Filed 2/25/21 Shui v. B.R. & Sons 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
CHRISTINE SHUI, B299251
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC649750)
v.
B.R. & SONS et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ernest Hiroshige, Judge. Affirmed.
Macdonald & Cody, Scott L. Macdonald and Douglas M.
Carasso for Defendants and Appellants.
ElDabe Ritter Trial Lawyers, Jonathan M. Ritter and S.
Edmond El Dabe; KP Law and Zareh Jaltorossian for Plaintiff
and Respondent.
******
The driver of a work truck clipped a passenger car on the
freeway, causing it to careen out of traffic and into a woman
standing behind her car on the freeway’s shoulder. The driver
drove on. The woman sued the driver and his employer for
negligence, and a jury awarded her $4 million for her pain and
suffering. On appeal, the driver and employer argue that (1) the
driver’s conduct in “hitting and running” should have been
excluded from evidence once liability was conceded, and (2) the
damages are excessive. Because neither argument has merit, we
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The accident(s)
This case involves a sequence of automobile accidents that
culminated in a collision that nearly cost 31-year-old Christine
Shui (plaintiff) her leg.
On a rainy Sunday afternoon in November 2016, plaintiff
and her husband were driving home on the 60 Freeway; the
husband was driving, and plaintiff was a passenger. They were
rear-ended by a car; moments later, that car was rear-ended. All
three cars pulled over to the wide right shoulder of the freeway to
exchange information.
A few minutes later, Antonio Garcia (Garcia) approached
this stretch of freeway while driving a heavy work truck. Garcia
drove his truck into the rear corner bumper of a Volkswagen
Jetta in the lane to his right, and the impact pushed the Jetta out
of traffic and toward the shoulder. The Jetta struck plaintiff,
pinning her left leg between its front bumper and the rear
bumper of her husband’s car.
Garcia kept on driving.
2
B. Plaintiff’s injuries
The resulting injuries to plaintiff were significant.
1. Physical injuries
The impact squeezed copious amounts of muscle, tissue,
and blood out of plaintiff’s thigh and onto the cars and the
ground. Although surgeons were able to graft skin from her left
hip (using a mechanism similar to a deli cheese slicer to harvest
the skin), the discolored skin grafts did not replace the lost mass
in her thigh, which is now misshapen with a concave indentation.
The impact also severed plaintiff’s femoral artery.
Immediately after the accident, it was “touch and go” whether the
resulting loss of oxygen to her left leg might necessitate
amputation of the leg. However, surgeons were able to replace
the severed segment of the artery with a vein removed from
plaintiff’s right thigh.
Plaintiff also suffered permanent nerve damage.
Plaintiff spent 31 days in the hospital, and another few
months bedridden. She underwent five surgical procedures while
hospitalized, and two more after her release.
2. Psychological injuries
As a result of the accident itself, the ensuing surgeries, and
the physical therapy that followed, plaintiff endured a great deal
of pain. She is also humiliated by the disfigurement of her left
leg. She now suffers from two psychological conditions: (1) post-
traumatic stress disorder (PTSD) from the trauma of the accident
and its immediate aftermath as well as from the continuing
possibility (albeit less than 5 percent) that her leg may yet have
to be amputated, and (2) “adjustment disorder with depressed
mood.” The PTSD causes plaintiff to have panic attacks and
3
flashbacks, and prompts her to avoid situations that “trigger”
them.
II. Procedural Background
A. Complaint
In February 2017, plaintiff sued Garcia and his employer,
B.R. & Sons, Inc. (collectively, defendants). In the operative first
amended complaint, her sole claim is for negligence.1
B. Motion in limine regarding Garcia’s conduct in
leaving the scene
Defendants filed 11 motions in limine; in one of them,
defendants moved to exclude all evidence and argument that
Garcia had engaged in a “hit and run”—that is, that he left the
scene after causing the accident. Because defendants stipulated
to liability while this motion in limine was pending, the sole issue
for trial was the extent of plaintiff’s damages and hence whether
the hit-and-run conduct was relevant to her damages.
Although it was undisputed that Garcia had left the scene,
there were factual disputes as to whether Garcia left the scene
knowing he had caused an accident, as to whether plaintiff knew
Garcia had left the scene, and as to whether that knowledge had
1 Plaintiff initially sued defendants for intentional infliction
of emotional distress based on Garcia’s conduct in not stopping
after causing the accident, but the trial court ultimately
sustained a demurrer to that claim without leave to amend on
the grounds that (1) Garcia’s conduct in leaving the scene did
“not constitute extreme and outrageous conduct,” and (2) the
resulting impact on plaintiff as alleged in the operative
complaint—namely, that she “began to cry, worry and became
afraid”—did not constitute “severe emotional distress.”
