Shin v. Bui, B207772 (Cal. App. 9/29/2009)
| Decision Date | 29 September 2009 |
| Docket Number | B207772 |
| Court | California Court of Appeals Court of Appeals |
| Parties | MINA SHIN, Plaintiff and Respondent, v. TUYETMY N. BUI et al., Defendants and Appellants. |
Appeal from a judgment of the Superior Court of Los Angeles County, No. BC366470, Michael L. Stern, Judge. Affirmed as modified.
Liebhaber & Masserman, Jack M. Liebhaber, Terri L. Masserman and Mitchell F. Ducey for Defendants and Appellants.
Cole Pedroza, Joshua C. Traver; Law Offices of Brian G. Hannemann and Brian G. Hannemann, for Plaintiff and Respondent.
Respondent Mina Shin was injured in a vehicle accident while riding in a car driven by Tuyetmy N. Bui and owned by Bui's mother, My Hang Thi Hua (collectively "Appellants"). Following a jury trial, a judgment in the amount of $272,273 was entered against Appellants. Appellants appeal from the judgment entered, raising numerous issues. Appellants challenge the trial court's order denying their motion for leave to file an amended answer, the trial court's order denying their motion in limine to bifurcate the trial, the trial court's denial of a stay to allow them to petition for a writ of mandate, and the amount of the damages award. In addition, Appellants allege that they were prejudiced at trial by improper statements by Respondent's counsel and evidentiary rulings by the trial court, and that the trial court abused its discretion in denying their motion for a new trial.
We conclude that the trial court did not abuse its discretion in denying Appellants' motions to file an amended answer, to bifurcate the trial, and for a new trial. Although hearsay evidence was improperly admitted, we conclude that this was not reversible error. However, we agree with Appellants that the amount of damages awarded improperly included costs that Respondent did not incur. We therefore will modify the judgment by reducing the special damages award. In all other respects, the judgment will be affirmed.
On March 5, 2005, around 11:00 p.m., Respondent and three other passengers were riding in a car owned by Bui's mother and being driven by Bui. The car was involved in an accident with a bus. After the accident, Respondent was hospitalized for approximately two weeks.
Respondent sued Appellants on February 16, 2007, seeking compensatory damages. On June 1, 2007, Appellants filed an answer, asserting 18 affirmative defenses, including satisfaction and accord and satisfaction.
On August 16, 2007, Appellants' counsel contacted Respondent's counsel and stated that Appellants had relied on a January 16, 2006, statement by Respondent's prior counsel that Respondent would not file a claim against Appellants. On November 1, 2007, Appellants filed a motion to file an amended answer and a motion to file a cross-complaint. Appellants sought to amend their answer to include defenses of estoppel, waiver, and laches, based on Respondent's alleged representation that she would not file suit. Attached to their motion to file the cross-complaint were letters from Appellants' counsel to Respondent's prior counsel, dated October 13, 2005, and December 13, 2005, asking if Respondent was going to file a claim and offering the insurance policy limits to settle the matter. Appellants also attached a January 16, 2006, letter from their insurance company to Respondent's prior counsel, offering "our policy limits globally as settlement of any injury claims arising from this loss."
On November 7, 2007, Appellants filed an ex parte application for an order continuing the trial, or, in the alternative, an order shortening the time to hear Appellants' motions. Counsel for Appellants submitted a declaration, stating that Appellants had notified Respondent of settlement negotiations on September 13, 2005, December 13, 2005, and January 16, 2006, and asked her to participate in the negotiations. The declaration further stated that, in January 2006, Respondent's prior counsel had told Appellants' counsel that Respondent would not file a claim against Appellants.
On November 7, 2007, the trial court denied Appellants' ex parte application and stated that the motions would be heard on December 7, 2007. It appears from the transcript that the trial was scheduled to begin January 7, 2008, although it subsequently was continued to January 28, 2008.
At the December 7, 2007, hearing, the trial court denied both motions. The court explained that "[w]e're on the eve of trial," and that "[t]his information should have been available to the parties long ago." The court further reasoned that the accident had occurred nearly three years earlier, which the court termed "an embarrassment."
