treat his shoulder; no
future treatments were recommended. Shoulder pain interferes
with his activities but he is unwilling to have surgical repairs. In
April 2016, he reported to Kaiser that he exercises at a moderate
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to strenuous level for 300 minutes per week; in June 2016, he
told Kaiser he swims and exercises daily.
Davis was asked on cross-examination why he answered
during discovery that he did not know the dates he was unable to
work or the amount of his income loss. He did not recall if he had
to turn away customers after the collision. He did not know what
his earnings were before the collision and did not produce
invoices for 2010 to 2014. In May 2015, the month before the
collision, his income was $1,440, not including business expenses.
He testified that he did not request a post-accident “off-work”
note from his doctor because he is self-employed.
Luis Vargas has worked for Davis since 1986. He testified
that Davis worked full time, without physical or mental
limitations, before the accident. Afterward, Davis complained
that his shoulder affected his ability to work and he seemed
upset. They had to turn away work requests. A business owner
who knows Davis similarly testified that Davis complained of
inability to work and “seemed a little more miserable” after the
collision. A former coworker stated that he last worked with
Davis in 2011 or 2013; he was unaware of Davis’s physical
condition in the years before and after the accident.
Dr. Richard Rhee, a diagnostic radiologist, testified as a
defense expert. X-rays taken three weeks after the collision
showed “degenerative changes, findings that are typical that
occur in everybody as we age.” Degeneration was visible in
Davis’s shoulder, spine, and neck and may have been exacerbated
if he used his shoulders a lot, by lifting weights or swimming:
once the cartilage starts to thin it does not regrow and exercise
can accelerate degeneration. X-rays also showed very advanced
osteoarthritis in the hip, which resulted in a hip replacement
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surgery before the accident. The collision did not change Davis’s
shoulder or hip condition.
In MRI images, Dr. Rhee saw rotator cuff tears that “are
very old. They’re probably years old.” Muscle atrophy in the
right shoulder was “profound.” He opined that the tear was not
caused by the crash.
Dr. Rhee explained that muscles take years to atrophy and
“since the incident occurred two months before this [MRI], there’s
simply no way that this would happen in two months.” There
was no evidence of traumatic injury, such as a fracture,
dislocation, or bone contusion. He stated, “It’s essentially, I
think, a medical certainty that those [shoulder] tears would be
preexisting.” He acknowledged that Davis could be experiencing
pain but could not say that Davis’s preexisting condition was
exacerbated by the collision.
Orthopedic surgeon James Fait, a defense expert, examined
Davis in 2017 and reviewed his medical records. During the
examination, Davis seemed genuinely confused as to simple
matters, such as his age. Records showed that Davis had a final
visit with a chiropractor in August 2015; his last medical visit
related to the crash was in December 2015.
Dr. Fait testified that the 2015 MRI showed “almost
entirely a complete loss of the rotator cuff muscle” and
“significant atrophy of the muscles of the rotator cuff,” which was
partially replaced by fat. Atrophy and fatty infiltration develop
over two to five years; it could not occur within two months of the
crash. No fracture or dislocation caused Dr. Fait to believe that
Davis would need time away from work. Rotator cuff repair is a
substantial surgery that requires three months off work;
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however, he opined that the surgery would have been indicated
even if the collision had never occurred.
Dr. Fait agreed that Davis did not complain of shoulder
pain until after the crash. Dr. Fait disagreed that the collision
made an asymptomatic rotator cuff tear symptomatic. It is more
likely that Davis’s pain was caused by whiplash. Over time, 22
percent of patients experience symptoms from a rotator cuff tear.
Dr. Fait noted that Davis’s chest X-ray in 2012 indicated a
chronically torn rotator cuff. He found no evidence “that the tear
progressed as a result of the accident.” By participating in
physical therapy after the accident, Davis improved to a near
normal range of motion in his shoulder. Dr. Fait explained,
“[H]ad the tear actually been exacerbated or enlarged
traumatically . . . you don’t regain active motion of your arm
again.”
The defense called Dr. Gilbert L. Hyde, an orthopedic
surgeon at Kaiser who treated Davis for shoulder pain in July
2015. Dr. Hyde saw no signs of trauma to Davis’s shoulder or
head. He ordered an MRI, which showed a nontraumatic
preexisting rotator cuff tear. Dr. Hyde opined that, more likely
than not, “the collision aggravated the preexisting condition.”
Dr. Ricky Menor treated Davis at Kaiser, six days after the
accident. Davis had some neck, shoulder, and back discomfort, “a
little bit of dizziness,” imbalance, and “a little bit of anxiety from
the accident.” Davis did not report head trauma, blunt trauma,
or loss of consciousness. He was previously diagnosed at Kaiser
with hypertension, generalized anxiety disorder, and
osteoarthritis in the hips and knees.