Plaintiff’s husband also sued defendants for negligent
infliction of emotional distress, and settled with defendants for
$400,000.
4
caused plaintiff any damages. In support of their motion in
limine, defendants introduced evidence that (1) Garcia had told
the California Highway Patrol (CHP) officers who interviewed
him the next day that he thought he had just run over debris,
and those officers had found Garcia to be credible and thus had
not recommended criminal prosecution for a “hit and run”; and
(2) according to plaintiff’s psychologist expert, the psychological
injury to plaintiff from learning that Garcia left the scene
depended on her belief that Garcia committed a hit-and-run, and
hence depended on her rejecting Garcia’s view of what happened.
In opposition to the motion, plaintiff introduced evidence that (1)
Garcia “kept on driving” and refused to “go back” even after
another motorist who witnessed the accident caught up to Garcia
and gestured to him to circle back to the scene of the accident; (2)
Garcia’s story to the CHP was untrustworthy because Garcia’s
account of the accident (i.e., whether he was changing lanes and
whether his defroster was on) had changed over time; (3) plaintiff
testified in a deposition that she “found out there was another
truck at the scene”; and (4) according to plaintiff’s psychologist
expert, plaintiff’s “understanding that the truck driver had fled
the scene” was an “aggravating factor” to her emotional distress
and prevented her from “getting closure.”
Following multiple rounds of briefing as well as extensive
argument and re-argument, the trial court ruled that (1) the hit-
and-run evidence was admissible, and (2) no evidentiary hearing
pursuant to Evidence Code section 4022 (“402 hearing”) was
necessary. With regard to admissibility, the court concluded that
(1) the evidence as to whether Garcia knowingly committed a hit-
2 All further statutory references are to the Evidence Code
unless otherwise indicated.
5
and-run, whether plaintiff knew about it, and whether that
knowledge exacerbated her emotional distress was
“contradictory” but nonetheless “sufficient” for a jury to
“conclude” that his knowing flight had aggravated her emotional
distress; and (2) the CHP officers’ recommendation not to
prosecute Garcia for a hit-and-run did not mandate exclusion of
the hit-and-run evidence under section 352 because the quantum
of evidence necessary “for a criminal prosecution” is greater than
the quantum necessary to create a “triable issue” for a jury
“under the preponderance of the evidence standard.” The court
declined defendants’ invitation to “ignore” plaintiff’s evidence and
“just believe the defense side” in evaluating the threshold
question of admissibility. The court also found that holding a 402
hearing would be an “undue waste of time” because it would “end
up with [the same] conflict in the evidence” set forth in the
parties’ papers and because it would still be the jurors’ job to
resolve that conflict, such that a 402 hearing would do no more
than “inconvenience” “witnesses to . . . come down [to court] twice
to tell their testimony.”
C. Trial
1. Opening statements
Plaintiff made no mention of Garcia’s possible hit-and-run
conduct in her opening statement to the jury. In their opening
statement, defendants told the jury that plaintiff was “making a
claim that the truck didn’t stop at the scene and that bothers
her,” but that Garcia “didn’t know there was an accident.”
2. Pertinent evidence at trial
To support her claim for noneconomic damages, and as
noted above, plaintiff introduced evidence that her physical
injuries caused her great pain and humiliation. Also as noted
6
above, plaintiff called a psychologist as an expert witness who
opined that plaintiff suffers from PTSD and depression, and that
“most of [that] anxiety” stems from her “injury and the effects of
her injury.”
