Mejia v. Vu CA4/1

Filed 10/26/20 Mejia v. Vu 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARCELA MEJIA, D076582

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2018-
00002443-CU-PA-CTL)
ANNA VU,

Defendant and Respondent.

APPEAL from a judgment and an order of the Superior Court of San
Diego County, Kevin A. Enright, Judge. Reversed.

Rejali Law Firm and Omid Rejali for Plaintiff and Appellant.
Tharpe & Howell and Eric B. Kunkel for Defendant and Respondent.
This is an appeal from a civil judgment that was reduced in response to
the trial court’s granting of judgment notwithstanding the verdict (JNOV).
We reverse the amended judgment for the reasons we explain below.
 BACKGROUND
Plaintiff and appellant Marcela Mejia sued defendant and respondent
Anna Vu for damages due to a neck injury that Mejia sustained as a result of

a car collision caused by Vu’s negligence.1 On April 5, 2019, a jury found
that Vu’s negligence was a substantial factor in causing harm to Mejia. The
jury awarded damages totaling $292,244, including $125,000 for future
economic damages, $17,244 for past medical expenses, $125,000 for past
noneconomic loss, and $25,000 for future noneconomic loss. Judgment was
entered on May 14, 2019.
Vu filed motions for partial JNOV and for new trial challenging only
the award for future economic damages. She attached the declarations of six
jurors each stating that, “the $125,000 award for future medical expenses
was for future acupuncture.” On August 9, 2019, the court granted the
motion for JNOV, ordering entry of a modified judgment with no award for
future economic damages. The court did not expressly mention the juror
declarations, but concluded nonetheless that there was insufficient evidence
of the cost of future acupuncture treatments. It also granted Vu’s motion for
a partial new trial on future economic damages, effective only if the JNOV
were reversed on appeal and the order for a new trial were either not
appealed or appealed and affirmed. Notice of entry of the order was filed on

August 16, 2019.2

1 Vu does not contest liability on this appeal.

2 Mejia filed a motion for reconsideration on August 19, 2019. Vu filed
an ex parte application to strike the motion for reconsideration. The court
ordered the motion to be taken off calendar.
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 Mejia filed a notice of appeal on September 3, 2019. The court entered
an amended judgment pursuant to its order granting partial JNOV on
September 20, 2019. The amended judgment struck the award for future
economic losses, modifying the judgment to a total award of $167,244, plus
costs. Vu filed and served notice of entry of the amended judgment on
September 23, 2019.
DISCUSSION

1. Challenges to Appeal3
Vu contends that it is not permissible to appeal from an order granting
JNOV. She further contends that Mejia limited her appeal to consideration
of the provisional granting of the new trial motion based on the box she
checked on the Judicial Council form, and that an appeal from the conditional
new trial order is moot.
A. Scope of Appeal
An order granting JNOV is not appealable, but the subsequent
modified judgment is appealable. (Trujillo v. North County Transit District

Mejia filed a motion in this court to augment the record by adding those
pleadings. Vu opposed the motion. We note, however, that Vu included her
application to strike the motion for reconsideration, the court’s order thereon,
and the oral proceedings of her application, in her designation of the record
on appeal.
We ordered that the motion to augment and Mejia’s request to file a
reply be considered along with the appeal.
We conclude that these additional pleadings are not necessary for
resolution of this appeal, and deny the motion to augment on that ground.