Dr. Menor observed that Davis’s muscles were tense and
tight. He opined, “I felt that he had muscle strain with some
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spasms, and . . . a little bit of anxiety as well because of the
accident.” X-rays were taken to ensure there were no fractures or
dislocation. He recommended conservative treatment such as
rest, ice packs, heat, massage, and physical therapy.
Dr. Menor believes Davis’s complaints of head, vision, and
shoulder problems were related to or aggravated by the accident.
However, medical records at Kaiser showed that in June 2015,
there was no diagnosis of or complaints about a shoulder injury.
Instead, Davis wanted cortisone shots in both knees and was
angry when they were denied.
At a follow-up visit on June 24, 2015, Davis complained of
neck, shoulder, and hip discomfort. A CT scan of his head was
normal, as were his cervical spine films. Dr. Menor told Davis to
continue with physical therapy. Dr. Menor last saw Davis in
September 2015, when Davis “came in for an extension of his off-
work order.” Davis’s MRI “showed some chronic tears, I think, in
the ligaments.” Davis was diagnosed with a “nontraumatic right
rotator cuff tear.”
PROCEDURAL HISTORY
Davis filed a personal injury suit, which came to trial in
October 2018. After the parties rested, Davis asked the court to
direct a verdict that the collision was a substantial factor in
causing harm to him. Murphy sought a directed verdict as to
past and future lost earnings. The court denied both motions.
In summation, counsel for Davis argued that causation is
“an all-or-nothing proposition. Either he was hurt or not
hurt. . . . And if you say no, he was not hurt, this is all a huge
ruse, then we’re done. Check ‘no’ . . . and we all go home.”
Counsel argued that all of the doctors “state that this man was
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injured. This means you’ve got to check ‘yes.’ There is no dispute
to that.”
In a special verdict, the jury answered “no” to the following
question: “1. Was Defendant Carol Murphy’s negligence a
substantial factor in causing harm to Plaintiff Stan Davis?”
Davis recovered nothing. Judgment was entered for Murphy.
DISCUSSION
1. Jury Instructions on Causation
The court instructed the jury with CACI No. 424, which is
given when the defendant admits liability but contests causation
and damages. (“Directions for Use” following CACI No. 424.)
The instruction incorporates the “substantial factor” standard.1
The court gave two further instructions with “substantial
factor” language. One was CACI No. 430, which defines the term
“substantial factor.”2 The court gave a tort damages instruction
1 Using CACI No. 424, the jury was instructed: “Stan
Davis claims that he was harmed by Carol Murphy’s negligence.
Carol Murphy agrees that she was negligent, but denies that the
negligence caused Stan Davis any harm. . . . [¶] To establish his
claim against Carol Murphy, Stan Davis must prove both of the
following: One, that Stan Davis was harmed; and two, that Carol
Murphy’s negligence was a substantial factor in causing Stan
Davis’s harm.” (Italics added.)
2 The instruction read: “A substantial factor in causing
harm is a factor that a reasonable person would consider to have
contributed to the harm. It must be more than a remote or trivial
factor. It does not have to be the only cause of the harm.
Conduct is not a substantial factor in causing harm if the same
harm would have occurred without that conduct.”
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requested by both parties, CACI No. 3901, which uses
“substantial factor” language.3
Davis contends he is entitled to a new trial because the jury
was improperly instructed that he had to prove Murphy’s
negligence was a substantial factor in causing his harm. He
asserts, “The substantial factor instruction was misleading based
on the evidence in the record because there was no evidence that
plaintiff was not harmed and no evidence that he would have
suffered the same injury in the absence of defendant’s
negligence.”
Davis did not object to CACI No. 424, the instruction
requiring him to prove Murphy’s negligence was a substantial
factor in causing his injury. The court asked Davis’s counsel,
“Are you opposing [CACI No.] 424, negligence not contested . . . ?”
He replied, “No, I am not opposing that.” Acquiescence waives
the right to challenge an instruction on appeal. (Electronic
Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122
Cal.App.3d 834, 856–857 (Seiler).)
The court said the parties “jointly agreed upon” and
requested CACI No. 424 and “both parties have requested CACI
3901,” which uses substantial factor language. “ ‘It is an
3 The instruction read: “If you decide that Stan Davis was
harmed and that Carol Murphy’s negligence was a substantial
factor in causing that harm, you must also decide how much
money will reasonably compensate Stan Davis for the harm. This
compensation is called damages.” (Italics added.) It lists
economic damages claimed by Davis (past and future lost
earnings) and noneconomic damages (past and future physical
pain, mental suffering, loss of enjoyment of life, physical
impairment, inconvenience, grief, anxiety, humiliation, and
emotional distress).