The jury heard conflicting evidence as to whether Garcia’s
conduct in leaving the accident scene exacerbated plaintiff’s
emotional distress. Plaintiff introduced evidence that (1) Garcia
was aware he had caused an accident because (a) a motorist who
saw the accident caught up to the work truck that caused the
accident, gestured for the truck’s driver (that is, Garcia) to turn
around and go back, saw the driver look at him, and watched the
driver speed away, (b) Garcia admitted to the CHP officers that
he saw a motorist pull up alongside him, and (c) Garcia testified
at trial that he both “knew” and “didn’t know” he “had collided
with another car and left the scene”; (2) plaintiff learned, as she
lay on the roadside, that the motorist who caused the accident
never stopped because (a) the driver of the Jetta testified that he
was “standing there by [plaintiff] after the accident” when he
announced that “the truck had driven away after hitting” him,
and (b) plaintiff testified that she heard the Jetta’s driver say
that “[s]omebody else hit him” and she did not see the truck at
the scene; and (3) plaintiff’s knowledge that the “truck didn’t
stop” was an “aggravating” “trigger” for her PTSD. Defendants
elicited evidence that (1) Garcia thought he only hit debris and
not another vehicle, and both of the CHP officers who interviewed
Garcia found his explanation to be credible and did not
recommend criminal charges; and (2) plaintiff did not know about
Garcia’s conduct at the time of the accident because (a) her
psychologist expert testified that plaintiff “didn’t know . . . at the
time” that Garcia had driven away, and (b) plaintiff herself
7
testified on direct examination that she did not “learn[] that the
person responsible for the collision was found” until “two months
after the accident” and, on cross-examination, that she did not
learn until two months after the accident that the truck had left
the scene.
3. Pertinent jury instructions
At the suggestion of plaintiff’s counsel, the trial court
instructed the jury that it could “use” “[t]he evidence you have
heard regarding whether . . . Garcia ‘hit and ran’ from the scene
of the accident knowing he struck a vehicle” “for a limited
purpose”—namely, “to decide whether [plaintiff] sustained
emotional distress due to this” conduct. The court also instructed
the jury that it “must not include in [its] award any damages to
punish or make an example of [defendants].”
4. Closing arguments
In her initial closing argument, plaintiff argued that
Garcia’s conduct in leaving the scene operated as a “trigger” for
her PTSD.
A few minutes later, plaintiff argued that “[f]rom the
moment that B.R. & Sons found out about this accident, damage
control began.” Defendants objected: “Argument to punish.” At
a sidebar, the trial court sustained the objection because plaintiff
was “linking the hit-and-run to damage control” but whether
“damage control began” was “beyond the scope of whether or not
the hit-and-run occurred.” Defendants moved for a mistrial on
the ground that plaintiffs were signaling to the jury that it
should punish defendants for Garcia’s hit-and-run conduct, but
the trial court denied the motion: “I didn’t hear any comment
about punishing anybody because there was no such comment by
[plaintiff’s] counsel.”
8
In their closing argument, defendants asserted that
plaintiff’s damages demand “has everything to do with
punishment.” Seizing on plaintiff’s testimony on cross-
examination, defendants also urged that the “only evidence” at
trial showed that plaintiff learned about Garcia’s hit-and-run
conduct two months after the accident.
In rebuttal, plaintiff pointed out other evidence at trial
indicating that plaintiff was contemporaneously aware of
Garcia’s flight from the scene—namely, the Jetta driver’s
testimony that he reported it to everyone on the freeway shoulder
and plaintiff’s testimony that she heard him.
5. The verdict
After two days of deliberations, the jury awarded plaintiff
$5,310,021 in damages. Specifically, the jury voted 12-0 to award
plaintiff $1,310,021 for future medical expenses, voted 10-2 to
award her $2 million for future pain and suffering, and voted 9-3
to award her $2 million for past pain and suffering.
D. Motion for new trial
As pertinent to this appeal, defendants moved for a new
trial on the ground that the trial court erred in denying their
motion in limine to exclude evidence that Garcia knowingly fled
the accident scene. Defendants also mentioned in passing that
the damages were excessive. After briefing and argument, the
trial court denied the motion. The court ruled that it had
committed “no error” in allowing the jury to consider whether
Garcia had fled the scene because there was sufficient evidence to
present that issue to the jury; the court went on to note that the
evidence adduced at trial “that Garcia had knowledge that he
was involved in an accident” ended up being “overwhelming.”
The court also found that “no prejudice to defendants resulted.”
9
The court went on to find that “[t]he special and general damages
awarded by the jury [were] fair and reasonable and within the
range to be expected with the significant life-changing injuries
that plaintiff sustained . . . .”
E. Appeal
Defendants filed this timely appeal.
DISCUSSION
Defendants argue that the trial court erred in (1) admitting
evidence that Garcia had knowingly left the accident scene, and
(2) concluding that the noneconomic damages award was not
“excessive.”