3 Vu filed a similar motion to dismiss the appeal on December 17, 2019.
We summarily denied the motion on January 3, 2020. The summary denial
of a motion to dismiss the appeal, however, does not “ ‘preclude later full
consideration of the issue, accompanied by a full written opinion, following
review of the entire record and opportunity for oral argument.’ ” (Ellis v.
Ellis (2015) 235 Cal.App.4th 837, 841, fn. 5.)
3
(1998) 63 Cal.App.4th 280, 285, fn. 2 (Trujillo).) The modified judgment filed
and entered on September 20, 2019, was a final judgment appealable

pursuant to Code of Civil Procedure section 904.1,4 subdivision (a)(1).
Mejia filed her notice of appeal prematurely on September 3—after the
court granted JNOV on August 9 and before the modified judgment was
entered on September 20. A premature notice of appeal that is filed before
the judgment is entered, but after the superior court has announced its
intended ruling, may be treated as filed immediately after entry of judgment.
(Cal. Rules of Ct., rules 8.104 (d)(1) & (2); Lee v. Kim (2019) 41 Cal.App.5th
705, 718, fn. 7 (Lee).) Mejia prematurely filed a valid notice of appeal from
the modified judgment entered on September 20, 2019.
Vu contends that Mejia appealed only from the order granting new trial
because she checked a box on the Judicial Council Form stating that she was
appealing from “an order or judgment under . . . [section] 904.1, [subdivision]
(a)(3)-(13).” Those subdivisions include an order granting a new trial (subd.

(a)(4)), but not an order granting JNOV.5 The notice of appeal said that
Mejia was appealing from the order dated August 9, 2019, which granted
both the motion for JNOV and the conditional motion for new trial.
Checking the wrong box on the notice of appeal does not defeat the
appeal. (Ellis Law Group LLP v. Nevada City Sugar Loaf Properties LLC
(2014) 230 Cal.App.4th 244, 251 [notice of appeal was sufficient even though
wrong box was checked].) “The notice of appeal must be liberally construed.

4 Further statutory references are to the Code of Civil Procedure unless
otherwise specified.

5 As noted above, an order granting JNOV is not an appealable order but
the subsequent modified judgment is appealable under section 904.1,
subdivision (a)(1).
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The notice is sufficient if it identifies the particular judgment or order being
appealed.” (Cal. Rules of Ct., rule 8.100 (a)(2).) We have a “ ‘strong policy in
favor of hearing appeals on their merits’ ” (K.J. v. Los Angeles Unified School
District (2020) 8 Cal.5th 875, 881; Walker v. Los Angeles County Metropolitan
Transportation Authority (2005) 35 Cal.4th 15, 20 (Walker)), if the appellant’s
intention was apparent from the record and the respondent is not misled or
prejudiced by an error. (In re J.F. (2019) 39 Cal.App.5th 70, 76 (J.F.);
Walker, at pp. 20–21.)
Mejia’s intention was clear. Her notice of appeal stated that she was
appealing the order of August 9, 2019, which includes the order granting
JNOV and conditionally granting a new trial. Mejia’s notice of designation of
record on appeal included the motions for JNOV and new trial and the
rulings thereon from August 9, 2019. Vu recognized that Mejia’s appeal
included a challenge to the JNOV, as the substantive portion of her
respondent’s brief addresses that issue.
Vu has not identified any prejudice caused by Mejia’s checking of the
wrong box on the notice of appeal form. She filed a separate respondent’s
notice of designation of the record including the exhibits and oral transcript
pages that supported her motion for JNOV, and her reply to Mejia’s
opposition to that motion. Her respondent’s brief addresses all the issues
raised by Mejia. Similar actions were evidence of lack of prejudice in Walker,
supra, 35 Cal.4th at page 21. We exercise our discretion in favor of hearing
the merits of the appeal. (Lee, supra, 41 Cal.App.5th at p. 718, fn. 7; Boyer v.
Jensen (2005) 129 Cal.App.4th 62, 69.)
Vu contends that we cannot reasonably construe the notice of appeal as
an appeal as anything other than the order granting new trial, citing J.F.,
supra, 39 Cal.App.5th at page 75, and Faunce v. Cate (2013) 222 Cal.App.4th