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elementary principle of appellate law that “[a] party may not
complain of the giving of instructions which he has requested.
[Citations.]” ’ ‘The invited error doctrine applies “with particular
force in the area of jury instructions.” ’ ” (Mayes v. Bryan (2006)
139 Cal.App.4th 1075, 1090.) “An examination of the record in
this case reveals that [defendant], as well as [plaintiff] sought the
instructions about which it now complains.” (Fortman v. Hemco
(1989) 211 Cal.App.3d 241, 255.) If the court erred by giving
CACI Nos. 424 and 3901, Davis invited the error and is barred
from raising it on appeal. (Mayes, at p. 1091.)
Davis objects to CACI No. 430, which defines “substantial
factor.” It is one of the “standard negligence instructions
applicable to a motor vehicle accident.” (Bermudez v. Ciolek
(2015) 237 Cal.App.4th 1311, 1318.) It subsumes the “but for”
test of causation. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240;
Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052; “Directions for
Use” following CACI No. 430.) The trial court asked, “How could
I give [CACI No.] 424, the liability not contested instruction,
without giving the substantial factor instruction [CACI No. 430]
that defines a phrase in [CACI No.] 424?” The court was correct.
“The court’s use of CACI No. 430 to instruct the jury
regarding the substantial factor standard for causation was
appropriate and accurately stated the applicable legal
principle. . . . [¶] Whether a defendant’s conduct actually caused
an injury is a question of fact [citation] that is ordinarily for the
jury.” (Uriell v. Regents of University of California (2015) 234
Cal.App.4th 735, 744.)
CACI No. 430 states that Murphy’s negligence “does not
have to be the only cause of the harm” as long as it is a nontrivial
factor causing Davis’s post-accident pain and losses. This was
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particularly important given medical testimony that Davis had a
torn rotator cuff for years before the collision. A tortfeasor in a
rear-end collision may be liable if the effect of his negligence is to
aggravate a preexisting condition, and plaintiff may recover to
the full extent his condition was worsened by the defendant’s act.
(Ng v. Hudson (1977) 75 Cal.App.3d 250, 255, disapproved on
another ground in Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 574.) Despite Davis’s preexisting condition, the instruction
enabled him to argue that the crash was a substantial (i.e.,
nontrivial) factor that aggravated his shoulder problem.
Davis goes astray in asserting that causation is an issue of
law, not a question of fact for the jury. Whether or not a
defendant’s act is a substantial factor in bringing about a
plaintiff’s injury is a question of fact for the jury. (Vasquez v.
Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288.)
The jury assessed witness credibility. Davis plainly testified that
he was hurt in the collision, but the jury apparently did not
believe him. The doctors testified that Davis’s X-rays and scans
revealed no fractures or dislocations. Dr. Fait opined that the
accident did not make a chronically torn rotator cuff
symptomatic. Though Davis reported pain, dizziness, and
anxiety after the crash, these are subjective maladies reliant on
the credibility of the person reporting them. If the jury did not
believe Davis, it would not have credited his reports of
discomfort.
Davis objects to the word “substantial” in the substantial
factor rule. He argues that “substantial” is defined by dictionary
as something big. By contrast, “substantial” as used by our
Supreme Court “require[es] only that the contribution of the
individual cause be more than negligible or theoretical.”
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(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978.)
Even “a very minor force that does cause harm is a substantial
factor.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71,
79.) However, “ ‘a force which plays only an “infinitesimal” or
“theoretical” part in bringing about [the] injury . . . is not a
substantial factor.’ ” (Ibid.)
Davis speculates that the jury used a dictionary definition
of substantial (“big”) and ignored the definition of substantial in
CACI No. 430 (“more than remote or trivial”). The jury was
instructed, “Do not use dictionaries” and “follow the law exactly
as I give it to you, even if you disagree with it.” We must
presume the jury followed the instructions. (People v. Boyette
(2002) 29 Cal.4th 381, 453.)
Davis asks us to rewrite the causation instructions. As
given, however, they are the standard approved by our Supreme
Court in Mitchell v. Gonzales, supra, 54 Cal.3d at page 1052 [“ ‘it
appears impossible to improve on the . . . “substantial factor
[test].” ’ ”] “ ‘California has definitively adopted the substantial
factor test . . . for cause-in-fact determinations.’ ” (Viner v. Sweet,
supra, 30 Cal.4th at p. 1239.) Davis was not prejudiced when the
court gave the “substantial factor” instructions.
