Audish v. Macias CA4/1 ( 2024 )

Filed 5/21/24 Audish v. Macias CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID AUDISH, D081689
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00017566-CU-PA-CTL)
DAVID MACIAS et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Keri G. Katz, Judge. Affirmed.
Rejali Law Firm and Omid Rejali for Plaintiff and Appellant.
Fitzgerald Kreditor Bolduc Risbrough and Robert C. Risbrough for
Defendants and Respondents.
I
INTRODUCTION
Plaintiff David Audish appeals a civil judgment entered after the
rendition of a jury verdict in an automobile collision case. The jury found
Audish and defendant David Macias both operated their vehicles negligently
and each party’s negligence was a substantial factor in causing harm to
Audish. The jury found Audish suffered $65,699.50 in damages, including
$29,288.94 for past medical expenses, $3,620 for past non-economic losses,
and $32,790.56 for future medical expenses, and it assigned each party 50
percent of the responsibility for these losses.
On appeal, Audish contends the trial court abused its discretion by
admitting evidence that he would have Medicare medical insurance at the
age of 65. He also argues the jury returned an impermissible compromise
verdict and erred by failing to award him damages for future non-economic
losses. We reject these claims and affirm the judgment.
II
BACKGROUND
A. Factual Background
On November 2, 2017, Audish drove his vehicle westbound on a major
San Diego thoroughfare. He drove his vehicle at a speed of 55 miles per hour
and the speed limit was 45 miles per hour. Meanwhile, Macias drove a
vehicle owned by his father, Juan Macias (Juan), northbound on a street that
intersected with the thoroughfare. Macias made an illegal lefthand turn
from the intersecting street across the thoroughfare’s eastbound traffic lanes
and onto its westbound traffic lanes. The parties’ vehicles collided.
Audish suffered a mild concussion and reported experiencing anxiety,
insomnia, light sensitivity, fatigue, headaches, neck pain, nausea, loss of
balance, vomiting, dizziness, brain fog, and memory loss after the accident. A
CT scan did not show that he suffered from internal bleeding, swelling, or a
skull fracture. However, his physician prescribed him an antinausea
medication and an antidepressant medication to treat his concussion-related
symptoms.
2
B. Procedural Background
In April 2018, Audish and his wife filed suit against Macias and Juan
for negligence, negligent entrustment, and loss of consortium.
After a trial, the jury returned a special verdict finding Audish and
Macias were both negligent in the operation of their vehicles (by votes of 11–
1), Macias’ negligence was a substantial factor in causing Audish to suffer
harm (by a vote of 9–3), and Audish’s negligence was a substantial factor in
causing his own harm (by a vote of 12–0). The jury found Audish had
$29,288.94 in past medical expenses (by a 12–0 vote), $0 in past lost earnings
(by an 11–1 vote), and $3,620 in past non-economic losses (by an 11–1 vote).
It found he would have $32,790.56 in future medical expenses (by a 10–2
vote), $0 in future non-economic losses (by an 11–1 vote), and $0 in future
lost earnings (by a 12–0 vote). Further, it found Audish’s wife did not sustain
a loss of consortium (by a 12–0 vote). The jury assigned Audish and Macias
each 50 percent of the responsibility for these losses (by a 12–0 vote).1
Audish moved for a partial new trial on the issue of damages. He
claimed the evidence was insufficient to support the jury’s findings that he
had no past or future lost earnings. He also argued the verdict was contrary
to law because there was an alleged inconsistency between the jury’s finding
that he would incur future medical expenses and its finding that he would
not suffer any future non-economic losses. Relatedly, he argued the
purportedly inadequate damages award reflected an impermissible
1 Audish and his wife named Juan as a defendant based on his
ownership of the vehicle driven by his son. The special verdict form does not
address Juan’s liability and it is not apparent from the record whether and
under what circumstances he was dismissed from the action. However, the
judgment states, “[Juan’s] liability pursuant to the parties [sic] stipulation is
limited to $15,000.”