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166, 170. We disagree. The appellant in J.F. filed a notice of appeal
specifying that he was appealing from the final order on a specific date. (Id.
at p. 75.) The appellate court found no clear intention of challenging an order
from two months earlier. (Ibid.) In Faunce, also, the notice of appeal
specified the judgment the appellant was appealing from; there was no clear
intention of a challenge to an earlier, separately appealable order, and the
time for appeal of that separate order had passed. (Faunce, at p. 170.)
Mejia, on the other hand, stated her intent to appeal from the order of
August 9, which granted both JNOV and the conditional new trial. The order
granting JNOV showed the court’s intention to enter a modified judgment.
Vu has shown no prejudice. We liberally construe Mejia’s notice of appeal to
encompass both the modified judgment and the conditional order of new trial.
B. Adequacy of Record
Vu next argues that Mejia has defaulted on her appeal because she
failed to designate an adequate record. It is appellant’s burden to provide a
record sufficient for us to review the proceedings below. (Southern California
Gas, Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.) The record contains
neither the reporter’s transcript of the hearing nor Mejia’s opposition to the
motion below. The court’s order granting JNOV and a new trial, however, is
thorough. It contains the court’s reasoning and the basis for its order. Mejia
has not raised any issue that requires consideration of the oral proceedings in
the trial court. We have reviewed the record and find it adequate to resolve
the issues on appeal. (See Trujillo, supra, 63 Cal.App.4th at pp. 284–285 &
fn. 2.) Because the court’s written order is clear and thorough, “we proceed to
consider the issues raised on appeal, cognizant of [Mejia’s] obligation to
provide an adequate record to demonstrate error and our obligation to

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presume that the decision of the trial court is correct absent a showing of
error on the record.” (Southern California Gas, Co. v. Flannery, at p. 483.)
2. Judgment Notwithstanding the Verdict
A. Legal Guidelines
A trial court can grant JNOV when a motion for directed verdict should
have been granted, that is, when no substantial evidence supports the claim
for relief. (§ 629; Tognazzini v. San Luis Coastal Unified School Dist. (2001)
86 Cal.App.4th 1053, 1057–1058 (Tognazzini).) The trial court may not
weigh the evidence or judge the credibility of witnesses. It is error to grant
the motion if the evidence is conflicting or reasonably amenable to different
inferences. The court may grant JNOV only when, viewing the evidence in
the light most favorable to the party securing the verdict, indulging every
legitimate inference from such evidence in favor of that party, and
disregarding conflicting evidence, the trial court determines that there was
no substantial evidence to support the verdict. If there is any such
substantial evidence, including reasonable inferences deducible therefrom,
the trial court must deny the motion. (Tognazzini, at p. 1058.)
We review an order granting JNOV de novo, with the same standard
used by the trial court—whether any substantial evidence, contradicted or
uncontradicted, supports the jury’s conclusion. (Gonzales v. City of Atwater
(2016) 6 Cal.App.5th 929, 946–947 (Gonzales).) We consider the evidence in
the light most favorable to the party that obtained the verdict. We “ ‘must
accept as true the evidence supporting the verdict, disregard conflicting
evidence, and indulge every legitimate inference to support the verdict.’ ”
(Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034,
1045 (Cochrum).) If JNOV was granted based on a legal issue, “such as the
application of law to undisputed facts or the interpretation of a statute, we