2. Sufficiency of the Evidence
As plaintiff, Davis had the burden of production and
persuasion to support his claim for relief. When factual findings
made at trial are attacked, “ ‘the power of an appellate court
begins and ends with the determination as to whether there is
any substantial evidence contradicted or uncontradicted which
will support the finding of fact.’ ” (Gray v. Don Miller &
Associates, Inc. (1984) 35 Cal.3d 498, 503.) We neither reweigh
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evidence nor judge witness credibility. (Seiler, supra, 122
Cal.App.3d at p. 849.)
We defer to the jury’s resolution of factual issues. Jurors
have the benefit of observing the witnesses and are thus better
situated than an appellate court to assess credibility. In deciding
if a witness is truthful, jurors may consider his demeanor, the
character of his testimony, his ability to recollect, bias, interest,
motive, prior inconsistent statements, and the existence or
nonexistence of any fact testified to by him. (Evid. Code, § 780.)
Plaintiff’s counsel argued to the jury, “Either this is one
big, huge ruse and this man concocted this whole farce or he’s
telling the truth. These are the two options. It’s an all or
nothing.” The jury chose option one: It simply did not believe
Davis.
Even if we were to disagree with the jury’s sentiments, we
cannot disturb them. The jury confronted inconsistent or
unsupported claims about Davis’s income; his testimony that he
never previously suffered back pain or anxiety was contradicted
by his 2013–2014 Kaiser medical records; there was evidence he
had advanced degenerative conditions that preexisted the
accident; his claims that he can no longer swim or exercise were
contradicted by 2016 medical records reporting that he swims
and exercises daily; his claims that he never asked a doctor for a
“time off work” authorization were contradicted by his doctor; and
Davis requested over $1 million in compensation despite little
visible damage to his van.
The jury heard the testimony, looked at the evidence and
resolved the dispute against Davis. “All of [Davis’s] claims rested
solely on the believability of [his] subjective, uncorroborated
testimony that the accident caused [him] personal injury.
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Because of the impeachment of [his] credibility, the jury
reasonably rejected [his] claims.” (Christ v. Schwartz (2016) 2
Cal.App.5th 440, 446 [after defendant stipulated to negligence in
a car accident, the jury found in his favor despite plaintiff’s
unrefuted testimony that she suffered pain and sought medical
treatment].) The jury could “ ‘disregard all of the testimony of a
party, whether contradicted or uncontradicted, if it determines
that [he] testified falsely’ [and] may conclude that a plaintiff who
testifies falsely concerning injuries suffered no injuries.” (Id. at
p. 455.) We cannot indulge Davis’s request to nullify the verdict.
3. Admission of Evidence
The defense proffered photographic evidence showing the
condition of the parties’ vehicles after the crash. Over Davis’s
objection that the evidence was irrelevant, the court admitted the
photos, reasoning that damage to the vehicles shows a likelihood
that the collision caused physical trauma. We review the ruling
for an abuse of discretion. (Akers v. Miller (1998) 68 Cal.App.4th
1143, 1147.) In ruling on the admissibility of photographs, the
court enjoys broad discretion in deciding whether prejudice
substantially outweighs probative value. (People v. Michaels
(2002), 28 Cal. 4th 486, 532.)
Davis argues, “[T]he vehicle photographs that were
admitted into evidence had virtually no probative value because
the only damages Davis sought were past and future wage loss
and . . . pain and suffering.” He notes that no biomechanical
expert testified to advise the jury how the amount of vehicle
damage correlates to his level of bodily injury.
No expert foundational testimony is required “before a jury
can view photographs of vehicles involved in a collision. This is
because a jury is ordinarily quite capable of correlating outward
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appearance of damage with likelihood and extent of injury.”
(Christ v. Schwartz, supra, 2 Cal.App.5th at p. 450.) The photos
are relevant even if the defendants “admitted liability and they
did not claim property damage;” they are “probative to show the
force of the collision, which is an indicator of injury or lack
thereof to passengers in the autos.” (Ibid.)
Davis testified that Murphy struck him at “extremely high
speed,” causing pain and inability to work or exercise years after
the crash. The photos were relevant to prove the substantiality
of the impact. The jurors could infer that the minor damage to
his vehicle meant it was not a high-speed crash, casting doubt on
the injuries claimed to have resulted from it.
The court did not abuse its discretion by determining that
the probative value of the photos outweighed the probability that
they created a substantial danger of prejudicing Davis or
confusing or misleading the jury. (Evid. Code, § 352.) Admission
of the photos was not arbitrary, capricious, or patently absurd,
nor did it result in a manifest miscarriage of justice. (People v.
Yovanov (1999) 69 Cal.App.4th 392, 406.)
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DISPOSITION
The judgment is affirmed. As the prevailing party on
appeal, respondent is entitled to recover her costs from appellant.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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