3
compromise verdict. The trial court denied the motion for a partial new trial
and entered judgment in accordance with the verdict.
Audish appeals the judgment.2
III
DISCUSSION
A. The Trial Court did not Err By Admitting Medicare-Related Evidence
Audish argues the trial court violated the collateral source rule by
admitting evidence that he would have Medicare insurance at age 65. As we
will explain, we discern no error in the court’s evidentiary rulings.
1. Additional Background
Prior to trial, Audish filed a motion in limine that sought to preclude
the admission of evidence that he had, or would have, medical insurance.
Audish did not include the motion in limine in the appellate record, so we
cannot describe its contents with specificity. However, at a pretrial hearing,
the trial court stated that the motion sought “to preclude any mention of the
availability of healthcare coverage after the accident.” The court granted the
motion in part, and denied it in part, reasoning that an expert witness with a
proper foundation could testify about the reasonable value of medical care
based on the rates insurers pay for medical treatments.
On the fifth day of the six-day trial, Brook Feerick, a nurse and life-
care planner, testified as a witness on Audish’s behalf. She prepared a life-
care plan for Audish, which compiled and summarized the types and costs of
the medical treatments Audish’s medical professionals recommended for him
2 On his notice of appeal, Audish purports to appeal from both the
judgment and “the denial of [his] motion for a new trial ....” An order denying
a motion for a new trial is not appealable; however, it is reviewable on appeal
from the underlying judgment. (Walker v. Los Angeles County Metropolitan
Transportation Authority (2005) 35 Cal.4th 15, 19.)
4
due to the automobile accident. She calculated the average costs for each
medical treatment by relying primarily on three sources—a textbook called
the Physician’s Fee Reference, a textbook called National Fee Analyzer, and
an online database called Fair Health. Based on these sources, Feerick
estimated Audish’s total future medical costs would be $1,417,146.
On cross-examination, Feerick stated that she based her cost estimates
on the average amounts medical providers charged patients for their medical
treatments, not the negotiated (and often discounted) amounts insurers
actually pay providers for the treatments. Thereafter, defense counsel asked
Feerick whether Audish would be eligible for Medicare at age 65 and, over a
relevance objection that the trial court overruled, she replied, “I assume so.”
Then, after another overruled relevance objection, Feerick agreed with
defense counsel that her estimates did not account for “what Medicare would
pay ....” She also admitted insurers sometimes pay less for medical
treatments than the amounts health care providers bill for them.
2. Analysis
Audish challenges the evidentiary rulings allowing Feerick to testify
that she “assume[d]” he would be eligible for Medicare at age 65, her future
medical cost estimates did not account for the amounts Medicare would
actually pay for the medical treatments recommended by his medical
professionals, and insurers sometimes pay less for medical treatments than
the amounts health care providers charge for them. Although Audish does
not explicitly refer to the collateral source rule, he effectively argues the trial
court violated the rule by allowing evidence that Medicare would pay at least
a portion of his future medical expenses, which supposedly encouraged the
jury to reduce his overall award of future medical expenses.
5
“A trial court’s evidentiary ruling is reviewed for abuse of discretion.
[Citations.] A trial court abuses its discretion if its ruling exceeds ‘ “ ‘the
bounds of reason, all of the circumstances before it being considered.’ ” ’
[Citation.] ‘ “ ‘A decision will not be reversed merely because reasonable
people might disagree.’ ” ’ ” (Jones v. Solgen Construction, LLC (2024) 99
Cal.App.5th 1178, 1188–1189; see Lurner v. American Golf Corp. (2023) 97
Cal.App.5th 121, 138 [“An abuse of discretion occurs only if ‘ “the trial court’s
decision exceeds the bounds of reason and results in a miscarriage of
justice.” ’ ”].)
We have considerable doubts that Audish preserved his challenge to
the trial court’s evidentiary rulings, as he has failed to include his motion in
limine in the record and he asserted only relevance objections—not objections
for alleged violations of the collateral source doctrine—to some (albeit not all)
of the questions the defense posed to Feerick. However, assuming without
deciding that Audish has preserved his challenge for our consideration, we
conclude the trial court did not violate the collateral source rule, or otherwise
abuse its discretion, in allowing Feerick’s brief testimony about Medicare.