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review the trial court’s ruling ‘under a de novo standard of review.’ ”
(Gonzales, at pp. 946–947.)
The issue here was whether the evidence at trial supported the award
of $125,000 for future economic losses—the cost of medical care for Mejia in
the future. “To recover damages for future medical expenses, [the plaintiff]
must prove the reasonable cost of reasonably necessary medical care that [he
or she] is reasonably certain to need in the future.” (CACI No. 3903A; Cuevas
v. Contra Costa County (2017) 11 Cal.App.5th 163, 183 [CACI No. 3903A is a
correct statement of law].)
B. Proceedings Below
Dr. William Tontz, Jr. testified that, with a reasonable degree of
medical certainty, Mejia would require future treatment for her neck injury,
including a series of three cervical injections, once or twice per year, for three
years, at a cost of $5,000 per injection. Mejia had chronic pain at the time of
trial and Dr. Tontz anticipated the chronic pain would continue. To deal with
the pain, with a reasonable certainty, Mejia would require visits to a pain
management or other specialist for flare-ups of pain. The initial charge
would be $400, with follow-up visits costing $250. The ability to see a
physician for chronic pain would last through the end of her life, to a
reasonable degree of medical certainty. Dr. Tontz also stated that he
sometimes recommended acupuncture, but it was not typically the first-line
recommendation.
In ruling on the motion for JNOV, the court recited that “Dr. Tontz
testified it was his opinion that [Mejia] would need future care to a
reasonable degree of certainty. . . . . [Mejia] would very much desire to
continue acupuncture from Aculife . . . because she would obtain relief from
her pain as a result of that treatment. Together, substantial evidence was

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presented that it was reasonably certain [Mejia] would require future
acupuncture treatments.” It then found insufficient evidence of the
reasonable cost of future acupuncture treatment, and granted JNOV on that
ground.
C. Analysis
The testimony of a single witness, including an expert witness, can
provide substantial evidence to support a verdict. (Johnson & Johnson
Talcum Powder Cases (2019) 37 Cal.App.5th 292, 314.) One reasonable
inference the jury could draw was that Mejia’s future medical expenses would
total $140,000, based on Dr. Tontz’s testimony: $90,000 for cervical
injections, given in a series of three, twice a year, for three years, at a cost of
$5,000 each; and four visits to a pain management specialist per year, at

$250 per visit, for the rest of her life, stretching about fifty years,6 for a total
of $50,000. This substantial evidence supported the jury verdict awarding
$125,000 for future medical expenses.
In reviewing substantial evidence, a court is not to pick and choose
amongst the evidence presented, or determine the basis of the jury’s decision,
but simply to review the evidence and determine if any substantial evidence,
or reasonable inferences therefrom, could support the verdict. The verdict
here was for “future medical expenses,” not for future acupuncture treatment.
It was therefore error to grant JNOV when substantial evidence in the record
supported the jury verdict. (Tognazzini, supra, 86 Cal.App.4th at p. 1058;
Cochrum, supra, 25 Cal.App.5th at p. 1045; Gonzales, supra, 6 Cal.App.5th at
pp. 946–947.)
The trial court erred because it accepted, and limited itself to, Vu’s
contention that the award was based solely on future acupuncture treatment,

6 Mejia was born in 1986.
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and found no evidence of the cost of future acupuncture treatments. The trial
court erred in failing to view the evidence in the light most favorable to the
party that obtained the verdict and failing to disregard conflicting evidence.
(Cochrum, supra, 25 Cal.App.5th at p. 1044.) The court made an
unwarranted choice among conflicting evidence, ignoring the substantial
evidence of the cost of recommended future medical treatments that was
provided by Dr. Tontz, impliedly judging the credibility of the witnesses and
giving more weight to Mejia’s statement of wanting further acupuncture
treatment than to Dr. Tontz’s testimony of future medical treatments that
were reasonably necessary. The court erred because it did not view the
evidence in the light most favorable to the verdict, it did not indulge every
legitimate inference from the evidence in favor of Mejia, and it disregarded
the evidence that supported the verdict. (Tognazzini, supra, 86 Cal.App.4th
at p. 1058; Cochrum, supra, 25 Cal.App.5th at p. 1044; Gonzales, supra, 6
Cal.App.5th at pp. 946–947.)
D. Juror Declarations
Vu submitted six identical declarations from jurors in support of its
motion for JNOV. Each stated in part, “I participated in all jury
deliberations and I am familiar with the Special Verdict form . . . . [¶] . . .
The jury awarded the plaintiff $125,000 for future medical expenses . . . .
[¶] . . . The jury did not award the cervical injections claimed by the plaintiff
as a future medical expense. Instead, the $125,000 award for future medical
expenses was for future acupuncture.”
Vu contends that Mejia cannot complain about the juror declarations
on appeal because she has not shown that she objected to them below. The
failure to object “is of no moment. ‘[E]vidence that violates Evidence Code
section 1150 is not merely inadmissible; it is irrelevant—“of no jural