I. Admission of Hit-and-Run Evidence
Defendants contend that the trial court should not have
admitted the hit-and-run evidence because it is (1) irrelevant,
and (2) subject to exclusion under section 352. We review
evidentiary rulings for an abuse of discretion. (People v. Powell
(2018) 5 Cal.5th 921, 961.) “[A]n erroneous evidentiary ruling
requires reversal only if ‘“there is a reasonable probability that a
result more favorable to the appealing party would have been
reached in the absence of the error.”’ [Citation.]” (D.Z. v. Los
Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 231
(D.Z.).)
A. No abuse of discretion
1. Relevance
Evidence is relevant if it has “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (§ 210, italics added.) Under this
definition of relevance, it is therefore “error to receive evidence
. . . material solely to” facts that are undisputed. (Fuentes v.
Tucker (1947) 31 Cal.2d 1, 5 (Fuentes).) But where, as here,
10
liability is undisputed but damages are not, evidence tending to
show “how an accident happened” is relevant if it is “material to
the issue of damages.” (Ibid.) More to the point here, a
motorist’s “failure to stop” after an accident can be relevant to
show “the aggravation of injuries sustained in the accident or
additional injuries incurred after it.” (Karl v. C.A. Reed Lumber
Co. (1969) 275 Cal.App.2d 358, 362; see generally Abelson v.
National Union Fire Ins. Co. (1994) 28 Cal.App.4th 776, 789
(Abelson) [“Damages for emotional distress are inextricably
related to the conduct causing that distress . . .”].) Applying
these definitions, evidence that Garcia knowingly left the
accident scene would be relevant to prove plaintiff’s emotional
distress damages only if (1) plaintiff knew Garcia left the scene,
(2) this knowledge caused plaintiff emotional distress, and (3)
Garcia knew of the accident at the time he left the scene
(because, otherwise, the emotional distress plaintiff experienced
would be due to her misperception rather than anything Garcia
actually did).
In this case, the trial court did not abuse its discretion in
ruling that evidence that Garcia left the accident scene was
relevant because there was sufficient evidence for the jury to find
each of the three logical prerequisites for relevance to be true:
The Jetta driver told plaintiff that the car that caused the
accident drove off and plaintiff testified that she heard him and
did not see the responsible vehicle at the scene; plaintiff’s
psychologist expert testified that Garcia’s hit-and-run conduct
was an “aggravating” “trigger” for plaintiff’s PTSD; and Garcia’s
conduct in ignoring the motorist who signaled him to turn back
and his admissions on the stand supported a finding that Garcia
did, in fact, know he struck another vehicle and drove off anyway.
11
Defendants raise what boil down to four arguments in
response.
First, defendants point to several pieces of evidence that
would have supported a finding that the three logical
prerequisites for relevance were absent or only “weak[ly]”
established. In particular, defendants assert (1) that plaintiff did
not know about the hit-and-run until later because (a) both she
and her psychologist expert indicated that she did not learn of
the hit-and-run “until later,” (b) the Jetta driver was unable to
identify Garcia as the hit-and-run driver at the time, and (c)
plaintiff was merely told Garcia drove away (rather than seeing
him drive away herself); (2) that plaintiff’s emotional distress was
caused by her “lack of closure” due to not knowing who caused
the accident, but her lack of knowledge was due to her own
ignorance because the CHP officers had identified Garcia the day
after the accident; and (3) that Garcia did not knowingly commit
a hit-and-run because the CHP officers found Garcia to be
credible when he disclaimed any such knowledge.
As a global matter, the trial court’s task in assessing the
relevance of evidence turning on preliminary facts is to determine
whether there is sufficient evidence for a jury to find those
preliminary facts to be true; the court’s task is not to definitively
decide those preliminary facts for itself. (§ 403, subd. (a)(1)
[when assessing “relevance” of “proffered evidence,” that evidence
is admissible if “the court finds that there is evidence sufficient to
sustain a finding of the existence of the preliminary fact”]; People
v. Cottone (2013) 57 Cal.4th 269, 283 [“‘the preliminary fact
questions listed in [section 403, subdivision (a)] . . . are not finally
decided by the judge because they have been traditionally
regarded as jury questions’” because they “‘involve the credibility
12
of testimony’”].) Because, as noted above, plaintiff introduced
evidence that would have supported a finding as to each of the
three prerequisites (or, in the vernacular, preliminary facts) upon
which the relevance of the hit-and-run evidence turned, section
403 required the trial court to let the jury decide those facts; the
court would have erred if, as defendants now request, the court
had decided those facts for itself. This is also why the trial court
did not abuse its discretion in declining to hold a section 402
evidentiary hearing—namely, because that hearing would have
adduced the same conflicting evidence and thus required that
evidence to be submitted to the jury for resolution. (People v.