“The collateral source rule states that ‘if an injured party receives some
compensation for his injuries from a source wholly independent of the
tortfeasor, such payment should not be deducted from the damages which the
plaintiff would otherwise collect from the tortfeasor.’ [Citation.] Put another
way, ‘Payments made to or benefits conferred on the injured party from other
sources [i.e., those unconnected to the defendant] are not credited against the
tortfeasor’s liability, although they cover all or a part of the harm for which
the tortfeasor is liable.’ [Citation.] The rule thus dictates that an injured
plaintiff may recover from the tortfeasor money an insurer has paid to
6
medical providers on his or her behalf.” (Howell v. Hamilton Meats &
Provisions, Inc. (2011) 52 Cal.4th 541, 551 (Howell).)
In Howell, the Supreme Court considered the issue of whether a tort
plaintiff is entitled to recover from a tortfeasor-defendant, as damages for
past medical expenses, the full and undiscounted amount the plaintiff’s
health care provider billed for the medical services it rendered to the plaintiff
or, alternatively, whether recovery must be limited to the discounted rate the
health care provider accepted as payment for the medical services it rendered
pursuant to a negotiated agreement with the plaintiff’s insurer. (Howell,
supra, 52 Cal.4th at p. 548.) The Howell court concluded a tort plaintiff is
only permitted to recover the discounted rate that the health care provider
accepted as payment, given that the plaintiff did not suffer economic loss in
the full amount charged by the health care provider. (Id. at pp. 563–564.)
The Howell court concluded this limitation on recovery did not violate
the collateral source rule; instead, it found the rule was inapplicable. As the
court explained, the collateral source rule “has no bearing on amounts that
were included in a provider’s bill but for which the plaintiff never incurred
liability because the provider, by prior agreement, accepted a lesser amount
as full payment. Such sums are not damages the plaintiff would otherwise
have collected from the defendant. They are neither paid to the providers on
the plaintiff’s behalf nor paid to the plaintiff in indemnity of his or her
expenses. Because they do not represent an economic loss for the plaintiff,
they are not recoverable in the first instance. The collateral source rule ...
does not expand the scope of economic damages to include expenses the
plaintiff never incurred.” (Howell, supra, 52 Cal.4th at pp. 548–549.)
In Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308 (Corenbaum),
the Court of Appeal considered an issue left open by Howell—that is, whether
7
the full amount billed by a medical provider for past medical services is
relevant to the calculation of a tort plaintiff’s future medical expenses.
Relying on Howell, the Corenbaum court concluded the full amount charged
by a medical provider for past medical services “is not an accurate measure of
the value of medical services,” and it is therefore irrelevant to the reasonable
value of either past or future medical services. (Corenbaum, at pp. 1330,
1328–1331.) Further, the court ruled that, “[b]ecause the full amount billed
for past medical services provided to plaintiffs is not relevant to the value of
those services, ... the full amount billed for those past medical services can
provide no reasonable basis for an expert opinion on the value of future
medical services.” (Id. at p. 1331.) Thus, the Corenbaum court determined
that the trial court abused its discretion by admitting evidence of the full
amounts that a tort plaintiff’s medical providers charged for past medical
services. (Id. at pp. 1333–1334; see also Pebley v. Santa Clara Organics, LLC
(2018) 22 Cal.App.5th 1266, 1269 [“The amount of the ‘full bill’ for past
medical services is not relevant to prove past or future medical expenses”].)
We need not go so far as the Corenbaum court in order to decide the
present case. However, we note that it—together with the Howell decision—
lends support to our conclusion that, at the very least, the trial court did not
abuse its discretion by admitting the limited evidence at issue about Audish’s
future eligibility for Medicare and the expected amounts Medicare might pay
for Audish’s recommended future medical services. Indeed, multiple courts
have concluded, under similar circumstances, that it is permissible—or even
necessary—for a trial court to admit evidence concerning a tort plaintiff’s
future eligibility for health insurance and the anticipated amounts the
insurer would be expected to pay for the patient’s future medical needs,
evidence that is relevant to the reasonable value of future medical care.