Later that month, Appellants filed a motion in limine to bifurcate the trial pursuant to Code of Civil Procedure section 597, seeking to try first their defenses that Respondent had waived her claim through accord and satisfaction and satisfaction of the claim. Appellants also filed a motion to limit Respondent's recovery for medical damages to the reasonable value of the services provided, the amount that Respondent actually paid, or the amount on which she incurred liability to a third party, pursuant to Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 (Hanif).
On the same day, Respondent filed a motion in limine to exclude any evidence, argument or testimony that she waived her claim against Appellants. Respondent later filed several motions in limine, two of which are relevant to this appeal. Respondent's Motion in Limine No. 3 sought to exclude all evidence related to treatment she received from psychotherapists, stating that she would not make a claim for emotional trauma beyond what would be expected from such a car accident. Motion in Limine No. 5 sought to exclude all evidence of the personal relationship between Respondent and Appellants.
Trial began on January 28, 2008. Before the jury was brought in, the trial court denied Appellants' motion to bifurcate the trial and granted Respondent's motion to exclude evidence that she waived her claim against Appellants. The trial court then denied Appellants' request to stay the proceedings so that they could file a writ with the court of appeal. The trial court also addressed Appellants' Hanif motion, concluding that the medical damages would be limited to the amount paid, as long as that amount could be established by the evidence.
Respondent presented testimony by herself and Bui, and by two doctors who examined her in preparation for trial—Dr. Peter Lee, a specialist in physical medicine and rehabilitation, and Dr. Lorne Label, a neurologist. Appellants called Sarah Bailey, the driver of the bus involved in the accident, to testify. Appellants also called Jai Singh, an engineer who specialized in motor vehicle accident reconstruction, and Dr. Martin David Levine, a physician who specialized in neurology and psychiatry.
Respondent and Bui were high school friends. On the night of the accident, Bui was driving Respondent and three other friends in Bui's mother's car, a Toyota Corolla, from Diamond Bar to an event in the Los Angeles Convention Center. Respondent testified that Bui was not speeding before the accident, but that Bui did not seem to see a red light about half a block before the intersection where the collision occurred. Respondent stated that she was telling Bui to stop because of the red light, but Bui did not stop.
Respondent did not remember the accident, but awoke in the hospital. Respondent's counsel asked Respondent if she asked someone what happened, and when she tried to report what she had learned, Appellants' counsel objected on hearsay grounds. The court overruled the objection, and Respondent stated, Respondent's counsel asked, "Danny Wong?" Respondent then stated, Appellants' counsel moved to strike the entire answer as hearsay, but the trial court overruled the objection.
On cross-examination, Appellants' counsel asked Respondent if it was true that she was talking on her cell phone from the time she entered the vehicle until the time of the accident. Respondent stated that she was talking on her cell phone, but not the entire time up to the time of the accident.
Respondent was hospitalized, first at County-USC Hospital, and then at Good Samaritan Hospital, and discharged on March 20, 2005. Respondent's medical expert, Dr. Label, reviewed Respondent's medical records, examined her on January 16, 2008, and testified at trial that she had suffered a traumatic brain injury during the accident. Dr. Label described Respondent's injury as "axonal shearing," explaining that microscopic tearing and bleeding of nerves occurred inside her brain. Dr. Label thought that Respondent's strength, balance, walking, and cognitive function were normal, but that she needed specialized testing by a neuropsychologist to determine any further deficits.
Following her discharge from Good Samaritan Hospital, Respondent did not seek medical treatment for several years, until her attorney referred her to Dr. Lee. Dr. Lee first saw Respondent on November 16, 2007. At that meeting, Respondent told Dr. Lee that her walking was "not really normal" and that her memory was weak, complaining that she had trouble "picking up the right word" during conversations. She also complained of weakness in her lower extremities and pain in her neck and lower back.
Bailey, the bus driver, testified that Bui's car was already in the intersection when she first saw it, and that she did not see the car until it was inches from the left side of the bus. Before entering the intersection, she checked a bus stop on...
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