Gozlan v. Bailey
| Decision Date | 25 April 2022 |
| Docket Number | B307087 |
| Parties | ARIEL GOZLAN, Plaintiff and Respondent, v. ODETTE BAILEY, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC655145 Michael I. Levanas, Judge. Reversed with directions.
Ford Walker, Haggerty & Behar, John K. Paulson, and Ashley S Loeb for Defendant and Appellant.
Panish Shea & Boyle, Ryan A. Casey, Nicholas W. Yoka; The Ehrlich Law Firm, Jeffrey I. Ehrlich and Reid Ehrlich-Quinn for Plaintiff and Respondent.
In April 2015, a Prius driven by Odette Bailey (defendant) collided with an Infiniti sedan driven by Ariel Gozlan (plaintiff). Plaintiff sued defendant for negligence. Defendant conceded her negligence, but contested causation and damages. The jury returned a special verdict finding that the collision did not cause plaintiff's injuries. The trial court overturned the jury's verdict on the ground that "clear and uncontradicted" evidence established causation. The trial court's ruling was error. Accordingly, we reverse the new trial order and reinstate the jury's verdict.
On April 23, 2015, plaintiff was driving an Infiniti Q50 down a street in Marina Del Rey, California. He was traveling at 25 to 30 miles per hour. Defendant was driving a Toyota Prius. As defendant exited a parking lot driveway at 4 to 6 miles per hour, the front end of her Prius hit the front passenger side of plaintiff's Infiniti. The impact pushed plaintiff's car forward and to the left, causing it to momentarily veer into oncoming traffic.
Neither car's airbags deployed, and neither driver had any visible marks or bruises.
Plaintiff and defendant immediately pulled over to exchange information. They saw no need to dial 911, to call nonemergency police or an ambulance, or to seek medical attention.
According to plaintiff, he started to feel pain later on the day of the collision.
Four days after the collision, plaintiff visited a chiropractor to report pain, chiefly in his lower back and down his left leg.
A month after the collision (in May 2015), plaintiff visited a pain management doctor because he was still experiencing "shooting pain" in both legs. The pain management doctor ultimately gave plaintiff four steroid injections into his spine-in July, August, and November 2015, and January 2016. According to plaintiff, the injections mitigated but did not eliminate the pain.
Just over nine months after the collision (in early February 2016), plaintiff visited a neurosurgeon, Dr. Khawar Siddique (Dr. Siddique). Based on an MRI scan, Dr. Siddique diagnosed plaintiff as having a herniated disc between his L4 and L5 vertebrae, meaning that inner material from the disc between those vertebrae was bulging out of the rear of the vertebrae. On March 29, 2016, Dr. Siddique performed a microdiscectomy surgery on that disc by removing the portions that bulged out on the left and right sides of the vertebrae. According to plaintiff, this did not alleviate all of the pain. So in November 2016, Dr. Siddique performed a spinal fusion surgery that removed the entire disc between the L4 and L5 vertebrae, inserted a spacer in place of the hollowed-out disc, and "fused" the L4 and L5 vertebrae to one another with screws.
In June 2017, plaintiff moved to Florida. He did not follow up with Dr. Siddique until September 2019. During that two- year period, plaintiff worked for his father's general contracting business; as part of his duties, plaintiff would lift and move bags of cement, ceramic tile, vanities, toilets, and tool chests ranging in weight from 50 to 80 pounds. When plaintiff met with Dr. Siddique again, Dr. Siddique reported that the June 2017 fusion had not "taken," that plaintiff would need a second fusion surgery, and that plaintiff would likely need a third fusion surgery for adjacent vertebrae in the future.
In March 2017, plaintiff sued defendant for negligence.[1]
The matter proceeded to a five-day jury trial in March 2020. Defendant stipulated that she was negligent, but disputed causation as well as the extent of the $3.5 million in damages plaintiff sought. As witnesses, plaintiff called the chiropractor and pain management doctor who treated him, Dr. Siddique, a few friends and relatives, and himself; he also read portions of deposition testimony of defendant's experts. As witnesses, defendant called a neurosurgeon named Dr. Luke Macyszyn (Dr. Macyszyn) as an expert, a biomechanical engineer as an expert, the spinal surgeon who performed surgeries on plaintiff in 2011, and herself.