8
In Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163 (Cuevas),
for example, a plaintiff brought a malpractice action against the employer of
a physician who caused the plaintiff to suffer brain damage. In the trial
court, the parties relied on competing life-care plans to prove the plaintiff’s
future medical costs; the plaintiff’s plan used undiscounted medical expenses,
while the defendant’s plan incorporated the anticipated discounted rates that
would be accepted as payment should the plaintiff maintain coverage under
Medi-Cal or obtain coverage under the federal Patient Protection and
Affordable Care Act (ACA). (Id. at p. 167.) Relying on the collateral source
rule, the trial court precluded the defendant from introducing evidence of
Medi-Cal or ACA insurance benefits. (Id. at p. 169.) The Court of Appeal
determined this was error. Referencing the Howell and Corenbaum
decisions, the Cuevas court concluded that “the collateral source rule is not
violated when a defendant is allowed to offer evidence of the market value of
future medical benefits.” (Cuevas, at p. 180; see also id. at pp. 181–182 [“the
trial court’s decision to exclude evidence of future insurance benefits that
might be available under the ACA ... was an abuse of discretion”].)
In Stokes v. Muschinske (2019) 34 Cal.App.5th 45 (Stokes), a vehicle
collision case, the trial court allowed the defendant-tortfeasor to make
various references to the plaintiff’s past medical insurer (Kaiser) and his
future eligibility for Medicare and Social Security, including during the cross-
examination of plaintiff’s life-care planner. (Id. at pp. 55, 57.) On appeal, the
plaintiff argued the “reference[s] to these entities led the jury to infer that he
either had received collateral payments in the past or would receive collateral
payments in the future, thereby prompting the jury to reduce his damages
accordingly.” (Ibid.) The Stokes court found no reversible error. It
determined that most of the references to Kaiser and Medicare “were helpful
9
and even necessary to the jury’s understanding” of the plaintiff’s past
treatment and the calculation of future reasonable medical expenses. (Id. at
p. 58.) Thus, it concluded the trial court did not “abuse[] its discretion in
admitting these references to assist the jury’s understanding of the facts.”
(Ibid.) Further, to the extent “[a] few references arguably ... approach[ed] the
line between permissible background information and reference to collateral
sources,” the Stokes court determined there was no prejudice warranting
reversal. (Ibid.) In particular, it reasoned that the plaintiff did not “point to
any evidence of deductions for specific future Medicare payments, and
nothing suggest[ed] the jury subtracted unidentified future Medicare
coverage in assessing future medical expenses.” (Id. at p. 59, italics added.)
Consistent with the Cuevas and Stokes decisions, we conclude the trial
court in the present case acted well within the bounds of its discretion when
it permitted the defense to question Audish’s life-care planner briefly about
his future eligibility for Medicare and the anticipated costs of his
recommended medical treatments if he were to obtain Medicare coverage.
These evidentiary rulings did not violate the collateral source rule or amount
to an abuse of discretion. Further, insofar as there was any error at all, the
error was harmless. Like the plaintiff in Stokes, Audish has not identified
any deductions for specific Medicare payments, nor has he demonstrated that
the jury reduced his award for future medical expenses to reflect the future
Medicare payments that might ultimately be made on his behalf. Thus,
Audish has not carried his burden of establishing that the trial court’s
evidentiary rulings constituted reversible error.
B. The Award of Zero Future Non-Economic Damages Was Proper
Next, Audish argues the verdict was inadequate as a matter of law
because the jury did not award him damages for future non-economic losses,
10
even though it awarded him $32,790.56 in damages for future medical
expenses. We reject Audish’s claim that the verdict was inadequate.