Williams (1997) 16 Cal.4th 153, 197 [decision not to hold section
402 hearing is reviewed for an abuse of discretion]; People v.
Chavez (2018) 22 Cal.App.5th 663, 703 [section 402 hearing
unnecessary when exercising discretion under section 352]; cf. In
re Kathleen W. (1987) 190 Cal.App.3d 68, 73 [error not to hold a
section 402 hearing for matters outside section 403, subdivision
(a)].)
The items of evidence defendants point to would not have
mandated exclusion for additional reasons, too. Although the
testimony of both plaintiff and her psychologist expert contained
some internal inconsistencies regarding when plaintiff learned
that Garcia had not stopped, it is up to a jury to resolve those
conflicts within the witnesses’ testimony. (Pleasant Hill v. First
Baptist Church (1969) 1 Cal.App.3d 384, 408 [noting “the duty of
the jury to reconcile conflicting testimony”]; People v. Morgan
(1997) 58 Cal.App.4th 1210, 1216 [same, even as to
inconsistencies within a single witness’s testimony].) Further,
the Jetta driver said he told plaintiff about the truck driving
away and plaintiff at one point said she heard the Jetta driver;
13
that is enough to get the question of fact to the jury. Whether the
Jetta driver could identify Garcia as the hit-and-run driver
moments after the accident and whether plaintiff actually saw
Garcia driving away are not preliminary facts upon which
relevance turns; their absence is therefore of no moment.3 The
psychologist expert’s testimony that plaintiff’s emotional distress
was also caused by her “lack of closure” did not negate his
testimony that Garcia’s hit-and-run conduct was an “aggravating
factor” to her PTSD. And the CHP officers’ belief that Garcia was
credible when Garcia disclaimed any knowledge of hitting
another vehicle is entitled to no weight because one person’s
belief regarding another person’s credibility is not usually
relevant—let alone dispositive. (E.g., People v. Zambrano (2004)
124 Cal.App.4th 228, 239 [“a lay witness’s opinion about the
veracity of another person’s particular statements is inadmissible
and irrelevant on the issue of the statements’ credibility”]; People
v. Melton (1988) 44 Cal.3d 713, 744 [same].)
3 Defendants also make a hearsay objection to plaintiff’s
reliance on what the Jetta driver told her about the truck driving
away. This objection is without merit. What the Jetta driver told
plaintiff is relevant to prove the effect of that statement on its
hearer—that is, its effect on plaintiff’s mental state. A statement
admitted to show its effect on the hearer is not hearsay. (E.g.,
Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th
940, 947 [a “‘statement is not hearsay’” when “‘it is the hearer’s
reaction to the statement that is the relevant fact sought to be
proved—not the truth of the matter asserted in the statement’”].)
Although, as noted above, the relevance of this evidence turns
upon a finding that Garcia had knowingly fled the accident scene,
that finding is supported by evidence other than the Jetta driver’s
statement.
14
Second, defendants contend that the CHP officers’ decision
not to recommend prosecution for hit-and-run precluded
reference to Garcia’s underlying conduct in this case. This
contention ignores the different burdens of proof in criminal and
civil cases. The CHP officers’ assessment that a prosecutor could
not prove a hit-and-run beyond a reasonable doubt does not mean
that plaintiff could not do so by a preponderance of the evidence.
(See United States v. Watts (1997) 519 U.S. 148, 157 [“a jury’s
verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long as
that conduct has been proved by a preponderance of the
evidence”].)
Third, defendants assert that the preliminary fact that the
hit-and-run affected plaintiff’s psyche cannot be established
because the psychologist expert’s testimony was inadmissible.
Because neither of defendants’ two proffered bases for
inadmissibility was raised before the trial court, they are
forfeited. (§ 353, subd. (a).) Both bases also lack merit.
Defendants claim that the expert was not competent to testify
because he was not plaintiff’s treating physician. This claim is
frivolous, as non-treating physicians may testify as experts.
(E.g., Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35-36.)
