Davis v. Harano

Filed 6/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ANTHONY DAVIS, B306575
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC692726
v.
TYLER RAY HARANO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James A. Kaddo, Judge. Affirmed.
Engstrom, Lipscomb & Lack, Andrew M. Jacobson,
Christopher A. Kanne; The Pirnia Law Group and Ardy Pirnia
for Plaintiff and Appellant.
Horvitz & Levy, Lacey L. Estudillo, Karen M. Bray; Gates,
Gonter, Guy, Proudfoot & Muench and Gina Y. Kandarian-Stein
for Defendant and Respondent.
____________________
The jury disbelieved Anthony Davis’s claim that a 2017
rear-ender caused him $1.5 million in damages. We affirm.
I
We present the facts in favor of the prevailing party.
In 2016, an accident totalled Davis’s car. He retained
counsel, sued about pain in his neck and elsewhere, and settled.
When his medical care ended in 2016, Davis still was claiming
neck pain.
In 2017, Tyler Ray Harano’s car made contact with Davis’s
rear bumper. Photos show only slight damage to Davis’s bumper.
No airbags went off, both cars were drivable, and Davis walked
around the accident scene without discomfort. Davis told Harano
there was no need to call the police.
Davis drove himself home. He called his attorney right
away but waited five days to seek medical attention. The lawyer
was the same one Davis had retained for the 2016 litigation.
Counsel recommended Davis go to medical providers who worked
on a lien basis, which means they deferred billing demands and
charged against Davis’s expected recovery from his suit against
Harano.
At trial, Harano conceded negligence. Davis told jurors of
his suffering. Davis’s son, who lived with Davis, testified to
corroborate Davis’s supposed injuries. The son agreed the
lawsuit was like a lottery: “Some people win a lot of money.
Some people don’t.” Davis’s son wanted his father to win “a
substantial amount of money.” When asked if Davis’s lawyer told
the son “what to say” during his testimony, the son answered,
“Yes.” The jury awarded Davis nothing. It found the 2017
accident with Harano caused Davis no injury. Davis appealed.
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II
Davis launches three ineffective assaults on the verdict.
A
First, Davis incorrectly faults the trial court for refusing to
direct a verdict on the issue of causation. Davis told the trial
court, as he tells us, that causation was undisputed: that
everyone agreed the 2017 accident caused Davis at least some
injury, so Davis deserved a directed verdict on causation.
This argument is inaccurate. Davis bases this claim—
indeed most of this appeal—on the root idea that defense expert
Dr. Steven Nagelberg conceded the 2017 accident caused Davis a
new neck injury, different from the one Davis claimed from 2016.
Nagelberg did not concede causation. He qualified his
statements in a way fatal to Davis’s argument. Nagelberg’s
qualification was that the accident did cause Davis injury if and
only if you believe Davis was telling the truth about his
supposedly new pain.
Nagelberg examined Davis before trial and reported Davis
claimed pain at eight on a scale of 10. Nagelberg’s own
observation contradicted Davis’s supposed pain: Davis seemed
fine. So Nagelberg’s testimony was that Davis said he was
suffering pain, and he was, if you believe Davis.
The defense told the jury not to believe Davis. It
challenged Davis’s credibility from the outset, saying he and his
lawyer had systematically concocted the case from “a nothing
accident.” The defense said the photos and Davis’s conduct at the
scene showed “no one could have been injured in this accident.”
Davis’s lawyer, the defense charged, puffed the whole thing up by
referring Davis to lien doctors to incur “attorney-driven medical
bills” and to create “a medical build up for litigation purposes.”
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Davis’s case, according to the defense, was “an abuse of the
system.” The defense perspective challenged Davis’s credibility.
The jurors adopted the defense perspective. Question two
on the verdict form asked, “Was Tyler Harano’s negligence a
substantial factor in causing Anthony Davis injury?” Jurors
answered “no.”
In sum, the court correctly denied Davis’s motion: the
evidence put causation in play. The defense did not concede the
issue.
B
Davis argues no substantial evidence supports the defense
verdict. This argument misperceives the record, which allowed
for skepticism about Davis’s credibility. Nagelberg’s observations
countered Davis’s claimed pain. Davis called his attorney before
seeking medical attention. The 2016 accident was worse than the
2017 one, and Davis claimed neck pain after that accident, yet no
objective record suggested Davis’s neck pain ever went away after
the 2016 accident. In discovery, Davis did not reveal the 2016
accident caused a neck injury and thus was an alternate
explanation for Davis’s claim of pain and suffering. Davis’s
medical witnesses opined the 2017 accident injured him, but
Davis had hidden his 2016 accident from them. Substantial
evidence supported the verdict. Davis’s second argument is
mistaken.
C
Third, Davis argues the jury instructions and verdict form
led the jury astray, but he invited the error, if error there
was. Counsel for Davis and Harano jointly submitted the
instructions and the special verdict form. Davis cannot now
argue these instructions or this verdict form are cause for
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reversal. (See Transport Ins. Co. v. TIG Ins. Co. (2012) 202
Cal.App.4th 984, 999–1003.)
Davis unsuccessfully seeks to avoid this doctrine of invited
error. As we have recounted, Davis moved for a directed verdict,
which would have taken the issue of causation away from the
jury. Davis tells us he argued both (1) that the issue of causation
should not go to the jury and (2) that the jury instruction and the
verdict form were incorrectly worded. The record does not
support this. After losing his motion, Davis did not object to, or
seek to amend, the phrasing of either the jury instruction or the
verdict form. Davis did the opposite: he confirmed these
documents were joint submissions to the court.
Davis cites Mary M. v. City of Los Angeles (1991) 54 Cal.3d
202, but that case is against him. That court repeated the
principle that a party “would be barred from attacking the
specific language of the jury instruction it submitted.” (Id. at p.
213.) That principle did not bar the argument in Mary M., where
the party made all appropriate objections at every turn. (Id. at
pp. 212–213.) The Mary M. principle does apply here. It means
Davis cannot complain about the specific wording he endorsed in
the trial court.
This rule requires trial lawyers to identify complaints
about specific words in a jury instruction.
This rule makes sense. You may lose on a general point,
but you still must alert the court to particular errors you see in
the proposed wording of a jury instruction or a verdict form.
Wording errors can be corrected on the spot, swiftly, and at low
cost. Correcting errors via the appellate process takes more time
and effort. And it is unfair for a party to profit in an appellate
court by misleading the trial court. (Norgart v. Upjohn Co. (1999)
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21 Cal.4th 383, 403.) When a party proposes a jury instruction or
a verdict form, then, the trial court is entitled to conclude the
wording is unobjectionable. The invited error doctrine gives trial
counsel an incentive to be thoughtful and candid at the sensible
time.
Davis claims further objections would have been futile, but
this is not so. To support such a claim, counsel generally must
show it is costly to assert your rights. (E.g., People v. Hill (1998)
17 Cal.4th 800, 820–821.) Davis does not make that showing.
DISPOSITION
We affirm the judgment and award costs to Harano.
WILEY, J.
We concur:
STRATTON, P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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