As a preliminary matter, Audish has forfeited his challenge to the
future non-economic damages award by failing to identify any of the facts or
evidence pertinent to such damages in his opening brief. The statement of
facts in the opening brief is a meager three sentences in length and two of
those sentences concern the automobile accident itself, not its consequences.
The statement of facts does not cite the appellate record, nor does it discuss
any evidence pertaining to future medical damages or non-economic
damages. The portion of the opening brief attacking the future non-economic
damages award does not remedy this deficiency. In a single sentence, it
identifies the sizes of the future medical expense award ($32,790.56) and the
future non-economic damages award ($0), but it omits any analysis of the
facts or evidence pertinent to these awards.
“ ‘To prevail on appeal, an appellant must establish both error and
prejudice from that error. [Citation.] In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record. Rather than scour the
record unguided, we may decide that the appellant has forfeited a point urged
on appeal when it is not supported by accurate citations to the record.
[Citations.] Similarly, we may disregard conclusory arguments that are not
supported by pertinent legal authority.’ ” (Champir, LLC v. Fairbanks Ranch
Assn. (2021) 66 Cal.App.5th 583, 597 (Champir); see United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand) [“ ‘an
appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record’ ”]; Professional
Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970 [“ ‘Any
11
statement in a brief concerning matters in the appellate record—whether
factual or procedural and no matter where in the brief the reference to the
record occurs—must be supported by a citation to the record.’ ”].) Audish has
forfeited his challenge to the future non-economic damages award by failing
to discuss—with proper record citations—any facts or evidence relating to the
award or his claimed future non-economic damages in his opening brief.
Even if we were to consider the challenge to the future non-economic
damages award, Audish has not established reversible error. The measure of
damages in a tort action “is the amount which will compensate for all the
detriment proximately caused” by the defendant. (Civ. Code, § 3333.)
Economic damages are “ ‘objectively verifiable monetary losses including
medical expenses, loss of earnings, ... loss of employment and loss of business
or employment opportunities.’ ” (DaFonte v. Up–Right, Inc. (1992) 2 Cal.4th
593, 600.) “ ‘Non-economic’ damages are such ‘subjective, non-monetary
losses [as] pain, suffering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of consortium, injury to
reputation and humiliation.’ ” (Ibid.) “To recover future damages, a plaintiff
must prove that his or her detriment is reasonably certain to result in the
future.” (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 460.)
In some cases, “ ‘a judgment for no more than the actual medical
expenses occasioned by [a] tort [is] inadequate,’ ” where “ ‘the right to recover
[is] established and ... there [is] also proof that the medical expenses were
incurred because of defendant’s negligent act.’ ” (Dodson v. J. Pacific, Inc.
(2007) 154 Cal.App.4th 931, 937; see Capelouto v. Kaiser Foundation
Hospitals (1972) 7 Cal.3d 889, 893 [“awards which fail to compensate for pain
and suffering have been held inadequate as a matter of law”].) However, “an
award that does not account for pain and suffering is ‘not necessarily
12
inadequate as a matter of law’ [citation], and ... ‘[e]very case depends upon
the facts involved.’ ” (Dodson, at p. 936.) “An award for the exact amount of,
or even less than, the medical expenses is not necessarily inadequate as a
matter of law, because in the majority of cases there is conflict on a variety of
factual issues—whether plaintiff received any substantial injury or suffered
any substantial pain, or whether the medical treatment was actually given or
given as a result of the injuries, or reasonable or necessary.” (Haskins v.
Holmes (1967) 252 Cal.App.2d 580, 586.)
“ ‘The amount of damages is a fact question, first committed to the
discretion of the jury and next to the discretion of the trial judge on a motion
for new trial. They see and hear the witnesses and frequently, as in this
case, see the injury and the impairment that has resulted therefrom. As a
result, all presumptions are in favor of the decision of the trial court.’ ”
(Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299; see also Phipps v.
Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 338 [non-economic “injuries
are subjective, and the determination of the amount of damages by the trier
of fact is equally subjective. ... [T]he determination is committed to the
discretion of the trier of fact.’ ”].) Moreover, to the extent Audish attacks the
trial court’s denial of his motion for a partial new trial based on his claim
that the award of zero future non-economic damages was contrary to law, we
must affirm the trial court’s denial order “unless the record reveals a
manifest and unmistakable abuse of discretion.” (Phipps, at p. 338.)3
The record discloses no such abuse of discretion. There was evidence
that Audish suffered from anxiety and depression before the automobile
3 It is not always clear from Audish’s briefs whether he is challenging the
jury’s award of zero future non-economic damages or the court’s denial of his
motion for a new trial, which attacked the award of zero future non-economic
damages. In either event, the outcome is the same—affirmance.
13
collision and, furthermore, he experienced an unrelated concussion a mere
two months before the collision. Several witnesses stated that, in September
2017, Audish lost consciousness for unknown reasons and struck his head on
a piece of furniture. After this incident, he suffered from fatigue, light
sensitivity, lack of appetite, loss of balance, mood instability, memory loss,
headaches, and nausea, and he was ordered to refrain from driving and take
time off work. From this evidence, the jury rationally could find that Audish
did not prove—with reasonable certainty—that any future pain and suffering
he might endure would be the result of the automobile collision, rather than
the previous concussion or his preexisting mental health conditions. (See
Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1416 [“The evidence of [the
plaintiff’s] preexisting conditions and other medical conditions unrelated to
the collision, if credited by the jury, tends to show that the majority of her
past and future pain and suffering is unrelated to the collision.”].)
Moreover, a defense witness and neuropsychologist who interviewed
Audish testified that he performed extremely poorly on neurophysiological
assessments that individuals with significant neurological or psychiatric
problems perform perfectly. The neuropsychologist opined that Audish likely
underperformed on the assessments intentionally and tried to embellish his
cognitive symptoms. This, in turn, led the neuropsychologist to conclude
there was no reliable indication Audish currently suffers from neurocognitive
deficits. Further, he testified that, insofar as Audish has such deficits, it
would be “difficult to distinguish” whether they resulted from the September
2017 concussion or the November 2017 concussion. In light of this evidence,
the jury could reasonably doubt whether Audish presently suffers from
significant ongoing cognitive difficulties and, even if he does, the extent to
which he will experience future pain and suffering arising from those
14
difficulties. (Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d
555, 560 [verdict awarding medical expenses and denying non-economic
damages was proper where “there was a substantial conflict as to whether
plaintiff received any substantial injury and as to whether bills incurred for
medical examinations and treatment were rendered necessary by reason of
the [defendant’s negligence] or whether they were necessary at all”].)
Finally, there was no evidence indicating that Audish needs to undergo
especially painful or arduous surgeries or medical interventions in the future.
A physician who treated Audish after his accident advised him, “with these
kinds of situations, sometimes it just takes time to heal.” One of Audish’s
witnesses, a clinical neuropsychologist, testified that his recommended
treatment plan consisted only of therapy, medication, and an outpatient
cognitive remediation program. Further, according to Audish himself,
several of his physical and cognitive conditions have improved since the
automobile incident, including his depression, the frequency of his headaches,
and his sleep patterns. The evidence of Audish’s improving physical and
cognitive conditions, and the absence of evidence that he will need to endure
especially physically painful or intensive medical treatments in the future,
supports the jury’s decision not to award future non-economic damages.
For all these reasons, we reject Audish’s claim that the jury erred by
declining to award him damages for future non-economic losses, as well as his
suggestion that the court erred by denying his motion for a partial new trial.
C. Audish Has Not Established an Impermissible Compromise Verdict
Audish also asserts that the judgment must be reversed and the matter
must be remanded for a new trial because the verdict was an impermissible
compromise verdict. He claims it was “undisputed that [he] suffered lost
earnings” due to the automobile accident, so the verdict—which found Macias
15
liable, but awarded Audish no damages for lost earnings—must have been
the product of a compromise between jurors who believed that Macias was
liable and should be held responsible for Audish’s lost earnings, on the one
hand, and jurors who believed Macias was not liable, on the other hand.
Once more, Audish has not established reversible error.