Defendants also claim that the expert impermissibly relayed to
the jury what plaintiff had told him, which violates the hearsay
rule under People v. Sanchez (2016) 63 Cal.4th 665. This claim is
also frivolous, as experts may relay “case-specific facts” that are
“independently proven by competent evidence” (id. at p. 686), and
plaintiff here competently testified at trial to the statements the
expert relayed to the jury.
15
Lastly, defendants assert that the trial court was wrong to
rely upon Fuentes, supra, 31 Cal.2d 1 and Abelson, supra, 28
Cal.App.4th 776 because those cases are factually
distinguishable. This assertion is meritless. The trial court cited
those cases for the legal rule they applied; whether those cases
were factually analogous is of no concern.
2. Section 352
Section 352 grants trial courts “discretion” to “exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time, or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
(§ 352.)
The trial court did not abuse its discretion in admitting the
hit-and-run evidence under section 352. For the reasons
explained above, Garcia’s conduct in knowingly leaving the scene
of the accident was relevant to prove—and hence had significant
probative value in establishing—plaintiff’s emotional distress
damages. What is more, the trial court substantially mitigated
any unfair prejudice by explicitly instructing the jury that it was
only to consider the hit-and-run evidence “to decide whether
[plaintiff] sustained emotional distress.”
Defendants respond with five arguments. First, they argue
that plaintiff impermissibly referred to Garcia’s conduct as
“criminal” and implied that defendants engaged in a “cover up.”
The record does not support this argument. Plaintiff’s counsel
never used those terms. And to the extent plaintiff implied that
defendants tried to conceal Garcia’s involvement, that implication
was supported by Garcia’s own testimony that he gave “different
explanations” at “different times.” Second, defendants contend
16
that plaintiff sought to “vilify and demonize” defendants and to
make Garcia look like a “bad guy,” which was aimed at
engendering anger toward defendants. What made Garcia look
like a “bad guy” was his decision to keep driving, and section 352
does “not . . . allow for the exclusion of evidence merely because it
is ‘prejudicial’ in the sense of damaging to a litigant’s position.”
(O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59
Cal.App.4th 563, 575.) Third, defendants assert that plaintiff’s
elicitation of evidence on the hit-and-run aspect of the case was
unduly time consuming and took “days” of testimony. The record
does not support this assertion, as the questions directed at the
hit-and-run aspect of the case took mere minutes—not multiple
days. Fourth, defendants argue that the court’s limiting
instruction was ineffective, but this argument is purely
speculative and runs contrary to the longstanding presumption
that “the jury follows its instructions.” (Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 803.) Fifth, defendants urge that
plaintiff would have been able to prove her case without the hit-
and-run evidence. However, section 352 does not provide for the
exclusion of a portion of a party’s case merely because the party
could obtain a lesser recovery based on what was still admitted; if
it did, section 352 would mandate the exclusion of wide swaths of
evidence. This most certainly is not the law.
B. No prejudice
Even if we assume that the trial court abused its discretion
in admitting evidence of Garcia’s hit-and-run conduct as part of
plaintiff’s emotional distress damages, there is no reasonable
probability that the admission of this evidence altered the result
of the trial. (D.Z., supra, 35 Cal.App.5th at p. 231.)
17
Defendants bear the burden of establishing prejudice
(Vaughn v. Jonas (1948) 31 Cal.2d 586, 601), and to satisfy that
burden, they point to the size of the $4 million noneconomic
damages award and urge that the hit-and-run evidence was a
“major” part of the trial and the “entire foundation” of the $4
million award. The record does not support defendants’ position.
As we conclude below, the size of the $4 million award is not
excessive on its face and defendants offer no evidence as to how
the hit-and-run evidence affected that verdict.4 Further, the hit-
and-run evidence occupied a minor role at the trial and was
accurately characterized by plaintiff as merely an aggravating
factor to the emotional distress that was chiefly attributable to
the crash itself. Indeed, the hit-and-run evidence had a slightly
elevated profile at trial only because defendants repeatedly
brought up that evidence: Defendants were the first to raise the
issue during opening statements; defendants were the first to
elicit testimony (from the CHP officer) on the issue; and
defendants devoted a substantial portion of their closing
argument to the issue. In other words, defendants are
complaining about a prejudicial effect that, if it exists at all, is
one that they themselves created.
II. Excessive Damages
Defendants argue that the trial court erred in denying their
new trial motion because the $4 million award for past and
future noneconomic damages is excessive.