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consequence.” [Citation.]’ ” (In re Hansen (2014) 227 Cal.App.4th 906, 928–
929.) It is not necessary to object in the trial court to preserve this contention
on appeal. (Ibid.)
The court did not comment on these declarations and did not refer to
them in its written order. As noted above, it relied on Mejia’s testimony that
she would like to continue acupuncture treatments as the foundation for its
discussion of lack of evidence of the cost of future acupuncture treatments.
To the extent the court’s reasoning was influenced by the juror declarations,
the court erred. “ ‘ “[T]he purpose of a motion for judgment notwithstanding
the verdict is not to afford a review of the jury’s deliberation . . . .” [Citation.]’
[Citation.]” (Trujillo, supra, 63 Cal.App.4th at p. 284.)
It is error to consider evidence concerning the mental processes by
which jurors reach a verdict. (Evid. Code, § 1150, subd. (a).) “ ‘Evidence of
jurors’ internal thought processes is inadmissible to impeach a verdict.
[Citations.] . . . Juror declarations are admissible to the extent that they
describe overt acts constituting jury misconduct, but they are inadmissible to
the extent that they describe the effect of any event on a juror’s subjective
reasoning process. [Citation.] Accordingly, juror declarations are
inadmissible to the extent that they purport to describe . . . how [jurors]
arrived at their verdict. [Citations.]’ ” (Harb v. City of Bakersfield (2015) 233
Cal.App.4th 606, 623.) Statements by a juror of the bases for his or her vote
are “ ‘ “simply a verbal reflection of the juror’s processes. Consideration of
such a statement as evidence of those processes is barred by Evidence Code
section 1150.” ’ ” (Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269,
283.)

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 E. Conclusion
The court erred even if it ignored the juror declarations and relied on
Mejia’s statement about her preference. The court may not pick and choose
amongst the evidence in determining whether substantial evidence supported
the verdict. (Tognazzini, supra, 86 Cal.App.4th at pp. 1057–1058.) To the
contrary, the trial court was obliged, and we are obliged on review, to “
‘indulge every legitimate inference to support the verdict.’ ” (Cochrum, supra,
25 Cal.App.5th at p. 1045.)
The verdict was for “future medical expenses,” unspecified. It was not
limited to future acupuncture treatment. The trial court erred in failing to
view the evidence in the light most favorable to the party that obtained the
verdict and failing to disregard conflicting evidence. (Cochrum, supra, 25
Cal.App.5th at p. 1045.) We reverse the JNOV.
3. New Trial
Following the procedure set out in the statute governing JNOV, section
629, the court granted the new trial motion conditionally, “ ‘effective only if,
on appeal, the judgment notwithstanding the verdict is reversed, and the
order granting the new trial is not appealed from or, if appealed from, is
affirmed.’ ” (§ 629, subd. (d).) When the new trial is conditional on the fate of
the JNOV on appeal, the appellate court’s ruling on the JNOV is dispositive.
(In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 614;
Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans
Affairs (1998) 67 Cal.App.4th 743, 752-753.) We review the substance of the
motion, not its form. (Latex Glove, at p. 614.) We reverse the conditional
order for new trial for the same reasons we reversed the JNOV. (Ibid.)

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 DISPOSITION
We reverse the amended judgment of September 20, 2019, and the
conditional order for new trial. We remand to the superior court with
directions to strike the amended judgment and to reinstate the judgment of
May 14, 2019. Costs awarded to Mejia.

BENKE, Acting P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.

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