Typically, the concept of a compromise verdict arises when a jury issues
a damages award that is inadequate as a matter of law (see Code Civ. Proc.,
§ 657, subd. 5), and the court must then decide whether to order a limited
new trial on the issue of damages or, alternatively, whether to order a new
trial for both liability and damages. “A new trial limited to determining the
amount of compensatory damages ordinarily is proper unless the record
indicates that the finding of liability resulted from a compromise verdict, in
which case the new trial should encompass both liability and damages.”
(Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 697.)
Witkin describes a compromise verdict in the following terms:
Verdicts are sometimes rendered in personal injury or death
actions that, in view of the evidence of injuries, suffering, and
medical and other expenses, are clearly inadequate. Common
experience suggests that these are the result of compromise,
some jurors believing that the evidence fails to establish liability,
but yielding to the extent of agreement on a small recovery. It
would be unfair to the defendant to ignore this unmistakable
evidence of compromise and to accept the verdict for the plaintiff
at face value as a determination of liability. Accordingly, it is
well settled that the error calls for a general new trial, and a
limited order is an abuse of discretion.
(8 Witkin, Cal. Procedure (6th ed. 2024) Attack on Judgment in Trial Court,
§ 109.)
Common indicators of a compromise verdict are “a patently inadequate
damage award, close or difficult issues of liability, and a non-unanimous
verdict.” (Ryan v. Crown Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775,
16
791; see also Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 841
[“[I]ndicators of a compromise verdict are (1) a close verdict; (2) jury requests
for read back; (3) jury indecision whether the plaintiff should recover a
certain amount or nothing; (4) a subsequent jury election to straddle and
award a compromise recovery in a lesser amount than that to which plaintiff
would be entitled if plaintiff prevailed; and (5) a short trial.”].)
Audish has not provided us with any cogent and reasoned argument,
coupled with supporting legal authorities, that a compromise verdict is
inherently problematic or that such a verdict, on its own, justifies the grant of
a new trial. For that reason alone, we are inclined to conclude that Audish
has forfeited his compromise verdict argument. (Champir, supra, 66
Cal.App.5th at p. 597; United Grand, supra, 36 Cal.App.5th at p. 146.)
In any event, assuming without deciding that a compromise verdict is
intrinsically problematic, we reject Audish’s claim that the present record
reveals a compromise verdict. Preliminarily, the damages award was not
patently inadequate simply because it omitted an award for lost wages. At
trial, Audish and his vocational rehabilitation consultant testified that he
had a preexisting plan to move out of state and obtain new employment in
December 2017—just weeks after the collision took place. In accordance with
this plan, Audish obtained employment as a senior laboratory scientist after
the accident. He continued his employment with his prior employer until
after he started his new job, and he maintained steady employment—first as
a senior laboratory scientist and then as a field engineer—until trial.
Further, insofar as Audish took specific days off work after the accident, the
trial court correctly observed that the evidence “was not clear as to why Mr.
Audish took time off work [or] that it was all related to the accident.” On this
record, we cannot say that the damages award was patently inadequate.
17
Moreover, Macias’ liability did not present an especially difficult or
close jury issue. At trial, Macias admitted he knowingly made an illegal turn
onto the street on which Audish was driving, an admission that was
corroborated by the testimony of the law enforcement officer who responded
to the collision. The jury’s negligence findings—although not unanimous—
also indicate the jury did not have a particularly hard time finding Macias
was negligent. By an overwhelming vote of 11–1, the jury found Macias was
negligent in the operation of his vehicle and, by a comfortable vote of 9–3, it
found his negligence was a substantial factor in harming Audish. Further,
Audish does not claim that the deliberation process was particularly lengthy,
that the court received juror notes or readback requests during the
deliberations, or that there is any other reason to suspect the jury might have
struggled to decide Macias’ liability. Given all these factors, Audish has not
established that the verdict was a compromise verdict.
IV
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on
appeal.
McCONNELL, P. J.
WE CONCUR:
DO, J.
CASTILLO, J.
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