4 Before the trial court, defense counsel submitted a
declaration stating that the “jury would have awarded a lower
verdict amount if evidence and argument on the issue of ‘hit and
run’ had been properly excluded,” but the trial court correctly
struck that statement as speculative.
18
A trial court may grant a new trial when the jury’s award
of “damages” is “[e]xcessive.” (Code Civ. Proc., § 657, subd. (5).)
For these purposes, a damages award is “excessive” only when it
is “‘so grossly disproportionate’” as to “‘raise[] a presumption that
it was the result of passion and prejudice’” because it “shocks the
conscience.” (Seffert v. Los Angeles Transit Lines (1961) 56
Cal.2d 498, 508-509 (Seffert); Daggett v. Atchison, T & S.F.R. Co.
(1957) 48 Cal.2d 655, 666 (Daggett).) Because a finding that a
particular damages award is excessive is akin to a finding that
there is not enough evidence to support that award (Sprague v.
Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1055), we review a trial
court’s finding that a damages award is not excessive for
substantial evidence and, in so doing, view the record in the light
most favorable to that finding. (Rony v. Costa (2012) 210
Cal.App.4th 746, 753-754; Mendoza v. City of West Covina (2012)
206 Cal.App.4th 702, 720.)
Although defendants arguably forfeited their right to
challenge the excessiveness of the damage award by making no
more than a passing reference to it in their motion for new trial,
their challenge lacks merit in any event because substantial
evidence supports the trial court’s finding that the $4 million
noneconomic damages award does not “shock the conscience.”
Whether a noneconomic damages award of this size for a
significant injury that risked—and still risks—the loss of a limb
is closer to the infield or to the outfield wall, the award is still
well within the proverbial ballpark. Defendants have also not
provided any evidence indicating that the jury’s assessment of
damages was corrupted.
Defendants respond with two arguments.
19
First, they contend that the $4 million award for
noneconomic damages is out of whack with the awards for
noneconomic damages in other cases involving crushed limbs.
Although courts sometimes “consider amounts awarded in
similar cases” when evaluating the excessiveness of an award
(Daggett, supra, 48 Cal.2d at p. 666), doing so is of limited utility
because “such awards vary greatly” and “each case must be
decided on its own facts and circumstances” (Seffert, supra, 56
Cal.2d at p. 508). This is especially true for awards of
noneconomic damages because “[i]njuries are seldom identical
and the amount of pain and suffering involved in similar physical
injuries varies widely.” (Ibid.; Fernandez v. Jimenez (2019) 40
Cal.App.5th 482, 490-491 (Fernandez).) Defendants point to
several cases where the noneconomic damages award was
substantially less than the $4 million award in this case; plaintiff
cites cases where the award was substantially more (e.g., Cobb v.
Cty. of L.A. (2019) 2019 Cal.App.Unpub.LEXIS 3084, *3-*6
[award of $9.8 million for past and future noneconomic damages
due to crushed foot and leg]). If anything, this exercise in
comparison confirms that the award in this case is within—and
not beyond—the pale.
Second, defendants suggest that plaintiff’s closing
argument inflamed the jury by referencing “Lady Justice” and
the Bible’s “eye for an eye” maxim, and accusing defendants of
engaging in “damage control.” To be sure, a damages award may
be excessive if traced to “improper argument by counsel that
would suggest the jury relied upon improper considerations.”
(Fernandez, supra, 40 Cal.App.5th at p. 490.) But plaintiff’s
closing argument was not improper. Plaintiff’s counsel
mentioned the “statue . . . of Lady Justice” in the courtroom, but
20
to explain how the scales she holds “represent[] weighing
evidence” and how the sword she holds represents “the power to
see those decisions through.” Plaintiff’s counsel mentioned the
Bible’s “old system” of seeing “an eye for an eye,” but to explain
how “society changed” and how we “now . . . use money to
compensate for the justice.” And while plaintiff’s counsel
mentioned “damage control,” he did not link it to punishing
defendants; indeed, it was defendants who first mentioned
punishment in their objection and in their responsive closing
argument. What is more, the trial court specifically instructed
the jury that the attorneys’ arguments were not evidence and
that the jury was not to consider punishment in assessing
damages. Indeed, the $4 million noneconomic damages award is
closer to the $1 million to $1.5 million range suggested by
defendants than to the $30 million sought by plaintiffs. This
tends to negate the inference that the jury got “carried away” by
plaintiff’s arguments.
21
DISPOSITION
The judgment is affirmed. Plaintiff is entitled to her costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
22