The jury returned a special verdict. In response to the question "Was [defendant's] negligence a substantial factor in causing harm to [plaintiff]?", the jury answered, "No."
Plaintiff moved for a new trial on the grounds that (1) the evidence at trial did not support the jury's finding of "no causation" because Dr. Macyszyn "testified in clear and explicit words that [the] collision caused plaintiff's injury" and exacerbated the lower back injuries plaintiff had previously suffered, (2) the trial court erred in allowing defendant's biomechanical engineer to testify, and (3) defendant's counsel improperly vouched for the expert neurosurgeon during closing argument.
After further briefing, the trial court granted plaintiff's motion for a new trial. Citing Code of Civil Procedure section 657, subdivision (6), [2] the court found that "a new trial is required" because "the evidence was clear and uncontradicted that [p]laintiff was injured as a result of the accident." For support, the court cited two passages of Dr. Macyszyn's trial testimony in which he testified that plaintiff had suffered an injury and that the collision had exacerbated plaintiff's lower back injuries.
Defendant filed this timely appeal.
Defendant argues that the trial court erred in granting a new trial under section 657, subdivision (6). Plaintiff responds that the trial court's ruling on this ground was correct and alternatively, that a new trial was warranted on two other grounds.
A trial court has two separate powers to grant a new trial that relate to the quantum of evidence presented to the jury. First, the court has the power to grant a new trial if the court independently concludes that the jury's verdict is against the weight of the evidence. (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503; Mercer v. Perez (1968) 68 Cal.2d 104, 112 (Mercer); Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 413.) A verdict is against the weight of the evidence only if the court is "convinced from the entire record . . . that the . . . jury clearly should have reached a different verdict" (§ 657, subd. (6)); it is not enough that the court "merely . . . 'would not have come to the same result'" as the jury. (Kelly-Zurian, at p. 414; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-216.) When exercising this power, the court effectively sits as a so-called thirteenth juror who may "reweigh the evidence," "disbelieve witnesses," and "draw reasonable inferences . . . contrary to those of the [jury]." (Mercer, at p. 112.) A new trial granted on this ground invokes the statutory authority to grant a new trial due to the "[i]nsufficiency of the evidence" under subdivision (6) of section 657. Second, the court has the power to grant a new trial if the jury's verdict is, "as a matter of law," "unsupported by substantial evidence." (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906-907 (Sanchez-Corea).) This power is analogous to the power to grant a directed verdict because it may be exercised only if the evidence, when construed in the light most favorable to the jury's verdict, is incapable of supporting that verdict because it does not constitute substantial evidence. (Ibid.; Fergus v. Songer (2007) 150 Cal.App.4th 552, 567 (Fergus).) A new trial on this ground invokes the statutory authority to grant a new trial due to a verdict that "is against law" under subdivision (6) of section 657.
A trial court's grant of a new trial is generally reviewed for an abuse of discretion (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 636 (Oakland Raiders); Jiminez v. Sears (1971) 4 Cal.3d 379, 387), but how that standard is to be applied turns on the specific ground for granting the new trial. Where the trial court grants a new trial because, as a thirteenth juror, the court concludes that the jury's verdict is against the weight of the evidence, we are tasked with asking whether the trial court's new trial ruling is supported by substantial evidence. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; People v. Lindsey (1951) 105 Cal.App.2d 463, 465; see generally Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514-515.) But when the trial court grants a new trial because the jury's verdict is unsupported by substantial evidence (and hence "against law"), we are tasked with asking whether jury's verdict is supported by substantial evidence (and hence with reviewing de novo the trial court's determination of that question). (Fergus, supra, 150 Cal.App.4th at p. 567; Design Built Systems v. Sorokine (2019) 32 Cal.App.5th 676, 686.) Applying this standard, if we conclude that there is "any substantial conflict in the evidence," the jury's verdict was not "against law" and the trial court's grant of a new trial was error. (Los Angeles Unified School. Dist. v. Torres Constr. Corp. (2020) 57 Cal.App.5th 480, 509 (Torres), italics omitted; ...
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